8th July 2001
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Giving more teeth to constitutional council

By Victor Ivan
Setting up of a constitutional council with powers to recommend persons for top posts and bringing under it the activity of five independent commissions will be a significant step towards non-politicisation of the administration. 

Along with the setting up of the council,which should come under parliamentary supervision, there should emerge a mechanism to monitor the activities of those who are appointed to top posts. The biggest shortcoming in the constitutional council proposed in the draft constitution is the absence of such a mechanism. 

There is no method of disciplinary control with regard to superior court judges. The only thing that can be done when there are allegations of misconduct is to remove the accused judge from his post through a parliamentary motion. But this method does not do justice to a person who is victimised by an alleged misconduct of a judge. The victim is no way in a position to influence more than half the number of members in parliament and remove the errant judge. 

There is an incident which I learned from a reliable source. A female cleaning employee who was running to save herself from an unpleasant incident, had allegedhy banged in to a Judge. 

Following a complaint by the judge, the woman employee was questioned. At this inquiry the woman is alleged to have told she was running out of the room of a judge who tried to abuse her. Although she complained to the then Chief Justice Silva about this improper conduct on the part of the judge, the Chief Justice took little or no action against the judge.

One may come to a conclusion that the Chief Justice and the president of the Court of Appeal think that taking disciplinary action against judges is not their job. 

The Judicial Service Commission is a powerful institution which is not under the control of anybody outside it. Once there was an allegation against a high court judge that he had raped a girl who was working in his house. Professor Chandrasiri Niriella who examined the girl was of the view that she had been raped. When the police went to arrest the judge,a high official had allegedly intervened and prevented it. 

At the primary inquiry held in the Magistrates Court, Attorney General's Department officials represented the victim. 

The judge was later discharged on a technical matter. 

Kalayananda Thiranagama, who had appeared for the victim, requested the AG's Department to appeal against the judgment which he said was unfair. But that request was not complied with. 

Later the judge was re-appointed to the high court with the chief justice's approval. 

Even if the allegation of rape is disregarded, the Judicial Service Commission did not consider the issue of a high court judge employing a child as a domestic aide. However, the judge who was re-appointed to high court was unable to assume office because he was seriously injured in a motor accident while he was on his way to the courts.

The manner in which the JSC acted in regard to magistrate Lenin Ratnayake who had been accused of rape, was also controversial. In the first incident of alleged rape the woman who was subjected to it made a formal complaint to the JSC through lawyer Thiranagama. Later a newspaper took up the cause and carried out the campaign to bring the magistrate to justice. 

As a result of appeals by former presidents of the Bar Association emphasised to the Chief Justice, the JSC held an inquiry into the allegation against that magistrate. Although the inquiry found the magistrate guilty of all the allegations, he has not been removed from the judicial service up to date. 

All those instances show the need to set up an institutional framework to inquire into activities of judges of the higher courts, members of the JSC and other top officials such as Attorney General, the Commissioner of Elections and the Auditor General. 

Although the Attorney General, in the narrow sense is the chief legal advisor to the government, in the broader sense he is the custodian of the people's fundamental rights. When a conflict arises as a result of an attempt by a government to curtail or to infringe on the rights of the people, the Attorney General should take not the government's side but the people's side. 

However, in election petitions there is a contradiction in the action of the Attorney General as well as those of the Commissioner of Elections. As a matter of technicality, the Commissioner of Elections is made a respondent in election petitions and it is the Attorney General who appears on behalf of the Commissioner. It should not be possible for the Commissioner of Election or the Attorney General to follow a policy of defending a person who has won an election through corrupt means when an election petition is taken up. 

Unfortunately, what happens now is that the Attorney General who appears for the Elections Commissioner defends the winner — a ruling party member— who is accused of winning the elections by fraudulent means.

It is the Commissioner of Elections who knows better than the petitioner about corrupt practices that have taken place. What the Commissioner of Elections should do in such an instance is not to defend the winner, but to present to the courts the facts, and to help the courts to get a correct picture of the situation. 

Likewise, the Commissioner of Elections should speak in defence of a free and fair election. He should be in a position to obtain statements of assets and liabilities of the members of the officials of the political parties as well as those of candidates. However in order to please the politicians, he allegedly refrains from obtaining these statements.

The Auditor General too has an obligation to play an extremely important and prominent role. It is he who is obliged to audit the activities of all government institutions and to report their activities to Parliament. No government fund should be outside the Auditor General's scrutiny. However, he does not audit the President's Fund. Although the Auditor General has a responsibility to find out whether the sale of government institutions is done in a way that causes no loss to the government and report the factual situation to the Parliament. The Auditor General has not reported to the Parliament his observations of any privatisation deal.

All these instances show that it is necessary to set up a mechanism which keeps a watch over the activities of persons holding high posts.

If it is possible to create under the proposed constitutional council an institution to which people can complain when the President, ministers, MPs, judges and other top officials commit offences. This institutions should be empowered to probe the complaints and report them to Parliament. If this is done, the room for such persons to commit offences, too, can be curtailed to a great extent.

The writer is the editor of Ravaya. 

'This is the path to disaster' 

Clare Short is in the hot seat for funding GM crops in India
By Luke Harding and John Vidal
NEW DELHI, Saturday - Clare Short, Britain's international development minister, came under fire for her department's backing of a controversial scheme in India which campaigners fear will lead to the displacement of millions of poor rural labourers and the extensive introduction of GM crops. 

Up to 20m agricultural workers - many of them lower-caste Dalits, or "untouchables" - could be forced off their land by Vision 2020, a scheme proposed by the state of Andhra Pradesh and backed by Ms Short's department, it is claimed. 

The semi-arid state in southern India is to encourage farmers to plant GM crops, including Bt cotton and vitamin A rice. 

It is setting up a 600 sq km (384 square mile) Genome Valley, where biotechnology companies such as Monsanto will be invited to carry out trials. 

"At a time when Britain has put a moratorium on the commercial use of GM crops, it seems hypocritical to endorse their use among some of the poorest people in India," Tom Wakeford, of Sussex University's development studies institute, said. "Nobody is listening to what the poor want." 

Ms Short's Department for International Development (DfID) has agreed to give Andhra Pradesh more than half of Britain's £105m aid allocation this year to India: it has already received £37m. 

Much of the money has been spent on overhauling the region's crumbling infrastructure to implement the project. 

Campaigners fear, if the scheme goes ahead, millions of small farmers and labourers will be forced to migrate to the cities in search of work. 

The government - under its pioneering chief minister, Chandrababu Naidu - wants to reduce the number of people employed in agriculture from 70% to 40% in the next 20 years. 

Large corporations will be invited to take over farming, with the creation of prairie-style fields similar to those in East Anglia or the American mid-west. 

Jobs such as weeding - done by poor migrant labourers - will disappear with the introduction of hi-tech machinery and chemicals. 

Legislation protecting indebted small farmers has been abolished. 

Incentives will be offered to persuade farmers to abandon traditional crops, such as millet, and replace them with crops grown for export.

The Vision 2020 document, written by the American consultancy firm McKinsey, makes no mention of the traditional use of livestock. 

An internal DfID document obtained by the Guardian expressed grave reservations about the scheme. 

It describes it as "confused", "unfocussed," and "inconsistent". Almost no provisions, it said, had been made to find alternative employment for farming's poor labourers. 

"I strongly feel that the British government should stop funding this kind of programme," said PV Satheesh, of the Andhra Pradesh Coalition in Defence of Diversity. "I'm also surprised that this has been done because DfID has a reputation in India as an enlightened donor." 

"This is the path to disaster." 

Last week, a "citizens' jury" of small farmers from across Andhra Pradesh, one of India's biggest states, rejected the British-backed scheme. 

After a five-day meeting addressed by government, corporations, development groups and others, they unanimously rejected contract farming and GM crops, saying they wanted to control their own land and forests. 

They also called for the preservation of "healthy soils", "diverse crops", and "indigenous knowledge". 

"This was an innovative process in which local voices gave their views on food and farming. Donors such as DfID and the World Bank need to base their policies on such direct democracy," Michel Pimbert of the International Institute for Environment and Development in London said last night. 

In a visit to New Delhi in January, Ms Short announced that Britain would triple its aid commitment to India in the next three to four years. 

Britain gives more aid to India than to any other country, but it is only sent to four Indian states - Andhra Pradesh, Madhya Pradesh, West Bengal and Orissa. 

The DfID also acknowledges that severe environmental problems in India are caused by land degradation, increasing energy use and declining water quality, all widely associated with the kind of industrial-scale agriculture proposed in the Andhra Pradesh plan. 

Opposition to GM crops and industrial-scale farming in India is high. Many organisations, representing millions of small farmers, are deeply opposed to the introduction of GM technology which, they argue, will force them off the land or drive them deeper into debt. 

In the past few years thousands of farmers have committed suicide because of rising debts. 

Monsanto, the largest foreign-owned agri-business company in India, has recently bought several of its largest seed companies and is eager to start GM production there as soon as possible. 

Last month India's ministry of environment and forests was forced by a regulatory committee's demand for further tests to defer a decision on the commercial planting of GM cotton until next year. 

– The Guardian, London

Take to heart 

The patient has been identified only as a man in his 50s, a man who met all qualifications for the procedure: He was of a large enough build for his chest to accommodate the grapefruit-size titanium-and-plastic device. Both his original heart's pumping chambers had failed, as had all standard heart therapies. He had been rejected for a heart transplant because he also had diabetes, kidney failure and he was drowning internally from pulmonary edema, a buildup of fluid in the lungs that occurs in heart failure. He had an 80 percent chance of dying within 30 days. 

"He had no other option," one of the surgeons, Dr. Laman A. Gray, said. "He was in as dire shape as you can ever have anybody in." 

So he had what it took to make medical history. And by the end of the seven-hour implantation surgery, performed at Jewish Hospital in Louisville by Dr. Gray and Dr. Robert D. Dowling of the University of Louisville, he was very newsworthy indeed. 

The Associated Press learned about the operation Monday from an unnamed source; Tuesday, Dr. Gray and Dr. Dowling were in front of the microphones telling reporters that their patient was resting comfortably, awake and responsive. Then they started talking about the day — not far away — when a man with a machine in his chest could go back home, go back to work, take out the trash if it wasn't too heavy. 

Thursday, Dr. Gray was on "Good Morning America," telling Diane Sawyer and Charles Gibson that he and his patient had a pact: "He's going to take me fishing and teach me how to bass fish." 

The patient's new heart is the AbioCor, made by Abiomed of Danvers, Mass. It is the second type of totally artificial heart to be tested in people — the Jarvik-7, you may recall, was implanted in patient Dr. Barney Clark at the University of Utah in December 1982 — but it is a great leap forward. The Jarvik-7 was air-driven, which meant that tubes had to connect huge compressors to the device. Mobility was impossible; infection and complications were inevitable. 

The AbioCor runs on a tiny internal pump that spins about 10,000 times a minute, moving hydraulic fluid through a valve that alternately allows blood to be pumped to the lungs or the body. There is a small battery inside the device powering its control unit; that battery is in turn powered by an external battery pack (worn on the belt or suspenders) that transfers energy across the skin, without any connections. Without wires. Without tubes. 

The patient will be the first artificial-heart recipient in history to take a shower. 

For now, he is an experiment. Dr. David M. Lederman, Abiomed's president and chief executive, said the initial goal in testing the device would be to "double the life of the patient and to give the patient a reasonable quality of life, which is 60 days." Dr. Lederman said he hoped patients would live longer. 

Complications are inevitable with a heart this new and a man this sick, but as the week went on the AbioCor, whirring away at a steady 120 beats a minute (later, it will be adjusted to respond to the patient's level of activity) was outperforming expectations. By Tuesday morning — even after a second, two-hour operation to repair a loose stitch — it had already cleared the patient's lungs of fluid. 

Wednesday, Gray and Dowling were expressing optimism that their patient would be able to return to daily activities. Thursday, he went back on a ventilator, but only to rest and speed his recovery, the doctors said. 

Asked Wednesday when he considered the implant a success, Dr. Gray said that as a clinician it was "when we have made him better." 

"Success is when we have helped somebody," he added. "We may not achieve everything the first few times, but we are trying to." 

If the patient is still alive in a week, news coverage will drop off to nothing — clearly a good sign. If the patient is still alive in a month, Dr. Gray may consider himself to have helped. If the patient is still alive in two months, walking around and changing his battery every two hours, he will have met Dr. Lederman's standard and by then will probably have taught his doctors how to bass fish by then. 

And then maybe they'll tell us the patient's name. –

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