9th September 2001
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Focus on RightsJudiciary and the crisis of silence

This column, in an exercise of conscious and quite deliberate choice, continues this week on its theme of the previous week, which was on the value of the right to an independent legal system and the specific responsibilities of judges in this respect. In focus was Dato Param Coomaraswamy, United Nations Special Rapporteur on the Independence of the Judiciary, who held out a new standard for judges traditionally isolated in Olympian splendour from public debate, asserting on the contrary, that judges have an overriding duty to intervene positively where issues concerning the independence of the judiciary are concerned. 

Needless to say, one finds oneself in perfect agreement with the views expressed by the Special Rapporteur for the simple reason that Sri Lanka, at this precise moment in time, exemplifies the immense crisis that faces a country when men and women of otherwise impeccable honour, dignity and erudition prefer to be quiet when institutions break down and accountability becomes subverted. 

And in that sense, the indictment is already served not only on the institution of justice and judges or lawyers but indeed across the board on our intellectuals and activists forming that loose entity called civil society, whether it be on issues such as the appointment of a highly problematic Truth Commission on the July '83 riots or the recently (and for the moment) thwarted attempts to turn the Constitution on its head for clear political gain. 

This crisis of silence is, of course, as old as time and has played itself out in many other historical contexts. And the manner of damage it wreaks is best reflected in an exchange that took place between Kang Youwei, a Confucian scholar who became a spokesman for radical reform as the Qing dynasty drew to its close in the late nineteenth century in China. Called before some of the most powerful officials in the empire to explain his views on institutional reform and the 'weeding out' of highly corrupt provincial officers, the interview began inauspiciously when one of the senior Manchu officials said firmly, "The laws of the ancestors cannot be changed." Kang responded equally firmly, "the laws of the ancestors were designed for the administration of the land of the ancestors. Now, if we cannot even defend the land of the ancestors, how can we talk of their laws?" Needless to say, Kang's views on fiscal, educational and legal reforms were disregarded and though the Qing dynasty itself collapsed much later, perhaps it is only fitting that Kang died in exile, finding in utopian speculation, a solace for his misery while China proceeded on to a bloody revolution.

That said, this column is struck by relatively recent developments involving the administration of justice and the institution of the judiciary in India which afford particularly good comparison with this 'crisis of silence' in Sri Lanka. The manner in which the judiciary should make itself accountable for its omissions and commissions had been in the forefront of public debate in India since the failure of the Lok Sabha motion to impeach Justice V. Ramaswami, former judge of the Supreme Court in 1993. The Indian impeachment procedure where a judge is concerned is as elaborate as Sri Lanka's except that a judicial inquiry tribunal first examines the impugned behaviour of the judge and makes recommendations. Only Parliament can impeach the judge however and Parliament is not bound by the recommendations of the tribunal. The problems that this can lead to was clearly demonstrated in Ramaswami's case where the motion failed due to political divisions within the legislative assembly. 

But the storm of discussion on judicial accountability that the case generated led to the Court itself exploring the possibility of building in-house corrective mechanisms, which were put into place in 1997. This process was quickened by another controversy regarding judicial misbehaviour in that year itself when allegations were made regarding unjustifiably high payments from a publisher to the Chief Justice of the Bombay High Court. While the Chief Justice resigned following an uproar, the Supreme Court, sitting in a Full Court meeting, resolved that the Court should devise an in-house procedure to take action against judges who by acts of omission or commission, do not follow universally accepted values of judicial life. A "Restatement of Values of Judicial Life" comprising values that are essential for an independent, strong and respected judiciary and intended to serve as a guide for judges, was enunciated by the Court. The Court set up a seven member in-house disciplinary committee to monitor this procedure.

Where any allegations were found to be valid against a particular judge, it was resolved that the committee would request the judge to quit office. Where the judge concerned refused to quit, then the Court would refuse to assign work to him or her as what happened in the Ramaswami case.

This then, as far as the Bench was concerned. With regard to the Bar, the Committee of Judicial Accountability which came into existence during the impeachment of Justice Ramaswami comprised a voluntary body of the most senior and respected advocates of the Indian Bar. This Committee, which was a body quite distinct from the Bar Association of India, engaged in its own lobbying where judicial independence was concerned as seen in 1997 for example, when a memorandum was sent to the President of India, signed by all of them, calling for inquiry into allegations against a senior sitting judge of the Supreme Court on the basis that his behaviour lacked integrity and amounted to nothing less than dishonesty.

As opposed to India, the debate on judicial independence in Sri Lanka remains transfixed in a destructive paradox of political partisanship visa visa crisis of silence. As is common to almost every issue of national importance facing our country today. 

We are broken because of these betrayals by our men and women of learning and not emphatically because we have chosen muddle headed politicians to govern us. And we will continue to be destroyed because as a nation and as a civil society, we have engaged too long in this culture of denial and alienation to drag ourselves back to some measure of accountability for ourselves as well as the institutions that we are part of. What better way in which to break the spirit of a country than this?

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