13th July 1997


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Judges and the world of politics

Former President Bar Association Silva P.C. presented a paper
dealing with problems facing the
judiciary at the 1990 National Law
Conference. We publish here the
speech by Mr. de Silva who
is now Sri Lanka’s Permanent
Representative at the UN

The close relation be tween Judges and the World of Politics though seldom openly acknowledged appears obvious enough when we reflect on the fact that all important decisions taken at the political level under any governmental system where the Rule of Law prevails, for their implementation need to assume a legal form - whether it be as an enactment of the Legislature or as a regulation or rule made by the Executive. These laws and regulations have to be enforced and interpreted through the judicial process. So it is inevitable that Judges by the very nature of their duties and functions have to be concerned with matters that stem from political decisions.

They are an integral part of governmental structure and yet are required to exercise a certain controlling function over the proper working of the machinery of government. This inherent dualism arises from the fact that all forms of democratic government as distinct from totalitarian systems recognize the need for limits to be imposed by law on the exercise of State power.

This is the doctrine of Constitutionalism which recognizes the need for an independent Judiciary that will ensure both in the interests of the citizen and those competing for political power that there will be no abuse of power and no misuse of power by the Legislature or the Executive - the two organs of the State which wield maximum political power. There could be a clash and conflict of interests, so the institution of the Judiciary and the individuals - both the strong and the weak who form part of it can hardly be immune from, or remain totally isolated from the world of politics.

Although an open and frank discussion of this subject may seem imprudent and even an embarrassment we should at this National Conference of Lawyers come to terms with this problem and not pretend that it does not exist.

We need to consider some of the issues that arise out of the inter-relation between Judges and politics and the anomalies that are likely to arise from it and how best to deal with them. There has been a great deal of study in this field all over the world by legal scholars especially in Britain and the United States and it would be useful for us to be aware of the insights that have been gained by such studies.

There is perhaps an even more compelling reason. These studies have led them to analyse and critically examine the Role of Judges in the legal system and the Administration of Justice and have sought to evaluate the extent to which they have fulfilled or failed to measure up to the expectations which the community has of them.

As with every human institution the conduct and performance of Judges has revealed many imperfections and infirmities and these need to be studied and remedial measures taken if the Judiciary is to preserve its credibility and legitimacy and play the pivotal role assigned to it in administering Justice in society in order to meet the challenges of the 21st Century.

I would like to suggest therefore that if this first National Law Conference organized by the Bar Association of Sri Lanka is to be a regular event that we should provide for a separate section of the programme that is set apart for an on-going study and an examination in depth of the proper Role of Judges in our system of Justice.

Lawyers have hitherto been overly concerned with matters which exclusively relate to the practice of our profession oblivious of the role of the Judges - the men before whom we perform our daily task and the vital importance they have for us and our clients and indeed for the whole of society.

This paper is not intended to be a comprehensive treatment of the subject, given the constraints of time and space, but seeks to highlight some of the problems and issues we need to confront and focus in future deliberations on the subject of the Judiciary.

To start with one has to examine the whole question of the appointment of Judges. Are we satisfied with the present system?

As far as the recruitment of officers to the minor judiciary is concerned the institution of the Judicial Service Commission appears to have worked reasonably well, given the constraints of existing financial provisions, in attracting suitable personnel even though deficient in experience. In regard to appointments to the two Superior Courts we have for many years left the task of the final selection from among suitable candidates to the Head of the Government in office. Perhaps a more discriminatory selection may be achieved by an Advisory Committee that examines the question and advises the President. There are no settled conventions as to how this power ought to be exercised and seniority alone is hardly an adequate criterion. Is there good reason why the power should be reposed in the President and remain the sole prerogative of the President and a matter within his unfettered discretion? Should his nominee receive the concurrence of a Select Committee of representatives of both Government and Opposition groups in the Legislature which will examine the candidate’s credentials for appointment?

Once appointed to the highest court, the Judges wield enormous power under the Constitution. Though these appointments are made by the President, it is the Judges of the Supreme Court who may be called upon to determine whether the President’s own election to office is void and upon a resolution of Parliament whether the President is guilty inter alia of an international violation of the Constitution.

Likewise they may be called upon to determine whether the President is guilty of misconduct or corruption involving the abuse of the powers of his office or any offence under any law involving moral turpitude. As members of a Special Presidential Commission they may after the determination of the guilt of any person brought before it recommend the imposition of civic disability extending up to a period of seven years.

They alone can interpret the Constitution which is pre-eminently and essentially a political document. They alone determine the Constitutional validity of any Bill or draft law intended to be passed by Parliament.

They determine whether there has been any infringement of any constitutionally guaranteed fundamental rights by the Executive and the Administration and it is to them that the citizen has to turn as the ultimate guardian of his freedoms and liberties.

In the determination of the area of permissible restrictions to be imposed by law on fundamental rights under Article 15 the Supreme Court has to interpret many concepts such as ‘national security’, ‘public order’ ‘the just requirements of the general welfare of a democratic society’ which clearly have political, economic and social underpinnings.

All these point to their inevitable involvement with political questions and in the working of the Legislature and the Executive. It is therefore idle to pretend that the world of politics is alien territory to the Judiciary. At one time the popular image of the Judge was that of a person who was relatively isolated from the rest of society and one who stood aloof and in a sense removed from the day to day concerns of the community. Primarily this notion of the judge almost as a being in splendid isolation viewing the problems of ordinary human beings from Olympian heights helped to reinforce one of the essential demands for the holding of Judicial office viz. that of absolute impartiality and freedom from bias. Combined with the fact that those chosen for judicial office were assumed and expected to be persons of high moral integrity, intelligence, wisdom and learning, and such virtues as patience, tolerance, firmness and fairness - contributed to the popular image. Judges as a class were therefore persons who were held in high esteem and formed a prestigious group in the community to whom no dishonesty or lack of probity or integrity could be publicly imputed. It was thought that allegations of such defects of character should not be made in public even if they were factually correct. It was thought that this would tend to destroy public confidence in the Judiciary as an institution and in the whole administration of Justice.

It was the concern to maintain this ideal image of the Judge in the public mind that led to the development of an important aspect of the Law of contempt which was called the offence of ‘scandalising the court’. It was this notion of the Judge as an impartial arbiter that contributed to the development of this aspect of the law of contempt of court. But is there any valid basis for this popular conception of the Judge or is it merely a case of paying homage to gods with feet of clay?

Is this an outworn concept? Do the nature of the problems that arise in the modern world fit in with this conception of the Judge? Are the persons who hold judicial office adequately equipped to deal with the legal problems of modern society? Are they able to cope with the continuous changes taking place in social values, economic problems and political institutions under the legal systems within which they operate?

Can the expected high standards of excellence be always attained when appointments to the Judiciary are made by those who wield political power - that is to say the Governments of the day?

By virtue of this appointing power it is to be expected that the persons appointed as Judges at any given time would to a great extent mirror the political complexion of the government in power at the relevant time. It is also to be expected that judicial decisions would in some degree reflect that political ideology.

At any rate, viewpoints reflected in their judgments would seldom be found to deviate radically from them. The judges along with the other organs of government thereby help create social order that conforms to the prevalent political philosophy and in a sense do represent the established government.

This is true even in countries like the UK and the US where the political acceptability of those appointed to be Judges has been considered a relevant matter although Judges in Britain have over the last century or so ceased to be politically active long prior to the appointment to the Bench.

Lord Hailsham who was Lord Chancellor in several Conservative Governments, has observed that “activity in politics is not, and never has been a bar to appointment to the bench”.

Contd. next week

Human rights: big talk, little action

‘The question now being asked is how sincere the government is towards implementing and
maintaining a credible record on human rights. In Ms. Koneswary’s case if she was killed by a
grenade detonated on her abdomen, there would be little or no evidence of rape. Since the cause
of death is not disputed, the question raised is as to what the government inquiry would find.’
By Frederica Jansz

Rape, one of the most dastardly and bar baric crimes, continues virtually unabated even in modern civilised society. In Sri Lanka today the crime is repeated more often than not, while a majority lend a deaf ear to the horrors of rape.

One of the recent cases case was that of Murugesapillai Koneswary, mother of four who was allegedly raped and later killed by exploding a grenade on her abdomen.

It was believed that the grenade was used to destroy evidence of gang rape. Colombo’s Judicial Medical Officer L. D. D. C. Alwis later said the issue of rape could not be determined due to the body being in a highly decomposed state. The autopsy, carried out solely to determine whether or not Ms. Koneswary had been raped, did not address the cause of death, which according to Dr. Alwis is not in dispute.

Two members of the Vigilant Coalition who visited Ms. Koneswary’s home soon after the incident say they saw a large crater on the concrete floor of the thatched hut, indicating an explosion. Blood and shrapnel bore witness to the dastardly crime that took place on May 17.

According to Ms. Koneswary’s neighbours, the former had numerous problems with the Central Camp police in the Kalmunai district. She had been subjected to alleged persistent harassment at the Central camp checkpoint.

Two months before she was killed, certain police officers had allegedly cut down and took away a Margosa tree from her yard. Although she is reported to have filed a complaint with the OIC at Central Camp immediately, nothing was done.

Subsequently Ms. Koneswary complained to a deputy inspector general in Ampara, who intervened on her behalf, instructing the Central Camp police to return the timber to the family. It was after this incident that the alleged verbal abuse and sexual harassment of Ms. Koneswary began.

On May 17, around 11 p.m., as described by her four-year old daughter, some “uncles with guns” had entered the hut carried the little girl outside and left her near a neighbour’s fence. According to villagers, Ms. Koneswary had that night sent her three other children to her relatives who were living nearby. The little girl is the only witness, to the ensuing crime.

An inquiry ordered by President Chandrika Kumaratunga does not seem to be getting anywhere with human rights activists saying that they do not even know who is conducting the investigation.

The Mothers’ Front of Jaffna has written twice to President Kumaratunga, demanding the withdrawal of the Emergency regulations and protesting against the rape of women allegedly by members of the security forces.

The letter says reprisals by the security forces against civilians and their property have now become a common feature. The search for “terrorists”, the letter states, has now resulted in the indiscriminate arrest of innocent persons and children, rape of women and young girls and plunder and looting.

“Tamil women in the north and east are no longer able to live with self-respect and dignity. Normal life in these parts of the country is severely hampered, as law-abiding citizens are prevented from going about their day-to-day life.”

The letter signed by joint secretaries of the Front says the armed might of the security forces has been used to rape, molest and humiliate the women in this area on the pretext of a search for “militant youths”.

Pregnant women are also not spared while those affected have been threatened with reprisals if evidence is lent to the authorities, it is alleged.

When an initial inquiry was carried out into the Koneswary murder, no one came forward to give evidence, as they feared a similar fate.

Some government sources have since claimed that Ms. Koneswary was murdered by the LTTE. However according to community workers the LTTE has stayed away from the area since an STF camp was established, surrounding the village with two military installations.

The Centre for Women’s Research in Sri Lanka, CENWOR also in a letter to the President, states the incidence of gang rape in civilian environments in this country is high. In most instances these crimes continue to go unpunished and undetected.

The government is engaged in an immense effort to win the hearts and minds of the civilian population of Jaffna and find a solution to the war. CENWOR had queried these initiatives asking how can national on international credibility be acquired when this type of grave crime is committed by members of the armed forces against defenceless women.

Unfortunately, such incidents when they go unpunished or are not condemned by the majority community, provide fodder for the LTTE which will thrive in such situations encouraging Tamil women to enlist with the organization. “Dhanu” the killer of Rajiv Gandhi was one such victim who had been allegedly raped by the IPKF.

Amnesty International has sent an Urgent Action Appeal to President Kumaratunga, calling for an independent investigation into the alleged rape and murder of Mrs. Koneswary.

Meanwhile, a frustrated human rights activist asked, “Why is it always necessary to approach the President each time? Why are there no proper mechanisms in place to which these issues could be addressed and a witness protection program be implemented in order that such crimes do not escape justice?”

The Human Rights Task Force (HRTF) has been among the first to be approached with regard to the Koneswary crime. However community workers were told this incident did not comply within the jurisdiction of the Task Force and so no support or assistance could be lent.

In the murder case of Krishanthy Kumaraswamy nine soldiers have been charged on eleven counts including the killing of Krishanthy and three members from her family. Krishanthy too in September last year was allegedly forced to engage in forcible sex and was later murdered by a group of eleven soldiers.

The question now being asked is how sincere the government is towards implementing and maintaining a credible record on human rights.

In Ms. Koneswary’s case if she was killed by a grenade detonated on her abdomen, there would be little or no evidence of rape. Since the cause of death is not disputed, the question raised is as to what the government inquiry would find.

Was this an effort in good faith to establish the truth or was it merely a ploy to appease growing public pressure?

Provide a practical relief to an ordinary citizen

By Kishali Pinto Jayawardene

Heartburn over the sudden dissolving of the Human Rights Task Force (HRTF) has prompted calls for a long hard look to be taken at the present human rights policy of the Government. The HRTF, a watchdog body monitoring the arrest and detention of persons under the Emergency laws came to a sorry end late last month when the regulation under which it was established was rescinded, and its dedicated and trained staff summarily dismissed.

As human rights activists reacted angrily to this move, the Government defended its decision by saying that the duties of the HRTF would be taken over by the fledging Human Rights Commission set up recently. This was considered to be a laughable explanation as the Commission is still recruiting staff, and is in certainly no position to handle the work that the HRTF had been engaged in. The Civil Rights Movement (CRM) condemned the disbanding of the HRTF in no uncertain terms.

”The decision to dissolve the HRTF is as perplexing as it is appalling,” the CRM said.

Some of the functions of the HRTF such as the reporting of all emergency arrests have been transferred to the Commission. Right now, activists deny that such arrests are actually being reported, and allege that there is a massive vacuum in the monitoring of arrests and detentions.

Meanwhile, questions arise as to whether the Human Rights Commission is capable of taking on monitoring of emergency arrests even if it was functioning effectively. Members of the Commission are appointed by the President on the recommendations of the Constitutional Council. Until such time that the Council comes into being, the members are appointed by the President on the recommendations of the Prime Minister in consultation with the Speaker and the Leader of the Opposition. The first such appointments were made sans much fanfare early this year, and the absence of activist human rights agitators among the appointments was cause for concern. It was pointed out that members of the Commission should have proven expertise and competence in the field of human rights rather than only the presently laid down “knowledge of or practical experience in matters relating to human rights.” It is crucial that the Commission is staffed by persons who are bold enough to challenge authority whenever necessary. Not only politicians but also non political persons ought to have a say in the appointments.

Another defect pinpointed is that though the Commission is given the power to carry out investigations into human rights violations, there is no specific provision for the creation of an independent and effective investigating unit. Fears are that the Commission would degenerate into a body that looks good on paper but does precious little in actual practice.

This, of course, appears to be the universal problem with almost all human rights institutions in the country. As high level delegations in New York and Geneva trot out extravagant promises to improve rights concerns within the country, whether these commissions, committees and bodies that are subsequently appointed really improve the ground situation, and provide the ordinary citizen with some measure of relief is a different matter.

At present, a wide array of bodies is meant to give relief in cases involving violations of fundamental rights. The Supreme Court, the Ombudsman, the Human Rights Centre of the Sri Lanka Foundation Institute, the Law Commission and the Human Rights Commission are given various powers to protect human rights. Additionally, three Disappearances Commissions were appointed to look into missing persons after January 1988.

The question though is whether these impressive institutions actually strengthen national human rights concerns. The Supreme Court has been increasingly activist in recent years in intervening to protect victims but recommendations to the State to punish those state officers found guilty of rights violations have fallen on deaf ears. Many of the fines imposed have been paid by the State itself. The Ombudsman meanwhile was given enhanced powers to look into complaints of discrimination, but has pitiful funds with which to tackle the complaints that keep pouring in. The Disappearances Commissions are presently winding up their work, and will be presenting their reports shortly. The immense task entrusted to them to look into some 60,000 disappearances has been hampered both by the lack of time given to them as well as insufficient resources. What was hoped was not only that the Commissions would investigate specific cases but that they would also look into the underlying causes and responsibility for the disappearances, and suggest thoughtful recommendations to prevent a recurrence of those ‘terror years.” What may well happen is that the reports of the Commissions will be pushed into some bureaucrat’s drawer, and the whole affair would be another farcical exercise.

In general, the bona fides of the Government on its human rights policy is also under challenge. The so called “radical “ changes that were to be made to the Rights Chapter of the Constitution attracted little praise when the latest draft was released early this year. While new rights such as the right to life, the right to privacy and the right to property have been included, social and economic rights were not mentioned. Moreover, the strongly criticised provision that allows existing laws to be valid even though they are inconsistent with the Constitution was retained.

And to add insult to injury, last year’s surprise decision to ratify the Optional Protocol to the International Covenant on Civil and Political Rights, permitting Sri Lankan citizens to appeal to the Human Rights Committee in Geneva if they have exhausted remedies within the country appears to have been conveniently forgotten. Some activists have indeed dismissed the whole as being a mere propaganda exercise of the Government.

The Government can therefore ill- afford such costly blunders as it committed when it dismissed the HRTF in such a rude manner last month. In fact this is not the first time that a human rights body was asked to exit in an inglorious manner.

In 1988, the Commission for the Elimination of Discrimination and Monitoring of Fundamental Rights violations which had been doing some solid work in an unobtrusive manner also lapsed into obscurity, with half its work uncompleted. Such examples hardly inspire confidence in either members of the public who go to these bodies for relief, or members of the staff of these bodies who work long hours on often inadequate pay. Such action also leads to comment that the human rights policy of the Government is at the best frivolous and at the worst, hypocritical.

In sum, what is urgently needed now is not high-flown promises but real action — like independent machinery to examine complaints against the police, like strengthening the resources of ordinary courts to deal with complaints, like giving the Ombudsman more than one car so that he can go about his work more effectively and like treating those rapped over the knuckles by the Supreme Court more severely. The Sri Lankan people need a change of attitude badly.

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