17th August 1997


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People ask for change, not continuity

Noted legal and constitutional scholars from the region, along with Sri Lankan academics and leaders of political parties participated in consultations on constitutional reform at the BMICH last weekend. The talks took place on the initiative of the Commonwealth Human Rights Institute which is comprised of the Commonwealth Parliamentary Association, the Commonwealth Journalists Association, the Commonwealth Educational Association and the Commonwealth Medical Association.
By Kishali Pinto Jayawardene

Professor Upendra Baxi, ex Vice Chancellor of the University of Delhi is pensive as I join him for lunch following the conclusion of last week's consultations on constitutional reform at the BMICH.

"It is not that all this constitutional reform is bad" he declares, gesticulating with his fork.

"The details are there, I just find something missing in the spirit of things. So many hangovers remain"

He is talking about the fact that the proposed Sri Lankan reforms to the Constitution still do not give judges the power to review past unconstitutional laws, and would give them this power for future laws only within a two year period. In contrast, India has for long years given its judiciary an absolute authority to strike down such legislation.In that sense, the Indian judiciary interacts on an equal level vis a vis the Indian Parliament. Sri Lanka has been reluctant to follow suit on the basis that to give the courts this power might lead to the law being uncertain and unsettled.

" But the people ask for change, not continuity. It is only with change that a country moves forward." Baxi says. Looking at me quizzically, he adds "After all, we do not expect the courts to act like unreasonable juggernauts, plowing down legislation in its path. In every case, it would weigh the consequences and come to a decision."

His was the voice that Indian justice had listened to since the 1960's. Along with former Chief Justice P.N. Bhagwati, he had steered India into its greatest legal adventure of all time, Social Action Litigation.

In the flesh, India's most well known jurist is keen eyed, and somewhat bohemian in appearance with a shock of flowing white hair. He has a puckish humour, rather like a Peter Pan of law, piping irrepressible tunes to an impassive and majestic Justice. I tax him with this sense of mischief which I heard had livened up proceedings over the weekend, and he laughs.

"Once in a while, some mischief does no harm" he says.

Following are excerpts from the interview.

Q: Sri Lanka has been engaged in this latest effort at constitutional reform for well over three years. There is however no national effort involved in discussing the issues. On the contrary, there is a sense of cynicism that whatever happens, it really would not make a difference. How do you feel this problem could be addressed ?

A: In civilly divided societies where conflict has been institutionalised for over a decade, this kind of stalemate is common. Every issue is politicised. One says something and is heard as saying something else. It is not that the speaker is bad, or that the media is bad or that the listener is bad. It is because certain identities are defined, battle lines are drawn and people take up positions one way or the other. Time and again, this has happened in India. We have spent time in trying to achieve this most basic communication between persons whether they be politicians, journalists or trade unionists. It requires very hard effort on the part of everybody. People must be active in hearing what the other is trying to say. This is only dignity after all, and without that dignity, dialogue is impossible. There are two things that are important, civility and dignity.When they crumble, they crumble comprehensively. It takes a hell of a lot of effort to build them up again. Both the solidarity of the common people at real grassroots level and very imaginative statesmanship by leaders of opinion in society is important.It is a kind of a mission.To get there, one has to work at it. There is no quick recipe for this.

Q: There is this tendency in Sri Lanka to pass the buck to the politicians in every instance, and we are very quick to point the finger at them for things that go wrong. But should not responsibility for the disintegration of a country's civic structure be laid in an equal measure on professionals, academics, the judiciary, the press etc ?

A: In India, the radicalization of the middle classes took place after the Emergency in the 70's. The Emergency broke the indifference of the middle classes. Professionals became more sensitive, and there was a collective consciousness that we would not allow it to happen again. Judges took up the cause of the people and there was this active partnership between the courts, social action groups and the press. We were able to clip articles from the newspapers and send them to the courts who would then look into them. This partnership is still working twenty five years down the line.

What is stressed here is the accountability of all sectors of society, not merely the politicians.

Q: To what does this accountability translate to, in practical terms ?

A: Accountability has many meanings. In one sense, it simply means taking up your responsibilities. I have often asked myself what it means to be a citizen. Do I say that I am a human being first and a citizen next, a professional first and a citizen next or a man first and a citizen next ? When I ask myself this question, I realize that citizenship is a code of basic obligations not so much to the State but to fellow human beings. The French Revolution spoke of Equality, Liberty and Fraternity. Now, we remember only the first two, and not the third.

Each of us have to be accountable as citizens, even at the risk of inconvenience, at the risk of getting hurt and at the risk of changing your positions. Citizenship, in effect means a continuous taking of risks, not just for oneself but risks for other people. Of course, it is so much easier to keep quiet when things trouble you. You tell yourself

'What is the use of my talking? I would not accomplish anything by beating my head against the system ? It is far better that I look after myself."

To my mind, this is the worst kind of selfishness, which effectively negates all great strides that humankind has made up to now. It is when a people begin to think like this that a country is pushed into chaos.

Q: In other words, citizenship is a positive obligation and not a static right ?

A:Yes.Freedom of expression is not only a right but it is also a responsibility do not say this in the common sense that when you exercise your right to speak, you must be careful of what you say. That goes without saying.The responsibility that I talk about here is the responsibility to speak out against wrong and not listen to that voice telling you "Would it hurt me if I speak, if I stand up ?"

Q: What are the other senses in which you talk of accountability ?

A: Well, it also means taking up scrutiny and responding to criticism. The Indian judiciary has played a key role in this. We have been seeing instances in India where judges are even asking political parties to furnish statements of audited accounts. Parties have been asked to account for the manner in which intra party elections are held.The Supreme Court of India has said that the internal workings of a political party must be shown to be democratic.

With regard to the media, it has been held that the press serve the citizen's right to know. There is a crusading spirit implicit in this. The courts have defined the parameters of freedom of speech in a liberal manner that allows journalists to express themselves, whilst being conscious of their limits.The important thing is that the law is clearly laid down so that journalists know what they can do and what they cannot do.

Judges themselves have not been spared this accountability. They cannot distort the law, and be parties to the demise of the law. There has been very robust criticism of Indian judges and judgements. Feminists for example, comment on judicial issues in a very forthright manner.

Contempt has been confined to malicious and reckless criticism that disgraces a judge or the system of judiciary. Judges too must listen and learn, that is how they become accountable.

Q: There is this criticism being made that Indian judges are too activist, that they interfere in the affairs of government. Can you respond to that ?

A: What are the judges really doing here ? They are saying that the State and all officers of the State must abide by three basic rules.They must not take decisions if they are personally affected, they must give reasons for their decisions, and they must give the party affected a hearing. Time and time again, the State is unable to do this.

There is this " Fly now, pay later " attitude. In other words, the State knows that dismissing a particular official will probably result in him going to court but goes on with the dismissal nevertheless on the basis that in any case, when the court action is concluded, he might be too tired, too dispirited or too old to be reinstated, and a sum of money would suffice. It is this attitude that the court, by swift action should correct.

I have looked at this problem clinically, and I can say that in ten out of ten cases, the judiciary has done nothing to usurp the authority of the State, or of the administration. I have met hundreds of power hungry politicians, but I have yet to meet a power hungry judge. A good judge is aware that his power is fragile, and will handle it with care. He will be aware that his greatest power lies in persuasion.

Judicial activism therefore simply means asking public officials to perform their functions in the manner that they are meant to perform. Courts have no escape from being activist. If they are not activist, they are not courts. When I hear this criticism about judges being too activist, I always ask " Who is making that statement, and why ? Who feels insecure about judges being activist, and not merely active? "

Q: In India, who indeed are making these criticisms ?

A: Liberalization is the buzz word today. The State has changed its economic policies.Foreign corporations want a good investment climate, and the judiciary to be like a well oiled machine that would respond to their needs. Judicial activism is now said to be all right for women and bonded labour but not for questioning economic policies.We are asking the Court to scrutinize these as well. They are a little hesitant to do so. I am annoyed with them. But they will do so, in time.

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