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This issue of JUSTICE carries a guest column by former judge
of the Supreme Court and author of several books on criminal justice, A.C.
Alles who gives his perspectives on what is meant by judicial independence.
The page features an article on current issues of legal interest in India
and includes also a commentary on the ongoing Parliamentary debates relating
to the Child Protection Authority Bill, together with suggested amendments.
Synopses of recent judgements will not be included in this month's JUSTICE
due to constraints of space.
Child needs more
The new legislation on child rights is seen as a step
in the right direction,
but is it enough?
By Dilrukshi Handunnetti
No, it is not only Woody Allen and Michael Jackson
who have had legal tussles linked to paedophilia. There is much abuse taking
place here in Sri Lanka, a country which boasts of a rich cultural heritage
promoting close relations between adults and the young. Yet our legacy
with regard to the treatment of child is indeed a sorry one.
Take a few horrifying examples from this value-based multi-cultural
society. There are an estimated 10,000 child prostitutes in the country,
mostly concentrated in the Southern Province.
Recent surveys have disclosed that 50% of our children suffer from abject
poverty while 40% are malnourished. Yes, we have also a high rate of impoverishment
in addition to a high rate of underweight babies. In the North and the
East, almost 75,000 children under five have been displaced with over 320,000
under 18 having suffered the same fate. Certainly not a rosy picture.
Against this backdrop, the presidential initiative to formulate legislation
proposing the establishment of the wide ranging National Child Protection
Authority, comes as a welcome piece of legislation which could have been
vastly improved if active public discussion had preceded its presentation.
The legislators on both sides of the divide have come together in a
spirit of bipartisan concern for the welfare of children- a healthy national
conscience transcending political barriers.
Minister of Justice G.L. Peiris who piloted the Bill is of the view
that the Authority as an umbrella organisation, would effectively link
up various institutions to achieve its ambitious objectives.
Prof.Peiris admits that a horrendous mismatch exists between contemporary
problems and the regulatory structures. The new legislation is expected
to pragmatically address the present realities.
"This co-ordinating authority will also cover the aspects of law
reform, counselling and raising awareness. Mechanisms will be employed
to enable swift inquiry and investigation, prosecution, court and the rehabilitation
aspects together," said Prof. Peiris.
The legislation defines the word "child" as anyone under 18
years of age, a significant improvement, he says, in order to overcome
some of the deficiencies in the laws, especially due to the various interpretations
of the word in the plethora of Sri Lankan personal laws.
The thrust of the legislation at present is to formulate an effective
national policy for the prevention of child abuse, he asserts. The exercise
is not considered yet over and the government welcomes and intends facilitating
a host of amendments to strengthen it.
Dr. Jayalath Jayawardene who heads the Parliamentary Lobby on Child
Rights while welcoming the new legislation says that it is however far
from perfect.
As there is no national policy on child rights, he believes that Sri
Lanka being a signatory to the UN convention on the Rights of the Child
should use that as the principal document on which to base our legislation.
Dr. Jayawardene is critical that the Bill addresses only the issue of
child abuse and the aspect of victims of such abuse, while other problems
such as children in armed conflict, malnutrition, lack of health care,
compulsory education, street children, orphans, sale and trafficking of
children, use of children in drugs and dangerous weapon trafficking and
illegal adoptions do not receive attention at all.
All these would have an irreversible impact on any victim, and the legislation
in application must necessarily be broadened to accomodate all these areas.
Apart from the various amendments that the UNP would propose, Dr. Jayawardene
believes that stringent legal mechanisms are needed as a deterrent.
Secretary of the Parliamentary Lobby and Parliamentarian Dallas Alahapperuma
explaining that the government amendments were still being prepared, proposes
a programme to alleviate poverty as a deterrent to child abuse and stresses
that the right to education be given more prominence.
In addition, he opposes the restriction on the term of holding office
in the case of appointed members to the Authority. Here the Bill restricts
service to a a maximum of two terms, a term being for three years. An amendment
is proposed to have more elasticity thereby allowing eminent people to
continue serving for a longer period.
When the legislation was presented a fortnight ago, UNP's A.C.S. Hameed
proposed that the composition of the Authority be drastically amended by
bringing in MPs who are active in the Child Rights Lobby and providing
more civil representation to make it less bureaucratic.
The exclusion of two vibrant lobbies, the media and Non Governmental
Organisations as Resource Personnel has also been criticised.
Kabir Hashim, UNP Member of Parliament for Kegalle and a member of the
Child Rights Lobby is of the view that the Bill should go through a series
of amendments. He is however critical of the fact that a presidentially
appointed Task Force had drafted the Bill for over 18 months without inviting
public comment.
According to him, the Bill may be a violation of the 13th Amendment
as child care is classified under the Concurrent List as a devolved subject.
Hence, he proposes that the Authority should include a representative appointed
by the Chief Minister of each Province.It is also proposed that the Bill
distinguish between "child labour" when it is voluntary and "child
labour" when it is forced. The biggest drawback according to him is
that the Bill only addresses child abuse.
As the UN convention classifies rights of the child as survival, developmental,
protective and participatory rights, Mr. Hashim proposes that the Bill
be subsequently amended to include all these aspects instead of dealing
with a single issue.
Proposed amendments
*Section 3(a) 1(A)- To include the word psychologists soon after
the word senior psychiatrist
*Section 12- The Authority should not be brought under any Minister
as it already comes under the purview of the President, in order to maintain
its independence excluding possible political interference and preventing
a Minister to override the authority of the new Authority.
*Section 16- To give more civil society representation and to
bring in educationists, professionals from various fields,child care officers,
NGO members working or widely experienced in the relevant field of child
care.
*Section 23- The requirement for the declaration of secrecy is
misplaced in legislation of this nature which requires flexibility enabling
genuinely interested parties to have access to relevant information.
*Section 28-To amend the definition of "child abuse"
by deleting the word "means" with "includes" thereby
giving it a wider and more flexible meaning enhancing the ability to apply
the term with discretion.
*Also include a section distinguishing between "child work"
and "child labour" to suit the socio-economic realities of the
country.
Importance of being independent
By A.C. Alles
In a recent statement made by President Chandrika
Bandaranaike Kumaratunga, the public was assured that " the Government
will not influence the judiciary in any manner even if it is politically
disadvantageous to it" and that "the Government on its part,
believes deeply and sincerely that the judiciary will continue its independence
and impartiality which is an essential pre requisite to democracy."
These are noble ideals pronounced by the Head of State in keeping with
the spirit of democracy.
It is sad to reflect that in the early eighties, judges who boldly exercised
this independence were humiliated by goon squads attacking their homes,
being shut out from entering their chambers and even being sacked by the
Government. These are matters that have been widely publicized in the media.
It is a matter of considerable pride that the judiciary has not been overawed
by these attempts to whittle down their independence, and from the era
of the Bracegirdle affair up to the present day, judges have upheld the
sturdy independence of the judiciary, the final bastion that safeguards
the freedom of the people. It is a fact that independence does not cease
when a judge lays down the reins of office but continues during his entire
lifetime, even after retirement. The Constitution has recognized the independence
of the judiciary when it places restrictions on a superior judge even after
retirement and all judges are restricted in their activities after retirement
and must constantly maintain the dignity of the office that they held in
service. There is a marked difference between the service rendered by judges
to the country and the services rendered by public officers to the Government.
A judge's function is dependent on his ability, integrity and responsibility
to ensure justice according to the Rule of Law, and he is answerable only
to himself to perform his duty according to the dictates of his conscience.
If he errs in his findings, his decisions are reviewable by a higher tribunal.
It is only judgements of the Supreme Court that are final and conclusive.
In deciding an issue between the citizen and the state, a judge may be
compelled to deliver a decision which according to the President may be
"politically disadvantageous" to the Government, but if the wheels
of democracy have to function smoothly, it must be a decision that must
be accepted without rancour by friend and foe alike.
This is indeed a grave and onerous responsibility that rests on the
shoulders of a judicial officer. Public officers fall into different categories.
All of them, no doubt conscientious and dedicated public officers, have
a wide discretion with regard to the efficient functioning of departments
under them, but the cardinal fact must be borne in mind that however conscientious
they may be, their independence can be curbed, curtailed and even disregarded
in the greater interests of the State. There is another difference to be
noted between a retired judicial officer and a public officer who has retired
or resigned from office. As already noted, the activities of a retired
judicial officer are restricted by law, and even if he accepts a remunerative
assignment, it must be in keeping with the dignity of the office he held
prior to retirement. There are no such restrictions on the public officer
who is free to accept any assignment to which he can usefully devote his
skill and talents. Many retired public servants have entered the field
of politics and have made a name for themselves.
Some have entered the business world and amassed large fortunes while
others have distinguished themselves in foreign assignments. It is essential
therefore that the Government should not only recognize and preserve the
independence of the judiciary but that this independence should be safeguarded
during the lifetime of the judge by every way possible, including financial
independence.
Indian scene
After all, law is for the people
By Kishali Pinto Jayawardena
Approaching the sprawling red brick building housing
the High Court of Karnataka, my guide who is a native of the state and
a lawyer of some seven years standing, is quick to inform me that it is
one of the oldest buildings in Bangalore. Built in a style somewhat reminiscent
to the old court complex in Hulftsdorp, the Court is choc-a-bloc with lawyers
wearing the black gown and white collar, for long the traditional garb
of the Indian advocate. Refreshingly though, woman lawyers are in informal
wear with only an occasional saree wearer to be seen, most women advocates
preferring the more casual shalwar kameez. They are as energetic as their
male colleagues, though as I am informed, "few women advocates make
it to the top. Those who do though are very, very good"
The lift that operates in the court complex is alarmingly dilapidated,
perhaps the only sign of antiquity in a judicial system that has adapted
itself in an astoundingly brisk manner to the problems of its many million
people.
The High Court of Karnataka is symbolic of the manner in which the Indian
Courts throughout the length and breadth of the vast country have propelled
themselves into dispensing quick, economical and demystified justice. It
was as far back as 1992 that a cell was established in the High Court to
deal with the many letters sent to the Court on public interest issues.
On the day that I visited the Court for example, among such letters
sent was a scrap of paper from a prisoner alleging that he is being kept
for an unduly long period in remand without trial, another two letters
registered as habeas corpus petitions, one relating to dowry harassment
and a petition from an activist group drawing the attention of the Court
to a case of environmental pollution. In the High Court where the Chief
Justice was sitting, an afternoon session had just begun, a session that
might perhaps go on as late as the early evening. In India, the legal system
differs from Sri Lanka to the extent that their High Courts wield extensive
powers, including the power to look into fundamental rights violations.
The Chief Justices of the High Courts are therefore figures of considerable
authority within the province of their enormous states. Given the nature
of the role that they have fashioned for themselves, Indian judges both
in their states and in the Supreme Court in New Delhi, are vigorous players
in the shaping of socio political events in their country.
Which is not to say, of course, that things are all rosy in the judicial
arenas across the Palk Straits. Indeed, an ongoing case in the Supreme
Court in New Delhi has currently become the focus of involved debates on
the very nature of India's judiciary. Centering on the manner of judicial
appointments to the Supreme Court, a presidential reference has asked the
Court to look into whether the present appointment procedures are satisfactory
and as to how much weightage the opinion of the Chief Justice of India
would have in the process. Unlike in Sri Lanka where judges of the appellate
courts are appointed by the President "by warrant under his hand"
(even though recent judicial opinion in the form of the majority opinion
in the Shirani Bandaranayake case did stipulate that there must be "considerations
of comity" in this respect between the executive and the judiciary),
the Indian Constitution specifically provides that the Chief Justice ought
to be consulted in making such appointments. This had been interpreted
by the Indian Supreme Court in 1993 to mean that the opinion of the Chief
Justice of India should, in fact, prevail over the Government.
An obligation was however imposed on the head of the judiciary to consult
his judicial colleagues before making his recommendations. The questions
now being asked is whether it is strictly incumbent on the Chief Justice
to adhere to this practice of consulting his fellow judges, whether recommendations
that have not followed the prescribed procedure are binding on the Government
and whether the word "consultation" in the Constitution means
consultation with a plurality of judges or only the sole individual opinion
of the Chief Justice?
The ongoing hearings before a constitution bench of the Supreme Court,
according to one newspaper, are drawing "jam-packed courtrooms"
in New Delhi. Public opinion has been very vocal on the issues. A leading
columnist who is also an attorney at law writing for the Indian Express
has, in fact, called for a thorough look at streamlining the prevailing
procedures of judicial appointments, pointing out that " every sitting
Chief Justice seems to have followed……. (these guidelines) according to
his convenience in recommending transfers and making appointments. This
has created a bruised judiciary" What is therefore, most enthralling
is the manner in which the topic has been offered up for public debate,
with comment and criticism a plenty.
" Discussing these things in the open is, of course, nothing new"
remarks a former Solicitor General of India and Vice President of the Karnataka
State Commission of Jurists, A. N. Jayaram. " It is an ongoing matter
that is of crucial importance not only to members of the legal community
but to the ordinary public. It is only right that the people should be
aware of and examine the manner in which judges who hold office for their
benefit, are appointed." Jayaram belongs to the select group of top
Indian lawyers who can afford to base their practice in New Delhi while
commuting to the capital from their respective states. I meet him in his
extensive book bound office off one of Bangalore's plush shopping areas
and engage in an interesting conversation. He points out that the traditional
role of the judge as a neutral umpire who does not take sides in any dispute
brought before him is fine in a system where the other organs of government
are working with a social purpose as they are supposed to do.
But what if this is not the case? Then, he says, the traditional approach
may yet be worked but it could lead to an alienation of the people from
the legal system. He cites one case as an example.
An old man had appeared before Justice Kuldip Singh, an Indian Supreme
Court judge renowned for his humanity in a case where his son had been
killed in an accident by a state owned bus. His case had been dismissed
on two prior occasions because he had delayed too long in coming before
courts. The Court however focussed on what it saw as the two most important
points. One, there was no denying that the State was responsible. Two,
the old man had lost his son. Even if the case was admitted, the law required
that it had to be sent back for rehearing. The Court remarked that sending
it back in this manner would be pointless as the man was so old that the
chances of him dying before any relief was given was very high. Going on
this line of reasoning, the Supreme Court itself intervened to order that
the State pay him compensation immediately.
" These were not soft judges who acted in this manner. On the contrary,
they were extremely stern judges who could be very ruthless if they thought
that the law was being manipulated by anybody for their personal benefit.
They were however very fair and humane towards persons having real grievances"
Jayaram comments He concedes that there are some who feel that the Indian
judiciary has ventured too far beyond the boundaries of what is permissible,
in this quest for justice. More so, the flood of cases coming in, has created
an inevitable backlog of litigation in courts over the country. His argument
is that in this sort of a journey, it is inevitable that mistakes would
be made. The fact remains however that the overall effect of the change
is tremendously positive. The recent rejection by the public, of a proposal
by the Law Minister to stipulate that a deposit of money be made before
a public interest petition is filed, is cited by him as evidence that the
clock cannot ever now be turned back.
"It is up to the individual judge to throw out mischievous petitions.
The discretion rests with him. That is the best way in which this process
could be controlled" he says.
His arguments underscore evident truths. That the Indian legal landscape
has changed dramatically within the last two decades can hardly be discounted.
The vibrancy of the law in India has become a strong counter force to the
viciousness of the problems that confront its people.
Its effective use by persons with no formal legal training such as activists
and journalists together with legal academics, judges and lawyers continues
to be obvious. Significantly, there has been not only a demystifying of
the legal system but also a common awareness that the law could be positively
used to change harmful situations. From an outsider's perspective, this
coming together of forces remains the most secure life jacket that the
Indian legal system can shrug on to weather whatever the future may hold.
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