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30th August 1998

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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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