Focus on Rights

Living in an age of paradox
Public accountability is a well-worked phrase. But to believe in the abiding truth that this phrase holds out, needs actual passion. When the basic norms of public accountability are violated, deep and profound anger should result for it is the system that is violated and not personal feelings between two or more individuals. Yet, for the cynically manipulative among us, the notion of public accountability means nothing more than a hoary cliche, good to impress the gullible but of no real worth or value.

Presently, we live in times of unsettling paradox, particularly in relation to the legal system. Daily, we see the speedy erosion of the rule of law process whether in relation to lay litigants who come before courts seeking redress, the reversing of the acts of subordinate judicial officers in a manner extraneous to the normal appellate procedures and other numerous acts of interference with the due process of law.

Such extraordinary happenings are, however, disregarded by the leadership of the Bar which is more pre-occupied in holding five star conferences on the theory of the law, the deliberations of which are however, not particularly distinguished for its intellectual quality nor indeed, more importantly, for its commitment to the practical protection of the rule of law. On the contrary, cynicism is paramount, supplemented as it is by either supreme self-interest or fawning cowardice on the part of those who should have the courage to stand out from the crowd, buttressed as they are by their seeming eminence.

However, there is a growing critique on the part of the younger members of the Bar both in reference to the actions of their 'eminent' seniors as well as the deterioration of the system itself. Perhaps these 'individuals of eminence" may still have something to learn thereby for the issues will not disappear notwithstanding their seeming blindness.

As warned this week by a retiring judge of Sri Lanka's Supreme Court noted for his independence and steadfast integrity during his years on the Bench, independence and freedom pose more problematic questions for judges now. The judicial processes appear to be governed rather, by 'subjective thinking, prejudices and preferences in decision making.' Justice C.V. Wigneswaran's caution has a distinct practical import. As he observed further; "If we do not mend our ways, the people may have to think of alternative processes to those of the hitherto much cherished judicial process."

The context in which he made these statements is pertinent, coming as it did following the delivering of a majority judgment which, in fact, upheld the norms of public accountability. The TNL judgement (M.N.D. Perera vs Balabatabendi and Others, SCM 19.10.2004) contemplated a situation that occurred in early December, 2001 when the news editor of one of the many television stations in Colombo and his crew were refused entry into the President's House in order to televise the swearing in of then Prime Minister Ranil Wickremesinghe.

The refusal was based admittedly on a direction by President Kumaranatunge that media personnel from TNL, the 'Ravaya' and the Sunday Leader should not be allowed into the President's House based on sheer personal if not presidential pique and prejudice. The majority view, (by Justice Wigneswaran with a concurring opinion by Justice Shiranee Tillekewardene), held that this refusal constituted "naked discrimination" for extraneous political or personal considerations, which cannot be condoned from persons "however highly placed. " Violation of the rights of the barred media personnel to equality before the law and freedom of speech and expression was manifest.

For the State, it was contended that unlike in the case of the President and the members of the higher judiciary who are constitutionally required to take or make oath/affirmation before a certain official, the Prime Minister is not under a similar constitutional duty. Accordingly, the occasion of his oath or affirmation does not become a public function and even if the public may have been allowed in, if such swearing in had taken place in a public place, in this instance, it had taken place in the President's House which was not a public place and to which the media had no right of entry. Members of the media were invited only as a courtesy and if exclusion took place, this did not confer a right on any media person to argue that his rights had been violated.

Unequivocally rejecting this argument, the majority judgement by Justice Wigneswaran pointed out that, the question as to whether this was a public function or not has to be ascertained from all the circumstances of the case rather than weighing it in a water tight compartment. In this instance, the President had decided to appoint the leader of a different political party who had received the majority of votes at the poll, as her Prime Minister. In terms of Article 33 of the Constitution, she was mandated constitutionally to make and execute under the Public Seal, the Act of Appointment of the Prime Minister, which she decided to do in the President's House.

Having decided that an official function is to take place in an official residence, was it available for the President to deny that the occasion was a public function and arbitrarily preclude some media persons from coverage? The position may have been different if the prohibition related equally to all the media and was for considerations of security, which again, would have been subject to judicial review. Here however, there was no such defence raised. On the contrary, the directive of the President, though based on no objective criteria, was put forward as the sole reason for the impugned action.

Concurring in this view, Justice Tillekewardene observed that personal preferences have to be subjugated in all public and official decision making. This must be so, indeed, not only of the substantive decision itself but also with regard to the entire process of decision making.

Justice Dissanayake, in his dissent, took the view that public property and public place cannot be equated to each other and that while all property owned by the state is public property, not all are public places. The official residence of the head of State is not a public place and therefore, there is no right of access.

Significantly, the majority view held that the mere directive of the President is not sufficient to justify unconstitutional action of minions. Following on previous case law, it was ruled that a Presidential directive cannot be a defence to subordinate action if it is manifestly and obviously illegal. Thus, " a leader of a sovereign country is not expected to be parochial nor vindictive nor spiteful whatever the provocations of his subjects may be, real or imaginary. Leaders are no doubt, human beings. But they are humans clothed with power and privileges granted by their compatriots out of their love and respect. This power is not to be used to harass such compatriots."

These views will no doubt come as manna from heaven to those who are becoming increasingly bewildered by the negation of strict standards of public accountability from which, indeed, judges themselves are not exempt.

In "Judging Judges" (Stolz, MacMillan Publishing Co. Inc. 1981), writing about the investigation of California's Chief Justice Rose Bird and her judicial colleagues, an outspoken American legal academic quoted Tocqueville nearly a century and a half ago to the effect that, despite the great and sometimes despotic power that judges wield in a modern democracy, in any prolonged conflict between judicial power and ethical rule, the latter will always prevail. This is an observation that is of some importance to this beleaguered nation right now.

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