Precedent conditions for judicial activism to be practised

By Kishali Pinto Jayawardena

Last week's column discussed the working of the judiciary and government, therein dismissing the old notion that judges should be confined to the strict letter of the law in trying to remedy injustice. This week's column carries this discussion still further by examining the preconditions on which the judiciary of any country could be considered by its citizens as being activist, and genuinely so in the public interest.

First and foremost, it is vital that such activism should not be motivated by personal bias or anger towards any person, as high or as low as that person may be situated on the social or political ladder. Secondly, as pointed out previously, judges should not consider themselves as infallible but indeed, as liable to error by virtue of the very fact of being human.

As former UN Special Rapporteur on the Independence of the Judiciary, Dato' Param Cumaraswamy the UN Special Rapporteur pointed out in a lecture on "Tensions between Judicial Independence and Judicial Accountability -An International Perspective" delivered some years back on invitation of the International Centre for Ethnic Studies (ICES, Colombo), "The worst form of injustice in any civilized society is injustice perpetrated through the judicial process. It became aggravated when the court is the highest in the land as there will be no further appeals and moreover it remains a dangerous precedent for lower courts."

Cumaraswamy's further warnings are also pertinent. Reflecting on the constitutional role of judges is to decide on disputes before them fairly and to deliver their judgments in accordance with the law and the evidence presented before them, he pointed out that it is not their role to make disparaging remarks about parties and witnesses appearing before them or to send signals to society at large in intimidating and threatening terms, thereby undermining other basic freedoms like freedom of expression.

Earning respect

His warning that when judges lose their judicial decorum, they also lose their insulation from public criticism, leading to loss of confidence in the system of justice in general, is pertinent. Thus, he remarked that, "Respect for the judiciary cannot be extracted by invoking coercive powers except in extreme cases. The judiciary must earn its respect by its own performance and conduct."

What is the result when politicians act unwisely and civil society acts politically? Out of these two phenomena, the more dangerous is the second. It is, after all a truism that politicians will always act unwisely. What we are left to mourn are the incalculable consequences of the utter disregard manifested for the state of the country's judiciary during the past several years, not only by legal practitioners but also academics, intellectuals and activists. In retrospect, history will also judge the Sri Lankan media and its singular lack of consistency in exposing particular happenings, which should have been the bounden duty of a responsible and fearless media to report on. That there were significant - and magnificent exceptions - to this rule of inaction from the outset itself, does not lessen the culpability that has to be visited on those of us who consistently remained silent. This was, after all, despite unprecedented warnings issued by international monitors during the past years.

These included repeated concerns by the UN Special Rapporteur on the Independence of the Judiciary, Dato' Param Cumaraswamy subsequent to 1999 and again, there was the 2001 report by a delegation of the International Bar Association titled, 'Sri Lanka - Failing to protect the Rule of Law and the Independence of the judiciary' which expressed serious misgivings about, among other issues, judicial administration and discipline of the minor judiciary.

Indian example

In Sri Lanka, like India, 'litigation in the interests of the public" is necessary, indeed imperative. The Indian courts have been the forum of fights against exploitation of remand prisoners, slum and pavement dwellors, bonded labourers, sex workers, women in protective custody and such other disadvantaged persons. Interest groups such as the consumer movement, the environmental movement, the women's movement and the human rights movement have used the court to put forward their own causes. Indeed, the flood of litigation has far exceeded the limits to which Sri Lankan fundamental rights law has presently been pushed and has not noticeably caused the country any harm. On the contrary, it has transformed Indian administrative and public policy. This transformation has, of course, had both its fervent admirers and obstinate critics, as discussed previously.

However, the response from the Indian Bar, activists and academics in regard t India's judiciary has been equally immediate and soul searching. In Sri Lanka however, safeguarding the notion of the independence of the judiciary has been considered to be rather a quaint notion; not a matter to be taken seriously as constituting the lifeblood of the protection of the rights of citizens. This attitude has been manifested by senior members of the Bar as well as by its juniors. In so far as the intellectual community was concerned, these were not the concerns that occupied minds obsessed rather with churning out the latest profundity in nicely published books on Sri Lanka's legal system or for that matter, organising the latest conference on some abstruse topic or another.

That such disregard should be manifested from a country like Sri Lanka which has had established traditions regarding the role of judges and the overriding importance of the Rule of Law is, indeed, a paradox that many in neighbouring jurisdictions such as India, Pakistan and Bangladesh are still grappling with. Ironically, those countries (which can lay claim only to far more unsettled practices of judicial accountability and independence), have been witnessing, in contrast, hugely vibrant responses to similar crises confronting their own legal systems. Pakistan is just one example.

History would judge whether these ostrich-like attitudes on the part of those in Sri Lanka who had a duty to speak out during the time when it might have actually made a difference, were due to political affiliations, self-interest of the most despicable kind or plain and simple apathy. It is time however that we take seriously into account, current debates regarding judicial accountability in functioning democracies around the world and the mechanisms whereby judicial accountability is imposed, apart from constitutional machinery for impeachment which is both cumbersome and politicised. This is necessary to provide a framework for ensuring, at least at some later point in time, that the calamities that we witnessed in the recent past, will not re-occur.