An Independent Judiciary a nation’s bulwark against Authoritarianism

The Fourteenth Dudley Senanayake Memorial Lecture was delivered by Barrister-at-Law, Advocate and Solicitor in Kuala Lumpur, Malaysia, Param Cumaraswamy, on “An Independent Judiciary: Beacon of Constitutionalism in a Democracy. The memorial lecture was organised by the Dudley Senanayake Foundation in cooperation with the Friedrich Naumann Stiftung, and held at the Bandaranaike Centre for International Studies (BCIS), Colombo on Friday. Following are excerpts from the lecture:
Thank you for inviting me to deliver this 14th Lecture in memory of one of Asia’s great Statesman, who passed away on that auspicious Hindu-Buddhist New Year of April 13, 1973.

(L-R) D.M. Swaminathan, Prime Minister D.M.Jayaratna, Param Cumaraswamy, Ms Sagarika Dhelgoda, Siegfried Herzog and Ruwan Wijeyawardene at the head table

Earlier this year, to mark his 100th birth anniversary, a biography of him was published by this Foundation. Reading the compilation of his speeches, particularly those in the Legislature, before and after the country’s independence, I was just amazed to learn of his very strong conviction and commitment to fundamentals of Constitutional government, from a very young age. As early as 1941, at the age of 30, soon after being elected to the State Council, in the same Council, he spoke on want of procedural fairness over the detention without trial of two members of the State Council. Though those two members were in the Opposition, yet he felt as a matter of principle, such draconian power then vested in the Governor, without judicial review or other independent oversight, violated the fundamentals of justice. In essence, he held the view, which today, we describe as any detention without trial, offends the first principle of the rule of law.

Later in 1972, during the debate on the draft of the 1972 Constitution, he did not mince his words in calling for greater participatory democracy. He lamented over the undue haste with which the then ruling Party was moving for adoption of the draft. He said:

“The people of this country should have the amplest opportunity to be involved in the process of Constitution making, that they should have the right to freely express their views at all stages of the process, that there should be the fullest consultation with all sectors of the people and that, every effort should be made to reach a consensus, prior to finalisation of the Constitution.”

Among the several flaws in the draft, he identified one which vested the judicial power of the people, subordinating the judiciary to the National State Assembly, to act in the “capacity of an agent ".
A staunch supporter of a free press, he fought against communalism, whether it emanated from the majority or minority community. To him, it was a curse that would destroy the nation.

Having led the Government and the Opposition in the Legislature, he had the distinct experience of being in both leaderships. Either Government or Opposition, his speeches stand testimony today of his sense of fairness and consistency of his belief that a Constitutional government is one which adheres to the essential liberal values of democracy, the rule of law, judicial independence, good governance and respect for human rights.

Being Cambridge educated and called to the English Bar, and commenced legal practice under the legal luminary H.V. Perera K.C., his biography does not give an account as to why he was disillusioned with the legal practice, and gave it up at such an early stage.

Before I proceed with the substance of the lecture, permit me to say a few words in memory of a dear friend of my wife and I, and a friend of this Foundation, Desmond Fernando. Desmond passed away in July 2010. I had known the late Desmond for more than 30 years. Throughout, I was impressed with his commitment to the cause of justice, human rights, the rule of law, judicial independence and democracy values which were central in Dudley Senanayake’s political life

The state of civilisation in a country is often measured by the extent and quality of freedoms afforded to its peoples and entrenched institutions to protect them. These freedoms today include not only civil and political rights, but also economic, social and cultural rights, together with the right to just development. Experiments in constitutional governments have shown that such freedoms are meaningless unless there is in place, an independent Judiciary vigilant to safeguard those freedoms, and an Executive respectful of its decisions.

Param Cumaraswamy delivering the lecture

Often, the courts are all that stand between authoritarianism and individual liberty. Authoritarianism may be deliberate or insidious. Today, when many legislations confer so much power on the Executive or administrative authorities, to make decisions affecting the rights of subjects, it is more insidious than direct. Sometimes, it is direct and deliberate, as when the government has an adequate majority in Parliament to arm itself with extensive powers. The enormity of that power becomes obvious when the government also legislates that its decisions are not justiciable. Its rule becomes Constitutional authoritarianism. It is possible that such measures may be taken for bona fide reasons, in that, the government holds the honest belief that it is in the best interest of the nation. As Justice William O. Douglas of the US Supreme Court said:

“History shows that the main architects of repressive laws were often men of good intentions. Their reasons, sometimes had the ring of patriotism to them; protection of the safety of State against subversive ideas.”

But he, nevertheless, decried such measures as abhorrent to the first principles of democracy.
The Judiciary plays a crucial role in times of crisis, as this is when the rule of law is most threatened. It is easier to have respect for the independence of the Judiciary, where there is not a perceived threat to the life of the nation. However, it is in crisis situations where the independence of the Judiciary is most important, in order to prevent oppression by the State.

But what if the written Constitution is altered beyond recognition? What if the need to enact harsh laws by the Executive is an honest but mistaken belief? What if the safeguards for temporariness of such laws are removed, so that, the laws continue indefinitely, although the extraordinary situation which brought the harsh laws has long disappeared? A good example is Malaysia, where the three states of emergency declared between 1969 and 1977 still remain, not revoked, and some emergency laws enacted then are still applied and enforced. In a challenge to one such legislation in 1977, the Privy Council, which was then Malaysia’s final Court of Appeal, advised that, in such circumstances, any citizen could apply for an order of mandamus against the Cabinet, calling it to advise the King to revoke the declaration of emergency 5. The government swiftly moved Parliament, where it commanded more than a two-thirds majority, and amended the Constitution to the effect that declarations of states of emergency are non-justiciable. The amendment was made retrospective. Only very recently, on October 3, 2011, the government moved a motion in Parliament to revoke these Declarations and repeal two draconian legislations.

Whilst on Constitutional amendments, in some countries, members of Parliament in the ruling party are often heard asserting that they are the will of the electorate, and therefore, they had the mandate to amend the Constitution anyway they liked. As regards Constitutional amendments, it must be emphasized that Parliament’s will is certainly not the will of the people. To equate Parliament with the people on this issue is a complete confusion of thought. In choosing their representatives for Parliament, the electorate takes a vast number of factors which have nothing to do with Constitutional amendments. This has been proven time and again in countries where the people’s will is ascertained on a referendum held upon Parliament’s proposal to alter the Constitution. Australia is a good example. There have been instances when the Australian Parliament having passed by impressive majority, proposals to amend the Constitution, were rejected by equally impressive majorities by the people in each of the Australian states.

It is well said that the three organs of State - the Legislature, Executive and Judiciary- should exist in harmony with one another, and not seen as one performing the function of the other. So it is acknowledged that ‘government by judges is usurpation’. It was such a perception of the Supreme Court led by Chief Justice Mohammed Iftikhar Chaudhry, which led President Musharraf to the remove the Chief Justice unceremoniously and rudely on March 9, 2007.

But it is manifestly and undoubtedly the function of the Judiciary to decide on what the law is -whether the Executive acted in accordance with the law, or whether Parliament had the competence to pass the legislation. Thus the Judiciary can set aside an Executive decision as being bad in law or declare a statute of Parliament as Constitutionally invalid. That should not be seen as an interference in the function of the other. That is the Judiciary playing its rightful role as the arbiter in disputes, not only between citizen and citizen, but also between citizens and the State or its agencies, including between states in a Federation. This is what distinguishes a parliamentary democracy from a totalitarian regime: That a citizen has recourse to an independent judiciary to redress wrong done to him, even if the complaint is against the government of the day.

Parliamentary democracy is meaningless without a sturdy independent judiciary. In his famous lecture, ‘The Just Judge’, Lord Denning set out independence from the government ‘as the first and most important principle’ for a judge. In his opinion, such independence will not be forthcoming unless Judges are selected for their impartiality and integrity, and well remunerated. There can be no impartiality if a judge is appointed or promoted because of his partiality with the ruling party or his known affiliations with its leading members. Such appointments will only erode public confidence in the entire justice system.

The role of lawyers and Bar Associations in the protection of judicial independence should not be underestimated. Often, the extent and quality of the independence of the judiciary is measured by the extent and quality of the independence of the Bar. It is a fearless Bar which gives strength and sustenance to the judiciary to remain independent. While the Bar can always speak up on any violations of human rights outside the four walls of the courtroom, the judiciary often has to restrain until the matter is formally brought before it for adjudication. It is the duty of the Bar to remain alert and rush to the defense of the Judiciary, whenever the latter’s independence is threatened. Only recently, in 2007, we saw the massive demonstrations by lawyers, and joined by the people on the streets of Islamabad and other cities of Pakistan, when Chief Justice Chaudhry was removed. Those events eventually led to the fall of the Musharaaf government and the restoration of the Chief Justice to his office. However, in the process, lawyers too are expected to conduct themselves within the framework of the rule of law. They should not be seen abusing the privilege conferred on them by virtue of their profession.
The UN Basic Principles on the Independence of the Judiciary 1985 spells out the minimum standards required to secure an independent judiciary in a democratic state. The core values of judicial independence are: Security of tenure, financial security and institutional security. In addition, there must be in place an independent mechanism for the selection of judges for appointments and promotions, and another independent mechanism to deal with judicial complaints. Added to these values is judicial integrity.

What should be an ideal mechanism for judicial appointments is a subject of some debate. Traditionally, Constitutions provide that such appointments are made by the head of state, upon the advice of the chief executive of the government, who in turn consults the Chief Justice. Many Commonwealth Constitutions provide for such a procedure. To provide for more transparency and accountability, modem Constitutions provide for an independent mechanism like a judicial appointments commission to advice the chief executive of the government.
Principle 10 of the Basic Principles provides, inter alia,

1) those selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law;

2) any method of judicial selection shall safeguard against judicial appointments for improper motives.”
In essence, what is expected is that appointments are based on merit and there should be no appointments, made for political or other improper considerations, which appointments could tarnish the integrity and independence of the system. Selection and appointments should not only be made independently, but must be seen to be so. Where the Executive has too much of power or influence in the appointments, the same appointments will not be seen to be independent.

In a case here in Sri Lanka, in 1997, over an appointment to the Supreme Court made by the Executive President, under article 107 of the Constitution, the Supreme Court held that the President had the sole discretion to appoint under that article. Nevertheless, the Court implied into that power, a need for co-operation between the President and the Chief Justice on grounds of comity between the Executive and the Judiciary over such appointments. However, as there was no prima facie evidence of want of cooperation, the Court did not go further to decide on how possible conflict in the process of cooperation should be resolved.

Since then, the 17th Amendment to the Constitution in 2001, provided for a Constitutional Council to make recommendations to the President for judicial appointments. However, the 18th Amendment passed in 2010, abolished the Constitutional Council and in place, provided for a Parliamentary Council of five members, for the President to seek “observations” on senior judicial appointments and key appointments to named institutions and key government posts. The Amendment does not define the “observation” process, save that, if the Council fails to communicate its “observations” within a specified time, the President shall proceed and make the appointments at his discretion. In such a framework, one concern will be that the process for judicial appointments, including the appointment of the Chief Justice, will be the same as for the appointments to other institutions and government posts. The Judiciary may not be seen independent of the Executive.

Considerable executive involvement in the appointment procedure has resulted in the judiciary not being independent or perceived as independent. Provisions for consultation or advice too has resulted in doubts and suspicions whether such consultations and advices are genuine or mere shams. Vesting this power in just one person like the Chief Justice too, is fraught with suspicions. However eminent he may be, there is always the likelihood of abuse. Hence, the trend now in modem Constitutions is to entrust the power of selection and recommendations for judicial appointments with an independent council or commission. Such council or commission is composed of representatives of institutions closely connected with the administration of justice. The council or commission then recommends suitable men or women for appointment by the government.

A Constitution is the Charter of the nation. It enshrines the basic fundamental liberties of the citizens, and sets out generally, the structures of various governmental institutions and their interactions with one another and the citizens, for good governance. Through creative judicial interpretations, it is nurtured and nourished to give it life, so that it remains a living instrument, instead of an instrument of
An independent judiciary and an independent Bar are twin pillars of the rule of law. When these two are denied their independence, the rule of law would remain threatened. The enemies of equality before the law will succeed and the administration of justice will be brought to disrepute. Where the rule of law is undermined, there will be no respect for human rights. When man is denied his human rights, he is denied his humanity. More than 2,500 years ago, Plato, in his book ‘Republic’, described the Athenian Democracy. Democracy has succeeded in one form or another since then. It is proving stronger than what the dictators imagined. With the advent of information technology and social media, people are more discerning today. The cry for freedom and democracy which swept across all over Eastern Europe in the eighties, is now seen across the Middle East, a phenomena coming at the wake of a new era, is clear evidence of the strength and dynamism of democracy. History has proven that many a democracy succeeded because of the determination of its judges and lawyers who, despite all odds, continued to uphold and pursue the democratic principles and values. Today, a multitude of like-minded civil society organisations are on the trail for the same cause.

The Constitutional position of an independent judiciary and the executive’s respect for the same, was admirably demonstrated by the former President of South Africa, Nelson Mandela. In November 1995, the Constitutional Court of South Africa, on an application for judicial review, struck down a proclamation of the President in an electoral boundary delineation matter, as being unconstitutional. Immediately, the same evening, President Nelson Mandela went on television and addressed the nation, to the effect that, he honestly thought that Parliament had given the power of proclamation to him. But, as the Constitutional Court found it otherwise, he respected the decision of the Court. He went on to say “This decision clearly demonstrates that, in the Republic of South Africa, even the President is subject to the law.”

Simple words, but they are words of conviction and commitment to the independence of the judiciary and the rule of law in a Constitutional government, by a great statesman of our time, which also demonstrates the role an independent judiciary to remain the beacon of Constitutionalism in a democracy.

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An Independent Judiciary a nation’s bulwark against Authoritarianism


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