30th November 1997

Bold spirits or timorous souls?

By Kishali Pinto Jayawardana

The South Asian region appears to be see ing a dramatic resurgence of tension between national governments and the judiciary in recent times. As Pakistan Premier Nawaz Sharif and the Chief Justice of Pakistan Ali Shah measure their strength against each other, debate is intense in the country as to the proper limits of judicial action.The questions are familiar, and predictably, there are no clear answers.

Should judges be, as has been famously said, "bold spirits or timorous souls? To what extent should they depart from their traditional role as umpires, and take on the cloak of reformers of unjust laws ? And if they opt for the latter course, would they be effectively setting themselves up as unelected lawmakers, in a manner that transcends their judicial role ?

The Pakistani conflict which simmered for over four months came to a head recently when the Supreme Court threw down the gauntlet before the Premier, and summoned Sharif before it to answer to charges of contempt of court. In dispute were certain remarks Sharif had made when the Court had reacted adversely to one of his laws that had the effect of banning MPs from crossing over from one political party to another. The Supreme Court suspended the law on the basis that it violated the right of parliamentarians to express their political views freely. After some initial obstinacy, Sharif has reportedly given way, and appeared before the Court. The matter is pending.

Pakistan is not alone in its self searching. In India, a former Prime Minster faces criminal trial for the first time in the country. Narasimha Rao faces charges that he and several of his political affiliates paid four MPs of the Jharkhand Mukthi Morcha ( JMM) to vote against a no confidence motion on the Rao led Congress (1) Ministry in July 1993.The votes of the JMM MPs along with seven rebel members of the Janata Dal (A) party ensured that the beleagured government survived. Allegations that the Rao government was involved in large scale corruption arose while Rao was still holding the reins of power, but investigation into the allegations were largely lackadaisical. Matters changed however following a public interest petition filed in the Indian Supreme Court in 1993 over the alleged reluctance of the Central Bureau of Investigations ( CBI ) to pursue its inquiries. Chief Justice of India, A.S.Verma summoned the head of the CBI to court, and made him personally accountable for the investigations. The CBI was ordered to regularly submit reports to court on the progress of the investigations and its officers were questioned by the Court in camera, whenever it felt necessary. This was in effect the start of the process that led to the ultimate overthrow of the Rao government.

The Jain hawala scandal was not the first time that the Indian Supreme Court posed a direct challenge to the government of the day. The genesis of the country's judicial strength could be traced to the seventies when a judge of the Allahabad High Court, Justice Sinha ruled that then Premier Indira Gandhi was guilty of corrupt election practices which disqualified her from holding public office for the next years. This decision led to a national uproar that culminated with the Indira Gandhi government declaring emergency and embarking on a champaign to stiffle the judiciary and the press. Though the times that followed saw some of the darkest scenes in Indian judicial history, political terror exercised by the executive ultimately served to strengthen the Supreme Court, leading it to set into motion a new and revolutionary trend of law making in the public interest.

This activism that some Indian legal analysts see as having peaked in the hawala case, has led to many positive developments where public interest litigation has made the Court, in truth, a forum to which the Indian people could come for relief. It has also led inevitably to the Court becoming a major player in the Indian political scene.In the backdrop of the most recent manifestation of this activism, the question is being asked as intensely as in Pakistan, what in effect, is the proper role of the judiciary ?

The Sri Lankan experience is considerably less exciting than any of our counterparts. Where in India, executive manipulation of the judiciary ultimately led to a backlash, similarly overt intimidation in our country that extended even to throwing stones at the houses of judges during the Jayawardene era resulted in the Court taking a subordinate role when the democratic process was being blatantly subverted.( the Referendum case and the Thirteenth Amendment case). Change was slow to come but the 1990s saw a gradual willingness on the part of the Court to come to decisions that would inevitably bring it into disfavour with the government( the Jeyaraj Fernandopulle case, the Provincial Councils Dissolution case, the Sirisena Cooray case). In the Shirani Bandaranayake case, even though the power of the executive to make appointments to the Supreme Court was upheld, the majority view was to the effect that the executive should cooperate with the judiciary in making those appointments. Meanwhile, fundamental rights jurisdiction also expanded to hold the executive accountable for abuse of power in a far wider manner than before, as was exhibited particularly in cases involving the right to free speech. Recent judgments have led to the President making some provocative statements against the judiciary, though open conflict is not yet apparent. While all this are, of course, not comparable with the sensational conflicts that have gripped Pakistan and India, questions that are being asked in those countries are just as relevant here, particularly in the context of suggested constitutional reform that would introduce public interest litigation to Sri Lanka.

This debate has to concede the basic admission that, heretical as it may sound, policy is of concern to the judge. Some element of lawmaking is undoubtedly present when legislation with all its flaws come before court, and the judge has to meet the needs of the present case. In the classic words of Lord Denning," he cannot simply fold his hands and blame the draftsman.....instead, he must supplement the written law so as to give force and life to it." Noted Indian jurist, Upendra Baxi put the matter succinctly when he remarked that "those who persist in denying the fact that judges make law are those who wish to preserve their jurisprudential pubescence."

This of course, cuts across the traditional belief that the legislature makes laws and the judiciary merely interprets them. But then, that assumption no longer stands valid in the modern context, where even the most conservative soul would rarely be so blinkered as to assert that the role of the judge in the modern context, is to administer the law as laid down in an act of Parliament, and act as a neutral passive umpire in the process.

The breakdown of the old order has also led to the judiciary coming under greater scrutiny, particularly in India where judgements are regularly subject to extensive review. This again involves doing away with some old fashioned notions that look upon judicial office as immune from public criticism. All this, of course, makes the holder of judicial office particularly vulnerable, as he loses his shield of legal mystery.

The question has therefore become a larger one.Should a judge openly acknowledge his lawmaking role? From the point of view of judges themselves, the answer would undoubtedly be in the negative for all the obvious reasons. Through the ages, judges have argued and talked about the law as if the law itself was above them and controlling their very decisions. Their willingness to bow to the most absurd technicalities, to acquit manifestly guilty people or convict innocents because of some technical legal rule stemmed from this justification. The fear was very real. In a heterogeneous society, no basic social decision could ever be met with unanimous approval. The loser is bound to feel that it is the judge, and not the law that has deprived him of justice. Surrounding himself with a protective barrier of formalism would prevent awkward questions being asked.

Thus, it has been said by judges uneasy with their unelected positions that it is safer for the public to believe that the law is a constant, safe in the hands of judges, rather than as a finely tuned instrument, responding to changing needs and values.This justification however does not work in the light of the obvious fact that public confidence in the law and in the judges is not improved when outdated or oldfashioned rules are invoked to justify decisions, even when accompanied by disclaimers by the judge.

In India, the gloves have been taken off a long time ago.True, as a result there is greater tension between the judiciary and the executive, but Indian judges of both the superior courts and the lower courts appear to have fashioned themselves in a spirit of public accountability that does not balk at making the judiciary as accountable as the executive. In this context, it ought also to be noted that the proposed Sri Lankan constitutional reforms make judicial action a ground on which a fundamental rights petition could be presented to the Supreme Court.

In the end, though the ground rules are no longer certain in this state of judicial flux, the only safeguard in not indulging in judicial adventurism is, as has been said, an alert recognition of the danger, and an instinctive as well as trained reluctance to do so. On the other hand, judicial conservatism is no longer viable in this day and age, where the judiciary has come to be acknowledged as "a co-ordinate source of governmental power."

What ought to be kept in mind that while it is clear that the court does not arrive at the right answers all the time, conversation between the judiciary, the people and other agencies of government is crucial in the modern context. All this is of course, possible in any realistic sense only in the context of a financial and structural independence that the judiciary still lack under the proposed reforms. In more ways than one, judicial reform in Sri Lanka is indeed tantalizingly slow.

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