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Published On:Sunday, December 30, 2012
Posted by Sri Lanka Guardian

Judiciary and the rest: Needed a South Asian model


| by N. Sathiya Moorthy



( December 30, 2012, Chennai, Sri Lanka Guardian) The Judiciary is considered the watch-dog of the people and for the people in a democracy. Yet, it is in the oldest of ‘modern democracies’ of Asia that you have the Judiciary entangled with the other two arms of the State, namely, the Executive and the Legislature – though, not necessarily in that order. Sri Lanka, where universal adult suffrage made its entry under the Donoughmore Constitution as early as 1931, long before the nation attained Independence, the Chief Justice is under trial by the Legislature with the verdict to be passed by the Executive President.


The Judges and jurists, legislators and lawmakers need not have to travel great lengths across the continents to understand democracy as they have been doing for long. They need not also have to cite western precedents in their courts......

Against this, it is in the only South Asian nation with long spells of military dictatorships in the past that the Judiciary is more vibrant than in other nations of the region. In Pakistan, the Judiciary paved the way for regime-change and systems-change some years back, and has since caused the resignation of one Prime Minister and elicited good behaviour from his successor. In doing so, the Supreme Court in the country, told President Asif Ali Zardari and Parliament, where to draw the line, whether in crossing swords with the Judiciary, or making assumptions for the people, or indulging the political higher-ups in corruption cases.

Between these two extremes lies the rest of South Asia, where Afghanistan is yet to define/re-define its geo-political identity despite being a member of the South Asian Association for Regional Cooperation (SAARC). One only hears the sounds of the gun more in Afghanistan compared to the gavel of the judges. It will take Afghanistan years, if not decades, to make the changeover. Every step in that direction will however involve issues that are to be addressed by or against the nation’s Judiciary.

The Himalayan Kingdom of Bhutan, so to say, ‘resisted’ democracy that was being volunteered by the monarchy. Here again, the changeover is hence slow, for want of options, alternatives, education and democratic enlightenment. Not that anyone should wish the problems and paralysis of the kind that other nations in the region now face, but these are inevitable consequences of the democratic discourse at different points in the greater attainment of national maturity and identity that cannot be avoided. They should not be pushed under the carpet, either, lest they should weaken the democratic cause.

‘Judicial Reforms vs. Judicial Empowerment’

Next only to Sri Lanka, it is in neighbouring Maldives that the question of ‘judicial reforms vs. judicial empowerment’ has surfaced with unfailing regularity in the three-plus years since the nation became a multi-party democracy. From both ends, the issues are political, and owes to a lop-sided understanding/interpretation of the existing scheme and system that needs to be improved. However, such improvement can be ensured only by working with and on the system, but not against the inherited system that was also insulated for centuries.

Between these two extremes, of the independence of the judiciary and interference with the judiciary, you have had nations like India, the world’s largest democracy and Bangladesh, which too had faced a limited period of military rule, but effortlessly became a vibrant democracy all over again, like fish took to water. So much so, the younger generation of Bangladeshis seldom remember the years under Gen. Ziaur Rahman or the early years of Gen. H. M. Ershad, before he too attired himself in democratic firmament, like his predecessor nearer home and the Generals in the parent State of Pakistan.

‘Committed Judiciary’ in India

Today, the Judiciary in India is being often accused of running down the Executive and the Legislature, and hijacking the authority and responsibilities of the two. Over a period, the higher judiciary in the country, with signals emanating from the Supreme Court of India, has issued and enforced writs on whatever has by then become ‘international best practices’, be it on the labour front, noise and vehicle pollution, the rights of women, children, prisoners and various other sections of the society. Today, the ‘Green Bench’ in the superior courts are seen as interfering with the nation’s fast-tracked development agenda, thus slowing down the much-needed power-generation, among other yardsticks of growth.

There is no denying that the courts in India have taken to directing the Central Bureau of Investigation (CBI), the nation’s very own FBI, in the conduct of not only high-level corruption cases but also ‘interferes’ with the investigations at various levels, giving directions on the missing-links and seeking periodic reports, which only a departmental superior/supervisor alone is otherwise entitled and empowered to do. Some years ago, the Indian Supreme Court had sentenced the incumbent Chief Secretary of the South Indian State of Karnataka to a period in prison for contempt of court. From Prime Minister Indira Gandhi (Rae Bareli election case) to Chief Ministers A. R. Antulay (Maharashtra), Jayalalithaa (Tamil Nadu) and many other Chief Ministers and Ministers, in the States and at the Centre, the courts have ordered their exit in the past.

Yet, there used to be a time when a Minister in the Government of India, an Ox-bridge educated barrister from the Inns of Court in the UK, the late Mohan Kumaramangalam, with his left-leaning familial political background, called for a ‘committed Judiciary’. The phrase became a part of the Emergency lore years later, and no politician or bureaucrat in the country has since ventured to violate the undrawn, hence unseen ‘Lakshman rekha’ that confers greater national responsibility and pride on independent institutions like the Judiciary and the Election Commission than on the Executive or the Judiciary.

Thus when the Supreme Court of India – either judicially or administratively – found fault with the conduct of some of the brother-Judges, the nation was aghast. Yet, the initiative for their impeachment rested with the judiciary, and none else. It is unlike in Sri Lanka, where the initiatives keep coming from the Executive, obviously acting through the Legislature, and has thus become questionable, time and again. It suits everyone not to address this process, afterward.

But then it was also in Sri Lanka that a Chief Justice would swear in a President for a second term under controversial circumstances, and would go on to strike down the more controversial claims to the extension of such presidency under even more controversial circumstances. Justice, as they say, should not only be done but should also be seen to have been done – and it is as a victim to those self-inflicted practices that Chief Justice Bandaranayake is now facing the music. Others before this one had endorsed Parliament extending its term without having to face the electorate for one more year, yet without much justification, real or imaginary.

Long in Making, Short in Execution

If ‘institutional reforms’ is what it is all about, there is confusion in the minds of Maldivians, where extreme positions are being argued out, with none looking at the middle-path, for the interim. Institutions and individuals manning those institutions cannot be wished away. If nothing else, unlike in totalitarian systems, to which Maldivians may have been used to over the previous centuries – benevolent as they may have been, at times – democracy is accustomed to processes and procedures that are long in the making and short on execution.

That at least has been the inherent South Asian experience, steeped in a collective culture and breached almost at will. There are spurts of pro-active flashes interspersed by months, years and decades of philosophical indifference bordering on negativism and consequent frustration, until another spurt, another hope appears on the distant horizon. Be it the pro-democracy protests in Maldives, or the Opposition rallies in Bangladesh and Sri Lanka, or the recent Delhi protests against rape, they are all periodic expressions of frustration and hope in contemporary societies.

In almost every nation in the region, it has happened to and with every generation over the past century and more. Yet, that is where you begin, not end.

For instance, Maldives, the latest South Asian convert to multi-party democracy adopted the distant US model of Executive Presidency without fully appreciating the intrinsic value of the checks-and-balances system inherent to the American scheme, based on a socio-political culture alien to the South Asian understanding. There may have been justifiable reasons when it happened with the Maldives, but, as it now turns out, they were not strong enough reasons to sustain the same after a point.

Sri Lanka, which had worked the ‘Westminster model’ in small doses over a relatively long period, overnight switched over to a hybrid government scheme that caught the fancy of a single leader. The nation has not stopped complaining, yet.

Maldives need not have re-invented the wheel, for instance. A closer study of the readily-available experiences of Sri Lanka and India, Pakistan and Bangladesh in the immediate South Asian neighbourhood would have contributed substantially to the Maldivian understanding of multi-party democracy, varied as they are still among the various political schemes that they adopted and their political cultures, too, bonding at heart yet non-binding at the head. It is time thus for the South Asian nations, through the SAARC mechanism or otherwise, to study their Governments and governance methods and mechanisms rather closely for them to adopt the precedents elsewhere within reason to suit their own immediate circumstances, societal priorities and political compulsions.

The Judges and jurists, legislators and lawmakers need not have to travel great lengths across the continents to understand democracy as they have been doing for long. They need not also have to cite western precedents in their courts. Instead, they could feel happier and more comfortable interpreting their own laws and customs in a collective South Asian idiom that they all can understand and can still contextualise to their own individual circumstances – yet, without having to borrow an idiom that they seldom understand in full, and their polity and populations appreciate even less.

(The writer is Director & Senior Fellow at the Chennai Chapter of Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@hotmail.com)


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