| 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.
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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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