Online edition of Sunday Observer - Features: "by Dr. K. V. S. K. Nathan
The credibility of two reports from the International Bar Association and the Sri Lankan Marga Institute are considered by the author, who comments on issues raised by them - such as violations of human rights, political leadership, constitutional and judicial reforms, and the performance of the legal profession - in the context of similar problems faced by the developed world.
Developing countries for the most part have benefitted from the legacy left behind by the colonial powers in many areas of economic and social activity. The legal and judicial systems the powers left behind have endured for many decades and the concept of the rule of law had been deeply impressed upon the intellectuals and elite, if not upon the entire body of politicians, bureaucrats and the police.
The people expect to be governed by the rule of law, but over the years, in most countries, those in power have uniformly ignored the absolute nature of the rule of law and, for one reason or another, considered themselves as the equivalent of law and ignored or changed the systems for the worse in the name of economic progress and civil stability.
The people were presumed not to know what was good for them. In a way, this is also a relict of the colonial past although the colonial rulers were careful to maintain a semblance of order and the rule of law by invoking their home country legislation or simply amending the law in a methodical way to protect their own interests and security.
The human and civil rights of the natives were often overridden by such legislative acts buttressed by neatly-worded decisions of appellate courts in their home countries. Some of those old laws, called "ordinances" by the English because they were not passed by a democratically elected Parliament, still remain on the statute books in some ex-colonies and are even invoked or copied from time to time to this day. The rule of law was one thing in the colonies and quite another in the home countries.
Recently, a friend of mine in Sri Lanka sent me two impressive sounding reports by the International Bar Association and the Sri Lankan Marga Institute published in 2002. The IBA report focuses almost exclusively on violations of civil and human rights by law enforcement agencies and political leadership in Sri Lanka and the case for constitutional and judicial reforms, and the Marga report details the results of a market research on the performance of the legal profession, the judiciary and the police.
It is particularly difficult for me to accept the credibility of the report by the IBA because much the same criticism it makes in its report can be made of some judges and the police in the UK, India and Malaysia from which the members of the mission have been drawn, and in the USA where I lived for nearly 20 years. There are many examples, in those countries of miscarriages of justice and the brutality of the police. As in Sri Lanka, almost all the examples are the outcome of the exercise of political power and or elements of conscious and unconscious racism and bigotry.
An example that comes to my mind is the imprisonment of IRA supporters in England for several years - I believe for nearly two decades - before they were released on grounds of police fabrication of evidence. Some months ago, a High Court judge was arrested for being drunk and disorderly. BBC TV has aired a programme documenting evidence of institutional racism among the police in England.
There are horror stories in the US of the unfortunate experiences of blacks at the hands of the police, and some judges and juries. In Malaysia, criticism was levied against Prime Minister Mahathir in the matter of the former finance minister who was in prison for criminal offenses.
It was alleged by UK and US commentators that he was prosecuted for his opposition to the decision by the prime minister to control foreign currency flows against the recommendations of the UK and US governments and the World Bank and IMF. India is lower in ranking than Sri Lanka in the least corrupt country league table published by Transparency International.
Commitment to the rule of law
But the reason civilian life in those countries is technically stable is not so much because the standards of justice and police conduct are exemplary in the absolute sence, but because of their strong or promising economies which no segment of the society wants to disrupt, and the commitment to the rule of law in the narrow sense.
By this I mean the acceptance by everyone, including the government, of judgements rendered in the courts-especially at the highest appellate court level-however unpleasant these judgements might seem to be to political and legal analysts and civil and human rights observers.
An extreme example is the US Supreme Court decision on the last US presidential elections, despite the fact that the voting practices in some Florida counties were discriminatory. A decision like that in Sri Lanka would have resulted in chaos and bloodshed.
That is not to say that the IBA report is not an honest and valid report and that I, in any way, wish to impugn the integrity of the three IBA mission members, but I believe doubt can be cast on the practical value and effectiveness of their sweeping proposals for constitutional judicial reforms.
I am reminded of the World Bank appraisal missions to developing countries where, at the end of a two weeks visit, the missions are expected by World Bank management to identify and recommend solutions to all sectoral problems in the country concerned based on a superficial understanding of the underlying causes. The World Bank staff have been doing that again and again in successive missions to the same country and themselves. I used reluctantly to lead many of those missions because I felt that World Bank loans and credits were primarily a vehicle to market goods and services from the developed countries.
The IBA fact-finding mission was in Sri Lanka for three days only (August 28-31). How did the mission members manage to conduct in-depth interviews of all those people they mention in the report to enable the mission to make such comprehensive proposals? Their uncontrolled statistics can be misleading and unfair to the Sri Lankan judiciary.
It is a testimony to the Sri Lankan government, even though the government was destructive in many ways during its tenure, that it allowed the IBA mission to freely carry out its mission and that the Chief Justice himself cooperated, albeit in a limited fashion. The Chief Justice has been subject to relentless criticism for his alleged on-court and out-of-court behaviour.
These allegations are not uncommon even in the developed countries - very recently, an English High Court judge was arrested for taking indecent pictures of children. The proper course of action if the allegations against the Chief Justice have substance, is a thorough inquiry followed by criminal prosecutions, civil and disciplinary actions as appropriate, and I understand from press reports that steps are being taken in that direction. My
severe criticism of the IBA mission is reserved for its text book approach to the subjects of independence of the judiciary and the rule of law in Sri Lanka. The mission could have benefitted from a comparison with the judiciary and law enforcement agencies of the developed countries and the countries from which they were drawn and from their own experiences. That would have introduced some practical value to their recommendations.
to be continued
(Courtesy: Amicus Curiae)"
The credibility of two reports from the International Bar Association and the Sri Lankan Marga Institute are considered by the author, who comments on issues raised by them - such as violations of human rights, political leadership, constitutional and judicial reforms, and the performance of the legal profession - in the context of similar problems faced by the developed world.
Developing countries for the most part have benefitted from the legacy left behind by the colonial powers in many areas of economic and social activity. The legal and judicial systems the powers left behind have endured for many decades and the concept of the rule of law had been deeply impressed upon the intellectuals and elite, if not upon the entire body of politicians, bureaucrats and the police.
The people expect to be governed by the rule of law, but over the years, in most countries, those in power have uniformly ignored the absolute nature of the rule of law and, for one reason or another, considered themselves as the equivalent of law and ignored or changed the systems for the worse in the name of economic progress and civil stability.
The people were presumed not to know what was good for them. In a way, this is also a relict of the colonial past although the colonial rulers were careful to maintain a semblance of order and the rule of law by invoking their home country legislation or simply amending the law in a methodical way to protect their own interests and security.
The human and civil rights of the natives were often overridden by such legislative acts buttressed by neatly-worded decisions of appellate courts in their home countries. Some of those old laws, called "ordinances" by the English because they were not passed by a democratically elected Parliament, still remain on the statute books in some ex-colonies and are even invoked or copied from time to time to this day. The rule of law was one thing in the colonies and quite another in the home countries.
Recently, a friend of mine in Sri Lanka sent me two impressive sounding reports by the International Bar Association and the Sri Lankan Marga Institute published in 2002. The IBA report focuses almost exclusively on violations of civil and human rights by law enforcement agencies and political leadership in Sri Lanka and the case for constitutional and judicial reforms, and the Marga report details the results of a market research on the performance of the legal profession, the judiciary and the police.
It is particularly difficult for me to accept the credibility of the report by the IBA because much the same criticism it makes in its report can be made of some judges and the police in the UK, India and Malaysia from which the members of the mission have been drawn, and in the USA where I lived for nearly 20 years. There are many examples, in those countries of miscarriages of justice and the brutality of the police. As in Sri Lanka, almost all the examples are the outcome of the exercise of political power and or elements of conscious and unconscious racism and bigotry.
An example that comes to my mind is the imprisonment of IRA supporters in England for several years - I believe for nearly two decades - before they were released on grounds of police fabrication of evidence. Some months ago, a High Court judge was arrested for being drunk and disorderly. BBC TV has aired a programme documenting evidence of institutional racism among the police in England.
There are horror stories in the US of the unfortunate experiences of blacks at the hands of the police, and some judges and juries. In Malaysia, criticism was levied against Prime Minister Mahathir in the matter of the former finance minister who was in prison for criminal offenses.
It was alleged by UK and US commentators that he was prosecuted for his opposition to the decision by the prime minister to control foreign currency flows against the recommendations of the UK and US governments and the World Bank and IMF. India is lower in ranking than Sri Lanka in the least corrupt country league table published by Transparency International.
Commitment to the rule of law
But the reason civilian life in those countries is technically stable is not so much because the standards of justice and police conduct are exemplary in the absolute sence, but because of their strong or promising economies which no segment of the society wants to disrupt, and the commitment to the rule of law in the narrow sense.
By this I mean the acceptance by everyone, including the government, of judgements rendered in the courts-especially at the highest appellate court level-however unpleasant these judgements might seem to be to political and legal analysts and civil and human rights observers.
An extreme example is the US Supreme Court decision on the last US presidential elections, despite the fact that the voting practices in some Florida counties were discriminatory. A decision like that in Sri Lanka would have resulted in chaos and bloodshed.
That is not to say that the IBA report is not an honest and valid report and that I, in any way, wish to impugn the integrity of the three IBA mission members, but I believe doubt can be cast on the practical value and effectiveness of their sweeping proposals for constitutional judicial reforms.
I am reminded of the World Bank appraisal missions to developing countries where, at the end of a two weeks visit, the missions are expected by World Bank management to identify and recommend solutions to all sectoral problems in the country concerned based on a superficial understanding of the underlying causes. The World Bank staff have been doing that again and again in successive missions to the same country and themselves. I used reluctantly to lead many of those missions because I felt that World Bank loans and credits were primarily a vehicle to market goods and services from the developed countries.
The IBA fact-finding mission was in Sri Lanka for three days only (August 28-31). How did the mission members manage to conduct in-depth interviews of all those people they mention in the report to enable the mission to make such comprehensive proposals? Their uncontrolled statistics can be misleading and unfair to the Sri Lankan judiciary.
It is a testimony to the Sri Lankan government, even though the government was destructive in many ways during its tenure, that it allowed the IBA mission to freely carry out its mission and that the Chief Justice himself cooperated, albeit in a limited fashion. The Chief Justice has been subject to relentless criticism for his alleged on-court and out-of-court behaviour.
These allegations are not uncommon even in the developed countries - very recently, an English High Court judge was arrested for taking indecent pictures of children. The proper course of action if the allegations against the Chief Justice have substance, is a thorough inquiry followed by criminal prosecutions, civil and disciplinary actions as appropriate, and I understand from press reports that steps are being taken in that direction. My
severe criticism of the IBA mission is reserved for its text book approach to the subjects of independence of the judiciary and the rule of law in Sri Lanka. The mission could have benefitted from a comparison with the judiciary and law enforcement agencies of the developed countries and the countries from which they were drawn and from their own experiences. That would have introduced some practical value to their recommendations.
to be continued
(Courtesy: Amicus Curiae)"
