No free judiciary, no democracy
Sunday, 24 October 2010
Shamsher Chowdhury
OF all the cardinal institutions vital to democracy, the judiciary has a very crucial role to play. Of late, we come across news and views about the functioning of our judiciary which are not palatable. There are several factors responsible for this state of affairs, starting from the selection process of judges down to alleged interference of the Executive. For most people access to justice is unavailable. The common man is disenchanted with the judiciary and the process in which justice is dispensed with.
There is a public perception that justice has become selective. It has become nearly impossible -- more than ever before -- to distinguish between the roles played by the Executive and some of its functionaries like the ministry of home affairs, the police and the judiciary.
To describe the present state of the judiciary and justice, this writer is tempted to quote here what Will Durant writes in his book Pleasures of Philosophy: "…that 'might is right' and justice merely the interest of the stronger; the 'unjust' is lord over the truly simple and just, and the 'just' is always loser in comparison."
It is high time we had a formidable judicial ombudsman. The law of contempt is too brittle a wall to defend the justices against the performance audit done by the public. Justice, justices and dispensing justice are the three key elements of the judicial administration. For the justices to be functionally successful, all three of these must be carefully guarded and secured. If the judiciary is unable to function independently, honestly and boldly, the other functionaries of the government are bound to suffer and thereby the interests of the people.
To our mind one of the other inherent weaknesses of judicial systems and the judiciary is related to its accountability. Some jurists and influential politicians feel that it is unwise to let the truth be known about the functioning of the judiciary. In this regard one would do well to remember the words of that famous Barrister David Panick in his book Judges and company: "Some politicians and a few jurists urge that it is unwise or even dangerous to tell the truth about the judiciary. Judge Jerome Frank of the US Court of Appeals sensibly explained that he had 'little patience with or respect for that suggestion'. I am unable to conceive…. that, in a democracy, it can ever be unwise to acquaint public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of manmade institutions…"
In line with the foregoing, selection of judges must be screened and undertaken by the collective wisdom of a panel in order to avoid bad choices. Leaving the selection only in the hands of the chief justices or any other powerful elements of the state machinery is no guarantee against favouritism or political corruption.
If the judiciary is to be free and it has to perform effectively, judges who are to run the judiciary must be absolutely free from any shortcomings in their character, physical, moral or ethical. Winston Churchill decades ago told the British House of Commons that judges are required to conform to standards of "life and conduct far more severe and restricted than that of the ordinary people." It is also important that the judges are truly free from communalism, regionalism and religious bias of any kind.
There is no hiding of the fact that we have a long way to go in making our judiciary a truly free and independent one. Therefore even if we have achieved some progress in other areas like in the spheres of trade and the overall economy, without a free judiciary we will not be able to ensure a just and equitable benefit to the people at large, whereby the path of democracy is put to jeopardy. Furthermore, we must realize that judiciary occupies a unique position in the life of a nation. Its deliberations have the most far-reaching consequences compared to any other functionaries of the state. They spill over from generation to generation, decade to decade -- even millennium to millennium. We, therefore, must not indulge in the luxury of handling or treating judiciary in a casual way, make it victim of any form of adventurism or subject it to any form of mercenary action.
Judiciary is to a nation what a head is to human. If the judiciary is just and functions well, all other functionaries of the state are bound to perform well and responsibly. Let us, therefore, vow to make the judiciary just, powerful and fully independent so that democracy can flourish.
E-mail: chowdhury.shamsher@yahoo.com
OF all the cardinal institutions vital to democracy, the judiciary has a very crucial role to play. Of late, we come across news and views about the functioning of our judiciary which are not palatable. There are several factors responsible for this state of affairs, starting from the selection process of judges down to alleged interference of the Executive. For most people access to justice is unavailable. The common man is disenchanted with the judiciary and the process in which justice is dispensed with.
There is a public perception that justice has become selective. It has become nearly impossible -- more than ever before -- to distinguish between the roles played by the Executive and some of its functionaries like the ministry of home affairs, the police and the judiciary.
To describe the present state of the judiciary and justice, this writer is tempted to quote here what Will Durant writes in his book Pleasures of Philosophy: "…that 'might is right' and justice merely the interest of the stronger; the 'unjust' is lord over the truly simple and just, and the 'just' is always loser in comparison."
It is high time we had a formidable judicial ombudsman. The law of contempt is too brittle a wall to defend the justices against the performance audit done by the public. Justice, justices and dispensing justice are the three key elements of the judicial administration. For the justices to be functionally successful, all three of these must be carefully guarded and secured. If the judiciary is unable to function independently, honestly and boldly, the other functionaries of the government are bound to suffer and thereby the interests of the people.
To our mind one of the other inherent weaknesses of judicial systems and the judiciary is related to its accountability. Some jurists and influential politicians feel that it is unwise to let the truth be known about the functioning of the judiciary. In this regard one would do well to remember the words of that famous Barrister David Panick in his book Judges and company: "Some politicians and a few jurists urge that it is unwise or even dangerous to tell the truth about the judiciary. Judge Jerome Frank of the US Court of Appeals sensibly explained that he had 'little patience with or respect for that suggestion'. I am unable to conceive…. that, in a democracy, it can ever be unwise to acquaint public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of manmade institutions…"
In line with the foregoing, selection of judges must be screened and undertaken by the collective wisdom of a panel in order to avoid bad choices. Leaving the selection only in the hands of the chief justices or any other powerful elements of the state machinery is no guarantee against favouritism or political corruption.
If the judiciary is to be free and it has to perform effectively, judges who are to run the judiciary must be absolutely free from any shortcomings in their character, physical, moral or ethical. Winston Churchill decades ago told the British House of Commons that judges are required to conform to standards of "life and conduct far more severe and restricted than that of the ordinary people." It is also important that the judges are truly free from communalism, regionalism and religious bias of any kind.
There is no hiding of the fact that we have a long way to go in making our judiciary a truly free and independent one. Therefore even if we have achieved some progress in other areas like in the spheres of trade and the overall economy, without a free judiciary we will not be able to ensure a just and equitable benefit to the people at large, whereby the path of democracy is put to jeopardy. Furthermore, we must realize that judiciary occupies a unique position in the life of a nation. Its deliberations have the most far-reaching consequences compared to any other functionaries of the state. They spill over from generation to generation, decade to decade -- even millennium to millennium. We, therefore, must not indulge in the luxury of handling or treating judiciary in a casual way, make it victim of any form of adventurism or subject it to any form of mercenary action.
Judiciary is to a nation what a head is to human. If the judiciary is just and functions well, all other functionaries of the state are bound to perform well and responsibly. Let us, therefore, vow to make the judiciary just, powerful and fully independent so that democracy can flourish.
E-mail: chowdhury.shamsher@yahoo.com