The Judiciary

The Judiciary

by Tommy Thomas

The Court’s first duty is to stand between citizen and State; a citizen aggrieved with any decision of the State should be able to turn to an independent judiciary for justice.  

“The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to annul any attempt to subvert any of the fundamental rights, whether by legislative or administrative action or otherwise”.

The  judiciary’s second duty is to act as the sentinel of the Constitution; that is, to protect, preserve and defend the Constitution from legislative or other attack. Its third duty is to interpret the Constitution. This explains the rationale of the celebrated remark of Chief Justice Charles Hughes of the United States Supreme Court:

“We are under a constitution, but the Constitution is what the judges say it is.”

The Indian Courts, ever vigilant in the protection of very similarly worded fundamental rights in their 1950 Constitution, had creatively pronounced the “basic structure” doctrine whereby Constitutional amendments by Parliament could not go so far as to have the effect of destroying the basic structure and features of the Constitution, which included prohibiting Parliament from abrogating human rights. The Federal Court rejected this doctrine and gave judicial imprimanteur to the right of Parliament, itself a creature of the Federal Constitution, to amend in whichever manner it so chose, its own creator, the Federal Constitution. The major casualty in this exercise of judicial abdication of its constitutional duty is human rights.

First, from India , the principle that in testing the validity of any state action (whether executive or legislative) which impacts upon any Part P fundamental liberty, the Court’s duty is to consider whether such state action “directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory”. Secondly, from the Privy Council, the principle that a constitution should not construed rigidly or with austerity; instead, it should be interpreted generously befitting its special status and character as a living constitution.

not only in the Indian Constitution, but also in the European Convention on Human Rights, the Canadian Charter of Rights and in the Human Rights legislation of England, New Zealand, Australia and South Africa. Thus, human rights jurisprudence from the very respectable judiciaries of these Commonwealth countries is most valuable and instructive. In the cases of India and Canada, they have the additional benefit of constitutional support. Yet, some judges do not seem to be interested in developments there. Thus, the practise of constitutional law is a lonely one which does not seem to attract the lively interest of either litigant or lawyer; itself, a poor commentary on the state of affairs of human rights.

Infringements of human rights by state agencies in these countries are very similar, the experiences are similar, and case law and their reasoning from their Courts should be followed by our Courts, as happens in other branches of law.

The “Justice in Jeopardy: Report was very critical of some of the controversial decisions; the report concluded with this hope:-

“The Judiciary also has an important role to play in softening the effect of the laws through interpretation and application of the principles of justice and equity. We urge the judges to have the courage to rise up to this challenge. Otherwise, judges will continue to be considered as a tool to quell political dissent and free expression.”

“All along people were confident that the last place they could get justice is in the courts but in the light of certain cases before the courts and certain goings on in some courts, they realized that the courts have let them down miserably. It used to be that the tinting of judges cars was for security but now I say it is to hide my embarrassment.”

History is replete with examples of creeping authoritarianism, it moves quietly, insidiously, step by step. Oppression seldom happens overnight. Loss of freedom is usually gradual. In the graphic words of Pastor Martin Niemoeller:-

“In Hitler’s Germany they came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.”

Who is responsible for the bleak of human rights in 21st century ? I would suggest that all of us are to blame. Even if primary responsibility rests on the State in denying space to its citizenry, what has the citizenry done about it. What have all of us done. I am sorry to say, nothing. I am as guilty as the next person. Ultimately, a society gets the human rights it deserves. As James Baldwin said:

“Freedom is not something that anybody can be given; freedom is something people take and people are as free as they want to be”.

Clarence Darrow’s comment is in the same vein.

“You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.”

Justice Learned Hand of the US Supreme Court offered this acute observation:

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”

I hope, and pray, that we have not reached the stage where liberty has died in the heart of the average citizen.

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