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Will the J.O.B. do the job?
By our Defence CorrespondentOur readers will have gathered by now that President Chandrika Kumaratunga, in her capacity as Minister of Defence, has created a new entity called the Joint Operations Bureau (JOB) to co-ordinate the war effort against the LTTE.
Former Commander of the Army, Lieutenant General Rohan Daluwatte, has been appointed to head the JOB.
Many readers may be scratching their heads, wondering why the JOB was created now, and also whether it isnât merely duplicating the work of other such departments which have been set up since the early eighties, to co-ordinate the war.
The creation of JOB, which looks remarkably similar to the Joint Operations Command which has functioned on and off over the last 14 years, is actually a clear indication that the President is highly dissatisfied with the way the war is being run, and wants drastic changes at the top.
It is also further evidence that the President has scrapped the grand plans of her Deputy Defence Minister, Anuruddha Ratwatte, to grab control of the road to Jaffna.
Simply put, the JOB has taken control of operations away from Ratwatte, and placed it back in the hands of a senior armed forces officer.
This comes on the heels of the President taking personal control over the war effort, following the disastrous Operation Jaya Sikuru, which formed Ratwatteâs main strategy to win the war.
The JOB is in fact, the same thing as the JOC, since it will be in charge of all operations, and it will be commanded by an officer senior to the three service chiefs.
In effect, control of operations and the direction of the three armed forces have been placed back in the hands of the services, under Daluwatte, who will report to Ratwatte and the President. Whether this will be a turning point in the war, and help to end it, or be merely a cosmetic change in the command structure, is yet to be seen.
The history of such combined command structures goes back to 1984, when President J.R. Jayewardene felt the need to co-ordinate the activities of the armed forces, and created the Joint Operations Command (JOC). This was located on Sir Ernest de Silva Mawatha (formerly Flower Road) in Colombo 7.
Its first commander was General Cyril Ranatunga, whose official title was ``General Officer Commanding the Joint Operations Command.ââ Ranatunga had just retired as Commander of the Army.
Before this, the practice had been for the heads of the three armed services and police to co-ordinate activities amongst themselves, loosely directed by the President.
A few years later, Ranatunga moved to another post and his place was given to Lt. Gen. Tissa (Bull) Weeratunga, who had also just retired as Commander of the Army.
However, in the late-eighties, President R. Premadasa disbanded the JOC, with control and command being given to his firebrand State Minister for Defence, Ranjan Wijeratne. President Premadasa himself had no experience in military matters, although the constitution required that he be the Minister of Defence.
Orders now went from Premadasa or Wijeratne to the service chiefs and IGP.
But in March 1991, Wijeratne was killed in a bomb blast on Havelock Road in Colombo.
At the same time, the then Army Commanderâs term was expiring, and a heated battle was raging for control of the army, between the commander, Lieutenant General Hamilton Wanasinghe, and the Chief of Staff, Major General Cecil Waidyaratne.
Wanasingheâs supporters were urging the President to extend his term, but that would have forced Waidyaratne to retire, since his three-year term as a Major General was ending. Waidyaratne needed to be promoted to stay on.
So Premadasa re-activated the JOC, promoting Wanasinghe to the rank of General and making him GOC of the JOC. Waidyaratne was made Commander of the Army, and with it he was promoted to Lieutenant General.
Ranatunga was by then Secretary to the Ministry of Defence.
At the time, the JOC was directly involved in planning and directing operations against the LTTE. So much so that at the height of the armyâs advance north of Vavuniya in 1991, the LTTE blasted the JOC headquarters with a lorry packed with explosives. The offensive sputtered and died, as its command was destroyed. The headquarters of the JOC was then moved to Army Headquarters at Galle Face.
This continued until Ranatunga was appointed Ambassador to Australia, at which time the Additional Secretary of Defence, former air force chief Air Marshall Walter Fernando, was briefly appointed Secretary.
But Fernando quit after a month, and Wanasinghe, the long running GOC of the JOC, was made Secretary of Defence.
With that, the JOC died a natural death, which passed virtually unnoticed, since all major operations against the LTTE had ceased by then and the war had turned into a stalemate.
When the ruling party changed in 1994, there were wholesale changes at the top. Wanasinghe resigned, Waidyaratne left at the end of his term as Army Commander. Both have been charged in court with corruption. Ranatunga was recalled from Australia as part of President Kumaratungaâs cleanup of political appointees >from the Foreign Service.
Direction of the war was placed in the hands of Anuruddha Ratwatte, who was a retired Colonel. As the President was already talking peace with the Tigers, there werenât any major operations going on, on the battlefield.
But shortly after the Tigers broke off peace talks and went back to war in 1995, the need was felt for greater co-ordination among the services, which were seeing a fair degree of conflict among themselves.
So the JOC was relaunched, this time named the Joint Operational Headquarters (JOH) of the Ministry of Defence. Later, the main headquarters was moved to Anuradhapura, to be closer to the action, and named the Forward HQ of the JOH. A smaller unit functioned in the Ministry in Colombo, called the Rear Headquarters, which had mainly the functions of keeping the President informed and disseminating propaganda. Its spokesman, then Colonel Sarath Munasinghe, became quite a well-known television personality.
But the JOH lacked the control of an officer who was senior to the commanders of the three armed forces, and was not taken as seriously as it should have been. This led to the creation of a post in the army, known as Overall Operations Commander (OOC) of the North and East. The post was given to a serving Major General, who had powers to direct any unit of all three armed forces in the northeast, while keeping the service chiefs informed. This officer could speak directly to Ratwatte.
However, with the government concentrating its war efforts in the north, the OOC post became too wide in its scope, and it was replaced by the new post of Security Forces Commander of the Wanni.
Interestingly, army officers have always occupied all these posts. This is quite understandable, since the bulk of the offensive operations are on land.
However, shortly before the creation of the JOB, the President considered the re-creation of the JOC, with the senior service chief at its head. It was then that rumors surfaced that the Navy Commander, Vice Admiral Cecil Tissera, would be given the job, since he is the most senior. To his credit, Tissera always denied the rumors, and was much embarrassed by people calling up to congratulate him, after erroneous newspaper reports.
Perspective
Booze, Dames, Parties, Sinhala Buddhism and Terrorism
by C. A. ChandrapremaI was distressed to learn that the National Movement Against Terrorism had taken my article about their small tamasha for journalists in the wrong spirit. I was told by a certain lady who happens to be a friend of my mother and also an ardent activist of the NMAT that there had been fireworks at the committee meeting of NMAT after my article was published. Many had construed it as an article AGAINST NMAT. They thought I had CRITICISED them for having served liquor to the journalists. Some had come up with the theory that "perhaps the journalists thought the NMAT had tried to buy them off with a few shots of arrack - that’s why they have written against us."
I was quite amazed when this lady made that revelation to me. And I was really distressed when she revealed that the committee of NMAT had decided that henceforth there would be no such tamasha’s and that anyway liquor would never be served at future gatherings. Lord almighty! What have I done? WHAT HAVE I DONE? The Sinhala Buddhist movement was at last trying to come out of their shell and through something that I had inadvertently written, they have crept back into the shell. Henceforth there will be no more liquor - only plain tea will be served and no young dames will be allowed at future gatherings - only old crones will be allowed in! OOOH I could slap myself! I have ruined everything.
At future meetings for journalists, they might even try to get us to recite ‘pansil’ before the meeting commences. Actually, I don't need to blame myself only, I think some of those NMAT committee members reading my article had misunderstood me completely.
In the first place, I never CRITICISED the serving of liquor. Who ever heard of having a meeting for journalists without liquor? Actually I was thrilled to bits that the NMAT had become practical enough to realise that. Maybe the reason why they thought I was against liquor was because I had declared myself to be a teetotaller and stated that I did not partake of any of the liquor available at that party. Normally, when a teetotaller speaks of other people drinking, it is always in a negative light. But I am not one of those ‘kaalakanniya’s’. Even though I don't drink I don't mind other people drinking. In fact I think a small shot is good for everybody and I regret not being able to enjoy a drink. One reason I don't drink is that alcohol does not agree with my system.
The other reason is that I have no time for these minor vices. I go in only for the MAJOR ones. Haw haw. I am the author ‘Kolapata Samajaya’ folks, remember? The Greeeeen Society! How can I of all people, be against someone having a few drinks? And anyway for my journalist friends, booze is their lifeblood. No booze, no creativity, no copy. And then about the nice dames,...I must say that the presence of a few good looking young dames did improve the whole atmosphere of that meeting,...
I was surprised to see any young people involved at all in the Sinhala Buddhist movement, and the presence of some chic young ladies surprised me even more. Which is why I went off at a tangent waxing eloquent on the booze and the young dames... Like Archimedes running naked through the streets I was for a moment overcome with joy at this change that had come about in the Sinhala Buddhist organisation.
So there I was shrieking for all the world to hear, THEY HAD BOOZE! THERE WERE YOUNG DAMES! THEY HAVE COME OUT OF THEIR SHELL! THE BLOODY SINHALA BUDDHIST MOVEMENT HAS COME OUT OF ITS SHELL! TRAAA LA LA and all that. Of course, for some who have been aware of this change, my article would have seemed like the height of condescension. No doubt my article was somewhat condescending. For me this change was a new thing and there is good reason for being condescending.
The Sinhala Buddhist movement was until recently completely dominated by a bunch of retired old ecccentrics who would go on mumbling interminably about what the ‘imperialists’ had done to Buddhism. Many of them had not moved beyond the Buddhist Commission of 1955. Their mumblings about ‘imperialism’ appeared quaint and out of date even to the majority of the Sinhala Buddhists themselves which is why even though the Sinhalese Buddhists are the majority community, nobody really took the Sinhala Buddhist movement seriously.
Their ideology was amusingly out of date, the way they presented themselves to the public was derisive. What was a Sinhala Buddhist meeting like in the recent past?
One would see one old eccentric after another getting up on the stage and shaking with senile rage, he would rail at the world, the imperialists, the sudda’s the Tamils, the Muslims the NGO’s the Bohra’s etc and still shaking, he would get down from the stage and walk across to the home for the aged.
The Sinhala Buddhist movement had no solution or the foggiest idea as to how the Sinhalese could be extricated from this rut. I saw in the Omega Inn party a major difference, Younger people predominated, the head table was occupied entirely by the younger crowd. And even among the older NMAT members present, there were no eccentrics. In fact I heard at least one of the elders present answering a question more rationally than the younger set at the head table.
When I first arrived at that meeting I was actually expecting to be harangued for hours by some old eccentric who would have a minute knowledge about what Governor North did or what Governor Torrington did... But mercifully, we were spared the agony. The Omega Inn party was a good beginning. The ATMOSPHERE was correct to make Sinhala Buddhism relevant again to normal Sinhalese. In fact I think they should have taken it further,.. much further, and made Sinhala Buddhism relevant even to the Colombo social elites by organising house parties (to which we journalists also should be invited) to make the Sinhala Buddhist resistance to terrorism a social event.
This society ultimately has to be led by the educational, technical, professional, and financial elite. Without organising them, there is no point in doing anything. The more involvement there is of the upper classes, the more relevant the movement will be. I believe that Omega Inn style gatherings should be increased a hundred fold. But today, I am a sad and broken man. The Sinhala Buddhist movement has once again been hijacked by the eccentrics and the ‘sil mathas’ and the bloody ‘amadyapa’ activists and all those miserable old fogy’s who have done more to weaken the Sinhalese than Prabhakaran.
Now they say, no more Omega Inn style parties, no more young dames, there’ll only be old ecccentrics, and old crone’s and demented diatribes. The Sinhala Buddhist movement is back to square one.
Judicial independence – some core issues
This is an edtited version of a paper delivered by Justice Dr. A. R. B. Amerasinghe at the AIJA Asia-Pacific Courts Conference, Sydney published in the LST Review
Interest in the related concepts of judicial independence and impartiality was a part of the response to the atrocities that became possible during the days of the Third Reich because there were no independence of judges. Consumerism added momentum. Judges were expected to deliver their services, based on independence and impartiality, in accordance with public expectations.
Attempts to define the judicial function in broader terms might place independence and impartiality in jeopardy. The strength of the judiciary is based on public confidence, which in turn is based on an unbiased, unprejudiced, neutral determination of disputes without pressure from the government, or any other source. The process of judicial appointment is important from the point of view of accountability and independence. The best persons must be selected and appointments should not be made as a reward for political fidelity.. The grounds and procedures for removal from office need to be carefully considered. Should incompetence be a ground? Adequate resources should be available but the judiciary cannot expect a blank cheque.. How much control over the penumbra of decision-making is essential ?
Introduction
Hitler gave himself room to carry out his atrocities by dismissing judges and public officers who were ‘politically unreliable." Those who remained on the Bench, although heirs to a proud tradition of independence, did nothing to displease the brutal tyrant.’ In 1948, a shocked international community responded by adopting the Universal Declaration of Human Rights. Article 10 recognised the right to a fair hearing by "an independent and impartial tribunal" in the determination of the rights of a person charged with a criminal offence. Two years later, the European Convention on Human Rights added civil rights as matters requiring a similar hearing.The second half of this century has also witnessed the growth of consumerism; users of goods and services demand value for their money. Naturally, the service provided by the judiciary also has come under public scrutiny. Since independence and impartiality are the foundations of the judicial function there has been, as Chief Justice Malcolm in his comprehensive and highly informative papers points out, an international effort to identify, recognise and declare certain basic core concepts. I am full of admiration for, and strongly support these laudable initiatives, for in a once far-flung world now reduced to a global village by astounding technological developments in transport and communications, judges and lawyers will increasingly become collaborators and colleagues in a manner, and to an extent, hitherto unknown and unexpected. We do already share a great deal in common, but we must frankly recognise differences in legal and administrative structures, traditions, expectations, attitudes and approaches. Indeed, even within the same country, opinions may diverge. For instance, take the case of Australia on the question whether judges jeopardise their independence and impartiality by serving on of inquiry.
Independence and impartiality
Independence and impartiality are sometimes seen as distinct values or requirements. Impartiality refers to ‘a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.’ Independence connotes "not merely a state of mind or attitude in the exercise of judicial functions, but a status or relationship to others, particularly to the Executive Branch of the government, that rests on objective conditions or guarantees. Although they are distinguishable, the concepts are related. There is "a very close blood-tie between them; for a judge who is truly impartial, deciding each case on its merits as they appear to him [or her], is of necessity independent." It has also been said that "a lack of independence could be considered a good indication of a lack of impartiality."There is no disagreement about the value and importance of the independence and impartiality of the judiciary. Opinions diverge when we begin unpacking the concepts and move from general principles to an examination of particular incidents of the judicial role.
The judicial function
There is, more or less, a distinction between the executive, legislative and judicial functions of government. The parameters of the judicial function should be identified and stated, but in so doing we ought to avoid being drawn into the territory that belongs to the other branches of government. If it is our function to "ensure that all persons are able to live securely under the Rule of Law," as stated in Article 10(a) of the Beijing Rules, I am afraid that we are letting ourselves in for a great deal of trouble. Must judges take responsibility for what the police might have failed to do?I am also troubled by Article 10(b): within "the proper limits of the judicial function, "we can ensure the observance of human rights, or for that matter any rights, only if, and to the extent that, they are recognised and declared by law, for we must decide "according to law. "7 Within the framework of the law, since these rights are declared in broad terms, there is a great deal that the judiciary has done and will do, to secure and advance human rights. However, what we have done and what we can legitimately do is in our role as adjudicators.
Although well-intentioned, we cannot get involved in off-the-bench activities that may be regarded as partisan, as the cases of Justice Thomas Berger of Canada (who resigned from office after the Judicial Council of Canada found that his comments were "indiscreet," Chief Justice Neville Samarakoon of Sri Lanka (who was censured by Parliament) and Dato Haji Mohd Salleh Abbas, Lord President of Malaysia (who was removed from office) show. If we do so, our impartiality would be jeopardised, for we might reasonably be suspected of being allied to one of the parties in a case.
We must not cross the limits of our function, because that will place our independence in peril: "politicians will fight back and attack judges who attack them on their turf." J T Waltman explains the matter thus:
The British judiciary prides itself on its independence... but this independence has been part of a tacit agreement between judges and politicians. Politicians normally do not meddle with the judiciary even when they could ... For their part - the judges restrict the scope of their authority ... avoiding the ‘political thicket.’ Most judges have seemed aware that treading too closely to questions of public policy could propel them into an unwinnable battle with the majority at Westminster. English judges traded range of authority for degree of authority in a narrow field, independence for a reduced role on the public stage.
Judges legitimately can and do quash the orders of Ministers and other executive and administrative authorities; they legitimately do hold that the fundamental rights of citizens have been violated by executive or administrative action; they legitimately do declare that proposed legislation is unconstitutional; but they do not, and in my view ought not, get involved in matters of policy. Paragraphs 3, 1(i) and (ii) of the Beijing Principles might require reconsideration, for they may have a tendency to lure judges into the political thicket and might propel them into unwinnable battles.
Public perceptions of impartiality
The powers of the judiciary may be conferred upon it by the Constitution or by the legislature or in terms of some other law - such as the Public Security Act of Sri Lanka - yet it is public confidence in the judiciary that is the source of its strength. In a speech delivered in 1954, Mr. Justice William O’Douglas’ said:The judiciary has no army or police force to execute its mandate to compel obedience to its decrees. It has no control over the purse of government. Those two historical sources of power rest in other hands. The strength of the judiciary is in the command it has over the hearts and minds of men. That respect and prestige are the product of innumerable judgments and decrees, a mosaic built up from a multitude of cases decided. Respect and prestige do not grow suddenly; they are the products of time and experience. But they flourish when judges are independent and courageous.
What is expected of us by the public, I think, is essentially this: that after a fair trial and/or hearing an impartial verdict or decision be delivered by a judge, after duly considering the material placed before that judge, in the light of the applicable law, for the reasons stated in the judgment and no other.
Judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.
In his address to the Annual Meeting of the Canadian Bar Association in 1994, Chief Justice Lamer said:
Judicial independence is, at its root, concerned with impartiality, in appearance and in fact. And these, of course, are elements essential to an effective judiciary. Independence is not a perk of judicial office. It is a guarantee of the institutional conditions of impartiality.
From the litigant’s point of view, a judge is expected to be independent in the sense that the judge is a neutral person who has no direct or indirect interest in the outcome of the litigation, and in that sense is free from bias. George Bernard Shaw pithily remarked: "Justice is impartiality. Only strangers are impartial.
The judge must also be independent in the sense that he or she is not prejudiced - the decision should not have been prejudged because of the judge’s private beliefs, opinions and inclinations. No judge’s mind is a tabula rasa.. Indeed it has been said that a blank mind is not a qualification, but a disqualification for appointment to the Bench. Nevertheless, it must be pointed out that the gauntlet has been thrown down to believers in the neutrality of the judiciary or its independence:
It has been alleged by certain persons that the backgrounds of judges play a significant part in the decision process. Bias and prejudice are two complex matters that cannot be dealt due to constraints of space, but they are very important considerations in understanding the implications of Article 3(a) of the Beijing Principles. And I do wish to emphasise that since "justice is impartiality," from the public’s point of view, "it...is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. " Independence also means freedom from interference by others in the making of a decision. Junius said: "A judge under the influence of government, may be honest enough in the decision of private causes, yet a traitor to the public.
Although Lamer CJC in Lippe limited the scope of the interference to state interference, including interference by any person or body which can exert pressure on the judiciary through authority under the state, the majority agreed with Gonthier J that interference was not restricted to government interference - and that it could come from any quarter or for any reason and that this could include private parties and corporate giants.
Lord Bingham stated:
I find it impossible to think of any way in which judges, in their decision making role, should not be independent of government. But they should also be independent of the legislature, save in its lawmaking capacity. Judges should not defer to expressions of parliamentary opinion, or decide cases with a view either to earning parliamentary approbation or avoiding parliamentary censure. They must also plainly ensure that their impartiality is not undermined by any other association, whether professional, commercial, personal or whatever.
Judicial appointments
I am in complete agreement with the principles set out in Articles 11 and 12 enormous difficulties.. Last year, the appointment of a Judge to the Bench of the Supreme Court of Sri Lanka raised a great deal of public discussion on the appropriate criteria and procedures. Similar problems have been encountered in India. "The question of the appointing process is an important one, for it "can be thought of as a front-end mechanism of accountability ... an appointment procedure that results in the selection of the best possible candidates for judgeships in the first place is therefore necessary to promote the optimum performance.While the best possible candidates must be considered, what are the criteria for identifying such candidates? The fact that a person has excelled as a lawyer is no guarantee that he or she will turn out to be a good judge. Lord Hailsham,, who was responsible for numerous appointments during his time as Lord Chancellor, observed: "It needs a good deal of experience to tell what’s going to happen to a good advocate when he gets on the Bench."
It seems, however, that weak appointments lower the status of the judiciary in the eyes of the public and create a climate for interference with the necessary independence of the judiciary. Similarly, political appointments that are seen by the public as not based on merit ... appointments that are a reward for political services ‘may precipitate the belief among both the public and the legal profession that ... judges, having attained their position as a result of the government’s favour, are therefore obligated to that government, in a manner which might undermine the independence of the judiciary.
The effect on public confidence the legal system could be corrosive.’ There is, of course, nothing improper in appointing a person who has been involved in politics ... The key question, however, is whether the appointee has the other skills and qualities needed in a judge.
A person who was involved in politics must become neutral. Lord Denning stated: "Every judge on his appointment discards all politics and prejudices. You need have no fear." Justice Michael Kirby said:
Politicians in our tradition hold fast to the power to choose Judges who they hope will generally reflect their attitudes as reformists or traditionalists. Of course, once the judge is appointed, he [or she] is legally immune from direct pressure from the Executive Government. Politicians can make terrible mistakes in their selections. President Eisenhower admitted to only two mistakes. ‘Both of them, ‘he declared, were ‘sitting on the Supreme Court. ‘ One of them was Chief Justice Warren.
The other was William J Brennan who after 33 years on the bench retired in 1990 at the age of 84 years and died on 24 July this year. According to Joan Biskupic,, Justice Brennan, whose nomination had come as a surprise, had said that no one in the Eisenhower administration asked him a single question about his politics or judicial philosophy.
Security of tenure
I fully endorse Articles 18 and 21 of the Beijing Principles. Yet, since the removal of a judge is an extremely serious matter not only for the judge concerned, but for the entire judiciary, fair, and clearly stated procedures must be in place. We need to seriously consider whether parliamentary procedures are necessarily sufficient, remembering that the vote may proceed on party political lines. With regard to the grounds of removal mentioned in Article 22, it is important to remember that we are far from having settled criteria to determine what is "conduct which makes the judge unfit to be a judge." Should a judge be removable for the commission of any crime, or only those of a serious kind? I am particularly troubled by the ground of "proved incapacity." Physical incapacity is one thing - and there, consensual arrangements should be pursued.The Justice Sub-Committee in the United Kingdom, while noting that an appointment sometimes "turns out to be a serious error, the more so because the judge concerned remains obstinately fit in mind and body and cannot be removed on the ground of incapacity, went on to add: "In our opinion, judges should not be removed from office for incompetence." A similar view was taken by the Tribunal in Re Sri Wan Sulaiman Bin Pawan and four other judges of the Supreme Court [of Malaysia].
Shimon Shetreet states that retaining the services of incompetent judges:
seems to be an inevitable price which society has to pay for maintaining the independence of judges. As it would be difficult to draw the line, if judges were to be removed for incompetence, this standard could be used as a pretext for removing from office, judges who were perfectly competent but for some reason or another do not enjoy the support of those who control the machinery of removal, whoever they may be.
The price for tolerating incompetent judges on the Bench, should be borne by society, in order to protect the competent judges against abuse of power. Just as society is prepared to let some guilty go free to protect the innocent, so is it necessary to let some incompetent judges stay on the Bench to protect the judges against abuse. The price paid is mitigated by the availability of appellate courts to correct injustices. It is still a great price, nevertheless, because appeals and reversals result in greater costs. But it is paid for a good cause.
In the case of judges of the minor judiciary, where a body of judges drawn from the apex court - as in the case of the Judicial Service Commission of Sri Lanka - monitors the work of the judges and has the power to take disciplinary action against them for incompetence, the question may be adequately addressed. But who is to assess the work of a judge of a superior court?
Resource allocation and the penumbra
Thomas Jefferson said:Judges ... should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men.
Financial independence is not possible, for judges must be adequately paid, court houses must be provided, maintained and equipped, and for these? among other things, judges must depend on the state, it has been said that: "Constitutional independence will not be achieved if the funding of the administration of justice remains subject to the influences of the political market place."There is a demand for the control of both the delivery of the final product, the judgment, and also the administrative infrastructure on which the delivery and enforcement of that product depends, and this necessarily involves funding. The allocation of scarce national resources between the competing claims of justice, health, defence, education and so on, is a matter for those who are politically accountable. At the 11th Commonwealth Law Conference held last year, Chief Justice Allan McEachern of British Columbia said:
I subscribe to the view that there are other constitutional principles, besides judicial independence, that must be recognised and respected. One principle, possibly equal in importance to judicial independence, is the right of the legislature to decide how public money is to be spent. Thus, I do not support the view that the judiciary should write its own cheque, and I have come to realise that it is, in fact, salutary that the judiciary should not have that power. If mistakes are to be made in budgeting or funding operations, it is better that they be made by someone other than the judiciary. These views were endorsed by Lord Bingham in his Judicial Studies Board Lecture.
In a lecture on 6 March 1991, the Lord Chancellor, Lord Mackey, referring to judges, said, "their function is to decide cases." Reflect for a moment on what I have said with regard to judicial functions. The Lord Chancellor then said that in deciding cases, judges:
must be given full independence of action from any influence. But, in order to preserve their independence, the judges must have some control or influence over the administrative penumbra immediately surrounding the judicial process. If judges were not, for example, in control of the listing of cases to be heard in the courts, it might be open to an unscrupulous executive to seek to influence the outcome of cases (including those to which public authorities were a party) by ensuring that they were listed before judges thought to be sympathetic to a point of view, or simply by delaying the hearing of the case if that seemed to the advantage of the public authority.
Obviously, listing must be for the judiciary. There is a range of opinion on other matters. They are excellently well-considered by Professor Martin L Friedland. The way to a solution seems to be greater consultation rather than complete financial autonomy.
‘Peacemaking’ in Bangladesh
By Jehan PereraWhen it is thought about from Sri Lanka’s distance, Bangladesh is usually an object of humanitarian concern. This densely populated country of 120 million is often projected as the basket case of South Asia and Mother Nature’s step-child, plagued with floods and cyclones.
But to at least some of the members of the Sri Lankan delegation who were in Bangladesh last week to study the peace process in the country, their visit may have evoked memories of Sri Lanka’s own economic boom years in the late 1970s when Colombo’s skyline changed with a startling rapidity.
Dhaka today may be polluted and chaotic, but there is a dynamism that Sri Lanka lost a decade a half ago, in its terrible ethnic war.If not for far sighted political leadership on both sides of the divide, Bangladesh too may have got bogged down endlessly in its own ethnic war. In 1976, even before the Sri Lankan conflict got under way, a guerilla movement calling itself the Shanti Bahini, and based in the Chittagong Hill Tracts in the eastern extremity of the country bordering India, took up arms against the state.
At their peak in the early 1990s, the rebel forces may have numbered as many as 5000 and tied down an estimated six to ten times that many troops of the Bangladesh security forces.But in December 1997, the government under Prime Minister Sheikh Hasina signed a peace accord wth the Parbatraya Chattagram Jana Sanghati Somity (PCJSS), the political wing of the Shanti Bahini.
This peace accord, if taken to its conclusion with resolute courage, may become a beacon of hope and inspiration to other ethnically divided societies facing conflict in South Asia and beyond.
In Bangladesh, the government has gone against the majoritarian sentiment of the 99 percent Bengali population to grant considerable autonomy to a non-Bengali ("tribal") population of less than 1 percent.The Bangladesh conflict is of particular interest to Sri Lankans because the Jumma (hill) people, as they prefer to be known, are largely Buddhist by religion living within the domains of an overwhelmingly Muslim-majority state.The hill people constitute various groups, of which the Chakmas are the largest.
Causes
The basic ingredient of conflict lies in the fact that although less than 1 percent of the population, the hill people lay claim to the Chittagong Hill Tracts as their traditional homelands which accounts for as much as 10 percent of the territory of Bangladesh.This is an even more extreme case than in Sri Lanka, where the Tamils who number around 12 percent of the population claim 31 percent of the territory as their traditional homelands.
On the other hand, much of the hill tracts are uncultivable forest land.But there are several other ingredients of conflict as well, some of which have direct parallels to Sri Lanka, while some do not.A brief excursion into history may be necessary at this time.During the partitioning of British India in 1947, the leaders among the hill people preferred to join India over Pakistan.After all, India was to remain an ethnically diverse and secular state, whereas Pakistan was created to be an explicitly Muslim nation.But for reasons of their own, the British decided to give the Chittagong Hill Tracts to Pakistan, to be a part of (then) East Pakistan, rather than to India.The hill leaders who protested fled to India.From then on India became the destination of hill refugees, including the leaders of the guerilla movement.
In turn, the Bengali majority began to see the hill people as being "pro-India" and "anti-national" in their sentiments.The second watershed arose during the liberation war of 1971 in which Bangladesh was formed.Important hill leaders decided to support Pakistan rather than the Bengali liberation movement.For the second time at a key juncture, the leadership of the hill people took a decision that went against the sentiments and interests of the Bengali people by whose side they lived.For their part, the new leaders of Bangladesh were not ready to recognise the distinct identity and autonomy of the hill people.
On the contrary, they soon began to send in a massive number of impoverished landless Bengali settlers, estimated to be more than 400,000, to colonise the Chittagong Hill Tracts.The demographic balance changed swiftly and to the detriment of the hill people.In the census of 1951, the Bengalis were only 9 percent of the population of the Chittagong Hill Tracts.By 1991, they had increased in numbers to 49 percent.Today, the big towns in the Chittagong Hill Tracts have the appearance of being predominantly Bengali, with the government administration and roadside busineses firmly in the hands of Bengali people.The denial of autonomy and the influx of Bengali settlers were the two main internal reasons for the arising of the guerilla struggle against the state.
It is likely that India provided some external support for the rebels, especially when relations with Bangladesh soured in the mid 1970s. While attempts to quell the insurgency by force of arms and by negotiations were made during the period of rule by army-led governments none proved to be effective in restoring peace. Sucessful talks
However, in 1992 a new spirit entered the peace process when the democratically elected government of Prime Minister Khaleda Zia formed a multi-party "National Committee for the Chittagong Hill Tracts" with members of all mainstream political parties in Parliament.This 7 member commmittee was headed by a Cabinet Minister and negotiated directly with the Shanti Bahini.
A ceasefire was declared.But though the two parties came close to a settlement, they could not clinch the deal.That task was left to the new government that came to power in the general elections of 1995 under Prime Minister Sheikh Hasina.The new government did not proceed to throw away what the old government had negotiated like successive Sri Lankan governments have done.Instead it built on what had already been negotiated.The new government also appointed a multi-party National Committee which negotiated with the Shanti Bahinin just as its predecessor had done.This time the negotiations were successfully completed and the two parties signed a peace accord on December 2, 1997.
Last week’s visit to Bangladesh by the 16 member Sri Lankan delegation composed of ruling and opposition party MPs, locally elected Pradeshiya Sabha members, Buddhist monks and peace workers was to gain an understanding of the dynamics of the peace process in the Chittagong Hill Tracts.During their week long stay in Bamgladesh, the delegation met with government and Shanti Bahini representatives as well as independent civil society analysts and activists, both in Dhaka and the Chittagong Hill Tracts.On the whole, the government representatives that the delegation met, such as the Chief Whip Abul Hasnat Abdullah who, in fact was the Convenor of the National Committee that negotiated with the Shanti Bahini, the Minister of Special Affairs (for the Chittagong Hill Tracts) Kalpar Ranjan Chakma and the Speaker Humayun Rashid Chowdhury appeared to be satisfied with the progress that had been made so far.
They referred to the large budgetary allocation that had been made to the Chittagong Hill Tracts.
They did not appear to be overly concerned by the opposition protests against the peace accord.For various other reasons, mainly political, the main opposition party, the BNP, refused to join the National Committee that negotiated the peace accord with the Shanti Bahini.Soon after the peace accord was signed, the BNP headed by former Prime Minister Khaleda Zia threatened mass protests on the streets.They predicted dire consequences that would result from the peace accord, including the need for passports to travel to the Chittagong Hill Tracts and massacres of Bengali settlers, none of which has happened. The present position of the opposition is that the new legislation violates the "unitary" nature of the Bangladesh constitution and, hence, is unconstitutional.
Dissatisfaction
On the other hand, the Shanti Bahini leadership that the delegation met, including its leader Santu Larma, also appeared to be dissatisfied with the present status of the peace accord, but from the opposite standpoint. One of their main demands was that the peace accord should be constitutionally entrenched.They are concerned that the laws implementing the peace accord, which have been passed only by a simple majority in Parliament, may one day be abrogated by another government.The Shanti Bahini leadership also complained that the laws that had been passed gave the hill people less power than what had been agreed to in the peace accord. They claimed that power had not been adequately transferred to the local councils.
As a result they have so far refused to take up office in an interim council fearing that they will become discredited if they take over structures they cannot really utilise or control. For their part the government representatives denied that any problem of bad faith existed on their part.They expressed the government’s willingness to amend the laws if they were not satisfactory to the hill people.
Indeed, from the government’s point of view, the Shanti Bahini may be perceived as expecting too much to happen in too short a time.After all, the peace accord was signed just over a year ago, and the enabling legislation was passed less than 11 months ago.
The government has many pressing issues to deal with, only one of which is the conflict in the Chittagong Hill Tracts.It is difficult to equate the problems facing a 1 percent minority with those of the rest of the country. But this is precisely why ethnic conflicts do occur in society after society.Sheer weight of numbers must not, and cannot, determine matters of equality and dignity.
There is a need to devise systems of governance in which even the smallest of communities within a country, who are bonded together by ties of ethnicity, can find their place of respect within the decisionmaking structures of the state.
Credit
Much to its credit, Bangladesh is ahead of many other countries in resolving its ethnic conflict.The leaders of Bangladesh could very well have decided to "contain" the problem within the confines of the Chittagong Hill Tracts.Despite its tenacious hold in the Chittagong Hill Tracts, the Shanti Bahini was unable to take the war outside of it, to Dhaka for instance, like the LTTE has in Sri Lanka.The different racial features of the hill people have made surreptitious movement on their part in areas outside the hill tracts virtually impossible. But despite being able to contain the problem in this manner, the leaders of Bangladesh, the former government included, were prepared to make compromises for peace and justice.
Although the BNP, now in opposition, opposes the peace accord, in reality they too contributed a great deal to it, and should be given its share of the credit and responsibility. Bitter party political rivalries are a general malaise of South Asia, including both Bangladesh and Sri Lanka, and somehow need to be overcome if the governing elites in those countries are to take their people to a better tomorrow.
However, there is no denying that the peace process in Bangladesh has still some distance to go before the peace accord is fully honoured in the laws governing the country.
Now that the Shanti Bahini has laid down its arms, the hill people have few means to motivate or prod the government on to implement the peace accord in a fair and generous manner.
They have to rely on the political process, but the fact is that they are an insignificant minority of less than 1 percent.
Informed and fair minded public opinion, both in Bangladesh and abroad, will need to weigh in to even the scales.
