Guidelines and Independence for the Judiciary

There have been some rumblings recently about the conduct of the Supreme Court with regard to the judgment it delivered on the proposed Divineguma Bill. Fortunately I have heard little criticism of the substance of the judgment, and this is as it should be. While I believe that blatantly unjust decisions of the courts should be challenged, and in particular by academics, using reason (not by politicians resorting to prejudice), this does not seem to me to be such an instance. Where the courts are allowed discretion, that should be exercised independently and, provided good reasons are given for the judgment, the matter should be allowed to rest.

Of course there is a case for allowing appeals from the judgments of the courts, but these should be only to superior courts. Given too that even the Supreme Court could reach erroneous conclusions, more often ones that arise from carelessness, perhaps because lawyers failed to make relevant points, there should be provision for review by a larger Bench of the Supreme Court.

In the present instance criticism seems to be on a procedural issue. I am not sure that the issue seems to me particularly significant, but I am glad the question has been raised of how to ensure that the courts follow the procedures laid down by the legislature, even while ensuring that their independence of judgment is preserved. I have drawn attention to this previously, but of course no one takes such matters seriously until they are personally affected, and perhaps I too would not have thought of the distinction had I not been entrusted with convening the Task Force on expediting implementation of the Human Rights Action Plan.

Violations of Rights

I have therefore been forced, in looking at several instances of what seem to me to be totally unacceptable violations of Rights, to recognize that often these spring from the failure of the courts to follow procedures laid down by the law. The most obvious instance which I have drawn attention to is the failure to enforce the mandatory penalty for statutory rape.

I hasten to add that I appreciate the qualms of the magistrate as expressed on that occasion. But what he should have done was imposed a suspended sentence subject to review, and the Supreme Court should have produced guidelines as to when there should be exceptions and encouraged the Legislature to amend the original law accordingly. It could also, in the interests of justice, have enjoined review of cases in which the mandatory penalty had been imposed - since I believe there is at least one instance of a now happily married couple suffering because the husband received the mandatory sentence and is still serving it out.

Other instances of the courts not abiding by legal requirements abound. We have come across several instances of remanding without a date, so that people are incarcerated and forgotten. We have instances of what should be interim orders being in effect for ages, because the required investigations have not taken place. We have examples of the constitution being ignored, with lesser rules and regulations being given priority over what should be the supreme instrument of justice.

Judicial review of legislation

In recent meetings of the Task Force I have suggested to the Attorney General's Department that they look into this question, and devise mechanisms of ensuring that the intentions of the Legislature are followed when laws are interpreted. This should of course go hand in hand with two principles, which I hope the Judiciary will accept as a fair trade off for accepting their obligation not to ignore the laws and the procedures that the legislature enjoins.

The first is the sanctity of their independence of action. The second is provision for judicial review of legislation, to ensure that Parliament does not violate the constitution and in particular its Fundamental Rights provisions. A corollary of this is that past legislation should also be reviewed if necessary, with provision that changes will not be accompanied by review of cases decided in terms of laws that prevailed previously but now seem inappropriate.

With regard to their independence however the Judiciary should accept that they need not only to accept appeals from decisions at whatever level with an open mind, but that they should also lay down guidelines so that interpretations are both consistent and in accordance with natural justice and fair play.

In this context I am delighted to report that, after several letters suggesting this, and what I can only describe as polite snubs to the effect that this was not their business, we finally got a response from the Judicial Services Commission to the effect that guidelines were being issued for a particular area of concern. This was with regard to Methsevana, the House of Detention for Women, and it was also noted therein that other concerns we had expressed should be addressed by the Ministry of Social Services.

The letter I should note was characteristically brief, and certainly we do not need to be told what the guidelines are. But they should be made publicly available, so that all stakeholders can understand them, and the Police and lawyers can work in accordance with them. In addition, the JSC should put in place mechanisms to monitor whether magistrates follow the guidelines, and should develop training mechanisms to ensure understanding of the issues concerned and the responsibility of the Judiciary in this regard.

I hope too that guidelines are laid down for regular visits to places of detention as well as prisons, with provision for constant consultation with all those responsible to ensure that inmates are treated with dignity.