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TODAY’S TALK ON EDITORIALS CIVILS360

November 1, 2017

The Burundi way

  • Burundi’s decision to quit the International Criminal Court is likely to resonate in other African states whose leaders have long complained that they are targeted for investigation by the UN institution. But the obstacles faced by the court in The Hague to hold big global powers to account for human rights violations does not detract from the complicity of the region’s many dictators in subverting democratic institutions to keep their grip on power.
  • Burundi is the first member-country to leave the ICC. In September, a UN commission investigating violence for over two years under President Pierre Nkurunziza recommended a criminal investigation by the court. The panel corroborated the evidence collected by fact-finding missions, which have reported large-scale incidents of sexual abuse, torture, forced disappearances, and summary executions of over 500 people. The flight of refugees to neighbouring countries is said to have exceeded 400,000. All these atrocities were triggered by legitimate and often heroic protests in this small central African state against one man’s lust for power. Mr. Nkurunziza won a third term in 2015, in contravention of a provision in the 2003 peace agreement and despite an opposition boycott. He rejected the two-term limit in his renewal bid, contending that his first tenure should not be counted as he was elected by parliament rather than through a popular vote. His pursuit of power became all the more savage since an aborted coup prior to the elections, and the military and intelligence services seem to have rallied behind his authoritarian agenda.
  • Meanwhile, international pressure to bring the situation in Burundi under control has proved ineffective. The African Union (AU) abandoned plans last year to authorise a peacekeeping mission, despite the commitment codified in the bloc’s charter to intervene to prevent genocide. But that initial enthusiasm dissipated. Securing an extension of presidential terms is not unique to the Burundian leader. Burundi’s example may well be emulated by other countries.
  • Within weeks of a parliamentary vote last year to leave the ICC, South Africa announced its own decision, which has been deferred pending legislative approval. More worrying is the mood across the AU to defy the jurisdiction of the Rome Statute, the founding treaty of the ICC. The erroneous logic of the region’s leaders is that since most of the ICC investigations involve African governments, the institution is somehow biased against the continent. Such arguments are unlikely to appeal to their people. In any case, Mr. Nkurunziza’s regime may not be able to evade the international court; the UN Security Council is empowered, under the Rome Statute, to refer complaints against non-member nations. Having unanimously backed constructive engagement, the Council may exercise its authority if the situation remains dire.

Collegium and transparency

  • On October 3, the Supreme Court’s collegium published a resolution promising to hereafter make public, on the court’s website, its various decisions, including its verdicts on persons nominated for elevation as judges to the high courts, its choices of candidates for elevation to the Supreme Court, and its decisions on transfer of judges between different high courts. These results, the resolution added, will be accompanied by the reasons underpinning the collegium’s choices.
  • At first blush, the move strikes us as both necessary and important, as bringing transparency into a system that has been notorious for its opacity. But when probed deeper, on even a bare reading of the first set of publications released by the collegium, it becomes clear that the initiative adds, at best, a veneer of respectability to a mechanism that lacks any constitutional basis.
  • The collegium, ever since its inception, following the Supreme Court’s judgment in what is known as the Second Judges Case (1993) has been enveloped by a sense of the hugger-mugger. The present revelations, much opposed to their perceived objective, scarcely make the system more transparent.
  • These issues concerning the system employed to appoint judges to the Supreme Court and the high courts — even if they often involve matters of inscrutable procedure — are of particular salience. The judiciary, after all, was regarded by the Constitution’s framers as central to the social revolution that the document was meant to herald. Indeed, as the historian Granville Austin recounted in his book, The Indian Constitution: Cornerstone of a Nation , the Constituent Assembly brought “to the framing of the Judicial provisions of the Constitution an idealism equalled only by that shown towards Fundamental Rights.” It saw the judiciary as critical to “upholding the equality that Indians had longed for during colonial days, but had not gained”.
  • To this end, to ensure that judges would be insulated from political influence, the assembly agreed on a consultative process of appointing judges, a “middle course,” as B.R. Ambedkar described it. The Constitution avoided the cumbersome process of legislative interference and the undemocratic provision of a veto to the Chief Justice, and vested in the President the power to both make appointments and transfer judges between high courts. The President, who would act on the advice of the council of ministers, was, however, required to compulsorily consult certain authorities, including the Chief Justice of India (CJI), and, when making appointments to a high court, the chief justice of that court.
  • Originally, in 1977, in Sankalchand Sheth ’s case, when interpreting the word “consultation,” the Supreme Court ruled that the term can never mean “concurrence”. Hence, the CJI’s opinion, the court ruled, was not binding on the executive. But nonetheless the executive could depart from his opinion only in exceptional circumstances, and, in such cases, its decision could well be subject to the rigours of judicial review. This seemed like a perfectly sound balance.
  • And indeed, in 1981, in the First Judges Case , the court once again endorsed this interpretation, albeit partly. But twelve years later, in the Second Judges Case , the court overruled its earlier decisions. It now held that “consultation” really meant “concurrence”, and that the CJI’s view enjoys primacy, since he is “best equipped to know and assess the worth” of candidates. But, the CJI, in turn, was to formulate his opinion through a body of senior judges that the court described as the collegium.
  • In 1998, in the Third Judges Case , the court clarified its position further. The collegium, it said, will comprise, in the case of appointments to the Supreme Court, the CJI and his four senior-most colleagues — and, in the case of appointments to the high courts, the CJI and his two senior-most colleagues. Additionally, for appointments to the high courts, the collegium must consult such other senior judges serving in the Supreme Court who had previously served as judges of the high court concerned. (On whether these views of the consultee-judges are binding on the collegium or not, the judgments are silent.)
  • What’s clear, though, is that these dizzying requirements maintain no fidelity whatsoever to the Constitution’s text. Yet the court has been keen to hold on to this power. Indeed, when the Constitution was altered, through the 99th constitutional amendment, and when the collegium was sought to be replaced by the National Judicial Appointments Commission — a body comprising members of the judiciary, the executive and the general public — the court swiftly struck it down. It ruled, in what we might now call the Fourth Judges Case (2015), that the primacy of the collegium was a part of the Constitution’s basic structure, and this power could not, therefore, be removed even through a constitutional amendment.

Judicial safe zones

  • It has long been recognised that children testifying as witnesses find the courtroom experience intimidating. In many cases, they are victims themselves, and may be deterred from deposing fully and confidently in the formal atmosphere.
  • The Supreme Court’s direction that within three months there should be at least two special deposition centres under every high court’s jurisdiction is a positive step towards ensuring a conducive and protective atmosphere for vulnerable witnesses. This takes forward the principle already contained in laws relating to children.
  • For instance, the Protection of Children from Sexual Offences Act provides for child-friendly procedures during a trial. Under this law, the officer recording a child’s statement should not be in uniform; also, during court proceedings steps must be taken to ensure that the child is not exposed to the accused. The court is allowed to record a child’s statement through video conferencing, or using one-way mirrors or curtains.
  • At present, Delhi has four such deposition centres, backed by guidelines framed by the Delhi High Court. The amicus curiae in a criminal appeal before the Supreme Court had suggested that such special centres are needed in criminal cases that involve vulnerable witnesses. The Bench, setting aside a high court’s acquittal of a man accused of raping a hearing and speech impaired girl and restoring the trial court’s conviction, agreed such centres are needed with safeguards.
  • The Delhi High Court’s guidelines are inspired by the UN Model Law on Justice in Matters involving Child Victims and Witnesses of Crime. The main objectives include eliciting complete, accurate and reliable testimony from child witnesses, minimising harm, and preventing ‘secondary victimisation’. Secondary victimisation, or the harm that occurs not due to a criminal act but through the insensitive response of institutions, systems and individuals, is something that vulnerable witnesses often experience in cases of sexual violence.
  • The creation of special centres would have to imply much more than a safe space for recording the testimony of vulnerable witnesses. It should also mean that multiple depositions and hearings at which they have to be present are avoided. In particular, they should not have to needlessly wait for their turn or be subjected to procedural delays.
  • For now, the term ‘vulnerable witnesses’ is limited to children, but the principle may have to be expanded to include adults who may be equally vulnerable to threats and an atmosphere of fear and intimidation. Victims of sexual violence and whistle-blowers whose testimony against powerful adversaries may endanger their lives require a conducive atmosphere to depose. Ideally, every district in the country would need a special deposition centre. The infrastructural and financial burden may be huge, but the state will have to provide for it to abide by the overarching principle of protecting vulnerable witnesses.