Justice V.R. Krishna Iyer

[Ed. Note: Following is a paper presented at the Fourth Consultation on Due Process Issues in China which was held from 23 to 29 May 1999 in Bangkok, Thailand, organised by the Asian Legal Resource Centre. Justice Krishna V.R. Iyer, former supreme court judge, is a former member of the Kerala Cabinet as Minister of Law. He is a landmark personality in judicial activism and poverty jurisprudence, and author of around 30 books.)

According to modern jurists, there are three instrumentalities constituting the State and executing its functions. They are the executive, the legislature and the judiciary. The role of the judiciary is important because it prevents the excess of the executive and the legislature and protects the rights of citizens. The Chinese Constitution, in section 7, deals with the peoples’ court. The judicial organs of the State (article 123 of the Chinese Constitution) are important and so the judicial process requires more elaboration. Of course, the independence of the judiciary is provided for in article 126 but then we require deeper study of the procedural aspects of the judiciary. The human rights of the people depend largely on the judiciary and its powers. Democracy and social justice call for vigilant watch by the judiciary.

The United Nations has dealt with some of these aspects in the Basic Principles On The Independence of the Judiciary. The powers of the court must be independent and the appointment of judges and their tenure must also be independent. These are dealt with in many books one of them is the Nature of the Judicial Process by Benjamin N. Cardozo. Three other books, among many written by me, are (1) Law Versus Justice and (2) Indian Justice (Vedpal Law House) and (3) Justice at Crossroads (Deep & Deep Publications).

Certain fundamental principles governing the judicial process are the first lessons of the subject. Natural justice, i.e. hearing both sides before coming to a conclusion, is important. Similarly the judges should not have personal interest in the subject matter of the case. Thirdly, easy access to justice i.e., to the courts for the common people must be provided. I have dealt with it in two books, one Access to Justice (B.R. Publishing Corporation) and the other Justice and Beyond.

Public interest litigation is a new phenomenon of considerable importance in socialist democracy. NGOs must have the freedom to approach courts when public interest requires it. For instance, environmental pollution, mass injuries, factory pollution, drinking water scarcity and the right to food and other basic needs, preservation of forests, health of women and children, workers’ safety in factories, consumer justice etc. The expanding jurisprudence of the judiciary with science and technology affecting the life of the people calls for training of the lawyers and justices in these new vistas of development. Thus the judicial process today, in its vistaramic expansion, calls for training of judges and lawyers in international jurisprudence, particularly international instruments approved by the United Nations. The Rio-de-Janeiro Summit dealing with environment, the Beijing Conference and the platform of action and various other important conferences have contributed to jurisprudence, especially, the right to life and health. This means that the judicial process must be well informed and must have authority to prevent such wrongs and violations. There the court must be fearless in commanding even the State governments to correct mistakes or arrest injuries. In the field of criminal law, the judicial process has to be very sensitive. Life and liberty are great values and when violated by State officials or other political heavyweights the court must have the courage to intervene. So it is necessary the justices have guaranteed independence and security of tenure.

When judges misconduct themselves, their accountability is important. If they go wrong, they may have to be punished. This has to be done only in rare cases by the process of impeachment or other punitive processes without affecting the fearless performance of judicial functions. Contempt of court and deference of judicial orders should never be allowed.

The executive should not have the power to remove the judiciary. An independent machinery or council must be vested with the power to enquire into alleged misconduct of judges and lawyers.

On the whole, the Chinese system may require a second look and provide for judicial review of executive action, which is important like the rule of law. No party decisions but the rule of law must govern the State process.

Here the judges are the defenders of the rule of law. The rule of law must be dynamic, socialistic, democratic and informed of world jurisprudence articulated in UN instruments. It must be remembered that torture by the police is common and the court is the only protector of the people.

It may be useful to know that the United States and several other countries have not ratified UN instruments and their default in the matter of human rights is unfortunate. The superpower United States has not ratified many UN instruments and even violates the UN Charter. These sober thoughts are useful when we discuss the universal human rights and the New World Legal Order.

The court ordinarily administers laws made by the country’s Parliament but while interpreting such laws, the UN instruments on human rights and the rights of women and children and on the life and liberty of citizens should be used by the judges to produce a harmony in the world jurisprudence.

In a new report issued on 28 May, 1999 Human Rights Watch calls for the dismissal of outstanding criminal charges against two staff members of the Cambodian League for the Promotion and Defense of Human Rights (Licadho). The Cambodian government must decide within weeks whether to proceed with the trial of the two, who could face ten years in prison if convicted. Kim Sen and Meas Minear were arrested in December 1998 in connection with protests against the dumping of toxic waste in Sihanoukville, Cambodia. Detained for a month and then released, they were effectively accused of inciting the demonstrations, which turned violent. Human Rights Watch says the charges are groundless, and the two may have been targeted by a politicized court to pacify a powerful local politician whose house was vandalized by the protestors.

"Kim Sen and Meas Minear are the first Cambodian human rights defenders to face criminal charges since the creation of independent rights groups in 1992," said Sidney Jones, Asia director of Human Rights Watch. "Their arrest and detention were bad enough, but if their trial goes forward, it could have a chilling effect on freedom of expression and assembly throughout the country."

A subsidiary of the Formosa Plastics Group, Taiwan's largest private conglomerate, exported nearly 3,000 tons of mercury-contaminated industrial waste to Cambodia in late 1998. The shipment was dumped in an open field on the outskirts of Cambodia's southern port town of Sihanoukville, where poor local villagers scavenged the plastic coverings from the waste. Many villagers, as well as port workers who had unloaded the shipment, later complained of sickness; one port worker died but a lack of autopsy meant the cause of his death could not be established. Amid widespread public outrage at the waste dumping, some Sihanoukville residents sought to exercise their constitutional rights. In December 1998, they held two days of public demonstrations, blaming government corruption for the presence of the toxic material. However, the demonstrations were not lawfully approved by the authorities and involved violence by some protesters, including the ransacking of several buildings.A six-week Human Rights Watch investigation has found that Kim Sen and Meas Minear are being prosecuted for actions that were well within their human rights mandate: they gave advice on human rights and the law to disgruntled local citizens and actively observed the demonstrations in order to monitor any human rights violations that might occur.

As the late June 1999 deadline approaches for the Sihanoukville court to decide whether to proceed with a trial of Kim Sen and Meas Minear, Human Rights Watch urges the court to dismiss the charges for both lack of evidence and procedural violations of their rights. As for the toxic waste dumping which provoked the riots, Human Rights Watch notes that the two human rights workers were treated more harshly by the authorities than those government officials who have since been charged with committing crimes for their role in allowing the toxic waste to be imported.

Human Rights Watch also expressed concern that the court investigation into the waste importation may be too limited to provide complete accountability for how the waste was allowed into Cambodia in the first place. The real test, therefore, will be whether ongoing investigations by the environment and finance committees of the National Assembly will be thorough and fully transparent. They should at least examine the serious allegations that high-level corruption was involved in the dumping decision.