SOUTH ASIA JUDICIAL BAROMETER 1 The Law & Society Trust (LST) is a not-for- The Asian Forum for Human Rights and profit organisation engaged in human rights Development (FORUM-ASIA) works to documentation, legal research and advocacy promote and protect human rights, in Sri Lanka. Our aim is to use rights-based including the right to development, strategies in research, documentation and through collaboration and cooperation advocacy in order to promote and protect among human rights organisations and human rights, enhance public accountability defenders in Asia and beyond. and respect for the rule of law. Address : Address : 3, Kynsey Terrace, Colombo 8, S.P.D Building 3rd Floor, Sri Lanka 79/2 Krungthonburi Road, Tel : +94 11 2684845 Khlong Ton Sai, +94 11 2691228 Khlong San Bangkok, Fax : +94 11 2686843 10600 Thailand Web : lawandsocietytrust.org Tel : +66 (0)2 1082643-45 Email : [email protected] Fax : +66 (0)2 1082646 Facebook : www.fb.me/lstlanka Web : www.forum-asia.org Twitter : @lstlanka E-mail : [email protected] Any responses to this publication are welcome and may be communicated to either organisation via email or post. The opinions expressed in this publication are the authors’ own and do not necessarily reflect the views of the publishers. Acknowledgements: Law & Society Trust and FORUM-ASIA would like to thank Amila Jayamaha for editing the chapters, Smriti Daniel for proofreading the publication and Dilhara Pathirana for coordinating the editorial process. The cover was designed by Chanuka Wijayasinghe, who is a designer based in Colombo, Sri Lanka. DISCLAIMER: The contents of this publication are the sole responsibility of LST and FORUM-ASIA and can in no way be taken to reflect the views of the European Union. Published in November 2017 | ISBN: 978-955-1302-76-4 This work is licensed under a Creative Commons Attribution - Non Commercial - No Derivatives 4.0 International License. 2 Table of Contents Preface 5 - 6 John Samuel The South Asia Judicial Barometer: An Introduction 7 - 10 Dinushika Dissanayake 1. Independence of the Judiciary: Appointments of 11 - 43 Judges to the Supreme Court and High Courts of India Seema Misra 2. The Law and the Society at a Crossroads: 45 - 118 An Introduction to the Evolution of the Judiciary in Sri Lanka Law & Society Trust 3. The Judiciary in Bangladesh: A Bastion for Rights, 119 - 168 An Institution Facing Challenges Tanim Hussain Shawon KaziAtaul-Al Osman 4. Independence and Engagement of the Bhutanese 169 - 200 Judiciary in the Protection of Rights and Freedoms Lhindup Zangpo 5. Independence of the Judiciary in Nepal: Concept, 201 - 238 Context and Concerns Barun Ghimire Prabin Subedi Anurag Devkota 6. A Briefing Note on the Judiciary in Pakistan 239 - 259 Ali Murtaza Dr. Osama Siddique 3 4 Preface Access to justice and the functioning of an independent judiciary are two crucial factors in the protection and fulfilment of human rights. The normative framework of human rights is an important bridge that connects the ideas of democracy withthat of sustainable development. Within the overall framework of democratic governance and a human rights-based approach to governance and development, access to justice and an independent judiciary constitute what we may call substantive democracy i.e., ideally a system of governance that ensures human rights for all. There are a number of factors thatmake democracy and democratic governance ‘real’, namely the rule of law; the effective separation of powers between thelegislature, executive and judiciary; accountability and transparency of governance; the independence of the judiciary, and active National Human Rights Institutions. While these are indeed indispensable for an effective democracy, in reality, there is an increasing trend of subverting democracy, the elite capture of the state and undermining the institutions of democracy, including the judiciary. One of the key challenges to democracy in South Asia is that electoral democracy—as a system of government—is superimposed on an undemocratic society divided on the basis of caste, creed and entrenched patriarchy. The undemocratic and often semi-feudal character of society affects all institutions of governance and government in many ways. The judiciary too is not free from such biases. The second key challenge is the tendency to influence or subvert the independence of the judiciary by those in government—either in a direct or indirect manner. As this publication clearly indicates, there are a number ofchallenges tothe independence and autonomy of the judiciary in almost all countries of South Asia, though to different degrees. In most of the countries, ordinary people find it challenging to get access to justice. This is due to the fact that the judicial process is often prolonged and poor people simply would not be able to bear the cost of expensive lawyers. Though there is a system of legal aid for those who may not be able to afford expensive lawyers, the system is often defective or defunct where it exists. In addition, an important area ofconcern is the accountability of the judiciary itself. 5 A weak judiciary without adequate capability, autonomy and accountability will be detrimental to the rule of law, access to justice and the protection and fulfilment of human rights. Hence, one of the most important aspects of advocacy for human rights and democracy is the effort to strengthen an independent judiciary and guarantee access to justice forall. It is in this context that this publication—based on detailed analysis and study—becomes very important for human rights advocacy in South Asia and beyond. FORUM-ASIA is indeed happy to collaborate with the Law & Society Trust (LST) in Sri Lanka in this effort. We would like to express our deep appreciation and gratitude to all of our colleagues at the Law & Society Trust who worked hard to make this publication possible. We would also like to express our appreciation to all of the researchers who contributed the country studies tothis publication. LST is an active member of FORUM-ASIA and we are proud to work together to strengthen the advocacy effort for access to justice in all countries of the South Asia region. FORUM-ASIA isalready at the forefront of advocacy geared towardsstrengthening National Human Rights Institutions. With the publication of this important tome, we also commit ourselves to initiate advocacy for the strengthening of independent judiciaries, access to justice and accountable governance in order to ensure human rights for all. John Samuel Executive Director FORUM-ASIA (Asian Forum for Human Rights and Development) 6 The South Asia Judicial Barometer: An Introduction “My dear, here we must run as fast as we can, just to stay in place. And if you wish to go anywhere you must run twice as fast as that.” Lewis Carroll, Alice in Wonderland The court room is a place of great activity. In the entirety of the South Asia region, court rooms are replete with ceremonial trappings; judges in wigs and voluminous robes, lawyers in black and white, ostentatiously carrying piles of files and books, police and court criers, clerks and stenographers. In this melee of busy-ness, one often feels that just to keep up, the court must run at full speed—and yet the back log of cases and the laws delays are a continuing source of grievance to litigants. The open-mouthed wonder of Alice confronted with the juxtaposition that is Wonderland, thus provides a fitting and colourful description of the urgency and yet the lethargy that is the delivery of justice in South Asia. The South Asia Judicial Barometer was conceived of as a way to challenge the juxtaposition of justice and injustice in South Asia’s justice institutions. While other measures of rule of law do exist, a gap in the literature and in the advocacy around such literature, is that the thick, uneven layers of South Asia’s diversity is often lost in the ‘big picture’. For example, the World Rule of Law Index ranks Nepal as performing best in the South Asia region. Assessing 113 countries in the world on six indicators, the index ranks Nepal as the best performer in South Asia and 63 in the world. Other South Asian nations lag behind, with Afghanistan taking the lowest position. Maldives had not been surveyed in the index for 2016. Although the assessment provides an excellent point of comparison, the uneven delivery of ‘justice’ within the broad assessment, the unequal access to justice among those to whom equality is formally guaranteed, often evade capture. Thus, a dearth of information was apparent to those of us who are interested in South Asia’s individual narratives as a region, and the discursivities that are propagated therein. 7 In this context, a chance conversation, a shared coffee and finally, a shared partnership between the Law & Society Trust in Colombo and FORUM- ASIA in Geneva/Bangkok, led to the creation of a South Asia-wide qualitative assessment of the performance of the judiciary in six countries of South Asia. Designed as a bi-yearly assessment, this maiden issue covers the countries of India, Pakistan, Bangladesh, Nepal, Bhutan and Sri Lanka. The countries of Maldives and Afghanistan have not been included in this assessment. Each chapter attempts to draw a broad-brush picture of the judiciary in that jurisdiction. The formal arrangements of the courts are included in each chapter as a foundation for future writings around these formal arrangements. It also serves as a point of comparison across regions and for historical perspectives from the colonized to the non- colonized nations of South Asia. The permeating similarity in our justice systems is apparent from this comparison; the common laws’ reach is long and deep in South Asia. Each chapter also grapples with the social and economic issues that are particular to our countries.