ftrt5T£H. For the Rule of Law THE REVIEW

INTERNATIONAL COMMISSION OF JURISTS

EDITORIAL 1 fiUMAN RIGHTS IN THE WORLD Equatorial Guinea 3 Sri Lanka 11 Honduras 6 Zaire 15 Latin America 9

COMMENTARIES UN Sub-Commission 19 ILO Committee on Freedom of Association - Poland 25 The Korean Minority in Japan 28 Unesco Special Committee on Human Rights 35

ARTICLES Social Action Litigation in the Indian Supreme Court Dr. Upendra Baxi 37 Independence of Lawyers in Rumania Liviu Corvin 50 South Africa — The Veil of Secrecy Gilbert Marcus 56

JUDICIAL APPLICATION OF THE RULE OF LAW Indian Supreme Court — A Controversial Decision 6!

No. 29 December 1982 Editor: Niall MacDermot ASSOCIATES OF THE INTERNATIONAL COMMISSION OF JURISTS

The International Commission of Jurists is a non-governmental organisation devoted to promoting throughout the world the understanding and observance of the Rule of Law and the legal protection of human rights. Its headquarters is in Geneva, Switzerland. It has national sections and affiliated legal organisations in over 60 countries. It enjoys consultative status with the United Nations Economic and Social Council, UNESCO and the Council of Europe. Its activities include the publication of its Review; organising congresses, con­ ferences and seminars; conducting studies or inquiries into particular situations or subjects concerning the Rule of Law and publishing reports upon them; sending international observers to trials of major significance; intervening with governments or issuing press statements concerning violations of the Rule of Law; sponsoring proposals within the United Nations and other international organisations for improved procedures and conventions for the protection of human rights. If you are in sympathy with the objectives and work of the International Com­ mission of Jurists, you are invited to help their furtherance by becoming an Associate. Associates, who may be either individual or corporate persons, are of three categories: Patrons, contributing annually Swiss Fr. 1,000 Sponsors, contributing annually Swiss Fr. 500 Contributors, contributing annually Swiss Fr. 100 Associates will receive by airmail copies of all ICJ publications, including the Review, ICJ Newsletter, Bulletin of the Centre for the Independence of Judges and Lawyers and special reports and studies by the Secretariat. You are invited to write to the Secretary-General of the International Commis­ sion of Jurists, P.O. Box 120, CH-1224 Chene-Bougeries/Geneva, Switzerland.

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Writing in Bulletin No. 9 of the Centre for the Independence of Judges and Lawyers (April 1982), Mr. R. Hayfron-Benjamin, former Chief Justice of Botswana, urged that the judiciary in third world countries should not be too shackled by the traditions of the legal systems they have inherited from their former imperial or colonial masters. He urged that they should exercise their imagination to find ways of developing remedies to meet the problems of in­ justice in their countries. The Supreme Court of India has, in fact, been engaged in judicial activism of this kind in remarkable fashion in recent years. It has been the subject of some controversy in India, but relatively little is known about it elsewhere, except by specialists. In the hope of stimulating interest and perhaps emula­ tion in other countries, this issue contains a shortened version of an article on the subject written recently by one of India's leading academic lawyers, Dr. Upendra Baxi, Vice-Chancellor of the University of Gujarat. This article may be of particular interest to lawyers in other countries that have inherited the British common law system, but with the advantage of written constitutions, often containing important ‘guarantees' of basic i human rights. Properly used, these can provide the justice system with a fle­ xibility and scope for innovation which is lacking in Great Britain, due to its want of a written constitution and its consequently conservative approach to fashioning the law as an instrument of social reform. Also included in this issue is an article by Mr. Liviu Corvin, until recently j Vice-President of the Bar Association of Bucharest, explaining the organisa­ tion of the legal profession in Rumania and showing how it is gradually re­ covering some degree of independence. Mr. Corvin was one of the Group of Experts who prepared the Draft Principles on the Independence of the Legal ; Profession, published in ICJ Newsletter No. 13 (April—June, 1982). French Edition of the ICJ Review

The International Commission of Jurists is pleased to announce that it is resuming publication of its Review in french. A double number of the two issues for 1982, i.e. Review Nos 28 and 29, is being published shortly, and as from June 1983 the ‘Revue’ will appear semi-annually in June and December, side by side with the english and spanish editions. The International Commission of Jurists will be glad to send a com­ plementary copy of the double number to anyone who is, or who others consider may be, interested in becoming a subscriber (16 swiss francs per annum, surface mail, or 21 SFr. airmail).

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Equatorial Guinea

New Constitution in Equatorial Guinea

On August 15, 1982, almost three years the Constitution of 1973 was declared by after the coup d'etat which overthrew the Decree to be no longer of any effect, and dictatorship of Francisco Macias Nguema, a the country was governed without a Con­ new political Constitution known as the stitution by a Supreme Military Council, “Basic Law” was adopted by a popular re­ presided over by Colonel Obiang Nguema, ferendum. Equatorial Guinea received its until the current constitution was adopted first Constitution in 1968 when it gained in August 1982. independence, ending almost 500 years of Portuguese, then Spanish colonisation. This Constitution was short-lived as several of The Preparation of the its articles ceased to be applied as early as 1982 Constitution 1971 when they were illegally repealed by Macias Nguema, who had already establish­ At the outset, this Constitution suffers ed himself as an absolute dictator. Macias from a major defect in that its text was declared himself President-for-Life by de­ drafted solely by a 20-member Commission cree in 1972. This process was completed designated by the Supreme Military Coun­ in July 1973, when Macias had a new Cons­ cil. No representatives of the people or of titution adopted to replace that of 1968, political, trade union, social or community- seeking to give an appearance of constitu­ based organisations, participated in the pre­ tionality to his regime. As was pointed out parations or in discussions on the text. At in the ICJ report on “The Trial of Macias no time was the draft studied and discussed in Equatorial Guinea” (1979) there existed by persons other than those designated by an enormous legal vacuum after his over­ the government. Political parties were still throw as the regime had enacted hardly banned and many opposition leaders, un­ any legislation. The state was in practice certain about the new regime, had not re­ governed without law by a system of purely turned from the exile into which they were arbitrary rule. forced by the Macias regime. The coup of August 1979 was led by This method of formulating the Consti­ Lieutenant-Colonel Teodoro Obiang tution is all the more surprising having re­ Nguema, a nephew of the former President gard to the fact that the Special Rappor­ Macias, and at the time Vice-Minister of teur on Equatorial Guinea of the UN Com­ the Armed Forces. Soon after the coup, mission on Human Rights, Mr. Fernando Volio Jimenez, had insisted in his report Duties of Persons, 4s well as the legal reme­ and clearly recommended to the new gov­ dies and safeguards to ensure the applica­ ernment that, given its vital importance, tion of these provisions. This is a compre­ the text of the Constitution should be hensive and adequate enumeration, follow­ widely discussed throughout the country ing the lines of other instruments such as and that the various sectors of the society the International Covenant on Civil and should participate in this process. To this Political Rights. Its effectiveness, however, end, he had recommended the appoint­ in guaranteeing these rights is very doubt­ ment of a National Constituent Assembly, ful in view of the power of the President to responsible specifically for preparing the suspend Chapter III (see below). text. While the right to life and physical inte­ In consequence, and considering that grity is affirmed, and torture and inhuman there was no political campaign to explain treatment are explicitly prohibited, the to the electorate the implications of voting death penalty is maintained without limita­ for or against the new Constitution, it is tion. The cases in which it may be applied questionable whether the new text in any are to be determined by law. real sense reflects the will of the people of The articles referring to remedies and Equatorial Guinea. safeguards for the respect of rights are commendable. Thus, the remedy of habeas corpus is available (Art. 38) and extends Outline of the Constitution not only to unlawful imprisonment, but also to torture and ill-treatment. Provision The Constitution provides for a strong is made for recourse by way of amparo presidential system of government, with a (Art. 39) for judicial review of executive wide range of powers conferred on the decisions and acts, and the courts have Executive. There is to be a single chamber power to declare a law, decree or regula­ Parliament, called the House of Represen­ tion unconstitutional for reasons either of tatives of the People, with 45 to 60 depu­ form or substance (Art. 40). These provi­ ties elected for a five year period by “uni­ sions, however, can also be suspended by versal, direct and secret ballot” (Art. 116). the President under emergency powers. It is to meet twice a year for a maximum With respect to political rights (Art. 23 period of two months. It will have little et seq.) no reference is made to political power to exercise any control over the Ex­ parties. This is unfortunate, particularly as ecutive. Whereas the President may dissolve one of the main opposition movements, the Parliament (Art. 121) he is not ac­ the A.N.R.D. (National Alliance for the countable to it. Restoration of Democracy) has complained At the Head of the Judiciary is a Su­ that it had not been allowed to participate preme Court whose members are to be ap­ in drafting the Constitution, nor in general pointed and dismissed by the President political activity, and has insisted on its (Art. 147). This gravely affects the inde­ right to a role in the reconstruction of the pendence of the judiciary, as appointment country and the establishment of a true to and continued tenure of office in the democracy. Supreme Court will be dependent solely The right to strike is denied not only to upon the will of the President. all civil servants but also to all workers en­ The Constitution contains in Chapter III gaged in providing public utility services or 22 articles which declare the Rights and services which, if paralysed, may harm the economy or national security (Art. 58). tional circumstances or in urgent cases of This article curtails the trade union rights emergency, be authorised by the House of of a very large number of people and runs Representatives to legislate by decree on counter to the term and spirit of the rele­ matters which normally require acts of par­ vant ILO Conventions. liament (Arts. 119 and 134). Provision is made for a Council of State, Under Article 90, for a person to be ten of whose eleven members are appoint­ eligible to become President he must, inter ed by the President (Art. 101). This body alia, “have been resident in the country for is responsible inter alia for ten years”. This provision is seen by the opposition as one aimed at preventing its — supervising “the democratic develop­ leaders from standing in future elections. It ment of the political and social life” of may be recalled that from 1970 onwards the country; the Macias dictatorship drove out almost a — guaranteeing national sovereignty, terri­ quarter of the population, who became po­ torial integrity, national unity, peace litical exiles or economic migrants. Many and justice; of the potential leaders of the country, in­ — approving the candidates for election to cluding those who resisted the dictatorship the Presidency; of Macias, have therefore not been resident — hearing and deciding disputes concern­ in the country over the past ten years. ing election; and Under the terms of Article 89, the Presi­ — pronouncing upon the constitutionality dent of the Republic should be elected by of ‘institutional’ laws, before they enter “universal, direct and secret ballot” for a into force. seven-year period. Article 91 adds that he may be re-elected. This raises perhaps the The President also appoints the thirty most serious aspect of this Constitution - members of the National Economic and its three Transitional Provisions and an Social Development Council (Art. 150), a “Additional Provision”. The latter su­ consultative organ in economic, social, fis­ spends the application of Article 89, and cal and development matters. the Constitution itself designates Col. The President is given broad powers “in Obiang Nguema as President of the Repub­ case of imminent danger” to suspend the lic for the first seven years. rights and safeguards in Chapter III, includ­ This provision calls to mind the case of ing habeas corpus and amparo, and to Chile where, in 1980, the military regime adopt “exceptional measures”, which are obtained approval of a Constitution which not defined (Art. 93). The President may included a number of transitional provi­ declare a state of siege, alert or emergency, sions under which the Constitution would without needing to consult Parliament, still become fully applicable only in 1997 and less to submit the measure to it for appro­ which provided that General Augusto Pino­ val (Art. 94). The Parliament is not em­ chet is to remain in power until 1989. Sim­ powered to annul such a measure. Emer­ ilarly, in November 1982, in Turkey, Gen­ gency powers framed in such wide terms eral Evren obtained approval in a referen­ make the continuation of such elements of dum for a draft Constitution which names democracy as the constitution contains de­ him as President for the next seven years. pendent solely upon the will of the Presi­ The Transitional Provisions also state dent. that until such time as the Parliament is The President may also, under excep­ elected, for which no date is fixed, the 7 i

President shall assume all legislative func­ (Mongomo) and from his ethnic group in tions. Also, “until career judges and prose­ the main administrative posts of the State. cutors are trained” the President may re­ This creates problems with implications for quest the Supreme Court to reconsider its the principle of equality before the law and judicial decisions. This is an extraordinary prohibition of discrimination as proclaimed and wholly inappropriate power even for a by the Constitution. transitional period, particularly as the tran­ It is regrettable that the opportunity has sition is of undetermined duration. been lost to adopt a Constitution ensuring major progress towards democracy in Equatorial Guinea. When in 1982 the UN Conclusions Commission on Human Rights discussed the plan of action proposed by the Secreta­ The provisions of the Constitution lend ry-General of the United Nations in the weight to the claim of the opposition that framework of the programme for assistance the true aims of the present government in human rights it was repeatedly stressed and of Col. Obiang Nguema are to keep that, in order to ensure a return to democ­ themselves in power indefinitely and to in­ racy, the government should allow and stitutionalise a system which gives them even encourage the safe return of exiles, in­ full control over the political life of the cluding those who legitimately aspire to country. Opposition circles have also point­ participate politically in reconstruction, ed out that, while the people of Equatorial and that political parties and trade unions Guinea come from six ethnic groups, the should once again be allowed to operate President has, for the most part, placed freely (see ICJ Review No. 28, p. 37). people from his native village and region None of this has been done.

Honduras

In 161 years as an independent state but under almost all these governments Honduras has had 385 armed rebellions there have been severe restrictions on fun­ and 126 governments. After nearly 40 damental freedoms and widespread viola­ years of military rule, in 1971 elections tions of human rights. Political repression took place and a civilian became President, has been considerable but not on the same but at the end of 1972 another military scale as in the neighboring countries of El coup gave the power again to the army. Salvador, Guatemala and Nicaragua. The Since then there have been a series of political opposition has never been able to coups and the Presidency has been held by develop to the point of constituting a generals, colonels and a three-man military threat to the regime. junta. During these years official propagan­ On November 29, 1981, elections were da has tried to justify the military govern­ held and a candidate from the Liberal Par­ ments by the need to fight against corrup­ ty, Mr. Roberto Suazo Cordova, a physi­ tion and to restablish democratic values, cian of 55, became the first civilian Presi­ dent of the Republic in nine years. As a peared Roberto Fino, Reynaldo Diaz moderate conservative, who campaigned on Flores, a sociology student, and Felix Mar­ the slogan of “work and honesty", Presi­ tinez Medina, a member of the University dent Suazo by his election raised hopes of Honduras’ staff union. All three showed that Honduras could escape the political signs of violence and Martinez Medina’s violence affecting much of the region. Ne­ hands and feet were tied. There have been vertheless, with a left-wing government in continuing reports of torture of political Nicaragua and civil wars between left-wing detainees. guerillas and the government in El Salvador On August 31, 1982, Mr. Leonidas and Guatemala, it was to be expected that Torres Arias, a colonel in the Honduran ar­ the armed forces would continue to remain my who was serving as a diplomat in Mexi­ influential in Honduras. co, declared in Mexico City that the then Internally, the new government inherit­ Commander-in-Chief of the armed forces ed an acute economic crisis, complicated of Honduras, General Gustavo Alvarez, was by the fact of a popular expectation that a carrying out a plan for the physical exter­ return to democracy would bring imme­ mination of opponents of the government, diate relief. In foreign policy, the position and that this policy was not only threaten­ of the country remains unchanged. No new ing the re-emerging democracy in the coun­ appointments have been made among the try but also threatening armed conflict with army commanders and the military links Nicaragua. The Human Rights Commission with the U.S. army have continued. of Honduras, as well as leaders of the oppo­ Honduras is situated in a region of social sition parties, immediately demanded an upheaval and serious political and military investigation of the charges made by Torres conflict, where respect for human rights Arias. and fundamental freedoms continues to At the same time, left-wing armed give grave cause for concern. The previous groups have made their presence felt in the government had placed a specialized mili­ country, such as the “Cinchoneros”, who tary counter-insurgency unit, known as the take their name from a 19th century Hon­ “Cobras”, in charge of internal political duran rebel. This politico-military organisa­ repression. This force had committed many tion was responsible for the hijacking of a abuses against the population, such as Honduran aircraft in 1981, for the return large-scale house-to-house searches carried of which they demanded and obtained the out without warrants in the suburbs of the release of 13 political prisoners. In Septem­ capital, Tegucigalpa, in the hunt for nation­ ber 1982, they attacked the San Pedro Sula al and foreign “subversives”. These opera­ Chamber of Commerce, taking over a hun­ tions resulted in dozens of detentions and dred hostages, including two Ministers of some deaths, and human rights organisa­ State. After lengthy negotiations between tions have also reported cases of enforced the guerillas and the government, with the disappearances. These violations have con­ intermediation of the local Catholic Bishop tinued into 1982. Three clandestine burial and a Venezuelan diplomat, the rebels re­ grounds were discovered close to the capital leased the hostages and left the country in early in the year, which served to reinforce a Panamanian aircraft bound for Cuba. suspicions that some of the security au­ Their demands for the return of the hos­ thorities are involved in extra-legal execu­ tages, the release of all political prisoners tions. On August 27 and 28, 1982, the and the withdrawal of North American corpses were found of the recently disap­ military advisers, were not met. As stated, a large part of Central Ameri­ caragua aimed at harassing, but not over­ ca is in turmoil. Civil war is under way in throwing the government of that coun­ Guatemala and El Salvador, and Nicaragua try...” and that they were "helping to train established a revolutionary government anti-Sandinist forces, composed mostly of after the civil war which put an end to the Nicaraguan refugees...”1 Somoza dictatorship. All three countries These developments have posed serious border on Honduras. According to the fi­ problems, leading Daniel Ortega, Coordina­ gures of the United Nations High Commis­ tor of the Nicaraguan Government Junta, sioner for Refugees of September 1982, to declare recently that “there is an in­ there are 29,000 political refugees in Hon­ creasing possibility of military conflict be­ duras: 16,000 Salvadorans, 12,000 Nicara­ tween Honduras and Nicaragua”.2 guan Miskito Indians and 600 Guatemalans. There has also been a series of incidents To this total of 29,000 should be added along the border between El Salvador and more than 3,000 former Somozan national Honduras. International observers have re­ guardsmen who are armed and remain in ported that regular Honduran troops pre­ military units and are not recognized as re­ vented several hundred Salvadoran peasants fugees. These former guardsmen have been from crossing the border when fleeing from launching increasingly frequent armed in­ persecution by Salvadoran troops, and yet cursions into Nicaraguan territory, after allowed these same forces to enter Hondu­ which they return to their bases in Hondu­ ras. As a result, hundreds of peasants were ras. The collaboration of the Honduran au­ killed in both cases, the great majority be­ thorities with these armed gangs is obvious, ing women, children and old people. The in that they are allowed to operate from UNHCR has reinforced its presence in the Honduran territory. It has also been ad­ area so as to avert such massacres and to be mitted by the State Department that they able to guarantee refugees a safe haven un­ receive assistance and training from the der its protection in Honduran territory, United States. but further from the border. A recent article in the weekly News­ This brief catalogue of events gives some week, alleging that the C.I.A. was attem pt­ idea of the tense atmosphere in Honduras, ing to overthrow the government of Nica­ where the country is becoming sharply po­ ragua, using former Somozan soldies based larized as the political, social and economic in Honduras, provoked a denial by a senior situation deteriorates. They also indicate State Department official who stated how­ the growing risks of armed conflict between ever that “the United States supports small- countries of the region. scale covert military operations against Ni­

1) International Herald Tribune, November 3, 1982;Le M onde, November 2 and 4, 1982. 2) El Pais, Madrid, August 30, 1982. Latin America

Disappearances in Latin America

Secret Graves in Argentina On 18 November 1982 the Parliament of the European Economic Community re­ The discovery of at least nine clandes­ quested the Secretary-General of the Unit­ tine cemeteries in the neighbourhood of ed Nations to open an international inquiry Buenos Aires where hundreds of unidenti­ into the thousands of disappearances in Ar­ fied bodies were buried, has led organisa­ gentina, including about 400 european citi­ tions of relatives of disappeared persons zens. and human rights groups in Argentina to Despite the Argentine government’s ask that an in-depth investigation be car­ stated intention to move towards democra­ ried out and that the bodies, which they cy in the near future, the press was ordered fear may be those of some of the thou­ in September and October 1982 to avoid sands of persons who have disappeared in any mention of the subject of disappear­ that country, be identified. This is techni­ ances, the Falklands conflict, or corruption cally feasible, as was shown a few years ago within the government. These measures in Chile when similar graves were discover­ have been accompanied by the closing ed. All that is required is the decision of an down of several weeklies, and threats to in­ independent judiciary to authorise and im­ dividual journalists. plement such an investigation. Recent statements issued by the rela­ It is to be hoped that the growing inter­ tives of detained or disappeared persons governmental pressure on the Argentine and political prisoners in Argentina have government to conduct serious investiga­ made a considerable impact in Argentina. tions into disappearances will produce re­ They have shown that eight persons, sults. listed as disappeared, have been released In Italy, following a parliamentary de­ in a precarious state of health close to their bate on the subject, a senior official of the families’ homes, under severe threat to Ministry of Foreign Affairs has been sent their lives if they reveal the conditions to Argentina to ask the authorities to ac­ of their detention. Some of them disap­ count for 300 persons of Italian or dual na­ peared as far back as 1976. It appears that tionality who have disappeared in Argen­ there were over a hundred more prisoners tina since 1976. Some of them were arrest­ in the secret centre in which they were de­ ed together with their young children, or tained. were at the time expectant mothers. It is also understood that the army is The Federal Republic of Germany has studying a draft Amnesty Law aimed at ben- also taken steps through the Ministry of efitting those responsible for “the abuses Foreign Affairs to investigate the disap­ committed during the anti-subversive strug­ pearance, for political reasons, of 48 per­ gle”. There has been similar legislation, so- sons of German nationality or origin. called “self-amnesties”, to protect the arm­ It is understood that the governments of ed forces responsible for illegal methods of France and Sweden have similar action un­ repression under the Pinochet regime in der consideration. Chile and, prior to that, in Brazil. International Solidarity of offences against the peace and security of mankind. Representatives of various organisations in Latin America formed to assist detain­ ed and disappeared persons met in San Harassment of Activists Jose, Costa Rica in 1980 at the invitation of the Latin American Foundation for Relatives of arrested and disappeared Social Development (FUNDALATIN). persons, and others working on their be­ They decided to establish a Latin American half, are often themselves subjected to Federation (FEDEFAM) comprising orga­ harassment and pesecution. For example, nisations from Argentina, Bolivia, Brazil, in El Salvador the Oscar Romero Commit­ Colombia, Chile, El Salvador, Guatemala, tee of Mothers (so named after the mur­ Honduras, Haiti, Mexico, Uruguay and Pa­ dered Archbishop Romero) reported in raguay. August 1982 the disappearance of Mrs In November 1982 the third congress of Recinos, the wife of an arrested trade FEDEFAM took place in Lima. At the union leader, together with her 13-year-old time of going to press the results of the daughter, a Mrs Perdomo of the Commis­ conference have not been received, but it is sion of Human Rights of El Salvador, and understood that the conference had before Dr. Saul Villalta, a lawyer who had gone to it proposals calling for: discuss with Mrs Recinos the possibility of obtaining her husband's release. According — it to be made a criminal offence in do­ to the information received by the Oscar mestic law and a crime against humanity Romero Committee of Mothers, they were in international law to cause an involun­ all arrested by the Hacienda police, but the tary disappearance; police deny any knowledge of their where­ — statutes of limitation to be made non- abouts. applicable to the crime of causing invo­ In Uruguay it is illegal to attempt to or­ luntary disappearances, and to apply to ganise relatives of prisoners or disappeared such cases the principles of international persons. Publications which have referred cooperation for the identification, de­ to the subject have been closed down, and tention, extradition and punishment of proceedings have been started in military those responsible; courts against members of the Justice and — the General Assembly of the United Na­ Peace group for having expressed solidarity tions to appoint a High Commissioner on humanitarian grounds with the relatives with power to act immediately on com­ of disappeared persons. plaints of disappearances in situations where a systematic pattern of disappear­ ances has been established. UN Working Group on Disappearances In this connection, the UN Sub-Com­ mission on the Prevention of Discrimina­ The report to the 1982 session of the tion and Protection of Minorities at its UN Commission on Human Rights by its 1982 session recommended that the Inter­ Working Group on Disappearances (E/CN. national Law Commission be invited to de­ 4/1492) contains some important observa­ clare involuntary disappearances a crime tions and conclusions after its first two against humanity when drafting the code years of work. The Working Group has informed itself (1) when detentions occur, the judicia­ of the features of the constitutional, legis­ ry is in practice or even in law unable to lative and judicial systems of member pursue its search for information from states which can be invoked by a relative the military or the executive to enable or other interested person in the case of a it fully to uphold the constitutional disappearance. The Group comments that guarantees of personal freedoms; there seems to exist in most systems “a (2) the judiciary and officers of the widespread insistence on the protection of courts may be too afraid for their per­ the individual from abuse or excess of pow­ sonal safety to dare to pursue in accor­ er by state authorities and on the necessity dance with law the cases presented to to bring any persons detained before a them; court of law at an early stage... The evi­ (3) a variation on this situation occurs dence is overwhelming that relatives and where the appointment and likewise other organisations have constantly resort­ the dismissal of judges or magistrates ed to these remedies, but in all too many is so dependent upon the executive cases the constitutional and legal safe­ power, that their propensity to investi­ guards have yielded no results”. gate the actions of the executive is pro­ The Working Group then goes on to foundly diminished. In many countries show that the principal reason for this is there is a dual procedure; both civil and the lack of a truly independent judiciary criminal judges and magistrates are in­ and the failure of the executive to provide volved. The civil courts deal with habeas the courts with the information they re­ corpus or amparo (a broader remedy for quire. The report continues in outspoken denial of constitutional rights) or the terms as follows: like, while the criminal courts are em­ powered to investigate such offences as “Evidence to the Group has identi­ kidnappings or the abuse or excess in fied prevailing defects which prevent the use of power by members of the families from exercising their basic right executive. Fear or favour can vitiate to trace their relatives: either jurisdiction.”

Sri Lanka

A Presidential election, sought by Presi­ which followed the Westminster model, in­ dent Junius R. Jayawardene sixteen to an executive presidency, the president’s months before his first six year term expir­ term being fixed at six years. Mr. Jayawar­ ed, took place in Sri Lanka on 20 October dene nevertheless found it expedient to 1982. This necessitated an amendment to amend the Constitution again so as to en­ the Constitution. The Constitution had al­ able the President to seek election any time ready been substantially amended in 1977 after the first four years of office. This is a when Mr. Jayawardene came to power, so curious amendment. If a presidential power as to convert the previous Constitution, to seek re-election before the end of the term is thought desirable, why should it be dent has also called for the resignation of confined to the last two years of the six- all members of parliament of his own par­ year term? ty, so that he can get rid of some unwanted Even more surprising was the govern­ members and submit a reconstituted list in ment’s decision immediately after this elec­ the referendum. This is a surprising use of a tion to seek approval by referendum for provision of the Constitution that when an yet another amendment to the Constitu­ MP resigns, his party can nominate some­ tion which would enlarge the term of the one to replace him in Parliament. present Parliament by a further six years. These declarations and manoeuvres are This referendum is to be held in December hardly those to be expected of the Presi­ 1982. dent of a parliamentary democracy. It is unprecedented in a parliamentary Sri Lanka is one of the few countries in democracy for the life of a parliament to the third world to enjoy the advantages of be extended in such a way, other than in a free multi-party parliamentary democra­ time of war. The explanation given by the cy. In a press statement on 25 November State Minister was that the President had 1982 the Secretary-General of the ICJ, indicated that, as the people had given him commented that the recent amendments a mandate to implement the policies he ini­ and proposed amendments savoured more tiated at the 1977 election by re-electing of political manoeuvring than of a desire him for a second term... he proposed to ask to maintain the stability of the Constitu­ the people... to extend the term of office tion, and expressed the hope that in the of the first Parliament by six years”. coming referendum the electors would re­ It does not, of course, follow that, if flect carefully before allowing the un­ Parliamentary elections were held, the elec­ doubted popularity of the President to un­ torate would necessarily vote the Presi­ dermine the tradition of constitutional dent’s party back into power, still less that rules. they would do so by the overwhelming When the Jayawardene government won majority which the party gained in the its sweeping victory in 1977, it was in part 1977 elections (143 seats out of 168). By due to the campaign it had waged in favour the present manoeuvre, the President is of greater protection for human rights. seeking without an election to perpetuate In view of this, it was perhaps unfortu­ that majority, which few observers think nate that one of its first acts was to set up he would be able to do by an election and a Special Presidential Commission to in­ which gives his party the power to vote quire into allegations of abuse of power by changes in the Constitution at will. Mrs Bandaranaike and other members of The President then claimed that a fac­ her administration. Commissions of this tion of the Sri Lanka Freedom Party kind are at their best unsatisfactory and (SLFP) had planned to assassinate him and smack more of a desire to gain political ad­ set up a military government if their candi­ vantage than to see justice done. If mem­ date had won the recent presidential elec­ bers of a previous administration are believ­ tion. The President said that he could not ed to have violated the law, they should be allow “political hooligans” to enter Parlia­ charged and tried before the ordinary ment in large numbers and “wreck” parlia­ courts, with all the protection of ‘due pro­ mentary procedures. No proceedings, how­ cess’ and full defence rights, including a ever, have been reported against the sup­ right of appeal. The procedures under the posed assassination conspirators. The Presi­ Special Presidential Commission of Inquiry were criticised in ICJ Review No. 21 of the result that she was banned from parti­ 1978, at p. 11. cipating in elections, or even of campaign­ The criticism included that the Commis­ ing on behalf of other candidates for that sion could find persons guilty of acts of period, under pain of a fine or imprison­ “political victimisation, misuse or abuse of ment, and any successful candidate for power, corruption or any fraudulent act in whom she campaigned could be unseated. relation to any court or tribunal or any All this was a gross violation of the prin­ public body or in relation to the adminis­ ciples of the Rule of Law, and is also in tration of any law or the administration of violation of several articles of the Interna­ justice”. These are general charges, lacking tional Covenant on Civil and Political the specificity of defined crimes. In so far Rights, to which Sri Lanka is now, but was as they go beyond existing criminal law, not then, a party. they are retroactive in effect. Accused persons do not have the advan­ tage of knowing with proper precision the The Prevention of Terrorism Act charges against them. The Commission is at once an investigating body and a tribunal A major problem with which the gov­ making findings of guilt. Its findings, which ernment of Mr. Jayawardene had to deal are published in the official Gazette, are and which was inherited from the previous “final and conclusive, and shall not be cal­ administration was the ethnic conflict be­ led into question by any court”. In other tween the Tamil minority and the Sinha­ words there is no right of appeal. The sen­ lese, and in particular the terrorist attacks tence to be passed on offenders is then de­ of the extremists for Tamil Independence. termined not by a judicial body in accor­ When widespread violence broke out be­ dance with a pre determined law; it is im­ tween the two communities in June 1981, posed by Parliament, which in this case the government declared an emergency and means by the defendant’s political oppo­ made extensive use of the 1979 Prevention nents. of Terrorism Act. In July 1981, the Inter­ In the case of Mrs Bandaranaike, the national Commission of Jurists designated findings against her were that she had pro­ Professor Virginia Leary to study the hu­ longed until 1977, the State of Emergency man rights aspects of the Terrorism Act proclaimed in 1971, although conditions and the events related to its adoption and for such continuance had ceased to exist; application. suppressed legitimate political opposition In her report Professor Leary criticised and harassed political opponents; interfer­ certain provisions of the Act on the ed with police investigations into an alleg­ grounds that they were unduly vague, ed threat to the life of Mr. Jayawardene, created offences retroactively and provided then leader of the opposition and present for detention incommunicado contrary to President; caused the eviction of a monk internationally accepted minimum stan­ from his home and had another political dards1 . opponent evicted. Professor Leary recommended to the None of these in terms constitute a cri­ government of Sri Lanka that “in view of minal offence. Yet Parliament passed a law the draconian provisions of the 1979 Ter­ with the novel punishment of imposing rorism Act, which violate accepted stan­ civil disabilities on her for seven years, with dards of criminal procedure, the govern- 1) See ICJ publication :ifc;thnic Conflict and Violence in Sri Lanka”, by Prof. Virginia Leary. ment should urge its parliamentary majori­ handed over to military custody, abuses are ty not to re-enact the Act on its expiration liable to result. This experience includes Sri in 1982, or to amend it so that its provi­ Lanka, as was shown when the Court of sions on arrest, detention and evidence Appeal, dealing with habeas corpus peti­ conform with the international commit­ tions, found that violence had been used ments made by Sri Lanka in ratifying the against detainees in an army camp2. International Covenant on Civil and Politic­ al Rights”. Contrary to this recommendation recent Emergency to Deal amendments made to the Act have enlarged With Labour Strikes its application. In March 1982, an amend­ ing Act deleted Section 29 of the Act The other major problem the govern­ which limited its operation to a period of ment has had to contend with is labour un­ three years, thereby making the Act perma­ rest. On 16 July 1980, an emergency was nent. Further a new Section 15 A was ad­ declared to deal with a general strike which ded which states that was called by the Joint Trade Unions Com­ mittee. In spite of the emergency declara­ "where any person is on remand, the tion, large numbers of workers went on Secretary to the Minister of Defence strike. The government retaliated by dis­ may, if he is of the opinion that it is missing all public service employees on necessary or expedient so to do, in the strike and freezing the bank accounts of interests of national security or public the trade unions. The emergency was, how­ order, make an order, subject to such ever, lifted on 15 August 1980. directions as may be given by the High The strike and its aftermath illustrate Court to ensure a fair trial of such per­ the inadequacy of the existing machinery son, that such person be kept in the cus­ to deal with the grievances of public service tody of any authority, in such place and employees. Section 49 of the Industrial subject to such conditions as may be de­ Disputes Act, which deals with trade union termined by him having regard to such rights, including the right to strike, states interest... and the provisions of the pris­ that the Act shall not apply to the govern­ ons ordinance shall cease to apply in ment in its capacity as employer or to a relation to the custody of such person”. worker in the employment of the govern­ ment. In addition, the Essential Public Ser­ The new Section empowers the execu­ vice Act, enacted in 1979, imposes a total tive to transfer a remanded prisoner from ban on strikes by public service employees. the prison where he is held to some other A minimum sentence of two years and a place of detention. The reasons for and the fine of up to 5,000 rupees is stipulated for use being made of this new Section are not contravention of the Act. Further, this Act known, but in principle it appears objec­ enables the President to declare any ser­ tionable. vices rendered by any government depart­ Experience in many countries shows ments, public corporations and local au­ that when persons are removed from the thorities as essential services, thereby bring­ custody of trained prison officers, and ing the workers of these enterprises under

2) Court of Appeal, Habeas Corpus applications 10, 11 and 12 of 1981, decided on September 10, 1981. the jurisdiction of the Act. Report to the It is generally recognised that some pub­ Human Rights Committee lic service employees, but by no means all, are in a special category and that it is ne­ The Government of Sri Lanka’s ratifica­ cessary and legitimate to deprive them of tion of the Covenant on Civil and Political the right to strike. But where there is a ban Rights on 11 June 1980 is to be warmly wel­ on strikes there should be statutory machi­ comed. Its first report to the Human Rights nery to settle disputes. ILO Convention Committee is due, in which it is asked to re­ 151 of 1978, recognises this and suggests port on the measures it has adopted to give that impartial machinery such as media­ effect to the rights recognised in the Cove­ tion, conciliation or arbitration should be nant and on the progress made in the enjoy­ provided by governments to deal with the ment of these rights. This provides an op­ grievances of public services employees. Sri portunity for the government to review the Lanka is not a party to this Convention. consistency of its laws with the provisions Perhaps its application in Sri Lanka would of the Covenant, and it is to be hoped that help to meet the grievances of the public the President will use his fresh mandate service employees. from the people to initiate this process.

Zaire

An article in ICJ Review No. 21 of De­ texts and the realities is immense. "The cember 1978 described the then situation Call to Recovery of the Nation”, from of human rights in Zaire. A few months be­ which extracts were published in Review fore, the bishops of Zaire had launched “A No. 21 is still valid, as was affirmed by the Call to Recovery of the Nation”, in which Plenary Assembly of the Bishops of Zaire, they concluded that the situation called for held in Kinshasa in June 1981. In its decla­ profound reforms in order to achieve the ration, the episcopal conference remarked: required recovery of the nation, and main­ “One knows the old refrain... Zaire is a tained that superficial reforms would only geological scandal, an extremely rich coun­ paper over the cracks. Four years later the try with extremely poors inhabitants... for situation is profoundly disturbing. Deten­ decades people have talked about its riches tion without trial, torture, summary execu­ which always remain ‘potential’. Mean­ tions, disappearances, inequitable trials of while, there is shameless exploitation for presumed opponents to the government, the benefit of foreigners and their agents such is the state of affairs in Zaire, ironical­ while the great majority of the people are ly one of the African states that has ratified sunk in a poverty, which is sometimes arti­ the International Covenant on Civil and Po­ ficially created.” litical Rights and its Optional Protocol. This picture is fully confirmed in a re­ The various constitutional texts of Zaire markable book published by the former claim to protect the fundamental rights of Prime Minister of Zaire, Nguza Karl i Bond, citizens. However, the gap between these entitled “Mobutu ou l’incarnation du Mai zairois”. In 1977 President Mobutu accus­ lent about the violations of human rights in ed Karl i Bond, then the Minister of For­ Zaire, and he contrasts this with their de­ eign Affairs, of being in collusion with the nunciations of violations in Poland. ‘enemy’ in the Shaba conflict. He was ar­ The disastrous fall in the standard of liv­ rested, detained in an underground cell and ing in Zaire is well-known. There has been subjected to severe torture including elec­ a constant diminution in purchasing power tric shocks to his testicles. Later he was following vertiginous inflation. UNTZa charged with high treason and sentenced to (the National Union of Zairian workers) death on September 13, 1977. Two days has calculated that between 1960 and 1969 later he was reprieved. In July 1978 he was inflation rose by 917% and the minimum freed and in March 1979 resumed his port­ salary of an unskilled worker by only folio as Minister of Foreign Affairs, before 329%. The World Bank commented in being appointed Prime Minister in 1980. 1980 on the lack of any systematic econo­ Less than two years later, while on an offi­ my policy, and of any appropriate response cial visit to Belgium, he opted for exile. to the external trade problems or to infla­ In his book he traces his extraordinary tion. The result is that the greatest profits political career, and above all presents a are made in commerce, speculation, flights massive indictment against President Mobu­ of capital and luxuries rather than in pro­ tu’s regime, which he charges with respon­ ductive work. The system creates many op­ sibility for a situation of total bankruptcy, portunities for corruption, above all at a due to poor administration and disuses or time where real salaries are diminishing. In­ misuse of the country's competent profes­ stead of establishing a policy of effective sionals. He shows the regime to be one of participation by the people in develop­ terror, recalls the political executions at ment, Zaire has concentrated on exploiting Whitsun 1966, seven months after Mobutu its mineral wealth leaving the rural areas to came to power by a military coup, when sink further into poverty. four ministers were arrested and hanged In face of its inability to solve its prob­ publicly following a ‘plot’ invented entirely lems, the government has had resort to au­ by Mobutu. He describes his own trial be­ thoritarianism and repression to silence cri­ fore the Court of State Security as a mas­ ticisms. Hopes for a relaxation were raised querade, one of many speedy, faked, and in 1978 when, after the Shaba war, Presi­ ridiculous trials. His lawyer, Maitre Ndudi- dent Mobutu declared his intention to lib­ Ndudi, was pressurised not to ask for an eralise his regime. He said in a speech “the adjournment of the trial. voice of people has been stifled for a long As to freedom of the press, Karl i Bond time. There is a danger that it will be heard comments that the press is muzzled as in too late... I have decided to establish a real­ all totalitarian countries. He says that Gen­ ly representative parliament, elected on the eral Mobutu often himself dictates articles basis of free elections and universal suf­ for AZAP (the Zaire press agency), or in­ frage”. The one party system, however, re­ spires them, which are then faithfully re­ mained. The elections took place and the produced in the press and on radio and new parliament was given the right to call television. ministers to account, to set up parliamenta­ In his conclusions Karl i Bond severely ry enquiries, to put oral or written ques­ criticises the Western powers in blindly de­ tions, and parliamentary debates were re­ fending their economic interests in exploit­ layed by radio and television. Two years ing Zaire's mineral wealth and keeping si­ later, on February 4, 1980, President Mobutu decided that the elected represen­ fendants by the Court of State Security. tatives of the people could not exercise The 12 Commissioners of the People refus­ their rights to challenge or question the ed to attend the trial on the grounds that it government without his express prior was not being held truly in public, and agreement. their Belgian advocates accordingly refused In June 1978, again expressing his con­ to participate in the trial in their absence. cern to liberalise his regime, President Mo­ The other defendants were represented by butu succeeded in persuading many refu­ Zairian counsel. The Belgian advocates had gees to return to Zaire, granting them an previously been warned by President Mo­ amnesty. However, hundreds of those who butu that any pleading criticising in any were to benefit from the amnesty were ar­ way the Constitution would result in their rested on their return, detained without immediate expulsion. The 12 Commission­ trial and, in some cases, tortured and even ers were sentenced to the maximum of 15 executed. The representative in Zaire of years penal servitude. An observer on be­ the UN High Commissioner for Refugees half of the International Federation of Hu­ protested against these arrests in violation man Rights commented that the parliamen­ of the amnesty. tarians were condemned because they had Summary executions without trial in expressed opinions other than those of the the middle of 1979 of alleged robbers in political authority in power, and had mani­ Matadi and other towns in Bas-Zaire have fested an intention to found another party. been reported by Amnesty International, After the trial the former parliamenta­ and massacres in Eastern Kasai, and in par­ rians wrote to the Minister of Justice de­ ticular at Katakelakayi, on November 8, nouncing the ill-treatment and brutality to 1979, by the International Federation of which their families had been subjected. Human Rights. On March 26, 1981, a professor of his­ In January 1981, 12 Commissioners of tory, Professor Dikonda, was arrested for the People (members of parliament) were having criticised the regime in a radio inter­ arrested for having written an open letter view during a visit to Belgium. He was de­ to President Mobutu, contrasting his innu­ tained without trial for nine months before merable political declarations since he took being released. This is far from being an power with his present policies. They were isolated case. Anyone who expresses any deprived of their parliamentary immunity, criticisms is liable to be arrested and de­ and their case was examined by a Discipli­ tained either by the CNRI (a civilian securi­ nary Commission of the Central Commit­ ty service) or by the security service of the tee of the Mouvement Populaire de la Re­ army. volution, the single party. The Commission Further convincing first hand evidence found them guilty of various breaches of of the practices of torture and extra judi­ discipline and ordered that they be dismis­ cial executions by the security forces in sed from the party, with the consequence Zaire was provided in a statement made by that they were no longer qualified to sit in a former army sergeant, Kimbana Lulu parliament or occupy any position in the Kilodio, at an enquiry held in Rotterdam public service. The Commission also order­ in September 1982, in which he said “Un­ ed that they be deprived of their civil and der the command of Colonel Bolozi, we political rights, an order which it had no were ordered to torture and execute poli­ power to make. The authors of the letter tical [prisoners]... As we became increasing­ were then tried together with six other de­ ly notorious for kidnappings and assassina- tions, my conscience was no longer clear... seph Kasavubu, is today paralysed. In tor- Dr. Motondo, a member of the family of turing him, we smashed his knees with the former President of the Republic, Jo- hammer blows... The regime is insane1.”

1) Afrique Asie No. 282, November 1982. COMMENTARIES

UN Sub-Commission on Discrimination and Minorities

The 35th session of the UN Sub-Com­ rights, the High Commissioner would, in mission on Prevention of Discrimination addition to making direct contacts, consult and Protection of Minorities was held in with and consider collaborating with other Geneva, from August 16 to September 10, elements of the United Nations system. He 1982. would report annually to the General As­ sembly, the ECOSOC and the Commission on Human Rights. The Sub-Commission High Commissioner suggests that, subject to the consent of the for Human Rights concerned governments, the reports in­ clude a summary of the results of the Of­ Outstanding was the speed with which fice’s direct contacts with governments, the Sub-Commission replied to the Com­ and also suggests that the Commissioner mission on Human Rights' request that it announce the results of such direct con­ draft proposals for possible terms of refer­ tacts at other times during the year. It re­ ence for a High Commissioner for Human commends that the Commissioner be no­ Rights. An informal working group was set minated by the Secretary-General and be up to prepare a draft and in due course the elected by the General Assembly, for a Sub-Commission adopted many of its sug­ period of five years and not serve for two gestions. The Sub-Commission's recom­ consecutive terms. mendations were unfortunately far from unanimous. Ten members voted for them, six against, and four abstained. Review of Status and Activities Included in the proposed functions and of the Sub-Commission responsibilities of the High Commissioner are the promotion and protection of the This agenda item was created in 1981, observance of human rights and fundamen­ following criticisms made in the Commis­ tal freedoms for all, giving special attention sion on Human Rights regarding certain ac­ to the importance of ensuring the effective tivities of the Sub-Commission. Some sur­ enjoyment by all of their civil and political prising and far-reaching proposals were dis­ rights and their economic, social and cul­ cussed, including proposals that the status tural rights. The High Commissioner would of the Sub-Commission should be raised to be empowered to initiate direct contacts one of equality with the Commission. with governments, whenever such action However no agreement was reached on any appeared necessary or desirable. In cases of of these proposals and the matter has been mass and flagrant violations of human deferred until next year. Rights of Detainees detention, extra-territorial abductions and suicides in detention. The Working Group on the Rights of It also proposed that a special study Persons Subject to any Form of Detention, should be made on the concepts of interna­ established during the previous session of tional habeas corpus and of “anticipatory the Sub-Commission, reviewed various is­ bail” as practiced in India and elsewhere. sues, including the grounds for detention, Also, following a suggestion made by procedures for arrest, duration of pre-trial the ICJ to the Working Group, the Sub­ detention, the rights of persons in deten­ Commission decided to request the chair­ tion, torture and other cruel or inhuman man of the Commission, to forward a tele­ punishment, summary or arbitrary execu­ gram to the government of Malawi con­ tions, curtailment of movement, trial pro­ cerning the arrest and trial of Orton and cedures, disappearances and military courts. Vera Chirwa (cf. ICJ Review 28, p. 13). The report of the Working Group con­ The Sub-Commission expressed its concern tained 16 recommendations for procedures over the allegations that the Chirwas were to guarantee respect for the human rights being charged with a capital offence of of persons held in prisons or in detention. treason before a court not composed of le­ Many of these and other suggestions gally-trained judges and without a right of were passed on to the Commission, includ­ representation and also expressed its con­ ing proposals that cern about substantial indications that the accused were arrested by Malawi police in - persons arrested or detained should be Zambia. The Sub-Commission urged a pub­ tried within a fixed period, preferably 3 lic enquiry into the circumstances of the months, after arrest or released pending arrest and the trial of the accused before further proceedings; the high court. - detained persons should have the right to be produced before an independent States of Emergency magistrate at brief intervals and asked if they have any complaints; Mrs Nicole Questiaux, Special Rappor­ - there should be independent inspections teur, submitted her completed study on without prior notice of places of deten­ the implications for human rights of states tion and interrogation centres; of siege and emergency, to the Working - the jurisdiction of military courts should Group on the Rights of Persons Subject to be limited to military offences and per­ any Form of Detention. sonnel, with the right to independent The Sub-Commission requested the legal defenders and to appeal to a civi­ Commission to recommend to the ECO- lian court against severe sentences. SOC that it transmit the study to the spe­ cialized agencies of the United Nations, the The Sub-Commission also requested the Committee on Human Rights and the Com­ Secretary-General to seek information mittee on the Elimination of Racial Dis­ from governments and others about arrest crimination and arrange for the study to be and detention ‘on vague grounds or no published and given the widest possible dis­ grounds at all’, the duration of pre-trial de­ semination in all the official languages of tention, procedural guarantees for adminis­ the United Nations, and that the ECOSOC trative internment, especially under states authorize the Sub-Commission to appoint of emergency, practices of incommunicado one of its members to undertake a closer study of the advisability of strengthening populations met under the chairmanship of or extending the inalienability of the non­ Asbjorn Eide (Norway). It was assigned derogable rights enumerated in article 4, two main tasks: to review developments paragraph 2, of the International Covenant pertaining to the promotion and protection on Civil and Political Rights. of basic rights of indigenous populations In her recommendations Mrs. Questiaux and to submit conclusions, and to pay spe­ proposes a supervisory role for internation­ cial attention to the evolution of standards al and regional organs to monitor the hu­ concerning the rights of indigenous popula­ man rights situation during states of emer­ tions. gency. Such a role would include regular On the question of the definition it de­ reports to the Commission on Human cided not to make a firm recommendation Rights, and the holding of seminars and yet but to await the receipt of additional colloquiums involving concerned govern­ information on this issue. ments, legislators and jurists. The Working Group considered that spe­ The criteria by which states of emergen­ cial and urgent attention has to be paid to cy should be judged are that the emergency the cases of physical destruction of indige­ should be officially proclaimed, the reasons nous communities (genocide) and the de­ for it should be stated publicly, the threat struction of indigenous cultures (ethno- to be met should be exceptional, emergen­ cide). cy measures should be proportional to the The Sub-Commission adopted the Work­ threat and should be applied without dis­ ing Group’s recommendation that the crimination, and the non-derogable rights, ECOSOC be asked to establish a fund for such as the right to life and freedom from the purpose of allowing representatives of torture, should be strictly respected. indigenous populations to come to Geneva The study draws attention to the basic to participate in the Working Group. rules of international law and domestic le­ gislation which limit the State’s power with respect to human rights in emergency situa­ Slavery and Slavery-Like Practices tions. Mrs. Questiaux observed that, too often guarantees provided by law were de­ The Sub-Commission recommended viated from. The study includes an analysis that the Report on Slavery of the Special of the de facto impact of states of emer­ Rapporteur, Benjamin Whitaker (UK) gency upon the rule of law and respect for should be translated (including an arabic human rights, and notes that states of version) and widely distributed. emergency tend to become permanent or The report contains proposals for assign­ institutionalized, with increased powers be­ ing a major co-ordinating role to the Unit­ ing granted to the Executive and to milita­ ed Nations system in new efforts to com­ ry or special courts which sometimes ap­ bat slavery and slavery-like practices, and plied retroactive laws in summary fashion. suggests that the United Nations and its The effects of states of emergency are par­ agencies actively offer countries co-ordinat­ ticularly damaging for persons detained on ed legal, technical, administrative, educa­ political grounds. tive, financial and other practical assistance to eliminate conditions conducive to slav­ Indigenous Populations ery-like situations. The Sub-Commission also recommended The new working group on indigenous that studies should be made or updated T

dealing with debt bondage, identured labour Independence of the Judiciary in South Africa, exploitation of women, and the Legal Profession traffic in persons and prostitution, the sale of children and female sexual mutilation. Mr. Singhvi (India), the Special Rappor­ The programme of action to combat ex­ teur on this item, submitted a progress re­ ploitation of child labour prepared by Mr. port on his study, in which he referred to Abdelwahab Bouhdiba, proposing a cam­ his attendence at a meeting of a Committee paign which would include a UN seminar of Experts convened by the ICJ and the In­ focussing on further national measures and ternational Association of Penal Law to coordinated international action, was sub­ formulate principles on the Independence mitted to the Commission. of the Legal Profession. The participants included lawyers from 16 organisations and 20 countries. Mr. Singhvi noted in his pro­ Conscientious Objection to gress report that the principles formulated Military Service by the Committee of Experts provided an instructive example of a broad convergence Following a request by the Commission and consensual accommodation of diverse to study the question of conscientious ob­ perspectives and experiences in different jection to military service, the Sub-Com­ legal systems. mission requested Mr. Asbjorn Eide (Nor­ way) and Mr. Chama Mubanga-Chipoya (Zambia) to develop principles (a) recog­ Human Rights Violations nizing the right to refuse military or police service to enforce apartheid, to pursue wars The Sub-Commission has put forward of aggression, or to engage in any other il­ under this item a revised proposal for visits legal warfare; (b) recognizing the possibili­ by its members to countries under consid­ ty of the right to refuse such service on eration by it. The present proposal is that grounds of conscience but with a duty to the Sub-Commission be authorised to make offer alternative service; (c) urging Member arrangements for one or more of its mem­ States to grant asylum or safe transit to bers, following a decision of the Commis­ persons compelled to leave their country sion, to visit with the consent of the gov­ because of refusal of military service. ernment concerned, any country “as re­ gards which the Commission has received reliably attested allegations of a gross and Protection of Persons Detained on consistent pattern of violations of human Grounds of Mental Disorder rights and fundamental freedoms with a view to examining such situations at first The report of Mrs Daes (Greece) with hand and reporting thereon to the Sub­ draft guidelines, principles and guarantees Commission at its next session”. for the protection of persons suffering Meanwhile, two members, Mohamed from mental disorder received preliminary Yousif Mudawi (Sudan) and Marc Bossuyt discussion in a working group. The Sub­ (Belgium) were nominated to visit Mauri­ Commission has proposed that the working tania at the invitation of the government. group be renewed next year and sufficient During the discussion on Lebanon under time allotted to it to enable the report to this item, the Sub-Commission decided to be completed. request the Chairman of the Commission to transmit to the government of Israel a concern at the deteriorating situation and telegram calling for the immediate cessa­ noted with satisfaction the assurance given tion of all military operations in Lebanon, by the government that it would cooperate with special reference to the blockade and with the Special Rapporteur appointed by massive bombardment of Beirut, and also the Commission. called for the observance of international With respect to Chile it recommended humanitarian norms, especially the 1949 the Commission to call upon the Chilean Geneva Conventions and their additional authorities to respect and promote human protocols, in particular those relating to rights in conformity with the obligations the protection of civilian populations and they had assumed by virtue of various in­ of prisoners of war. ternational instruments. In a resolution on this issue, the Sub­ On Afghanistan it noted that a fourth of Commission recommended the Commis­ the Afghan people must now seek refuge sion to condemn Israel for its invasion of and refugee status elsewhere in order to en­ Lebanon “which constitutes a deliberate joy freedom, and expressed its grave con­ act of aggression against a sovereign State cern at the persistent reports of serious and for the indiscriminate bombardment violations of the human rights of the and destruction of Lebanese cities and Pa­ people of Afghanistan, including reports of lestinian refugee camps, and further asked the use of weapons outlawed by the inter­ the Commission to declare that “Israel’s national community. It stated that with­ grave breaches of the Geneva Conventions drawal of foreign forces was essential for of 1949 and the Additional Protocols, ... restoring human rights and reaffirmed the are an affront to humanity and can be as­ right of all peoples to determine their own similated to crimes of war”. form of government and to choose their There were extensive discussions on the own economic, political and social system human rights situation in various parts of free from outside interference, subversion, the world, and almost all the Sub-Commis­ coercion or constraint of any kind whatso­ sion members made comments on this ever. agenda item. Additionally, the Sub-Com­ On Kampuchea it endorsed the call mission heard comments from 15 govern­ made by other UN bodies for the imme­ mental observers, one national liberation diate withdrawal of all foreign forces from organisation and 12 non-governmental or­ Kampuchea and recommended the Com­ ganisations. Resolutions were adopted con­ mission to urge all concerned to take steps cerning the human rights situation in seven to enable the people of Kampuchea under countries apart from Lebanon, namely UN supervision to choose their own con­ Guatemala, Chile, East Timor, Afghanistan, stituent assembly to lay down the basic Kampuchea, Iran and El Salvador. principles for a democratic government With respect to East Timor it recom­ without foreign interference. mended the Commission to call upon all It considered that the human rights sit­ parties concerned to cooperate fully with uation in Iran was sufficiently serious to the UN with a view to guaranteeing the merit continuing scrutiny by all concerned free and full exercise of the right of self-de­ United Nations bodies, including the Com­ termination of the people, and to facilitate mission on Human Rights. the entry into the territory of international It recalled the General Assembly resolu­ aid to alleviate their suffering. tion appealing to all States to abstain from On Guatemala, it expressed its profound intervening in the internal situation in El Salvador and to suspend all supplies of achieve major economic reforms. Many arms and any type of military support, and members expressed the view that the pro­ recommended the government to apply the motion of respect for human rights is the rules of international law, particularly Ar­ ultimate goal of both the development pro­ ticle 3 of the Geneva Conventions of 1949, cess and of the establishment of the NIEO. which requires the parties to armed con­ Some thought that the promotion of equi­ flicts not of an international character to ty and social justice must be pursued at the apply minimum standards of protection of national level as much as at the internation­ human rights and of humane treatment. al level. Wealth must be equitably distribut­ Under this agenda item, the Sub-Com­ ed within States and progressive reforms mission sought permission to update the such as land reform, economic planning, Study on the Question of the Prevention and the exercise of control over transna­ and Punishment of the Crime of Genocide tional corporations introduced. with a view to having the update submitted The Secretary-General was requested to to the Commission at its 40th session. transmit the report of the Special Rappor­ Also, Mr. Mubanga-Chipoya (Zambia) teur to the Working Group of Govern­ was requested to prepare an analysis of cur­ mental Experts on the Right to Develop­ rent trends and developments in respect of ment so that the Working Group would the right of everyone to leave and return to have it during its deliberations. He was also his country, and to enter other countries asked to report on the extent to which without discrimination or hindrance, espe­ technical assistance is currently available to cially of the right to employment, taking States to enable them to strengthen their into account the need to avoid the brain legal institutions, including relevant educa­ drain from developing countries and the tional facilities, in order to enhance respect question of recompensing those countries for the rule of law in the development pro­ for the loss incurred. The Special Rappor­ cess. teur is to present his recommendations to The Sub-Commission requested that Mr. the Sub-Commission during its 37th ses­ Eide (Norway) be authorised to prepare a sion. study on the right to adequate food as a human right, giving special attention to the normative content of the right and its signi­ The NIEO and the ficance in relation to the NIEO. Promotion of Human Rights

Mr. Raul Ferrero (Peru) introduced the The Affects of Gross Violations first part of his Final Report on the New on Peace and Security International Economic Order and the Pro­ motion of Human Rights. Some speakers Under this item the Sub-Commission suggested that more account should be recommended that the ECOSOC taken of the documents and materials of the non-aligned movement in demonstrat­ — direct the attention of the Security ing the need for a new international eco­ Council and the General Assembly to nomic order. It also was suggested that an the fact that such mass and flagrant vio­ analysis should be made of the controver­ lations of human rights as aggression, in­ sial view that the denial of human rights vasion, military occupation, genocide might sometimes be justified in order to and apartheid “result in threats to, or breaches of, international peace and sec­ and security of mankind. urity, — request the Security Council to consider It also suggested that, the Sub-Commis­ how such violations can be dealt with as sion be authorised to continue its consider­ effectively as possible”, ation of this item with a view to establish­ - request the General Assembly to ask the ing criteria to govern situations which International Law Commission to take could be considered as constituting gross mass and flagrant violations of human and flagrant violations of human rights, the rights into account when elaborating the effect of which have an impact on interna­ draft code of offences against the peace tional peace and security.

The Case of Poland before the Committee on Freedom of Association

On 8, 9 and 12 November 1982, the of 22 October and 12 November 1982, and Committee met in Geneva. It had before it the statements made by Mr. Gorski, Vice­ a number of complaints of violations of Minister of Labour before the Committee trade union rights in Poland presented by on 9 November 1982. the International Confederation of Free The Committee had already examined Trade Unions (ICFTU) and the World Con­ the case in two previous reports, at its federation of Labour (WCL). Moreover, meetings of February and May 1982 (214th two workers delegates (from France and and 217th Reports). Norway) to the 68th session of the Interna­ At the initiative of the government, two tional Labour Conference (June 1982) had ILO representatives visited the country made a complaint under article 26 of the from 10 to 16 May 1982. The information ILO Constitution for non-observance, by obtained during this visit is included in the Poland, of the Freedom of Association and 217th Report, in which the Committee re­ Protection of the Right to Organise Con­ quested the government to transmit infor­ vention (No. 87) and the Right to Organise mation on any draft law which might be and Collective Bargaining Convention (No. elaborated concerning the trade unions; on 98). The Committee had also before it, the the 185 trade unionists who were, accord­ information gathered by the ILO during a ing to the government, still in detention; visit by a governmental delegation on 6 and on the tragic incidents which led to the 7 October 1982, the observations transmit­ death of nine workers at the Wujek mine ted by the government in a communication during the strike in December 1981; and on the allegations of dismissals and the these ‘enterprise unions’ have to be submit­ pressures that are said to have been exercis­ ted to the authorities. The conditions for ed on workers belonging to Solidarity. exercising the right to strike are such that The allegations made by the complain­ in practice strikes will be impossible. ants may be summarised as follows. After On 22 October, the government trans­ the proclamation of martial law, trade mitted its observations. It stated that the union activities had been suspended, trade progress made towards the normalisation unionists had been arrested or dismissed of the situation in Poland will soon lead to from their jobs by reason of their trade the suspension or even the total lifting of union activity, and loyal pledges had been martial law. Concerning the law on trade required under penalty of dismissal from unions, it stated that a number of modifi­ certain categories of civil servants. cations had been made to the draft law, in The ICFTU and the WCL protested the light of the comments of the ILO ex­ against the use, by the authorities of force perts. Concerning the limitations of certain and violence against workers during peace­ rights contained in the law, especially as re­ ful demonstrations held on 31 August and gards the multiplicity of trade unions and in the next days, marking the anniversary the annulment of the trade union structure of the agreements signed at Gdansk. Ac­ which existed before 13 December 1981, it cording to the complainants, this violence stated that these temporary limitations had resulted in deaths, hundreds of persons were the only solution in view of the ur­ being injured and thousands of workers be­ gency of the situation. Concerning the per­ ing arrested. sons interned, 109 persons had been freed The delegation sent by the government as at 10 October 1982. Concerning the on 6 and 7 October requested a legal opi­ events at the Wujek mine, the government nion on the conformity of the draft law on stated that the forces of order were in a sit­ trade unions with ILO standards. The writ­ uation of self-defence and that, according­ ten comments were immediately transmit­ ly, the inquiry into the events was closed ted to the delegation, and on 8 October the by decision of the Military Prosecutor on Director-General addressed a telex to Mr. 20 January 1982. Obodowski, Vice-Prime Minister, in which On 9 November before the Committee he pointed out the major problems which on Freedom of Association, Mr. Gorski, the draft law posed. The same day, the Vice-Minister of Labour, sought to justify Sejm (parliament) of the Polish People’s the withdrawal of the registration of trade Republic adopted the new law on trade unions (article 52 of the law on trade unions. unions) as follows: “There has been no dis­ In a letter to the ILO of 14 October solution by the administrative authority, 1982, the WCL states that this new law is but only by the supreme legislative body. contrary to Conventions No. 87 and No. The government could have opted for one 98. It refers to the suppression of existing or two other solutions, the one being to re­ trade unions (article 52) and to the fact activate Solidarity under another name and that under article 53, only trade unions with a new leadership, the other being to limited to particular enterprises will be al­ dissolve the union through the courts for lowed until the end of 1983. Nationwide violation of its statutes. Both these solu­ unions will not be allowed until 1984 and tions had the same disadvantage, however, inter-union associations and organisations they would have caused profound divisions until 1985. Moreover, the draft statutes of in society. The government wanted to avoid such consequences since Poland, at linked to international transport, radio all costs, needed tranquility and national and television); understanding.” - under article 52, the registration of ex­ isting trade unions is cancelled. The Committee considered that it is essential The Committee’s Conclusions that any dissolution of workers ‘or em­ ployers’ organisations should be carried The Committee considers that no real out by the judicial authorities, which improvement in the trade union situation alone can guarantee the rights of de­ can be expected as long as martial law pre­ fence, even if such measures are taken vails in the country. It urged the govern­ during an emergency situation; ment to take the necessary measures to lift - the Committee requested the govern­ martial law in the very near future. ment to supply information on the mea­ Although some of the comments of the sures taken with a view to making the ILO experts have been taken into account necessary amendments to the legisla­ in the text adopted by the Parliament, tion. The Committee of Experts on the some fundamental provisions of the new Application of Conventions and Recom­ law on trade unions which are not in con­ mendations will examine the new law at formity with the principles of freedom of its next meeting in March 1983. association and collective bargaining, have not been amended. Among other com­ On November 11, 1982, the Interna­ ments were the following: tional Commission of Jurists requested the Polish authorities to be allowed to send an - under article 12, the officials of penal international observer to the trial, which establishments are excluded from the has been announced as taking place shortly right to strike, whereas under the provi­ in Poland, of the leaders of the former sions of Convention No. 87, only the KOR organisation'. Dr. Rudolf Machacek, members of the armed forces and the a distinguished advocate, member of the police may be excluded from this right; Constitutional Court of Austria and Com­ - under article 38, strikes are possible only mission Member of the ICJ has been nomi­ after acceptance, by secret ballot, of such nated as the Observer. a decision by the majority of the workers. KOR (Defence of Workers) was created The Committee considered that the re­ in 1976 to assist workers who had been ar­ quirement of a majority of those voting rested following demonstrations against in­ would not involve such substantial re­ creases in food prices. In 1977 when these strictions on the rights of trade unions; workers were released it transformed itself - under article 40, the workers engaged in into KSS-KOR (Social Defence Commit­ “essential activities” are excluded from tee) to oppose violations of the rule of law the right to strike. The Committee con­ and support social initiatives in the cause sidered that certain of the named activi­ of human rights. It worked closely with the ties should not be considered as “essen­ leaders of Solidarity, helping to frame its tial”, but should figure among the ser­ economic and social policies. When Solid­ vices in which, under article 40(3), a arity was officially recognised it decided to minimum necessary service must be en­ disband, as its work was being carried out sured (e.g. food industry, education, by Solidarity committees. It was dissolved banks, oil and gas pipelines, installations in September 1981. Japan’s Denationalisation of the Korean Minority1

According to official statistics of the were extracted from the share croppers and Japanese government there are about tenants, and those who resisted payment 650,000 ‘Koreans’ living in Japan. Most of were summarily evicted from their lands. them are second and third generation de­ The peasants who failed to register their scendants of 'Koreans’ who were initially lands and those who were evicted from brought to Japan as labourers, at the time their lands migrated to Japan to earn their when Japan had annexed Korea. ‘Koreans’ livelihood. Between 1916 and 1920 the who were brought to Japan were treated as Korean population in Japan rose from Japanese nationals. Now they have been 6,000 to over 40,000. deprived of their Japanese nationality and After the Japanese invasion of China in many of them have become stateless per­ 1937, the second stage of migration began. sons. This minority constitutes more than In 1938, a National Mobilization Law was 80% of the total number of non citizens in passed placing all material and human re­ Japan. sources in Japan and Korea under the com­ plete control of the government. To facili­ tate this mobilisation a policy of Japanese Historical Background to the and Korean ‘oneness’ (Naisen Ittaika) was Migration of Koreans to Japan followed. Under this policy the Korean lan­ guage was not allowed to be taught in Japan annexed Korea in 1910 and ruled schools, all Korean language newspapers it through a colonial government. The colo­ were banned and Japanese was made the nial policy of Japan was one of complete national language of Korea. Along with this subjugation and assimilation which resulted a forced mobilisation of labour was initiat­ in very harsh policies. In particular the agri­ ed. In 1939, the Japanese government au­ cultural policy of the colonial government thorised the compulsory transfer of 85,000 caused massive dislocation and hardship to Koreans to Japan. With the intensification the Korean peasants. In 1911 a land survey of the war, the labour shortage became so was begun under which the peasants were acute that the mobilisation measures were required to register their lands with the au­ further strengthened. During this period thorities. The procedure for registration more than one million Koreans were for­ was complex, but the time provided was cibly transferred to Japan. only 30 days. Lands that were not proper­ At the same time there was a parallel ly registered became the property of the conscription of Koreans into Japanese mili­ colonial government. The result of the land tary service. The Japanese government issu­ survey was that the colonial government ed a special military order regarding volun­ came to control 10% of all farm land and teers in February 1938, a special naval or­ 60% of the forests. Further, high rents der in May 1943, and finally in 1944 a con-

1) .For the factual information in this commentary the ICJ is indebted mainly to a paper written by Mr. Choung II Chee, lecturer in international law at Seoul National University, Republic of Korea, and to a Master’s thesis by Soon-Chee Park, published by the Institute for Asian/Pacific Studies, University of San Francisco. scription law. By the end of the Pacific war programme was carried out under the or­ 364,186 Koreans had been conscripted in­ ders of the Allied Commander. When both to the Japanese armed forces. According to official and unofficial repatriation ended, one estimate there were nearly 200,000 approximately 600,000 Koreans remained Korean casualties in the war, which does in Japan. In November 1946, the Allied not include the estimated 30,000 to Commander announced that 50.000 Korean casualties in Hiroshima and Nagasaki. “The Koreans who refuse to return to Under the mobilisation drive even wom­ their homeland under the repatriation en were not spared. It is alleged that nearly programme will be considered as retain­ 200.000 women were mobilised and that ing their Japanese nationality, until such of these 50,000 to 70,000 young girls were time as an officially established Korean sent overseas to serve the needs of Japanese government will recognise them as Ko­ soldiers. rean people.”

Evolution of the Legal Status of The Alien Registration Order the Korean Minority in Japan On May 2, 1947 Japan enacted the The Korean minority living in Japan Alien Registration Law under which the prior to 1945 enjoyed almost all the rights Koreans were made to register as aliens. of ethnic Japanese including political Article 11 of the Law stated rights, which were denied to Koreans living in Korea2. As from 1925 they were permit­ “The Taiwanjin (Formosans) whose sta­ ted to vote, and a Korean was elected to tus is determined by the Minister of the the National Parliament in 1932 and 1937 Interior and Choenjin (Koreans) shall be from the Fukagawa district of Tokyo. By regarded as aliens for the time being for the end of the second world war, there the purpose of administration of this were 410 Koreans holding civil service law.” posts in Japan. Compulsory military service was imposed on them in 1944. Thus this law, without giving a hearing It is clear, therefore, that the members of to the Koreans, classified them as aliens the Korean minority were regarded as Japa­ and arbitrarily deprived them of the rights nese citizens and, as will be seen, this was they were enjoying as Japanese citizens. confirmed by subsequent legislation depriv­ Articles 7 and 8 of this order required ing them of their Japanese nationality. all citizens to inform the authorities within 14 days of any change in the particulars of their registration, such as change of address The Koreans in Occupied Japan, or occupation. Article 10 prescribes that 1945 -1 9 5 2 the alien should carry a registration card and present it to the competent authorities After the defeat of Japan, a repatriation when so requested. Those who violated

2) Yoshio Morito, “The evolution and current state in the treatment of Korean residents in Japan”. Study of Legal Affairs, vol. 3, Report 43, July, 1955. Published by the Institute for Legal Re­ search, Ministry of Justice. these articles were subject to terms of im­ ality on the date of the first coming into prisonment for up to six months or to a force of the Treaty of Peace and who fine of up to a thousand yen. The local has resided continuously in Japan from governor had the right to deport those before September 2, 1945 until the ef­ aliens who committed crimes and were sen­ fective date of this law, (including the tenced. children of such persons who were born In 1952, after the Peace Treaty, the during the period from September 3, terms of the Alien Registration Order were 1945 to the effective date of this law) made more stringent. The maximum term may continue to reside in Japan without of imprisonment was extended to one year acquiring the status of residence pend­ and the maximum fine was raised to ing the determination of his or her sta­ 30,000 yen. The law was further revised in tus of residence and period of stay as 1955, requiring finger prints on the regis­ prescribed by law...” tration card of all aliens more than 14 years old. Even today Koreans must carry This law postponed the question of sta­ the card at all times and they are required tus of the Koreans to a future date and also to show it upon request to competent made no mention of the children of such Japanese authorities, who include not only persons born subsequent to the law. police and immigration officials but also Circular Number 438 and Law 126 con­ public safety officials. firmed the denationalisation of the Ko­ reans that was implicit in the 1947 Alien Registration Law. To the Koreans it was an Peace Treaty and the Koreans extreme and arbitrary step. They had been hoping to get their status determined un­ The Treaty of Peace between Japan and der the Peace Treaty. However, Japan took the forty-eight allied powers was signed in the position that as renunciation of Japan’s San Francisco on September 8, 1951, and sovereignty over Korea necessarily includes came into force on April 28, 1952. renunciation of Japan’s sovereignty over Nine days before this date the Japanese the Koreans in Japan, they should accord­ government issued circular notice no. 438 ingly be deprived of their Japan nationality. which stated This argument ignores the fact that the Korean minority had acquired Japanese na­ “Since Korea and Taiwan are going to tionality and were therefore in law no lon­ be separated from the territory of Japan ger Koreans. It does not follow that, on the on the day when the peace treaty comes creation of two Korean states after the into force, all Koreans and Taiwanese war, the former Koreans (and still less their including those residing in Japan shall children born in Japan) should automatical­ lose Japanese nationality.” ly lose their Japanese nationality, with the consequence that many of them would be­ With the coming into effect of the Peace come stateless persons unless and until Treaty and the restoration of sovereignty, they opted to become, and were accepted the Japanese government enacted Law 126. as, Korean nationals. This gave a restricted residence status to However, the Japanese government's the Koreans by stating that contention was upheld by the Supreme Court of Japan in the case of M. Kanda v. “any person who loses Japanese nation­ State of Japan, in 1961. The case involved a Japanese woman’s ample in 1956 the Federal Republic of claim to Japanese nationality after her mar­ Germany granted German nationality to all riage to a Korean resident in Japan. The Austrians who had resided in the Federal court ruled that her marriage to a Korean Republic from April 26, 1945. Similarly caused her to lose Japanese nationality when Indonesia became independent from since the Koreans had lost their Japanese the Netherlands, the Netherlands govern­ nationality after the peace treaty. ment decided that all those Indonesians The decision of the Japanese Supreme who were not born in Indonesia and who Court may be contrasted with a decision of were residing in Netherlands could retain the Administrative Court of the Federal their Netherlands nationality if they chose Republic of Germany3 on a similar point. to do so. In the German case, an Austrian who be­ came a German national during the annexa­ tion of Austria and who continued to live Treaty between Japan and in Germany after Austria became once Republic of Korea again an independent state, claimed to be entitled to retain her German nationality. Law 126, referred to above, used the The court held that phrase "pending the determination of his or her status of residence... as prescribed “... there was no rule of international by law.” While the Korean residents in Ja­ law which provided for the automatic pan were waiting for a final settlement of loss of a person’s nationality as a result their status, Japan, to their surprise, com­ of territorial changes affecting the terri­ plicated their problem by entering into a tory in which that person had lived, and treaty with the Republic of Korea in 1965 that, in any event even if there was such recognising it as the only legitimate govern­ a rule, it could not apply to persons like ment in the Korean peninsula. her (the petitioner) who were not domi­ At the time of this treaty a separate ciled in the seceding state on the date of agreement was reached on the legal status secession, and that accordingly she was of Korean residents in Japan. Under the entitled to German nationality.” agreement, Japan agreed to grant Korean residents in Japan permanent residence The German court made a distinction provided they met certain conditions. Two between ‘persons who are within the important conditions to be met were that sphere of power of the new state and per­ they must have resided in Japan since Au­ sons who remain under the sovereigney of gust 15, 1945, and that they must become the old state’. This distinction was not nationals of the Republic of Korea before made by the Supreme Court of Japan when they could apply for permanent resident deciding the nationality of the Koreans. status. The policy of the Japanese government The second condition created the com­ and the Supreme Court decision is also not plication because it meant that only those in conformity with the more humane ap­ ‘Koreans’ who had previously registered as proach followed by other governments in ‘Konkoku’ i.e. nationals of the Republic of dealing with their alien residents. For ex­ Korea, or were now willing to adopt 'Kon-

3) Nationality (Secession) case, vol. 21. International Law Report, 1954. Ed by H Lauterpacht, p. 175. koku’ nationality could acquire the right to of Korea and the Soviet Union, they are permanent residence in Japan. Originally left without any government to protect the Alien Registration Forms had two col­ their interests. umns one for ‘chosen’ i.e. Koreans and one for ‘Konkoku’. After the treaty with the Republic of Korea the Japanese govern­ Japan’s Policy and ment said that the word ‘chosen’ referred International Standards to Koreans in general and had nothing to do with nationality. It is for each state to determine its poli­ The result of this policy was that in cy on the question of nationality, but such 1971, there were nearly 229,545 Korean determination is subject to rules of interna­ residents who were unable to apply for per­ tional law and other norms. In the words manent residence because they did not of Judge Lauterpacht4 choose to become nationals of the Repub­ lic of Korea. Legally they have no status. "It is true that international law con­ They are stateless persons. They have no cedes to states the right to regulate mat­ possibility of acquiring a North Korean ters of nationality. But a discretion passport, which in any case would not be which a state enjoys in this matter is recognised by Japan. As stateless persons, subject to general principles of law, to they cannot travel to any other country legitimate rights of other states, and to nor to their homeland. They are thus con­ those rights of human personality which demned to remain in Japan, not only de­ international law was increasingly recog­ prived of their nationality, but deprived nizing even before the charter of the even of their status of permanent residence. United Nations gave recognition to fun­ damental human rights and freedoms.”

Koreans in Sakhalin Island Hence the actions of the Japanese gov­ ernment have to be weighed in the light of The tragic aspect of Japan’s policy is ap­ accepted international standards. The Uni­ parent when the fate of the Koreans in versal Declaration of Human Rights, Arti­ Sakhalin Island is considered. They were cle 15 states that brought to the island when the southern part still formed part of the Japanese ter­ “1. Everyone has the right to a nationali­ ritory. After the second world war, this ter­ ty- ritory became part of the Soviet Union and 2. No one shall be arbitrarily deprived the Koreans who were there were not repa­ of his nationality nor denied the right triated to Japan. At that time approximate­ to change his nationality.” ly 50,000 Koreans were living in Sakhalin and of them 25,000 opted for North Ko­ In the preamble to the San Francisco rean nationality, 13,000 became Soviet na­ Peace Treaty, Japan declared her intention tionals and about 4,500 were left stateless. "to strive to realize the objectives of the The Japanese government has refused to Universal Declaration of Human Rights”. act on their behalf and since there are no Apart from the Universal Declaration, a diplomatic relations between the Republic number of international instruments have

4) H. Lauterpacht. International Law: Collected papers: Law of Peace, vol. 3, p. 391. been adopted under the auspices of the The Social Consequences of U.N. with respect to questions of nationali­ Deprivation of Nationality ty, statelessness and refugees. In March 1948, the Economic and So­ In addition to the sense of insecurity cial Council, in its resolution 116D recog­ and the feeling of being second class citi­ nised that the problem of stateless persons zens, deprivation of Japanese nationality “demands... the taking of joint and sepa­ has caused the loss of social rights to the rate action by member nations in coopera­ Korean minority in Japan, as well as their tion with the United Nations to ensure that political rights. everyone shall have an effective right to na­ Some of the welfare laws have nationali­ tionality”. ty provisions. These include:

The Convention relating to the status - The Law for Aid to the Family of De­ of refugees came into force on 22 April ceased and Disabled Veterans, of 1967, 1954 and 89 countries, including Japan, - The Law for Special Assistance to have ratified it. This Convention makes it Wounded Veterans, of 1965 and an obligation for the contracting parties to - The Retirement Pension Law for the accord to refugees treatment as favourable Public Servants, of 1923, which was as possible and, in matters of welfare, amended in 1977. public education, public relief, labour le­ gislation and social security, the same Thus, Koreans who, at a time when they treatment as accorded to the nationals. were Japanese citizens, volunteered for or Further it states that the contracting states were conscripted into military service in shall as far as possible facilitate the assimi­ the Japanese forces, or who were engaged lation and naturalisation of refugees. They in public service, are now deprived of the shall in particular make every effort to benefits which they had earned by their expedite naturalisation proceedings and service. to reduce as far as possible the charges and costs of such proceedings. The Convention came into force on 6 June, 1960. Japan is Discrimination against not among the 32 countries which have Koreans in Japan ratified it. The deprivation of nationality and other The Convention on the reduction of official policies tend to increase the social statelessness came into force on 13 Decem­ discrimination inflicted on the Koreans by ber 1975. Ten countries have ratified it, the Japanese population. but these do not include Japan. Under this The earlier Japanese colonial policy was Convention the contracting states under­ aimed at creating a permanent inferior class take to grant nationality to a person born of citizens who would be trained to per­ in its territory who would otherwise be form menial tasks for their Japanese mas­ stateless. ters. Consequently the Koreans in Japan It is to be regretted that Japan has not were, and to a large extent still are, dis­ become a party to these modern develop­ criminated against in many spheres of life. ments in international law, particularly in Equality in jobs, housing or welfare is not view of the social consequences resulting assured. Usually the Korean worker is un­ to the Korean minority. derpaid in comparison with the Japanese worker. This discrimination may be illus­ bly, deserves mention. trated by the case of Pak Chong Sok Pak Article 8 of the draft declaration con­ who was a 'Korean' born and educated in tains, inter alia, the following economic Japan. When he sat for the Hitachi Compa­ and social rights ny’s entrance examination in his own name he failed eleven times. But when he sat for "The right to just and favourable condi­ the same examination with a Japanese tions of work, to equal pay for equal name, he was successful. This was later dis­ work, and to just and fair remuneration. covered and he was dismissed. He challeng­ The right to public health, medical care, ed the action of the Company in the courts social security, social service and educa­ and judgment was given against the Compa­ tion, provided that the minimum re­ ny. The court found that the Company had quirements for participation in national an internal document discriminating racial­ schemes are met and that undue strain is ly against Koreans, and Mr. Pak was rein­ not placed on the resources of the stated in his job. This case came to light state.” but there are many others that go unchal­ lenged. Attitudes of discrimination are usually Conclusion deep seated and are not easily removed simply by changing laws. It is to be hoped, In view of the strong trend towards pro­ however, that the Japanese government tection of non citizens and abolition of will help to remove social discrimination statelessness, it is to be hoped that Japan by adopting a more positive and generous will give serious consideration to restoring attitude towards the Koreans whom they Japanese nationality to the 200,000 Ko­ brought to their country, and to their de­ reans who, not wishing to assume Korean scendants. nationality, have become stateless persons, In this context the draft “Declaration of bearing in mind that the great majority of the Human Rights of individuals who are them were born in Japan. At the very least not citizens of the country in which they this Korean minority should be accorded live”, at present under consideration by a all social security and other welfare rights Working Group of the UN General Assem­ enjoyed by ethnic Japanese. Unesco’s Special Committee on Human Rights: An Unfortunate Case

On October 21, 1981, the International and Cultural Rights and on Civil and Politi- Commission of Jurists submitted a com­ tical Rights, the American Declaration of munication to Unesco’s Special Committee the Rights and Duties of Man and the on Human Rights on certain violations of Unesco Convention on the Prevention of the rights of a university lecturer in Argen­ Discrimination in Education (December tina, Dr. Eduardo Federico Llosa. These 1960). These related, inter alia, to viola­ violations fell within the competence and tions of his defence rights and the legality purview of Unesco as, according to infor­ of his trial. However, the ICJ made clear mation reaching the ICJ, Dr. Llosa, a well- that the issue which it was referring to the known personality in the field of educa­ Committee was the fact that when he had tion, science and culture, had been, and completed his six year term of imprison­ continued to be, persecuted mainly be­ ment, he was not released but continued to cause his political views were contrary to be held under indefinite administrative de­ those of the government. His case exempli­ tention, for which no remedy or defence fies the way in which academic freedom in was available. It was argued that this con­ the universities, cultural development and stituted a violation of his right not to be scientific research is restricted in Argen­ punished twice for the same offence, and tina. it was also submitted that Dr. Llosa’s con­ Dr. Llosa is a citizen of Argentina, a tinued. detention was arbitrary and consti­ psychiatrist, philosopher and theologian, tuted an illegal use of the exceptional pow­ who worked as a lecturer at the San Luis ers granted to the Executive by the Consti­ National University. He was politically ac­ tution of Argentina during a state of siege. tive in the Peronist Movement in addition Article 23 of the Constitution grants to a to being a practicing Catholic. person detained under a state of siege the He was arrested in May 1975, and there right to opt to leave the country rather are reports that he was tortured and ill- than continue in detention. Dr. Llosa had treated. Two charges were brought against attempted to exercise that right and his him. On the first he was sentenced to three wife, who was resident in Switzerland, had years' imprisonment for "illegal associa­ obtained a residence visa for him from the tion” and on the second he was sentenced Swiss authorities. Dr. Llosa’s request, how­ to three years and six m onths’ imprison­ ever, was turned down without explana­ ment for a breach of the national security tion. law. Both penalties were combined to total In November 1981 and February 1982 a single sentence of six years. Dr. Llosa the ICJ submitted further particulars of the completed his term on May 8, 1981, but case to Unesco. His family meanwhile insti­ despite this he was not released. tuted habeas corpus proceedings to obtain The ICJ’s communication referred to his release, but these were rejected. violations of various articles of the Univer­ Unesco’s Special Committee on Human sal Declaration of Human Rights, the Inter­ Rights met in April and May 1982 and de­ national Covenants on Economic, Social clared the ICJ’s communication “inadmis­ sible” under the provisions of Article 14, V and it is clear that no such evidence was re­ a of Resolution 104/EX/3.3., which states quired since the material facts were admit­ that communications may be declared in­ ted by the Argentine government. admissible when "relevant evidence” is not Almost simultaneously with the Unesco supplied. In adopting its decision on inad­ decision, namely on June 23, 1982, this al­ missibility, the Committee took into ac­ leged terrorist, Dr. Llosa, was released by count, as it informed the ICJ in its letter of the Argentine authorities. This is difficult 11 June 1982, the fact that the Permanent to reconcile with the statement made only Delegate of Argentina to Unesco had sub­ some days or weeks earlier by the Argen­ mitted a letter and subsequently made a tine representative to Unesco that it was statement to the effect that Dr. Llosa had impossible to release him as he was an ex­ been arrested in May 1975, "because he tremely dangerous person, and that the gov­ was a militant of an extremist movement, ernment of Argentina felt obliged to con­ the Montoneros, and because he had par­ tinue his detention in order to protect third ticipated in acts of aggression against the countries prepared to grant him asylum. institutions and property of the nation”. The procedure of the Special Commit­ He also stated that Dr. Llosa had indeed tee for receiving and processing individual completed his term but, since he was a communications would, it is suggested, be “terrorist”, he had not been allowed to improved if rules similar to those already leave the country in exercise of the right of existing and applied in other intergovern­ option under Article 23 of the Constitu­ mental organisations were to be establish­ tion, and that he was being kept in admin­ ed. For example, the procedures of the Hu­ istrative detention “at the disposal of the man Rights Committee, which functions National Executive Power, under the provi­ under the International Covenant on Civil sions governing the state of siege”. The del­ and Political Rights, as well as those of the egate also stated that the government of Inter-American Commission on Human Argentina could not be unduly generous as Rights, provide that, just as all information it had to protect the security, not only of from the author of a communication is the state of Argentina, but of the state brought to the attention of the state con­ which may accept him...” He added that cerned, so all observations and comments Dr. Llosa had not been arrested or detain­ made by the government on the communi­ ed because of his activities as a psychiatrist, cation — whether on matters of form or lecturer or researcher, but because of his substance, on legal or factual aspects of the subversive acts. case - are referred to the author of the The International Commission of Jurists communication so that he can in turn sub­ was given no opportunity to reply to these mit comments and observations upon them. assertions by the Argentine representative, Audi alterem parte is an elementary who appears to have adduced no evidence principle of justice and applies just as much to support his allegations. However, by his to a Plaintiff’s right to challenge allegations statement he admitted explicitly that Dr. or arguments presented by the defence as Llosa had served his full sentence and was to the defendant’s right to challenge allega­ nevertheless still imprisoned under admin­ tions and arguments of the Plaintiff. istrative detention, and he thus fully sub­ Had the Special Commitee of Unesco stantiated the factual basis of the complaint. proceeded as suggested above, it would per­ The ICJ was at no time asked to provide haps have arrived at a more convincing con­ any supporting evidence for its allegations, clusion. ARTICLES

Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India

by Dr Upendra Baxi*

Introduction tural labourers who fall prey to faulty me­ chanization, women who are bought and The Supreme Court of India is at long sold, slum-dwellers and pavement-dwellers, last becoming, after 34 years of the Repub­ kins of victims of extrajudicial executions lic, the Supreme Court for Indians. — these and many more groups now flock The transition from a traditional captive to the Supreme Court seeking justice. agency with a low social visibility into a lib­ They come with unusual problems, erated agency with a high socio-political never before so directly confronted by the visibility is a remarkable development in the Supreme Court. They seek extraordinary career of the Indian appellate judiciary.1 remedies, transcending the received notions For the present, and the near future, of separation of powers and the inherited there is little prospect of the Court revert­ distinctions between adjudication and legis­ ing to its traditional adjudicatory posture lation on the one hand and administration where people’s causes appear merely as is­ and adjudication on the other. They bring, sues, argued arcanely by lawyers, and de­ too, a new kind of lawyering and a novel cided in the mystery and mystique of the kind of judging. inherited common-law-like judicial process. They also bring a new kind of dialogue People now know that the Court has con­ on the judicial role in a traumatically stitutional power of intervention, which changeful society.2 can be invoked to ameliorate their miseries The medium through which all this has arising from repression, governmental law­ happened, and is happening, is social action lessness and administrative deviance. Un­ litigation***, a distinctive by-product of dertrial as well as convicted prisoners**, the catharsis of the 1975—1976 emergency. women in protective custody, children in What emerged as an expiatory syndrome is juvenile institutions, bonded and migrant now a catalytic component of a movement labourers, unorganised labourers, untouch­ for “juridical democracy”3 through inno­ ables and scheduled tribes, landless agricul­ vative uses of judicial power.

* Vice-Chancellor, South Gujarat University, India. ** In India, ‘undertrial prisoners' and 'undertrials' refer to persons awaiting or undergoing trial. *** Throughout this paper, I use the term “social action litigation” (SAL) in preference to the more voguish term “public interest litigation” (PIL). Some Contributory Influences — tras (long marches) through villages to Judicial Populism solve people’s grievances. They sought, through ‘camps’ and lokadalats (people’s A striking feature of SAL is that it is courts), to provide deprofessionalized jus­ primarily judge-led and even judge-induced. tice. They also in their extra-curial utter­ And it is in turn related to juristic and judi­ ances, called for a total restructuring of the cial activism on the High Bench.4 Many legal system, and in particular of the ad­ justices have, on and off the bench, advo­ ministration of justice.9 Although they cated active assertion of judicial power to stopped short of overtly legitimating the ameliorate the miseries of the masses. Al­ emergency regime, they remain vulnerable though the active, almost explosive, asser­ to the charge of acting as legitimators of tion of judicial power in the aid of the dis­ the regime. Be that as it may, many Su­ possessed and the deprived began in the preme Court and High Court justices did aftermath of the emergency, judicial pop­ systematically become people-prone in a ulism had become pronounced even before manner conducive to the growth of judicial the emergency, particularly in the great de­ populism. cisions in Golak Nath5 and Kesvananda In the immediate aftermath of the emer­ Bharati.6 In these decisions, familiar to gency, populist rhetoric and stances decid­ every student of constitutional politics of ed many a vital issue of constitutional poli­ India, justices who wished Parliament to ty.10 Judicial populism was partly an aspect have unbridled power to amend the Consti­ of post-emergency catharsis. Partly, it was tution invariably sought to justify it in the an attempt to refurbish the image of the name of, and for the sake of, the ‘teeming court tarnished by a few emergency deci­ millions’ of impoverished Indians.7 They sions and also an attempt to seek new, his­ sought to mould constitutional interpreta­ torical bases of legitimation of judicial tion and doctrine in unmistakably and power.11 Partly, too, the Court was re­ emotionally surcharged people-oriented sponding, like all other dominant agencies ways. of governance, to the post-emergency eu­ Populist rhetoric is writ large in many phoria at the return of liberal democracy. judicial opinions, on both sides, in these landmark decisions. The Social Action Groups — Press Nexus Emergency Populism One such institution was the press, During the 1975-76 emergency, legal which for the first time since Independence aid to the people was one of the key points strove consistently to expose governmental of the 20-point programme launched by In­ lawlessness and social tyranny through in­ dira Gandhi, to which Justices Krishna Iyer vestigative journalism of a high order. and Bhagwati, themselves deeply commit­ This print media transformation enabled ted to the spread of the legal aid move­ activist social action groups (SAGS) to ment,8 readily responded. They led a na­ elevate what were regarded as petty in­ tionwide movement for the promotion of stances of injustice and tyranny at the local legal services. They organised legal aid level into national issues, calling attention camps in distant villages; they mobilized to the pathology of public and dominant many a high court of justice to do padaya-group power. SAGS found thus a new a]]y in their struggle for social development and privacy, and the right to legal services to change. The SAGS-press nexus provided a the poor.17 Prisons and places of deten­ fertile setting (as we shall note later) for tion, theatres of torture and terror, receiv­ the birth and growth of the SAL. ed high priority attention, especially at the At the same time, the press became a hands of Justice Krishna Iyer who develop­ medium of evaluation of how the domi­ ed, on the whole, a new normative regime nant institutions of the government "col­ of rights and status of prisoners and dete­ laborated” against the people.1* The role nues.1” The insistence that the states be­ of judges and courts was integral to this have in good faith and with utmost reason­ agonized reappraisal. And the Court, and ableness in dealing with citizens and per­ some justices, became exposed to merciless sons grew apace. Principles of administra­ professional critiques of the Court’s emer­ tive law met with urgent, painstaking and gency performance.13 In this environment, thorough revisions.19 The doctrinal innova­ an Open Letter to the Chief Justice of In­ tions in their exuberance and normative dia written by four anguished law teachers, impact provided further impetus to SAL. chastizing the Court for its reversal of the conviction of two police persons for raping a tribal girl in the police station led to a na­ Dramatis Personae of SAL tionwide mobilization of women’s organi­ sations and groups. Unexpectedly, it cul­ By 1979 it was clear to the discerning minated in an unprecedented march by members of the Bar and to social activists women’s organisations to the Supreme that the Court was indeed in search of a Court of India demanding a review of the new kind of constitutional litigation.20 decision, which it ultimately declined.14 The first dramatic opportunity was pro­ All this enhanced the visibility of the vided by a Supreme Court advocate, Ms. Court and generated new types of claims Kapila Hingorani, who filed a writ based on for accountability in the wielding of judi­ a series of articles in a national daily, The cial power. And this deepened the tenden­ Indian Express, exposing the plight of Bi­ cy towards judicial populism. Justices of har undertrial prisoners, most of whom had the Supreme Court, notably Justices Krish­ served long pre-trial detention, indeed to a na Iyer and Bhagwati, began converting point that they had as it were, sentences to much of constitutional litigation into SAL, their credit.21 In 1980, two professors of through a variety of techniques of juristic law sent a letter to the editor of the Indian activism.15 The Court began to expand the Express describing the barbaric conditions frontiers of fundamental rights and of na­ of detention in the Agra Protective Home tural justice. In the process, they rewrote for Women the basis for a Writ Petition un­ many parts of the Constitution. The right der Article 21.22 This was followed by a to life and personal liberty under proce­ similar petition for Delhi Women’s Home, dure established by law in Article 21 was by a third-year law student in Delhi Law now converted de facto and de jure into a Faculty and a social worker.23 A law teach­ due process clause contrary to the inten­ er on a social science research fellowship tion of the makers of the Constitution.16 successfully brought to completion the This expanding right was soon to encom­ trial of four young tribals, who grew up in pass within itself the right to bail, the right a sub-jail awaiting trial.24 Three journalists to speedy trial, the right to dignified treat­ after an expose of a thriving market in ment in custodial institutions, the right to which women were bought and sold as chattels, filed a writ demanding prohibition brings them on the board of the Court, of this practice and immediate relief for converting these letters into writ petitions. the victims through programmes of com­ Justice Bhagwati has gone so far as to in­ pensation and rehabilitation.25 In the same vite members of the public and especially year, a legal correspondent of The States­ public spirited citizens to bring to his no­ man brought to the notice of the Court the tice violations of basic human rights, as em­ inhumane conditions Of detention of ‘Na- bodied in the Constitution, for suitable ju­ xalite’ prisoners in the Madras Jail, chal­ dicial action. lenging in the process the entire edifice of In habeas corpus petitions, the Court the Prisons Act, 1892.26 The special legal usually acts on letters written by or on be­ correspondent of the Hindustan Times also half of the detenue. But Justice Bhagwati brought to the Court a social activist’s re­ has generalized this technique so radically port on forced importation of 75 young that it could be justly said that he made a children for homosexual relations in Kan­ momentous social invention - namely, the pur Jail.21 In early 1982, social workers of epistolary jurisdiction. After experimenting the Gandhi Peace Foundation, assisted by with it for some time, he was able, too, to the author, filed writ proceedings against fully legitimate the epistolary jurisdiction the state of Madhya Pradesh for allowing by imaginatively extending the law of iocus bonded labour to be paid wages in kind in standi in constitutional litigation in the the form of Kesari Dal, a toxic substance High Court Judge’s Case.31 The judge-led causing incurable lathyrism among the and judge-induced nature of SAL renders it bonded labourers.28 A newly formed asso­ strikingly distinctive. ciation of law teachers has brought writ proceedings against the same state for in­ human torture of young prisoners in Chat- The Social Substance of SAL tarpur Jail.27 This random listing illustrates the new Not thus merely in the style and process brand of socio-legal entrepreneurs, who ap­ of generation of the SAL is the contempo­ proach the Court pro bono publico on rary Indian experience unique. The sub­ their own, without much support from the stance of the SAL in India is also distinc­ Bar (and often at its chagrin) and with tive to its contemporary condition. their social commitment as their only asset. Much of SAL is concerned with combat­ Of about 75 SAL writs filed from 1980 ing repression and governmental lawless­ to 1982, a preponderent number have been ness. Only, so far, in rare instances does the filed by social activists rather than individ­ SAL concern assertion of new constitution­ ual lawyers or lawyer groups.30 And this al rights.32 The other distinctive feature of has been made possible by a rather unique SAL proceedings is that all of them are Ar­ development. Much of SAL in this period ticle 32 petitions; that is, they are writ pro­ has arisen out of letters written by individ­ ceedings for the enforcement of the funda­ uals to Justice P.N. Bhagwati in his twin mental rights. The Supreme Court is em­ capacities as a Justice of the Supreme powered and some would say rather obli­ Court and the Chairperson of the National gated, to duly consider them.33 Committee for the Implementation of the Both these features lend a special com­ Legal Aid Schemes. The letters usually rely plexity to the SAL in India. On the one on newspaper and periodicals investigative hand, they impart high visibility and exalt­ reportage. More often than not, the Justice ed status to the cause; on the other hand, they present some specific problems for Justice Bhagwati was partly addressed to the Court, since all the complaints of gov­ this problem. Once a letter received by him ernmental repression and lawlessness raise was treated by him as a writ petition, he disputed questions of fact which the Court ensured that it came on his board. His does not as a matter of practice normally Court No. 2 has, through this process, the handle and which cannot be wholly satis­ largest number of SAL matters. While this factorily dealt with by 'affidavit evi­ result is welcome to many a SAL petition­ dence’.34 We revert to these problems later. er, it carries its own costs. First, it indirect­ For the moment, it would suffice to em­ ly deprives the Chief Justice of India of his phasize this distinct profile of the SAL in undoubtedly important role in docket India. SAL thus compels judges and law­ management and allocation of work to his yers increasingly to take human suffering companion justices. This has clearly, its seriously.35 own implications on inter se relationship among justices, including perhaps the growth of factionalism on the Court. Sec­ Old Structures, New Concerns ond, many justices are deprived by this re­ sult of epistolary jurisdiction of much need­ The Court's handling of SAL is at the ed exposure to SAL; in the process, the present in an experimental phase. Much of learning capacity of the Court as an institu­ the future of the SAL ultimately depends tion is constricted. Third, the existing over­ on the organisational learning capacity of load on Court No. 2 is accentuated, causing the Court in dealing with novel and com­ problems of priority in handling. If high plex problems. And this capacity is affect­ priority is accorded to SAL at the cost of ed by existent judicial thoughtways and other matters, irate leaders of the Bar (as is styles of decision-making. happening) are bound to seek to discredit The most crucial general factor affect­ SAL. If such priority is not accorded, SAL ing, for weal or woe, the career of SAL is matters continue to drag on, like others. the fluctuating bench-structure. The bench And this (as is already happening) begins to which admits the writ petition is not neces­ raise serious questions concerning the im­ sarily the same, unless there is a constitu­ pact of judicial intervention for such tion bench of five justices, as the one hear­ causes. ing it. Even if the presiding judge remains On the other hand, most SAL matters common, his companion justices may dif­ do require, in their early phases, careful ju­ fer, often from one hearing to the next. dicial handling. SAL is distinctive in that it The presiding judge, as well as the SAL pe­ does not raise the problems of validity of a titioner (whether in person or through law on the ground that it violates funda­ counsel) thus have to bear additional bur­ mental rights. The heart of the SAL pro­ dens of persuasion, more so because not all ceedings is rather that gross violation of justices are as yet equally attracted by or fundamental rights has actually occurred in committed to the SAL.36 The difficulties the exercise of state powers, either by com­ are reinforced when the presiding judge is mission (repression) or omission (lawless unsympathetic to SAL or, even if mode­ disregard of statutorily or constitutionally rately sympathetic, is daunted by the prob­ imposed duties). The facts relied upon ini­ lems of evidence and of shaping new types tially by the SAL petitioner, in most cases, of reliefs. are as stated in the press. And the SAL pe­ Epistolary jurisdiction as developed by titioner is himself often not the victim of repression or lawlessness, but a public citi­ serve less time in pretrial detention and not zen. in any event more than the time which Invariably, therefore, the Court has to they would have served had they been tried satisfy itself about the factual foundations and convicted! These and many examples of the proceedings; and this requires con­ show that the Court is undertaking those stancy of the Bench. Justice Bhagwati’s ini­ very administrative decisions, which the tiative in retaining many SAL matters with state should have taken in the first place.38 him seems to proceed on the appreciation In the meantime, the ultimate constitution­ of this requirement. On the other hand, it al issues patiently await their turn. imprints the SAL with the insignia of an in­ Doing something about these questions dividual justice, whereas what is needed in is comparatively far more difficult than days to come is a collective imprimatur of compelling the state to do this or that un­ the Court for the new litigation. The future der the creeping jurisdiction. It is difficult of SAL depends, in great measure, on a because it involves viable momentous nor­ satisfactory resolution of this dilemma. mative innovations in the lawyer's law.39 Like the technique of epistolary juris­ Some of these have already been attained: diction for its initiation, SAL also requires for example, expansion of locus standi,40 ‘creeping’ jurisdiction for its progress. Not whittling down of the range of documents a single leading SAL matter has yet result­ for which government may claim privi­ ed in a final verdict; the fundamental issue lege,41 devising newer ways of fact-finding of how the Court should make the state in the SAL-type proceeding42 and devising and its agencies fully liable for deprivations prospective inhibitions for potential recur­ or denials of fundamental rights still re­ rence of rights-violations in the same mains to be authoritatively answered. It is arena.43 All this is noteworthy only so long the task of the SAL entrepreneurs to en­ as the underlying constitutional issues of sure that these issues ultimately reach de­ citizen’s rights against the state for viola­ sired results. But, in the meantime, the tion of fundamental rights are faced and Court rules through interim directions and resolved. orders. Bit by bit, it seeks improvement in These issues in the final analysis relate the administration, making it more respon­ to exposing the State to liability for wide- sive than before to the constitutional ethic ranging compensatory arrangements for and law. violations of fundamental rights of the This kind of creeping jurisdiction typi­ people. cally consists in taking over the direction And yet the challenge of devising appro­ of administration in a particular arena from priate compensatory arrangements for such the executive. For example, the blinded violations is very daunting. How do we undertrials37 receive medical examination compensate young persons manacled for at New Delhi and their expenses and those long years in pre-trial detention for their of their relatives are borne by the state un­ enforced loss of childhood and deprivation der interim orders of the Court. Conditions of all sociability? How do we compensate in Agra and Delhi Protective Homes for the blinded undertrials? Or the ones who Women begin to steadily improve, again have been inhumanly tortured? What does through a series of interim administrative a court do, under fundamental rights juris­ orders. Fresh directions are issued by the diction, when it finds young persons Court to the state of. Bihar, from time to thrown in jail for no other reason than fa­ time, to ensure that undertrials at least cilitating homosexual assaults? What relief may the Court provide in situations of ty of impugning their evidentiary value. extra-judicial executions? Creeping jurisdic­ This is made possible by the device of mul­ tion is an apposite strategy for gradualist tiple investigations; the state sets up many institutional renovation; it furnishes no an­ panels, one after another, and often con­ swers to the questions raised by the victims sents in addition to an investigation by the of repression and lawlessness, past, present Central Bureau of Investigation.45 When, or future. Inability to forge onerous pat­ despite all this, the state is likely to lose terns of liability of the state for gross viola­ the proceedings in favour of the SAL peti­ tions of rights may well deprive the SAL of tioners, it proceeds to give concessions and its future. undertakings, thereby avoiding a decision on the merits.46 And the Court, too, interested more in Evidentiary Problems the inhibition of future illegalities is ready to develop a jurisprudence of the SAL ex- Accomplishing such a jurisprudential concessionis. The Court, rightly refuses to feat calls not just for vision and commit­ view the SAL proceedings as adversarial in ment of a high order on the part of jus­ nature; it likes to foster such collaboration tices; it also requires careful attention to between the SAL litigant and the state as the lowly details of how facts about the would result in sound institutional arrange­ violations of rights are proved. Without ments avoiding recurrent injustice; and this, no jurisprudence of liability of the thus avoiding in the long term SAL-type state for constitutional violations can sur­ confrontation between the public-spirited vive for long. “We accept the principle of citizen and the state. This technique offers compensation for rights-violation”, the a neat way out of the burdens of proof on state will say then, but it will immediately questions of fact; therein probably lies its add: “prove it”! appeal to the judges. Problems of proof are most severe in At the same time, the court is experi­ cases of state repression, and there seems menting with several different strategies to emergent a common pattern or argumenta­ overcome the problems of disputed facts, tion by state counsel which make these without having to take evidence itself. problems more acute. First, state counsel First, Justice Bhagwati has initiated the deny on affidavit any or all allegations of idea of socio-legal commissions of enquiry. torture or terror. Second, they contest if The Court asks social activists, teachers and no longer the standing, the bona fides or researchers to visit particular locations for the degree of reliable information of the fact finding and to submit a quick, but social activists who come to the Court. complete, report, which may also contain Often wildest ulterior motives are attribut­ suggestions and proposals. So far the device ed to them.44 Third, they decry the sources of commissions has been invoked at least on which the SAL petitioners rely: mostly thrice.47 The commissions are, under the media and social science investigative re­ Court’s orders, to be financed by the state. portage. Fourth, they raise all kinds of Second, the Court has in a number of cases claims under the law of evidence and pro­ of torture or ill-treatment called upon med­ cedure to prevent the disclosure of docu­ ical specialists to submit48 comprehensive ments relevant to the determination of reports and suitable therapy at state cost. violation of fundamental rights. Fifth, even Third, the Court has used on one or two when disclosed there is always the possibili­ occasions the services of its own officials49 or those of the High Court.50 In some the legislative, constituent and judicial cases, it has asked the district judge not powers of the Court. Chief Justice Chan- merely to ascertain facts51 but also to mo­ drachud and his brethren have now unal­ nitor the implementation of the various terably laid down that judicial review is an directions given by the Court.52 aspect of the doctrine of the basic struc­ These modes of fact finding are some­ ture, and invalidated an emergency amend­ what novel and will raise, as the many SAL ment designed to oust judicial review of matters proceed to completion, rather dif­ constitutional amendments.57 And the ficult issues of evidence and procedure. But Court has gone so far as to say that each the Court is experimenting with new meth­ and every amendment to the Constitution ods to go beyond the notoriously eclectic since its inception has to run the gauntlet affidavit evidence. of the basic structure.58 The new litigation does not disturb the Simultaneously, the Supreme Court has pattern of institutional comity between the put into cold storage two basic challenges Supreme Court and the supreme executive. to its supremacy. A year has gone by, with­ Rather, it appears to lend a new kind of in­ out any action at all on the Presidential tensity to the model of judicial stateper- Reference on the extent of judicial pow­ sonship which has since the independence er.59 And the review petition moved by the steadily enhanced political accommodation Indira Gahdhi government in 1980 calling and constitutional compromise in certain for reconsideration of the basic structure vital arenas, Even as the new litigation doctrine has also become a magnificent bit raises great expectations about the Court’s of judicial arrears.60 role and power, the constitutional compro­ In this context, the steady growth of mises in the 1980—82 period create new the SAL appears to me as a master strategy. sources of anxiety. Give the executive not even a pretence of The Supreme Court has during 1981 sus­ complaint on the distribution of political tained the powers of the President (i.e. the power in the constitutional scheme, treat Prime Minister) to issue ordinances even on the power of amendment of the Constitu­ the eve of Parliament sessions.53 It has rul­ tion as coordinate power. Having accom­ ed that the satisfaction of the President53 plished this much, go Concorde-speed in as regards declaration or continuance of undoing injustices and unmasking tyran­ emergencies cannot be judically reviewed.54 nies. The powers of the President are intact The Court has upheld the National Securi­ but surely the Police Commissioner must ty Act, a latter day MISA, in spite of the be held fully accountable under the Con­ fact that it violates the 1979 amendments stitution. The executive may refuse to to Article 22, which have not yet been bring into force laws duly enacted by Par­ brought into force: what is more, it has liament; but the district bureaucrat must also ruled that no mandamus lies to the be brought to book for commission and President to bring into force such an omission. Leave to politicians their opium- amendment.55 The Court has also repelled dreams of the omnipotence of their power the challenge to the Bearer Bonds Act and influence; but bit by bit prevent them which massively legalized black money, from single-minded excesses of power. The crucial, among other things, to the survival respondents in the SAL matters are always of all political parties in India.56 political small fry: so the big ones may not But these constitutional compromises complain. But the results of the SAL irri­ occur within the framework of retention of tate the Big Men. No matter how irate (as was Jagannath Mishra, the Chief Minister Bar to the new litigation is necessary. But of Bihar, on the Supreme Court’s swift available materials suggest a degree of ago­ probe in the Bihar blindings), they cannot nizing within the Bar and a slow emergence so easily manipulate public opinion in their of a new concern. The SAL movement favour as the Court. And the print media does pose alternate modes of lawyering for opinionators just love the Court (barring the Indian people. the trauma of the Judges Case) because the The response of the administration to Court is now newsworthy, to say the SAL has also been mixed. The top bureau­ very least. As regards repression and law­ crats seem to resent the mini-take-over of lessness, the Supreme Court since 1980 has administration through creeping jurisdic­ become the third chamber of Parliament tion. Their resentment is shown in indiffer­ and is close to acquiring, more effectively, ent compliance with the Court’s interim the attributes of the House of the People. directions in many proceedings. But in The SAL fits in beautifully with the well- some cases over a period of time, the tena­ conducted orchestration of concord and city of SAL petitioners and of the Bench discord with the Executive. has overborne their resistence.62 Backslidings are bound to occur. But it is doubtful that the evolution of the Court as a people-oriented institution can be ar­ Conclusion rested substantially. Of course, nothing is irreversible, at least in legal history. But it This impressionistic account of the SAL would require considerable mobilization of movement in the last two years does indi­ regressive forces to return the Court to its cate that small, ad hoc beginnings have club-house cloisterings. been made. These have received such na­ In fact, the SAL movement is well under tion-wide attention as to generate emula­ way to institutionalization. Hopeful signs tion as well as hostility. Many avoidable de­ for the growth of the SAL-type profession­ ficiencies characterize the SAL work.63 al competence abound.61 The national There is considerable introspection among legal aid movement is rapidly acquiring the social activists on the role and limits of SAL orientation. And more and more High the Court’s intervention. We still lack an as­ Court justices are becoming SAL-prone. sessment of what is really happening al­ The surest sign of a modicum of success though it is perhaps too early to think of of the SAL movement is provided by the exploring the impact of the SAL. And changing attitude of the Supreme Court there persists the need for developing cri­ Bar towards it. tical thought on the mainsprings and mean- The Bar’s reaction has moved from in­ derings of SAL. difference to indignation at what it regards Projections of the future of the SAL as freak litigation. can, at the present moment, be only sub­ At the present moment, two utterly dif­ jective. But to me the future of SAL looks ferent types of responses seem to be emerg­ bright. The future of law in India is partly, ing. One is frankly antagonistic and hostile. but vitally, linked to the future of social On the other hand, some senior lawyers action litigation because, through it, great have now begun to say that they have al­ and unending injustices and tyranny begin ways been pursuing SAL. to hurt the national conscience and prod at Undoubtedly, an empirical study of the least one major institution of governance changeful and conflicting attitudes of the to take people’s miseries seriously. Notes

(1) It is customary to think of administrative arid regulatory agencies as ‘captive’. See e.g. D.M. Trubek “Public Policy Advocacy: Administrative Government and Representation of Diffuse In­ terests” in III Access to Justice 445 (1979: M. Cappelletti & B. Garth eds) and the literature there cited. But, barring small causes cburts and other similar juridical fora, the notion of ‘captive agency’ has not been explicitly extended to appellate courts. Even these latter can become ‘cap­ tive’ to certain professional interests, backed by societal dominant groups. , (2) See U. Baxi, “On how not to judge the Judges...” (Mimeo: paper presented at a Seminar on Judi­ cial Process and Social Change, Indian Law Institute and Andhra Pradesh University, (1980); Justice O. Chinnappa Reddy “Judicial Process and Social Change’.’ LXVI Supreme Court Journal 1 (1981). , (3) For an elaboration of the notion of juridical democracy, see TV Lov/i The End of Liberalism 291 — 303 (1969). ' ' , • ' (4) Baxi, Politics; Id.t (ed), K.K. Mathew on Democracy, Equality and Freedom (1979). (5) Goiak Nath v State o f Punjab AIR 1967 SC 1643. , , (6) JJCesavnanda Bftarathi v State o f Kerai^ (1973) 4 SCC 225 at 947. ■ ' . ' (7) See for examples of populist stances U. Baxi, Politics 127—51; Id. “Some Reflections on the na­ ture of Constituent Power” in The Indian Constitution: Trends andIssues, 122 (1977), Indian Law Institute; R. Dhavan, The Supreme Court & Parliamentary Sovereignty (1979). (8) See the Krishna Iyer Comrriittee’s report, Processuai Justice to the People (1975); and its critique in Baxi, “Legal Assistance to the Poor...".27 Economic Political Weekly 1005 (1975). (9) For example, both Justices Krishna Iyer and Bljagwati called for thoroughgoing judicial reforms, minimizing reliance on foreign models of adjudication, including the system of St£re decisis. They advocated return to swadeshi jurisprudence including justice by popular tribunals. (10) Baxi/Politics 121 — 177. , ■ ■ ; ' (11) See Baxi, Politics 79—120. Also see M/G house, “Constitutional Law” in Xll Ann. Sur. Ind. L. 240, 264—74 (1976); H.M. Seervai, The Emergency, Future Safeguards and the Habeas Corpus ; / Case (1978). • • / ^ - (12) See David Selbourne, An Eye to In$ia (1979’). _ ; ' ’ (13) The judiciary became, too, an object of the pdlitics of hate in, the immediate aftermath of the Sixth" General Election; see Baxi, P olitics(88^98). .-i ■ (14) See, for the text of .the Open Letter, I SCC (Jburnal) 17 (1979). The review bench declined rep­ ’ resentation by women’s organisations^ to irked were-some justices at what they thought to be pressure tactics of the protest ma/eh. The Bar too was indignant both at the Open Letter and the protest. But Chief Justice Chandrachud hot merely publically welcomed such calls for judicial ac­ countability through the “Open Letter” but he also received the women’s delegation urbanely and even assured them a timely review-, which in the event took nearly two years! (15) Juristic activism involves enunciation of new ideas arid techniques perhaps not even urged at the Bar, which are in no way necessary to ther instant decision but relevant, and in some'cases deci­ sively so, for the future growth of the law. See Baxi, Introduction to K.K. Mathew, Democracy, ; Equaliiy and Freedom xxviii (1978). ' . . (16) Baxi, Politics 151 166. / . (17) Id. at 233—245; Baxi, Crisis 244—295. 1 ! i Si; Ib id . , ! (19) U. Baxi “Developments in Administrative Law” in Public ,Law in In d ia1982, . A.G. Noorani ed) arid the literature there cited; U. Baxi Introduction to I.P. Massey 's Administrative Law (1980); Id., Politics 151—166;M.P. Jain, “Justice, Bhagwati and Indian Administrative Law” The iBaiiaras , Law Journal ( 1980)v .. . ■ . : ■ ' , " . (20) See notes 15 and 19 supra. . ‘ • ■ *' ,. (21) Hussainara Khatoon v State of Bihar (six interim decisions so far) discussed in U. Baxi, “The Supreme Court Under Trial: Undertrials and the Supreme Court” SCC (Journal) 35 (1980). (22) Dr. Upendra Baxi v State of Uttar Pradesh (1981) 3 SCALE 1136. (23) Chinnamma Sivdas v State (Delhi Administration) W.P. 2526 of 1982; initiated by Ms. Nandita Haksar, who later also assisted the Court by surveying the conditions in the home as a Member of the Committee headed by the District Judge, Delhi. (24) Kadra Pahadiya v State of Bihar — W.P. 5943 of 1980; see also, V. Dhagamwar, “The Pahadiya File: A Cry in Wilderness” Mainstream (Annual Number) ... (1981). (25) Ms Comi Caopor, Aswini Sarin and Arun Shourie v State o f M.P. W.P. 2229 of 1981. (26) Ghanashyam Pardesi v State of Tamil Nadu W.P. 2261/80; 3947/81 & 4252/81. (27) M. v. State of Uttar Pradesh W.P. ... 1981 (initiated by Krishen Mahajan). . (28) Jyoti Prakash v. State of Madhya Pradesh (May, 1982). (29) Association for Social .Action & Legal Thought (ASSALT) v. The State of Madhya Pradesh W.P. 8332 of 1981. (30) The number of 75 SAL cases is based on a rough count; a more detailed census is on the way with the help of an enthusiastic group of final-year law students at Delhi. . (31) Among the many justifications provided by Justice Bhagawati, the following are important from the present perspectives. First, the rules of law will be “substantially impaired” if “no one can have standing to maintain an action for judicial redress in case of public wrong or public injury”. It is “absolutely essential that the rule of law must wean people away from the lawless street and . win them for courts of law”. If breach of public duties was “allowed” to go unredressed by courts on the ground of standing, it would “promote disrespect for rule of law”. It will also lead to corruption and encourage inefficiency. It might also create possibilities of the “political ma­ chinery” itself becoming “a participant in the misuses or abuse of power”. Finally, the newly emergent social and economic rights require new kind of enforcement. J.M. Chagla v,P. Shiv Shankar {1981) 4 SCALE 1975 at 1991-1992. . (32) The petition moved by Ms. Indira Jaising asserts the existence of constitutional fundamental right under Article 21 previously uncontemplated by anyone — namely, the right of pavement-dwellers in the city of Greater Bombay to dwell on pavements so long as they do not constitute obstruc­ tion to pedestrian and vehicular traffic on the roads. It also argues that the State is under corre­ sponding duty to provide them with appropriate house-sites as close as possible to .their work­ places. (33) See U. Baxi “Laches and the Right to Courtitational Remedies: Quis custodiet Ipsos Custodes?'' in Constitutional Deveiopments since Independence 559 (1975 Ind Inst.). (34) Practice of the Supreme Court to rely on Sworn affidavits of parties to ascertain facts. (35) We here modify Professor Dworkin’s felicitous title Taking Rights Seriously (1977). Perhaps, in a context like India’s one may not take rights seriously if one is unable to take suffering seriously. (36) U. Baxi, article cited supra note 21. ... . (37) Eighty suspected criminals in the city of Bhagalpur, 160 miles northwest of Calcutta, who were blinded by the police by means of puncturing their eyes with needles and dousing them with acid. (38) Of course, even these directions are also not readily obeyed. Often, they require reiteration by the Court and a veiled threat of contempt proceedings by the SAL petitioner. But contempt jurisdic­ tion is, more or less, in disuse in the Supreme Court. The Court prefers in SAL matters to nudge the executive, gently now, sternly on other occasions, into postures of compliance. See, Dr. Upendra Baxi v. State of Uttar Pradesh (1981) 3 SCALE 1136; Khatri v. State o f Bihar (1981) SCALE 26. . . ■■ (39) The types of innovations required in combating governmental lawlessness and repression require a high degree of collective and sustained judicial activism. The task confronts justices with monu­ mental demands on judicial craftspersonship and creativity. It also makes similar demands on the SAL bar, both in terms of strategies of argumentation and of deft manipulation of indigenous and comparative law materials. (40) See note 31 supra. (41) See the notable analysis of executive privilege in the opinions of Justice Bhagwati, Desai and Tul- zapurkur in the High Court Judges Case, cited supra note 31. (42) See ‘Evidentiary problems’, infra. (43) See note 38 supra. (44) In Baxi v State of Uttar Pradesh, supra note 38, despite strong structures, the allegations have not ceased. They still continue to be made on affidavit drawn by state counsel! Professor Lotika Sarkar and I, as petitioners, stated in our reply that in India the SAL petitioners are under a duty to face character-assassination in the public interest! (45) In Association of Social Action and Legal Thought (ASSALT) v State of Madhya Pradesh the counter affidavit of the State showed that there were three enquiries containing the allegation by undertrials that they were rendered impotent by continuous application of electric shocks on penis. These were young persons, some of them just married, arrested under anti-dacoity opera­ tions. The analysis submitted by us on these reports shows that there was no real enquiry even once in the matter! We now await the Court's verdict on this. (46) For example, in Baxi v State of Uttar Pradesh, supra note 38, after a year’s protracted litigation, the State has itself shown willingness to amend its rules and prescribe new schemes for rehabilita­ tion, thus, in effect, avoiding a decision on the merits of the writ petition. In the Bhagalpur blind- ings case, too, a similar strategy has been followed. (47) In Hira Lai v ZiUa Parishad (W.P. 1869/80—81) the Court asked Kishen Mahajan and myself to conduct a socio-legal investigation on a complaint by chamars that their fundamental right to trade profession and business was being unreasonably taken away from them. We submitted a re­ port, based on seven days intensive fieldwork in some sampled villages. See Upendra Baxi and Kishen Mahajan 'The Chamars and the Supreme Court" (1981: mimeo). This first experiment seems to have encouraged Courts and SAL parties, as well as the state, to further efforts of a similar nature. There is a commission looking into the conditions of migrant bonded labourers in Faridabad brick-kiln industries; and a team of officials appointed by the Court to investigate the alleged violations of labour welfare laws for migrant and contract labour, in New Delhi. (48) In Baxi v U.P., supra note 37, the Court appointed a panel of physicians and psychiatrists for the inmates of the Home. In Khatri extensive investigations were ordered to ascertain the precise agent and scope of blindings by the top-ranking eye specialists in India. (49) In Khatri v Bihar two batches of separate petitions reached two different benches. The first pre­ sided over by the Chief Justice asked the Registrar of the Supreme Court to conduct the investi­ gations in Bhagalpur jail: in the second, Justice Bhagawati expanded the registrar’s mandate some­ what further, while stating that a socio-legal commission would have been a more preferable device. (50) e.g. Justice O. Chinnappa Reddy directed in Olga Tellis v State of Maharashtra the Bombay High Court to appoint an official to hear and investigate the finding of the Municipal Commissioner that pavement-dwellers were constituting an obstruction to traffic on the road. No demolition order can be made without this procedure being fulfilled. (51) Kanpur undertrial ‘rape’ case at note 27 supra. The Court here asked the District Judge (also an ex-officio chairperson of the legal aid board) to investigate and report. (52) The District Judge, Agra, has been performing this role for about a year in Baxi v. l/ttar Pradesh, note 38 supra. Further proceedings embodying the Court’s appreciation of the several reports made by him are yet to be reported. (53) SeeA.K. Roy v Union, 1981 (3) SCALE 1959. (54) Minerva Mills v. Union of India A.I.R. 1980 S.C. 1789,Waman Rao v. Union o f India (1980) 3 SCC 587. (55) See Judicial Application of the Rule of Law, infra. (56) R.K. Gargv, Union of India AIR 1981 SC 2138. (57) See note 54 supra. For the ‘constituent power' of the Court see “Some Reflections on the Nature of Constituent Power” (note 7 supra). (58) Ibid. (59) Arising out of a remarkable assertion of judicial power in the Insurance Corporation bonus case. (60) No-one seems seriously interested in pressing it just yet. Also, a proper consideration would re­ quire a full court; and the Court is always working with many vacancies. (61) The National Committee on the Implementation of Legal Aid Schemes is shortly establishing an autonomoys public interest litigation cell. Several groups of lawyers, mostly young, have started small centres of PIL in some High Courts. The Consumer Education and Research Centre, Ahme- dabad, is now moving into concerns wider than consumerism and is heavily using court process in all its campaigns. Equally active are organisations like the Free Legal Aid Scheme, Rajpipla; Legal Support for the Poor Programmes organized all over India, by Harivallabh Parekh; the Free Legal Aid Clinic at Jamshedpur; the Public Interest Litigation Services, Cochin. (62) See notes 38 and 46 supra. (63) These include multiple petitions in relation to the same subject matter by different persons, ina­ dequate prior research, variable levels of commitment and competence and, inability to deal with hardened lawyers, mostly state counsel. The Independence of Lawyers in Rumania: Some Reflections

by Liviu Corvin*

Rumania remained for a long time un­ utes, concerning the engaging of “procato- der the suzerainty of Turkey, and until ri” (from the Latin “procurator”), who 1856 it was divided into two neighboring correspond to our present-day lawyers. principalities, called Muntenia1 and Mol­ These texts stressed the lawyer’s duty to davia. The popular uprisings that began in discharge his mandate with honesty, and 1821 and continued with the revolution of provided for sanctions in case of malprac­ 1848 led to political unification of the two tice, as well as judicial proceedings for en­ principalities in 1859. forcing them. Political unity resulted in the legislative In the nineteenth century the splendour unification of Rumania which, until then, of France, its culture and advanced system was governed by differing legal provisions of legislation, drew many young Rumanian that had become completely outmoded. intellectuals to Paris for their legal studies. This unification took shape with the pub­ These students, who saw France as their lication in 1864 of the first Rumanian code second homeland, brought back with them of civil law, which showed the influence of to Rumania a warm affection for the the French and, to a lesser extent, the Ita­ French model which they naturally follow­ lian and Belgian codes. ed when developing Rumanian institutions. The birth of the modern Rumanian This was the climate in which the Ru­ state called for new legislation to pursue manian bar was born. It closely resembled the work of unifying the various laws that its French counterpart, in giving lawyers prevailed in the different regions of the broad immunity in pleading and authentic country, and in particular of amending freedom from interference by the political Transylvanian legislation which was based power; disciplinary sanctions, where neces­ on Austrian law. The fundamental reform sary, could only be applied by the Council of the code of civil law and civil procedure of the Order of Advocates. resulted in a more detailed regulation of Unfortunately, the outbreak of the sec­ the lawyer’s profession. ond world war put an end to democracy in Legal representation made its appear­ the Rumanian bar, and opened a new peri­ ance in Rumania as early as the beginning od marked by arbitrary acts and the exclu­ of the seventeenth century, when minutely sion of Jewish lawyers from the ranks of detailed provisions were included in stat­ the advocates.

* Legal Counsellor, former Vice-President of the Bucharest College of Advocates. 1) In English this principality is generally known is Walachia (trans. note). After the second world war, owing to dates for election to the board were pro­ political and economic changes as well as posed by the Ministry of Justice, today its the advent of socialism, the western-style influence extends only to the nomination Rumanian legal system was supplanted by of the president and vice-president. How­ another, characterised by its class role, and ever, the law empowers the Minister of Jus­ influenced by the legislation of other so­ tice to dissolve the Council of the College cialist countries, especially that of the So­ and appoint a new one pending new elec­ viet Union. As a result, the bar was also re­ tions. organised on the Soviet model, and thus If there is a large number of lawyers, as was effected a structural change in the at the bar of Bucharest (which has about status of lawyers as members of a liberal 600 lawyers), the law provides for the profession. establishment of subdivisions, called "Bu­ A new organic law was adopted, in reau of (Collective) Legal Assistance”, which the role and duties of lawyers are each comprising nearly 100 lawyers and laid down, in addition to their organisa­ distributed geographically in accordance tion, requirements for admission, discipli­ with the administrative districts of Bucha­ nary sanctions, and the respective jurisdic­ rest. tions over them of the Council of the Col­ Each bureau is headed by a director ap­ lege and of the Ministry of Justice, the law­ pointed by the Minister of Justice, on the yers’ profession being considered as “a proposal of the Council of the College. Un­ public service”. til 1969 he was deemed a civil servant and Hence, as long as the Ministry of Justice paid a salary, and was not entitled to plead supervises and directs lawyers’ work, it is or act as a legal representative. Later, the difficult to speak of independence with salaried director was replaced by the law- regard to the political power. yer-director, who is a member of the col­ The former bars, located in close proxi­ lege and is assisted by an executive com­ mity to the Courts of Appeal, have been mittee of six to eight lawyers. turned into “Colleges of Advocates”, each To enable it to carry out its manifold administrative district having its own col­ tasks, the Bucharest College has numerous lege. officials, such as an administrative director, Each college is a legal entity. The gener­ chief of personnel, secretaries, economists, al assembly (a meeting of all the full-fledg­ accountants, administrative staff, and a me­ ed lawyers enrolled in the college) as the dical polyclinic. governing body elects the Council of the All lawyers must belong to a collective College every four years, and approves the and must also belong to a professional budget. group of about 20 lawyers. These meet The president and vice-president are once a month and discuss numerous ques­ chosen by the board from among its mem­ tions related to lawyers’ work, - chiefly bers. Candidates for election to the board professional problems and discussions about are nominated by the lawyers, and each interpretation of the law. name is then put to the general assembly Legal representation for individuals or for discussion. A candidate obtaining a corporate institutions is provided by law­ majority is declared by the assembly to beyers who are entitled by law to represent “elected”. The last election, in 1979, was and to plead, while retaining their role as held by secret ballot. legal advisers to their clients. Legal counsel­ Whereas until 1965 the names of candi­ lors of state institutions in Rumania are not members of the bar but rather repre­ Under these conditions, the contract sentatives of the institutions which employ and its contractual nature have always been them, exercising all the attributes of law­ much discussed: is it a contract of agency yers, but solely on behalf of these institu­ or for the hiring of services; is the lawyer a tions. Hence they are public servants. party to the contract or is it only between In civil actions heard before the lower the College and the client, with all that this courts, parties may be represented by a implies? Likewise, if there is misconduct spouse, or relative by blood or marriage, on the part of the lawyer, the question providing that such a person holds a special arises who should remedy the injury, who power of attorney. This enables him or her should pay the damages, the lawyer or the to plead if he or she has a degree in law. As college, because the lawyer’s fee is always a rule, defendants may if they wish defend charged to the losing party. themselves without engaging a lawyer, ex­ Furthermore, a lawyer may not receive cept certain cases where representation by monthly earnings in excess of an income an advocate is requested by law. ceiling set by the Ministry of Justice, which The lawyer-client relationship is per­ corresponds to a civil servant’s salary-scale sonal and direct, and the client is free to bracket and is only slightly higher than the choose his lawyer. The lawyer’s geogra­ average salary of university staff. This in­ phical field of action is not restricted, and come is not guaranteed by the College: the parties may hire defence counsel from any lawyer’s earnings (not to exceed the ceil­ “College” or “Collective Bureau” in the ing) will vary according to the number of country. clients he has brought to the collective, and The client is obliged to make a contract in any case he receives only 50 percent of for the services, not with the lawyer, but the monthly payments made by his clients with the bureau of assistance. In this re­ to the collective, the remainder being with­ spect, Rumania would seem to have found held for taxes, insurance and the expenses a solution to the remuneration problem, in of the College. Thus the ceiling may be the sense that the lawyer “does not con­ reached after two or three or a dozen court cern himself” personally with it. cases either by a young lawyer with but a The director of the collective discusses few years’ experience or by a veteran “mas­ all aspects of the case with the client and ter” who has spent his whole life in the law names a fee based on a schedule containing libraries and pleading before the courts. a maximum and minimum fee for every In this situation, Rumanians lawyers ask legal situation. The fee settled on depends themselves with reason why they should only on the nature of the case; the amount work harder, why obtain outstanding quali­ of work done by the lawyer has no bearing, fications, if it all comes to the same thing, because whether a decision is reached after if there is such a deepseated indifference to one hearing or a dozen, the fee remains the the quality of the defence and the amount same. of work put in. The contract is signed by the director, Accepting presents or other material ad­ the client and the lawyer (if he is present), vantages in addition to the fee paid by the and then the client pays the fee into the client to the collective is very severely pun­ collective treasury, and receives a “delega­ ished. The present Rumanian penal code tion”, (i.e. an authorisation) which enables formerly contained a section providing the lawyer to appear before judicial bodies, sanctions for a lawyer who accepted even and to represent or assist his client. the most insignificant gifts from his client. This section has now been repealed. How­ In cases where the parties are minors, ever, the Supreme Court of Rumania has lack legal capacity or have committed an likened the practising lawyer to a civil ser­ offence punishable by more than five years vant, and termed his acceptance of a mate­ imprisonment, the law requires the pres­ rial advantage proffered by his client, over ence of a lawyer free of charge to the par­ and above the fees paid to the collective, ties. The lawyer’s fee for this service, paid as “corruption”, an offence severely pun­ by the Ministry of Justice, is determined ished under the Rumanian penal code. according to a set schedule and is a mere All of this does immense harm to the token fee. In such cases, which imply the lawyer. For example, if the client is dissa­ presence of a lawyer at the behest of the tisfied with the final outcome, he can courts, the Council of the College or the avenge himself by declaring that he gave director of the collective assigns defence extra money or various gifts, and the law­ counsel. Persons thus assisted are not en­ yer is then in danger of being convicted titled to choose their own lawyer. and sentenced to long years of imprison­ All those who hold a doctorate or other ment. Unfortunately, such things have hap­ university degree in law and who are in fact pened. practising lawyers or undergoing a pupil­ The assimilation of a lawyer to a civil lage (‘stagieres’), are listed on the “rolls of servant is odd, to say the least, since he has the College”. After two years pupillage un­ none of the rights of a civil servant, which der the supervision of a very experienced include an assured pension, free medical full-fledged professional, during which they care, a regular salary, the right to be orga­ attend lecture courses, pupil lawyers must nised in unions, and other advantages creat­ sit an examination entitling them to mem­ ed for state employees. On the contrary, bership in the college as full-fledged law­ the lawyer has a struggle to obtain his own yers. If they have not passed after their sec­ earnings, and is obliged to pay a contribu­ ond attempt, they are struck off and cease tion to the lawyers’ insurance fund (25 per­ to be members of the College. Pupil law­ cent of his income), as well as paying for yers may plead before the lower courts. his holidays, hospitalisation, etc. He has no The intructions of the Ministry of Jus­ right to have a separate room as an office tice are that there must be professional sur­ in which to exercise his profession (in Ru­ veillance over all the court activities of law­ mania habitable space is closely restricted yers, within the framework of the College. according to the number of persons living Each bureau of assistance has a certain in a flat), nor to place a sign at the en­ number of lawyers, considered among the trance to his residence to make his pre­ best, who spend their time in the various sence known. courts, noting down the negative aspects of Moreover, the lawyer is obliged to offer lawyers’ professional conduct. If they note legal assistance free of charge. In cases serious matters, such as professional incom­ where the parties do not have the where­ petency, professional misconduct, etc., withal to pay a lawyer, the Council of the they are bound to notify the Council of College or the director of the collective the College, which may administer “colle­ bureau may assign them a lawyer without giate admonishments”, but has no power charge. If the recipient of free legal assis­ to apply disciplinary sanctions. tance wins his case, his lawyer recovers a Once a year, the Ministry of Justice ex­ portion of the fee his client would have ercises its supervision, delegating inspectors paid the collective. to this end to check on lawyers’ conduct. These inspectors, who are certainly less pendence of Rumanian lawyers are evident. well-equipped to understand the merits and The repressive nature of Rumanian jus­ substance of a pleading than the lawyer-su- tice up to 1964—1965 had an adverse in­ pervisors, note all the negative aspects of fluence on the activity of lawyers. The lawyers’ conduct and report their observa­ large number of cases to be tried (about tions to the Ministry of Justice, where dis­ 200 per day per court), most of them crim­ ciplinary measures are taken against law­ inal, forced lawyers to remain in atten­ yers deemed to be at fault. There is no ap­ dance from 8 a.m. until midnight, and peal against the measures taken by the Min­ judges were turned into machines for con­ istry of Justice. victing and sentencing, with no time to In the most serious cases the Ministry listen to pleading or study briefs. may order a disciplinary inquiry conducted Many judges, most of them without uni­ by a member of the Council of the College, versity training, saw the lawyers as a kind who may either propose to the Council of enemy, and the lawyers began to regard that the complaint be dismissed, or that it the efforts they made in favour of the be refered to the disciplinary commission. truth as practically useless. Under such cir­ This commission is composed of several cumstances the lawyer’s prestige declined, lawyers appointed by the Ministry of Jus­ and this decline was reflected in their in­ tice after nomination by the Council of the come, most lawyers scarcely earning the College. bare minimum. The commission of first instance is com­ After 1964—1965, a change for the bet­ posed of three members: two lawyers and a ter occurred in the conduct of justice, judge who presides over the commission. which led to a need for the active presence The appeals commission is composed of of lawyers during hearings, and this in turn two judges and a lawyer; one of the judges helped to improve the quality of decisions. presides. The proceedings are always held Lawyers once again gained in prestige and in private. many judges and prosecutors have shown The Minister of Justice has power to respect for the advocates and have come to quash the decisions of these disciplinary appreciate the assistance which lawyers can commissions. give them. The presence of judges, as members and Unfortunately it is not yet possible to chairmen of the commissions, is a serious speak of absolute independence for Ruma­ infringement on the lawyer’s independence nian lawyers, as long as the Ministry of Jus­ with regard to the judiciary, because he tice still exercises an excessive surveillance well knows that the judge who hears his over professional activity. In many coun­ pleading, revealing his convictions which tries the Attorney-General (Procureur Ge­ may sometimes be at odds with the judge’s neral) and the Supreme Court or the Court own ideas, may tomorrow be judging him of Appeal are responsible for the more seri­ in disciplinary proceedings. ous disciplinary proceedings, but the exer­ Lawyers do not enjoy any immunity, cise of disciplinary powers directly by the either in pleading or in the written docu­ Ministry of Justice appears to be found ments they submit to the court, and they uniquely in the socialist countries, some­ may be subject to penal or disciplinary times with the result that the bar becomes sanctions if they impugn the honour of an a simple appendage of the Ministry, and adversary or third party. the Councils of the Colleges mere rubber Certain conclusions concerning the inde­ stamps for its instructions and orders. All of this may jeopardise the indepen­ individual lawyer’s independence with re­ dence of Rumanian lawyers, even though gard to the public power. Ministers of Justice and directors of the Authentic freedom (within the limits of ministry may try at times to show under­ the law) can only be achieved by the re­ standing towards the problems of lawyers. establishment of the General Council of To be able to shed this supervision and Advocates, which would group together all lend true substance to the notion of inde­ the Colleges and have sole responsibility pendence, the Councils of the Colleges for safeguarding the rights and professional need to be given greater responsibility and interests of lawyers, and likewise have a greater freedom, since the independence of constructive relationship with the Minister the Colleges is the best guarantee of the of Justice. The Veil of Secrecy in South Africa

by Gilbert Marcus*

Over the years, the South African gov­ the use of wide and vague phraseology. Its ernment has surrounded itself by a shield ambit is sufficiently wide and uncertain so of protective laws ostensibly designed to as to cover not only genuine acts of espio­ preserve secrecy. The Protection of Infor­ nage but also conduct which otherwise mation Act, which replaces the existing Of­ would be quite innocuous and acceptable ficial Secrets Act, simply perpetuates the in most Western societies. trend. The Act comes at a time when there The Act is yet another addition to the has been a move towards the cause of open long list of statutes restricting freedom of government in other countries. The very the news media and the publication of in­ opposite is occurring in South Africa. Apart formation. It is a further step by a govern­ from the Protection of Information Act, ment which is obsessed with secrecy. The The Laws on Co-Operation and Develop­ information that the news media is permit­ ment Amendment Act provides for the pre­ ted to publish cannot be regarded as an ac­ servation of secrecy “in connection with curate reflection on the state of freedom of matters dealt with by the Commission for speech in South Africa. The real test re­ Co-Operation and Development”. The new quires an assessment of what is never pub­ Internal Security Act retains all the obno­ lished and kept from public scrutiny by an xious features of the Terrorism Act (which ever increasing armada of restrictive laws. it is intended to replace) including provi­ The Act is an offshoot of the recent sions preventing access to information re­ Rabie Commission on security legislation. lating to detainees. Ironically, the Rabie Commission criticised It would be naive to deny that govern­ the existing Official Secrets Act for its mental secrecy is required in order to pro­ breadth and vagueness. Yet, the new Act tect certain vital interests of the State. Pro­ suffers from precisely the same malady. hibitions on the disclosure of information For instance, Section 2 of the Act makes it relating to military strategy, weaponry and an offence punishable by imprisonment for intelligence matters generally can be found up to 20 years (without the option of a in most civilised legal systems. Were the fine) to approach, inspect, pass over, be in Protection of Information Act designed to the neighbourhood of or enter any “pro­ prevent disclosure of such matters only, it hibited place” for any purpose prejudicial would be unobjectionable. Unfortunately, to the security or interests of the Republic. it goes much further and like other statutes Apart from the obvious places such as mili­ in the security stable it is characterised by tary establishments and dockyards, the

* Gilbert Marcus is an attorney practicing in Johannesburg. State President is empowered to declare cution upon a charge of committing an act any place or area to be a "prohibited for a purpose prejudicial to the security or place”. There is nothing to indicate what interests of the Republic, it shall be pre­ constitutes an approach to or what area sumed unless the contrary is proved, that falls within the neighbourhood of a prohib­ the accused did act with a prejudicial pur­ ited place. Such conduct is punishable not pose if it so appears “from the circum­ only if it is prejudicial to the security of stances of the case or the conduct of the the Republic but also if it is prejudicial to accused”. the interests of the Republic. Needless to In terms of Section 3, any person, who, say, the interests of the Republic are not for the purposes of the disclosure thereof defined. to any foreign state or organisation or to Section 4 of the Act covers what may any agent or any hostile organisation ob­ loosely be described as the offence of es­ tains information relating to: pionage. The breadth of the offence is breath-taking. It provides, for example, (i) any prohibited place or anything in that a person commits an offence if he has any prohibited place, or to arma­ in his possession any information which he ments; or knows or should know is related to a pro­ (ii) the defence of the Republic, any mil­ hibited place or anything in a prohibited itary matter, any security matter or place and publishes such information "in the prevention or combating of ter­ any manner or for any purpose which is rorism ; or prejudicial to the security or interests of (iii) any other matter which he knows or the Republic”. The penalty prescribed is a reasonably should know may directly fine not exceeding R 10,000 or imprison­ or indirectly be of use to any foreign ment not exceeding 10 years or both. state or any hostile organisation, Where, however, the publication takes place for the purpose of disclosure to a for­ shall be guilty of an offence and liable on eign state or to a "hostile organisation”, convinction to imprisonment for a period the penalty is imprisonment for up to 20 not exceeding 20 years. years with no option of a fine. In the ori­ This section is objectionable for several ginal Bill, the State President had virtually reasons. Its phraseology and ambit is inor­ an unfettered discretion to declare any for­ dinately wide and would seem to go be­ eign organisation to be hostile. As a result yond what is reasonably required to com­ of an amendment, the State President may bat espionage. None of the critical words only declare an organisation to be hostile are defined. Perhaps the worst feature of if he is satisfied that the organisation "in­ the section is the fact that the offence is cites, instigates, commands, aids, advises, created purely by the intention to disclose encourages or procures any person in the information and not because of any inten­ Republic or elsewhere to commit in the tion to commit harm or possible prejudice Republic an act of violence for any pur­ to any person or body. It is not an element pose prejudicial to the security or interests of the offence that the accused should in­ of the Republic”. Despite the amendment tend to harm the interests or security of this is still an extremely far reaching provi­ the Republic. sion, The task of the prosecution is made The offence created by Section 3 covers easier by the presumption contained in not only disclosure of information to a Section 10 to the effect that in any prose­ hostile organisation but also to “any office bearer, officer, member or active suppor­ code or password or any document or in­ ter” of any hostile organisation. It is not formation knowing or having reasonable inconceivable, that the State President grounds to believe that it is being disclosed would declare the Anti Apartheid Move­ to him in contravention of the Act and ment in Britain to be a hostile organisation. such person shall, unless he proves that the The information disclosed, need only be disclosure to him was against his wish, be directly or indirectly of use to any foreign liable on conviction to a fine not exceeding state or any hostile organisation and be RIO,000 or imprisonment not exceeding such that, for considerations of the securi­ 10 years or both. This provision is virtually ty or other interests of the Republic, it identical to a provision contained in the should not be so disclosed. This could not old Official Secrets Act. It has particularly be much vaguer or more mystifying to the serious implications for journalists, For ex­ man in the street, or for that matter, a ample, there is nothing to indicate in what journalist. circumstances a journalist ought to have In terms of Section 4, any person who reasonable grounds to believe that he is re­ has information which he has obtained by ceiving information in contravention of the virtue of his position as a person who holds Act. An accused person may escape liabili­ office under the government, or as a person ty if he can prove that the disclosure to with a governmental contract or a contract him was “against his wish”. Presumably, the performance of which takes place en­ the fact that the information was unsolicit­ tirely or partly in a prohibited place and ed would not be sufficient to escape liabili­ the secrecy of which information he knows ty. The facts of an English case dealing or reasonably should know to be required with similar provisions in the English Offi­ by the security or the other interests of the cial Secrets Act gives some indication of Republic and who publishes such informa­ the absurdities of such provisions. The case tion for a purpose prejudicial to the securi­ arose out of an article in the Sunday Tele­ ty or interest of the Republic, shall be guil­ graph containing extracts from a British di­ ty of an offence. plomat’s report on the civil war in Nigeria. The security police are given carte blan­ A former member of the International Mi­ che by the provision making it an offence litary Observer team in Nigeria was charged to disclose, publish or retain information with communicating the report without relating to a security matter or the preven­ authority, a journalist was charged with un­ tion or combating of terrorism. Publication lawful communication and receipt, and the must be for a purpose prejudicial to the newspaper and its editor were also charged security or interests of the Republic. Sec­ with unlawful communication and receipt. urity matter is defined as “any matter All the accused were acquitted after a which is dealt with by the National Intelli­ lengthy trial. However, Mr. Justice Caul­ gence Service or which relates to the func­ field, who presided over the case was mov­ tions of that service or to the relationship ed to suggest that the case “may well alert existing between any person and that ser­ those who govern us at least to consider, if vice”. This provision effectively prevents they have the time, whether or not Section any investigation and, of course, the publi­ 2 of this Act has reached retirement age cation, of the methods and activities of the and should be pensioned off”. These senti­ NIS. ments should be repeated and echoed con­ The Act also makes it an offence for tinually along the tortuous corridors of our any person to receive any secret official security and apartheid legislation. Journalists are particularly hard hit by an accused person. The only safeguard is the provision making it an offence for any the requirement that no prosecution shall person who obtains possession of any offi­ be instituted without the written authority cial document, whether by finding or other­ of the Attorney General. One hopes that wise, to neglect or fail to hand it over to the Attorney General would not prosecute the person or authority by whom or for innocent violations of the Act. Neverthe­ whose use it was issued or to a member of less while the all embracing provisions of the police force. The penalty for contra­ the Act remain in existence, they may be vention of this section is a fine not exceed­ utilised to prosecute any violation, how­ ing R5,000 or imprisonment not exceeding ever trivial. 5 years or both. Once again clarity is lack­ What is required in South Africa is ing and "official document” is not defined. greater access to official information and A particularly outrageous provision is not the imposition of restrictions. One of contained in Section 7 of the Act which the methods of overcoming the problem, it provides that any person who “knowing is suggested, would be the introduction of that any agent or any person who has been a statute along the lines of the Freedom or is in communication with an agent, (not Protection) of Information Bill which whether in the Republic or elsewhere, is in was proposed in England last year, and the Republic, fails forthwith to report to which was narrowly defeated. In the words any member of the South African Police or of the proposer of the Bill, Mr. Frank the South African Railways Police Force, Hooley “the central thrust of the Bill was the presence of or any information it is in to get an intelligent flow of information his power to give in relation to any such between governments and the governed on agent or person, shall be guilty of an of­ the basis of which they could have more in­ fence and liable on conviction to a fine not telligent social and economic policies”. The exceeding R 1,000 or to imprisonment not Bill provided for categories of information exceeding 12 months or to both such fine which should be exempt from the basic and such imprisonment”. principle of protecting official information. The term “agent” is perhaps surprising­ Broadly, the categories requiring protec­ ly, defined in the Bill, although predictably tion were defence, security and intelli­ its ambit is ridiculously wide. It includes gence, currency and reserves, law enforce­ any person who is or who has been or is ment, criminal procedures, commercial reasonably suspected of being, or having confidentiality and personal privacy. A citi­ been directly or indirectly used by or in zen would have a right of access to infor­ the name of or on behalf of any foreign mation about himself held in government state or any hostile organisation for the files, but not information about other purpose of committing in the Republic or people. What South Africa needs most ur­ elsewhere an act prejudicial to the security gently is a statute along the lines proposed or interests of the Republic. Apart from by Mr. Hooley. It is crucial for citizens to the vagueness and breadth of this provision be able to scrutinise and criticise acts of it is extremely unusual for the provisions government. Without access to official in­ of the criminal law to be used to punish formation, the government is given the op­ mere omissions as opposed to positive acts. portunity of moving in dark and secret The breadth and uncertainties of the ways. In this regard, the great English Con­ Act are regrettably not matched by the stitutional lawyer Stanley de Smith once provision of any special defences open to remarked that: “History bears witness to the insidious general are obvious. Until such time as our effects of suppression of dissent and the Courts have pronounced upon the provi­ denial of free interchange of ideas. sions of the Act, its ambit will remain un­ Those effects are all the more insidious certain. when the fact of suppression is itself The tightening of the veil of secrecy suppressed or so concealed as not to be does not augur well for the cause of open identifiable.” government. If South Africa is to retain any vestige of democracy it is essential that A danger of drafting statutes in such as far as possible its workings and practices vague and uncertain terms is that they tend be open to public scrutiny and criticism. to have the effect of intimidating people For South Africans, the most worrying fea­ and discouraging investigations which may ture of the Act is that a climate of secrecy be perfectly legitimate and in the best in­ creates not only fear and uncertainty in the terests of both the people and the country. minds of the people, but opportunities for The dangers for journalists and the press in the abuse of power. Judicial Application of the Rule of Law

Controversial Decision of the Indian Supreme Court

A recent decision of the Supreme Court ting or retired judges of High Courts of India in the case of A.K. Roy v. Union and not as previously persons who are of India, relating to the Law of Preventive or have been or are qualified to be ap­ Detention, has been a source of some con­ pointed as judges of High Courts; troversy in India. (3) the system of preventive detention Article 22 of the Indian Constitution without reference to an Advisory envisages preventive detention even in nor­ Board under clause (7) (a) of Article mal times, but the legislative powers of Par­ 22 was to be abolished. liament and the states are conditioned by certain safeguards incorporated in clauses However Section 3 of the Constitution (3) and (7) of Article 22. Section 3 of the 44th Amendment Act 1978, has not been Constitution 44th Amendment Act, passed brought into force, since the Central Gov­ in 1978 liberalised the provisions of Article ernment, which was empowered under the 22 by imposing three additional restric­ commencement clause to notify different tions on the power of the Parliament and dates for the coming into force of different the state legislatures: provisions of the Amendment, has failed to notify any date for the coming into (1) the maximum period for which a per­ force of Section 3. It seems clear that the son could be detained without obtain­ decision not to bring into force Section 3 ing the opinion of the Advisory Board of the Constitution 44th Amendment Act was to be two months instead of three 1978, was taken on political and not on ad­ months; ministrative grounds. Since the National (2) it was to be obligatory for any preven­ Security Ordinance of 1980 which was pro­ tive detention law to provide that the mulgated by the President at a time when State Advisory Boards (which are to Parliament was not in session, made provi­ exercise strict supervision in all cases sion for the Constitution of Advisory of preventive detention) had to be Boards strictly in accordance with the pro­ composed of such members as the visions of Section 3 of the 44th Amend­ Chief Justice of the appropriate High ment Act. However when Parliament met Court recommended and that the it amended the Ordinance bringing it into Chairman of the Advisory Board conformity with Article 22 in its original should be a sitting judge of the appro­ form. priate High Court and that the other A.K. Roy, the petitioner and a detenue members of the Board should be sit­ (as detainees are called in India) under the National Security Act, contended that the “After the Amendment Act had receiv­ Central Government was under an obliga­ ed the President’s assent the Central Gov­ tion to bring section 3 of the 44th Amend­ ernment could not in its discretion keep it ment Act into force within a reasonable in a state of suspended animation for any time after the President gave his assent. length of time it pleased. That Parliament Since it had failed to do so, the Court by a wanted the provisions of the Constitution Mandamus should direct the Central Gov­ (Forty-fourth Amendment) Act, 1978 to ernment to issue a notification bringing in­ be made effective as early as possible to force the liberalised amendments to Ar­ would appear from its objects and reasons. ticle 22. The following extract from the Objects and The Chief Justice speaking for the ma­ Reasons clearly discloses a sense of urgen­ jority said: cy: “Recent experience has shown that the fundamental rights, including those of life “But we find ourselves unable to inter­ and liberty, granted to citizens by the Con­ vene in a matter of this nature by issuing stitution are capable of being taken away a mandamus to the Central Government by a transient majority. It is, therefore, obligating it to bring the provisions of Sec­ necessary to provide adequate safeguards tion 3 into force. The Parliament having against the recurrence of such a contingen­ left to the unfettered judgment of the cy in the future... The right to liberty is Central Government the question as re­ further strengthened by the provision that gards the time for bringing the provisions a law for preventive detention cannot au­ of the Forty-fourth Amendment into thorise, in any case, detention for a longer force, it is not for the Court to compel the period than two months, unless an Advi­ Government to do that which, according to sory Board has reported that there is suffi­ the mandate of the Parliament, lies in its cient cause for such a detention. An addi­ discretion to do when it considers it oppor­ tional safeguard would be provided by the tune to do it... If it were permissible to the requirement that the Chairman of an Ad­ Court to compel the Government by a visory Board shall be a serving judge of the mandamus to bring a Constitutional amend­ appropriate High Court and that the Board ment into force on the ground that the shall be constituted in accordance with the Government has failed to do what it ought recommendations of the Chief Justice of to have done, it would be equally permis­ that High Court.” ... Parliament must have sible to the Court to prevent the Govern­ taken into consideration the practical dif­ ment from acting, on some such ground as ficulties in the way of the executive in that the time was not yet ripe for issuing bringing into operation all the provisions of the notification for bringing the Amend­ the Act immediately... Now when more ment into force. We quite see that it is dif­ than two and half years have passed since ficult to appreciate what practical difficul­ the Constitution (Forty-fourth) Amend­ ty can possibly prevent the Government ment Act, 1978 received the assent of the from bringing into force the provisions of President, it seems impossible that any S. 3 of the Forty-fourth Amendment, after such difficulty should still persist prevent­ the passage of two and half years. But the ing the Government from giving effect to remedy according to us, is not the writ of Section 3 of the Amendment Act.” mandamus.” The majority decision has been severely A minority of two judges held that: criticised by leading lawyers in India. For example, Mr. F.S. Nariman, Co-Chairman stituent Assembly put it in the power of of the LAWASIA Committee on Human the Central Government to defeat the in­ Rights, has said, in an article in the Indian tention of Parliament acting in the exercise Express of May 27, 1982, that the Central of its constituent power. For, if the view in Government has claimed a dispensing and the majority judgment were correct, the suspending power in respect of the Con­ Central Government could refuse to issue stitutional Amendment to Article 22 and the Notification to bring the whole amend­ regrettably the highest Court has upheld ment Act into force. In the context of the that claim. “The decision”, he says, "has facts and circumstances, the more reason­ grave implications in the field of constitu­ able view is, that since extensive amend­ tional law — graver still in the field of hu­ ments may require time to implement man rights.” them, a power was given to the Central This viewpoint has been supported (in Government to bring them into force, but a letter to the ICJ) by one of India’s fore­ in any event, within a reasonable time. For most constitutional lawyers, Mr. H.M. Seer- example, the amended Art. 22(4) requires vai, in which he states (inter alia): the appointment of sitting judges: regard must be had to the number of detentions "Section 1 (2) of the 44th Amendment in each state, the judicial strength of each Act, 1979, provides that ‘(the Act) shall Court and whether it would have to be in­ come into effect on such date as the Cen­ creased and the like. tral Government may by notification in the All discretionary power must be reason­ Official Gazette appoint, and different ably exercised. It would not be open to the dates may be appointed for different provi­ Central Government to say that the amend­ sions of the Act'. This provision must be ment ought not to have been made and interpreted in what Lord Wilberforce has therefore it will not issue a notification called ‘the matrix of the facts’, and they bringing it in force. The executive govern­ were that during the Emergency amend­ ment cannot sit in judgment on the wis­ ments were made which greatly impaired dom or propriety of any amendment pas­ the democratic nature of our Constitution, sed by Parliament in the exercise of its con­ severely curtailed the effective enforce­ stituted power. That the Council of Min­ ment of fundamental rights including the isters is excluded is shown by the fact that right to personal liberty, and curtailed the once a Bill amending the Constitution is powers of the Courts. Therefore the passed, the President shall assent to it: the amending Act was considered necessary, Council of Minister’s advice is excluded by and was passed with the requisite special necessary implication. No explanation was majorities in each of the two Houses sepa­ given by the Central Government as to why rately as required by Art. 368(2). Once it only one section of the Amending Act has is so passed “it shall be presented to the not been brought into force.” President who shall give his assent to the Bill and the constitution shall stand amend­ Mr. Seervai takes the view that the gov­ ed in accordance with the terms of the ernment’s failure to bring the section into Bill”: Art. 368(2). The President has as­ force is mala fide in view of the provision sented. It is unreasonable to suppose that for advisory boards appointed in conformi­ by empowering the Central Government to ty with it in the National Security Ordi­ bring the amendments into effect, the Con­ nance, 1980. MEMBERS OF THE INTERNATIONAL COMMISSION OF JURISTS KEBA MBAYE Judge of Int'l Court of Justice; former Pres. Supreme (President) Court, Senegal, and UN Commission on Human Rights ROBERTO CONCEPCION Former Chief Justice, Philippines (Vice-President) HELENO CLAUDIO FRAGOSO Advocate; Professor of Penal Law, Rio de Janeiro (Vice-President) JOHN P. HUMPHREY Prof. of Law, Montreal; former Director, UN Human (Vice-President) Rights Division ANDRES AGUILAR MAWDSLEY Prof. of Law, Venezuela, former Pres. Inter-American Commission BADRIA AL-AWADHI Dean, Faculty of Law and Sharia, Univ. of Kuwait ALPHONSE BONI President of Supreme Court of Ivory Coast ALLAH BAKHSH K. BROHI Former Law Minister, Pakistan WILLIAM J. BUTLER Attorney at law, New York HAIM H. COHN Former Supreme Court Judge, Israel TASLIM OLAWALE ELIAS Pres., Int’l Court of Justice, former Chief Justice of Nigeria ALFREDO ETCHEBERRY Advocate; Professor of Law, University of Chile GUILLERMO FIGALLO Former Member of Supreme Court of Peru LORD GARDINER Former Lord Chancellor of England P. TELFORD GEORGES Member of Supreme Court, Zimbabwe LOUIS JOXE Ambassador of France; former Minister of State P.J.G. KAPTEYN Councillor of State, Netherlands, former Prof. of Int’l Law KINUKO KUBOTA Former Prof. of Constitutional Law, Japan RAJSOOMER LALLAH Judge of the Supreme Court, Mauritius TAI-YOUNG LEE Director, Korean Legal Aid Centre for Family Relations SEAN MACBRIDE Former Irish Minister of External Affairs RUDOLF MACHACEK Member of Constitutional Court, Austria J.R.W.S. MAWALLA Advocate of the High Court, Tanzania FRANCOIS-XAVIER MBOUYOM Director of Legislation, Ministry of Justice, Cameroon FALI S. NARIMAN Advocate, former Solicitor-General of India NGO BA THANH Member of National Assembly, Vietnam TORKEL OPSAHL Prof. of Law, Oslo; Member of European Commission GUSTAF B.E. PETREN Judge and Deputy Ombudsman of Sweden SIR GUY POWLES Former Ombudsman, New Zealand SHRIDATH S. RAMPHAL Commonwealth Secr.-Gen.; former Att.-Gen., Guyana DON JOAQUIN RUIZ-GIMENEZ Prof. of Law, Madrid; Pres., Justice and Peace Commis­ sion, Spain TUN MOHAMED SUFFIAN Lord President, Federal Court of Malaysia CHRISTIAN TOMUSCHAT Professor of Int'l Law, University of Bonn MICHAEL A. TRIANTAFYLLIDES Pres. Supreme Court, Cyprus; Member of European Com­ mission AMOS WAKO Advocate, Kenya; Secr.-Gen., Inter African Union of Lawyers J. THIAM HIEN YAP Attorney at Law, Indonesia

HONORARY MEMBERS Sir ADETOKUNBO A. ADEMOLA, Nigeria W.J. GANSHOF VAN DER MEERSCH, Belgium ARTURO A. ALAFRIZ, Philippines HANS HEINRICH JESCHECK, Federal Republic GIUSEPPE BETTIOL, Italy of Germany DUDLEY B. BONSAL, United States JEAN FLAVIEN LALIVE, Switzerland VIVIAN BOSE, India NORMAN S. MARSH, United Kingdom CHANDRA KISAN DAPHTARY, India JOSE T. NABUCO, Brazil ELI WHITNEY DEBEVOISE, United States LUIS NEGRON FERNANDEZ, Puerto Rico PER FEDERSPIEL, Denmark Lord SHAWCROSS, United Kingdom T.S. FERNANDO, Sri Lanka EDWARD ST. JOHN, Australia ISAAC FORSTER, Senegal MASATOSHI YOKOTA, Japan FERNANDO FOURNIER, Costa Rica

SECRETARY-GENERAL NIALL MACDERMOT Rural Development and Human Rights in South East Asia Report o f a Seminar in Penang, December 1981. Published jointly by the ICJ and the Consumers' Association of Penang (CAP) (ISBN 92 9037 01 7 3). Available in english, Swiss Francs 10, plus postage. Ways in which human rights of the rural poor can be adversely affected by pro­ cesses of maldevelopment are illustrated with a wealth of detail in this report. The 12 working papers on such topics as land reform, participation in decision-making, the role and status of women and social and legal services are reproduced in full along with the important conclusions and recommendations of the seminar. ★ ★ ★ Human Rights in Islam Report of a seminar in Kuwait, Geneva, 1982, 95 pp. Available in english (ISBN 92 9037 014 9) and french (ISBN 92 9037 015 7), Swiss Francs 10, plus postage. The purpose of this seminar was to provide a forum for distinguished moslem law­ yers and scholars from Indonesia to Senegal to discuss subjects of critical impor­ tance to them. It was organised jointly with the University of Kuwait and the Union of Arab Lawyers. The Conclusions and Recommendations cover such subjects as economic rights, the right to work, trade union rights, education, rights of minori­ ties, freedom of opinion, thought, expression and assembly, legal protection of human rights and women’s rights and status. Also included are the opening ad­ dresses, a key-note speech by Mr. A.K. Brohi and a summary of the working papers. ★ ★ ★ Development, Human Rights and the Rule of Law Report o f a Conference held in The Hague, 27 April—1 May 1981, convened by the ICJ. Published by Pergamon Press, Oxford (ISBN 008 028951 244 7), pp. Available in english. Swiss Francs 15 or US$ 7.50. Increasing awareness that development policies which ignore the need for greater social justice will ultimately fail was the key-note of the discussions at this confer­ ence. It brought together economists, political scientists, and other development experts together with members of the International Commission of Jurists and its national sections. Included in the report are the opening address by Shridath Ramphal, Secretary-General of the Commonwealth and member of the Brandt Commission, a basic working paper by Philip Alston reviewing the whole field, shorter working papers by leading development experts, and a summary of the dis­ cussions and conclusions, which focussed on the emerging concept of the right to development. ★ ★ ★ Civilian Administration in the Occupied West Bank by Jonathan Kuttab and Raja Shehadeh. An analysis o f Israeli Military Government Order No. 947, 44 pp. Published by Law in the Service o f Man, West Bank affiliate o f the ICJ. Swiss Francs 8, plus postage. This study examines the implications of the establishment of a civilian administrator to govern the affairs of the Palestinian population and Israeli settlers in the West Bank. Questions of international law and the bearing of this action on the course of negotiations over the West Bank’s future are discussed.

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