Basil Fernando
Everything is related to everything else, is regarded as the first law of
ecology by environmentalist Barry Commoner. A legal system of a nation is
connected to multitude of factors in a society. This connection could be
straight or circuitous. Social, political and legal institutions and
practices of a society are linked, capable of influencing each other. There, a
single action can have multidimensional consequences, beneficial or detrimental.
The hypothesis of this article is that when a legal system is exposed to
extremely adverse conditions and such conditions continue to last for a
considerable period, the very existence of such systems may be endangered.
Unless extraordinary measures are taken to reverse the process, it may become
extinct.
The premise of this paper is that natural resources and societal developments
achieved in earlier times can be wiped out by the adverse actions of human
beings in the course of history. Nature illustrates this principle. It is
an accepted fact now that global warming is the price we pay for indiscriminate
exploitation of nature and inconsiderate technological development. Global
warming is predicted to cause colossal natural disasters. The recession of the
Dead Sea has been the subject of concern and much is talked today about the
death of the Dead Sea. It is said that the premier cause of the recession of
Dead Sea is the diversion of rivers by neighbouring countries for development
purposes, reducing the amount of water that used to flow into it.
Another such resource considered lost is the Aral Sea which is located
between the Uzbekistan and Kazakhstan. Following the Russian revolution,
attempts were made to increase cotton production for export purposes and to this
end irrigation channels were created, which diverted water flowing to this land
locked sea. The results were the drying up of the sea and the spread of
pollution which was the result of the chemicals used for production. It flowed
into the rivers and were deposited on the river beds. When the rivers dried up
these chemicals were carried by the winds to far away places, causing damage to
agriculture and other environmental problems.
Similar catastrophes are replicated in societies. In this essay is
concentrated on the dangers caused to legal systems by adverse actions taken by
various governments at different times. Such adverse actions could be arbitrary
changes of constitutions, suspension of civil liberties through various
emergencies and anti terrorism laws, state sponsored violence by way of
disappearances, extrajudicial killings, torture, sending prisoners to exile,
prolonged civil wars and the like. The dangers, such actions pose to the entire
legal system and particularly the impact on criminal justice system, is examined
here.
Replacement of a constitution is the most adopted method to displace a legal
system. The new Constitution would be designed such as to free the vested
interests from the entrenchments, checks and balances of the earlier
constitution. More often than not, it is experienced that a ruler who came into
power by election would purge the powers and privileges of parliament, the
judiciary and other democratic institutions to restrain their legitimate powers
and actions. The case of a military dictator or an authoritarian ruler goes
without saying. Such actions let the executive directed by a person or a few,
rise above other institutions and be “free”. Here the other organs of the
government become dormant, non existent or tools in the hands of the
ruler/executive.
The perils of the continuance of such a situation for a long time are the
diminishing knowledge about the working of democratic institutions and
constitutional government by the people. They will be forced to forget about the
avenues of judiciary and parliament as recourse of legal redress. For the
people, non effective institutions will not be a choice of legal remedy, and the
resultant non use of these avenues will make them vanish slowly, creating a
vicious circle difficult to break.
Displacement of constitutional law also affects public law. The citizen’s
right to challenge government actions can be restrained by various types of
immunities that the executive arrogates to himself. Complete or partial removal
of judicial review is one of the strategies used to prevail over democratic
norms. Constitutional changes can also bring in restraints on the operation of
writ jurisdiction of courts. The constitutional provisions may remove the power
of the courts to intervene in matters in which the courts were otherwise able to
intervene. Such actions will also diminish the peoples’ faith in the judiciary
that should be able to restrain the abuse of power by the executive. Absolute
power reformulates the constitution to liberate the executive and set it to a
course where it can be its own master. Such a situation redefines abuse of
power, making whatever it does, legitimate.
Politically speaking, it is an extremely ridiculous situation, when one group
or another in a country, for example, a military group, declares that the
constitution has been suspended. Such declaration is of severe magnitude. The
Constitution is the basis of laws and the legal system and is the supreme law of
the land. When the paramount law of the country is suspended, the entire law of
the country will be overhanging. It is the military rule or dictatorship that
prevails. When the entire legal system is suspended the impending question is
the basis of authority of the military or dictatorship to rule and from where
their power emanates. The answer is obvious; it is sheer muscle and gun power.
On such takeovers, much propaganda will be carried out to give the appearance of
a decent, harmless and necessary coup. However, the real impact of such a
situation is that the people are brought under the naked power of the gun and
the unrestrained power of individuals who can decide and do whatever they wish.
What would be the impact of this on the population that is watching this
exercise? What value will they attach to a constitution whether it is the
displaced constitution or the one that may be enacted in the future? The very
idea of a paramount law that stands above everyone is lost, and when this
situation continues, it can be gone for a very long time. Such loss affects the
sense of law in the affected population as well as in the future generations.
Suspension of a constitution may be in part also; even then it produces
similar effect of complete suspension. Suspension or repeal of the constitution
may be affected for bringing in emergency laws or anti terrorism laws. In
essence, special emergency or anti terrorism laws mean, removal of the
restraints available within the ordinary laws against arrests, detention and
fair trial. The elimination of such restraints paves way to torture,
extrajudicial killings and forced disappearances. Often, such emergency or anti
terrorism laws also do away with the judicial intervention into inquiries of
suspicious deaths. The power of burial without reference to the judiciary
virtually makes it possible to carry out extrajudicial killings and to dispose
of bodies without leaving any trace for future criminal investigations. Such
emergency and anti terrorism laws can also make habeas corpus applications
futile. Thus, all basic aspects of criminal justice within a democratic and a
rule of law system can be taken away with just a few clauses of emergency
regulations and the absence of constitutional protection.
The implication of such special laws would be an overarching executive that
controls the everyday life of the citizens. The judiciary will be made
ineffective wiping away the defenses available against such executive and all
that could be expected will be its mercy. Rights will have to be forgotten as
there is no avenue to claim them. In such state of affairs people will be
slipped into a mindset of ill faith in judiciary and the value of judicial
officers will diminish. The role of the judiciary will be marginal and people
will begin to perceive the officers of judiciary and offices there under as
unimportant and powerless as they are incapable of carrying out the legal
functions expected of them in a system of democracy and rule of law.
Where the government, elected or otherwise, brings substantive limitations on
personal freedoms and laws of arrest, detention and fair trial by way of
draconian special laws, the section of criminal investigation wing within the
criminal justice system suffers the most. In a system operating under democracy
and rule of law, it is the criminal investigation branch that does the most
primary function which activates the other sections of the criminal justice
system. It is the investigating branch that investigates crimes including abuse
of human rights and who has the task of uncovering what had actually taken
place. It is this investigating branch that gathers the factual information,
which is the base material on which all the evidence is built. Without the
initial work of the investigating branch neither the prosecutors nor the
judiciary can effectively function. It is also not possible for the government
and the public to form proper opinions of what has taken place when criminal
investigations do not take place appropriately.
When either a military group occupies power or the military gains more power
under the emergency rules and anti terrorism laws, there develop conflicts
between civilian policing systems and the military system in the country. When
the two works parallel, the outcome would be restrictions over the civilian
police as the military assumes more power. There develops all sorts of
undercurrents in which the military exercises its dominance over the civilian
police. Under these circumstances there is often the complaint that the habits
of civilian policing are being lost and that the police become militarized to
some extent.
The influence and control of the military over civilian policing is even
worse when allegations of abuse of power and the commission of gross abuse of
human rights are leveled against the military or those who are working in
collaboration with the military. The civilian police will be asked to
investigate such military abuses. The civilian police under these circumstances
is crippled without legal powers to carry out effective investigations into such
abuses. Daring investigators are likely to face serious threats to their lives
and liberty, as experience witness. The same state which authorizes the abuse of
power by the military cannot provide the protection needed for investigators to
probe into crimes. Under such circumstances civilian police undergo a sudden
transformation in which it begins to restrain itself in order not to interfere
into areas which are in conflict with the military powers. Again under these
circumstances the criminal investigating capacity of the civilian police suffers
immensely.
Criminal investigations involve many faculties and constant training and
updating of techniques. Practices of criminal investigation are sometimes formed
through years of training and hard work. For adopting the strategies and methods
developed worldwide, training and educational programmes have to be convened.
Usually the police force being a cadre organization, learn and develop habits
from their seniors either being prompted or imbibing them. It is through the
continuity of practice that durable habits of investigation become entrenched
within the investigating branch of the state. Police investigation has to keep
the delicate balance between bringing culprits to books and to respect the
rights of the persons involved in the process. This difficult equilibrium is
reached only by an orientation towards respect for rights and constant
development of skills. It is here the direction and supervision of the superior
officers becomes significant. The relationship between superiors and
subordinates are kept up through various forms of report writing, analysis and
assessments. Both the superior offices and the subordinates have to learn many
practices which ensure discipline in order to make a system of supervision
effective.
The intermission or relegation of power of the civilian police by the
government and suspension of laws in favour of special laws makes discontinuity
in the investigation system. The skills they learned will be lost and constant
up gradation would be non existent. Over a certain period of time when the rules
of responsibility for dealing with all crimes is removed, when only selected
investigations are allowed, and even worse when the investigations are carried
out not to discover the facts but to cover up situations, a criminal
investigation branch goes through a metamorphosis. Once such a transformation
takes place, it is not possible instantly to bring it back to a normal situation
even through the introduction of a new democratic constitution or the removal of
emergency and anti terrorism laws. It will take a long period to reestablish
professional approach and attitude in criminal investigations.
The conclusion of the above discussion is very clear. Whatever might be built
over a long period of time to establish the authority of courts, the capacity of
criminal investigators and the functioning of a justice system, it can be lost
by adverse actions as mentioned above and if such actions are continuing for a
long period, the whole system may become extinct. The names and titles, such as
judges, criminal investigators, prosecutors and the like may remain the same.
However, the substance of their power and capacity is so transformed that the
system which they represented will exist no more. When that takes place these
names and title holders themselves are aware of their diminished status. Worse
is that the entire population also realise the title holder’s devalued standing.
Internally, the mentalities of the bureaucracy as well as the people go through
a transmutation. Only the façade of justice remains.
When the justice system goes through such a fundamental transformation it
affects all areas of life including the functioning of vital institution such as
parliament. One of the most common myths in recent times is that having a
parliament would establish democracy by itself. However, when parliaments cannot
rely on the support of a viable justice system, or have power to sustain one, as
needed within a system of democracy and rule of law, the institution parliament
itself becomes ineffective and often befall as a mockery. One may witness today
many authoritarian systems, which while maintaining parliaments, do not
attribute any real power to them. When a strong justice system does not support
the parliament in protecting it from the control of the executive there is very
little that a parliament can do to protect itself. This is because in a
democracy these institutions are complimentary. Thus, despite of the existence
of parliaments a group of persons gathered as military leaders or even civilian
leaders can effectively take all the control and all effective powers of ruling.
Within those circumstances a justice system would be challenged weakened and
extinct altogether.
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