Watching the watchdogs

Who will keep an eye on public probity?

Ramesh Thakur

Government and governance, Law | Australia, South Asia

6 February 2018

Events in India and Australia highlight the importance of institutional mechanisms and proper procedures for holding errant members of watchdogs to account, Ramesh Thakur writes.

Liberal democracy requires a system of checks and balances to guard against the abuse of executive power. A ‘nation of laws’ requires that these take the form of autonomous institutions not under the control of governments.

An independent and powerful judiciary is an irreducible minimum, but national integrity systems can also include other institutional watchdogs to guard against the arbitrary excesses of executive power. Watchdogs are also needed to prevent corruption – the abuse of entrusted public office and power for personal or partisan gain.

What happens if the top leadership of the institutional watchdogs themselves stray off the reservation? How can the damage they inflict be contained without causing even graver damage to the institutional fabric of checks and balances?

Checks on executive power could be circumvented with relative ease and without much political pain if the personnel staffing the independent institutions can be coerced, induced, or dismissed by the executive.

Consequently, good systems will put in place stringent safeguards to protect the chief executives from attempted intimidation by governments. Only in authoritarian systems do institutions and their heads function as mere accessories of the ruling political elite.

However, the heads of judicial and other integrity institutions are humans, and all humans are fallible. Occasionally, individuals who occupy the highest offices to regulate the conduct of others will themselves behave arbitrarily. Who can hold them to account?

More on this: Does the world need an international anti-corruption court?

If the executive has that power, the scope for bending the watchdogs to the executive’s will is obvious. Removal through impeachment or other forms of investigation and decisions by parliaments is not satisfactory either, for parliaments rarely operate independently of the executive or free of party-political calculations.

Australia’s federal government is currently having to respond to a formal complaint at the United Nations that certain procedures followed by the NSW Independent Commission Against Corruption (ICAC) breach our obligations under international human rights standards. The complaint claims that a person found by ICAC to be corrupt was never given his day in court to contest the charge because of the lack of an “exoneration protocol.”

This suggests that our human rights record is perhaps not quite as perfect as the government would have the world believe.

The NSW ICAC certainly gave the impression of operating like a star chamber, pursuing personal vendettas, flouting legal restraints on its own powers, showing a cavalier disregard for due process and the presumption of innocence, and with no right of appeal to test the merits of its findings. Even Commonwealth Attorney-General Christian Porter has said that “at a state level, the reality is that certain people have had their rights quite egregiously infringed” by anti-corruption agencies.

India’s judiciary is among the most powerful in the world. On 30 January, the Chief Justice of India (CJI) Dipak Misra recommended that impeachment proceedings be launched against Justice Narayan Shukla of the Allahabad High Court.

In the Indian judicial scheme, the apex body for the whole country is the Supreme Court of India. High Courts are the top layer of the judiciary at the state level. Justice Shukla had appeared to act arbitrarily in September by vacating an order restraining a private medical school from accepting further enrolments. When the matter was brought to the Supreme Court’s attention, it set up a committee headed by Madras High Court Chief Justice Indira Banerjee whose report was quite scathing of Justice Shukla’s conduct. The in-house panel of the Supreme Court then recommended impeachment and the CJI agreed.

Ironically, at the time the CJI was himself facing allegations of arbitrary conduct of judicial administration by four fellow Justices of the Supreme Court.

On 12 January this year, Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph (the Supreme Court’s senior-most judges after the CJI) convened a press conference without precedent in India – and probably in any parliamentary democracy – at the residence of Justice Chelameswar. Saying that “Democracy will not survive without a free judiciary”, they complained about disorder in the state of administration of the Supreme Court.

They justified calling a press conference and releasing the text of their letter to the CJI by alleging the CJI had turned a deaf ear to their private pleadings on concerns about the integrity of the country’s highest judicial institution. They claimed the CJI was exercising his sole discretion in allocating highly sensitive cases whimsically and arbitrarily, rather than based on settled conventions and practice.

More on this: India’s clash between environment and religion

The public debate in India quickly snowballed into the merits and propriety of the judges airing their complaints in public via a press conference. Former chief justices, judges and advocates-general had their say on both sides of the debate. By coincidence, a former president of the Supreme Court Bar Association, Dushyant Dave, canvassed several of the cases where the constitution of benches and selection of judges to sit on them by the CJI was questionable and lent itself open to perceptions of bias.

Wisely, the government stayed out of the dispute and above the fray, merely expressing confidence that the judiciary was capable of sorting out its internal problems.

On balance, the four judges seem to have done the nation a service by speaking out publicly on a malaise at the heart of India’s judiciary. The propriety of their action is both less disturbing and less consequential than the substance of their complaint.

Most significantly, they implied that the CJI was assigning important cases ‘selectively’ to judges who might decide in sympathy with his own preferences, and possibly also with that of the government. For this to happen, some judges would have to be pliant rather than independent.

In other words, damage to the public confidence in the judiciary is more likely to result from what they said, not how or where they said it. Given their non-reception by the CJI, saying this in public might well have been the only avenue left to them to air their grave concerns for the health of India’s judiciary and democracy.

This just goes to show that from South Asia to New South Wales, and all points in between, there is a need for satisfactory institutional mechanisms and proper procedures for holding errant members of watchdogs to account.

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