In an interesting article, titled Arms and Men, Soli J.Sorabjee drew our attention to a judgment by a Division Bench of the High Court in the U.K. stopping executive leniency as reflected in its decision to halt investigations into a bribery scandal, under pressure from a foreign Government. According to him, the judgment is a commendable vindication of the rule of law by courageous English judges, Lord Justice Moses and Justice Sullivan, who were not one bit influenced by the horrific consequences painted by the government if the investigations were continued. The judgment is a testimony to their judicial commitment that “the rule of law is nothing if it fails to constrain overweening power.”
He concluded: “In the celebrated judgment of our Supreme Court in Keshavanand Bharati, the rule of law has been declared to be an essential feature of the Constitution and part of its basic structure. However, if the bench comprised timorous judicial souls overborne by the executive’s strident assertions of danger to security and national interests, the rule of law becomes an empty high-sounding slogan. The rule of law in practice derives its vitality from the approach of brave judicial sentinels unafraid to enforce the rule of law and its principles against the high and the mighty, including the government of the day. The UK judgment is certainly worthy of emulation in countries whose legal systems adhere to the rule of law and who pride themselves on an independent judiciary.”
The link to the Moses-Sullivan judgment is here.
The case is indeed very interesting. The government argued severe political costs and yet the judges went ahead. Judicial deference to the executive or the legislature is under-theorised, particularly in India. When does a case become unfit for judicial decision-making? Fuller’s excellent article on polycentricity is very interesting in this regard:
Lon Fuller, The Forms and Limits of Adjudication, Harvard Law Review, Vol. 92, No. 2 (Dec., 1978), pp. 353-409.
I think another interesting way of looking at the case is rule of law in the context of criminal law in particular. Most constitutions allow an executive power to pardon, which can take political considerations into account. But investigation and trial must take place to determine guilt – no politics is allowed here. Two exceptions come to mind – the requirement of executive permission to try public servants in India; and second, in the context of international criminal law, there is always an ongoing peace v justice debate – is it better for transition societies to grant amnesties, let bygones be bygones, or should they bring those guilty to trial? The latter may be a hard case, and mid-way compromises like the Truth and reconciliation Commission in South Africa have been tried. But they remain exceptional cases, and usually, political considerations should not interfere in investigations and trials.
Of course, this is not to deny that some ‘political’ considerations (like maintaining peace) are more legitimate than others (like shielding a political supporter). In the Moses case, continued existence of diplomatic relations with a foreign country were rather legitimate political considerations, and the court was brave indeed to judge them not serious enough.
Our lawyers and judges are so taken in by a judgement which has to be JUDGED with the time frame of the corrupt ACTION and the time of judgement.
This judgement would not have been delivered but for 9/11 and also the need for UK to pressurise Saudi government. The UK judges are not saints.
This is similar to recent Supremecourt judgement in USA about Gautonomobay detainees. They were caught in 2001 by US army in Afghanistan.They were neither treated as enemy combatants under geneva convention nor given trial under US laws.Now after 8 years this socalled democracy wakes up and delivers this judgement when the detainees have already undergone torture and imprisonment without access to lawyers and families.
Compare this with India and how we treat our terrorists captured.Our human rights activits must be proud of our system instead of whining about Amnesty report.