Last year was a memorable in the legal world. There was no dearth of cases of consequence and even the impact of the decisions all over the world. The decisions not only have consequence to the parties involved, but also the communities and lawyers involved in the cases.
The most significant decision in terms of its social impact was the decision of the Supreme Court of India in what is known as the Ayodhya case. The court made final orders in the case in November last year. The case was about the ownership of a piece of land claimed by two religious communities.
The disputed land was the site of a Mosque built in Ayodhya in the 16th Century which came to be known as the Babji Mosque. In December 1992, the Mosque was razed to the ground by persons who claimed that the it was built on a site which was previously a Hindu temple. In particular, the Hindu believe that the Site of the Mosque was the historical birth place of a Hindu deity Lord Ram.
The dispute over this site had been the subject of several court cases the first of which was filed in 1885 when a suit was filed by a person seeking permission to construct a temple on the site based on the historical claim of the birthplace of the deity. This claim was dismissed.
The site remained contested in politics and in courts over the years and challenged the social fabric of India owing to the religious tensions it wrought. The demolition of 1992 led to this court case which was appealed to the India Supreme Court. The Supreme Court put an end to this dispute with what to me was Solomonic wisdom: It cleared the way for the construction of the Hindu temple but also ordered that the government should within three months of the judgment, obtain an alternative property for the construction of a mosque. My reason for including this as a case worthy of mention is that the court appeared to have played its role as a peace maker to alleviate a conflict.
Still on religious conflict in the courts, the US Supreme Court also made a decision which upheld that a big cross built on government land in the state of Maryland did not have to be removed for offending the establishment clause in the US Constitution.
The establishment clause separates the state from affiliating itself with any religious undertaking or grouping. The judges observed that the 40-foot cross was erected over a century ago as a memorial to the soldiers who died in the first world war and had no endorsement of religion as such. Justice Alito writing for the majority said that although the cross is a Christian symbol, that should not blind the court to everything else that it had come to represent. He warned further that the establishment clause and the separation of church and state notwithstanding, a government that roams the land, tearing down monuments with religious symbolism and tearing away any reference to the divine would strike many as hostile to religion.
In Kenya, the High court held that a child who had been prevented from wearing a turban while in school as required by her religion, could not be compelled by the schools’ uniform policy to remove the turban as a condition for continuing her studies. The court held that insisting that the turban be removed would be to hold that two constitutional constitutionally ascribed rights of the child, that is the right to education and the right to practise religious faith must be exercised separately would be infringement of the child’s rights. The school was ordered to admit the child back unconditionally.
Courts throughout the world also stood up for the rights of citizens against powerful authorities. In what is known as the Rafale Fighter Jet case, a government agency opposed the production of some documentation on the acquisition of some defense equipment from a foreign country on the ground that this would affect national security.
The Indian Supreme Court struck down that objection and held that a government agency could not withhold documents and information from a citizen under India’s right to information law by citing that the disclosure would harm national security. Justice J.M. Joseph said. “The right to information confers on citizens a priceless right which enables them to demand information even in respect of such matters as security and foreign relations of the state.
Still on keeping the actions of public officials under check in the quest to uphold the Citizens rights, is the case of the Deputy Chief Justice of Kenya decided by the High Court early last year. In that case, the bench of five judges unanimously stopped the intended prosecution of the deputy Chief Justice following a finding that the evidence intended to be used had been obtained illegally. The judges held that improper conduct could not be countenanced in any way whatsoever.
But the High Court of Kenya was not alone in this: The US Supreme court also called out misconduct on the part of a prosecutor and overturned a conviction of murder. The ground for this ruling by the Supreme Court was that the District Attorney who had prosecuted a man named Curtis Flowers for murder consistently mistreated potential black jurors and got them disqualified from serving at the trials of the accused so as to ensure that there were few black jurors at the trial as possible. The Court held that exclusion of an otherwise qualified individual from jury service on the ground of race is unconstitutional.
The Supreme Court of the United Kingdom was also unrelenting in bringing truth to power through its judgment in the case of the prorogation of parliament. The case was filed in challenge to the advise given to the Queen by the Prime Minister Boris Johnson to prorogue the British parliament.
The Supreme Court held that firstly, the lawfulness of the Prime Minister’s advise could be challenged in court because of the supervisory jurisdiction that the court holds to oversee the lawfulness of acts of the government. Secondly, the court then held that Prime Minister’s advise with the intention of evading parliamentary debate interfered with parliamentary sovereignty and was therefore unlawful. The Prorogation was therefore declared illegal and the court made an order for the Speakers of the respective houses of parliament to summon the houses back to work.
The writer is Head of Legal, Nation Media Group
