| by Laksiri Fernando
“They see governments come
like water and go with the wind. They owe no loyalty to ministers, not even the
temporary loyalty which civil servants owe…” – Jag Griffith
( October 2, 2012, Sydney, Sri Lanka
Guardian) The judiciary in Sri Lanka is under threat. There cannot be any doubt
about it. The extent and gravity might be the dispute, if any. First it was a
Minister threatening the Mannar Magistrate. Now it is the President insinuating
threats to the Supreme Court. This should be a concern of all right minded Sri
Lankans, including the so-called ‘patriots’ and those who live abroad, and also
the ‘international civil society,’ if anyone is allergic to the so-called
‘international community.’
Sri Lankans should be concerned
about the issue because the muzzling of the judiciary is the death knell for
the remaining democracy. How many have so far received redress for violations
or imminent violations of their fundamental rights from the Supreme Court? The
mere existence of an independent judiciary is a deterrent against violations.
One of the most significant recent cases is the Z-score fiasco. If not for the
independent judiciary, the verdict would have been in favour of the pathetic
politicians and bureaucrats manning the ministries of higher education and
education who are completely unconcerned about the fate of the innocent
children.
Another example is the Divinaguma decision which undoubtedly angered the
President and/or his brother about the judiciary’s independent resolve. If not
for this decision, the government was planning to stream role its legislation
quite detrimental to the spirit of devolution and in violation of the 13th Amendment, and that means the
Constitution of the country.
Still the intent is the same,
although the procedure is followed until it reaches the approval of the
‘non-existing’ provincial council in the North. It is a controversial matter
whether it is constitutional for the Governor alone to approve it, instead of
the elected provincial council, and particularly in the context that the
election is arbitrarily withheld for political reasons. This is obvious to the
whole world. This is one immediate reason why the government requires a
‘coerced judiciary’ for its arbitrary, if not evolving tyrannical governance.
The international civil society, to
mean the international legal profession (including the International Bar
Association and the International Commission of Jurists) and democratic and
human rights constituencies at large should be concerned about the situation as
a matter of principle. If the judiciary in Sri Lanka is muzzled and if
democracy is further turned back in the country then there will be
repercussions on other countries and internationally.
Even the regime might ‘showcase and
sell’ the ‘model of the muzzled judiciary’ to other countries like they did or
try to do in the case of the ‘victory over terrorism’ no matter how many
innocent civilians were killed, deliberately or otherwise, in the process
without any accountability. The regime’s external affairs are so reactionary
headed by a corrupt legal ‘luminary.’ He is the author of the so-called “good
measures for the judiciary” to prescribe how the judiciary should behave and
deliver decisions with ‘patriotism’ in a ‘patriarchal democracy’ in Sri
Lanka.
Threats
Let me preface the events or the
controversy with some quotes from Jag Griffith (The Politics of the
Judiciary, 1985) more
appropriately. In a democracy, ‘the judiciary or the judges are not beholden to
the government of the day.’ This is something many people cannot understand or
they are prevented from understanding.
The ‘governments come like water
and go with the wind.’ The judges owe no loyalty to ministers; not even the
temporary loyalty which civil servants owe. Judges are lions under the
‘democratic republic’ and in the eyes of the judges ‘the republic is not the
President or the Ministers, but the law and their conception of public
interest.’ ‘It is to that law and to that conception alone that they owe
allegiance. In that lie their strength and their weakness.’
I will not refer to the Mannar
controversy but to the most recent events.
President’s Secretary called the
Chief Justice (CJ) and summoned her and other two members of the Judicial
Services Commission (JSC) for a meeting. The ‘summoning’ in itself was an
insinuated threat. The CJ rightly asked for the request to be sent in writing.
The letter was sent on 13 September yet without giving any particular reason.
The meeting could have been on anything. The CJ declined the request in writing
highlighting the ‘implications of that kind of a meeting on the independence of
the judiciary.’ The President obviously does not have a constitutional mandate
to summon the Judicial Services Commission (JSC) or the Chief Justice whatever
the reason.
In the principle of separation of
powers, there can be and should be coordination between the executive and the
legislative branches and/or functions. But there is no need of coordination
between the judiciary and the executive or the judiciary and legislature. Any
attempt at coordination is against the principle of independence. There is no
such a principle of independence between the executive and the legislature.
Instead the executive should be responsible to the legislature. It is this
principle which has considerably eroded under the presidential system since
1978 and in fact encroaching on the matters of the judiciary throughout years.
There is another fundamental
structural reason for the erosion of the independence of the judiciary, and the
rule of law that it is supposed to uphold. That is the removal of the
post-enactment judicial review from the Constitution since 1972, and the
limited time given (only one week) including the urgency provision for an incumbent
government to curtail the proper judicial review even in the case of the
existing (limited) post-enactment judicial review. A major aberration that has
occurred in my view is the draconian 18th Amendment.
First, by declaring it as an
‘urgent bill,’ no proper opportunity was given to the citizens or the people in
the country to submit their constitutional objections; or the Supreme Court to
review them properly. This was in addition to the curtailment of a proper
public debate on the issue. The passage of the 18th Amendment revealed a clear dictatorial
turn of the Rajapaksa regime.
Second, there are certain legal
texts, such as the 18th Amendment,
the constitutional inconsistencies or implications of which cannot hardly be
evident form the text alone. Those could be judged only through the passage of
time and the way those enactments are actually implemented in constituency with
or contrary to the constitutions and public interest.
The present encroachment or
attempted encroachment on the judiciary is exactly a result of the 18th Amendment, in violation of both the
letter and spirit of the ‘democratic (socialist) republican
constitution.’
Proof of Threats
On 18 September, the Secretary to
the Judicial Services Commission (JSC) was compelled to issue a public
statement on the advice of the Chief Justice and the Commission, declaring very
clearly the threats to the independence of the judiciary. Some of the important
matters are quoted below from that statement translated by the Sunday Times (23 September 2012) with emphasis
added.
“It
is regrettable to note that the JSC has been subjected to threats and intimidation from persons holding different status. Various influences have been made on the JSC regarding decisions taken by the Commission keeping with the service requirements.
Recently the JSC was subjected to various
influences after the
Commission initiated disciplinary
action against a judge.”
“Moreover
an attempt to convince the relevant institutions regarding the protection of
the independence of the judiciary and the JSC over the attempt to call for a meeting with the chairperson of the JSC, who
is the Hon Chief Justice and two other Supreme Court judges, was not
successful. The JSC has documentary
evidence on this matter.”
“It
is the JSC that is the superior institution which is empowered with the appointment of Magistrates, District judges,
their transfers, dismissal from service and disciplinary action against them.
It is an independent
institution established under
the Constitution. Under the Constitution any
direct or indirect attempt by any person or through any person to influence or
attempt to influence any decision taken by the Commission is an offence which could be tried in a High
Court.”
“‘It
should be emphasized that the JSC is dedicated and it is its responsibility to protect the independence of the
judiciary and discharge its
service without being intimidated
by influences, threats or criticism. I have been instructed by the
Commission to issue this media release to keep the majority of the public who
value justice informed about an attempt
by conspirators to destroy the credibility of the JSC and the Judiciary. —
Manjuala Tilakaratne, Secretary, JSC.”
It has to be admitted that the JSC
should not issue public statements ordinarily. This is not a statement by the Secretary,
but on the instructions of the Commission. As I have highlighted, it talks about
the “attempts to destroy the credibility of the JSC and the Judiciary.” It
talks about ‘threats and intimidation,’ and ‘various influences’ from ‘persons
holding different positions.’ These are apparently on the ‘decisions taken by
the Commission’ in pursuant of its constitutional obligations as outlined in
the third paragraph above. A recent decision on ‘disciplinary action against a
certain judge’ is specifically mentioned that created the ire of certain
politicians.
More generally, while asserting
that the Commission is the constitutionally appointed institution to take
decisions on the appointments and discipline of all judicial officers, it
emphasises that such influences or intimidation constitute an offence. This is
given in Article 115 of the Constitution.
Since the Bracegirdle decision of
the Supreme Court headed by the Chief Justice Sir Sydney Abrahams in 1937,
against an arbitrary deportation order of the then Colonial Governor (largely
equivalent to the authoritarian President today!), the judiciary in Sri Lanka
has resolved to safeguard the ‘independence of the judiciary’ whatever the
later constitutional restrictions (1978 Constitution) and limitations (18th Amendment). The Supreme Court so far
has withstood by and large the intimidation, encroachments and threats,
including the stoning of the residences of its judges at one time. It is hoped
that the judiciary today would withstand similar threats and intimidation,
outlined by a second statement by the Secretary to the JSC on 28 September
(Colombo Telegraph, 29 September 2012). He has said,
“A situation has arisen where
there is a danger to the security of all of us and our families beginning from
the person holding the highest position in the judicial system.”
Further Evidence
After the failed attempt to summon
the JSC by the President, a letter was sent on 25 September to the CJ stating
that the intent of the proposed meeting was to discuss the ‘salaries, financial
benefits and scholarships to the judiciary in view of the forthcoming budget.’
This appears ‘a second thought,’ but confirms the attempts to influence the
judiciary in financial terms or using the ‘carrot.’ As an authority on the
subject, Clifford Wallace, once said:
“Budgetary
decisions are usually made by the political branches of the government; it is
essential that the budget not be used as a means to undermine the independence
of the judiciary.”
There is no question that the
salaries and facilities to the judges are extremely poor. This is something
that a former Chief Justice strongly raised without a proper response from the
President, the Treasury or Parliament. I once remember a senior police officer
stating that ‘when they go for cases in official vehicles with assistants, it
was embarrassing to see some magistrates come by bus carrying large folders of
documents themselves.’ However, there are and there should be correct
procedures to rectify these salary and other anomalies without making the
judiciary dependent or obliged to the executive on these matters. This is why
the salaries of the judges of the Supreme Court and the Court of Appeal are set
aside usually through the consolidated fund and not the annual budget.
Much worse was the President’s
salvo on the JSC, and more particularly on the Secretary, with the Media Heads
on 26 September. If the President
cares for the independence of the judiciary then his statements and discussions
at that meeting were completely unwarranted. He has said “as a lawyer by
profession who had practised for nearly two decades, he was an ardent advocate
of an independent judiciary” (The Island, 27 September 2012); but has
proved completely the contrary. He must have been in the past, but not now. His
has claimed that “it was the UNP which had got judges’ houses stoned and tried
to impeach Chief Justices,” which is true, but not an excuse for his present
behaviour.
There were personal remarks made by
him on the Secretary to the JSC. If the comments came from a person other than
the President, then those could have been construed as defamation.
Unfortunately, the President has his constitutional immunity; he can defame
anyone!
In the Constitution, there are
certain protections to the Commission and its Secretary. Otherwise, the duties
of those positions cannot be properly performed with dignity. If there are
genuine allegations against the Secretary, then those should be referred to the
Chief Justice, not by the father of the aggrieved party but by the relevant
party herself. There is no business for the President or the Presidential Secretariat
to take disciplinary action against the Secretary to the JSC as it has been
mentioned.
This is very much similar to the
‘corruption charges’ against the husband of the incumbent Chief Justice, who
was the government appointed former Chairman of the National Savings Bank. The
appointment should not have been done or accepted in the first place. After he
resigned over a controversial decision, most likely the decision dictated by
the government itself, he is now charged on the same matter on corruption.
There is no question about investigating the charges through the correct
procedure. But the concerted efforts at ‘blackmailing the judiciary’ for
political purposes are abundantly clear.
It is reported that the efforts at
what they call ‘taming of the shrew’ is coordinated by a secret committee of
some ministers and high or low level lawyers. The names and conspiracies of
these people will be revealed very soon.
