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by Laksiri Fernando
( December
30, 2012, Sydney, Sri Lanka Guardian) I have just read the article by Dr Suren
Raghavan titled “Independent Judiciary in a Dependent (ill) Democracy” (Colombo
Telegraph, 29 December 2012) with mixed feelings, but mostly disagreeing with
his prognosis and some of the conclusions. There is a single short paragraph
(only two sentences) which says all.
“Politically speaking the
concept of law and the independence of judiciary is very infant and alien
concept in Lanka. Like to the entire commonwealth, it is a British colonial
legacy and a postcolonial continuation.”
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The judiciary is extremely important in safeguarding the rights of the citizens when the executive or the legislature transgresses the constitution particularly in between elections. I have no objection for a measure of judicial activism. But we cannot expect the judiciary to play the role of a ‘good executive’ or a ‘good legislature’ or even part of it. It is up to the people to change the law makers and the executive when they transgress democracy sometimes within the confines of the constitution.
According
to him, not only the concept of independence of the judiciary but also law or
rule of law are very ‘infant and alien’ to Sri Lanka. Even if I temporarily
agree with the ‘infancy’ of the system, I cannot understand or agree that these
two concepts are alien for the basic reason that there is no indigenous or
‘home grown’ alternative left for the people or the country except ‘arbitrary
rule and authoritarianism.’ It is this ‘arbitrary rule and authoritarianism’
that looms large at present instead of ‘rule of law and independence of
judiciary’ through imposition on the people while he mistakenly criticizes,
instead of criticizing the imposition of ‘rule of law and independence of the
judiciary.’ What I can see mainly is mistaken priorities in his critique of Sri
Lanka’s present predicament.
What Legacy?
He also
adds that ‘rule of law and independence of the judiciary’ are British colonial
legacies and postcolonial arbitrary continuations by the elite. Although as a
person from the same academic field as Raghavan, Political Science, I usually tend
to judge political changes or maturity within single generations, but not in
epochs or millennia. But to him it seems that the British period added with the
post-independence phase is not good enough time for the country to adept the
two concepts, rule of law and independence of the judiciary.
In my
opinion, it is not merely because of the British ‘legacy’ that Sri Lanka or any
other Commonwealth country should follow the two concepts under discussion, the
rule of law and independence of the judiciary, but because of the UN and the
international law and the proven superiority of these two in contrast to any other
alternative in modern circumstances. The Commonwealth itself has absorbed these
principles (Latimer House Principles) in its policies and statutes however
imperfect they are put into practice in their respective countries. They are also
the most preferred principles by the people if you allow the chance and the
choice but not ‘arbitrary rule and authoritarianism.’ Yes, we should oppose any
adverse legacy of colonialism, but people are not living in pre-colonial times
although some politicians wanted to take the country back into those bygone
times.
Second
point is that the ordinary people in general should not be ‘blamed’ in any
manner directly or indirectly for the breach of rule of law and the
independence of the judiciary in Sri Lanka at present. The main blame should go
to the politicians and their power schemes including some within the judicial
system itself. This does not mean that one should not discuss social or
historical roots if there is any. But I am not sure the social roots that
Raghavan tries to trace are completely correct. Let me give you some examples
or different viewpoint.
There is
no dispute that “the colonial rule did not work on the Montesquieu framework.”
But it did introduce slowly a new and a modern system of rule of law at least
since 1833. This is a good byproduct of bad colonialism! I am not sure whether
the Silindu example from Baddegama is
a correct one to show how the ordinary ‘subjects’ felt about the ‘colonial law
and its rules.’ It would be worse if we try to apply the same imagery to the
contemporary circumstances. I have conducted some field research in areas such
as Mahiyangana, Moneragala, Kalutara and Bulathsinhala in the past and my
experience show the people’s close adaptation to the judicial system at times with
too much of optimism. In areas that I became slightly familiar with, many
ordinary people seemed to believe that they could get many things done through
a ‘Mosama’ in the courts, to mean a
Motion and not monsoon! Of course these are predominantly Sinhala areas and
there is a possibility that people in the North or the East must be feeling
differently. If I may make a quick flash back, with the introduction of the universal
franchise in 1931, the people’s awareness became enhanced on rule of law and
democracy, reinforced at least in some areas by the left movement. The
Bracegirdle Incident in 1937 was a landmark in this development.
Duality of Independence
When we
refer to the independence of the judiciary, in my view, there are two main aspects:
(1) institutional independence and (2) functional independence. This is very
much similar to what Justice CV Wigneswaran recently explained as ‘extrinsic’
and ‘intrinsic’ aspects of the judiciary. The institutional independence is
something that needs to be guaranteed through the constitution and respected by
the executive, the legislature, and the people themselves. The functional
independence is something that the judiciary should maintain and practice in
its judgments and all other activities. In this respect the judges should be
free from ethnic, class or caste affiliations or biases at least in judgments. There
are internationally developed codes of ethics in the latter respect (i.e.
Bangalore Principles) and Sri Lanka is yet to prepare its own. There is of course
a close connection between the institutional and the functional independence,
and there is a need to ensure that the judiciary functions independently by
ensuring the appointment of proper and unbiased people particularly to the
highest, and all positions.
I have
complete agreement with Raghavan that studies should be done to ascertain how
people actually feel about the judiciary and its independence (he mentions Mannar
and Jaffna as examples) perhaps leading to awareness and education. (If I
remember correct about the results of the Youth Survey conducted by the
University of Colombo in 2002, the young had better trust in the judiciary than
on the police or the bureaucracy). But I am not sure whether his proposed
studies or arguments should lead to creating what he calls ‘citizen based
judiciary’ beyond what we know as independent judiciaries in advanced
democratic countries and building beyond that when and if necessary. We are however
far far away from a situation of going beyond a known system of independent judiciary.
The crucial question at this decisive hour is to defend the independence of the
judiciary or the judiciary, may be critically but unequivocally, whether we
succeed in this round or not. Otherwise we are like the doctor who tries to purge
the patient when she has a heart attack!
What does
it mean by ‘citizen based judiciary’ is not very clear? He appears to come to
this conclusion through a hasty analysis, equating the present system very much
similar to the colonial rule. Of course he has traced a history of ‘this frozen
situation’ as he says highlighting that “neither the legal system nor the
constitution is a production of a consultative process but an elitist impose on
the citizens.” This is what he says more precisely on the present situation.
“The case of the present CJ
allowing her husband to accept a purely political appointment at a state bank
and work to such an extent that the president even after this crisis refers to
him as a “Ape minihek’ (our man), is a classic example. In this sense, the
Lankan judiciary beside all its august achievements has very little difference
to the colonial rule.”
What we
lack here is an assessment of errors, mistakes or blunders in correct and
proportional perspective. The present CJ undoubtedly compromised or breached
her ‘functional independence’ by allowing her husband to accept a political
appointment at a state bank and other places. One may also argue that she
received her appointment as the CJ on that basis. But she had other merits; she
was the most senior. The President’s recent reference to ‘Ape Minihek’ (our man) could have been merely to discredit the
person. However, while talking about ‘all its august achievements’ concluding
that the Sri Lankan or ‘Lankan judiciary has very little difference to the
colonial rule’ appears to be a hasty conclusion.
There are
some previous clues in Raghavan’s article referring to judicial activism that
might indicate what he considers as ‘citizen based judiciary.’ He even has
quoted Justice PN Bhagwati in this respect. In this quotation, it is correct to
say that “the judiciary stands between the citizen and the state as a bulwark
against excesses and misuse or abuse of power.” But this is when the executive
or the legislature ‘transgresses the constitutional or legal limitations.’ In
India and elsewhere, there are some who have interpreted ‘judicial activism’ in
extremely radical terms. But in my opinion those have not gone very far. There
had been a strong backlash from the legislature even in India.
A Balance Approach
The
judiciary is extremely important in safeguarding the rights of the citizens
when the executive or the legislature transgresses the constitution
particularly in between elections. I have no objection for a measure of
judicial activism. But we cannot expect the judiciary to play the role of a ‘good
executive’ or a ‘good legislature’ or even part of it. It is up to the people
to change the law makers and the executive when they transgress democracy
sometimes within the confines of the constitution. In my opinion, the case of
the 18th Amendment perhaps was largely a part of this situation. The
main blame should go to our own elected representatives including the left
leaders and not to the judiciary. If the constitution allows that to happen then
the constitution has to be changed and that is the task before us in Sri
Lanka.
Raghavan
has commented on some dissonance between the present anti-impeachment campaign
and the way the average (non-urban) voters might be thinking on the matter. This
cannot totally be denied; the proportion is the question. The implication is
that perhaps the voters are unconcerned or perhaps they have more misgivings
about the judiciary and even the legal system than arbitrary rule and
authoritarianism. More precisely he says,
“It will be a good time for
those who vigorously argue and agitate on the issue of the independence of
judiciary to stop and find what the average ‘citizen’ attitude/experience in
regards to our legal system, its persons and practices. I imagine one could
find some valid reasons for the present status of disconnection between the
impeachment process and the way average (non-urban) voter views it”.
While
what he says may have to be taken in a positive spirit, as Dr. Rajasingham
Narendran has already pointed out, all major political changes starts with some
sections of the elite taking the lead. This cannot be different to Sri Lanka.
The FUTA struggle beginning with some salary issues of the university academics
developed into a semi-people’s movement to demand 6 per cent allocation of the
GDP to education. That struggle is still not over.
The
present agitation against the impeachment, led mainly by the lawyers (equal in
number to university academics), also has generated strong public debate and awareness
in the country. The counter agitation by the government has definitely been
fierce particularly through the media, compared to the time of the FUTA
campaign. The stakes are obviously more on the government side. Most of the
government parliamentarians are directly involved in this campaign. However,
the left parties in the government have so far placed their strong dissent and
some of the others are reportedly hesitating. As DEW Gunasekera (Minister and
Communist Party Leader) recently expressed, although the public is
understandably silent, the majority of the people (including the rural) appear
to consider the impeachment at least as a ‘wrong move’ on the part of the
government. This is also the view expressed by the Chief Prelates of the three
Buddhist Nikayas.
Like the agitation
by the academics (FUTA) that created a public debate on education, the lawyer
agitation seems to be creating awareness on the ‘rule of law and independence
of the judiciary’ in the country. When intellectuals and lawyers agitate
against injustices in society, it is normally considered a potential of a broad
human rights movement. There are certain limitations for the lawyers’ struggle
for the independence of the judiciary at this stage. It naturally takes an
elitist form. However, apart from the national situation, there is also the concerned
international community which they can sufficiently appeal to. Under such
circumstances, wise rulers take the changing trends into consideration and
change cause or compromise; the others who don’t eventually go into the dustbin
of history. What is reprehensible in the public eye is not so much of the
imposition of the ‘rule of law and independence of the judiciary’ but the daily
imposition of the ‘arbitrary rule and increasing authoritarianism.’ We have to
be careful about what we argue for.
*Dr. Laksiri Fernando is former Senior Professor in Political Science
and Public Policy, University of Colombo.
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