By Laksiri Fernando –

Dr Laksiri Fernando

Karl Marx said “the task is not just to understand the world but to change it.” Of course the implication of this is that “if you want to change the world you would better understand it first.”  One doesn’t need to be a Marxist to agree upon the above two propositions.

In the case of Sri Lanka, we have a situation where there is a clear attempt on the part of the executive to subjugate the judiciary using the legislature as its cat’s paw. Legislature has lost or losing its proper representative character. This was not the case before although some inroads had already been made. This is in a background of a mammoth military build-up. The executive has a preeminent advantage in this scenario given the present form of presidential constitution and the subsequent 18^th Amendment and the parliament has become a mere appendage of the executive both through politics and other measures of corrupt practices. There is a considerable apathy among the masses mainly due to the absence of a strong opposition although both economic and social disparities have been increasing creating vast contradictions between the rulers and the ruled; the rich and the poor. Instead of promised reconciliation, tensions in the North are simmering and a major strategy of the ruling elite or the family has been to propagate Sinhala chauvinism in the guise of patriotism.

No one would argue that the judiciary has been a perfect institution in the past. Its independence has been compromised many a time, not by one but by many. Particularly during the war, many improvements or reforms to the judiciary had been postponed or neglected. However, the judiciary is the only institution that has come forward to challenge the arbitrary rule of the executive and the supine character of the legislature. It is a matter of survival I believe. This effort has to be unequivocally supported whatever were our criticisms in the past about this or that action of certain individuals. There is no need to repeat them and some of the matters could be raised and discussed further, in my opinion, after the impeachment matter is concluded. There are three matters in respect of the impeachment that are almost beyond doubt.

First is the fact that the impeachment against the Chief Justice is the central issue of the independence of the judiciary at present. If the CJ is removed or forced to step down, it would be easy for the executive to appoint a complete stooge and coerce the other judges. Are we going to allow that?

Second is the fact that the impeachment is a political move and has nothing to do with any of the charges that have been levelled against the CJ. The sequence of events testifies to this fact completely coinciding with the Divineguma verdict of the Supreme Court.

Third is the fact that the impeachment procedure of the PSC has been completely faulty both by local and international standards and the CJ has not been given a fair hearing that has to be denounced by all sections unequivocally. In addition, the vilification campaign has completely damaged the dignity of the judiciary.

There has been a mighty hurry for the PSC to complete the proceedings. In the event, both the CJ and the opposition members had left the PSC leaving no credibility. Only three charges are supposed to have been proved out of 14 and nine charges have been dropped whatever the reason. The report of the PSC is still not published or given even to the opposition members of the PSC creating doubts that the text is still being manipulated.

In addition to the independence of the judiciary, there is the question of personal injustice to the Chief Justice. No one could deny that or should ignore. She was blatantly abused.

Among the three charges supposed to have proved, two are to deal with the complicated issue of ‘conflict of interest’ and there are no standard rules that have been formulated in Sri Lanka on the ‘judicial conflict of interest.’ Partly, the judiciary is responsible for this matter. ‘Conflict of interest’ is an easy accusation to make but a complicated one to substantiate unless there is proof. If the conflict of interest is raised in its loose form against all judges, they all may have to go and there is no reason why only Dr Shirani Bandaranayake should be punished. There are more acute conflicts of interest on the part of the executive, particularly the Ministers.

Let me make some preliminary observations on the so-called proved charges. In the case of charge 5, the conflict of interest is quite hypothetical and not something that has objectively happened. If at all it is not a conflict of interest that the CJ has created; but something purposely created by the government. This is about the bribery case against her husband. In the case of charge 1, there is no clear connection between the outcome of the case that she was hearing and the interest that she was supposed to have had with a party to the case. No one has raised the issue during the case. As she has pointed out, the former Chief Justice also was in the same position, perhaps quite inadvertently in both cases. Then why only she should be punished?

The charge 4 is about some supposed to be undeclared bank accounts and she has given plausible explanations. The question is whether any lacuna due to misunderstanding or misinformation, if there was any, could be considered an impeachable offense unless wilful non-declaration is proved. Non declaration should have been raised by the Inland Revenue Department first. If complete accuracy in asset declaration is a criterion for impeachment or removal, then perhaps 90 per cent of the government officers and politicians might come under that category.

When impeachment or conflict of interest issues are raised, they look bad whether the charges are correct or not. That is why an impeachment has to be a carefully thought out business unless it in itself is a fraud. Judges normally shy away from impeachments. But our CJ has not done so. Why? Whatever the misgivings I have had about her past, I believe that she was feeling a strong injustice perpetrated against her to fight back so firmly. Of course this is not to deny that she made a terrible blunder by allowing her husband to accept a government position. But the government is more responsible than her for that muddle.

Normally the impeachments are not backed by political campaigns on the part of the proposers i.e. governments. But the campaigns that the government has launched and still continue give the impression that the impeachment is fraud. Therefore the impeachment against the CJ doesn’t look that bad. Instead, it has given much courage for the legal profession and even the community of judges to stay put. It is more than staying put; it is like another replica of a FUTA struggle.

After the convictions of the former Army Commander, Sarath Fonseka, this is the most vicious political trial conducted in Sri Lanka, ironically this time against the Chief Justice. The present trial is equally or more vicious than the former. The question arises why two key people in the establishment were convicted in such a manner within a pace of two years. Whatever the answer you get, it may speak volumes about what kind of future at stake in Sri Lanka, if the trends continue and if not halted.

The issue at stake is not only about setting standards for a perfect or a better judiciary. It is about its institutional independence from the coercive power of the executive. It is about its independent existence from the ‘whims and fancies’ of the politicians. There is nothing wrong for anyone to raise issues of functional independence of the judiciary even at this ‘fatal stage,’ if they wish to, about class or ethnic biases of the judiciary. There is no question that they do exist and there had also been series of issues of conflict of interest visible and not so visible; advertently or inadvertently. However we should not allow the enemies of democracy, if I may use that term, to use our constructive criticisms to destruct the independence of judiciary.

Whether we believe in a socialist, mixed or a capitalist future, democracy is important and thus the independence of the judiciary is important. We may need to distinguish between the institutional independence from the functional independence of the judiciary and if there is no institutional independence demarcated through proper constitutional and political means, then the functional independence also will fail.