By C. A. Chandraprema -
Even as we write this, the impeachment drama that gripped the country over the past few months has receded from the public consciousness. Shirani Bandaranayake is already only a distant memory. Last Thursday, as we walked out of the Rupavahini Corporation studio after a late night talk show on the aftermath of the impeachment, the main topic of conversation was the price of vegetables these days due to adverse weather conditions. And indeed the next day, the price of vegetables had replaced the impeachment as the main news item on the TV channels.
Be that as it may, the new CJ Mohan Peiris, has an unenviable job on his hands. The 44th CJ has to deal with challenges not faced by the previous 43 put together. What he is faced with is nothing less than the rehabilitation of the dignity and self respect of the Judiciary. Over the past decade or more, two previous CJ’s had caused damage to the standing of the judiciary – Sarath N.Silva and Shirani Bandaranayake. The brief interlude of Asoka de Silva in between these two, did not help much because he was succeeded by someone much worse than his predecessor.
We had an uncanny parallel to this in the field of politics too. Both presidents Premadasa and Chandrika Kumaratunga set the country on fire by relentlessly persecuting political opponents. Instability in the country at that time emanated from the heads of state themselves more than from any other source. President D.B.Wijetunga’s short interlude of 18 months did not help much because his successor was much worse than his predecessor. The man who really ended that unpleasant era was Ranil Wickremesinghe who when he assumed power in December 2001, did not seek to wreak vengeance on his political opponents even though they had relentlessly persecuted him when they had power. Any other person wouldn’t have been able to resist the temptation to go on the rampage. But by not going on the rampage in December 2001, RW ushered in the period of political peace that we have now enjoyed for more than a decade.
There have been changes of government during the past decade, but the succeeding governments have not had a policy of persecuting political opponents. When CBK managed to get back the parliamentary power that she had lost in 2004, she was tamed and chastened and did not resume her earlier pastime. After she retired and Mahinda came to the fore, that policy of not persecuting the opposition has continued and we have had this decade or more of civilised politics thanks mainly to RW’s wise decision not to retaliate in 2001. Perhaps what the judiciary needs is a similar cooling down. Of course the policy of non retaliation will work only in a situation where the other side has enough good sense to reciprocate and not consider non-retaliation as a sign of weakness.
Independence of the Judiciary
Now that this sordid drama has finally ended, it is perhaps pertinent to pose the question as to whether the independence of the judiciary in this country has been impaired in any way by recent events. What is meant by the independence of the judiciary is the ability to deliver judgements based on the facts and on the law, without the judges being told by someone else to twist the judgement in one way or another. For example a politician should not be able to tell a judge to decide a land case in favour of one of his supporters. If such things were allowed, this country would descend into anarchy. Being able to deliver judgements in criminal and civil cases without fear or favour is an absolute must for the stability of the country. It is this independence that the judiciary should safeguard at any cost. There is no role for the judiciary in usurping the functions of the government. In Britain, the judiciary implements any law that comes out of the legislature without question. In countries like the USA and India there is something called the power of judicial review whereby the judiciary can declare on the constitutionality of laws coming out of the legislature. So in theory at least, the judiciaries of the USA and India have more power than the judiciary in Britain and can even declare null and void any legislation after it has been passed.
But in reality, the judiciary in the USA and in India do not have the power to countermand the legislature. What we see in Britain is a certain degree of constitutional honesty with it being plainly stated that the judiciary should not dare question anything coming out of the legislature. In the USA and India, either the law or the constitution itself says that the judiciary can overturn legislation, but what we see in both these countries is a kind of constitutional hypocrisy with the law and reality being two different things. Both the USA and India have evolved over many decades, a well oiled system whereby the power of the judiciary to overturn legislation is quashed, and what finally prevails is the will of the legislature. In the USA, the judiciary is always bullied, intimidated or simply overridden by the legislature and in India, the expedient of constitutional amendment is resorted to speedily and frequently in order to overturn any judicial decision that the legislature does not like. In practice, the power of the American and Indian judiciaries is the same as that of the British judiciary.
In Sri Lanka any feeling that the independence of the judiciary has been impaired is because it has been conclusively established that the judiciary cannot override the legislature. But then that is not the role of the judiciary and as we just pointed out, there isn’t a single instance even in India or the USA where the judiciary has been able to prevent the legislature from having its way on any matter of public importance. Once everybody gets used to the idea that the judiciary’s role is to hear civil and criminal cases without interference, and not to play a role in the making or unmaking of laws, this idea that the independence of the judiciary has been impaired will disappear. The judiciary is now back where it always was – nothing worse has happened.
Even though some people say that this impeachment has endangered the independence of the judiciary, far greater damage to the judiciary would have occurred if not for the impeachment. If not for this impeachment, the ethical principle that judges should not hear cases in which either they or their close relatives have a personal interest would have been thrown out of the window. If the CJ was allowed to remain in office while her husband was tried in a magistrates court in the most high profile banking case of recent times, that would have destroyed the credibility of the judiciary. The credibility of the judiciary was being eroded in a subterranean kind of way even before that, because of the actions of the former CJ.
There are journalists even in this organisation who had been following the Golden Key case for the past few years and who knew all the sordid goings on. They were too scared of the SC which can jail people for contempt of court to speak the whole truth in public. But they whispered their concerns to others and the feeling that the Judiciary at the highest levels, was becoming a den of inequity was gaining ground. If that trend had continued, the members of the lower judiciary too would have followed the former CJ’s example and the final consequences of such a trend would have been catastrophic.
Courtesy Sunday Island