By Lukman Harees –

Lukman Harees

‘The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing’.– Caroline Kennedy (US)

It has been a matter of regret that successive Post-1970 governments have been attempting to (and mostly succeeded) to subdue or enslave the Judiciary by various dubious means, to make their political dreams come true, least bothering about whether they impinge on people’s rights or not. How JRJ Government impeached the outspoken CJ Neville Samarakoon, and how the MR government impeached CJ Bandaranayake for not toeing their line ,were perfect examples of such political misconduct. On the other hand, there were/are characters like CJ Sarath Silva and Present CJ Mohan Pieris, both of whom were appointed to this highest office over others more deserving than them, chose to or continue to throw lifelines to those in power, the cumulative effect of which was the gradual erosion of public confidence in the Judicial process and Rule of Law in the country. This process of degeneration found its’ peak, during this MR Regime. Sri Lanka’s judges and magistrates then formally protested, its’ lawyers held candlelight processions to lament the “darkness that has descended” over the rule of law. The international legal fraternity too protested, but MR stood his ground. It was therefore not surprising that the people did not show any signs of shock, when the Supreme Court found that MR has no legal bars to contest for the third time.

In fact, the lack of judicial independence in Sri Lanka was a concern strongly reiterated by the International Bar Association’s Human Rights Institute (IBAHRI)in 2013, in light of the (comical) comments then made by President Mahinda Rajapakse that Sri Lanka has an independent Judiciary and its’ legal system was capable of responding to human rights violations. Baroness Helena Kennedy QC, IBAHRI Co-Chair commented ‘..since the end of the armed conflict, the Sri Lankan government has been systematically dismantling checks and balances on independent justice institutions, as has been exemplified by the unlawful impeachment of Chief Justice Shirani Bandaranayake’.

As stated at the outset, this kind of political attacks on the Independence of the Judiciary and/or appointing misfits to the Bench , are not peculiar to the present times in Sri Lanka. This deplorable situation only matured during MR Rule. It was evident in the 1970s when Felix Dias Bandaranaike was the Minister of Justice. Former President JR Jayewardene also had to clash with some members of the judiciary, especially with former Chief Justice Neville Samarakoon who criticised the Executive at a prize-giving address at Sinnathurai Tutory in Colombo. Angry government leaders, keen on finding faults with the Chief Justice who spoke and gave judgments without political fear or favour, hurriedly looked through law books to see as to how a judge of the Supreme Court could be removed. In that case , the JRJ government appointed a select committee to go into the matter. The Select Committee was headed by Lalith Athulathmudali,who finally found that although CJ’s conduct was not becoming of the high office he held, it did not amount to proven misbehaviour. The matter ended there.

In addition, Sarath Silva’s tenure as Chief Justice too, did immense damage to the public image of the Judiciary. In 1999, Sarath Silva was appointed as the CJ by President CBK on a basis of personal friendship rather than merit, bypassing one of Sri Lanka’s greatest judges, late Justice Mark Fernando, Undoubtedly, many foresaw the dire warning signals for Sri Lanka’s judicial institution. Within the ensuing decade, the authority and credibility of Sri Lanka’s Judiciary, was irretrievably undermined by a spate of judgments determined on personal or political considerations. Sarath Silva’s infamous verdict in the ‘Helping Hambantota case ‘ favouring Mahinda Rajapaksa, further served the erosion of public confidence in the Judicial process. People saw a general pattern of law and justice being subordinated to political preferences at that time. Thus, the public image Mohan Peiris ‘enjoys’ today, as a puppet CJ , was then donned by Sarath Silva, despite the latter now expressing his apology about his ‘mistake’ in the ‘Hambantota’ case ’, in opposition platforms these days.

An independent, impartial, honest and competent judiciary is an essential prerequisite and is integral to upholding the rule of law, enhancing public confidence in the Judiciary. An independent judiciary is a critical guardian of our rights and liberties as citizens, enshrined in the Constitution. A robust and productive economy we are seeking to create ,depends upon a consistent, predictable, even-handed, and respected rule of law. In this regard, our courts are essential to an orderly, lawful society. We require respected judges. Our society would crumble if we did not respect the judicial process and the judges who make it work, although no system is perfect and no judge immune from error. It is therefore important that as Sri Lanka moves to build a sustainable economy and peace in the Post-War era, it commits itself to re-establish the independence of the Judiciary, by liberating it from the clutches of self-serving politicians.

If we look at our neighbouring countries, there is much pronounced Judicial Activism and their public has a much better image of the Independence of the Judiciary. India was blessed with illuminating Judiciary characters like Justices Baghwati and Khrishna Iyer- who spearheaded the campaign for Public Interest Litigation to bring justice at the grass-root level and the liberal expansion of locus standi”. India also had fearless dissenters like Justice H.R. Khanna who stood lonely up for what was right , like in the case of ADM Jabalpur Habeas Corpus case (1976), during Indira Gandhi’s Emergency rule, even when all other judges including Justice Bhagwati, ruled for the government.

Bhagwati, 30 years later ,admitted his “mistake” about this case at a press interview with New York Times and referred that case as ‘having come close to the Indian Supreme Court’s “utter surrender” to an absolutist government’. The reason, why The New York Times wrote at that time: ‘If India ever finds its way back to freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week’.

Powerful governments in India thus, have often tried to attack the independence of the judiciary, like the 1970s Indira Gandhi government and in the 1980s, the government was accused of intimidating the judiciary by transferring independent High Court judges to other courts. Many judges continued to decide cases independently despite such devices imposed by the government, often paying the price for their independence. Thus, the independence of the judiciary did not cease to exist even under powerful governments headed by Prime Ministers like Nehru or Indira Gandhi and thereafter.

This was re-emphasized by the present Chief Justice of India Justice Lodha, who said recently in an address “There will be Rule of Law only when judicial independence is protected,” .The public in India reposes great faith in the judiciary and “understands that judiciary’s institutional independence cannot be touched”. On the other hand, he said it is the duty of the judges to remain incorruptible. “There is growing corruption today. There are people who will play all sorts of tricks and tempt judge. Do not fall for this. We have to ensure that judiciary is corruption-free, and then Rule of Law will follow,” He concluded.

About Pakistan, Imran Khan, Cricket Hero turned politician, said ” The people of Pakistan have achieved an independent Supreme Court after a great struggle. It was the free and impartial Apex Court that had exposed high-profile corruption scams. If there wasn’t a free judiciary, the corrupt leaders would have looted the country. A free judiciary is a blessing and the Pakistani nation should stand by it.”

Thus, in order for courts to freely decide cases for or against the government without fear or favour, what matters is not how strong the government is, but how independent the judge is. Various factors go into making a judiciary independent. Independent judges usually have security of tenure and fixed compensation. In other words, the independence of the judiciary requires that judges should not be hired or fired at the government’s pleasure, but that they should hold their offices during “good behaviour”, and that their salaries and compensation should not be reduced during their terms in office.

Politicians in power, feel strongly that the courts are preventing them from reaching their political agendas and not providing a rubber stamp of legality and constitutionality to every decision made by their regime. Hence, manipulations are engineered to transgress judicial independence in order to make the judiciary an appendage of the executive. Many still dream of practicing the legal profession in a way it was practiced prior to the 1970s. However, until this authoritarian rule perpetrated by the Executive Presidency as per the 1978 Constitution is abolished, and the judges are allowed to exercise their judicial powers independent of the Executive’s influence, that aspiration will forever remain a dream.

The IBA delegation in 2011, was of the view that ‘the perception of a lack of independence of the judiciary was in danger of becoming widespread and that it was extremely harmful to respect for the rule of law by ordinary citizens. It was concerned that not only is there a perception that the judiciary is not independent, there may indeed be some basis in fact for the existence of such a viewpoint in relation to a minority of the judiciary’. The independence of the judiciary from the influence and control of political actors is one of the hallmarks of a constitutional democratic system, which is presently in mortal danger, the salvation of which , cannot be left for the future generation to sort out. It is the NEED OF THE HOUR , and the decisive vote on the January 8th for a change would/should pave the way for the Constitutional checks and balances to work as they should, to create a just and equitable society. MR cannot do it as he is clearly part of the problem.