By Laksiri Fernando –

Dr Laksiri Fernando

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.”

According to him, not only the concepts 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 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 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 18^th 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 the view expressed by the Chief Prelates of the three Buddhist Nikayas.

Like the agitation by the academics (FUTA) 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.