By Basil Fernando –

Basil Fernando

In a very recent order from the Supreme Court of India the court, among other things, stated as follows:

For this Court, the life of a policeman or a member of the security forces is no less precious and valuable than any other person. The lives lost in the fight against terrorism and insurgency are indeed the most grievous loss. But to the State it is not open to cite the numbers of policemen and security forces killed to justify custodial death, fake encounter or what this Court called “Administrative liquidation”. It is simply not permitted by the Constitution. And in a situation where the Court finds a person’s rights, specially the right to life under assault by the State or agencies of the State, it must step in and stand with the individual and prohibit the State or its agencies from violating the rights guaranteed under the Constitution. That is the role of this Court and it would perform it under the all circumstances. We thus, find that the third plea raised in the counter affidavit is equally without substance.

(Suresh Singh vs. Union of India & Another – Writ Petition (Criminal) order dated January 4, 2013 )

This order was made relating to two writ petitions which allege that a large number of Indian citizens have been killed by the Manipur police and other security forces while in custody or in stage-managed encounters or in ways broadly termed as extra-judicial executions. In one of the petitions it was stated that during the period of May 1979 to May 2012 1,528 people were killed in Manipur in extra-judicial executions.

During this same period, that is 1979 to 2012 in Sri Lanka, the number of people who were killed by way of extra-judicial executions is easily over 100,000 of which at least 50,000 were enforced disappearances.

In recent months the issue of the arbitrary removal of Chief Justice Dr. Shirani Bandaranayke has been among the top most issues discussed both locally and internationally. It is quite relevant to note that this bold attack by the executive to remove the Chief Justice of Sri Lanka for the first time in the long history of the Supreme Court of Sri Lanka the first chief justice of which was appointed in 1802 did not happen by way of an accident. There was a long process leading up to the gradual undermining of the Supreme Court.

Close examination of the conflict between the Supreme Court and the executive would show that one of the very important causes (perhaps not the sole cause) for the conflict the executive and the judiciary lies in the area of dealing with the very issue of what the Indian Supreme Court has referred to as ‘Administrative liquidation’.

From1971 following a minor insurrection the government, with the complete support of the opposition at that time, engaged in a ruthless spree of killings of between 5-10,000 persons, mostly youths. Most of these killings took place after arrest. There has never been a proper judicial intervention to inquire into these killings by way of ‘Administrative liquidation’. From then on there has been a continuous causing of extrajudicial killings often by way of enforced disappearances and the number of such disappearances would easily exceed 50,000. The government appointed commissions themselves recorded the complaints of enforced disappearances of around 30,000 persons between 1987 and 1991, mostly in the south. The conflict with the LTTE has caused large numbers of disappearances in the north and east and these have never been counted. It was recently reported that about 5,000 complaints were made to the United Nations Working Group on enforced disappearances and the government was only able to account for 17 out of that 5,000.

What is relevant to this article is that in Sri Lanka these killings were considered as a legitimate form of ‘Administrative liquidation’ in. It was the inability of the Sri Lankan Supreme Court and the judiciary to challenge these arbitrary killings and its willingness to be silent on the issue that has undermined the judiciary in Sri Lanka more than any other reason. A vast gap has been created between the people and the courts. The courts did not prove capable of intervening on this crucial issue demanding accountability on the part of the governments in power.

This was perhaps the reason why the executive was able to move to the extent of the arbitrary removal of the Chief Justice herself. Had the courts maintained their moral authority by way of a proper judicial intervention to require accountability when the state had taken the lives of some of its citizens, the people would have not allowed the executive to strangulate the judiciary by way of such an arbitrary removal. The judiciary having failed to play its role in the protection of the most precious of all rights, the right to life, it has bared its throat to an extent that the executive is now able to take away its own life.

The judicial role in the protection of the life and liberty of the people and judicial independence are inseparable. The judiciary needs to be independent in order to play the role of the protector of the individual. On the other hand the courts need to play that role effectively so as to justify their existence legally and morally.

Thus, when threats to the independence of the judiciary is posed, as in Sri Lanka, the responsibility of the executive as well as the responsibility of the judiciary itself should be examined at the same time. The judiciary that fears to expose itself to risk by way of defending the rights of the individual will sadly expose itself to the executive who would not fear to attack the judicial independence knowing the great gap that has come to exist between a judiciary that lacks courage and the people could be exploited to their advantage. When the judiciary passively watches the killing of citizens by the security forces the executive sees in the judiciary not a lion but a monkey. Then the executive begins to monkey with the judiciary. In 1978 Dr. Colvin R. de Silva wrote an article entitled ‘Monkeying with the judiciary’. From that monkeying with the judiciary to the arbitrary removal of the chief justice herself was only a small step.

The Indian Supreme Court has been able to maintain its independence because it has been quite alert to the threats posed by the executive to the dignity and the rights of individual citizens in India. When Indira Gandhi attempted to acquire greater authoritarian powers the Indian Supreme Court was able to stop it. No government in India would even think of the removal of its chief justice in the manner in which the Mahinda Rajapaksa government did. In India the role played by the courts to be the protector of the rights of the people has helped to protect the courts themselves. This is a lesson that should be kept foremost in the minds of everyone who wishes to see the judiciary in Sri Lanka regain its independence.