By Lal Wijenayaka –
Lal Wijenayaka
The much respected and universally accepted concepts of ‘Rule of Law’ and ‘Independence of the Judiciary’ are again at the forefront of the political dialogue in our country.
Article 12(1) and 12(2) of the Constitution declares ‘Rule of Law’ as a fundamental right by enacting that ‘all persons are equal before the law and are entitled to equal protection of the law’ and that ‘no citizen shall be discriminated against on the ground of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds.’ What it means is that law shall apply equally to all citizens and all citizens will be subject to the due process of the law. One cannot envisage Rule of Law without an Independent Judiciary. Independence of the Judiciary is constitutionally protected by the provisions set out in Articles 107 to 117 of the Constitution.
It is not an overstatement to state that a government by the will of the people, upholding of the fundamental rights as enunciated in the Universal Declaration of Human Rights and the Rule of Law are the three pillars on which a Modern Democratic state rests. The Rule of Law requires a judiciary that is independent such that their conscience should accompany their judgment. The judiciary has to adjudicate between man and man and between man and the state in the manifold disputes that arise between them. The Independence of the Judiciary is to hold the scales evenly in adjudication between man and man and man and the state. The Independence of the Judiciary in judging between man and man is not difficult to ensure, as the independence of the judges in judging between man and the state. Importantly the struggle for independence of the judiciary has been the struggle to ensure Independence of the Judiciary in judging between man and the state. What in fact it means in modern governance is that the judiciary should be independent from the executive and the legislature in the performance of its constitutional function in the administration of justice.
It is not in dispute that Sri Lanka has enjoyed the Rule of Law and the Independence of the Judiciary at least from the advent of the Donourghmore Constitution in 1931 till the introduction of the Executive Presidential System of Government in 1977. The threat to the Rule of Law and the Independence of the Judiciary under the Executive Presidential System with a powerful President was one of the main reasons that prompted all political parties to agree to the introduction of the 17th amendment to the Constitution. The repeal of the 17th amendment by introducing the 18th amendment to the Constitution has vested unprecedented powers unknown in any Presidential System that even nominally proclaims to be democratic.
It has to be accepted that the perception of the masses is that the ‘Rule of Law’ and the ‘Independence of the Judiciary’ has faced painful blows and that we are faced with the question can the Rule of Law and Independence of the Judiciary survive in the face of these blows.
After the 18th Amendment and the unprecedented move by the President in bringing the Attorney General’s Department under the Ministry of Defense which is under him, events has moved fast which has caused deep concern among those committed to upholding the due administration of justice. The withdrawal of a murder charge against a political activist of the Government party while the trial was on, the withdrawal of the indictment against a minister changed with misappropriation, the withdrawal of rape charges against an MP on flimsy and legally unacceptable grounds, the behavior of a minister in tying a public servant to a trace in the view of the Police and TV Cameras and the failure of the authorities to take action, the way the Bharatha Lakshman Premachandra’s murder investigation handled, the Malaka affair, the numerous criminal acts of politicians which has been either ignored or condoned and many other incidents culminating in the attack on the Magistrates’ Court of Mannar and intimidation and threats on the Magistrate in performing his judicial functions, are of deep concern for all those committed to a ‘Rule of Law’ and ‘Independence of the Judiciary’.
In the face of these events the statements issued by the Judicial Service Commission through its’ Secretary and the verbal attacks that followed on the Chief Justice and the Other Judges of the Supreme Court in the state media through well known spokesmen for the Government when the judgment n the reference to the Supreme Court regarding the Divineguma Bill was due has brought the issue of ‘Rule of Law’ and ‘independence of the Judiciary’ to the center stage of the political discourse.
It is the 1st time in the legal history of our country that the JSC and/or judges has to go public on the interference of the executive in the performance of the constitutional functions vested in the the JSC. We should salute the JSC for its’ boldness in not submitting to the pressures of the executive and for the boldness displayed in issuing a public statement. It is the people who are souvereign under our constitution and the people has to be aware of any pressure that is brought about to prevent the due functioning of the Constitution.
What is important is to understand the underline meaning of the contents of the statement issued by the JSC.
It conveys the message that the pressure on the JSC is so heavy that the JSC while resisting these pressures it is becoming unbearable. Further it is a statement that calls upon the people, that is civil society to be aware of what is brought about on the JSC.
The Bar Association of Sri Lanka as well as ‘Lawyers for Democracy’ which is an organization of Lawyers has come out in support of the JSC in its struggle to protect its independence.
Lawyers in different parts of the country has come out in support of the JSC, which in fact means for protection of the ‘Rule of Law’ and ‘Independence of the Judicial’.
As civil society becomes aware of the gravity of the situation there is bound to be more forceful demonstration of its opposition to the moves to subvert the Rule of Law and the Independence of the Judiciary.
It is seen that those concerned are not paying serious attention to what has caused this crisis. The crisis is due to the all powerful office of the Executive President that we have created. It is only the dismantling of this system and a reversal to a parliamentary democracy with the executive powers vested in the Prime Minister and the Cabinet under the overall control of the legislature with accountability to Parliament that can bring back the faith in ‘Rule of Law’ and ‘Independence of Judiciary’ and in fact it means democracy itself that we enjoyed and which is turning out to be history now.
Jim Hardy / October 3, 2012
Every body knew this was coming when Mahinda implemented the 18th amendment why our civil society went mute,
we SriLankans are selfish lazy cowards.
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Sirimal / October 3, 2012
This has been their style from that day on. I mean the majority of the folkes in SL. They are more passive observers. So the leaders like Mahinda can abuse them easily. No matter they are senior politicians, highly academic lawyers, or other professionals, they simply dont care – what is going on in the country today. In the same time, I read news where Galle people had yesterday attacked to newly appointed principal to an urban school in Galle. Can you imagine for issues such as these, they dont let it go, but neglecting crucial changes to the country´s constitution such allowing to pass 18th AMD in parliament.. they behaved as if they are deaf… what a country :(
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Sirimal / October 3, 2012
Mahinda as COUNTRY´s Minister of Finance today – has he uttered a word at the time SRILANKEN (airline) was abused by its current chairman ? no
People and so called vociferous journalists like Viktor Ivan and ones of his ilk remain further silent ? nobody cares. You know ? This has been present day sl…
Let alone, Mervin has abused the rule of law not once many a time – repeating so long MR and Rajapakses are in power, nobody can stand in Mervin´s way… following his statements, who reacted in the country ? where have those powerful JVPers gone ? They are sleeping as if they have been injected with SLEEPING PILLS.
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Ben Hurling / October 4, 2012
Politicians who backed the 18th amendment are either idiots, opportunists or traitors.
We just got rid of the LTTE meance.
Now we have to battle a power hungry, corrupt family clan, their cronies and henchmen.
Sri Lanka shall overcome this hurdle too. Make no mistake.
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Senaka Bandara / October 3, 2012
What ever you say or write is not going to get into the “dud brains ” of the rulers.Wash off your hands till the people most of whom are not aware of their manouvres, threats and killings
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Lasantha Pethiyagoda / October 3, 2012
Politics has long since lost its original purpose and practice in the spirit they were intended to be held. Therefore, any evaluation of what passes for “politics” must take account of its current context and application.
If legal eagles continue to quote nineteenth century interpretations of the law they would eventually find themselves talking to an empty space.
Writers would do well to understand these realities when they discuss what they learnt as students, or practiced in civil courts etc.
Former US president George W Bush’s declaration that “Geneva Coventions are now irrelevant” when establishing the gulag of Guantanamo Bay, Bagram and the like must serve as pointers if particular governments seem contemptuous of the law.
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Dr Arun Vincent / October 3, 2012
Rajapakse is the Sinhala version of Prabaharan. If not for Prabahran, Rajapakse would not have come to power. SL needs a new party consist of all communities.
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Rubert Vanderkoon / October 3, 2012
If not for Rajapakse, Prabhakaran would be alive today as well.
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gamini / October 4, 2012
It is so for those who do not know what the Americans and the Indins, with the Chinese are up to propping MR up, with such victory.
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Peter / October 4, 2012
Rupert,
Why could the President destroy VP without destroying
tens of thousands of innocent civilians?
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Sam Samarasinghe / October 4, 2012
Vasudewa, Witharana & Dew are in forefront among the others who supported 18th Amendment,to this pathetic situation. All Sri Lankans irrespective of their ethnicity, race and religion will curse them.
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Jagath / October 4, 2012
Do you know who is culpable for all this? It is buffalos like Rubert Vanderkoon who have destroyed this country into this situation! Do you know the solution for all this? It is retrospective kith and kin killer justice and catch alive or dead justice under a new rule that will put the things right and address accountability and reconciliation issues in the country! These Rajapakshas and their henchmen and boot-lickers have destroyed law and order and enjoy impunity to such an extent that it is not possible to administer justice any more on this land. They commit all kinds of crimes and plundering and get away with it. Many of them may have died when a new government comes into power and address these issues. Therefore what the ordinary people have to do is to gather information about their crimes and corruptions and the family members kith and kin and henchmen and their family members so that the guillotine of the law turns towards the next tire of culprits for its implementation! People like Rubert Vanderdoon would be liable for punishment for dissemination of falsehoods and misleading the opinion and people.
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gamini / October 5, 2012
Jagath, what Law and Order to a bumsucker like Rubert who does not know whether he is Vanderkoon or Banderkoon?
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Chinthamani Amarasinghe / October 5, 2012
We should recover our lost democratic Sri Lanka and get rid of the corrupt, lawless Banana Republic and the Jokers associated with it. Automatically the citizens will regain all the lost democratic rights including the Indipendant Judiciary.
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Sunila Mendis / October 5, 2012
Nothing will drive these morons out other than a united opposition launching an Asian spring.
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Siri / October 5, 2012
Sunila, the biggest problem as I notice is just a small percentage of lankens seem to even think of a change – while a larger majority is behaving as if they are very selfish. Those who have power to react are mum today.
I personally believe the media should take a lead. No signs of the opposition becoming united – it can take decades.
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Silva / October 6, 2012
Siri, to tell you the truth, I am ashamed of my history: an expelled bandit with hair on head half-shaved, thrown on to the waters of the Indian ocean with a curse never to return along with 700 brats equally shaved and of the same ill-mannered ill-bred qualities a prince so called Wijaya who stole the wife of a native and then went on to kill the king and the kith and kin of the king then invaded this land and colonized imported wives from India too-that is the history of Sinhalese. What fucking unselfishness or rights-preserving measures could be forthcoming from such a nation begot by 701 brats? Don’t ever believe in these media whores because they have become worse that the whore Chinchimanavika. This nation of jokers have got their rightful king the reincarnation of prince Wijaya! But this time around he is spawning a new nation, the Madamulana Gankabara Nation! All others us are Kuwaini’s people whole are doomed to be got rid of gradually by various means such as Arsenic poison, adulterated medicine, radioactive steel cutlery, lack of nutrition, extrajudicial white van disappearances and riot shootings, planted road accidents, mass killings like the Nandikadaal massacre, ignorance due to lack of education opportunities etc. Don’t complain about opposition getting united because it will never happen as long as decoy proxy relatives of Wijaya like Sajith, Dayasiri, Maithree, Karu and Sirasa media whore etc. are dragging by the foot of the opposition leadership. If you are serious and want to salvage at least the malnourished dying skeleton of yours and your Kuwaini’s nation I will give you a clue: don’t wait until opposition come and save you because if you don’t support the opposition and don’t vote for the opposition they can’t be of any help. You are the opposition, your family members are the opposition, your relatives are the opposition, your friends are the opposition; your clients, contacts, employees, neighbors are the opposition; the disillusioned SLFPers are the opposition; the oppressed, affected, bereaved, unfairly treated, cash strapped, the extortioned, the ransacked, the cheated are the opposition; the monk, the nun, the Father, the priest are the opposition; the multitude of the unnamed and unheard are the opposition. Go to them, speak to them, make them aware of the truth and dispel the myth planed or conceived in their minds about the opposition leadership and others. Speak on the true ugly nature of the rogue king and his despotic measures. Make them vote for the UNP! It is not Rani but your vote that topples this government! Take your sovereignty into your own hands, look at it, understand it, feel the power of it and taste it by forming a democratic government under Ranil! Some butchers after seeing this comment may come and expand their assholes to let us creep inside to feed you with filth! Challenge them to submit their own leader from their own political party! After all maggots have no place in UNP! Maggots have no place in this country as well!
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rasavath / November 4, 2012
final rites on the rule of law are taking place under our noses the public is apathetic to it! I would argue that it all started about 10 years after Independence. Sri Lankans were nice people but now the war and grappling with life, and the total lack of education, social graces, civility has taken us down a slippery slope. We now abuse and exploit our environment we are not wise like we once were!
We are selfish I believe arising from religion that looks inward at the self at the expense of the whole. The former Chief Joker accelerated all this by his style on the bench bit of a showman…. arbitrary and vindictive.
The law is observed more in the brach than anything else today. I will join any peoples movement to throw all politicians out of office and have the country ruled and governed by Professional Public Administators like it once was.
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