His Excellency Percy Mahendra Rajapaksa beside his many other talents, proves to be a great crisis manager. His ability in this area is so rich that his daily rule is cluttered with some form of crisis not as an issue to manage but as a mode of governance. Recently may have stepped on one of the complex and thorny areas in term of the impeachment of his own Chief Justice, yet the signs are that he will turn this to his own popularity. The duel modality by which he, on one hand initiates and encourages the ousting of the CJ while on the other distancing from the same process or even denying it, is surely the mark of Mahinda. This is a brief reflection to probe the possibility of an independent judiciary if ever, in the fragile and fractured democracy of Lanka.
All undergrads of Political Science are taught the doctrine of separation of power in a working democracy. We often start with the French Jurist Montesquieu, who basing his conceptual analysis on Aristotle and John Locke presented a framework of analysis on the same. Montesquieu possibly did not even imagine the despotic rule of dictators and their bloody regimes of the 20th /21st century. He maintained that for human liberty, it is essential to have checks on governments as political power has the inbuilt ability to corrupt. His answer was to separate and maintain three independent yet cross-pollinating centers of power: the legislature, executive and the judiciary- each performing a specific function relating to others independently. For Montesquieu-very basically – the legislature is to debate and enact laws, the executive is to defend the state and the judiciary to interpret law in dispute settling and awarding judgment. He argued that I) all three of these functions should be clearly separated, II) one institution should not interfere with the other and III) one (same) person should not be involved in all three institutes. On the judiciary he said;
There is no liberty, if the power to judge is not separated from the legislative and executive powers. Were the judicial power joined to the legislative, the life and liberty of citizens would be subject to arbitrary power. For the judge would then be the legislator. Were the judicial power joined to the executive, the judge would acquire enough strength to become an oppressor (1977:245).
It is obvious that this extreme separation is a classical and theoretical position than any empirical/practical sense especially in the analysis of modern multi-functioning multi layered governments. What the doctrine aims to achieve is not an existence/operation of these agencies alien to each other but the avoidance of one (individual or institution) a tyranny of dominance over the others. It is this delicate balance/mutual respect and volunteer accountability that is expected in any democratic constitution and the politics governed by such constitutions. Again not all democratic constitutions are drawn on this principle (i.e. in the US). It is mostly a Westminster form of governance. The entire commonwealth hopes to govern its peoples by this. Lanka is soon to become the chairperson of that forum.
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.
The colonial rule did not work on the Montesquieu framework. It supported and upheld the (illegal and immoral) rule of colonialism. It interpreted and imposed the colonial law and its rules. To the average citizen like ‘Sillindu’ of Baddegama, the judiciary was the cruel hand of colonialism. I doubt even after six decades, if the judiciary of Lanka had managed to change that opinion in a postcolonial setting. 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. This, I suppose is common in many so-called ‘developing-democracies’ in Asia/Africa. One key reason for this frozen status is that often in states like Lanka, neither the legal system nor the constitution is a production of a consultative process but an elitist impose on the citizens. None of the enacted constitutions (1947, 1972 and 1978), new proposals (1995, 2000) or any of the 18 amendments made to the constitution in Lanka preceded with a wider consultation or socio-political debate. Instead, they were imposed, often against the will of the citizens. As a result, citizens do not own the guarantees that are presented for the independence of judiciary, human rights and other issues of liberty in the constitution. They stand as mere reluctant answer to the political anxiety of the elites. The extended result of this is that in the minds and experience of the average citizen, the judiciary that is bound to protect and implement such constitution becomes a natural part of the elitist control over the masses. Is this the basic reason why there is such lackadaisical activism even amongst the southern Sinhalas, except for a tiny section of their urbanite/academic fraternity in the face of the present impeachment crisis that is pregnant with such grave dangers to the state that they fought hard to keep intact? Justice P.N. Bhagwati, considered a modern philosopher of constitutional law says:
The judiciary stands between the citizen and the state as a bulwark against executive excesses and misuse or abuse of power or transgression of constitutional or legal limitation by the executive as well as the legislature (1989:23).
Unfortunately, in Lanka, the judiciary and its practitioners have not stood this test. As witnessed in the unprecedented speed and urgency with which the 18th amendment was approved, the judiciary has served and legitimized some of the most illiberal moves of the rulers. It is a paradoxical irony now that legal practitioners are expecting the masses to rally around its cause after summarily dismissing the political liberty of the citizens. So in terms of the case in Lanka, it appears that the judiciary which one time (un)willingly mortgaged its independency is now expecting the masses to redeem it from the bondage. The more surprising issue in term of the political liberty of citizens is that even at this point the judiciary or its eminent practitioners have not presented how they will reverse to a system that wishes to work towards the reestablishment of the liberty of the people. The recent keynote speech by justice Vignashwaran to his judiciary colleges reminds the ability/validity of the independence of their practice but fails to urge the practitioners to return to the solemn duty of making the legal system a citizen based institution.
Traditionally, the impartiality/independence of the judicial arm means that judges are left without influence or threats to make their judgments even if are against the state because the main responsibility of the legal system is to safeguard the liberty of the citizens. Taken this definition, it means a judge to be free of personal biases and prejudices. S/he must not be committed to a political party or to one side in the litigation or to his/her caste, class, community, language, linkage, politics, region, religion, or race, when s/he comes to judgment. Can the average citizen in Lanka testify that the Lankan judiciary has acted in such manner? During the early period of independence when a systemic ethinicization of the state, its politics happened in such unreserved manner and the judiciary became the willing partner of it. Colvin R D Silva’s 1972 constitution declared ‘Sri’ Lanka a ‘unitary’ ‘Buddhist’ state. I have no contest with it. It is the ground reality. However, what set in motion was not mere hegemonizing an ethnic majority political system but also mechanism to erode the minority liberty, their political rights and very multi-cultural nature of the state. The civil war and the 30 years of state/non-state terror were the natural results. Who can honestly say that all verdicts, judgments and settlements awarded during this period was apolitical and unbiased or at least put the legal honestly before the any political considerations? Answer to such soul-searching question should come from the judiciary and its guardians. They should show their bare chest and clean palms open if they wish to have the citizens to rally around their call for an independent judiciary.
The reality -in most states- is that the legal system is part of the state. However, in Lanka it is part of the state and the government. Appointing and expelling of judges and CJs have always been a political act because the SC is considered (and operates) as a state funded ‘government’ institution. While the independence of judiciary in many states means the judiciary answerable only to the constitution, in Lanka there seems a history of willingness to obey the government in power as well. 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. Still citizens in Mannar and Jaffna and other similar places are experience what Sillindu faced nearly a century ago. Even worse, thanks to the ‘lap-top’ journalism, no one is bothered record the citizen’s plight as Woolf- a colonial servant did. There cannot be an independent Hultsdorf, while its vital sections elsewhere are acting as uncensored arm(y) of the government. What the current a debate has comfortably avoided is to find the necessity, urgency and mechanism to revert to a citizen based judiciary and move away from its colonial nature. Because, what is important (and possible) is not an abstract conceptual independence of the Judiciary but the prevention of judiciary becoming a ethno-religious institution and a tool of the corrupt, power hungry political thugs.
On the other hand, it is the rights and responsibility of the citizens to win over and establish an independent judiciary. A judiciary that would work for the wider liberty of every citizens irrespective of their ethnicity, religion and political affiliation – the three most fundamental social identities that defines the citizenship of modern Lanka. One cannot expect a moral/ethical legal culture from a society that has betrayed its foundations but thrives on popular political/power culture. Thus, the present crisis and its political implication should generate a new debate not just on the independence of the judiciary. Such is an abstract and elite position. The urgent need is to debate for a judiciary that will stand and advocate the liberty of its operation and for liberty of the citizens of Lanka particularly because Buddhism – the civilizational foundation of Lanka readily provides such discourse within its philosophy.
*Dr. Suren Raghavan is a Senior Research Fellow at the Centre for Buddhist Studies at University of Oxford and teaches political science at University of Kent. firstname.lastname@example.org
1 M. Richtel, The Political Theory of Montesquieu, pp. 245, (1977)
2 Justice P.N. Bhagwati, “The Pressures on and Obstacles to the Independence of the Judiciary,” Centre for the Independence of the Judges and Lawyers (CIJL) Bulletin 1989, No. 23 at 15