By Ananda Markalanda –

Ananda Markalanda

Judiciary should not be subject to perks, whims and passions of the executive

At a time we celebrate 68 years of Independence with pomp & glory, it seems most media is focusing headlines on Rajapaksas, Gnanasaras, Wele Sudas, Weerawansas and Ministers. Our pressing issue of Sri Lanka’s judiciary is conveniently ignored though it is under heavy pressure to restore its independence and integrity from inside and out. We don’t want a justice system that undermines its independence and compromising its integrity, permitting the international community and the professional body of lawyers of Sri Lanka to make remarks detrimental to the people’s trust and confidence in it. We should not be surprised that our country’s judicial system might undergo further scrutiny based on the happenings of last two decades beginning with corrupted CJ’s in the caliber of Sarath N Silva, Asoka De Silva, and Shirani Bandaranayake, Mohan Pieris and again Bandaranayke to K. Sripavan. Look at their behaviors from the bench and now finding its way to general acceptance. This was observed by many independent organizations including UN and Commonwealth. This is our revered Supreme Court.

During his tenure as Attorney-General and the government’s top Legal Advisor Mohan Pieris consistently blocked efforts to hold the government responsible for serious human rights violations and disregarded international law and standards, said Sam Zarifi, ICJ’s Asia director. President Mahinda Rajapaksa appointed the eighth most junior person of the Attorney General’s office, Buveneka Aluvihare, to the Supreme Court. Aluvihare was one of two individuals who successfully prosecuted and obtained a conviction against General Sarath Fonseka, President Mahinda Rajapaksa’s main political rival in the 2010 election In January 2013, immediately following the impeachment of Chief Justice Bandaranayake, the President appointed his own former legal advisor and Attorney-General Mohan Pieris as the new Chief Justice. Mohan Pireis had never served as a judge. During his 33-month tenure as Attorney-General, he did not prosecute a single case of crimes committed against journalists, human rights defenders or lawyers. A Mannar District Court judge was threatened by a Government Minister. The Secretary of the Judicial Service Commission was assaulted by four men with a pistol and an iron bar in his car on a public street, resulting in his hospitalization. No action and Minister is still a Minister.

Many believe these practices have contributed to what ails our Nation: compelling to turn off courthouse lights and kick out corrupted judges or subpoena them to elaborate on their opinions as to how they made decisions while the same judges who made upright decisions were sacked or impeached when it was not in favor of the government. This is the state of our judiciary today.

Some of the judges who got their position due to political connections seek to undo more than 68 years of independence of judiciary and constitutional democracy rather than strengthen what is the one “safe place” for any Sri Lankan to go to resolve a dispute or seek protection.

Our nation’s Constitution specifically separated our government into three co-equal branches by design: to prevent the excessive accumulation of power by the legislative, executive or judicial branches. All three also have the tools to check the other two and hold them to their defined purpose without encroaching each other territories. UN and Commonwealth of which Sri Lanka remains a member have long recognized this constitutional system of checks and balances.

Today in Sri Lanka, the judiciary is in continual jeopardy of being overpowered, awed or influenced by its co-ordinate branches, led by politicians and corrosion by some inside. Judicial independence is critical to sustaining our democratic form of government developed through history. Judges must have the ability to make decisions to protect and enforce the rights of the people – including the protection and defending of rights of the citizens against the tyranny of the government. Their decisions should be made without fear of reprisal or favor, and they should not be subject to the whims and passions of the political season. The public must have confidence that judges will be impartial, making decisions by applying the law to the merits of the case while not being swayed by outside influence.

That outside influence can be overt or subtle: The judiciary isn’t a powerful interest group. Courts cannot raise money or marshal voters. Our courts are easy targets because judges individually cannot respond to these attacks with our country’s growing population and fragile economy, elected officials and those seeking office would be wise to focus their attention on the fundamental problems facing our courts. Our judicial system is on the verge of becoming nonfunctional and irrelevant because of increasing workloads and inadequate funding. The judiciary suffers from a chronic undersupply of judges of learning and experienced in the laws, of exemplary morals, great patience, calmness and attention, those with their minds not distracted with jarring interests, not dependent upon any man or body of men for their perks. Today delays in cases with constitutional time limits are ballooning with extensions that have led to delayed judgements and increasing costs of maintaining growing docket of cases, naturally loosing the people’s confidence.

No one claims that judges are infallible. That is why we have multi-layer appellate courts within the judiciary, and a system of checks and balances and a separation of powers among the branches. We can and should pursue a thoughtful conversation about how to improve and strengthen our judicial system at all levels without denigrating individual judges or undermining judicial independence.

No one likes a bully — be it an office holder, a candidate for public office or a branch of government. Will ours be defined by the ones we destroy? Let’s stand up for one of our most precious monuments – our judiciary – as a place of integrity and independence, and as a refuge for those in our society who seek to enforce their rights and protection of their freedoms.

Naturally our democracy, liberty, freedom and future will not be safe without an independent, upright and fearless Judiciary

References: Lankaeaglenews –article Expected Returns 13/01/07, Crisis Group-Asia Report 172 2009/6, Sunday Leader 11/12/18, Transparency International-Governace Report 2012-2013 and many Sri Lankan newspapers