By Laksiri Fernando –
As reported by the Colombo Telegraph on 21 December 2012, the Central Committee of the Communist Party of Sri Lanka has decided almost unanimously not to be involved in any manner in the impeachment effort of the government against the Chief Justice. As the members have correctly pointed out “it is important to see the real reasons behind the impeachment.” They have identified that “while the immediate reason was the judgement of the Supreme Court on the Divineguma Bill, the long term aim is to have a judiciary that is subservient to the Mahinda Rajapaksa regime,” as reported.
It is not exactly clear whether they in fact have officially used the term ‘Rajapaksa regime.’ If they have, it would be difficult for them logically to affiliate with such a personalised regime in the future. Even if they mean merely the ‘Executive,’ it is sufficient at this juncture to remind the left affiliated sections of the UPFA, including individuals, that there is something fundamentally wrong with the impeachment motion by the government contravening all the democratic norms of justice, constitutionality and rule of law in the country. Therefore, this decision of the CP should be hailed by all sections of the democratic forces in Sri Lanka irrespective of party or ethnic affiliation. This should be an eye opener for not only the other left parties in the UPFA but also for all democratic sections of the Sri Lanka Freedom Party (SLFP) who admire at least the moderate and democratic policies of its founder, SWRD Bandaranaike.
It was at the last Party Congress that the Communist Party made a self-criticism and announced that the decision of their representatives in Parliament to support the 18th Amendment, although hesitantly, was a mistake. We should be proud to have such parties or politicians in our midst that could frankly admit their mistakes and make necessary policy changes not to repeat such mistakes in the future. Although my political affiliations during the young days were with Trotskyism (as some commenters like to point out repeatedly!), I always had a soft corner for the Communist Party as it particularly happen to take progressive positions on the national and other democracy questions in Sri Lanka. But today, these or other narrow ideological debates or differences are completely meaningless. I am no longer young or this is not 1960s or early 1970s!
The central choices that the country has to make today are between democracy and dictatorship; one or the other. It is in that context the defence of the independence of the judiciary from the Executive is of paramount importance. Under normal circumstances there shouldn’t be a conflict between the Legislature and the Judiciary, if the Legislature is not manipulated by the Executive. Both should work in harmony and with understanding, particularly in the case of interpreting the constitution and other matters of judicial review of parliamentary Bills. The Speaker has a major role to play in maintaining this harmony. In a healthy parliamentary democracy, the Speaker is supposed to be independent and a moderate father figure. But today, more than in the past, the Speaker appears to be another dictator, perhaps because he is the brother of the President. In the case of Britain, the highest judiciary has also been the second chamber of the Parliament until the Supreme Court was created recently in 2009.
The relationship between the Judiciary and the Executive by definition is different. There are certain differentiations in the separation of powers between the three branches, many people appear to neglect. It is not one and the same thing. The Judiciary should always be cautious and should guard its independence jealously from the Executive. Otherwise, all rights and liberties of the citizens will be trampled by the Executive. If you show a leniency, the culprits would jump on the occasion and stifle the independence. This has happened in the past and it should be prevented in the future. There is no business for the executive to interfere in the matters of the judiciary. There is no need to work in coordination with the Executive although that is what advocated by the present President of Sri Lanka.
There are some rich but often tragic experiences that come from the past of the left movements in other countries. The most instructive might be the experience of Germany prior to the advent of Fascism. The Weimar constitution of 1919 appeared to be one of the most democratic constitutions of that time as Dr NM Perera pointed out in his PhD thesis. But one major weakness of the system was its rather supine judiciary. It lacked institutional independence. When Hitler’s dictatorship was on the rampage, with manipulated public opinion and vote, the judiciary obviously failed to protect the citizens. That is one reason why Martin Niemoller had to make a desperate appeal to the citizens to fight against the Gestapo when they come after anyone whether a Jew, a Communists or a Socialist. Otherwise they would come after everyone as he implied.
There was little or no understanding among the communists or the socialists about the importance of protecting democratic institutions and particularly the independence of the judiciary during those days. Some would have said: ‘the systems are collapsing, so what?’ Equally tragic was the thin liberal opinion among the intellectuals, the academia and legal professions in Germany. Luckily, Sri Lanka is better placed today, the legal professionals and even the judges taking a firm and rational stand on the matter.
The Communist Party decision to disassociate themselves from the impeachment effort is very welcome that could be an eye opener for the left and other parties in the UPFA coalition, but perhaps it is not sufficient. They should actively oppose it. There is a need to have a broader discussion and a discourse on the subject as the Socialist Study Circle has already initiated. They could also invite the broadest possible sections to participate in these discussions including obviously the opposition (UNP and JVP etc.) and liberal sections of the old SLFP.