By Viran Corea –

In the run up to the presidential election 2015, arguments were made by supporters of former President Mahinda Rajapaksa that effective government required subservience of fundamental rights of ordinary citizens adversely affected by executive programmes of action. The argument is neither new nor unique to Sri Lanka. At the same time, many supporters of rival (common opposition) candidate Maithripala Sirisena were heard to contend that such an approach did not bear scrutiny, as it undermines the rule of law and imperils the very essence of democracy. The Bar Association of Sri Lanka, which represents the legal profession of Sri Lanka was not alone in denouncing widely perceived unprecedented erosion of judicial independence, as more and more judges of the superior courts came to be viewed by lawyers and citizens as mere conduits of the dictates of the executive.

At the presidential election, a majority of the citizenry arguably demanded greater rights and protections against abuses and corruption by the executive. In a democratic republic, the judiciary is the main organ of government tasked with the balancing of competing or conflicting rights, where disputes arise between the executive and a citizen. In the absence of a credible judiciary, no durable stability or security is possible in any society. Therefore, urgent measures are required to properly evaluate the judicial role. This evaluation must be made, with due cognisance of the need for robust economic development, for Sri Lanka to assume her due place in Asia and the community of nations.

In this context, any meaningful discourse on the role and requirements for the judiciary in Sri Lanka today, should adequately focus on the merits or otherwise of the subservience of fundamental human freedoms, to make way for strong executive government in the context of a post armed-conflict scenario, with focus on economic and infrastructural development needs. It is beyond doubt that individual rights must at times, give way to the greater needs of the country. However, this must be within certain limits, with real, adequate checks and controls to ensure balance and prevent abuse and excesses. In a democratic socialist republic, the role of properly construing and upholding such limits with certainty, thereby acting as a check or control falls upon the judiciary. The health of a judiciary is inferable from its ability to do so.

Purpose of this article

This article briefly and broadly considers at the outset, the growth of rights against arbitrary rule and the gradual establishment of the notion of the intrinsic value of the individual. It then makes a case for the indispensability of an independent judiciary in securing freedoms in keeping with universal rights norms central to Sri Lankan law and encourages the asking of the difficult question of how secure Sri Lankans are today, in the true guarantee of their personal and group rights. The article ends, suggesting a need for honest, genuine assessment of judicial efficacy in that regard and proposing a sensible means of doing so, by a process of questioning.

Growth of rights against arbitrary rule

Laws protecting human freedoms in the modern civilised world, may easily be referred or traced to a core value – the value of human life. In the modern context, unless an intrinsic inalienable value is attached to ‘human life’, the many structures put in place to ensure the security of the person begin to fall apart at the seams.

This represents a departure from the value attached to a ‘human life’ in pre-republican monarchic times. In monarchic times, legal systems tended to consider a ‘human life’ within a society largely as variously belonging to the ruler or meant to serve the ends of the State as dictated by the wishes of its ruler.

However, there is no gainsaying that history proved that attaching value to people on the basis of their value or usefulness to those wielding power was a sure recipe for abuses and a denial of justice.

In this context, counter-pressures emerged from within societies, pressing for curtailment of power, counter-balances and the creation of accountability on the part of wielders of power and authority to the members of that society (such as through elected representatives).

Gradual establishment of the value of the human individual

The acceptability of the manner of exercising governmental power eventually became referable to increased cognisance of an intrinsic value of any given ‘person’ in society. It was through the court system, that this cognisance came to find genuine and viable expression. Thus, weaker individuals and groups not at or near the centre(s) of political power or socio-economic privilege were afforded assured means to have this value given effect to as a matter of right, through a credible process of adjudication. Today, the credibility of such processes is internationally assessed by a yardstick commonly called ‘judicial independence’.

An independent judiciary an essential starting point for true equality

Establishment of an independent judiciary, is but an essential starting point towards attainment in a society, of the value and dignity demanded by the human condition. The breadth and depth of the value given to ‘human life’ in societies however, have been a matter of gradual (both progressive and regressive) evolution of collective thought. Almost each development of thought professed as progressive, has witnessed a counter-trend considering it regressive. The question of whether a given idea is progressive or regressive itself, is largely dependent on the mores of the camp from which such ‘verdict’ emanates. It may generally be observed however, that a key factor that has most decidedly served to determine the direction and speed of this evolutionary journey across societies in the treatment of human life, has been the notion of ‘equality’.

Due to the notion of equality, where once ‘free’ men alone were recognized as possessing innate rights denied to slaves deemed mere chattel, the enslaved found freedom from the shackles of such status through recognition of their equal condition as human beings. Thereafter came struggles to secure equal treatment of ‘blacks’ as equal to ‘whites’, ‘women’ as equal to ‘men’ and ‘homosexuals/lesbians’ as equal to ‘heterosexuals’. The list goes on, and will arguably continue for as long as the human race – as do various debates as to the actuality, viability, desirability and extent of the claims by each of the social sets and sub-sets decrying what they perceive as their marginalization or counter-marginalization.

In as much as the notion of equality has served to better define, direct and determine the scope of the value of ‘human life’, it would appear that the notion of ‘dignity’ serves to similarly better define, direct and determine the scope of ‘equality’ itself.

Centrality of universal human rights norms in today’s world order and Sri Lankan law

The notion of human rights expressly entered the international order in the aftermath of World War-2. Such international documents as the UN Declaration of Human Rights which gave express universal recognition to the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, now constitute the basic framework according to which all states are required to run.

In the current world order, a principle that nation states are arguably required to adopt, entails due respect for the well-established premise that all people are entitled to a minimum degree of dignity on account of their very status as humans. Genuine adherence to this elementary component of universal human rights norms (due respect for the ‘human condition’), is widely accepted as a basic guarantee that any person in a modern welfare state or social democracy is entitled to expect.

The people of Sri Lanka are not excepted from this entitlement. Civil and political rights are given express Constitutional recognition with provision for judicial intervention where persons in power or exercising executive or administrative authority undermine or fail to uphold or respect guaranteed human rights.

Laws alone useless unless backed by an independent judiciary

The existence of such Constitutional provisions, does not per se translate into due guarantee or assurance of the rights that citizens are entitled to demand. An independent judiciary is vital for the citizenry to rest assured of their human rights and dignity.

Even with an independent judiciary, ensuring such guarantees remains a difficult and complicated work in progress. However, it could be said that the existence of an independent judiciary is manifest through real, tangible results that involve real and consistent checks on misuses, excesses and abuses of executive and administrative power and authority. In a viable fully functional democracy, such judicially imposed checks and constraints on persons in power are not treated as threats or obstacles to political power, but duly respected as an invaluable check on the wrongful use or abuse of governmental power.

Test of judicial efficacy

In this context, a pertinent question to be asked in relation to a given country, is the level of dignity a citizen is entitled to, despite not answering to the descriptions of predominant norms or prevalent socio-economic, political, racial, religious or moral constructs. The answers to specific scenarios however, are much harder to adduce, context-specific and complex. However, the difficulties and complexities of finding answers should not discourage the raising of questions, especially when affected persons seek relief and redress through legal action. Resistance to questioning long held assumptions, have on occasions delayed the emancipation of slaves, women, persons of different pigmentation, different religious persuasions etc. in many (now) more developed societies. Furthermore, many of the greatest world religious leaders and philosophers including the Buddha, Prophet Mohamed and Jesus Christ raised very difficult, discomforting questions, the precise answers to which remain hotly debated today, amongst even their most ardent followers.

At the same time, whenever a dispute entailing complaints of denial of human dignity arises, a credible, viable and accessible means to resolve it assumes great importance. There is arguably no disaffirming that it is an independent judiciary that is able to best decide the complex nature and boundaries of competing or conflicting rights where any such is complained of by an affected person, especially where such allegations are aimed at those exercising governmental power and made by a vulnerable or weaker person, group or community.

Put simply, until and unless (a) a truly independent judiciary (b) engages difficult questions, no genuine, stable or sustainable progress may be expected insofar as the protection and promotion of human dignity is concerned.

Due protection of ‘human dignity’ and its essence, existence and issues within a democracy are critical to proper consideration of the health of a society or nation.

How secure are Sri Lankans in the guarantee of their rights?

In the given premises, it is pertinent to honestly ask the question, as to whether we as Sri Lankan citizens, are assured today of a sufficient degree of effective protection from denial of civil, political, economic, social and cultural rights by those exercising executive/administrative power or possessing influence in that regard.

Blatant disregard for human rights, is a common feature of subversive organizations, of which Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE) was one. A key complaint against the LTTE as a brutal terrorist organization (apart from certain of its demands), was that it was headed by a brutal despot (V. Prabhakaran) who refused to recognize the basic human dignity of those not answering to his definition of a true citizen of a land area of Sri Lanka in the north and east. He refused violently to recognize the basic human dignity of any who were non-Tamils, or even Tamils who were ideologically repugnant to him. He had even set up ‘kangaroo courts’ to purportedly adjudicate on the rights of people living in LTTE-controlled areas. Amongst many other objectionable criteria, these purported ‘courts’ also lacked credibility because they were subject to influence by Prabhakaran and his organisation. His obstinate megalomania (in my view) justified an armed military operation to remove him and his hardcore leadership from power, after an attempt at negotiated resolution of the ethnic problem failed, due largely to his very own conduct. However, in my view such bloodshed may not be fully justified with sole reference to the just cause for military action alone. Given the high level of human suffering that such armed conflict tends to cause, it can only be finally validated by the ability to demonstrate meaningful restoration of genuine human dignity for all. Furthermore, a democratic government that respects international norms for human dignity is expected to effectively assure in its treatment of all people under its writ, a degree of respect for universal human rights and liberties that a subversive terrorist movement would not.

Accordingly, any complete victory against terrorism can only be claimed as sealed, by genuinely demonstrating in tangible terms, the aforementioned difference in the treatment of the rights of all citizens by the legitimate government of the island.

Rumblings are heard from diverse (ethno, religious and political) quarters all over Sri Lanka today, where citizens not answering to the predominant description of ‘Sinhala Buddhist’ are asserting unequal treatment and complain of being stripped of their dignity. In terms of the Constitution (Article 12), there is no denying that all citizens of Sri Lanka are equal and entitled to equal treatment. Any legally countenanced restrictions to ethno, religious, cultural, political or gender freedoms enshrined by the Constitution, must necessarily be tested for validity, with reference to whether or not they genuinely uphold the human dignity of the citizen who does not belong to the majority.

Indispensability of the need for independent judicial function

The duty to assure human dignity falls on all organs of government (legislative, executive and judicial) both as a matter of local legal regime as well as international human rights norms. The executive and legislature have their own important intertwined roles, and are not independent of each other. They are also prone to the pressures of electoral politics, rendering the upholding of human dignity subservient to popularity.

Therefore, an independent judiciary is required, for the legislature and executive to be checked for excesses, as and when they are bound to occur in any healthy democracy. A key indicator of a healthy judiciary, is its ability to afford to an ordinary (even ostracized) citizen, the ability to ensure that the legislative and executive act in a manner consistent with human dignity, especially where public law remedies (fundamental rights, writ jurisdiction and proceedings for determination of constitutional consistency of proposed laws – or “Bills”) are invoked.

The test of Sri Lanka’s success in restoring human dignity in the aftermath of a bloody armed conflict, to my mind can scarcely be separated from the ability of the nation’s judicial system to provide relief to those claiming denial of their dignity.

It is in the nature of politicians everywhere (and sometimes their brethren) to whitewash all their less than ideal schemes with a positive design intended for the good of all. They tend also to strive for a pliant judiciary that will wherever possible decline to interfere with or validate their schemes through useful rulings. It is only a vibrant judiciary that enables aggrieved citizens to have the chaff of mere propaganda sifted from the grains of genuine and duly compliant governmental actions, where serious rights are at stake.

Need to honestly assess judicial efficacy – considering progressiveness and consistency factors

In this context, one must consider carefully, how effective the Sri Lankan judiciary has been in responding to those complaining of being subjected to (or faced with) such indignities as being:

(1) deprived of their homes without due legal process or being discriminated against on the basis of ethnicity, religion, politics, social stratification, gender etc.; (2) denied the right to have places of religious worship free of attack by intolerant groups; (3) denied accountability and proper controls in respect of public spending and expenditure; (4) denied civil liberties and/or punished without fair trial; (5) subjected to torture and/or degrading treatment by State actors; (6) denied the ability to freely and/or safely protest Government policies/programmes; (7) denied the ability to have examinations and selection processes conducted fairly and transparently; (8) denied the ability to safely make allegations of corruption/fraud and have them dealt with in a credible and transparent manner; (9) denied the right to career advancement based on merit and without undue consideration of political or any other affiliation; and (10) denied the right to be free of judicial, executive or administrative actions being taken in contravention of the rule against bias and the right to a hearing as postulated by the Principles of Natural Justice.

In formulating one’s response to this question, it is important to recognize that there have indeed been many salutary judicial pronouncements over the years, upholding many human and fundamental rights norms. However, the true effectiveness of the judiciary requires assessment, as much (and no less) in terms of consistency. It is consistency of outcome that gives rise to assurance to the ordinary citizen that sauce for the goose is indeed sauce for the gander. Furthermore, consistency enables lawyers to confidently and responsibly assure would-be litigants of their realistic chances of success, on a professional assessment of issues relating to a given scenario.

If one is hard-pressed to find clear gains in terms of progressive and consistent judicial rulings protecting and upholding human dignity after the ending of the armed ethnic conflict, it may be difficult to assert that there is a healthy judiciary – and even harder to say that those in power have succeeded in converting a positive success in the battle with the LTTE, into a much needed victory in the even more important war to restore genuine human dignity to the many different peoples who should thereby be able to truly enjoy their rights of citizenship within one Sri Lanka.

The Government of Sri Lanka must now look to secure a better, stable and just future for all her sons and daughters. Towards this end, as set out earlier, it is only when the difficult questions are asked, that the more difficult answers may be striven towards. This article achieves its limited object, if it accomplishes the former.

*Viran Corea is a practising lawyer in Colombo, Sri Lanka. He read for Bachelor of Laws (LL.B) and Master of Laws (LL.M) Degrees at the University of Colombo