By Basil Fernando –

Basil Fernando

Next Saturday, the Bar Association will meet to discuss the resolution of non-cooperation with anyone who may be chosen to be the next Chief Justice in the event that the incumbent Chief Justice is impeached.

While that matter is being considered, a question may also be asked as to whether any person with integrity and commitment to the rule of law and independence of judiciary would want to become the next Chief Justice, or a superior court judge for that matter, in such an event. The responsibility of the superior court is to uphold the rule of law and the independence of the judiciary. Their primary task, of course, is to safeguard the individual liberties of all citizens in the event of those liberties being threatened by the executive. Such a task would become impossible in if the judiciary is reduced to being a stooge to the executive. There will be a fundamental contradiction between the very meaning of being a judge and meeting the expectation of the executive to serve it wholeheartedly without regard to whatever implications that may have on the individual liberties of citizens.

It is an unfortunate fact that, in Sri Lanka, there is such an attraction for higher positions and status. In popular drama and other works of art, this is often depicted by the character of the “arachi”, who has such a great love for his black coat and the silver buttons. It is unfortunate that, in the past, when there was competition in the elite families, becoming a judge in a superior court was considered more from the point of view of family prestige rather than from the point of view of onerous responsibilities that are inherent in holding such a position. The seriousness of responsibilities is symbolized by Thomas More, who has earned the title of “man for all seasons” due to his willingness to give even his life in defence of a principle.

When the judiciary is expected to play a stooge’s role, it will not be a symbol of honor or prestige, but rather a symbol of shame and willingness to sacrifice integrity for the sake of  demonstrating loyalty to the executive, irrespective of whatever burden the executive may cause on the liberties of the citizens.

For the legal profession and the judiciary, their role will significantly change as, by a final act of callous disregard for the rule of law and the independence of the judiciary, the Parliamentary Select Committee – members representing the government – have declared the Chief Justice to be guilty of some counts, despite the opposition members and the Chief Justice and her lawyers have refused to participate in the committee proceedings after raising very serious matters of principle. The Parliamentary Select Committee report, according to a government spokesman, is supposed to contain a hundred and twenty odd pages. The spokesman has also claimed that the document contains the arguments of law on the basis of which the PSC arrived at its conclusions. It is an amazing feat of genius for these seven members from the government, none of whom have any claim for proven intellectual excellence, to be able to write such a report within just a few hours.

The truth seems to be that the report was written by others and was already written before the inquiry was concluded. As for the finding, the public already knew that it was already predetermined from a higher source than the seven members of the PSC.

The most important criticism is that the PSC has pretended to be an impartial tribunal when it is not.  Not only the conduct of the proceedings but also the manner in which the final written document was prepared demonstrated that it was not an impartial tribunal.

This matter is significant as, with the executive subordinating the judiciary to its will, even the basic procedural aspects that people are used to expecting from the courts are likely to disappear. I am reminded of watching a trial at a Cambodian court at the time of the United Nations transitional authority in Cambodia, which was expected to assist Cambodia to recover from the losses suffered under Pol Pot’s regime.

It was a trial for theft. The evidence consisted of reading a confession supposed to have been made by the accused, who was still a teenager, and the only defense allowed was to give reasons for reducing the sentence. When this was done (trial lasted an hour or so) the judge retired to his chambers and returned in 10 minutes. Then he began to read from a written text consisting of several pages. Obviously, the verdict had been written before the trial. When this matter was raised with the then Minister of Justice in Cambodia by the UN officers, the Minister explained that he did not rely on these not very qualified judges and that the verdicts are written in the Ministry of Justice, in which he had a few more-qualified persons. He further explained that if a person was already not found guilty, they will not bring him to a trial. The trial presupposed that the person was guilty. This Minister later expressed this same position to a Phnom Pehn Post journalist, who reproduced it in an article during the time.

The implications of having a stooge judiciary are similar. In a recent PhD thesis, which was received with honors at the Australian National University, Dr. Nick Cheesman writes a whole chapter on court proceedings in Myanmar, which he described as juridical proceedings in a marketplace. Long years of dictatorship have caused the loss of fair trial In Myanmar and today the young lawyers with whom I had a few discussions with could not even grasp the meaning of what law is.

All these are the considerations that Sri Lankans should face now. In fact, sober reflection would reveal that the impeachment proceedings and the verdict have nothing new in them. The causing of the forced disappearances of Prageeth Eknaligoda, the killing of the Sunday Leader editor Lasantha Wickramatunge and all the other episodes that are so commonly known to Sri Lankans are illustrations of a radical transformation of the manner in which “justice is meted out”. In an earlier article I have mentioned that since the start of the forced disappearances of persons, which started with the large scale killings in 1971 under the coalition government, heinous crimes have begun to be considered as legitimate actions. What is new in the impeachment motion, proceedings and verdict is that this common phenomenon of lawlessness has found expression in a dramatic manner that no honest person can ignore.

The path for the rule of law and the independence of the judiciary lies now on the courage of the lawyers judges and citizens to actively engage in continuous non-cooperation with all schemes of illegality that the executive wishes to pursue. In the past, the great legal minds were tested by the cases they win and the precedents that they may help to create. However, in the midst of such lawlessness as now, the test of those who help to create the rule of law is a firm commitment to reforms. This alone is the only legitimate path open to anybody with a conscience and a sense of integrity who wishes to take any steps on the path of law.