By Elmore Perera –

Elmore Perera

Law is the essential foundation of stability and order both within societies and in international relations. There can be no democracy in a country unless the Rule of Law prevails at every level from the humblest to the most exalted citizen.

“Now this is the Law of the Jungle – as old and as true as the sky;

And the Wolf that shall keep it may prosper, but the wolf that shall break it must die.

As the creeper that girdles the tree-trunk the law runneth forward and back –

For the strength of the Pack is the Wolf, and the strength of the Wolf is the Pack,

In all that the law leaveth open, the word of your Head Wolf is Law.

Now these are the laws of the Jungle, and many and mighty are they;

But the head and the hoof of the Law and the haunch and the hump is – Obey!”

When Rudyard Kipling (1865-1936) penned these words of wisdom, his intent was clear-    “Let the Rule of Law prevail over the Rule of Men”. The Rule of Men could well degenerate into the Law of the Jungle but the Rule of Law cannot! What then is the Rule of Law? Rule of Law is intimately linked with our sense of Justice. It is an unarticulated perception within each of us from our youngest days. As children, there was nothing so clearly perceived and felt, as ‘injustice’. Our reasoning must be backed by a keen perception of “fairness’ inside each of us. If not, whether lawyer, legislator, Judge or member of an important Committee, dabbling with laws, rules and processes becomes a meaningless exercise.

Certain “values” or standards associated with the Rule of Law are inseparable from, and vitally important to, the concept. Different names such as Due Process, Rules of Natural Justice or Minimal procedures are assigned to them. As a benchmark, Rule of Law is not restricted to the legal Profession. It is as much a demand of every citizen in his daily life as it is a lofty principle of law. It is also about how we relate to one another and treat each other with dignity, respect and basic politeness. Wherever assigned power is exercised, whether it be within families, associations of friends, temples, churches, clubs, committees or companies to which we belong, there must be acknowledged standards expected from all of us for conduct of relationships in an orderly/fair fashion. Sometimes two opposing views need to be subjected to reasonable process, and somebody has to reason it out. When judging between 2 opposing positions which affect the rights of people, the process must be free from extraneous considerations and backed by a sense of Justice. The process must be trustworthy. That is why a judicial process must necessarily be independent and not interfered with by anyone, however high or low. The Rule of Law is needed because with the Law of the Jungle aforementioned or the Rule of the Fish Pond where the bigger fish swallow the smaller, the Jungle or the pond appears tranquil for that reason alone.

Impinging on the independence of the Judicial process in Sri Lanka started pretty early after Independence. In the 1962 coup case, the Minister was authorised to select the Judges. The response of the Judges was a remarkable high-water mark of Judicial Independence. The Judges dissolved themselves because the constitution of the Bench to hear the case was a matter for the CJ as a Judicial Act and it was not an Executive Act – “Justice must not only be done, it must also be seen to be done”, the   judges declared in bold letters, Fifty years ago, as a Nation we hailed this obvious but important principle as an important guide for the future. Tragically however, the Judiciary COULD NOT HOLD ON TO THAT HIGH GROUND. It is noteworthy that the spoilers of yesterday are the protestors of to-day, and that the collaborators of to-day could well be the victims of tomorrow.

A remarkable characteristic of President Rajapaksa is that he is quick to assert that, as a Senior Attorney himself, he respects and upholds the traditions of the legal profession, particularly the respect for the ‘Independence of the Judiciary’ and the “indispensability of the Rule of Law”. However, he readily admits that he seeks, receives and acts in terms of advice of more eminent Legal personalities. For instance he had, in good time, assured himself of seemingly unimpeachable legal advice by appointing a former Attorney General Mohan Peiris as Legal Adviser to the Cabinet and, as if that was insufficient, he appointed the former Chief Justice Asoka Silva as his Senior Legal Adviser. In an assessment of what he described as the “Systemic Crisis” facing Sri Lanka  Sumanasiri Liyanage described as a “somewhat hilarious occurrence” the ‘farce’ of promoting a legal adviser to the Cabinet as Chief Justice consequent to the “tragedy” of appointing a retired CJ  as legal adviser to the President.  He stated that in this “system”, making a CJ political after retirement has been replaced by considering political training as a prerequisite for appointment as CJ.

It was in this setting that certain members of Parliament initiated proceedings to impeach   the Chief Justice. The Speaker and the Star Chamber of Seven eminent Government Jurists appointed to the Parliamentary Select Committee to inquire into the conduct of CJ Bandaranayake seem to have seen it as an inquiry into an International level conspiracy! However, mindful of Orwell’s warning that “in a time of universal deceit, telling the truth becomes a revolutionary act”, and also that it was mandatory for their survival that “In all that the Law leaveth open, the word of your Head Wolf is Law”, they acted diligently, decisively and expeditiously to do the bidding of their Head.

Judge Weeramantry opined that the Executive, Legislature and Judiciary rest upon the bedrock concept of the Rule of Law. On any matter affecting his or her rights every citizen, from the lowest to the highest, has the right to defend himself or herself before a patently impartial tribunal with full knowledge of the evidence against him or her and with a full opportunity of scrutinising and refuting it. He emphatically stated that, when the issues involved are as grave as misconduct of a Chief Justice, these general principles need to be applied with the greatest strictness possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.

Confronted with vociferous demands of 155 M.Ps for their pound of flesh, the “persuasive” opinion of a former CJ that the Supreme Court had failed to take into account his view that the Constitution provides for an alternative procedure for the removal of a Judge, and the Counsel of his own Senior legal adviser and the legal adviser of the Cabinet of Ministers the   President did nothing to save “his good friend Shirani”. He disregarded the views of religious and Civil Society leaders such as the Mahanayakas, Prof. Bellanwila Wimalaratne Thero, Cardinal Malcolm Ranjith, Bishop Dulip de Chickera, Judge Christy Weeramantry and Dr. Jayantha Dhanapala as if they were also part of an International conspiracy.

In Sri Lanka, as in India, admittedly, no Court shall have jurisdiction over the (legitimate) internal proceedings of the Legislature. Indisputably, however, the decision as to whether certain proceedings are legitimate (i.e. in accordance with the powers assigned to the Legislature by the Constitution) or not can be authoritatively made only by the Supreme Court – in terms of Article 125(1). In clear disregard of this, Parliament is, with gay abandon, passing Bills pending decision by the Supreme Court as to their constitutionality.

Mr. Liyanage opined further that, “in Sri Lanka, the state of exception prevailing to-day is not an exceptional state but a normal situation and the normalisation process is still in progress. Since this state of exception has been established by Constitutional means it has to be supported by a system of bribes and promoting Sinhala Buddhist ideology”. In such a situation, where many things have been done either by following existing law, introducing new laws or amending existing laws, he stated that the liberal slogan re “establishment of the Rule of Law is totally meaningless”. He states further that although it appears that everything is hunky dory, the continuous eruption of crises and the presence of conflicts on a regular basis shows that “the system” prevails not because it can amicably resolve conflicts it encounters, but because of the weakness of oppositional forces. How and where the next systemic eruption will occur, he says, is difficult to answer, but why it will, is obvious.

Speaking at a seminar on “The Rule of Law in future Sri Lanka”  Mr. Sumanasiri Liyanage admitted that he was not a great fan of Rule of Law, Good governance and Independence of the Judiciary and raised the all-important question  “whether the Rule of Law is worth defending?” Having stated that Rule of Law, Good governance and Independence of the Judiciary are very valuable and should be defended unconditionally in ‘normal situations’, he opined that even though the need to ensure that the Rule of Law prevails is based on the premise that all laws generate justice, as a matter of fact there are unjust laws and their number is increasing. The state of exception tends increasingly to appear as the dominant feature of government in present day politics. The transformation of an exceptional measure, introduced provisionally, into a regular technique of government, threatens to radically alter the traditional distinction between constitutional forms of government. This state of exception appears to be the threshold between democracy and absolutism.

With the termination of the armed conflict which had contributed immensely to de-democratisation, as stated by Mr. Liyanage President Rajapaksa had ample space to reverse the process and restore democracy. On the contrary he adopted measures that quickened the process of de-democratisation. Reversing the process which was entrenched in the system was not easy, but any reversal would have adversely affected the interests of the ruling clique. As a result the state of exception has now been established. It is evident, he said, that the state of exception is now being enforced as a normal situation and unless this situation is changed, all laws, rules and regulations will be interpreted and where necessary amended, to the advantage of the ruling clique and not of the country as a whole.

Having had very little control over the acts of commission or omission during the leadership of the three Silva Chief Justices, that permitted and even encouraged the normalisation of this sad state of exception, CJ Bandaranayake purposefully acted to prevent any further normalisation of the state of exception by acting strictly in terms of the Just Laws that had not been repealed or amended as yet. In upholding strictly the Rule of Law she was seen as a “threat” to the normalisation of the pathetic state of exception, and this “threat” could be removed expeditiously only by acting in blatant disregard of the Rule of Law. The Supreme Court and the Court of Appeal, after due and exhaustive judicial deliberation, unequivocally  held that the purported findings of guilt of the Chief Justice by the Select Committee, were of no force or avail in law and therefore void ab initio. Asserting a “right” to do so, the Executive and the Legislature co-operated to shake the foundations of the Rule of Law by a clearly vindictive, unfair and unlawful purported impeachment.

The Chief Justice stated that “The Rule of Law to which she had devoted her whole life had been shattered. She would not resign in order to save her pension, but she could not resist the power of the State to remove her physically from the Court”. For a nation that purports to uphold the Rule of Law this was a calamity which paved the way to sack an inconvenient judge and hold the rest in fear of being impeached if they displease their political masters. The Rule of Law was undermined to such an extent that the country suffered the loss of that independent power which is essential to make democracy work.

The orchestrated “Demonstrations” that followed clearly indicates our failure as a nation to grasp that “There is a big difference between what we have a RIGHT to do and what is right to do”. More than 200 years ago Edmund Burke, speaking in Parliament on the impeachment of Warren Hastings said “An event has happened upon which it is difficult to speak, and impossible to be silent….. Whatever the constitutional arrangements are, there can be no discussion about the standards of conduct and the values applicable to the process. It is a part of the law – whatever the forum, wherever it is and whoever composes it….. This obligation to use the right standards, and to conduct the process strictly according to those standards, is quite independent of the question of enforcement. It remains a PROPER LEGAL OBLIGATION”.

The extent, if any, to which the Independence of the Judiciary has survived this crisis will become clear when the Supreme Court purports to review its own judgment and that of the Court of Appeal. One of the most serious charges against the Chief Justice was that she failed to resign as soon as her spouse was charged in the Magistrates Court for some alleged offence. The defacto Chief Justice is reported to have recused himself from hearing a case against a fellow political appointee, who was and still is a close associate of his. Was he not obliged to uphold the Rule of Law and the independence of a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally, by recusing himself from accepting appointment to a post still held by a de jure appointee particularly in view of the fact that these were cases pending against him in respect of his own allegedly fraudulent conduct, in the very Court he was appointed to as its defacto head”

*Elmore Perera, Attorney-at-Law, Founder CIMOGG, Past President OPA