By Jehan Perera –
The Rule of Law means that everyone in a society is compelled to abide by the prevailing laws. These laws are interpreted by the courts of law in the light of the supreme law as stated in the Constitution. If anyone refuses to accept the decision of the judiciary, they are punished. If the government refuses to abide by the decisions of the judiciary the Rule of Law will break down. This is the uncertainty that Sri Lanka faces, now that the highest court of all, the Supreme Court, has decided that the power of the Parliamentary Select Committee appointed to decide on the validity of the charges against the Chief Justice is a nullity in law.
The manner in which some of the members of the Parliamentary Select Committee are reported to have behaved in their face to face interactions with the Chief Justice has not improved public confidence in the justice of their decision. They found the Chief Justice to be guilty of three of the five charges out of 14 that they were tasked to inquire into. The speed and manner in which these findings were made, and that the target was the Chief Justice has done nothing to improve the situation. In the public mind the judiciary remains the most trustworthy institution capable of meting out justice to victims of injustice.
Sri Lankans who desire the wellbeing of their country and of its people, and who are not blinded by the prejudices of partisan party politics, will be hoping and praying that the government finds a better way of dealing with the problem. Too much is at stake for it to be otherwise. If the government disregards the Supreme Court, it will send out a message to other wrongdoers that they too can hope to disobey the law and get away with it. What is sauce for the goose will be sauce for the gander as well. The intimidation of judges and empowerment of wrongdoers will invariably paralyse the system of justice at all levels, and not merely at the very top.
The ambivalent approach of the main opposition party to the crisis that is engulfing the country might appear to be perplexing. The UNP’s refusal to permit its members to participate in the Court of Appeal hearing into the petition challenging the Parliamentary Select Committee was no different in practical terms from that of the government. The government members of the PSC also did not go before the court to argue their side of the case and explain themselves. Their common ground is the supremacy of Parliament to conduct its affairs without interference from the judiciary. The question is whether judicial oversight is interference or a guarantee of protection of the rights of every citizen which is the bounden duty of the judiciary.
The common position on the judiciary’s role vis a vis the Parliamentary Select Committee adopted by the government and UNP reveals a mindset of ruling politicians and governments that goes back several decades. When Sri Lanka received its independence in 1948 its political leaders were steeped in the British tradition of respecting the role of the judiciary. But this broke down in the succeeding decades. In 1972 the government of that time decided to make a break with those colonial legacies that they felt were holding back the country’s power surge into the future. The so-called autochtonous or home-grown constitution of 1972 gave pride of place to Parliament and downgraded the judiciary and also brought the public service under the elected politician.
The desire of the government leaders of 1972 was to give Parliament and the ruling party virtually unfettered powers to do what they deemed necessary for the country’s progress and development. The stated aim was an advanced socialist democracy in which prosperity would be evenly distributed to the masses of people. However, the results of excessive government intervention and nationalization of economic enterprises were not encouraging and economic development plummeted to the point that people had to stand in line to buy bread. Unfortunately the lesson that power corrupts and unchecked power corrupts even more was not taken to heart.
The Constitution of 1978 was designed with the aim of promoting rapid economic development. Once again power was centralized for the purpose of making those decisions that would propel the country on the path of economic takeoff on the lines of East Asian countries. But instead of Parliament being the repository of centralized power as in the 1972 Constitution, much of the centralized power was handed over to the newly introduced Executive Presidency. The first President under this constitution was happy to say that he was now freed from the “whims and fancies” of Parliament to do as he willed. But the promised economic progress was not sustainable and to make matters worse, the disempowerment of the ethnic minorities plunged the country into ethnic war.
The fact that the two small political parties that had members in the Parliamentary Select Committee decided to go before the Court of Appeal demonstrates their assessment of the need for a countervailing power and system of checks and balances. Unlike the UPFA and UNP, the TNA and JVP can never hope to control the majority in Parliament. Therefore they appreciate the role of the judiciary that would ensure the justice they cannot get from the Parliamentary majority. In addition, the appearance of a bipartisan consensus between the government and UNP in refusing to appear before the Courts on the issue of the impeachment of the Chief Justice may be a tactical one on the part of the opposition party. It is significant that the UNP has also said that the government should obey the Supreme Court order. They may well be giving the government the rope to hang itself.
There is also the role of the international community to consider. Already the government is on the back foot internationally on account of alleged war crimes and human rights violations during the war. In March last year the majority of countries in the UN Human Rights Council voted that Sri Lanka should implement the recommendations of the Lessons Learnt and Reconciliation Commission. Among the key recommendations of the LLRC were to strengthen the Rule of Law and for the government to respect the integrity of public institutions, including the judiciary. The flouting of these recommendations can provide the international community with the opportunity for a stronger recommendation that troubles the government the next time the UN Human Rights Council meets in March of this year.