By Basil Fernando –
A response to Dr. Mark Cooray’s defence of the impeachment of the Chief Justice
“We have every reason to be proud of the fact that our judicial system has been adopted in so many different parts of the world. At the heart of it is fairness to everyone who holds views with which the government doesn’t agree, and judicial independence. Without these ingredients, the wearing of wigs, the humble submissions and the quoting of House of Lords authorities become a meaningless parade of archaic customs and costumes.”
Sir John Mortimer QC
An article published in the government mouthpiece ‘The Daily News’ in three parts, on the issue of the impeachment of Chief Justice Dr. Shirani Bandaranayke, has now been published as a booklet. This article is a response to that publication.
In fact, that short quote from Sir John Clifford Mortimer, CBE, QC(21 April 1923 – 16 January 2009) is an adequate reply to Dr. Mark Cooray‘s article. The legendary John Mortimer was a British barrister who was also called to represent the accused in several of the former British colonies. This particular quote was in reference to the legal system in Singapore. However, it equally applies to many other jurisdictions that were under the British during the time of the empire, including Sri Lanka. That the mere ‘wearing of wigs, the humble submissions and the quoting of House of Lords authorities’ are no indication of the existence of an independent judicial system, was his observation on the ‘justice systems’ in some of these former colonies.
Much of Dr. Mark Cooray’s article consists of references to the United Kingdom, the United States and Australia. What he fails to note is that without the basic ingredients that Mortimer mentions, the Sri Lankan legal system cannot be compared with the jurisdictions mentioned above. Liberal democratic systems exist in those three places. There may be many imperfections but, basically, they have liberal democratic systems, politically and legally. Sri Lanka no longer has a liberal democratic system.
Philosophy of imperfections
Dr. Mark Cooray attempts to circumvent this issue by stating that all systems have imperfections and thereby trying to equate all systems because none of them are perfect. He writes, “Sri Lanka has a constitution which has many defects. The 1931 Constitution was not perfect. The 1948 Constitution was not perfect. The 1972 Constitution was not perfect. The 1978 Constitution was not perfect. Where do you find a perfect Constitution on this side of heaven and eternity?”
There is no need to look for a perfect constitution “on this side of heaven and eternity.” However, we can understand the difference between the constitution of a liberal democracy and one that is not. It is that distinction that is quite material and relevant here.
Regarding this reference to imperfections, we may ask whether it makes sense to say that a person with terminal cancer is imperfect and a person with good health is also imperfect. Or that the Weimar Constitution was imperfect and the Constitution under which Adolf Hitler ruled was also imperfect. Or that the constitution under which Joseph Stalin ruled the Soviet Union was imperfect and the constitution of the United States during that time was also imperfect. Such references to imperfections are nonsensical and ignore the substantial differences between the two situations that are being compared.
The difference between the 1948 and 1972 Constitutions as compared to the 1978 Constitution is that the 1978 Constitution took the country away from its liberal democratic foundation and created a semi-authoritarian system. 1972 constitution paved way for 1978 constitution by creating the false notion that parliament was a superior institution and judiciary was an inferior institution.
Impeachment and the independence of the judiciary
Dr. Cooray admits that, “The 1948 Constitution was neutral and British conventions relating to independence of the judiciary were observed. The following Constitutions willfully undermined the independence of the judiciary”. What he disputes is that the arbitrary removal of Chief Justice Dr. Shirani Bandaranayke amounts to a further blow (perhaps the final blow) to the independence of the judiciary, which he admits has been willfully undermined.
That, however, is the crux of the matter in the debate over this particular impeachment. The position of all those who opposed the impeachment was that this was an arbitrary political act of a government which wanted to remove a chief justice who had delivered some judgments that were opposed to it. A particular reference was made to the Supreme Court ruling relating to the Divinaguma Bill. The series of events prior to the impeachment move included the suspension of a District Court judge on allegations of corruption by the Judicial Service Commission, followed by an invitation to meet the President, which was refused by the Chief Justice, followed by an attack on the Secretary to the Judicial Service Commission. The government needed to remove the Chief Justice and the members of the Judicial Service Commission as they had resisted complying with the government’s requests. The allegation of those who opposed the impeachment was that the government wanted such independence to end and required a more direct ‘stooging’ on the part of the courts. Dr. Cooray conveniently ignores these quite well known positions from the opponents of the impeachment.
The consequences of the practical implementation of the 1978 Constitution was to politicise all public institutions and thereby make the functioning of the rule of law system virtually impossible. On that issue, there was consensus in the Sri Lankan parliament when, in 2001, it passed the 17th Amendment to the Constitution, with the view to create the possibility for the independent functioning of public institutions. That attempt was thwarted by the 18th Amendment to the Constitution.
Dr. Mark Cooray cites various authorities from other jurisdictions, particularly from the United Kingdom, the United States and Australia. We may ask of him as to whether the public institutions in these countries have ever become as dysfunctional as their counterparts in Sri Lanka. Or would Dr. Mark Cooray treat such dysfunctional public institutions as a ‘mere imperfection’?
What Sri Lanka has been facing in recent years is the tyranny created by the willful undermining of its public institutions. The forcible removal of one Chief Justice and the appointment of another, in whom the executive could place its trust, were done to cement this tyranny. Thus, the protest that arose relating to the impeachment was not only regarding the removal but also its inevitable outcome by way of the new appointment to the post of chief justice.
Dr. Mark Cooray cites what he calls analogous provisions to the Sri Lankan Constitution from the law of other jurisdictions. For example, he cites Articles 133 and 135 of the British Constitutional Reform Act of 2005, which laid down the rules for the removal of judges in Northern Ireland, and also civil and legal provisions from the United States. Then he states that, “Like the Americans, the British too have placed the fullest confidence in their legislature to be able to make a considered decision to remove a judge of the highest court”. Do such analogies make any sense in the actual context of Sri Lanka since the adoption of the 1978 Constitution?
The 1978 Constitution was made by J.R. Jayewardene (the retired Supreme Court judge C.V. Wigneswaran referred to it as tomfoolery with the constitution) with the knowledge that he had the support of a more than two-thirds majority in parliament. The most fundamental strategy that is embedded into the 1978 Constitution is that the executive president can manipulate the absolute majority he had in the parliament. Any president who does not have such a majority cannot function under the 1978 Constitution. It was the same situation that the present government created for itself by absorbing 17 opposition members (the public perception is that they were bought) in order to have a similar capacity to manipulate the parliament. J.R. Jayewardene thought it necessary to also obtain undated resignation letters from the members of parliament of his own party (where does Dr. Mark Cooray find an analogous situation to that?). As for the present regime, such letters are not necessary as there is no room for any dissent, even for the members who support the government.
There is no public confidence in the legislature’s ability to make a considered decision independently, whether it is on the issue of the removal of the Chief Justice or on any other matter. The political culture of the countries that Dr. Mark Cooray cites and the political culture of Sri Lanka are fundamentally different in this respect and that is a matter of fact. Interpretations of the constitution take place within the actual realities of real politics and not merely by way of abstract applications of principles.
The following quote from S.L. Gunasekara (who was himself once a Member of Parliament) is relevant to this point.
“The ‘bottom line’ in this regard is the most unpalatable fact that independent thought and the expression of independent opinions by its Members are, to the leadership of any Party, as taboo as pork is to a Muslim or a Jew. The harsh reality about our political system is that ‘thinking’ is the exclusive preserve of the leadership of the Party and that acting in consonance with such ‘thinking’ and the decisions based on it is a mandatory obligation of all its Members and Members of Parliament in particular of any Party.”
Lore of the Law and Other Memories: Chapter 1, The intention of the Legislature, Page 117
Fiction and reality
Political fiction and political reality are two completely different things. This is particularly so in situations like that of Sri Lanka in present times. Dr. Mark Cooray treats the whole affair of the impeachment as some sort of fiction. Within that fiction the Parliamentary Select Committee (PSC), the parliament and the president are three separate entities. They are all acting independently of each other and base themselves on nothing but their reasoning.
However, the reality is nothing like that. The PSC, the government members in parliament and the president are a single unit. Neither the PSC nor the parliament could have done anything else other than what was dictated to them from the top. The impeachment began as a manipulation from the top and not as the spontaneous action of those who signed the petition for impeachment. Every other step was also manipulated from the top. The media was unscrupulously manipulated. The coverage of the impeachment was one of the most vicious campaigns carried out by the state media, conducted through the radio, television and newspapers. Anyone who opposed them was publically proclaimed, often by name, to be traitors to the nation. When that occurred, the threat of a possible visit from a white van was very real. The nature of this political reality is no secret to anyone.
The security apparatus
A further aspect of this political reality was the manipulation of the security apparatus to file fabricated charges. The security apparatus can today be manipulated to make any charges against anyone and such charges may not relate to any actual events. Recent cases against prominent persons amply illustrate how easily anyone can be made a victim of fabricated charges.
Within this context, the problem that arose was as to what protection might be found for anyone who is subjected to such manipulation both through the security apparatus as well as through the parliament itself. That was the central issue of the impeachment. What protection could an ordinary individual have if the chief justice herself did not have such protection?
Would Dr. Mark Cooray claim that this is also the situation of the political culture in the countries that he cites from? To make any such claim would, of course, be absurd. These countries still have what Mortimer called the basic ingredients of a free society. No society would claim that they are perfect. The crux of the matter is about the conditions that make a society a free society where people can assert their will – and what conditions show that a society is not free.
The Indian situation/the ‘Basic Structure’ doctrine
Dr. Mark Cooray does not mention anything relating to the matter under discussion from Indian jurisprudence. However, Indian law and its interpretation by the Indian Supreme Court is highly relevant to the issue of the independence of the judiciary. When Prime Minister Indira Ghandi tried to take Indiain the same direction as President J.R. Jayewardene managed to do later, the Indian Supreme Court decisively intervened to stop her.
In the case of Kesavananda Barati (Kesavananda Bharati vs State of Kerala And Anr on 24 April, 1973), the Supreme Court held that under the constitution the parliament is not supreme, in that it cannot change the basic structure of the constitution.
“The learned Attorney General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
317. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.”
The source of confusion
The 1948 Constitution, also known as the Soulbury Constitution, had a basic structure. This basic structure was the same as in India and in almost every other country in the former British empire. The essential elements of a democracy, including the supremacy of law, the rule of law, the separation of powers and the independence of the judiciary, are part of this basic structure. Any amendment that affects this basic structure vitiates the constitution and therefore will destroy the very possibility of the state remaining a democracy. It was this basic structure that was changed by the 1972 and 1978 Constitutions. Unfortunately, the Supreme Court did not then follow a course similar to that which the Indian Supreme Court followed (i.e. the basic structure doctrine). Had that happened, several parts of the 1972 and 1978 Constitutions would not have been allowed to be passed as law and Sri Lanka would not be in the mess that it is in today.
The law cannot remain law if the parliament can do whatever it likes. As all human beings dealing with any kind of expression are bound by the rules of rationality, parliaments are also bound by the rationality of the basic form of government they are a part of, if that form of government is democratic. The moment that rationality is abandoned, the entire legal structure is affected by irrationality. It is then that automobiles can be called rickshaws, when the judiciary is required to rubberstamp the decisions of the executive, and when the IGP’s, the AG’s and all other officers of the state lose all their independence and just become robots dancing to the tune of the executive.
The present debate about the independence of the judiciary, the role of the JSC and all related issues, is the result of the failure to abide by a most fundamental notion: that a democracy has a basic structure which, when abandoned, ceases to be a democracy.
What today’s debate reflects is that the form of government envisaged in the 1978 Constitution is that of a dictatorship and not of a democracy. The dictator now demands that the judiciary submits to its will, and this is what the legislature – carrying out the will of the dictator – is expected to do to the judiciary, and is trying to do.
The way out is a fundamental rejection of the 1978 Constitution and the reinstatement of the doctrine of the basic structure, as India has done. The structure of the government must conform to the basic structure of a democracy and, within that framework, the legislature can only do what the basic structure allows it to do. The only choices for Sri Lanka’s future are either to submit to a dictatorship or to achieve this fundamental reform and reinstate the basic structure of a democratic constitution.
If there was any attempt by the Indian parliament to arbitrarily remove a judge of the Supreme Court, the Indian Supreme Court would have used the basic structure doctrine to obstruct such action.
The Supreme Court and the Court of Appeal rulings relating to the impeachment
Dr. Mark Cooray opines that in issuing the order under the Writ of Certiorari in the impeachment case the Court of Appeal based itself on a wrong understanding of the law and that anywhere else in the world no court would make such an order. This opinion of his implies that in the event that the executive, through the manipulation of the legislature, removes a chief justice or any other Supreme Court judge purely for political reasons, there is nothing that the highest courts in Sri Lanka could do about it. If the Supreme Court can do nothing to prevent the executive and legislature taking steps to undermine the independence of the judiciary, then what legal mechanism exists to protect the independence of the judiciary from an assault by the executive and/or the legislature? There is hardly any use looking into ‘analogous’ situations from countries where the possibility of such an attempt does not exist due to conventions that exist within a well entrenched liberal democratic system. It is what Mortimer calls ‘the ingredients’ and what the Indian Supreme Court calls the ‘basic structure’ that safeguards the independence of the judiciary within such a system.
The justification for the intervention of both the Court of Appeal and the Supreme Court is on the very basis of the basic structure doctrine, referred to above in terms of the Indian judgement in the Kesavananda Barati case. Besides this, after Sri Lanka became a republic and ceased to be under the British Crown, the notion of prerogative writs lost validity. The scope of these writs needs to be interpreted in terms of Sri Lanka’s status as an independent republic. The courts have the duty to exercise these writs to safeguard the basic structure of the state as a liberal democracy.
Had the Supreme Court acted in 1972 and 1978 to safeguard its independence, the catastrophe that Sri Lanka is faced with today could have been avoided. On both these occasions the Supreme Court failed to act decisively. When, after the 1978 Constitution was adopted, a new Supreme Court was appointed and several judges who were members of the Supreme Court were dropped. This was condemned over and over again and referred to as the sacking of judges through the constitution. It was at that stage that the Supreme Court should have acted. It is reported that one of the Supreme Court judges who was reappointed resigned in protest. However, the other judges, including Chief Justice Neville Samarakoon -who later came into conflict with President J.R. Jayewardene – acquiesced to these sackings. Had Chief Justice Neville Samarakoon and the other judges acted decisively at that moment and refused to take the new oath until the sacked judges were reinstated, the history of Sri Lanka would have been quite different.
Had the Supreme Court then refused to accept these sackings, there would have been a direct confrontation with the president. Given the serious attack that President Jayewardene was carrying out through the 1978 Constitution, such a confrontation would have been fully justified. Had the Supreme Court judges acted in that manner, the rest of the judiciary and the lawyers would have supported them. The people themselves would have had their opportunity to come and support their judges against the unwarranted interference by the executive against the independence of the judiciary. The people were deprived of this opportunity by the passive submission of the Chief Justice and the Supreme Court.
Where the independence of the judiciary has been achieved, it has been through the relentless struggle of people who fought for their rights and the efforts of judges who were brave enough to stand in defence of the rights of the people. Unfortunately, in 1972 and 1978 the Sri Lankan Supreme Court judges did not think it appropriate to risk their liberty and lives – or even their jobs – in defence of the independence of the judiciary.
In the recent impeachment cases, the actions of those judges of the Court of Appeal and the Supreme Court were brave acts in the face of the assault on their chief by the executive acting through the legislature. These two judgements will be referred to as a bright moment in the history of the struggle for the independence of the judiciary in Sri Lanka. Whatever manipulation the executive may resort to in order to get over the embarrassment, it will not be enough to erase the impact of the proud defiance that these judges of the Court of Appeal and Supreme Court exhibited. They may very well have known the unpleasant consequences that they would have to suffer for exercising their duties in the face of the manifest determination of the executive to oust the then Chief Justice with the view to appoint a person who is more acceptable to it.
Dr. Mark Cooray insists on obedience: “I believe in the importance of obedience for fundamental laws of a state. I might disagree with content, but I believe in obedience. The debate on the impeachment has tended to blur these dimensions”. The development of liberal democracy as against monarchy and other absolute power models, only became possible due to those who dared to disobey when the circumstances required them to do so. Had it not been for that defiance, humanity may have remained in the dark ages. One shining example of such defiance was Sir Thomas Moore, and others who have stood up against power can be counted in their tens of thousands. Unfortunately, there were hardly any from the legal fraternity of Sri Lanka who demonstrated such courage, either among the practicing lawyers and judges or among the academics. This may be due to the fact that, for a long time, most lawyers and judges came from inherently conservative elite backgrounds. At least for a moment, the Supreme Court and Court of Appeal judges who made the rulings relating to the impeachment demonstrated that spirit of defiance. And the Chief Justice, Dr. Shirani Bandaranayke, in refusing to cow down to the pressures which were brought on her to resign and remaining to fight to the end, also demonstrated such courage. Perhaps for the first time in the history of Sri Lanka a large number of lawyers and judges also demonstrated the courage of their convictions when they opposed the impeachment.
Dr. Mark Cooray’s promise of future writings
“I will in a future writing suggest corrections for the present constitution including judicially enforceable rights, with no limitations of time within which action must be instituted, in relation to legislative and executive action which discriminates against citizens on grounds of caste, community, language, religion or race”.
As a former student of Dr. Mark Cooray, I will take the liberty to suggest that he need not waste his time writing these things. The constitutional environment for the enforceability of rights does not exist in Sri Lanka. Even the most basic legal remedy, the writ of habeas corpus, is no longer effective in Sri Lanka.
This is well illustrated in the book Habeas Corpus in Sri Lanka; Theory and Practice of the Great Writ in Extraordinary Times by Kishali Pinto-Jayawardena and Jayantha de Almeida Guneratne. Once the basic structure of a liberal democracy is destroyed, the enforceability of rights becomes an illusion. The constitutional principles that he taught us are irrelevant today as the country is moving towards a national security state controlled by the Ministry of Defense. Until this situation is changed it could even be a very dangerous thing to write or to campaign about the enforceability of rights. Such an attempt may even be called a foreign conspiracy for the purpose of reviving the LTTE. He should not think that because he has done one favour for the government, which the government is happy to make use of at the moment, it would rescue him from the general conditions within which the rest of the citizenry live. There is a white van for everyone, including one-time supporters of the government.
Dr. Sunil Cooray, who is also a former student of Dr. Mark Cooray, told me about a conversation he had with Dr. Mark Cooray on the issue of the impeachment. Dr. Sunil Cooray raised a hypothetical question. He asked that if, hypothetically speaking, some person is falsely charged and removed from the position of the chief justice, what could such a person do? Dr. Mark Cooray’s reply was to change the government at the next election. If Dr. Mark Cooray wrote this instead of what he has actually written, it could have been more realistic and maybe even useful.
However, Dr. Sunil Cooray could have potentially raised one more question. That is, if a free and fair election is no longer possible, then what are the options for such a person? Judging by Dr. Mark Cooray’s earlier answer, I guess the reply would have been that there aren’t any.
If Dr. Mark Cooray doubts the veracity of the general interpretation of the political environment prevailing in the country, what he could perhaps do is visit some of his former students who are engaged in legal practice and inquire about their current context. If he were to do so, and if these former students trust him enough to speak freely, he will hear actual stories that could go into many booklets. One of his students, who is a President’s Counsel (PC), told me many times that he has often thought of running a taxi service rather than continuing with his legal profession under the present circumstances. Each day, he says, he goes to the court with an utter sense of futility and returns home ever more frustrated. Perhaps Dr. Mark Cooray may also take a look at the Lore of the Law by S.L. Gunasekara.
The last few decades have seen rather strange happenings relating to the legal luminaries, both in practice and in the academic field. The drafters of the 1972 and 1978 Constitutions and those who supported such constitutions included many persons learned in the law. They played prominent roles without scruples in the destruction of the independence of the judiciary and the legal system. This reminds me of a quote by Benjamin Franklin, who remarked: “He was so learned that he could name a horse in nine languages; so ignorant that he bought a cow to ride on“.
While stating that the independence of the judiciary was undermined by the 1972 and 1978 Constitutions, Dr. Mark Cooray does not consider the recent removal of the Chief Justice and the appointment of the new chief justice that followed it as further undermining of judicial independence (if not, indeed, destroying it altogether). He attempts to reduce the issues involved in the removal into purely technical terms and fails to see the enhancement of the scheme of repression that is destroying the liberties of the citizens of Sri Lanka. By refusing to admit such increasing repression he, perhaps unwittingly, has become its apologist.
His philosophy, which sees these problems as mere imperfections that he also sees as quite natural, is unable to account for the fact that Sri Lanka has drifted away from its very foundation as a liberal democracy and submitted to the takeover of the control of the judiciary by the executive. He does not see correlation between the ‘undermining of the judiciary’ and the attack on the liberties of the citizens by the executive.
While talking about the high standards of integrity that judicial officers are expected to uphold, he ignores the fact that, in Sri Lanka, the executive places the least amount of emphasis on such integrity when appointing or dismissing judicial officers.
While promising to write on the enforceability of rights, he fails to recognise that such enforceability is impossible without the independence of the judiciary and the functioning of independent public institutions. He fails to grasp the significance of the 18th Amendment in nullifying all attempts to safeguard the protection of rights through public institutions. While attempting to base his arguments on constitutional law, he fails to realise how constitutional law has become irrelevant in Sri Lanka.
He basically ignores the complete irrelevance of attempting to make analogies relating to the removal of the Chief Justice in Sri Lanka with other countries where liberal democracy still functions through the basic ingredients that Mortimer articulated: ‘At the heart of it is fairness to everyone who holds views with which the government doesn’t agree, and judicial independence.’