3 December, 2020

Blog

The Impeachment And The Independence Of Judiciary

By Sumanasiri Liyanage

Sumanasiri Liyanage

Many are trying to interpret the attempt by the UPFA members of the Parliament to impeach the Chief Justice as a blow for the independence of judiciary, a highly valued element of democracy. Judiciary if operates independently, is posited as the last bastion of democracy in which people can seek justice when the two branches of the government, the legislature and the executive, wittingly or unwittingly, take unjust decisions affecting the citizens. Since the impeachment motion was presented to the Speaker of the Parliament, almost all have argued that it has been an attempt to scotch the independence of judiciary as some of the determinations of the Supreme Court affected adversely some of the bills the UPFA government wanted to pass quickly. It has also been mentioned that powerful politicians were unhappy over some of the decisions of the Judiciary Service Commission. The Secretary of the JSC was attacked by an unidentified gang in Sunday morning just prior to the handover the impeachment motion. The Sri Lankan police that are highly efficient in uncovering cases of non-political nature have so far failed to arrest or to identify the perpetrators. So I shall agree fully and unconditionally with the argument that the impeachment is undoubtedly an attempt to attack the judiciary. Nonetheless, I beg to differ in using the adjective, independent. Was the Sri Lankan judiciary independent of the legislature and the executive in the past? Was it independent, at least in relative sense, from the dominant social forces that include hegemonic Sinhala nationalist as well as economically dominant rich? Hence I would suggest that the impeachment discourse should be broadened if we really seek to understand the inner logic that operate beneath the surface. As my friend, journalist Kusal Perera (the Editor of Subhavitha), puts it in a private conversation, we should distant ourselves from ‘Hulsdorf Mentality’ in our attempt to theorize what is happening today.

Let me begin with my conclusion that is in fact an extension of the argument advanced in my previous article, ‘Systems are Collapsing, So What?’. Then I will try to substantiate it. My submission is that the systems and institutions that have been created and modified by the Second Republic Constitution of 1978 have now evolved and transformed into parts of totally undemocratic, unjust and exploitative machine. Judiciary is no exception. It is also another decadent rotten and moribund institution that has been constantly making an attempt to negotiate with the executive in order to reach a ‘better deal’. It showed a semblance of independence when it had failed to reach such an agreement. One may say that the pre 1978 history was relatively better as far as the relationship between the legislature, the executive and the judiciary was concerned. Three branches of the government enjoyed relative independence from each other. However, even then, judiciary was not independent from the dominant and hegemonic social forces. As Selvakumaran and Edrisinghe have argued, post-independence judiciary acted with strong Sinhala nationalist bias in giving its views and verdicts. I do not here intend to harp on how the Supreme Court and lower courts made their determinations when it comes to laws and regulations affecting workers and other poor masses.

Focusing on the recent past, let me pose some questions that would help in unraveling the true nature of the judiciary. Was the appointment of Dr Shirani Bandaranayake as a supreme court a result of a political decision? Was the appointment of Sarath Nandasiri Silva as Chief Justice a political decision? Was the SC determination to imprison S B Disanayaka a political decision? Was Sarath Fonseka given a fair and just trial following the due process? Was the decision to reverse SC decision on P B Jayasundara an independent one? One may add many questions of similar nature to the above list and come to his or her own conclusion.

To witness the decadence of the system in its worst form, one may see what is happening in lower courts. How many years do people have to be under remand custody before cases were filed against them? How Tamil prisoners are waiting in prisons/ open camps to know what would be the charges eventually filed against them? As far as I am concerned these are much more important issues. It is totally unwarranted to put the issue independence before these issues since those issues have serious impact on poor, marginalized people. Once again journalist Kusal Perera reminded me of budgetary allocation of some 600 mn rupees in 2011 to improve court condition to make the execution of justice expedient. What happened to this money? Were there any follow-up actions? Was there a mention of this in 2012 budget?

It is absurd to portray this rotten system as independent and the guardian of ‘final’ justice. Of course, one may quote some of the decisions that were given by the judiciary as independent verdict. When a large number of Tamil prisoners were forcefully and arbitrarily transported to Vavunia somewhere in 2007, the Supreme Court gave a verdict that action was illegal and ordered those people should be brought back to Colombo. When I filed petition against the non-appointment of Constitutional Council set up by the 17th Amendment, the SC even declared that none is above the law so that petition can be filed making even the President a respondent. How do we explain these phenomena? These things happen when the SC especially the Chief Justice had engaged in a battle with the executive branch of the government. However, it is incorrect to portray these decisions as a result of the Judicary exercising its independence. The system of bribe does not always run smoothly. It faces fissures and contradictions that should not be depicted as positive aspects of the system although outcome may be beneficial to the people. What we are witnessing to days is not an attack on pure and clean branch of the system by a dirty and authoritarian branch of the government. It is a conflict between two parts of the same corrupt and rotten machine. All the parties involved seem to have vested interests created by the system. Hence this reminds me a saying by Spinoza that Leon Trotsky prefers to quote many a time: “not to laugh, not to cry, but to understand’. Only such understanding will assist us to build a system that is just, democratic and humane.

*The writer is co-cordinator of Marx School, Colombo, Kandy and Negombo and teaches Political Economy at the University of Peradeniya.

Print Friendly, PDF & Email

Latest comments

  • 0
    0

    No one can claim to be perfect and no system is perfect. However there are internationally recognised rules and procedures which if followed can give a fairly satisfactory result. Basic fundemental human rights and principles of truth and justice need to be followed.

    Probably these practices have not been practiced in the past due to various political reasons but at least now we should try to change. Otherwise we never will. Moreover the destruction of the last vestiges of an independent judiciary by an all powerful executive will take us beyond the possibility of change for ever.

    • 0
      0

      Ok Sumane, the judiciary and the lawyers are no angels – this is a given in the current debate on ‘independence’ of the Judiciary. But academics like yourself should be focusing on TURNING THE TABLES and working to impeach Mahinda Rajapakse and his clowns who ran the Kangaroo Court in the Diyawenna Parliament, for bringing great disrepute to the legislature and the judiciary and the sovereign people of Sri Lanka. In the final analysis is is Mahinda Rajapakse and his brothers, Basil, Chamal and Gota the goon who should be impeached,
      Hence, the main question AT THIS TIME is: which is the lesser of the evils or the least corrupt of the 3 branches of state – Judiciary, Legislature and executive.
      Why don’t you focus on the latter two branches – the corrupt executive and legislature?
      The people and judiciary must turn the Tables – the judiciary must start an impeachment motion against the executive for abuse of power. corruption and lies. The big ticket abuse is with the Rajapakse Brothers.
      It is Mahinda Rajapakse and his brothers who should be impeached for abuse of power, lies, running a Kangaroo Court in the Diyawenna Parliament and bringing great disrepute to the judiciary, legislature and the sovereign people of Sri Lanka and the institutions that protect democracy.

  • 0
    0

    Your criticism of the judiciary is fair enough. But on this issue, aren’t you saying indirectly that MR is correct? You and Kusal have another thing in common- both want to show that they are different. Also trying to score brownie points. Both have indirectly come to rescue of the MR regime in the final analysis, many a time. Also, Prof. Liyanage, I have been reading your articles for a long time. Why this, “I” “as I said” “my view” “I do dot think” all the time? In this regard, you are like Nalin Silva.

  • 0
    0

    The issue is not whether the judiciary is behaving as it ought to.It is do with the attempt by the government to bring the judiciary under its thumb on account of a couple decisions the SC gave which were unpalatable to the regime.

  • 0
    0

    I agree with safa . the author does have some facts regarding the judiciary . But the conclusion that this is not a witch hunt is not acceptable .

    Of course his argument is mainly pointing out the faults of the judiciary , this does not disprove that this is a witch hunt.

    Who appointed her Such appointment before given a back ground check should have been done , if it was done some of the things she’s accused of would have been found out Its the hight of hypocrisy trying to impeach her now .

    I too have not much respect for lawyers . But the way the CJ has handled herself during this period has impressed me a lot , She was offered a job overseas, if she left . But she chose to stay behind and face the music .that is not what a guilty person does .
    She has the courage to stand up and fight , lot of us would have walked away.

    I do not know if she is guilty or not.

    But the most corrupt institution are the parliamentarians .

  • 0
    0

    In a Marxists sense you may wish to imagine of collapsing systems. But they don’t. They are just metamorphosing from one form in to another – but the basic tasks of the system, which is to control people , remains the same. This is true to all the systems from soviets of Bolshevik era to party apparatus of Vladimir Puttin’s era. Whatever the system our only worry is to safeguard fundamental freedoms and the rights we are entitled to enjoy as human beings. It is in that context we should acknowledge that CJ is a victim of injustice as was the case with all which hunting trials of Stalin’s and McCarthy’s type. As any other citizen CJ has the fundamental right to a fair and public hearing by an independent and impartial tribunal, at which she has had all the guarantees necessary for her defense. Neither Stalin nor McCarthy provided them. So in the pretext of enjoying of a collapsing system you cannot misguide the other people of your unwillingness to stand for fundamental freedoms and rights of human beings.

  • 0
    0

    In a Marxists sense you may wish to imagine of collapsing systems. But they don’t. They are just metamorphosing from one form in to another – but the basic tasks of the system, which is to control people , remains the same. This is true to all the systems from soviets of Bolshevik era to party apparatus of Vladimir Puttin’s era. Whatever the system our only worry is to safeguard fundamental freedoms and the rights we are entitled to enjoy as human beings. It is in that context we should acknowledge that CJ is a victim of injustice as was the case with all witch hunting trials of Stalin’s and McCarthy’s type. As any other citizen CJ has the fundamental right to a fair and public hearing by an independent and impartial tribunal, at which she has had all the guarantees necessary for her defense. Neither Stalin nor McCarthy provided them. So in the pretext of enjoying of a collapsing system you cannot misguide the other people of your unwillingness to stand for fundamental freedoms and rights of human beings.

  • 0
    0

    I think it is important for us to remember that things change as time goes by. Yes Judiciary was not independent as they all have danced according to the whims and fancies of the Government which appoints them. But we all should recognize, as learned people, they have a heart and at some point the awareness kicks in and the learned people feel what they have been doing is wrong. So they change. Its time for all of us to recognize that people change and the learned people have changed for better, which is commendable. What is wrong is the system of appointment. Like in the US the senior appointments should be processed through a Parliamentary committee which should comprise of all party members, not just ruling party members. One man or women appointing should be stopped.

  • 0
    0

    During the Court Martial of General Sarath Fonseka,the Supreme Court determined that a Military Court (court martial) is equal to “any other court”.
    Was this a political or judicial decision?
    It was queried,whether in future,an army general – 4 star – could be appointed as Chief Justice.
    The Judge Advocate General can advise/assist the CJ as happened at the Court Martial.

  • 0
    0

    Prof. Liyanage,

    It’s truly sad that these are your contributions to the public debate, with all its weaknesses and pettiness, that try to seek a way out of the historical descent of our society. This piece and what you proudly refer to as your previous article with arguments on “systems are collapsing: so what” clearly show the intellectual vacuum you are filling yourself with.

    It’s one thing to see bought up journos in the local media parroting their stuff to please the court.

    But you?

    Let me ask you as I don’t understand, “to whom you address as the left’ ( in this country) in your previous article you are so proud to refer to here?

    Are you not ashamed that as someone who has read and quotes Marx and Trotsky, when you are so much aware there is not even semblance of a “left” left in this country to assume that role, to write like that and to go on your own trips?

    And, here to pick one word “independent” of the judiciary and build another vacuous argument ? Do you think the ordinary people of this country are so ignorant that they believe that any element in our rotten system is clean or independent, and you need to bring elaborate it? They keenly watch how the dice is rolling and make alliances as Colvin R said “even ready to team up with even with devil’s grandmother to defeat JR’s ways” if you care to remember. I leave it to you to judge for yourself if your analysis and arguments make any useful contributions to their collective benefit or only make it clear that you are a well and truly muddle headed and vacuum filled historical disconnect, whom Ho Chi Minh dismissed as the type “hot headed revolutionaries” filling their time with endless hair splitting arguments roaming pre 2nd world war Paris, while the French colonies were being raped by the French ruling class and their cronies, literally.

  • 0
    0

    In an attempt to get to the truest snapshot of the state of the Judiciary the author has lost focus.

  • 0
    0

    Sumanasiri Liyanage has been honest in his writings in the past but what is he upto now? To score a point by differentiating? To indirectly back the monster dictator? I hope it is not the latter.
    In Sri Lanka all internal systems are collapsing-education,parliament, police etc under a predatory government. The judiciary cannot escape this deterioration. However, the basics of the judiciary is still prevailing. The national priority is not to divert the current discourse and dilute it but to go headlong and block this schiszrohenic President snd save what’s left of the judiciary.

  • 0
    0

    There is some truth in his analysis.

  • 0
    0

    Mr Jinadasa,.. Your are compare and contrast with Stalin and McCarthy in this a histroically differant persons, differant role in thier histrocal epoch; negative approch your comment , and misintepration Role played by J V Stalin by Communist Party of Soviet Union ealy part of 20 th century building Bolshivike Party until established Soviets 1917 Octember Revoluation gave wrong picture of History of Stalin.
    Needlees to say Stalin was figure Bolshivkes Party one of leading person led 1917 Socilaist Revoluation in Humann Civilization in THE FIRST HUAMAN KIND of HISTORY.Lenin leadersip was undustiable, Trostkist play important role Revoluation as well.In first time in history State without expolation of man by man was established by long peroid Human civilization under Bolshivke Party,where there Stalin played Vital role as Marxsist-Leninst.
    Comrade Stalin play vital role until death 1953 March to build Soviet Union and socilaist system NEW MODEL STATE OPPOSITE TO CAPITALIST & Imperialist system in the WOLRD.
    This was first STATE without corrupation and oppressing poor masses of people in world.Ledaership had been given until his death,of cause his mistaks as take into account,indeed he was PEPOLE-ORINTED LEADER OF MASSES OF PEOPLE OF SOCILAST STATE OF SOVIET UNION.
    Mr Jinadasa… you cannot compare JV Stailn with McCathay who was anti- Communist anti-people leader of US Imperialism Hegemony outfit to try to controal Billions of people world being dominated to expliation and plunder the welath of Nations and People. McCathy is Political-Economy -Social serve for the EXPOLTAION OF PEOPLE AND SUPERESSED PEOPLE OF US HEADED IMPERALISM-HEGEMONOISM INTEREST.
    JV STLAIN RESPERSTAIVE OF PEOPLE AND ANTI-EXPOLIATION SYSTEM OF SOCIALISM OF SOVIET UNION.You cannot see fundamanatal differance between Stalin and Mc Cathay?
    Learn and study history SOCIAL SYSTEM in positive approch, your MIND FREE OF CORRUPATION.

    • 0
      0

      Well sir

      Your type defense of Stalin was discredited by many a reputed historians including those who were able to have to access to soviet era archives. Leave aside many of Trotsky’s famous books you should read more recent books of the Historians Robert Service, Dmitri Volkogonov and especially the book entitled A Peoples Tradgedy by Prof. Orlando Figes.

  • 0
    0

    This is a disappointing article. Mr Liyanage – what is being talked of is not the recent independence or lack of it by the SL judiciary. W

    hat is being sought is a return to the Supreme Court of the mid 1990’s where our judges gave brilliant judgments against the executive and were independent in the sense of the word, though not perfect. We do not have tat cacapcity now of our judges but at least some semblance of that Court must be recovered before that Pol Silva’s son, corrupt Sarath Silva spoint it all. When the judges take a stand at last, it is the duty of lawyers and all citizens to support it.

    Talking of ‘Hulfsdorp mentality’ by these marxists is predictable. I am not a lawyer but I object to these condesending attitudes being taken. lawyers are fully aware that the SL judiciary today is not independent. Lawyers should have spoken up a long time ago like Sunday times columnist and lawyer herself Kishali Pinto Jayawardena always says. But at least now that has changed. from I can see, they have resolved to stay (at least the majority of them) and fight by their Chief Justice who, like the worm of old, has finlly turned!

    You should support them and not be scornful.

  • 0
    0

    I agree with Safa that there is no perfect man-made system in the world.Knowing well that we cannot achieve the ideal thing, we should strive to achieve the thing closest to it. There is no sense in developing a defeatist and negative attitude through the loss of faith in the system. Instead we must try to improve the system. True, the judiciary has failed the people, disappointed them on numerous occasions even in the recent past. Yet the fact remains, it is still the last bastion of democracy. It has been proved time and again that we cannot depend on our political leaders to strengthen the institutions that underpin the democratic governance. The 17th Amendment was a good beginning of a new journey towards a strong democracy. How that journey just begun was turned in the direction of a dictatorship is now part of history. Let us now face this stark reality: Our politicians once elected to Parliament cease to be our representatives! They become shameless lackeys of the executive. Some even become the lackeys of drug lords and other racketeers. Therefore, there should be a strong mass movement to compel the regime in power to entrench institutions with powers to exercise checks and balances so that no arm of the state can become a law unto itself. There should be a clear demarcation of power spheres of the executive, legislature and the judiciary so that none of them could overstep their limits. Even our neighbor India has a good system with institutions exercising checks and balances that prevent rulers from entertaining dictatorial ambitions. I think even Bangladesh is a better democracy than Sri Lanka! Let us turn this impeachment crisis into a blessing! Let us contribute our mite towards defeating the sinister design to remove the Chief Justice! It would certainly mark the beginning of a new journey towards a strong democracy!

  • 0
    0

    While accepting some of the points highlighted in the article, we know that no one will another world will come and change the systems, it is the same people at same time get together and change for the betterment of the society, the country and the world, the poor and rich, the educated and less educated. The places/organizations/systems where this change of systems taken place properly, all or majority will benefit. Sri Lanka lacks this process of change of systems due to prolong silence of the learned people, professionals, SLAS, etc. especially in the public sector including at national universities. Changes needed in Sri Lanka, the way that Remote Villagers prioritize are:
    01. Executive System
    02. Parliamentary System
    03. Judiciary System
    04. Education System
    05. Health and Security System
    06. Welfare and Social System

    However, the Remote villagers can change the physical (bodily) system and mental system to face the harsh realities of life without the learned people/parliamentarians/professionals, etc.

  • 0
    0

    Mr, Sumanasuriya your article is a mere symptomatic analysis of a political/social structure of which we all have a stake.It is not perfect nor can we visualize the utopia ever to emerge.But we can still strive for a better deal than what we are being dished out with.Your commitment as well as of those professionals in your academic fraternity should be to throw your weight with the forces that you consider can strengthen the sovereignty of the people through their enhanced independence and not adopt a vague position by engaging in mere academic exercisers for shallow self-appeasement.

  • 0
    0

    Could the Author of this article list out nations where the judiciary is independent of political influence, when matters of sensitive politicl nature are heard?

  • 0
    0

    Rotten and corrupted interests are flocking around the justice system now-days. Husband of the Chief Justice in Sri Lanka got caught red handed over a fraudulent equity deal. A real estate developer once owned by the very same group of companies offered earlier the Chief Justice discounted deal on a luxury condominium in the Capital to have a dead lock on a settlement hearing. Now the couple in question themselves are in the Anti Government Bandwagon with some opposition political fractions. They are scratching each others back as an opportunity rises to change the public opinion .. This is yet another scenario of capitalizing an opportunity good or evil in the island as the world that we live is not a perfect one. A balanced, and interwoven Judiciary | Executive | Legislature trio is unfounded and it is an illusion. Name a country that has got such a fine system .. Finding the harmony with the least corrupted mechanism to govern is the key factor we all have to look for ..

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.