By S.L. Gunasekara –

S L Gunasekara

The current imbroglio relating to the attempt to dismiss the present Chief Justice has obscured the real issue facing the country which is whether the independence of the judiciary and hence civilized governance will prevail or not. What the people must understand is that Mahinda Rajapaksa is unimportant as are Shirani Bandaranayake, and the other actors in this sordid drama – for they all fade into wholesale insignificance when compared to that real issue.

The independence of the judiciary connotes a buffer between the government and the people: between the rich and the powerful on the one hand and the poor and helpless on the other. The judiciary is the last resort of the citizen when he is oppressed whether by governmental authority or by the power of money, connection or wealth. That presumably is why so many attempts have been made by successive governments to subdue and destroy the independence of the judiciary. Can one imagine a country where the judiciary is like our public service including the police, and subservient to those in the corridors of power, their kith and kin, the wealthy and the influential? The country will surely be then a lawless place where order and discipline are unknown; where ‘might is ‘right’ and where the poor, the powerless and the law abiding are trampled upon.

Many still labour under the delusion that what is important here is whether Shirani Bandaranayake is guilty or innocent of the charges against her and whether the government is justified or not in seeking to dismiss her from office. Those are but incidental questions. What is of importance to the country is that the Chief Justice who had, indisputably, given, together with two other judges, some judgments that did not please the incumbent government in the recent past, after similarly giving several that pleased it before then, is now being pilloried with purported charges which surfaced after the decision to impeach had been taken and several Members of Parliament had obligingly signed a purported resolution to impeach her that contained no charges. What is most alarming- is that the Tribunal that purportedly tried her, the PSC was obviously wholly biased against her and denied her the several safeguards of a fair trial normally afforded to any alleged criminal – be he/she a pickpocket, a drug dealer or a politician’s pet thug.

Can this be otherwise than a not so veiled threat to the rest of the judiciary to ‘tow the line’ or face similar reprisals???

There was a time, not too long ago which some of us old stagers still recall, when the judiciary was venerated and then, by and large, justified that veneration by strong and independent conduct. This brings to my mind the judgment of Justice T. S. Fernando (who was reputed to be favourite of the SLFP) Justice L. B. De Silva and Justice P. Sriskandarajah in the first 1962 Coup Trial-at- Bar when they held that those provisions of the Criminal Law (Special Provisions) Act which entitled the Minister of Justice to nominate the Bench to hear that case and under which they were nominated to that Bench was ultra vires the Constitution and hence null and void. It is also indisputable that while the Minister behind that Act was the then all powerful Felix R. Dias Bandaranaike. the then Government took that judgment in good grace and no reprisals such as impeachments or any other followed.

That was the spirit in which things were then done. The Supreme Court did not, at the time, seek to arrogate to itself the powers of government and/or seek to impose their subjective views on, and/or gain popularity among the people, overstepping by far their jurisdiction by making orders to reduce taxes etc. The judiciary, the executive and the legislature stayed and acted within the confines of the authority accorded to them by the Constitution, almost never overstepping them and being brought to book by the Judiciary when they did.

Dissent was not, at the time regarded as treachery or the dissenter a subversive. The powers that be of the time recognized the fact that nobody including those in the citadels of power was infallible and that the priceless tenets of democracy required the expression of conflicting views even though some of them might be unpalatable to the Government in power.

Although things were not perfect and there were various aberrations and deviations from this ideal, by and large the institutions of the country remained intact as did order, discipline and method, and above all democracy. This went on until our country which was till then, essentially a vibrant democracy descended into being a de .facto dictatorship with the government of the United Front winning a 2/3rd majority in 1970. This single fact brought into being an age of aggravated sycophancy; and an age of the shameless quest for power for personal gain. Matters became worse when the UNP won a 5/6th majority in 1977 and still later with promulgation and implementation of the Executive Presidential Constitution and the odious system of proportional representation in 1978.

The germ of the rot however did not lie in the Constitution but in the cupidity of the politician and the willingness of many people including some who are termed ‘distinguished’ and ‘intellectuals’ to sacrifice their honour, their self respect and the freedom of future generations for a mess of pottage.
Thus, from 1970 onwards we saw various attempts at subverting the judiciary. The precedent of the appointment of a former Member of’ Parliament of the SLFP, Jaya Pathirana to the Bench of the Supreme Court was followed in “spades” by the UNP which dismissed no fewer than eight judges of the then Supreme Court and appointed a number of its political favourites to the Court of Appeal or Supreme Court. This was followed by the stoning and hooting of the houses of judges who gave a judgment unfavourable to the J. R. Jayawardena government, the locking of judges’ chambers and refusing entry by the then Chief Justice Neville Samarakoon and the other judges of the Supreme Court into their chambers – judges who had admirably refused to sacrifice their honour and toe the line. These were but some instances of such attempts to subdue and control the judiciary.
The once honourable and independent public service Sri Lanka had was destroyed with the advent of Mrs. Bandaranaike’s government with a 2/3rd majority in 1970. The turn on the gibbet was now that of the judiciary. The truth of the old saying that power corrupts and absolute power corrupts absolutely was never more apparent than now. No doubt members of the government pay lip service to the independence of the judiciary: no doubt parties in opposition are even more vociferous in speaking of the glories-of and the need for the independence of the Judiciary. However the reality is that the independence of the judiciary is something that all political parties strongly purport to desire when in opposition and seek to destroy when in power because it is that independence of the judiciary that prevents the people from falling under an autocracy and prevents abuses among those in power.
I do not say that Shirani Bandaranayake is lily white or that the government is pitch black. I realize that Shirani Bandaranayake has been no angel, and that Mahinda Rajapaksa and his government did the country a monumental service by giving the essential political leadership to ridding it of the LTTE. However the issue is not who is more virtuous or sinful than the other. The issue is the fate of the independence of the judiciary and hence the survival of our country as a civilized state.
One thing is certain that whatever be the charges brought against Shirani Bandaranayake they were not the reason for the impeachment because many of those who signed the impeachment motion did so before the charges were filed. Further, if the impeachment was purely and simply an exercise of a constitutional remedy to rid the country of an allegedly corrupt Chief Justice, how is it that the President intervened and gave instructions to the Select Committee about what they should do when the Chief Justice and the members of the Opposition in the Select Committee walked out? How did orchestrated government thugs and sycophants gather at Hulftsdorp with placards containing slogans utterly insulting to the Chief Justice and shout similar slogans to be heard by some judges presiding over some Courts that were then in session; and how is it that the police were there in numbers without any riot control gear to control unruly crowds while such was much in evidence when General Fonseka’s supporters demonstrated outside the Supreme Court premises? How is it that a similar mob of those who might be termed “Pandan karayo, Rasthiyadu Karayo and Maravarayo” of the Government congregated outside Parliament on the day the Chief Justice went before the Select Committee? How does one account for three wheelers with placards or cutouts on them insulting the Chief Justice parading the city without let or entrance from any officers of the law?

These are all indices of a malaise that afflicts the country. It is sought to throw out Shirani Bandaranayake in the guise of impeaching her through a sordid political exercise because she dared to stand against the government on one or more issues and this will be a signal to all judges that they too are in danger of being thrown out on various charges which will be brought after the decision to throw them out is taken.

Today, even lawyers indulge in the puerile pastime of breaking coconuts, holding placards and standing outside the Courts, exchanging fisticuffs and behaving more like their clients in criminal cases than as members of a learned and dignified profession. Let us not forget that what is at stake here, is not a person or persons but the all important principle of the independence of the judiciary – which has been the major distinguishing mark between freedom and democracy on the one hand and slavery and autocracy on the other.