17 October, 2021

Blog

The Mega Issue Is The Ending Of The Judiciary As A Separate Branch Of The State

By Basil Fernando

Basil Fernando

The impeachment is not about the individual that is Shriyani Bandaranayake, the Chief Justice. The real issue is about ending the position of the judiciary as a separate branch of the state.

What is now being faced is a momentous transformation of the very structure of governance in Sri Lanka. It is the final completion of the objective of the 1978 Constitution and of the 18th Amendment to that same Constitution.

The process that is now being completed has been pursued for several years through many important events. A brief history of this change is as follows:

 

  1. In 1972 the Constitution abandoned the principle of the supremacy of the law and in its place adopted the principle of the supremacy of the parliament. The very foundation of the independence of the judiciary is the supremacy of the law. When the supremacy of the law was constitutionally displaced, the ground on which the principle of the separation of power stood was removed.
  2. The 1978 Constitution also removed the power of judicial review which the Supreme Court had from its very inception in 1802. This was a fundamental limitation on the judicial power.
  3. The 1978 Constitution placed the executive president outside the jurisdiction of the courts and above the law. This was an attack on the very foundation of the principle of the rule of law, which is that no one is above the law. With this move the very possibility of the judiciary being on par with the executive was removed and the executive was placed above the judiciary.
  4. Several judges who were in the Supreme Court and the Court of Appeal were not reappointed after the promulgation of the 1978 Constitution. This is known as the dismissal of judges by the Constitution.
  5. Article 4 (c) of the Constitution states that “The judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law”. By this the courts were placed below the parliament.
  6. Article 107 created an impeachment procedure controlled entirely by the parliament and not in conformity with the principle of the separation of powers and the principles of fair trial as found in Article 14 of the International Covenant on Civil and Political Rights.
  7. One more method of undermining the judiciary was to not provide the resources needed for the recruitment of qualified personnel to ensure the quality of the judiciary.

Besides such constitutional provisions there were many other methods by which the judiciary was undermined. Many of the emergency laws and the anti-terrorism laws removed the power of the judiciary to protect the rights of the individual through what has come to be known as ‘ouster’ clauses.

The appointment processes were tampered with by the executive, which took upon itself to appoint the judges of its choice instead of following the proper procedures, which would have ensured that the judges were chosen on the basis of merit and through a fair procedure.

In the case of Sarath N. Silva, the executive directly chose him as a person who would cooperate and collaborate with them and thus created an internal process of undermining judicial independence. The actions done by Sarath N. Silva as CJ to undermine the independence of the judiciary and also displace the legal guarantees on which the rule of law system rested make for a long list, which included the serious harassment of many lower court judges, considerable undermining of established legal procedures, the misuse of the contempt of court law and the continuous harassment and intimidation of lawyers.

The threat of impeachment was used on independent judges, including the first Chief Justice under the 1978 Constitution, Neville Samarakoon.

The use of the media to attack the judges that the government was displeased with as another aspect of this attack.

This is just a short list of measures that have been used to undermine the judiciary.

This long battle against the judiciary is now coming to a final clash by using the impeachment process in the most callous manner, quite blatantly for political purposes.

The result expected is that the judges will be reduced to the same position as other government officers and their unique character as members of a separate branch of the state will be brought to an end.

The consequence of this will be beyond imagination. There are countries where judges are not considered as part of a separate branch of the state but merely as government servants like others of similar status. Some examples are China, Vietnam, Cambodia and Burma. In these countries the judges do not have judicial independence and they mostly perform administrative functions.

The direct results of the judges losing their character as persons belonging to a separate branch of the state are that the citizens will not have any possibility of protecting their individual rights. The protection of individual rights is the sole prerogative of an independent judiciary.

In the law enforcement area, the vacuum that will be created by the removal of the independent character of the judges will be filled by the Ministry of Defence. The paramilitary and the intelligence services will play the role of accusers, judges and executioners. There will be no place to complain with the expectation of a fair hearing. The fate that befell the tens of thousands of disappeared persons will be the same fate that will befall the remaining citizens.

In the coming weeks this final shift will take place unless the people themselves come forward willingly to defend their independent institutions of justice.

Print Friendly, PDF & Email

Latest comments

  • 0
    0

    True, The Chief Justice deserves public support as a victim of injustice.
    Yes. The mega issue is defending the independence of judiciary and the crucial hour has come for us to rise up as one to fight the battle against the impending tyranny.

    • 0
      0

      Defending the independence of judiciary ? question is whether how many times it was independent under MR ?

      I ve been waiting to read about over 700 cases CJ herself opened up, as CT reported lately.

      IC is well alert on the great issue – MR will not be easy in the days to come – he can mislead the nation and international commiunties once but not forever :)

  • 0
    0

    The fight rests only in the hands of a non-politicalised BASL. They
    MUST practice Justice if they want the Sri Lankans to be served with
    Justice in the future. Lets wait and see how the impeachment turns out
    and the actions in appointing a new face, if necessary.

    The 18th Amendment is a lesson of the past to go by.

  • 0
    0

    How many will read this Article Even a few who read it will not do their duty by educating the lot who are ignornance of this issue.People must come forward to save this country from these mad brothers..

    • 0
      0

      Mr Wijesuriya

      We cannot expect ordinary people to come forward against this authoritarian regime without people like you and me leading them. Let us do the minimum we can. let us spread the word by word of mouth, phone calls, emails etc. Opposition leaders have failed us. But that does not mean we should give up. Let us do our bit in our own small way. Articles in CT do not reach the ordinary masses. Even the private media is controlled. But many people I speak to are concerned. We need to spread the message. Let us not give up in desperation. If the Opposition does not do its duty, people will find alternatives. In 2003/4 people were in search of an alternative and brought Chandrika from the political wilderness. That she did not deliver is another matter. Let us not give up. Let us, you, me and others, talk to people for a start. We need to believe that we can. YES. WE CAN.

  • 0
    0

    This fight is not for the BASL or Judiciary alone. It is for all Sri Lankans who value freedom and democracy. If we do not fight for the values we cherish we deserve the damnation of licking the feet of MR and family for the next decade and beyond.

  • 0
    0

    Sri Lanka has not created laws upholding the priciples of the International Covenant on Civil and Political Rights on the excuse that these principles ‘exist in the constitution’.
    All other countries which subscribed to the ICCPR have done so.
    The 18th Amendment has effectively negated the provisions of ICCPR by conferring unlimited powers on the executive,especially,the Head of State.
    These powers enable intervention in the appointment,transfer & dismissal of the judiciary.
    How can we,the ordinary citizens,beleive that democracy is alive and well in this ‘democratic’ socialist republic ?

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.