Kishali Pinto Jayawardene
When chastened supporters of the Rajapaksa-led ‘Pohottuwa’ (lotus bud) Party bewail the December 2018 decision of the Supreme Court holding that the Presidential dissolution of Parliament was unconstitutional with former President Mahinda Rajapaksa having to step back from a contested Prime Ministerial seat and return to opposition ranks, a frequent lament is that they have ‘no other court’ to appeal to, against that decision.
Rich satisfaction in seeing political imprudence reprimanded
Coupled with rude admonitions by rash ‘Pohottuwa’ sidekicks seething with fury against the judges who handed down the decision, this amounts to disingenuous attempts to undermine the authority of the Court. Nonetheless, there is rich satisfaction in hearing such confessions of helplessness. These must not come easy to an authoritarian family dynasty accustomed to a cowed and intimidated judiciary.
Perhaps, and ironically so, if the 2006 Singarasa decision of ex-Chief Justice Sarath Silva (himself a vociferous defender of President Maithripala Sirisena’s actions) had not ridiculed the option that Sri Lankans had to appeal to the United Nations Human Rights Committee in respect of rights violations, the disgruntled ‘Pohottuwa’ members might have exercised that option
But apart from these tongue-in-cheek asides, as irresistible as they are, ominous signs portend that 2019 will be a holding year where each and every slim gain that was won during then past four years will need to be defended by an active and vigilant citizenry with its backs literally to the wall. For more disconcerting than the ‘Pohottuwa’ fury are remarks made by President Sirisena impacting adversely on the judicial institution. These comprised remarks when the cases in the constitutional crisis were still pending in the superior courts that rulings by judges were similar to a head monk of a village temple dictating terms to the chief prelate of a chapter (meaning himself).
Fundamental lack of understanding of the judicial role
Quite apart from the entirely pedestrian nature of this analogy, the very fact that such a public statement was made, speaks to a fundamental lack of understanding of the judicial role. More perilously, it illustrates an executive impatience with an independent judiciary, notwithstanding boasts by the President himself that the restoration of at least a measure of judicial integrity was a notable feature of his administration. No one would grudge the President this boast, fairly speaking. But if that is the case, then it stands to reason that statements should not be made undermining that very fact.
Indeed, his more recent and mounting frustrations over judicial appointments following the Constitutional Council’s rejection of his nominees is part of this troubling pattern of veiled criticism. Asserting that seniority should be adhered to in the promotion process and that career judges should be given a fair chance are two admirable sentiments on the face of it. However, this should not be used as a cover to promote financially or politically corrupt judicial officers to the apex court. There is no ground for compromise in that regard.
Mulling over the uneasy combination of ‘Pohottuwa’ plus Presidential annoyance with a tentatively recovering judicial institution, I was reminded of what then United Nations Special Rapporteur on the Independence of the Judiciary, Dato Param Coomaraswamy said while addressing a law conference in Sri Lanka in 1996. His observation was that the right to an independent justice system is not that of the judges or lawyers. It is not a legal slogan to enhance the images of judges or lawyers. Instead, it is a right of all consumers of justice and a right, protective of all other human rights.
The role of a modern judiciary
In observations that hold true even today, Coomaraswamy pointed out that judges must not be traditionally isolated in ‘Olympian splendour’ from public debate and opinion. His view was that modern judges do not just fold their arms and sit in chambers when the independence of the judicial institution is concerned. On the contrary, sitting and retired judges have actively participated in public discussions in regard to streamlining judicial appointments so as to strengthen appointment mechanisms from political interference.
In the United Kingdom, amidst attacks on the judiciary by the executive over decisions on applications for judicial review, the House of Lords, (at that time), discussed a motion on judicial independence and the relationship between the judiciary, the legislature and the executive, asserting the primary importance of the independence of the judiciary. Prominent English judges, both sitting and retired, participated in the five hour debate.
Australia similarly, has seen minor judges sitting on the Accident Compensation Tribunal suing the State government for compensation for loss of office when the government legislated them out of office by repealing the entire legislation creating the tribunal, arguing that when they accepted the appointment, they were assured of their security of tenure. In Canada, provincial judges have appeared as litigants in cases concerning security of tenure and independence of the judges of the lower courts.
The importance of institutional memory
In this country, executive experimentation with the judicial institution has been chequered. Judges’ houses were stoned when they handed down unpopular decisions and individual judicial officers had to face unprecedented pressure and intimidation long before the Rajapaksa Presidency developed this into a fine art. It is important to recognise that history so that we retain institutional memory and realise that executive and legislative annoyance with judicial restraints is not limited to a particular political era.
In fact, almost two decades ago, when the Chandrika Kumaratunga led Peoples Alliance was beginning to swerve away from its commitment towards an impartial judiciary and an independent press, a fact finding Mission of eminent jurists of the Centre for the Independence of Judges and Lawyers (CIJL), a component of the International Commission of Jurists (ICJ) observed that, each time that the Sri Lankan Supreme Court had asserted itself, the political backlash had cast the judicial institution into disarray. This was in the specific context of politicised judicial appointments and intemperate statements critical of the judiciary after particular judgments were delivered reprimanding the executive. These remarks were prescient of the degradation that the Court suffered in later years when the very Office of Chief Justice became compromised and the crisis of public faith in the Court increased.
More than one and a half decades later, there is is reason to be hopeful that this atrocious history will be consigned to the dustbin where it rightfully belongs. That said, the judiciary does not operate in a vacuum. Therefore civic pressure and social interest must continue in seeing an independent Bench and the law as a precious value to be protected rather than as an abstract notion which is far removed from the lives of ordinary citizens.
With all its unpleasantness and political crudities, 2018 demonstrated that Sri Lanka still has enormous civic resistance. That is something to be proud of.