Blackmailing The Judiciary; Independence Of The Judiciary Is Under Threat
“They see governments come like water and go with the wind. They owe no loyalty to ministers, not even the temporary loyalty which civil servants owe…” – Jag Griffith
The judiciary in Sri Lanka is under threat. There cannot be any doubt about it. The extent and gravity might be the dispute, if any. First it was a Minister threatening the Mannar Magistrate. Now it is the President insinuating threats to the Supreme Court. This should be a concern of all right minded Sri Lankans, including the so-called ‘patriots’ and those who live abroad, and also the ‘international civil society,’ if anyone is allergic to the so-called ‘international community.’
October 2, 2012
Dr Laksiri Fernando
“They see governments come like water and go with the wind. They owe no loyalty to ministers, not even the temporary loyalty which civil servants owe…” – Jag GriffithThe judiciary in Sri Lanka is under threat. There cannot be any doubt about it. The extent and gravity might be the dispute, if any. First it was a Minister threatening the Mannar Magistrate. Now it is the President insinuating threats to the Supreme Court. This should be a concern of all right minded Sri Lankans, including the so-called ‘patriots’ and those who live abroad, and also the ‘international civil society,’ if anyone is allergic to the so-called ‘international community.’
Sri Lankans should be concerned about the issue because the muzzling of the judiciary is the death knell for the remaining democracy. How many have so far received redress for violations or imminent violations of their fundamental rights from the Supreme Court? The mere existence of an independent judiciary is a deterrent against violations. One of the most significant recent cases is the Z-score fiasco. If not for the independent judiciary, the verdict would have been in favour of the pathetic politicians and bureaucrats manning the ministries of higher education and education who are completely unconcerned about the fate of the innocent children.
Another example is the Divinaguma decision which undoubtedly angered the President and/or his brother about the judiciary’s independent resolve. If not for this decision, the government was planning to stream role its legislation quite detrimental to the spirit of devolution and in violation of the 13th Amendment, and that means the Constitution of the country.
Still the intent is the same, although the procedure is followed until it reaches the approval of the ‘non-existing’ provincial council in the North. It is a controversial matter whether it is constitutional for the Governor alone to approve it, instead of the elected provincial council, and particularly in the context that the election is arbitrarily withheld for political reasons. This is obvious to the whole world. This is one immediate reason why the government requires a ‘coerced judiciary’ for its arbitrary, if not evolving tyrannical governance.
The international civil society, to mean the international legal profession (including the International Bar Association and the International Commission of Jurists) and democratic and human rights constituencies at large should be concerned about the situation as a matter of principle. If the judiciary in Sri Lanka is muzzled and if democracy is further turned back in the country then there will be repercussions on other countries and internationally.
Even the regime might ‘showcase and sell’ the ‘model of the muzzled judiciary’ to other countries like they did or try to do in the case of the ‘victory over terrorism’ no matter how many innocent civilians were killed, deliberately or otherwise, in the process without any accountability. The regime’s external affairs are so reactionary headed by a corrupt legal ‘luminary.’ He is the author of the so-called “good measures for the judiciary” to prescribe how the judiciary should behave and deliver decisions with ‘patriotism’ in a ‘patriarchal democracy’ in Sri Lanka.
Threats
Let me preface the events or the controversy with some quotes from Jag Griffith (The Politics of the Judiciary,1985) more appropriately. In a democracy, ‘the judiciary or the judges are not beholden to the government of the day.’ This is something many people cannot understand or they are prevented from understanding.
The ‘governments come like water and go with the wind.’ The judges owe no loyalty to ministers; not even the temporary loyalty which civil servants owe. Judges are lions under the ‘democratic republic’ and in the eyes of the judges ‘the republic is not the President or the Ministers, but the law and their conception of public interest.’ ‘It is to that law and to that conception alone that they owe allegiance. In that lie their strength and their weakness.’
I will not refer to the Mannar controversy but to the most recent events.
President’s Secretary called the Chief Justice (CJ) and summoned her and other two members of the Judicial Services Commission (JSC) for a meeting. The ‘summoning’ in itself was an insinuated threat. The CJ rightly asked for the request to be sent in writing. The letter was sent on 13 September yet without giving any particular reason. The meeting could have been on anything. The CJ declined the request in writing highlighting the ‘implications of that kind of a meeting on the independence of the judiciary.’ The President obviously does not have a constitutional mandate to summon the Judicial Services Commission (JSC) or the Chief Justice whatever the reason.
In the principle of separation of powers, there can be and should be coordination between the executive and the legislative branches and/or functions. But there is no need of coordination between the judiciary and the executive or the judiciary and legislature. Any attempt at coordination is against the principle of independence. There is no such a principle of independence between the executive and the legislature. Instead the executive should be responsible to the legislature. It is this principle which has considerably eroded under the presidential system since 1978 and in fact encroaching on the matters of the judiciary throughout years.
There is another fundamental structural reason for the erosion of the independence of the judiciary, and the rule of law that it is supposed to uphold. That is the removal of the post-enactment judicial review from the Constitution since 1972, and the limited time given (only one week) including the urgency provision for an incumbent government to curtail the proper judicial review even in the case of the existing (limited) post-enactment judicial review. A major aberration that has occurred in my view is the draconian 18th Amendment.
First, by declaring it as an ‘urgent bill,’ no proper opportunity was given to the citizens or the people in the country to submit their constitutional objections; or the Supreme Court to review them properly. This was in addition to the curtailment of a proper public debate on the issue. The passage of the 18th Amendment revealed a clear dictatorial turn of the Rajapaksa regime.
Second, there are certain legal texts, such as the 18th Amendment, the constitutional inconsistencies or implications of which cannot hardly be evident form the text alone. Those could be judged only through the passage of time and the way those enactments are actually implemented in constituency with or contrary to the constitutions and public interest.
The present encroachment or attempted encroachment on the judiciary is exactly a result of the 18thAmendment, in violation of both the letter and spirit of the ‘democratic (socialist) republican constitution.’
Proof of Threats
On 18 September, the Secretary to the Judicial Services Commission (JSC) was compelled to issue a public statement on the advice of the Chief Justice and the Commission, declaring very clearly the threats to the independence of the judiciary. Some of the important matters are quoted below from that statement translated by the Sunday Times (23 September 2012) with emphasis added.
Read More“It is regrettable to note that the JSC has been subjected to threats and intimidation from persons holding different status. Various influences have been made on the JSC regardingdecisions taken by the Commission keeping with the service requirements. Recently the JSC was subjected to various influences after the Commission initiated disciplinary action against a judge.”“Moreover an attempt to convince the relevant institutions regarding the protection of the independence of the judiciary and the JSC over the attempt to call for a meeting with the chairperson of the JSC, who is the Hon Chief Justice and two other Supreme Court judges, was not successful. The JSC has documentary evidence on this matter.”“It is the JSC that is the superior institution which is empowered with the appointment of Magistrates, District judges, their transfers, dismissal from service and disciplinary action against them. It is an independent institution established under the Constitution. Under the Constitutionany direct or indirect attempt by any person or through any person to influence or attempt to influence any decision taken by the Commission is an offence which could be tried in a High Court.”“‘It should be emphasized that the JSC is dedicated and it is its responsibility to protect the independence of the judiciary and discharge its service without being intimidated by influences, threats or criticism. I have been instructed by the Commission to issue this media release to keep the majority of the public who value justice informed about an attempt by conspirators to destroy the credibility of the JSC and the Judiciary. — Manjuala Tilakaratne, Secretary, JSC.”
