A Rejoinder To Suren Raghavan On Independence Of The Judiciary
Dr Laksiri Fernando
I have just read the article by Dr Suren Raghavan titled “Independent Judiciary in a Dependent (ill) Democracy” (Colombo Telegraph, 29 December 2012) with mixed feelings, but mostly disagreeing with his prognosis and some of the conclusions. There is a single short paragraph (only two sentences) which says all.
“Politically speaking the concept of law and the independence of judiciary is very infant and alien concept in Lanka. Like to the entire commonwealth, it is a British colonial legacy and a postcolonial continuation.”
According to him, not only the concepts of independence of the judiciary but also law or rule of law are very ‘infant and alien’ to Sri Lanka. Even if I temporarily agree with the ‘infancy’ of the system, I cannot understand or agree that these two concepts are alien for the basic reason that there is no indigenous alternative left for the people or the country except ‘arbitrary rule and authoritarianism.’ It is this ‘arbitrary rule and authoritarianism’ that looms large at present instead of ‘rule of law and independence of judiciary’ through imposition on the people while he mistakenly criticizes instead the imposition of ‘rule of law and independence of the judiciary.’ What I can see mainly is mistaken priorities in his critique of Sri Lanka’s present predicament.
What Legacy?
He also adds that ‘rule of law and independence of the judiciary’ are British colonial legacies and postcolonial arbitrary continuations by the elite. Although as a person from the same academic field as Raghavan, Political Science, I usually tend to judge political changes or maturity within single generations, but not in epochs or millennia. But to him it seems that the British period added with the post-independence phase is not good enough time for the country to adept the two concepts, rule of law and independence of the judiciary.
In my opinion, it is not merely because of the British legacy that Sri Lanka or any other Commonwealth country should follow the two concepts under discussion, the rule of law and independence of the judiciary, but because of the UN and the international law and the proven superiority of these two in contrast to any other alternative in modern circumstances. The Commonwealth itself has absorbed these principles (Latimer House Principles) in its policies and statutes however imperfect they are put into practice in their respective countries. They are also the most preferred principles by the people if you allow the chance and the choice but not ‘arbitrary rule and authoritarianism.’ Yes, we should oppose any adverse legacy of colonialism, but people are not living in pre-colonial times although some politicians wanted to take the country back into those bygone times.
Second point is that the ordinary people in general should not be ‘blamed’ in any manner directly or indirectly for the breach of rule of law and the independence of the judiciary in Sri Lanka at present. The main blame should go to the politicians and their power schemes including some within the judicial system itself. This does not mean that one should not discuss social or historical roots if there is any. But I am not sure the social roots that Raghavan tries to trace are completely correct. Let me give you some examples or different viewpoint.
There is no dispute that “the colonial rule did not work on the Montesquieu framework.” But it did introduce slowly a new and a modern system of rule of law at least since 1833. This is a good byproduct of bad colonialism! I am not sure whether the Silindu example from Baddegama is a correct one to show how the ordinary ‘subjects’ felt about the ‘colonial law and its rules.’ It would be worse if we try to apply the same imagery to the contemporary circumstances. I have conducted some field research in areas such as Mahiyangana, Moneragala, Kalutara and Bulathsinhala in the past and my experience show the people’s close adaptation to the judicial system at times with too much of optimism. In areas that I became slightly familiar with, many ordinary people seemed to believe that they could get many things done through a ‘Mosama’ in the courts, to mean a Motion and not monsoon! Of course these are predominantly Sinhala areas and there is a possibility that people in the North or the East must be feeling differently. If I may make a quick flash back, with the introduction of the universal franchise in 1931, the people’s awareness became enhanced on rule of law and democracy, reinforced at least in some areas by the left movement. The Bracegirdle Incident in 1937 was a landmark in this development.
