Independent Judiciary In A Dependent (ill)Democracy
Dr Suren Raghavan
His Excellency Percy Mahendra Rajapaksa beside his many other talents, proves to be a great crisis manager. His ability in this area is so rich that his daily rule is cluttered with some form of crisis not as an issue to manage but as a mode of governance. Recently may have stepped on one of the complex and thorny areas in term of the impeachment of his own Chief Justice, yet the signs are that he will turn this to his own popularity. The duel modality by which he, on one hand initiates and encourages the ousting of the CJ while on the other distancing from the same process or even denying it, is surely the mark of Mahinda. This is a brief reflection to probe the possibility of an independent judiciary if ever, in the fragile and fractured democracy of Lanka.
All undergrads of Political Science are taught the doctrine of separation of power in a working democracy. We often start with the French Jurist Montesquieu, who basing his conceptual analysis on Aristotle and John Locke presented a framework of analysis on the same. Montesquieu possibly did not even imagine the despotic rule of dictators and their bloody regimes of the 20th /21st century. He maintained that for human liberty, it is essential to have checks on governments as political power has the inbuilt ability to corrupt. His answer was to separate and maintain three independent yet cross-pollinating centers of power: the legislature, executive and the judiciary- each performing a specific function relating to others independently. For Montesquieu-very basically – the legislature is to debate and enact laws, the executive is to defend the state and the judiciary to interpret law in dispute settling and awarding judgment. He argued that I) all three of these functions should be clearly separated, II) one institution should not interfere with the other and III) one (same) person should not be involved in all three institutes. On the judiciary he said;
There is no liberty, if the power to judge is not separated from the legislative and executive powers. Were the judicial power joined to the legislative, the life and liberty of citizens would be subject to arbitrary power. For the judge would then be the legislator. Were the judicial power joined to the executive, the judge would acquire enough strength to become an oppressor (1977:245).
It is obvious that this extreme separation is a classical and theoretical position than any empirical/practical sense especially in the analysis of modern multi-functioning multi layered governments. What the doctrine aims to achieve is not an existence/operation of these agencies alien to each other but the avoidance of one (individual or institution) a tyranny of dominance over the others. It is this delicate balance/mutual respect and volunteer accountability that is expected in any democratic constitution and the politics governed by such constitutions. Again not all democratic constitutions are drawn on this principle (i.e. in the US). It is mostly a Westminster form of governance. The entire commonwealth hopes to govern its peoples by this. Lanka is soon to become the chairperson of that forum. Read More
