The judicial role and constitutional transgressions

By Kishali Pinto Jayawardene

(December 29, Colombo, Sri Lanka Guardian) Precisely eight years ago, when petitions asking that the state media should not be used as the party propaganda organs of the then Chandrika Kumaratunge Presidency were filed before Sri Lanka’s Supreme Court using legal precedents laid down by that very Court in previous years, former Chief Justice Sarath Silva dismissed them with nary a second glance.

The petitioners who were academics and activists had filed the petitions in the public interest. However, they were asked to turn off the Rupavahini if they did not like what was being shown there and switch to a private television channel. This was not all. Both the petitioners and their counsel were harangued as to why they had come before court. When they tried to explain that this was on the basis that state media organs which are maintained through the tax monies of all citizens professing varied political persuasions and therefore the media should not be used for the benefit of the government alone, they were rudely asked as to whether the petitioners, in fact, had paid their taxes. The former Chief Justice just stopped short of throwing the files at the heads of the petitioners and their counsel which was, in fact, exactly what had happened in some other cases before the Court during that period.

The judicial role and the executive function

All this was, of course before the former Chief Justice’s superbly timed metamorphosis from what he was for seven years of his (all too long) decade in judicial office to a rights crusader during the tail end of this term. The former Chief Justice’s ‘crusading’ judgments during the later years, some of which transgressed the boundaries between the judicial role and the executive function, did little to set right the damage that had been done to the institution of the judiciary, however much the masses may have cheered. If, on the other hand, the former Chief Justice had used his considerable intelligence to steer a steadfastly straight course throughout the ten years of his term, we may have a different reality in governance today.

This is what we expect from our judges and the judiciary regardless of the colour of politicians who may come and who may go. It is from the judiciary that people expect apolitical decisions on matters of personal and public interest, not to have the judiciary behaving like politicians in judicial robes.

The core of the coming Presidential election

And if one returns to the general question of what is at the core of the coming Presidential Elections, the answer is clear. Our rulers have lost respect for the law and for the Constitution. For this we have none other than ourselves to blame for the easy manner in which we have allowed the governors of this country to misgovern with little effective protest. Allowing the subversion of the judiciary is one aspect of this phenomenon which has had disastrous effects.

If, for example, a consistent precedent had been laid down by the Court on the misuse of state resources during the pre-election period, the Commissioner of Elections may have been emboldened to take sterner action rather than the now commonplace ritual of issuing guidelines to the state media and threatening the appointment of a Competent Authority to monitor the media which is a relatively new power granted to him in terms of the 17th Amendment to the Constitution read together with subsidiary legislation but which has never been used effectively by him in the past. It is a relief that petitioners who last week came before the Court alleging the very same complaint that has now become familiar in regard to the misuse of the state media during the pre-election period, were treated far more courteously by the Court. The fact is that guidelines to this effect must be issued first by the Commissioner and then must be seen and demonstrated to be violated. This is indeed an essential pre condition to the invocation of the constitutional prohibition. Now that the guidelines are indeed in place, it is to be hoped that the state media’s flouting of the directives will be strictly monitored and direct intervention by the Commissioner demanded in the form of a strict Competent Authority in the absence of which, the Court’s jurisdiction should be invoked.

Abstaining from political interference with the judiciary

But when the former Chief Justice lectures to the public on the constitutional transgressions of President Mahinda Rajapaksa at public functions and on television, there is more than a little irony implicit in the sight. Undoubtedly this is the first time that a former Chief Justice has so openly lent his name to the political campaign of a electoral contender, (amounting to just a little step behind coming forward himself as a contender), though we have had at least one example of a judge of the Court in the past who ascended the political platform in pre-election rallies.

Again, though the masses may cheer at this sight, it behoves us to reflect on what we need from whoever comes into Presidential office next year. We need a President who will be clear that, of all things, he will abstain from political interference with the functioning of Sri Lanka’s judiciary. From this flows every other essential pre-election promise ranging from the implementation of the 17th Amendment to the Constitution to making sure that the Bribery and Corruption Commission functions effectively.

For if we do not have the requisites of an independent judiciary in place, all these other demands will be rendered useless. Indeed, this is a caution not only to unscrupulous rulers but also to unscrupulous judges. Both are equally dangerous to a Rule of Law system and both need to be recognised for what they are.

This is what is core to the functioning of any democratic system and Sri Lanka needs to see this value reasserted by her judges, by her rulers and by the people in the months ahead.