Reflections on political and other dictators

by Kishali Pinto Jayawardene

(July 24, Colombo, Sri Lanka Guardian) Do people have the right to rise up against dictatorial judges? This abrasive if not somewhat anarchic question is prompted by former Chief Justice Sarath Silva’s ringing assertion at a public function a few days back that the people have the right to rise up against dictatorial rulers.

Simplistic whittling down of the problem

The thrust of the former Chief Justice’s speech was that Sri Lanka’s judiciary and the legislature are accountable to the people. According to him, this same rationale does not however, hold good for the executive.

Decisions made by members of these two branches of the State are publicly accessible but those decisions made by the executive are not. Consequently, the people have a right, as they did to the kings of yore who ruled unjustly, to rise up against dictators.

To many, these sentiments may seem to be a simplistic whittling down of the complexity of the Rule of Law crisis in Sri Lanka today. Yet, these are also easy theories that others may subscribe to.

For this reason, we need to dissect these assertions as they go to the root of the problems that plague us as a malfunctioning democracy.

Political accountability to the public

There is no quarrel with the fact that the executive is not answerable to the Sri Lankan people. The entire scheme and logic of the current constitutional document under which we are most uneasily ruled (not governed) testifies to that reality. There is also little doubt that dictatorial behaviour on the part of the executive today is rudely if not boisterously triumphant, unlike the more nuanced manner in which the office of the Executive President was abused by President Mahinda Rajapaksa’s predecessors.

It may also be convenient to blame political administrations for the ills that afflict the body politic today. Our history has indeed been a sad litany of internal or external subversion of the judiciary. In the seventies, attempts were made to politicise and intimidate judges. In the eighties, the houses of judges were stoned following the delivering of decisions perceived as being against the government at that time. Most notably in the mid nineties, the delivering of apolitical judgments on crucial rights issues was followed by public disparagement of judges by the executive and parliamentarians. Irrefutably, if the country’s legal institutions had been allowed to function properly from the early part of this decade, much of the pressure now being exercised from beyond our shores on questions of accountability and justice may have been defused.

Judicial autocracy of past years

But are our memories limited to only the challenges posed by the executive to peoples’ sovereignty? On the contrary, recent judicial history also teaches us many truths about the honesty of these injunctions to rise up against authoritarianism. It must be recalled that authoritarianism comes in many shapes and forms, all of which are not merely political.

Certainly it must be said that any unfortunate soul who dared to rise up against dictatorial behaviour in the Court presided over by the former Chief Justice, during 1999-2009 would have been given very short shrift. This was an era when judicial autocracy was paramount. The office of the Chief Justice became far more than primus inter pares and assumed an interventionist form, departing from tradition and precedent. The nauseating obsequiousness displayed by politicians on both sides of the divide to judicial autocracy during much of this period was only equalled by the frantic bowing and scraping of many senior members of the Bar, concerned not with uncomfortable concerns regarding the independence of the judiciary but with far more pedestrian preoccupations with their own pockets.

In this unhealthy environment, respect for the rigour of the law was irretrievably lost. Even the perception of questioning the authority of court was met with disproportionate punishment. The sentencing of a teacher of English to one year hard labour, primarily due to his speaking loudly in court while arguing his own case during this period, was just one manifestation. We must also not forget a frequent complaint of litigants, not only that justice was not done but also was not seen to be done. The reasons and logic behind many decisions handed down by the Court during this period was subjected to unprecedented public questioning, much in the way that the executive is questioned today. ‘Good’ and ‘bad’ judgments alike were tinged with undertones that detracted from their jurisprudential authority. Public access to some orders and accompanying documentation filed as of record was not all that easy either. So when it is airily declared that all actions during this period were as pure as the proverbially driven snow, one is naturally taken aback.

Peoples’ sovereignty means enhancing of rights

What we needed were not judgments declaring that international protocols to human rights treaties, (that Sri Lanka had voluntarily signed to on the advice of shrewd strategists such as the late Minister of Foreign Affairs, Lakshman Kadirgamar), were unconstitutional. Quite unmindful of the dangers that such a peremptory course of action would lead to, these judgments were propelled more by judicial pique precisely at challenges being posed to judicial authoritarianism at that time. It is from this point that outside scrutiny of Sri Lanka’s obligations to international standards of rights protections heightened in their intensity. Rather than such an incautious approach, a judiciously balanced intermixing of national law and those elements of international law would have enhanced the actual meaning of peoples’ sovereignty.

This approach had been creditably followed by Sri Lanka’s Supreme Court in pre 1999, leading to the common citation of legal precedents from this country in the Commonwealth and even afar. Peoples’ sovereignty means, after all, that rights of citizens should be secured to the widest extent possible and that such rights should not be undermined by state sovereignty. Unfortunately, in later years, a perverse use of the terms ‘peoples’ sovereignty’ was conflated with the notion of state sovereignty rather than with the enhancing of citizens’ rights.

So was the judiciary accountable to the people during this period? What we saw were two impeachment motions brought by the opposition, unsurprisingly still in the opposition, the second brought at a point when they realised that their attempts to manipuate the situation to their advantage had failed. Where was public accountability in all this? Is it anything to wonder at, that the integrity of Sri Lanka’s judiciary suffered irreparably from these convulsions to the point where the ripples still continue? The fact that the latter part of this tumultuous period was marked with significant pronouncements challenging executive action did not suffice to erase the damage that had already been done for much of this time.

As events elsewhere have shown us, once a break is made in tradition to that radical extent, recovering the integrity of the judicial institution of a country takes decades. This is if it recovers at all. Once we lose the memory of what it is to have democratic institutions, regaining this memory will not be easy.

Replacing dictators with democratic institutions

So when we are preached to regarding the right of the people to challenge political dictators, it is necessary to administer some home truths in regard to the prevalence and characterization of dictators in other forms, even if these dangers may appear to be a thing of the past. The basic truth is that, even if people rise up against dictatorial rulers, they must do so with the firm determination that functional democratic institutions must replace dictators, political or otherwise.

At a more substantive level, the vibrancy that characterizes discussions on the public accountability of the judiciary in the rest of South Asia, particularly India and Pakistan, is quite absent here. In Pakistan, despite all its tremendous problems with governance at many different levels, public support for a besieged Bench at one time resulted in the overthrowing of an executive who was even more powerful than his Sri Lankan counterpart. This support was generated by that country’s legal profession which realised the undermining of its own value with the undermining of the Rule of Law.

Mortifyingly, we are yet to see such basic self-awareness here.