Shadow boxing with the independence of the judiciary

| Kishali Pinto-Jayawardena

( September 30, 2012, Colombo, Sri Lanka Guardian) President Mahinda Rajapaksa’s indignant retort to newspaper editors this week that he did not attempt to interfere with the independence of Sri Lanka’s judiciary has all the hallmarks of the classic ‘swing and swerve’ tactics adopted by his administration. In other words, this refers to its now entrenched policy of swinging out at an individual or institution and then adroitly swerving sideways to avoid consequences while engaging in the most palpable if not absurd falsehoods to serve its purpose.

Ambiguities in the Presidential utterances

Sweetly reasonable as the President’s words may appear to be, closer dissection of what he said by those of us who care to utilize our mental faculties to do so, exposes clear ambiguities. For example, the thrust of his explanation was that he had requested a meeting with the Judicial Service Commission (JSC) to ‘discuss with them some matters such as training, welfare, allocations from the forthcoming budget,’ (The Island, September 27th 2012).

But are we then required to believe that the JSC and its unfortunate Secretary who is now reportedly to be inquired into by the Government for matters that remain shrouded in secrecy (as reported in that same newspaper), would have taken leave of its collective and individual senses to publicly complain that ‘it is regrettable to note that the JSC has been subjected to threats and intimidation from persons holding different status’ merely over a pedestrian discussion on training et al? Surely this is to strain our credulity too far, to put it in the most understated terms?

Note that the JSC statement, specific details of which became public over last weekend, did not mention a Presidential request to meet the JSC. This request was merely circulated through public rumor and it is certainly good to know that confirmation of the same was provided by the President himself later on in the week, despite the unconvincing explanation advanced as to the reasons therein.

Due credit to the JSC for going public

The JSC statement mentions political displeasure over disciplinary action initiated by the Commission in regard to the conduct of a judge. The undertones of this displeasure though not mentioned in the statement but commonly talked about, are the close linkages maintained by this judge with the administration. The JSC appeared compelled to issue the statement following repeated attacks on the body and on its Chairman, the Chief Justice in the state media. Meanwhile the Bar Association, as it is wont to do, issued statements and resolutions.

It also (as some would quip, in the manner of the normal response of the United National Party to any matter of public importance), constituted a committee to determine if the media attacks on judges constituted contempt. These steps would, of course, prove quite useless if no constructive action is taken substantively by the Bar to meet what is a definitely a clear and present danger to what remains of the independence of the country’s judiciary.

But to return to the JSC statement which is at the centre of the current controversy, it is interesting that (as reported) the Cabinet has discussed the possibility of initiating disciplinary action against the JSC Secretary purportedly over some allegations unconnected to the instant dispute.

As commonsense would have it, a peculiar stretch of the imagination is not required to link this threat to the statement issued under his hand but as explicitly ‘instructed’ by the Commission itself. So now does the Cabinet contemplate moving thereafter against the members of the JSC, including the Chief Justice? More likely, this threat may be taken as a clear warning to the JSC that it should only go thus far and no further. This entire exercise of shadow boxing with the independence of the judiciary is highly contemptible. And whatever may be said, the JSC should certainly be given due credit for going public with the situation that it was facing even if such a course of action may have been inevitable given the nature of the attacks launched by the state media against the judges.

Lines of challenge drawn at basic points

As was warned in last week’s column, the lines of challenge between the administration and the judiciary are now drawn, not at the point of high constitutional jurisprudence regarding the protection of civil liberties as was the case in the past. Rather, the judiciary is required to defend itself over lamentably basic issues regarding the interdiction of a junior judge, a rampaging Minister and a determination on the procedural steps that ought to be followed in regard to a Bill pertaining to matters impacting on the functioning of provincial councils. These developments show the extent of deterioration of Sri Lanka’s independence of the judiciary, proving that all those incurable optimists who believed that the country’s systems would survive basically despite the extensive politicization of the last decade, terribly wrong.

As again was said last week, when former Chief Justice Sarath Silva held iron sway over his Court during 1999-2009, an initial courageous reaction by the Bar, by the associations of judges (retired and sitting), by legal intellects of the day and by the citizenry at large including the media who should have understood that the judicial system of Sri Lanka was being disemboweled before their very eyes, may have prevented the worst of the excesses during that time. However, what prevailed was a deafening and shameful silence, by and large. The basic importance of safeguarding the judiciary’s independence from internal and external threats was cynically dismissed as unworkable, impractical and impossibly idealistic.

Regressing into the Dark Ages

This has not been the case elsewhere in this region. It is to India’s credit for example, that idealists still exist in the legal community in that country which is why it has been able to, despite tremendous strains, protect the notion of public respect for judges. India’s Houses of Parliament are now considering a draft law on judicial accountability which brings in much of these vital concerns into the public sphere for discussion. In contrast, Sri Lanka has regressed into the Dark Ages, metaphorically as well as literally.

This Presidency and this administration is merely taking the disemboweling of judicial governance, which commenced most notably in 1999, forward as it did with the conscious ignoring of the 17th Amendment and the conscienceless enacting of the 18th Amendment. We have none to blame for this most astounding crisis that Sri Lanka now faces in regard to the fundamental integrity of its democratic systems of governance but ourselves.