| by Gajalakshmi
Paramasivam
( October 11,
2012, Melbourne, Sri Lanka Guardian) I write in response to the Friday
Forum’s statement on ‘Judicial Independence’ published in Sri
Lanka Guardian on 09 October 2012.
The topic is
introduced as follows: ‘The independence of the judiciary in Sri Lanka has seen
consistent erosion for decades. The unprecedented public statement by the
Judicial Service Commission of Sri Lanka (JSC) complaining of intrusions into
its functioning is yet another example of the incremental assault on democracy
and judicial independence in this country. The public protests against a
recent attack by a mob on a court house
and a member of the judiciary in Mannar, allegedly instigated by a Cabinet
Minister, appears to have had no impact on governance which continues to
display contempt for the Rule of Law.’
Governance to my
mind is seen through a combination of
Administration and Politics. In any independent group – including the Judiciary
– costs need to be equal to benefits for
that group to ‘show’ independence / stability. The input in terms of costs by
litigants should equal the output produced through the judicial process that
end up with the litigants taken as a whole. The visible ingredients are money
and status. If therefore – the total identifiable wealth (money and status
relating to the matter) of the litigants
invested through the Courts is less or
more than the total identifiable wealth (money and status relating to the
matter) of the litigants after the Court
experience – then the Court has damaged the social justice system. That type of
Judiciary is its own block to being Independent.
The Friday Forum
states ‘The Friday Forum unequivocally condemns any attempt at violating the independence
and authority of the judiciary. We urge all sections of Sri Lankan society to
respond to this threat by reaffirming our commitment to preserve our democratic
rights. It is only an alert and active citizenry that can prevent this type of
abuse of power.’
Other sections
of society owe it to the Judiciary to protest against such violations to the
extent the Judiciary contributed to upholding the independence of these various
groups. Any more than that would confirm that the Judiciary’s real status is
less than that of these groups. An ‘alert and active citizen’ would contribute
in real terms to preventing such interference through abuse of power. But then
is the Judiciary ready to share in the costs – and punish the Abusers of Power
– who are likely to take direct action against such ‘alert and active
citizens?’ I myself went to prison as a
result of being such an alert and active citizen expressly upholding my Equal
rights as an ethnic migrant in Australia. There are numerous parallels in Sri
Lanka – especially in the case of Journalists. What did the Sri Lankan
Judiciary do to prevent or at least reduce such injustices?
As per my
interactions with Sri Lankan lawyers and Judges – most of them actually do not
believe in the laws through which they earn their income. Like academics – they
would state the theory / law – but in practice they would use words that they
consider would bring them quick and easy income. This is also the case in Australia but the
difference is that due to higher income/salaries for Administrative employees within the
Australian Justice system, compared to the Sri Lankan Justice system – Due
Processes are more strongly followed and are shown to be followed in Australia than they are in
Sri Lanka. Multiculturalism also strongly influences the prevention of
deterioration of commitment to Due Processes. The reason for this is
‘foreignness’ which leads to one finding fault with the other.
The Friday Forum
states ‘In a democracy principles such as independence of the judiciary are not
purely theoretical propositions. Attacks on judicial independence are attacks
on the people. Article 4 of our Constitution recognizes that the judiciary exercises the judicial power of the people.
The judicial power of the people has to be exercised both independent of the
political authorities and also without partiality. Otherwise we, as citizens,
are left without equal protection of the law, particularly against violations
of our democratic freedoms and rights by political authorities. We need to do
all we can to safeguard judicial authority and independence.’
Taken as a whole
– Sri Lanka is not seen as a Democracy by the Common person. If there are parts
of Sri Lanka that are Democratic – they need to be specifically identified,
recognized and promoted – including by the Friday Forum. In a democracy,
‘attacks on the independent powers of the people’ must first be condemned and protested
against, before attacks on judicial independence through the judiciary are
condemned and protested against. But such an approach would need much
Affirmative Action on the part of groups such as the Friday Forum made up
largely of Professionals who are highly conscious of their official titles.
It’s like the high caste Vellala Tamil feeling for those of his caste naturally
before he would feel for the low caste Nalavar (Toddy Tapper) ; It is like the
White Australian Police feeling more for another like himself before feeling
for an ethnic looking migrant from Sri
Lanka; It is like the Sri Lankan army commander
feeling more for Sinhalese soldiers than for Tamil combatants. None of
these could be changed without
conscious application of merit basis common to both sides and/or affirmative
action to recognize the ‘poorer-looking outsider’ first as being right until
proven otherwise. When the Judge in a subjective system, takes the self
represented litigant as ‘right’ before the lawyer – until known otherwise – the
Judiciary is Democratic to that extent. Not until then. Until then, it is the
responsibility of the Judiciary to protect the judicial rights and powers of
the citizen much more than the other way around.
Each one of us
contributes naturally to the dependence or independence of our home-groups.
Hence a judicially independent citizen would naturally contribute to judicial
powers of the home group that s/he feels a part of. To the extent the Friday Forum feels part of
the Judiciary their own sense of independence or dependence as the case may be
would naturally be added to the Judicial powers of their home-groups –
including the Judiciary. These are real powers that we carry beyond time and
space borders. The rest are local and cannot be taken beyond local borders.
They are political powers that do not have real value beyond the local borders
– in this instance Sri Lanka and/or the Sri Lankan Judiciary.
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