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by Bijo Francis
(
November 22, 2012, Hong Kong, Sri Lanka Guardian) The Chief Justice of Sri
Lanka, Dr. Shirani Bandaranayake, is facing impeachment in that country. Those
who know the state of affairs in Sri Lanka, might have no doubt, that the
impeachment is politically motivated. To justify the process, the government has
levelled allegations of corruption against Justice Bandaranayake. The
Constitution of Sri Lanka (Article 107) and the Parliamentary Standing Orders,
though allows such a process, in law and theory, the entire process is devoid
of legal and jurisprudential merits, a question that the Supreme Court of Sri
Lanka is now considering, by way of receiving a reference petition to consider
the constitutional vires of Article 107 of the 1978 Constitution.
Sri
Lanka is not a country far and distant from Indian shores. Neither are the
people, culture and politics of Sri Lanka alien to India. Though some people in
both countries would argue for and against India's involvement in Sri Lankan
affairs, the impeachment of the Chief Justice for purely political reasons is not
something that India could pretend to ignore. Sri Lankans and Indians and all
those who believe in democracy have the moral duty to express their opinion
about the impeachment process. New Delhi has a little more difficult job,
perhaps in expressing its concern about the impeachment process to Colombo, a
responsibility nonetheless. The notion of state sovereignty is not a moral or
legal impediment to this.
That
no government in India would ever dare to initiate impeachment proceedings
against a judge in the country, without complying the constitutional
requirements that guarantee universally accepted norms of justice, fair trial
and due process strikes a stark contrast to the process adopted in Sri
Lanka. That none of these guarantees are
offered to a judge, when a judge is judged in Sri Lanka, is reason persuasive
enough for any government to express its concern to Colombo about the
impeachment.
Whenever
in India, the state legislatures or the central parliament has tried using
parliamentary privilege for unjustifiable reasons against the judiciary, the
judiciary has corrected the legislative houses. Additionally, the basic
structure doctrine, postulated in Kesavananda Bharati (petitioner) against
State of Kerala and others (respondents) [All India Reporter 1973 Supreme Court
p. 1461], triumphs the clarion call of the power of judicial review and the
limits drawn upon the parliament, even in its legislative authority. Justice J.
R. Mudholkar who first postulated the concept in 1965 proposing a limit to
legislative power of the parliament, or Justice Hans Raj Khanna and his brother
judges who together in 1973 put the concept into practice were not attempted to
be impeached by the then all-powerful Prime Minister of India, Mrs. Indira
Gandhi, though the fallout from the judgment resulted in the promotion of
junior judges. That too was not left without critique, immortalised in the
words of former Chief Justice Mohammad Hidayatullah as an "attempt of not
creating 'forward looking judges' but 'judges looking forward' to the office of
Chief Justice."
At
the core of the issue is the concept of independence and separation of powers
in governance. Power of judicial review, is one of the building blocks required
by all states to prevent the deterioration of democracy into dictatorship. In
that, the impeachment of a judge in Sri Lanka is the impeachment of the entire
justice process in that country. The asphyxiation of what is left of judicial
independence in Sri Lanka will have far-reaching and damaging effects upon its
neighbours, India included.
During
Ms. Aung San Suu Kyi's visit to India, she said that India's active
appreciation of the military junta in Burma saddened her. Ms. Suu Kyi said that
she was not surprised by India's accommodation of Burma's military dictators,
who have brutally denied and continues to do so, the people of Burma, their
freedom. Pretending ignorance of the impeachment proceedings in Sri Lanka will
only cement this image.
Democracy
and institutions of democracy are not internal affairs of a country, since no
country can claim absolute ownership of democratic norms and values. Neither is
this concept western, as often wrongly portrayed by individuals like Mr. Lee
Kuan Yew, who has self-assumed the right of all Singaporeans to decide what is
best for them, on the basis of a fake Asian value doctrine, or like Mr. Hun Sen
of Cambodia who has decided on behalf of the Cambodians to continue in power
until he is 80 years old.
The
concepts of democracy and freedom, the institutions necessary to sustain these
concepts and the character of these institutions and their relationship between
each other are the results of centuries of human struggle to free the public
from unwarranted state control over fundamental freedoms. Crystallised into
legal theory, these concepts translates into legal restrictions against arrest
and detention; as concepts of bail; presumption of innocence; right against torture
and everything that is understood as fair trial. In constitutional theory this
means among others, the separation of powers between the organs of the state
and the respect state institutions maintain about each other while discharging
constitutional mandates.
The
quintessence of democracy is freedom and administration by consultation,
embodied in the concept's ability to check absolute control. Judicial
independence is elementary to this premise and the judiciary's ability to
review acts of the executive, legislature and the judiciary itself, openly and
freely is a prerequisite to realising democracy. When these spaces of freedom
and consultation are shrunk, no matter where it happens in the world, it is the
moral and legal responsibility of everyone who values these concepts to express
concern and be worried.
When
it happens in the neighbourhood, it brings matters close to home.
( The writer
is a human rights lawyer with the Asian Human Rights Commission, where this piece
originally appeared.)
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