| by Basil Fernando
( November 2, 2012, Hong Kong,
Sri Lanka Guardian) The 18th Amendment to the Constitution, which ended all the
debates and discussions on the 17th Amendment, brought an end to all
independent public institutions in Sri Lanka. From that point on, only one
institution remained outside the complete control of the executive president.
That was the judiciary.
 |
The 18th Amendment to the Constitution was a determined attempt for the full realisation of the aim of the 1978 Constitution, which was to give absolute power to the executive president.
True, that institution itself had
been seriously undermined since the 1972 and 1978 Constitutions. The 1978
Constitution conceptually displaced the idea of the independence of the
judiciary. However, a 200-year-old tradition of an independent judiciary could
not be wiped out merely by a constitutional change. At ground level the
institution and the people who had been trained under the 'old' framework were
still there. More than that, a belief had been created over those 200 years that
in court it was possible to obtain justice. And this was difficult to erase.
This gave rise to a contest
between the executive president and Neville Samarakoon QC, the first Chief
Justice under the new constitution. One of the issues that no one has yet
explained is as to how a person with such legal erudition and integrity as
Neville Samarakoon could have not seen the pernicious effect of the 1978
Constitution on democracy as a whole and on the independence of the judiciary
in particular. Surely, as one of the leading civil lawyers of the time, he
would have had some understanding of the basic principles of constitutionalism.
That the ruler cannot be above the law is so basic a premise that it is
difficult to fathom how Neville Samarakoon failed to understand it when he
agreed to be the Chief Justice under the new constitution, in which the basic
premise was that the executive president was above the law.
The debate throughout the period
of the coalition government (1970-1977), particularly within the legal
community, was about the attack made through the 1972 Constitution on the
independence of the judiciary. It replaced the notion of the supremacy of the
law with the supremacy of the parliament. This meant that parliament could make
any law, because of the removal of the powers of judicial review that the
judiciary had enjoyed until then. In fact, judicial review was what gave the
power and the punch to the judiciary. In at least one instance, even in the
colonial days, an order by the governor representing the British Crown was
declared null and void and quashed by the then Chief Justice. This was in the
well known case of Bracegirdle. Neville Samarakoon QC could not have failed to
realise that if a similar situation arose under the 1978 Constitution an order
of the executive president could not be so quashed by the Supreme Court of Sri
Lanka, as Article 35 (1) of this constitution ensured that no law suits could
be brought against the executive president in any court of law.
Mr. Neville Samarakoon QC and
many others like him could have done better if they had initially rejected the
1978 Constitution rather than when they rebelled against the executive
president when he began to bring into effect what he designed the 1978 Constitution
for, which was to have absolute power. It is said by many who knew Neville
Samarakoon QC that he regretted his mistake bitterly until the time of his
death.
It was when J.R. Jayewardene
found that the Chief Justice was not under his control that he brought the
first impeachment move under the 1978 Constitution. Since then, whenever the
impeachment provisions are used, it is done under the same circumstances and
for the same purpose.
The Chief Justices who came after
Neville Samarakoon understood the new equation and did all they could to avoid
any kind of confrontation. In that way they weakened the judiciary and also the
peoples' faith in their independent function.
When Sarath N. Silva became the
Chief Justice he understood the equation very well and made it his business to
support President Chandrika Bandaranaike until the very end, up to the point
when he realised that the future did not lie with her. Then he shifted his
alliance to Mahinda Rajapaksa and kept up the supportive link to the executive
until finally, for reasons best known to himself, their relationship faltered.
Sarath N. Silva makes many
speeches now and, at times, expresses partial regret for his allegiance to the
executive. However, by then irreparable damage had been done to the power, as
well as the image, of the judiciary.
Over the years this situation led
to the creation of disillusionment among the people as well as the lawyers. The
following quote from S.L. Gunasekara's recent book Lore of the Law and other
Memories reflects the demoralisation caused by the weakening of judicial
independence. In answer to a question from a junior lawyer: "Sir, is
Hulftsdorp much different today to what it was when you joined the Bar?" He replied, "When I joined the Bar we
had no air conditioners, no computers, no lifts, no ponds inside the Supreme
Court premises, no photocopying machines or free trips abroad sponsored by the
Government or nongovernmental organisations; but we had justice.........I did
not, by this, mean to say that there is no justice whatever done in the courts
today, (in that some measure of justice is done) but that the difference
between then and now lay chiefly in the fact that while there were doubtless
many shortcomings in the administration of justice even in those days which we
nostalgically recall as having been the gold old days, that was a time when we
almost always won good cases and lost bad cases whereas today, there are so
many occasions when we lose good cases and win bad cases that it has now become
virtually impossible to properly advise a client about his prospects in a case
whether already filed or in contemplation......"
The new impeachment motion
The advantage that President
Rajapaksa may be trying to cash in on now as he brings the new impeachment
motion against the incumbent Chief Justice may be this disillusionment and
demoralization, prevalent among the people as well as among the lawyers
themselves about what they see as the deterioration of the judiciary. Perhaps
the executive may be seeing this as a suitable moment for striking a final blow
against the judiciary and thus complete the process started by J.R. Jayewardene
when he filed his impeachment against Neville Samarakoon.
The 18th Amendment to
the Constitution was a determined attempt for the full realisation of the aim
of the 1978 Constitution, which was to give absolute power to the executive
president. In 1978 this was still a difficult task as there were the habits
formed over a long period to trust the local institutions and still a belief in
the possibility of justice and fairness was quite alive. Perhaps the executive
thinks that the opportune moment has arrived to realise the full potential of
the 18th Amendment.
Already there are public rumours
about who the executive is aiming to put in place of the incumbent Chief
Justice once the impeachment process is speeded up by the utilisation of the
toothless majority that the government has in parliament. If those rumours are
correct then the last days of even the limited independence of the judiciary
are close at hand.
However, it may not all go that
way. The people may use this occasion not only to critique the absolute power
of the executive but also as a critique of the weaknesses of the judiciary
itself. They may use this occasion to demand a stronger judiciary. That, of
course, implies that the people will have to deal with the displacement of the
absolute power notion which was created through the tyranny of a four-fifth
majority in parliament that J.R. Jayewardene had in 1978.
Whichever way, for better or for
worse, the present impeachment motion will prove decisive.
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