| by Laksiri
Fernando
( December 21,
2012, Sydney, Sri Lanka Guardian) Karl Marx said “the task is not just to
understand the world but to change it.” Of course the implication of this is
that “if you want to change the world you would better understand it first.” One doesn’t need to be a Marxist to agree
upon the above two propositions.
No one would
argue that the judiciary has been a perfect institution in the past. Its
independence has been compromised many a time, not by one but by many.
Particularly during the war, many improvements or reforms to the judiciary had
been postponed or neglected. However, the judiciary is the only institution
that has come forward to challenge the arbitrary rule of the executive and the
supine character of the legislature. It is a matter of survival I believe. This
effort has to be unequivocally supported whatever were our criticisms in the
past about this or that action of certain individuals. There is no need to
repeat them and some of the matters could be raised and discussed further, in
my opinion, after the impeachment matter is concluded. There are three matters
in respect of the impeachment that are almost beyond doubt.
First is the
fact that the impeachment against the Chief Justice is the central issue of the
independence of the judiciary at present. If the CJ is removed or forced to
step down, it would be easy for the executive to appoint a complete stooge and
coerce the other judges. Are we going to allow that?
Second is the
fact that the impeachment is a political move and has nothing to do with any of
the charges that have been levelled against the CJ. The sequence of events
testifies to this fact completely coinciding with the Divineguma verdict of the
Supreme Court.
Third is the
fact that the impeachment procedure of the PSC has been completely faulty both
by local and international standards and the CJ has not been given a fair
hearing that has to be denounced by all sections unequivocally. In addition,
the vilification campaign has completely damaged the dignity of the judiciary.
There has been a
mighty hurry for the PSC to complete the proceedings. In the event, both the CJ
and the opposition members had left the PSC leaving no credibility. Only three
charges are supposed to have been proved out of 14 and nine charges have been
dropped whatever the reason.
In addition to
the independence of the judiciary, there is the question of personal injustice
to the Chief Justice. No one could deny that or should ignore. She was
blatantly abused.
Among the three
charges supposed to have proved, two are to deal with the complicated issue of
‘conflict of interest’ and there are no standard rules that have been
formulated in Sri Lanka on the ‘judicial conflict of interest.’ Partly, the
judiciary is responsible for this matter. ‘Conflict of interest’ is an easy
accusation to make but a complicated one to substantiate unless there is proof.
If the conflict of interest is raised in its loose form against all judges,
they all may have to go and there is no reason why only Dr Shirani
Bandaranayake should be punished. There are more acute conflicts of interest on
the part of the executive, particularly the Ministers.
Let me make some
preliminary observations on the so-called proved charges. In the case of charge
5, the conflict of interest is quite hypothetical and not something that has
objectively happened. If at all it is not a conflict of interest that the CJ
has created; but something purposely created by the government. This is about
the bribery case against her husband. In the case of charge 1, there is no
clear connection between the outcome of the case that she was hearing and the
interest that she was supposed to have had with a party to the case. No one has
raised the issue during the case. As she has pointed out, the former Chief
Justice also was in the same position, perhaps quite inadvertently in both
cases. Then why only she should be punished?
The charge 4 is
about some supposed to be undeclared bank accounts and she has given plausible
explanations. The question is whether any lacuna due to misunderstanding or
misinformation, if there was any, could be considered an impeachable offense
unless wilful non-declaration is proved. Non declaration should have been
raised by the Inland Revenue Department first. If complete accuracy in asset
declaration is a criterion for impeachment or removal, then perhaps 90 per cent
of the government officers and politicians might come under that category.
When impeachment
or conflict of interest issues are raised, they look bad whether the charges
are correct or not. That is why an impeachment has to be a carefully thought
out business unless it in itself is a fraud. Judges normally shy away from
impeachments. But our CJ has not done so. Why? Whatever the misgivings I have
had about her past, I believe that she was feeling a strong injustice
perpetrated against her to fight back so firmly. Of course this is not to deny
that she made a terrible blunder by allowing her husband to accept a government
position. But the government is more responsible than her for that muddle.
Normally the
impeachments are not backed by political campaigns on the part of the proposers
i.e. governments. But the campaigns that the government has launched and still
continue give the impression that the impeachment is fraud. Therefore the
impeachment against the CJ doesn’t look that bad. Instead, it has given much
courage for the legal profession and even the community of judges to stay put.
It is more than staying put; it is like another replica of a FUTA
struggle.
After the
convictions of the former Army Commander, Sarath Fonseka, this is the most
vicious political trial conducted in Sri Lanka, ironically this time against
the Chief Justice. The present trial is equally or more vicious than the
former. The question arises why two key people in the establishment were
convicted in such a manner within a pace of two years. Whatever the answer you
get, it may speak volumes about what kind of future at stake in Sri Lanka, if
the trends continue and if not halted.
The issue at
stake is not only about setting standards for a perfect or a better judiciary.
It is about its institutional independence from the coercive power of the
executive. It is about its independent existence from the ‘whims and fancies’
of the politicians. There is nothing wrong for anyone to raise issues of
functional independence of the judiciary even at this ‘fatal stage,’ if they
wish to, about class or ethnic biases of the judiciary. There is no question
that they do exist and there had also been series of issues of conflict of
interest visible and not so visible; advertently or inadvertently. However we
should not allow the enemies of democracy, if I may use that term, to use our
constructive criticisms to destruct the independence of judiciary.
Whether we
believe in a socialist, mixed or a capitalist future, democracy is important
and thus the independence of the judiciary is important. We may need to
distinguish between the institutional independence from the functional
independence of the judiciary and if there is no institutional independence
demarcated through proper constitutional and political means, then the
functional independence also will fail.
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