| by Laksiri Fernando
(
December 22, 2012, Sydney, Sri Lanka Guardian) As reported by the Media on 21
December 2012, the Central Committee of the Communist Party of Sri Lanka has
decided almost unanimously not to be involved in any manner in the impeachment
effort of the government against the Chief Justice. As the members have
correctly pointed out “it is important to see the real reasons behind the
impeachment.” They have identified that “while the immediate reason was the
judgement of the Supreme Court on the Divineguma Bill, the long term aim is to
have a judiciary that is subservient to the Mahinda Rajapaksa regime,” as
reported.
It
is not exactly clear whether they in fact have officially used the term
‘Rajapaksa regime.’ If they have, it would be difficult for them logically to
affiliate with such a personalised regime in the future. Even if they mean
merely the ‘Executive,’ it is sufficient at this juncture to remind the left
affiliated sections of the UPFA, including individuals, that there is something
fundamentally wrong with the impeachment motion by the government contravening
all the democratic norms of justice, constitutionality and rule of law in the
country. Therefore, this decision of the CP should be hailed by all sections of
the democratic forces in Sri Lanka irrespective of party or ethnic affiliation.
This should be an eye opener for not only the other left parties in the UPFA
but also for all democratic sections of the Sri Lanka Freedom Party (SLFP) who
admire at least the moderate and democratic policies of its founder, SWRD
Bandaranaike.
It
was at the last Party Congress that the Communist Party made a self-criticism
and announced that the decision of their representatives in Parliament to
support the 18th Amendment, although hesitantly, was a mistake. We
should be proud to have such parties or politicians in our midst that could
frankly admit their mistakes and make necessary policy changes not to repeat
such mistakes in the future. Although my political affiliations during the
young days were with Trotskyism (as some commenters like to point out
repeatedly!), I always had a soft corner for the Communist Party as it
particularly happen to take progressive positions on the national and other democracy
questions in Sri Lanka. But today, these or other narrow ideological debates or
differences are completely meaningless. I am no longer young or this is not
1960s or early 1970s!
The
central choices that the country has to make today are between democracy and
dictatorship; one or the other. It is in that context the defence of the
independence of the judiciary from the Executive is of paramount importance. Under
normal circumstances there shouldn’t be a conflict between the Legislature and
the Judiciary, if the Legislature is not manipulated by the Executive. Both
should work in harmony and with understanding, particularly in the case of
interpreting the constitution and other matters of judicial review of
parliamentary Bills. The Speaker has a major role to play in maintaining this
harmony. In a healthy parliamentary democracy, the Speaker is supposed to be
independent and a moderate father figure. But today, more than in the past, the
Speaker appears to be another dictator, perhaps because he is the brother of
the President. In the case of Britain, the highest judiciary has also been the
second chamber of the Parliament until the Supreme Court was created recently
in 2009.
The
relationship between the Judiciary and the Executive by definition is
different. There are certain differentiations in the separation of powers
between the three branches, many people appear to neglect. It is not one and
the same thing. The Judiciary should always be cautious and should guard its
independence jealously from the Executive. Otherwise, all rights and liberties
of the citizens will be trampled by the Executive. If you show a leniency, the
culprits would jump on the occasion and stifle the independence. This has
happened in the past and it should be prevented in the future. There is no
business for the executive to interfere in the matters of the judiciary. There
is no need to work in coordination with the Executive although that is what
advocated by the present President of Sri Lanka.
There
are some rich but often tragic experiences that come from the past of the left
movements in other countries. The most instructive might be the experience of
Germany prior to the advent of Fascism. The Weimar constitution of 1919
appeared to be one of the most democratic constitutions of that time as Dr NM
Perera pointed out in his PhD thesis. But one major weakness of the system was
its rather supine judiciary. It lacked institutional independence. When
Hitler’s dictatorship was on the rampage, with manipulated public opinion and
vote, the judiciary obviously failed to protect the citizens. That is one
reason why Martin Niemoller had to make a desperate appeal to the citizens to
fight against the Gestapo when they come after anyone whether a Jew, a
Communists or a Socialist. Otherwise they would come after everyone as he
implied.
There
was little or no understanding among the communists or the socialists about the
importance of protecting democratic institutions and particularly the
independence of the judiciary during those days. Some would have said: ‘the systems
are collapsing, so what?’ Equally tragic was the thin liberal opinion among the
intellectuals, the academia and legal professions in Germany. Luckily, Sri
Lanka is better placed today, the legal professionals and even the judges
taking a firm and rational stand on the matter.
The
Communist Party decision to disassociate themselves from the impeachment effort
is very welcome that could be an eye opener for the left and other parties in
the UPFA coalition, but perhaps it is not sufficient. They should actively
oppose it. There is a need to have a broader discussion and a discourse on the
subject as the Socialist Study Circle has already initiated. They could also invite
the broadest possible sections to participate in these discussions including
obviously the opposition (UNP and JVP etc.) and liberal sections of the old
SLFP.
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 As reported by the Media on 21 December 2012, the Central...){kind=link}