Only judges can save mother Lanka

| by Upul Joshep Fernando

"(The March 2007 order) whereby Justice Iftikhar Muhammad Chaudhry was restrained by the President to act as Chief Justice of Pakistan and Judge of the Supreme Court... patently illegal as it has no backing of Constitution or any law conferring power on the President to pass such type of restraint order. Consequently, (the) subsequent... appointment (of) Justice Javed Iqbal as Acting Chief Justice is also void... Resultantly, the composition of the Supreme Judicial Council with Justice Javed Iqbal as Acting Chief Justice of Pakistan, and its proceedings till 15 March, 2007 are... unconstitutional."

( January 16, 2013, Colombo, Sri Lanka Guardian) The above is an extract from the judgment given by the Pakistan Superior Court rejecting President Pervez Musharraf's order for the removal of Chief Justice Iftikhar Chaudhry as illegal. The judges were acting not in the interest of Chief Justice Chaudhri; they were acting in the interest of the Judiciary and in an all inclusive larger sense, they were doing it in the interest of the country and the nation.

They were convinced, rightly so, that if they allowed Musharraf to usurp the powers of the judiciary by removing the Chief Justice in this instance, he could at any time in the future too, do the same to other judges who would not toe the line as he wished. They knew it would be the end of democratic governance in their country. In the circumstance, and for the love of the country, they did not hesitate to challenge military ruler Musharraf.

Ensure democracy

Today, we in Sri Lanka are faced with a situation that is not only similar in appearance but also has identical ramifications as the unravelling scenario reveals. As has happened in Pakistan then, it is now beginning to happen here in Sri Lanka.

Judges who dealt with onus of proof always now have the onus of protecting and preserving the Judiciary and the bedrock of democracy that is rule of law. It is now the sacred duty of judges to ensure democracy in governance would not be allowed to be whittled away by anyone or by any means.

The legality of the removal of the Chief Justice, Dr. Shirani Bandaranayake will in due course be challenged in the Supreme Court, according to considered opinions of learned legal experts. The responsibility of preserving a strong and upstanding Judiciary for the future generations rests squarely on the shoulders of the learned judges.

They will not only be sitting in judgement of a case of violation of fundamental rights of Dr. Shirani Banadaranayake as an individual; they will be adjudicating a case of violation of much larger dimension.

Dr. Shirani Bandaranayake was a victim of political expediency. The Supreme Court determination that the 'Divi Neguma' Bill, albeit in parts, was not in compliance with the relevant constitutional provisions was the actual reason for the impeachment motion against her. Even by any stretch of imagination one cannot conclude that it carried a threat to the survival of the regime. But the government over-reacted to it, dragging the country towards a constitutional crisis.

Impeachment and removal

If a minister commits a murder and a judge finds him guilty, the fate of judge will be decided by precedence; an impeachment and removal. Sadly today the judges have been placed squarely under the Sword of Damocles; impeachment and removal. To escape this constant threat of dismissal, the judges must act swiftly vigorously and most importantly with a rock solid backbone as the Pakistani judges exemplified during a similar period of extreme trial and tribulation.

The following sections were excerpted from the historic judgment of the Pakistani Supreme Court:

"The petitioner before us is the holder of one of the top five constitutional offices in the country and alleges his illegal confinement in the President's Camp Office for about five hours; complaints of his subsequent detention, along with his wife and children, for about four days and having been so kept, incommunicado; claims a gross violation not only of the privacy of his home at the hands of some unscrupulous aliens but also of a grave and unspeakable offence to his dignity and asserts also that all this had been done to him to manoeuvre his illegal removal from his office in gross violation of the Constitutional guarantees. He further alleges that his trial by a not legally composed forum comprising among others some members who had a serious bias against him and then the forum proceedings against him in a manner which could not be said to be fair, transparent, just and lawful, was offensive of the protection which the Constitution had guaranteed to him.

"These grievances, the details of which have been noticed in the earlier part of this judgment, might at the initial glance appear only to be individualistic in nature and personal to the petitioner. But then, he is the Chief Justice of Pakistan; the head of the national judicature and thus a symbol of justice and of the independence of the country's Judiciary. The allegedly contemptible exercise in question not having been directed only against the person of the petitioner but being allegedly a device to remove the Chief Justice of Pakistan from his office in a manner not permitted by the Constitution, demonstrated that the matter in question was no longer a mere private affair of an individual by the name of Iftikhar Muhammad Chaudhry but was much more.

"The critical indispensability of dispensation of justice in a society, be it between men and women or between the governors and the governed, could never be over emphasized. The fact that it is justice and justice alone, which could ensure peace in a society and its consequent strength, security and solidarity, was one of the serious lessons taught to the civilization by its history. And history, be it ancient, biblical, medieval or contemporary, also tells us that societies sans justice had never been permitted to pollute this planet for very long and had either to reform themselves paying heavy costs usually in blood or had else been wiped off the face of this earth. The French, the Russian, the Chinese and more recently, the Iranian revolution are some such lessons. It is perhaps for this very reason that doing of justice is conceivably the most repeated Quranic Command after SALAAT and ZAKKAT. And it is also for the same cause that 'Right of Access to Justice' which is in conceivable in the absence of an independent and impartial Judiciary, was by now a well-established and a universally accepted human right as would be evident, inter alia, from Article 10 of the Universal Declaration of Human Rights and from article 14 of the United Nations Convention on Criminal and Political Rights and which right was now been secured by the people in different States by making requisite provisions in their respective Constitutions.

"The passionate desire and the consequent determination of the people of Pakistan to establish in independent judiciary to ensure justice and the resultant security, peace and prosperity for themselves, is manifested through the Objectives Resolution which is now a substantive part of our Constitution being Article 2-A thereof and Articles 4, 9, 14, 25, 175, 179 and some others stand incorporated in our Constitution towards the attainment of the same declared and sacred objective.

Protection

"The above mentioned Article 9 of the Constitution guarantees protection of one's life. All the judges and jurists in different ages and from different jurisdictions have been one in saying that the world 'LIFE' 'protected and assured by various constitutions could never be understood to have been used in a limited or a restricted sense and therefore, did not mean just the vegetative and the animal life of a man or his mere existence from conception to death. This word had, in fact, to be understood in its widest and fullest context to include all such rights, amenities and facilities which were necessary and essential for the enjoyment of a free, proper, comfortable, clean and peaceful life. When confronted with concrete situations, it was held through various judgments from various countries that the right to live meant the right to live with dignity and honour and included rights such as the right to proper health care, the right to proper food and nutrition, the right to proper clothing, the right to education, the right to shelter, the right to earn one's livelihood and even a right to a clean atmosphere and an unpolluted environment. And in some other cases, the nuisance created by municipal sewage, industrial affluent and the hazards caused by a magnetic field produced by high tension electricity wires, were found to be an interference with the enjoyment of one's right to life. In yet another case from Indian Jurisdiction, even access to proper roads for people living in hilly areas was held to be an essential part of the right to life. In more than one cases from our own jurisdiction, it was also declared that since right to live in peace in a just and a fair environment was inherent in the right to life, therefore, the right of access to justice was a well recognized and an inviolable Fundamental Right enshrined in Article 9 of the Constitution and its denial, an infringement of the said right.

As a necessary consequence it was further held that since access to justice was inconceivable and would be a mere farce and a mirage in the absence of an independent Judiciary guaranteeing impartial, fair and a just adjudicatory mechanism, therefore, the demand for a Judiciary which was free of executive influence and pressures; was not manipulative and which was not a subservient Judiciary, was also an integral part and, an indispensable ingredient of the said Fundamental Right of access to justice.

"While endorsing these views, let me also add that the courts set up by the Constitution or under its authority have been so established not just as a means of securing bread and butter for the members of the Bench or of the Bar but to provide justice to the people and the resultant peace in the society and it is thus they, who are the actual stake holders and for whose benefit and welfare, the judicial system stands created. The judiciary was, therefore, an affair of the public; any offence to its independence would be an encroachment on the right of the people to access justice and finally that the security of service and of the tenure of the Judges was critical for the said independence.

"I would, therefore, conclude and hold that access to justice was a Fundamental Right which the Constitution had guaranteed to the people; that the existence of an independent and vibrant judiciary was indispensable and crucial for the enjoyment of the said constitutional assurance and in the absence thereof, this right would be a mere illusion; that without security to the Judges of the Superior Courts vis-a-vis, inter alia, their service and the tenure thereof, the independence of judiciary would be a mere delusion and a chimera; that an allegedly illegal and un constitutional interference with the tenure of office of the Head of the national judiciary would not be just an injury personal to the Chief Justice of Pakistan but would, in fact, be a serious assault on the said assured Fundamental Right of the public at large and thus of public importance. The blood-soaked, unprecedented agitation by the national Bar and by the people of Pakistan which commenced immediately after the 9 of March, 2007 and which, unfortunately, also witnessed the loss of at least 60 innocent human lives at different occasions in different cities of the country, leaves hardly any room for proof that the matter was one of public importance.

Trichotomy of powers

"This Court, through its above mentioned leading judgment on the subject, had responded by saying that yes, no court, including this Court was above the Constitution; that all the courts, including this Court, were a creation of the Constitution and were thus subservient to it; that this Court had never claimed superiority over the Legislature or even the Executive and had always believed in trichotomy of powers where each organ of the State was expected and obliged to complement the others and not to compete with them and that this Court was also bound to respect each word of the Constitution which each Judge of this Court had taken oath to protect and defend. But added that in a State where the people had opted to be governed by a written and a federal Constitution through a system which envisaged trichotomy of sovereign powers, the JUDICIAL POWER, of necessity, got vested in the judiciary which then obliged it to act as the administrator of public will. It is, as a repository of this judicial power, that the judiciary gets burdened with the onerous, the demanding, the taxing and at times that back nay even the neck breaking task of identifying the meanings of the provisions of the constitutional and sub-constitutional legislation i.e. interpretation of laws; with the duty of preserving the purity, the piety and the chastity of the Constitution by protecting it against any inroads, invasions and incursions and finally with the responsibility of acting as the custodian of the rights of the people and defending the same against any violations, encroachments and aggressions which included the duty of guarding the public property and the public exchequer.

It needs to be clearly understood that when the judiciary invalidates a legislative measure or when it annuals an administrative or an executive act, it did not do so because the judicial power was in any way superior in degree or dignity to the legislative or the executive power but because it stood commanded by the people, through the Constitution framed by them, to preserve it and for the purpose, to enforce compliance thereof.

"It is for these reasons that whenever the judiciary gets confronted with any jurisdiction curtailing provisions intended to immunize any legislative or administrative act against judicial scrutiny, the courts treat such provisions as a departure from the generally prescribed path; views it strictly as an exceptional deviation from the prescribed rule and moves in to discover precise legislative intent to show respect to the legislative measures while carefully balancing it against the sanctity of the Constitution and the rights of the public.

The international community, as it did during Pakistan's hour of destiny, when democracy was under deadly threat, is keenly observing and condemning at the same time, the last rites being performed on the democratic traditions of this country. Only judges can reverse this destructive trend by being absolutely bold and unbending when they sit in judgment over the case Dr. Shirani Bandaranayake will most probably bring in.

A Constitutional expert, Colvin R de Silva once said. "The invasion by the legislative of the judicial field, which our constitution expressly reserved to the courts, strike at the very foundation of our judicial system as if an earthquake has struck..."

(The writer is a senior journalist with the Ceylon Today, a daily based in Colombo, where this piece was originally appeared)

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