Comparison of the apparent clash (though, hopefully not of arms) between the Chief Justice and the Government in Sri Lanka with the 2007 confrontation between Pakistan's Chief Justice Ifthekar Choudary and the dictatorship of former President Pervez Musharraf are as singularly inappropriate as they are odious.
In Pakistan, the first shot as it were, was fired by Musharraf when as chief of staff, he imposed a state of emergency, abrogated the Constitution, suspended all fundamental rights and issued directives including amendments to Pakistan's Army Act of 1952, under which any civilian could be court-martialed and military courts constituted as and when needed. A new Supreme Court was established, comprising of justices who had taken the oath of loyalty under his Provisional Constitutional Order (PCO). In this context, Chief Justice Ifthekar Choudary was assaulted to the extent that he was pulled by his hair by the police in the process of being taken before the Supreme Judicial Council.
His car was stripped of both the flag of Pakistan and the emblem of the office of Chief Justice. His entire domestic staff was replaced by members of the military intelligence and he was held incommunicado. Even his children were prevented from going to school. In the larger picture, some 3500 lawyers including office bearers of the Bar and former judges were arrested and some tortured in police custody. The court premises were bombed, particularly in Lahore which was targeted as a prominent site of the lawyers' struggle.
Pakistan's lawyers and the Sri Lankan legal community
Many of these lawyers with whom we had worked in the past on common issues of the Rule of Law in South Asia wrote of the inhumane treatment that they had been subjected to by Musharraf's henchmen. The situation was extreme and it demanded the kind of extreme reaction that Pakistan's legal community gave to its credit; quite unlike lawyers in Sri Lanka who have been, throughout the past turbulent ten years, more preoccupied with their positions and their pockets rather than safeguarding the independence of the Bench and the Bar. In a reflection that would be pertinent at this point of time, it needs only to be said that out of all those persons who have accepted appointments to the unconstitutionally constituted 'independent' commissions on the police, the public service and the National Human Rights Commissions, senior lawyers and retired judges predominate. This by itself will indicate the commitment that the purported 'leaders of the bar' profess to constitutional governance.
Extremism sparking a counter-reaction
But to return to Pakistan's situation, valuable insider perspective on the events that took place is contained in a revealing interview given by one of the foremost leaders of Pakistan's Bar in this turmoil, senior lawyer and former President of the Bar Munir Malik to the Hong Kong based Asian Human Rights Commission (AHRC), published in Protection and Participation, South Asia Legal Reforms and Human Rights, Vo. 5, No. 1, 2008, at page 29). Malik observed interestingly that Chief Justice Choudhary himself had a complicated relationship with the Bar and was indeed 'very unpopular in the opinion of the rank and file of the legal fraternity for the principal reason that he was very arrogant and the perception was that he dispenses justice in cases according to the face value of the counsel who appeared before him.' Malik's assessment was that it was not so much the 'populist' nature of the Chief Justice or his judgments but rather the very extremism of these measures that were taken collectively against the judiciary and the legal community which sparked off massive country wide protests ultimately leading to the downfall of the regime.
This same extremism indeed transformed the Chief Justice from a moderate critic of the government to a person who, as pointed out by Malik stood up to the military government and said 'No.' This was in contrast to his predecessors who had traditionally collaborated with the government despite being subjected to a certain measure of humiliation and disparagement in the past. The difference this time around was that Musharraf, in a stupendously counter productive knee jerk reaction to his perception that the judiciary will oppose him in pending electoral cases, crossed the line between humiliation and downright physical assault and torture of the Chief Justice.
The Sri Lankan 'crisis' and the judicial role
The situation in Sri Lanka is, of course, qualitatively different though a currently robust application of the law of contempt prevents this column from discussing some of the more intricate details in depth. Suffice to say that there are persuasive arguments put forward on both sides as to whether the intervention of the judiciary in matters such as the pricing of petrol comes within the proper realm of the judicial role. On the one hand, even if we are not to accept the old warning that judges should not legislate but should only interpret laws enacted by Parliament, there are those who argue that pricing formulas which need to be weighed in the scales of government monetary policy are firmly deposited in the sphere of executive competence. The Constitution provides for checks and balances between the executive, the legislature and the judiciary precisely for the purpose of ensuring that this delicate balance is not disturbed to the point that the very government itself becomes unruly.
On the other hand, there are also those who throw all caution to the winds and ask in desperation as to what checks could be imposed on a Presidency that grows more authoritarian and corrupt by each passing day? To these advocates, discussion on the extent of judicial discretion amount to largely technical arguments that need to give way to the overwhelming desire to curb the government in whatever way possible.
A fitting crescendo to past turbulent decades
A further problem is however that the disciplinary process relating to appellate courts judges in Sri Lanka is highly politicized by virtue of being placed within the Parliamentary arena. Rule of Law activists in Sri Lanka have been pressing for decades to replace this process with apolitical mechanisms of accountability to no avail however. Currently, Sri Lanka is therefore presented with a scenario which pits the government against the Chief Justice in a manner that promises to be interesting as well as incipiently incendiary. This is, after all, a fitting crescendo to the past turbulent ten years of the Chief Justice's reign and we can but await its outcome with considerable anticipation. |
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