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No white knights riding to battle
View(s):To affirm that the independence of the judiciary is secured by individuals is just plain ludicrous. The integrity of an institution depends on processes and procedures that are hallowed by convention as well as by law. They are held sacred to the extent that an individual, even at the highest level of that institution, should not be able to subvert the same in fear of the awful consequences that follow.
A reversal of fortunes
This week, Sri Lanka saw the horrendous consequences that ensue when subversion of the judicial institution takes place through and under the Constitution, by the executive, the legislature and indeed, by the judiciary itself. Under orders of the Rajapaksa Presidency, a Rajapaksa majority dominated Parliament passed a flawed motion impeaching Chief Justice 43 Shirani Bandaranayake in January 2013. The army took charge of entry points into the superior courts complex peering into lawyers’ vehicles perchance to see if Chief Justice 43 was hiding under the seat. It was a heart-stopping day. Many pondered if she would refuse to leave her office and consequently if Sri Lanka would have two individuals occupying the Chamber of the Chief Justice. In practical terms, this did not transpire.
This Wednesday, this scenario came to play in all its manifest absurdity as the Office of the President and the Cabinet declared that Chief Justice 43 was the ‘legal’ Chief Justice and she resumed her seat even as (de facto) Chief Justice 44 Mohan Peiris refused to quit. Prudently enough however, he was not physically present in the court premises at the time. As this remarkable reversal of fortunes occurred, Chief Justice 44 was declared ‘as if he had never been’, a decision welcomed by the Bar Association of Sri Lanka.
The Sirisena Cabinet’s argument was that the January 2013 vote was gravely flawed as the Order Paper for that day contained not the resolution to impeach but the initial motion to appoint a parliamentary select committee to probe the charges. This motion had already been considered by the House in November and consequential action taken. Indeed, this valid objection was raised by opposition members at that time but true to form, it was dismissed by the Speaker. No better example sufficed of the callous disregard shown by the Rajapaksa administration for due process of law.
Redressing an injustice
This week’s events therefore redressed that palpable injustice. Nonetheless, some would say that the approach followed by the Sirisena Cabinet amounts to a convenient short cut in eliminating a serious obstacle posed by the refusal of the (de facto) Chief Justice 44 to resign. Hampered by the voluntarily imposed time limit of showing progress within 100 days, resorting to an impeachment process with due amendment of relevant Standing Orders to ensure that justice is done (unlike in 2013) was not seriously contemplated by this Government at any point. As the skeptics would maintain, none of that augurs well for ‘yahapalanaya.’
At another level, a colleague declared exuberantly that, ‘an unconstitutional act was rectified, perhaps not ideally but should we be constitutional purists at this juncture?’ Yet Sri Lankans who look askance at these bizarre happenings may be reminded of certain home truths. President Maithripala Sirisena, who this week declared Shirani Bandaranayake as the ‘legal Chief Justice’, formed part of the House’s Rajapaksa majority which pressed ahead with the impeachment in 2013 despite the flawed process and in the teeth of contrary judicial opinions. President Sirisena may say now that he had little choice but to go along and he may well be right. But this too needs to be recorded.
Even more disturbingly, a vociferous instigator in that distasteful impeachment was Health Minister Rajtha Senaratna, a most prominent member of the Sirisena Cabinet. We may hope that with wiser reflection, the grievous damage done to the judiciary by these ugly happenings may be publicly regretted.
Sober reflection needed
But none of the main players in this drama are untainted. Chief Justice 43, Shirani Bandaranayake herself presided over the Bench that gave the nod of approval to the much maligned 18th Amendment to the Constitution. Judicial partiality to the Rajapaksa Presidency was clearly evidenced up to the very point when the two acrimoniously parted company. This was a continuation of unsettling political controversy swirling around the Court from 1999 onwards with the appointment of ex-Chief Justice Sarath Silva by the Kumaratunga Presidency. Successive Chef Justices never corrected this disastrous trend.
So let us be quite clear. There are no white knights riding to battle on behalf of institutional independence in Sri Lanka. And there is certainly no guarantee that with the departure of one Chief Justice and the re-entry of another (and yet another), the independence of the Sri Lankan judicial institution is secured. The best that we may expect at this stage is that the Court may reflect on the utterly deplorable state of the judicial institution and perform hereafter in its constitutional role with stern intent.
Powerful public vigilance is imperative
Consequently, excessive euphoria amidst heady calls regarding restoration of the independence of the Sri Lankan judiciary needs to be restrained. Rather, the events of the past two years should spur critical evaluation of the manner in which a once proud judicial institution was reduced to a veritable shadow of itself. Judges must lead this reflective process, assuredly not in the glare of television cameras but quietly and steadily. Above all else, there needs to be powerful public vigilance and the demanding of rigorous standards in judicial decision-making. The law is assuredly too important a matter to be left purely to judges and lawyers.
In the ultimate result, we need to wait and see if this country’s judicial institution has the resilience, the strength and most importantly, the capacity to recover from these terrible ravages. On its own part, the onus lies with this Government to show that it does not wish for a ‘tame’ Court t function.
Time will judge whether these expectations will be fulfilled. For the moment however, we can certainly dare to hope.