Columns

If the issue was not so serious, the more mischievous-minded among us would surely chuckle at the decidedly awkward predicament that the Government has got itself into, on the cusp of a general election no less. Ambitious proclamations that the independence of the Sri Lankan judiciary has been fully secured, coming hot on the heels of the executive designating a Chief Justice ‘as if he had never been,’ are now being exposed as simplistic if not dangerously naïve.

Recognizing the complexity of the issue
Indeed, the impression created that all ills besetting the judiciary have been resolved in one fell swoop by that single executive order has catapulted the new Government into the worst ‘yahapalanaya’ contradiction possible of its own misplaced rhetoric.

In the first instance, a more measured approach should have marked the fact that challenges to the integrity of Sri Lanka’s higher judiciary did not stem from one individual alone, regardless of the multifarious allegations against him, be it ex-Chief Justice Sarath Silva under the Kumaratunga Presidency or ‘purported’ Chief Justice Mohan Peiris under the Rajapaksa Presidency.

On the contrary, the convulsions gripping Sri Lanka’s judiciary in recent decades are reflective of a far graver systemic problem concerning judicial accountability and the lack of critical scrutiny thereof. If a more nuanced debate on these issues had been encouraged post-election, public interest may then have rigorously focused on the judicial institution. Yet the converse was the case.

Surfacing of cracks in earlier boasts
Symptomatic of this misleading impression was a blithe if not infuriatingly casual remark made to me shortly after the dismissal of the ‘Rajapaksa Chief Justice’ by a highly skilled engineer who prides himself on being fully apprised of political events that, ‘well, now everything is corrected in regard to the judiciary, right?’

So the wider issue was lost in the impression promoted by the Government that declaring the appointment of a Chief Justice ‘null and void’ by presidential decree was effectively a magic wand restoring judicial independence. The culpability of the Bar Association of Sri Lanka in lending its voice to this worrisome precedent set for future heads of Government (executive President or Prime Minister as the case may be), was undoubtedly unfortunate.

Predictably therefore, the cracks in this shortsighted manufacturing of public opinion did not take long to surface. Witness therefore President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe pulling in different directions while responding to this week’s interim relief granted to the former Defence Secretary Gotabhaya Rajapaksa. The order by a two member Bench of the Supreme Court, (the third judicial member recusing himself) effectively shielded the former Defence Secretary from arrest, fixing the next date of hearing four months down the line.

Inadequately reflecting realities
The President, in his generally unflappable manner, observed this week that political interference has been removed from the judiciary, pointing to this instance and others as evidence thereof. To be fair, this credit must certainly be accorded to the new political dispensation. Such judicial orders would have been impossible under the iron hand of the Rajapaksa Presidency distinguished by its arrogant refusal to accept even a remote challenge to its authority. So when the former Defence Secretary lavishly thanks the Court for the relief granted to him, the irony thereof is profound. Make no mistake about that.

But this generalized Presidential assertion, as pleasing as it may be, inadequately reflects far more complex realities at play. Contrast therefore, the Prime Minister’s perturbation that he and the Cabinet have been effectively prevented from answering the matters in the former Defence Secretary’s fundamental rights petition until October this year where (probably) a new political dispensation will be in force. Indeed, the larger impact of the matter concerns the very legality of the new criminal investigations unit established by the Government which has been impugned in the petition. Undoubtedly this gives rise to grave questions regarding the legitimacy of the investigations in general.

Provoking other potentially inflammatory debates
Meanwhile the Prime Minister’s further claim (reportedly) that, in the wake of the order, there was nothing left to be done but to seek the advice of the Commonwealth, lawyers and ‘other relevant people of the Commonwealth’ provokes another potentially inflammatory debate of ‘foreign’ vs ‘local.’
In any event, these claims raise more questions than answers. Who are these ‘other relevant people’? Do seeking opinions from lawyers and the Bar in regard to such judicial orders constitute a healthy practice? This brings back recent memories best forgotten when demonstrators demanded that ‘a Rajapaksa Chief Justice’ be summarily dismissed, the Bar proffered an eager opinion saying that this was perfectly proper and all gratefully salaamed when these demands were met.

Contrast this, hypothetically, with the constitutional alternative of a prompt impeachment but with due process safeguards as per the admirably reasoned judgment of Supreme Court Justice Gamini Amaratunga referencing the ugly dismissal of former Chief Justice Shirani Bandaranayake. This option would have been firmly in consonance with the Rule of Law. It would have stamped the relevant judicial improprieties as part of the public record rather than remaining as mere allegations. It would have also held out definitive warning signals to other judicial officers inclined to err. But that was not to be.

No ‘quick-fix’ solutions to the problem
In the instant dispute as well, defined legal procedures apply whether this concerns challenging the propriety of a two member Bench awarding interim relief or the fact that the relief was awarded effective till October without the respondents being heard. So this flippant jump to invoking the Commonwealth on the part of the Prime Minister is somewhat baffling. Again, the resultant controversy promises to take the focus away from the actual issue in hand.

Even at this late stage, the treacherous path of ‘quick-fix’ solutions in rectifying the independence of the country’s judicial institution must be eschewed. It is high time that the ‘yahapalanaya’ Government recognizes this fact even as strongmen of the Rajapaksa regime rush to court successfully pleading judicial intervention.

And the need for serious public debates on judicial accountability as well as judicial independence remains stronger than ever.