Columns

As one of New Delhi’s renowned constitutional lawyers commented acerbically if not ominously to me, ‘the matter will not end with this…it is a festering sore on the face of our Supreme Court which needs swift surgical treatment, not political tinkering.’

A ‘stunning’ judicial mutiny
This remark was made in the course of a casual discussion in that city this week where the annual soaring temperatures appear to match the soaring passions of its legal community, excited over the recent decision of India’s Vice President to dismiss an impeachment motion brought against the Chief Justice for abuse of public office.

Indeed, the tone of that impeachment had uncanny echoes of the failed impeachment motions brought against ex-Chief Justice Sarath Silva during the time of the Kumaratunga Presidency. In both instances, the allegations related to the distribution of sensitive cases, charges that rulings by the Chief Justice had been unfairly supportive of the government and questions raised as to judicial conduct.

One significant difference however was that, in the ongoing controversy over the Chief Justice of India, the country was shaken at its root when four senior judges of the Supreme Court staged a ‘stunning mutiny’ as one colourful headline had it (The Economic Times, January 12, 2018) when they held an extraordinary joint press conference pointing out that they had no choice but to go public in the interests of the health of the judicial institution.

‘Regime change’ for its own sake
In the case of Sri Lanka, it would have been difficult if not impossible to even contemplate a situation where fellow Justices of the Supreme Court, at the time of the impeachment of ex-Chief Justice Sarath Silva or for that matter, the impeachment of ex-Chief Justice Shirani Bandaranayake, would have braved the political odds to publicly declare their concerns with the impact that these developments were bound to have on the judicial institution.

In a sense, this is what distinguishes Sri Lanka from India, both in terms of the judicial system and the legal profession. In contrast to India’s top lawyers who spoke out forcefully in regard to the travails of the Court, the complicit silence or the open collaboration that Sri Lankan lawyers exemplified in the face of the turbulence that gripped the Court during 1999-2009 was striking. Where the impeachment of ex-Chief Justice Bandaranayake was concerned, as became evidenced later, the political utilizing of that impeachment to bring ‘regime change’ without actual institutional reforms in the judicial institution is now clear.

In contrast, the rebelling Indian judges who warned that the mismanagement of the apex court could ‘destroy Indian democracy’ included Justice J Chelameswar, the second senior judge after the Chief Justice of India. In a letter written to Chief Justice Dipak Misra which they said, went unheeded, the dissenting judges referred to their ‘great anguish and concern’ in regard to ‘certain judicial orders passed by this court which has adversely affected the overall functioning of the justice delivering system and the independence of the high courts besides impacting the administrative functioning of the office of the Chief Justice of India.’

As that letter stated further; ‘There have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the chief justices of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment.’ Cautioning that this selective bench distribution ‘must be guarded against at all cost’, the judges said that if this continued, Indian democracy itself could be imperiled.

The importance of critique of judges
Again raising an unmistakable sense of déjà vu with events in Sri Lanka surrounding the impeachments of ex-Chief Justice Silva under the Kumaratunga Presidency which were foiled by political action, the call for impeachment of Indian Chief Justice Misra has been circumvented by the Modi Government on the basis that this as a “revenge petition” resulting in a favourable ruling to the Government, handed down by the Supreme Court in another case.

These developments are interesting in the midst of renewed debates on the nature of Sri Lanka’s judiciary and the legal profession. Undoubtedly it must be recognized by judges and lawyers that public criticism of the judiciary is part of the fundamental right of expression, excepting of course vicious personal attacks on judicial officers that are carried in some online media. Employing the law of contempt to stifle criticism can only be a short-term measure inclined to aggravate public resentment in general.

And for those who are inclined to think otherwise, I can only point to the sterling warning issued by Lord Denning (R. Vs. Commr. of Police, 1968, 2 QB 150) where, observing that the judiciary will never use contempt to ‘uphold our own dignity’, he pointed out that this ‘must rest on surer foundations.’ As he rightly said, that power will not be used to ‘suppress those who speak against us’, adding ‘we do not fear criticism, nor do we resent it.’

Restoration of ‘judicial integrity’ is paramount
In Sri Lanka, judges struggled from the seventies thereafter, to protect their integrity in the face of devastating attacks from politicians intent on shaping the new Republic to their expedient will and saw the independence of the judiciary as an acute danger to their authority. Even so, those perils paled into insignificance compared to the devilish internal subversion of the judicial institution with political controversy swirling around the Office of the Chief Justice during the Kumaratunga Presidency.

From that point, it was a steep slide downwards, notwithstanding the convenient illusion fostered by lawyers’ groups and the then leadership of the Bar allied to the Sirisena-Wickremesinghe alliance in 2015, that ‘the independence of the judiciary’ was restored by a change in political regime. The profound paradox of this argument rested in the fact that actions greatly offending the Rule of Law such as the removal of a sitting Chief Justice through a Presidential letter on the basis of an executive decision that the appointment was not legally valid, was offered as validation thereof. The falsity in this approach is well seen three years later. The only factor that has been removed from the political equation (an important one, it must be conceded) is that the President no longer summons the Chief Justice to his residence to order the outcome of a particular case and some piffling local politician does not call a District Judge to rule in a particular way. But that by itself is insufficient to argue that the integrity of Sri Lanka’s judicial institution has been restored.

That distinction must be made very clear.