Judicial activism — Sri Lankan style

It is not a legal slogan to enhance the images of judges or lawyers. Instead, it is a right of all consumers of justice. And is indeed, a right, protective of all other human rights. 

Mr. Coomara-swamy went on to hold out a new standard for judges, traditionally isolated in their Olympian splendour from public debate and opinion. His thinking was that judges should not fold their arms and sit in their chambers, expecting others to do their bidding when issues regarding their independence are concerned. In this respect, he cited recent happenings in countries around the world where judges have come out openly in defence of the institution. 

Thus, in the South Asian sub-continent, both India and Pakistan have distinguished themselves in this regard by streamlining the manner of judicial appointments and the debate continues as to how appointment mechanisms could be further strengthened from interference by the executive. In Britain, amidst attacks on the judiciary by the executive over decisions on applications for judicial review, the House of Lords, at that time, discussed a motion on judicial independence and the relationship among the judiciary, the legislature and the executive, asserting the primary importance of the independence of the judiciary. Prominent English judges, both sitting and retired, participated in the five-hour debate. 

Australia similarly, has seen minor judges sitting on the Accident Compensation Tribunal suing the State government for compensation over loss of office when the government legislated them out of office by repealing the entire legislation creating the tribunal, arguing that when they accepted the appointment, they were assured of their security of tenure. 

In Canada, provincial judges have appeared as litigants in cases concerning security of tenure and independence of the judges of the lower courts.

All of this however, undoubtedly presupposes a higher judiciary that, both in appearance and reality, is independent from personal and political pressure in the best sense of the word. When the contrary happens, judges as well as litigants bringing 'unpopular' cases, can hope for no relief. And when a judiciary is tarnished, it is clichetic but true that the institution itself suffers irreparably, to the extent that is sometimes not apparent until viewed in retrospect. 

At this precise moment of writing, the visit to Sri Lanka by a three-member delegation of the International Bar Association to examine concerns relating to the Rule of Law and the Independence of the Judiciary, has been completed.

The last visit to this country by a team of international observers on similar concerns took place some four years ago when the Centre for the Independence of Judges and Lawyers (CIJL), a component of the International Commission of Jurists (ICJ) sent a Mission to Sri Lanka. Significantly, the Report of the Mission, while being critical of the excessive width of the country's security regime including open ended Emergency Regulations and the almost complete failure to bring to justice, perpetrators of human rights violations, as well as laws delays, praised the independence of Sri Lanka's judiciary. The manner in which its comments are worded are interestingly thus;

"There is a strong culture of judicial independence in Sri Lanka. The Supreme Court, in particular, is vigorously independent. While it took some time for it to get used to the exercise of the fundamental rights jurisdiction under the 1978 Constitution, it now exercises that jurisdiction freely and effectively." 

The ICJ mission visited Sri Lanka during the period when the PA was just beginning to swerve away from its commitment towards an impartial judiciary and an independent media, both of which incidentally, it took full advantage of when it came to power in 1994. The first changes were therefore apparent even at that time and were taken note of by the ICJ. 

The Mission accordingly expressed concern about the prevalent system of judicial appointments and were worried that President Kumaratunga had made a number of intemperate statements critical of the judiciary after particular judgments were delivered, such as the Sirisena Cooray case, where the Supreme Court had ruled that the former Opposition front ranker's rights had been violated by arbitrary arrest and detention. 

In the context of what has now taken place in Sri Lanka's judiciary since then, the concerns of the Mission in 1997, have a true bitter sweet taste to them. We await the report of the delegation of the International Bar Association and ponder on the words of then Malaysian Deputy Prime Minister Anwar Ibrahim, during a speech at the opening of the 42nd Conference of the Commonwealth Parliamentary Association in Kuala Lampur in August, 1996 when he reminded the delegates that;

"Many a time, the cry of humanity has moved the world and its institutions to attempt to right the many wrongs. Sometimes we have succeeded. Often however, our endeavours have fallen short. We have been weak in resolve, inadequate in effort, insufficient of resources, unwilling of service and sacrifice and too pre-occupied with our own narrow interest." 

SB, the hottest number in town

It's true the man-more popularly known as 'SB'- has fallen out of favour with his boss, the President, but it appears that makes him the hottest political property in town. So much so that it was made known that one reason for the collapse of the UNP- PA talks to form a government was because the UNP insisted on SB being in the cabinet while the PA insisted that he should not! This must surely give enormous satisfaction for a man who rose from being a backbencher in the opposition to becoming the general secretary of the SLFP in a mere dozen years. But then, SB was never a man to fight shy of controversy. 

His footnote in history will mention allegations of sexual harassment of female athletes, scandals in the Cricket Board and the fact that he was hauled up before the law for contempt for saying he would close Parliament and send judges home if he wanted to pass a new constitution-words of wisdom indeed which the ruling party must surely be wishing they could now put into action. 

A kind historian will perhaps mention that SB was the mastermind behind the 'Samurdhi' scheme; an unkind one will say that it was a cheap imitation of Ranasinghe Premadasa's 'Janasaviya' concept and evolved into a political army of the PA, paid for by the state. 

But that is for the people to decide and they probably will-if polls are held quickly enough. The question that remains however is an entirely different one: for the UNP, just a few months ago SB personified the cancer that they claimed was the PA- arrogant, reckless, immoral if not downright illegal, undemocratic and quintessentially what a politician should not be. Almost overnight, all that has changed. 

We would have expected the opposition to say that when the UNP comes into power, they would appoint a commission to probe the deeds and alleged misdeeds of SB, athletes, Cricket Board and all. But hey, presto, what do we hear? 

The PA government is sending its sleuths in hot pursuit at the Cricket Board and the UNP is saying that the man must be accommodated in any future government. 

And, he hasn't even crossed over like Ronnie de Mel frequently does! It sounds like a nightmare but just for a moment imagine SB, his diminutive frame swathed in green garlands, addressing UNP election meetings and explaining to the masses why he chose that party for the sake of the country and what a sacrifice he was making. And the masses would be cheering wildly! Of course, we cannot, and should not blame Sumanasekera Banda Dissanayake for all this. It is certainly not his fault. 

It is indeed his strength as a political animal to be able to metamorphose in keeping with the changing times. The fault lies with the electorate. 

And the fault is not tolerating the likes of SB either. 

The fault is in pinning hopes on an opposition which can be as promiscuous as a prostitute when choosing their political partners. Ah, no wonder they call us the (m)asses! 

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