Focus on Rights

Returning Justice to sanity thus benefitting citizens

At times, we should blush for what we own is ours. This Friday is one such occasion when Colombo hosted the Conference of the Chief Justices in an atmosphere that was at best, uneasy and at worst, frankly at odds with the purportedly high aims of jurisprudential deliberations on what constitutes the integrity of the judiciary.

One does not have to travel very far to discover reasons for this parlous state of affairs. In the wider context are the remarks made by Prime Minister Ranil Wickremesinghe at the inauguration of the conference attended by the Chief Justices and jurists from countries across the world.

Speaking far more critically than is normally his wont, Premier Wickremesinghe declared that it was necessary to examine whether Sri Lanka's judiciary had performed its duty in enforcing the rights of citizens and whether there had been a lapse in doing so with regard to the Tamil population in the country.

In an even more unprecedented departure from the norm (as far as country representative addresses are concerned at international fora on the judiciary), Sri Lanka's negativity was compared with the performance of India's Supreme Court during the past fifty years of the establishment of the Indian Union. Questions as to the absence of the Supreme Court in the nation building process in Sri Lanka then became inevitable. Sadly, also inevitable was the assertion that if Sri Lanka had a third body that citizens could go to, then the crisis facing the country might not have happened.

These are all hard truths posed by Premier Wickremesinghe, which might well find vociferous dissentients among those of us in the judicial and legal systems who prefer, like the proverbial ostrich, to bury our heads in the sand and ignore unpalatable realities. A simplistic comparison of the judiciary in India and Sri Lanka should undoubtedly be tempered by the fact that Indian judges have substantive powers of judicial review and wider constitutional rights provisions than in Sri Lanka. But even so, there is no way that even the most rose spectacled optimist can affirm that the judiciary in Sri Lanka has done for its people what has been accomplished by judges in India, notwithstanding the dark periods that the Indian judiciary also had to undergo at times.

With very few exceptions, post independence history in this country is studded with instances where, faced with difficult choices on fundamental issues involving minority rights or indeed, standing up to the dictates of an authoritarian executive, the judiciary has faltered. Most outstanding early examples in this sense were in the fifties when attempts were made to challenge the Citizenship Acts on the basis that the legislation impacted in a highly negative manner on the voting rights of the Indian Tamil community, thereby infringing Section 29 of the Independence Constitution. The manner in which the Supreme Court preferred a literal interpretation of the impugned provisions disregarding the actual effect of the proposed laws is now compulsory reading for law students in this country.

In this same category belongs the classically problematic challenge (round about the same time) to the Official Languages Act making Sinhala the sole official language. In this case, the applicant was a Tamil public servant who had been notified through a government circular that a particular degree of proficiency in Sinhala was a necessary condition for promotion. Here too, the primary constitutional issue on the tussle between the Act and Section 29 of the Constitution was avoided by the Supreme Court. Instead, the Court set aside the order of the original court (holding with the plaintiff) on the basis that a public servant had no right to sue the Crown for payment of arrears of salary. The judgment relating to the-non availability of an action on the facts of the case was later reversed by the Privy Council.

These are only three outstanding examples of judicial timorousness in relatively early times of nation building. However, they are vested with peculiar importance given the different course that political events may well have taken if rights of minorities had been affirmed rather than bypassed. Of equal importance but in a different category perhaps is the Thirteenth Amendment decision in the eighties when the Court preferred to be politically correct in refusing to engage in a debate on the substantive merits and demerits of devolution while approving the amendments (by a majority) on the technical basis that they did not violate the unitary nature of the state.

While all this has to be said, it must also be noted that efforts by the judiciary in Sri Lanka to assert themselves (whether with regard to minority rights issues or questions of democratic governance), has, without exception, been met with a degree of ferocity by the executive and the legislature that has had its own ripple effect.

References to the continuing pattern of confrontational politics in this country by the Prime Minister on Friday therefore has its own very special relevance to the state that we now find ourselves in. We saw this in the seventies when attempts were made to politicise and intimidate judges. We saw this in the eighties when house of judges were stoned following the delivering of decisions perceived as being against the government at that time. And we saw this, most notably in the late nineties when the delivering of apolitical judgements on crucial rights issues were followed by public disparagement of judges by the executive and parliamentarians.

It is in this manner that we come to the narrower context of the Prime Minister's remarks on Friday which attracts a high measure of political culpability. The executive backlash against particular judgments delivered by the Supreme Court in the nineties was all the more sadder given the fact that these judgments marked a striving by this country's apex court to establish itself, in truth, as the rights arbiter for thousands of people who had no other avenue when their rights of life and liberty were being violated.

Obviously, among the most to benefit were the minorities. It was in these years that we saw the Court, in its boldest efforts ever, asserting the right to speedy trial of individuals taken in under the draconian national security laws and prevention of terrorism legislation. It was in this period that we saw decisions prohibiting interference by the executive and parliamentarians in the holding and conducting of elections and a consequent safeguarding of the right to vote. It was during th ese times that we saw, as one particularly illustrative example, the Court holding that the arrest and detention of a Tamil citizen for non possession of his registration form (even though he had his national identity card with him) constituted a violation of his fundamental right to equality.

Instead of a full flowering of this rights motivated jurisprudence, what we saw however was a highly contested appointment of the head of the apex court and an unending stream of allegations of political partisanship and worse against the holder of the office of Chief Justice which surpassed anything that Sri Lanka had seen pre or post independence. This culminated not only in an aborted impeachment motion against Chief Justice Sarath Nanda Silva but in the 2001 report of a committee of the International Bar Association which concluded that the perception of a lack of independence of the judiciary was in danger of becoming widespread with extremely harmful effects on the rule of law in the country.

Presently, we see the spectacle of minor judges filing rights cases in the Supreme Court against what they allege to be a mala fide attempt by the Chief Justice to prohibit the holding of their annual general meeting.

And it is in this context that Sri Lanka played host to the Conferences of the Chief Justices on Friday. No wonder is it then that the whole appears to belong more in the realm of one of Sartre's darker imaginings than in reality. So, if at the end of this whole process of introspection, one can only conclude that we should be subject to a higher tribunal beyond the shores of this country for justice to return to sanity, whose fault is it indeed but ours?

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