Focus on Rights

Finding answers for our collective collapse
When Justice Michael Kirby commented in Hong Kong in 1998 that "a judge without independence is a charade wrapped in a farce inside an oppression", he was merely restating the commonest principle of the rule of law, albeit in predictably colourful language.

Justice Kirby, (at that time President of the International Commission of Jurists and formerly Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia and Justice of the High Court of Australia), was discussing basic principles and new challenges confronting the judiciary at a colloquium organised by the International Bar Association.

His crackling description of that most obscene of phenomena, a political judge who remains irrevocably tainted by his or her political partisanship, comes immediately to mind when reading through the interview given by a recently retired justice of Sri Lanka's Supreme Court, CV Wigneswaran to a Sunday newspaper in this country.

One of the very few truly bold persons to speak out in regard to issues that most in the legal and judicial arena remain quiet about, Justice Wigneswaran's comments are telling in their impact. They reflect the parlous state in Sri Lanka today, of a separate and independent judicial branch of governance, historically expected to rise above mundane politics and impartially apply disinterested legal rules to disputes that may arise between citizens themselves or the citizens and the State.

As this columnist has stated previously, the degeneration of that branch of governance has implications that go beyond the politicians who have been all collaborators in this degenerative process. The implications go beyond the equally few individuals who profess to head civil society in this country. They also go beyond those miserable souls who head the legal profession or indeed, those eminent legal personalities who have also participated in this most fundamental of all betrayals and with regard to whom, accountability ought to be particularly severe.

Instead, these implications strike at the very heart of the claim that Sri Lanka can profess to make as a basically civilised nation. Justice Wigneswaran's answer to the question, as to whether he agreed with President Chandrika Kumaratunga's recent observation that Sri Lanka's judicial system is the most corrupt in Asia, is therefore very illustrative. He points that, if that were indeed the case, then the most important remedial measure is that political manipulation of the judiciary must be stopped forthwith.

His warning is extraordinarily apt to the context of the question directed at him; " the judiciary must be left to be independent, it must become self sufficient with adequate resources to enable it to maintain its independence. The judiciary must not be filled at its higher echelons with executive-pliant officers who have had very close relationships with the executive and the legislature."

His assertions in regard to the original judiciary are also pertinent. When asked as to whether he thought that the judicial process in the country is becoming redundant because of a lack of independence, he observes that; "any attempt to cow down judges to suit the hierarchical perception of some members of the higher judiciary would affect the judicial process. Unless those who understand and empathise with the judges of the original courts, run the administration of the original courts, the judicial process will suffer tremendously.

We may have to think of a Judicial Service Commission hereafter consisting of retired senior original judges only with adequate financial resources and self-sufficiency to run the original courts. Unless recruitment of judges and the process of judicial administration undergo radical change, I see the judicial process becoming a question mark."

Minute analysis of the issues raised in this interview belongs to another forum due to lack of space. However, Justice Wigneswaran's observations summing up the intense politicisation of the system should be of grave concern to all those in this country who possess even a shred of conscience regarding the viable functioning of our institutions beyond our lifetimes.

The guideposts have changed therefore and changed radically and for all time. Our earlier notions of safeguarding the independence of the judiciary drew its inspiration essentially from the old notion of the judiciary vis a vis the government. Learning bitter lessons from the subjugation of the colonies to the King, James Madison, in drafting the amendments to the United States Constitution, which became the Bill of Rights of that country, emphasized that;

"Independent tribunals of justice will consider themselves in a peculiar manner the guardians of these rights; they will be an impenetrable bulwark against every assumption of power in the legislature or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights".

But what happens when subversion comes from within? And where indeed, do we find the answers for our collective collapse (like the proverbial pack of cards), as a result of the deeply problematic challenges that this subversive process continues to pose?

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