Institution of the judiciary and the government

By Kishali Pinto Jayawardena

In an era where repeated interventions of the judiciary into matters of policy have become common in Sri Lanka, it is safe to reiterate some hard truths. First, the traditional (and convenient) view that judges simply go where the law directs them has now long been discredited. From the eighties onwards, we had Sri Lanka's Supreme Court intervening in an extremely forceful manner into questions of rights and using the law creatively for that purpose. These decisions are generally known and it is not proposed to encapsulate their substance at this point.

Suffice to say that in response to such spirited interventions, judges were personally attacked on the floor of the House by parliamentarians taking refuge under the cloak of privilege. Then President Chandrika Kumaratunga engaged in often intemperate criticism of judges, in turn using her cover of presidential privilege.

Her Ministers were also quick to follow suit, including those whom one would have expected to have been a tad different to the run of the common parliamentarian. For example, then Minister of Justice Dr G.L. Peiris speaking in Parliament at the Committee stage of discussions of the votes of his Ministry stated on record that "It is very important for the Court to confine itself to the proper sphere and not to overreach itself and not to arrogate to itself the functions that belong to the Executive and the Legislature." Such language, (though unobjectionable perhaps in theory), however justified even more problematic inroads made by the Kumaratunge Presidency upon the independence of the judiciary from the late 1990's onwards, which have been the subject of exhaustive discussion both domestically and overseas.

Though not to the extent as is now manifested in Pakistan where President Musharraf has subordinated the Constitution for his own advantage and substituted tame judges in place of their courageous colleagues, Sri Lanka's politicians have also been remarkably duplicitous in their affirmations that they would respect the independence of judges. Judges who move against the executive in terms of the law and the Constitution have been sidelined.

But let us revert to this issue somewhat later. At this point, the question as to what is meant indeed, by the caution that the judiciary should not trespass upon the preserves of the executive and the legislature deserves some attention. Where something is patently wrong with the way that the executive and the legislature functions, does this mean that the judiciary must look away? In conversations with one of India's preeminent jurists some years back, I recall Upendra Baxi turning testy when the question as to whether the Indian Supreme Court was being 'too activist" came up? His response was immediate; 'what is meant by being too activist?' he asked "Is not the Supreme Court ultimately determining rights of persons? Where should these persons go if their ultimate recourse, namely the courts, also refuse to grant them relief?"

Baxi, of course, has long been arguing that law and jurisprudence should move away from "bottomline" questions as to whether courts are political institutions or not, whether courts make law or not and address more fundamental issues; how can the judiciary maximise its role in the constitutional hierarchy and which functions does it reform best (see U Baxi, The Indian Supreme Court and Politics, 1980). Indeed, George H. Gadbois Jr, in an analysis of the Supreme Court of India as a Political Institution (Selection, Background, Characteristics and Voting Behaviour of Indian Supreme Court Judges, 1950-1959)", in Glendon Schubert and David J. Danielski, (eds) put the matter equally well when he remarked that it is too late in the day to cling to the old Blackstonian view of the judge as a value free technician or legal wizard whose only task is to find the law and declare it. If not anything else, "judicial behaviour" research in countries such as India and the United States indicate the extent to which decisions of judges reveal in their decision making, behaviour, political, social or economic philosophies and accordingly even if reluctantly, assume the role of political actors in their decisions, although it may amount to judicial heresy to actually admit the fact.

In theoretical principle therefore, judicial interventions in regard to matters that have gone wrong with the process of governance needs to be welcomed. As former judge of Sri Lanka's Supreme Court and author of several books on criminal justice, A.C. Alles warned pertinently in a guest column that he wrote for the Sunday Times many years back, "In deciding an issue between the citizen and the state, a judge may be compelled to deliver a decision which according to the President may be politically disadvantageous to the Government, but if the wheels of democracy have to function smoothly, it must be a decision that must be accepted without rancour by friend and foe alike."

It is in this context, that the complex interplay between the political structures and the judicial structures becomes so crucial for the good administration of a country. The contrary side of the coin is however that such a scenario vests an immense amount of power in the judiciary which is unaccounted for, given that judges themselves are not elected and are not answerable to the people. This, in turn, has two specific consequences.

First, if a judge uses such power to advance his or her own political or personal agendas, then this amounts to a type of oppression that can even surpass political oppression. This is why judges themselves have, through the ages, scrupulously avoided not only actual political bias but also the very appearance or possibility of bias. These are principles on which the entire edifice of the institution of the judiciary is built. Any departure from such hallowed ground will suffice to discredit the entire institution and not one or two judges alone.

Secondly, even if political bias is not manifested, judges are human beings and thus subject to sudden arbitrariness or contrariness resulting in injustice to individuals. Consequently, in developed jurisdictions, judges have engaged in the formulation of exhaustive codes of conduct and rules of contempt of court to guard against such arbitrary conduct from which there is no recourse as the court itself is the weapon causing the injustice. Courts in these jurisdictions are characterized by commendable judicial restraint towards litigant and lawyer alike. Departure from such rules of restraint has resulted in swift action against the errant judges, including at times, the Chief Justice of that particular country.

In many systems, the remedy of impeachment by Parliament has been adjudged to be too political; instead, alternative systems of disciplinary control have been put into place from which no judge is exempt. Measured against these standards, Sri Lanka has yet to bring about many changes to its process and laws, including the persistent need to enact a Contempt of Court Act.
As much as judges intervene positively in the affairs of governance, the corresponding duty that such interventions must be within an acknowledged framework of fairness and justice is no less important. This is the balance that we must keep in mind, if not for the present then at least for the future of this country.