"I am less than a magistrate"

President Mahinda Rajapaksa's rather petulant cry this week that 'I am less than a Magistrate' is important for the implications that it carries for the judicial service. Apart from (unconsciously perhaps) belittling the crucial role that magistrates play in the legal system, this lament is underscored by the sense of grievance that the political executive is clearly labouring under in the wake of the recent 'Public Trust' decisions of the Supreme Court.

Two issues emerge from this lament; first, that even though 'we respect these judgments' many of the judgments place the executive in a difficult position. The second issue is that 'unlike judges who do not have to go before the people, politicians are obliged to do so every six years. The people will defeat us if we do not deliver the goods.'

Tussle between the judiciary and the political executive

This tussle between the political executive and the judiciary is no strange phenomenon to the Sri Lankan political and legal system. This column has, in the past, steadfastly called for an end to the political undermining of the judiciary. At times, this undermining has been actively compelled by internal dramatics in the Court itself, which may be better examined comprehensively at a point later on in this unfolding scenario of events. At a point after all, it must not be forgotten that two impeachment motions were filed against the current Chief Justice, both of which were rendered nugatory by immediate preventive action taken by the then President Chandrika Kumaratunga.

The fate that thereafter befell Kumaratunga in later years may appropriately if a tad unkindly, be described as classic poetic justice. Indeed Kumaratunga's fevered reactions to critical judgments delivered by the Court before the appointment of the current Chief Justice in 1999 exhibited a similar kind of defensiveness now shown by President Mahinda Rajapaksa. Particularly disparaged by Kumaratunga was Justice MDH Fernando who had handed down several decisions that expanded the frontiers of jurisprudence and rapped Kumaratunga's government over the knuckles on a number of occasions. As should be recalled, Justice Fernando was then overlooked in the appointment of the Chief Justice in 1999 even though he was the senior most Justice on the Court.

Politicians' disparagement of the judiciary

At one time, then Sports Minister S.B. Dissanayake's assertion was that a pending constitutional reforms package will be pushed through, even if it means closing down Parliament and the courts and "if any judges are in disagreement with this, they can go home." His colleague in charge of Plan Implementation and Parliamentary Affairs, now deceased Jeyaraj Fernandopulle, in the most august traditions of parliamentary privilege, also made full use of his immunity in the House to lash out at Supreme Court judges, whom he perceived as being (let us make no bones about it) anti-government.

Such assertions as well as the recent Presidential complaint are grounded in an all too familiar defensiveness. Implicit in both is the reasoning that an independent judiciary is necessarily a hostile judiciary with peculiarly sinister designs on an existing Government. Hence the question posed by Minister Fernandopulle at that time and by President Rajapkse now "Do we stone the houses of judges when the government loses cases?"

Past sins should not be repeated

In the final analysis, what is important is the obvious. Politicians who make these remarks need to be specifically reminded that it is not only through the stoning of judges' houses that intimidation of the judiciary can ensue. On the contrary, it is by rash and ill-judged statements like these that as great or even greater harm can be done. And if the past is being referred to, why be so selective? Why not go back even more and dwell on what happened in the early 1970's when the initial institutional humiliation of judges was first evidenced to the extent that they were, at one time, even deprived of the traditional trappings of their office, such as their robes and wigs? This would then indicate to these politicians that comparisons with the past, in any sense, is worthless besides again pointing out the obvious, that the people do not put governments in power to keep on priding themselves that the sins of the past are not repeated to quite that same degree. Regrettably but not surprisingly, it is at this level of the painfully obvious, that dialogues with our politicians continue to rest.

The lessons that Sri Lanka has learned in past turbulent decades should at least stand us in good stead hereafter. While the role of the judiciary in not overstepping into the realm of the executive and the legislature must be respected, it must also be understood that the political executive cannot abuse his or her position and expect judges to stay silent while this happens. That being said, absolute rectitude and integrity is expected from the judiciary; judges surely must not deliver judgments compelled by any other motive than the dictates of his or her judicial conscience. With that rider, the law needs to be creatively interpreted in favour of social justice . Justice must, after all, as famously declared by India's Krissna Iyer, to be 'the foremost human right and the first constitutional promise.'

Need for considered judicial activism

In India where judicial activism of this nature has been most pronounced, this has not resulted in the breakdown of that legal system contrary to the predictions of the pessimists. Nor has the reform rendered it impossible for government to function, though exuberance in this direction has now caused the Indian Bench and the Bar to re-examine just how far should the revolution proceed. But the emphasis on social justice remains and the Indian legal system continues to be all the more vibrant for it.

Perhaps these are appropriate reminders when the appointment to the next Chief Justice of Sri Lanka becomes a question for discussion around next year, hopefully at a time when the Constitutional Council is back in existence.