By Nagananda Kodituwakku and Basil Fernando
It was heartening to hear from the incumbent Chief Justice, Priyasath Dep, that Sri Lanka’s judiciary is free from any interference. This statement comes as a relief, given that we can recall a long period of the most despicable forms of the interference with the judiciary in Sri Lanka and how, unfortunately, even the Supreme Court learned to adjust to such interference. It all started with JR Jayawardene, the first Executive President, who believed that being the Executive President meant having the judiciary under his thumb. The whole constitutional design was changed to achieve this purpose. Unfortunately, this constitutional design still remains intact. Other Executive Presidents followed President Jayawardene’s example since then.
The worst betrayal of the very notion of the independence of the judiciary happened when a Chief Justice – Sarath Nanda Silva as Chief Justice – sacrificed the very notion of an independent judiciary and became a servant of the Executive Presidential system. The then government made the path clear for him by leapfrogging him from the office of President of the Court of Appeal to the office of the Chief Justice.
In a most sophisticated way, he sacrificed the independence of the judiciary by severing the procedural law from the substantive law, thereby making procedural law a plaything in the hands of the Executive President. This, accompanied by the most dramatic forms of bullying of the lawyers, and also some litigants, created a very abnormal judicial system in Sri Lanka. The most glaring examples of this bullying were the two cases relating to contempt of court, which brought Sri Lanka into international disrepute. The cases were those relating to Michael Emmanuel Fernando (known to the public as Tony Fernando) and SB Dissanayake, who was then a minister in Chandrika Bandaranayke’s cabinet. The United Nations Human Rights Committee, in their Opinions, condemned both these judgements of the Supreme Court, declaring them to be violations of the human rights of the two persons concerned and recommending to the Sri Lankan government that they should make contempt of court laws in keeping with international norms and standards.
The trend of interference took an even uglier form during the regimes of Mahinda Rajapaksha. The culmination of this was the creation of a Chief Justice with the name Mohan Peiris, who even went before the newly elected government of Maithripala Sirisena to declare that he was willing to do anything that the Executive wanted him to. Such is the sad tale of the interferences with the independence of the judiciary in Sri Lanka. What Mohan Peiris was saying to the new government was that he was willing to do what he did for Mahinda Rajapakshe’s regime. It is a credit to the new government that they not only rejected the offer, but that both President and Prime Minister themselves stated publically the offer being made by Mohan Peiris. Under these circumstances, it is further heartening to hear from the incumbent Chief Justice that there is no longer any such interference with the judiciary.
However, the issue that needs to be considered is that such long years of terrible interference do not fail to leave traces within the system. What is required of any people concerned about what is at risk when the judiciary is interfered with is to do their utmost to reflect, in the most honest fashion possible, as to whether everything of such a dark period has been erased and gotten rid of so quickly.
In this, it is essential to consider what interference with the judiciary means in a comprehensive sense. Interference does not merely mean not receiving telephone calls and other forms of direct instructions on how judges should decide cases. The real test is as to whether the system of law and the administration of justice have gotten back to the point where it can be honestly claimed that the system functions well and that every element of the system has gotten rid of the corruption that it had been exposed to. Such victories should not be lightly claimed for all aspects of individual freedoms and the whole life of the nation depends on such things, like the way blood runs through the human body. The most essential element to consider is whether the competence of the judiciary that has suffered past interference has been restored fully.
In scrutinizing this aspect, it is essential to consider the fact that one of the most prominent ways of interfering with the judiciary was to make political choices about judicial appointments. For a litigant that goes before the courts, and for the lawyers who represent them, their faith in the system will very much depend on their belief that the judiciary has overcome the problems of the unprincipled way in which some judges were appointed in the not-so-distant past and that the practice has been brought to an end. This task of scrutinizing the system is not only a task for the Executive, but also for the Judiciary itself, and also the legal profession and the public at large. They should all be able to say that a damned and dark period is over, and that we are in a period where new light is shining. The real question is as to whether such a claim can be made honestly.
Does the legal process in Sri Lanka function sufficiently well that we could claim today that the due process of law can be assured within our system? If one is to go by the large numbers of litigants, who are the ultimate judges on this issue, we cannot yet claim such a situation has dawned.
There is an even clearer test. Can it be said that the administrative and political systems of Sri Lanka have gotten rid of corruption as a major issue? Of course, given the level of corruption that prevails throughout society, no one can claim that we have arrived at that point. The test of the independence of the judiciary is the test of the efficiency of the legal system to control corruption, abuse of power and the interferences into the freedoms of the individual.
The real test that the system is beyond the interference of anybody is, ultimately, whether the administration of justice is functioning well. In a practical sense, the test is as to whether the country’s corruption-control body (CIABOC) is adequately competent and efficient to investigate allegations of corruption and prosecute the cases successfully. If the CIABOC is at fault, the country’s judiciary shall take it to task.
The recent report furnished to the UN High Commissioner for Human Rightsby the activist-lawyer, Nagananda Kodituwakku, who fights government corruption in all three organs of the government suggests that there is a long way to go to.
