By Attorney-at-Law Lal Wijenayaka
The much respected and universally accepted concepts of ‘Rule of Law’ and ‘Independence of the Judiciary’ are again at the forefront of the political dialogue in our country.
Article 12(1) and 12(2) of the Constitution declares ‘Rule of Law’ as a fundamental right by enacting that ‘all persons are equal before the law and are entitled to equal protection of the law’ and that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds.’ What it means is that law shall apply equally to all citizens and all citizens will be subject to the due process of the law. One cannot envisage Rule of Law without an Independent Judiciary. Independence of the Judiciary is constitutionally protected by the provisions set out in Articles 107 to 117 of the Constitution.
It is not an overstatement to state that a government by the will of the people, upholding of the fundamental rights as enunciated in the Universal Declaration of Human Rights and the Rule of Law are the three pillars on which a Modern Democratic state rests. The Rule of Law requires a judiciary that is independent such that their conscience should accompany their judgment. The judiciary has to adjudicate between man and man and between man and the state in the manifold disputes that arise between them. The Independence of the Judiciary is to hold the scales evenly in adjudication between man and man and man and the state. The Independence of the Judiciary in judging between man and man is not difficult to ensure, as the independence of the judges in judging between man and the state. Importantly the struggle for independence of the judiciary has been the struggle to ensure Independence of the Judiciary in judging between man and the state. What in fact it means in modern governance is that the judiciary should be independent from the executive and the legislature in the performance of its constitutional function in the administration of justice.
It is not in dispute that Sri Lanka has enjoyed the Rule of Law and the Independence of the Judiciary at least from the advent of the Donoughmore Constitution in 1931 till the introduction of the Executive Presidential System of Government in 1977. The threat to the Rule of Law and the Independence of the Judiciary under the Executive Presidential System with a powerful President was one of the main reasons that prompted all political parties to agree to the introduction of the 17th amendment to the Constitution. The repeal of the 17th amendment by introducing the 18th amendment to the Constitution has vested unprecedented powers unknown in any Presidential System that even nominally proclaims to be democratic.
It has to be accepted that the perception of the masses is that the ‘Rule of Law’ and the ‘Independence of the Judiciary’ has faced painful blows and that we are faced with the question can the Rule of Law and Independence of the Judiciary survive in the face of these blows.
After the 18th Amendment and the unprecedented move by the President in bringing the Attorney General’s Department under the Ministry of Defence which is under him, events has moved fast which has caused deep concern among those committed to upholding the due administration of justice. The withdrawal of a murder charge against a political activist of the Government party while the trial was on, the withdrawal of the indictment against a minister charged with misappropriation, the withdrawal of rape charges against an MP on flimsy and legally unacceptable grounds, the behaviour of a minister in tying a public servant to a tree in the view of the Police and TV Cameras and the failure of the authorities to take action, the way Bharatha Lakshman Premachandra’s murder investigation was handled, the Malaka affair, the numerous criminal acts of politicians which has been either ignored or condoned and many other incidents culminating in the attack on the Magistrates’ Court of Mannar and intimidation and threats on the Magistrate in performing his judicial functions, are of deep concern for all those committed to a ‘Rule of Law’ and ‘Independence of the Judiciary’.
In the face of these events the statements issued by the Judicial Service Commission through its’ Secretary and the verbal attacks that followed on the Chief Justice and the Other Judges of the Supreme Court in the state media through well-known spokesmen for the Government when the judgment on the reference to the Supreme Court regarding the Divineguma Bill was due has brought the issue of ‘Rule of Law’ and ‘independence of the Judiciary’ to the centre stage of the political discourse.
It is the first time in the legal history that the JSC and/or judges had to go public on the interference of the executive in the performance of the constitutional functions vested in the JSC. We should salute the JSC for its boldness in not submitting to the pressures of the executive and for the boldness displayed in issuing a public statement. It is the people who are sovereign under our constitution and they have to be aware of any pressure that is brought about to prevent the due functioning of the Constitution.
The Bar Association of Sri Lanka as well as ‘Lawyers for Democracy’ which is an organization of Lawyers has come out in support of the JSC in its struggle to protect its independence.
Lawyers in different parts of the country have come out in support of the JSC, which in fact means for protection of the ‘Rule of Law’ and ‘Independence of the Judicial’.
As civil society becomes aware of the gravity of the situation there is bound to be more forceful demonstrations of its opposition to the moves to subvert the Rule of Law and the Independence of the Judiciary.