From the time democracy began to take root as the government of the people, for the people and by the people, historically four ‘Estates of the Realm’ or pillars of democracy have been identified, tested and honoured by time. The four pillars are the executive, the legislature, the judiciary and the free media.
What has happened or is happening in what is still being projected as the Democratic Socialist Republic of Sri Lanka in terms of the 1978 Constitution. Since 1978 and especially after 2011 when the 17th Amendment was scrapped and the 18th Amendment enforced, the all-powerful Executive Presidency is not only immune from prosecution in court but also not accountable or answerable to the people.
In the second estate of Parliament we see a patched-up coalition of several parties which are apparently staying together largely for power, popularity, prestige, privileges and personal gain. There was no mandate from the people for the two-thirds majority which the Rajapaksa regime has put together in Parliament to pass anything and everything like the impeachment of Chief Justice Shirani Bandaranayake and the recent approval of two gazette notifications with subtle words to allow Australian tycoon James Packer to set up one of his biggest casinos here. As for the free media, the Daily Mirror spotlighted in its Editorial on World Press Freedom Day last Saturday that Sri Lanka is ranked as far down as no, 167 in a list of 197 countries and how 44 journalists had been killed since 2005 with not a single of the killers imprisoned because of the growing culture of impunity.
Today we wish to spotlight the plight of the judiciary, once widely respected as one of the most independent in Asia. Great personalities have emerged from the judiciary and among those in the past few decades have been Victor Tennakone, Neville Samarakone, S. Sharvananda and Mark Fernando while one of the world’s most respected jurists Justice C. G. Weeramantry was also a judge of the Supreme Court. The rot started in the 1990s when political appointments were made to the Supreme Court and to other courts. With the 17th Amendment, which was one of the few important bills unanimously approved by Parliament, hope was renewed with the appointment of the Independent Judicial Services Commission. This Commission was to make appointments on the recommendation of the all-party Constitutional Council. Though this process did not work as effectively as it should because of some political manoeuvring, it was still a safeguard. But after the enforcement of the 18th Amendment in 2011 the rot worsened gradually and today it has come to a crisis. To a large extent, VIPs in the ruling coalition are responsible for this crumbling of the last pillar of democracy though some in the judicial and legal professions have also contributed towards it.
During the past week there was a major row over an appointment to the Supreme Court. The Bar Association of Sri Lanka (BASL) has expressed grave concern over the failure to follow the criteria for the appointment of new judges to the Supreme Court. The BASL cited a 1996 Supreme Court judgment that such appointments must be made by the President on the recommendation of the Chief Justice, the Attorney General and the Minister of Justice. The BASL said such appointments should be made on objective criteria including seniority, eligibility and merit while career judges should have the opportunity to rise to the apex courts.
The BASL has expressed regret that in the recent past these salutary and time-honoured principles did not appear to have been uniformly followed.