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IN THEIR GILDED CAGES

6 May 2013 06:30 pm - 0     - {{hitsCtrl.values.hits}}

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I recall as though it happened the other day, little A. C. S. Hameed, the former ineffective Foreign Minister in J. R. Jayewardena’s Government and later Minister in charge of various ministries in R. Premadasa’s Government, putting on what I term his ‘wise look’, looking over his spectacles balanced on the tip of his nose, and saying with the utmost ‘gravity’  as though saying something profound, “The Opposition will have its ‘say’; but the Government will have its ‘way’ ” and the then leader of the House, Ranil Wickremaesinghe expressing wholesale agreement with such sentiment by echoing those words. Today, the roles are reversed and Wickremesinghe is the under siege leader of a purported ‘Opposition’ which has its ‘say’ or several ‘says’ but nothing more.

The fact that a Government will have its ‘way’ is not something new, but something that always existed after ‘Independence’  whenever the Government had, by purchase or otherwise, a majority of seats in the legislature.  When one considers the fact that members of the legislature, from the time of independence, almost always acted as ‘signal posts’ of the leaders of their  respective parties and voted in whatever manner  such leaders wanted, the truism “the Government will have its ‘way’ ” means in fact that the leadership of a political party will have its way.  This is an ugly phenomenon which has grown in magnitude since 1970 from around when sycophancy became a sine qua non for political advancement.  

Although it was always the case since ‘independence’ [except for a brief period in March 1960] that the Government will have its ‘way’, Governments, for many years had an element of decency which caused them to exercise the vast plethora of powers vested in them with some degree of decency and circumspection.  Thus, although the Government had the power to remove the Chief Justice or a Judge of a Superior Court if they didn’t like  him/her or something he/she had said or done, they took the words “during good behaviour” which were to be found in Article 52(2) of the Soulbury Constitution and Article 122(2) of the First Republican Constitution of 1972 and the words “for PROVED misbehaviour or incapacity” in Article 107(2) of the present Constitution, SERIOUSLY despite the fact that those Articles mean, in practice, that a Judge of the Superior Courts holds office ‘during the pleasure of the leadership of the political party in power’. They doubtless realised that such provisions together  with other  provisions of the Constitution which purported to assure security of tenure to  Judges were specifically designed and intended to  secure the ‘independence of the judiciary’ which is a ‘hallmark’ of a civilised country, and must not be so misused as to create a ‘stooge’  judiciary or one that is ‘subservient’ to the Government in power.  Not one ruling party until the present day ever exercised that power in such manner.  They behaved with some trace of a degree of responsibility realising that the purpose of giving to a judge security of tenure was to enable him/her to give judgments according to law regardless  of whether they  please or displease the Government.  They also realised the fact that though exercising their powers of removing or appointing judges for political reasons was something that was well within their reach, doing so would be disastrous to the country and, by and large, refrained from doing so.

That restraint was exercised in the matter of removal of judges by all Governments up to the present Government however, came to a halt with the purported impeachment of Chief Justice Shirani Bandaranayake.  Reams having been written on the subject I do not intend to repeat what has already been said.  The only point I wish to make is that the undeniable fact that intoxication with power is the most dangerous form of intoxication has, most regrettably, not been appreciated by either the Government any of those rabid prohibitionists or others who raise Cain against the consumption of alcohol.  

The purported impeachment of Chief Justice Shirani Bandaranayake proves beyond doubt the horrific extent of the intoxication of the present Government with the heady wine of ‘power’. What has happened to the present Government is that having earned the love, affection and respect of the People like no other Government before it by destroying once and for all (hopefully) the scourge of terrorism with which our country was afflicted, it went back to being a Government like any other and, lost sight of the welfare of the Country, thinking  only of the welfare of members of the Government, their party, and the fact that, as Hameed and Wickremesinghe once said “the Government will have its ‘way’ ”.

While other Governments including Governments under the leadership of the Sri Lanka Freedom Party honoured the spirit of the provisions of law, [the letter of  which gave to them, the power to dismiss a Judge of a Superior Court for any reason whether good, bad or indifferent], which behoved them to act with the greatest degree of responsibility and circumspection in exercising those powers, the incumbent Government, having got accustomed to having its way in everything with a wholly ineffective purported ‘Opposition’ acted on the basis that any action taken by any person including a Judge of a Superior Court which displeased it was an act of enmity and a derogation from that alleged ‘principle’ propounded by Hameed and Wickremesinghe, which could not be tolerated.  

That the impeachment of the Chief Justice Shirani Bandaranayake was designed to send to the judiciary a message that unless the judges ‘toe the line’ and do exactly as the Government wishes them to do, they will be out on the streets without a right to practice and be rendered totally destitute is abundantly clear.

It is worthwhile considering the plight of a Judge of a Superior Court.  He is no doubt paid a relatively handsome salary, afforded relatively handsome perquisites of office, including a luxury official vehicle which the country can ill afford, and alleged protection from removal from office or a reduction of salary or pension on political grounds by the several provisions  of the Constitution which are alleged to safeguard the independence of the judiciary.  However, in actual fact they, like any other public servant whether a Clerk, a Teacher, an Assistant Government Agent, a Police Constable or a Deputy Inspector General of Police may be removed from office if the Government is displeased with anything they have said or done.  They are, in practice, no different to any other public servant in that they too, in fact hold office at the pleasure of the Ruling Party. This is clearly the message the Government sought to give to the People and the Judiciary in particular by that contemptible purported ‘impeachment’.

There is however one difference between a Judge and a public servant in this regard.   A Judge of a Superior Court is one who has spent his working life or the better part of his working life in the law, and the Constitution itself prohibits him from engaging in private practice once he ceases to hold office (see Article 110 (3) of the Constitution).  They are thus deprived of the opportunity of earning a living if they are dismissed.  In theory, no doubt, it would be possible for such a Judge to get an administrative post, but never having been engaged in administration in any real sense of the word throughout their working life, it is more than most unlikely that any such Judge so dismissed could get or hope to get such a post.  Accordingly, a purported impeachment of a judge using the ‘steam roller’ majority of the ruling party in Parliament would result in such Judge and his family being rendered wholly destitute and the Judge left without the means available to any public officer from the rank of a Labourer to Ministry Secretary of getting alternative employment.

It is perhaps to this reason that one Judge of the Supreme Court remarked recently in a fundamental rights case dealing with a pension not being paid that he shuddered to think of what would happen to him did not get his pension after he ceased to hold office.  Thus, a Judge of a Superior Court, though theoretically assured of security of tenure, a salary and pension which cannot be reduced etc. is in a worse plight than any other citizen of this country. This is because if the Government in power does not like anything that he has  said or done, he can be dismissed, and the Government by its contemptible conduct over the purported impeachment of  Chief Justice Shirani Bandaranayake, has shown that it will not be slow to use such powers as it has, ignoring completely all dictates of decency, fair-play and justice.   
This is not all, what for example, would be the plight of a Judge of a Superior Court who is repeatedly passed over for promotion and must remain where he is or retire and go back home drawing a pension (if entitled to it) that is attached to the post he was then holding  ???

A public servant in such a situation who has wrongly been deprived of promotion can file a fundamental rights application seeking relief in respect of such denial of promotion.  But there are several officers of the Government such as Judges of the Superior Courts, and officers of the Armed Forces who cannot do so in that their appointing authority is the Head of State who enjoys immunity from suit.  Some such persons however, such as  an officer of an Armed Force  would have the ability  to get employed in the private sector in an administrative capacity. However, as observed above, this alternative is not, in practice, available to a Judge.  A judge who is passed over for promotion can only ‘grin and bear’ or retire prematurely thereby giving in to State  ‘thuggery’ exercised on the allegedly independent judiciary.

There can be little doubt that the purported impeachment of Chief Justice Shirani Bandaranayake was designed to send this message to the entire judiciary. This is also borne out by the fact that despite all its talk about the Laws’ Delays the Government filled the vacancy left by the retirement of Mr. Justice S. I. Imam in February of this year only a few days back.  There can clearly be no other explanation for this delay other than that appointments to the Supreme Court are, today, made, not on objective grounds of merit but with a political motive and the Laws’ Delays, about which so many expound is something that is considered to be of no consequence  whatever by the Government and certainly as something that is subordinate to political expediency.

Accordingly, being a Judge of a Superior Court constitutes a term of imprisonment in a gilded cage from which there is no escape.

Is the lot of a judge of one of the subordinate or original courts any different?  They are, in theory, entitled to practice after they cease to hold office.  However, it is a fact that very few of those who have ventured into the field of private practice from the ‘chill and distant heights’ of the judiciary have succeeded in getting a good practice.  Further, although their appointments, promotions, transfers and disciplinary control are said to be vested in an ‘Independent’ Judicial Services Commission, headed by the Chief Justice and comprised of two other Judges of the Supreme Court, recent events such as the transfers of a large number of  judicial officers in April, of this year, causing the  maximum amount of problems to them in their personal lives shows that their security of tenure etc. is but an illusion.  Those judges cannot even speak out about their grievances.  Thus, as recently reported in the press they are afraid to speak out about their plight  even to professional colleagues such as the sub-committee appointed by the Bar Association of Sri Lanka to look into this question.  

Similarly, there is no way in which the judges of subordinate courts can complain about injustices perpetrated on them or on their service such as by the reinstatement of a judge against whom charges of dishonesty have been framed, or the promotions of the undeserving over the deserving are effected.  Judges, by the nature of ‘calling’ or their ‘profession’, like members of the Armed Forces and the Police cannot strike or engage in trade union action. This is as it should be.  However this leaves them with no means of ventilating such grievances as they have.  

The answer to this is for the Government to go the extra mile or whatever distance it takes to ensure that they are treated justly and fairly and have no cause for complaint.  

That however does not happen today, and even the judges of the subordinate courts are merely officers who have been imprisoned in gilded cages from which there is no means of escape.
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