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| Independence of the Judiciary has two facets – extrinsic and intrinsic or the outside and the inside |
(Speech delivered by the retired Supreme Court Judge C.W.Wikneswaran)
I have been called upon to speak
today on your event-theme “Independence of the
Judiciary” …What is Independence
of the Judiciary? Why is it important? Are these not pertinent questions to
answer? Let me briefly define this much maligned phrase in my own way. Independence
of the Judiciary means simply that the Judiciary needs to be kept aloof as far
as possible from the other branches of Government and other interest groups. In
other words, Courts should not be subject to improper influence be it from
other branches of the Government, that is the Legislature as well as the
Executive, or from private or partisan interests.
If Judges in a
country could decide cases and make rulings in applications before them
according to the rule of law and according to their judicial discretion, even
if they be unpopular and even if they may embarrass powerful vested interests,
then we might say there is Independence of the Judiciary in such a country.
Two facets of Judiciary Independence
Independence of the Judiciary has two
facets – extrinsic and intrinsic or the outside and the inside. The extrinsic
component is made up of the structural, systemic and environmental factors that
form the set up within which Judges function.
The extrinsic component therefore includes the constitutional procedures
for appointment of judges, their security of tenure, salaries and perks, as
well as their personal security, including threats and inducements. The intrinsic component includes how Judges
think, react and behave. This
component is what is truly within our power.
However, even the most altruistic would agree that the extrinsic
component greatly shapes the intrinsic.
What you are facing today with the impeachment
of the Chairperson of the Judicial Service Commission and the physical assault
on the Secretary to the Judicial Service Commission are the extrinsic
dimension. When the Eighteenth Amendment to the Constitution was allowed
to be passed by the Supreme Court, some of us were of opinion such outer
aberrations might be the result. We had read as Law Students in 1961 or so as to what Lord Acton had
said in 1887- “Power tends to
corrupt, and absolute power corrupts absolutely” said he.
Checks
and balances were not designed by Law for cosmetic reasons. The concentration of power in one arm
disturbs the delicate balance of power among the three arms of Government. When there was already an imbalance of power,
further concentration was a recipe for disaster. To understand the extrinsic evolvements in
our Country we must understand what took place in the field of Constitution
making in Sri Lanka.
For constraints of time I will not
start from 1947. Let me begin with the pre- natal period of the present
Constitution. The 1978 Constitution laid the foundations for a changeover from
the Anglo – Saxon model of a Parliamentary Democracy to a centralised, almost
absolute Presidency, modeled on the German/American Presidential system, though
paying pious lip service to Parliamentary Democracy and Parliamentary
traditions. While seemingly following the American model, the strict division
of powers, between the executive, legislative and judicial, contemplated by
Montesquieu, was conveniently ignored.
1972 to 1978 constitution - Concentration of power
Before introducing the 1978 Constitution,
Article 4 of the 1972 Constitution which read as “The sovereignty of the People is exercised through a National State
Assembly of elected representatives of
the People” was changed to read as follows: ‘The sovereignty of the People is exercised through a National State
Assembly of elected representatives of the People and the President who shall, subject to the provisions of the
Constitution, be elected by the People”.
So too Article 5 of the 1972 Constitution was
amended to replace the National State Assembly, with the “National State Assembly and
the President”, as being the supreme
instruments of state power of the Republic.
The more important amendment relevant to our
deliberations here was that the Executive power, including the defense of Sri
Lanka, which was exercised by the President and the Cabinet of Ministers
according to the 1972 Constitution, after the Second Amendment, was to be
exercised solely by the President, who happened to be the Executive President,
unlike the earlier President who was a creature of the Legislature. The Cabinet
of Ministers was to thereby lose its importance. Still the Cabinet is sterile.
You hardly know these days whether a Cabinet of Ministers exists and what its
views are!
This changeover sought by the Second
Amendment to the 1972 Constitution completely metamorphosed the institutional
set up introduced by the 1972 Constitution.
The Second Amendment to the 1972
Constitution was the catalyst that produced the 1978 Constitution. First the
Second Amendment, and then the 1978 Constitution, transformed the office of the
President of the Country from a creature of the Legislature to be the
controller of the Legislature.
The President of the Democratic Socialist
Republic of Sri Lanka was not only going to be the Constitutional President but
also the Executive head of the country as well. Like the President of the United States
he was to be a Constitutional head plus the Prime Minister, two roles rolled
into one.
He would appoint the Prime Minister
and the other Ministers of the Cabinet.
(Vide Article 43(3) and 44 of the
1978 Constitution).
He would appoint other Ministers not
of cabinet rank too. (Vide Article 45-ibid).
He would not cease to be the leader of his
political party and therefore it would be his
policy that would be implemented.(Vide
Article 31( 1) and 33(a)- ibid). So
the fertilization and conception for the Chintanayas of the future had taken place then.
The President would not be a member
of the Legislature but from time to time he would use his right of audience to
address the Parliament very much like the President of the United States
who would address the Congress when he
felt disposed to deliver a message (Vide
Article 32 (3)- ibid).
In other words the President was to become the supreme instrument of
State Power of the Republic under the 1978 Constitution. But he was much more
than a mere primus inter pares as far as the institution of the
President and the Legislature were concerned.
The President was to become the head
of the Cabinet of Ministers. (Vide
Article 43(2) ibid).
The whole administration was to be
brought under his control (Vide Article
54 – ibid). By virtue of his office he could give orders directly to
any department or official. He could call for any report, documents or any
other information from any department directly.
Dictatorship of the Executive
It was said that the President of the
United States
was a dictator for four years. In the case of Sri Lanka not only is this
dictatorship extended by two more years, but it applies with far greater force
here! The Cabinet is the President’s creature. Most importantly, by allowing
Members of Parliament to become members of the Cabinet, Parliament as an
institution has became emasculated.
Members of the Cabinet are beholden to the President, as they hold
office at the President’s will and pleasure. (Vide Article 44(3) –ibid). They serve their Master and do not hold any
allegiance to the institution of Parliament.
In the US,
the House of Representatives and the Senate are completely divorced from the
Executive. The Legislature is not an
appendage to the Executive, but actually acts as a check on the Executive. With the evisceration of this separation, the
Executive in Sri Lanka
becomes even more powerful. It is no
surprise then that much respected stalwarts of Parliamentary Supremacy and
Democracy in Sri Lanka
have become starlets kept by the
Executive today.
Worse still the President was to keep
himself insulated from blame for acts of omission and commission committed by
him because it would be the Ministers who would be questioned and criticised in
the House for such acts for which the President may himself be responsible. Were there to be a challenge of no confidence
in the Government, the Prime Minister and the rest of the Cabinet would have to
face it, since the President was not there to answer the criticisms that were
to be leveled at the Government of which he is the fountain-head. The President
of the Republic according to the Standing Orders of the Parliament cannot be
the subject of any adverse comment. And Article 35 of the Constitution assured
immunity to the President from suits. As
you can see the role of the President appears to be fashioned in the image of a
King. In fact Mr.J.R.Jayewardene once said that he is the last of the lineage
of Royalty in Sri Lanka!
Since the Presidential Elections would not
coincide with the election to the Legislature the possibility of the
Legislature and the Executive sporting different political complexions was
definitely possible, as indeed we did have such parties of different hues
called upon to co-habit after the 2001 Election. However, this was hardly a check on the powers
of the Executive. The manner in which
the then President cut the Gordian knot by taking over three Ministries
stultifying the then existing Legislature’s performance thereafter, proves the
point. The emasculation of Parliament is
almost complete with the power the President wields to prorogue and dissolve
Parliament.
Unlimited scope for
wielding absolute power
What was to be noted was that the Presidential
System initiated by Mr.J.R.Jayewardene offered virtually unlimited scope for
wielding absolute power, albeit for a limited period then. But the taste of
unlimited power grows with time and office and the lust cannot be easily
satiated. So the changeover brought about by Mr.J.R.Jayewardene must be deemed
to have been designed to keep the incumbent in office of the President of the
Democratic Socialist Republic of Sri Lanka in absolute and
unfettered power. In consequence, fundamentals of good governance such as
accountability,
transparency,
consideration of conflict of interests and the avoidance of certain actions thereby,
were all sacrificed at the altar of self interest. Yet after the demise of
President Ranasinghe Premadasa it was not
Mr.JRJ’s Party which reaped the
benefits of his constitutional temporally.
17 A restored semblance to the system
This brings us on to the state of the
Law under the Constitution pertaining to the Judiciary. It is important to
examine whether there are provisions in the Constitution which favour the
interference by the Executive vis a vis
the Judiciary. A Constitution tailor-made for the enhancement and the
stabilising of the power of the Executive President must no doubt have such
secret innovations. Until the passing of the Seventeenth Amendment to our
Constitution the discretion of the President with regard to the appointing
process was essentially absolute. The 17th
Amendment restored some balance to the system and made the separation of powers
contemplated in Article 4 meaningful.
Before getting on to the calamity
that befell our Constitution thereafter, a word relating to the Office of the
Attorney General may not be out of place. The Attorney General is the first Law
Officer of Sri Lanka
and the chief legal adviser to the Government. He and his officers are legal
advisers of the national Government of which the Executive President is the
head. The close relationship between the Attorney General’s Department and the
Executive is thus visible. The relevancy of this would be referred to anon.
Dr.Colvin R. de Silva once pointed
out “in the field of independence of the judiciary and of judicial independence
it is the upper echelons of the judiciary that most matter being the final
guardians of such independence against executive intermeddling and even
legislative invasion.” (vide Socialist Nation of 09/08/1978).
Superior court judges hand picked
The new 1978 Constitution provided for a
transitional provision (Article 163)
whereby all judges of the Supreme Court and the High Court established by the
Administration of Justice Law No: 44 of 1973 holding office on the day
immediately before the commencement of the Constitution ceased to hold office thus ensuring that thence onwards the
appointments to the Higher Judiciary could be kept within the Executive
President’s control. It is to be noted that Article 164 categorically stated
that all minor judicial officers and such officers and employees could continue
in service or hold office on appointment under the same terms and conditions as
before (the 1978 Constitution came into effect).But why were judges
of the superior courts handpicked to “cease to hold office” while the minor
judicial officers were allowed to continue? Did it give the then President the liberty to pick and choose for
appointment to the Higher Judiciary those favourable to the Executive, leaving
out others?
Since then there has been an unhealthy
practice of appointing comparatively very young State Officers from the
Attorney General’s Department to the Higher Judiciary in large numbers thus
effectively debarring older and
experienced Original Court Judges as well as senior members from the Unofficial
Bar or even senior educated Academics from the Universities entering and/or
reaching the higher echelons of the Judiciary. By virtue of their long
stint at the Attorney General’s Department these Judges carried with them a
conditioned reflex which favoured the State generally. They were also
necessarily quite close to the Executive by virtue of their having had to hobnob
with politicians during the course of their day to day official life at the
Department. This is perhaps the type of judges who, in the words of Lord
Atkins’ famous dissent, become “more executive-minded than the Executive”!
Today the Superior Courts consist of large majority of Judges
who entered the Higher Judiciary directly from the Department. They have had no
experience at the Original Courts, especially the Civil Courts, except for some
who came up from the High Courts, which mainly did Criminal cases at the time
they were recruited from the Attorney General’s Department. I had noticed the
ability to appreciate the nuances of Civil Law notably lacking among these
recruits from the Department when I was on the Bench. You cannot blame them.
The appointing authority if it was circumspective and farsighted instead of
being offensively selfish could have seen through the consequences of such
appointments. A long stint at the Original Judiciary is expected to mature and
sober the incumbents before they take on responsibilities in the Higher
Judiciary.
Politicised Attorney General office
The role of the Attorney General and
so-called Independent Commissions of Inquiry in relation to the Executive
Presidency came into focus a few years ago. The International Independent Group
of Eminent Persons (IIGEP) who were invited by the current Executive President
himself from a number of Countries to observe the work of the Commission of
Inquiry to Investigate and Inquire into Serious Violations of Human Rights, in
their final Public Statement released before withdrawing from their
responsibilities in disgust said as
follows “An astonishing event occurred in
November 2007 at the plenary meeting held between the Commission and the IIGEP.
A letter dated 5th November 2007 from the Presidential Secretariat and
addressed to the Chairman of the Commission was revealed to the meeting. It
stated that: ’The President did not require the
Commission to in any way consider, scrutinize, monitor, investigate or inquire
into the conduct of the Attorney General or any of his officers with regard to
or in relation to any investigation already conducted by the relevant
authorities’”. The report goes (vide page 13 under the
heading (a) The role of the Attorney General):-on to say “It was the single
most important event prompting the IIGEP to decide shortly thereafter that it
should bring its presence in Sri Lanka to an end”! In this case
the IIGEP had been expressing its concern about the role of the Attorney
General from the very beginning of its work saying there was a fundamental
conflict of interest since the Attorney General while being legal adviser to
all levels of the Government including the armed and security forces and the
police was at the same time potentially in the position of being a subject of
the inquiry where the incriminating hand by the dependents of the victims
pointed at the armed services, police and
paramilitary armed units.
It would therefore not be wrong to
conclude that the Executive Presidency is in a position to interfere with the
Judiciary on account of its close relationship with the Attorney General’s
Department. The appointment of personnel in large numbers from the Attorney
General’s Department to the Higher Judiciary can be seen as an extension of the
process of such interference.
It might be argued that in the United States
the appointments to the Supreme Court are made by the President. There is a
glaring difference. The President of the United States, it must be noted, is
hamstrung by the concurrent power of approval conferred by the Constitution on
the Senate. As stated earlier, the Senate is not a mere appendage to the
Executive, and thus takes its tasks seriously.
The Senate does not toss aside its obligations as a mere formality. That
august body delves deep into the integrity, moral uprightness and the general
demeanour of the President’s nominee. We saw this independence manifest itself
a few years ago with one of the nominees of President George W. Bush.
The national
calamity - the Eighteenth Amendment
Let me now come over to the national
calamity - the Eighteenth Amendment.
The Eighteenth Amendment has
fundamentally transformed Sri
Lanka’s political system, stripping away
even the façade of democracy. It ended Presidential term limits, eliminated the
Constitutional Council, increased the Executive’s control over appointments and
gave the President the power to regularly attend and address Parliament, without
being subject to question. It has removed vital checks on Executive power and
has further undermined Sri
Lanka’s imperfect democracy. As we traced at the outset the Executive was
already hegemonic. Now the hegemonic
Executive President had been made a juggernaut!
Were the consequences of removing
vital checks on the Executive unknown to our Higher Judiciary?
Rebecca
Buckwalter-Poza of the Asian Human Rights’ Commission had said quite some time ago, that
“Presidential
term limits are critical to democratization. The concept of Executive term
limits has been a part of discussions of democracy since its inception in
ancient Rome and Athens. Without term limits, an individual
and party may accumulate tremendous power. Incumbency advantages allow them to
increase and preserve that power perpetually. The incumbent may rely on popular
support, regime tactics, and opposition fragmentation to stay in office and set
the country’s agenda ad infinitum. The consequences extend beyond the immediate
issue of individual accumulation of power over a lifetime. As power becomes
concentrated with a single individual and party, the range of views within the
party decreases and opposition parties weaken and fragment, diminishing the
representation of diverse views in democracy. The weakening of opposition
parties undermines electoral choice, as voters have fewer alternatives to the
party in power. Government and politics stagnate.”
She further continued- “In the absence
of a Presidential term limit, corruption will increase within and outside of
government. As an Executive and ruling party accumulate power, they become more
likely to abuse that power. Parties are less vigilant in rooting out vice and
officials are more prone to corruption when they perceive little threat of removal
or electoral repercussion. Conversely, without the potential for political
turnover, businesses and other non-governmental actors have a greater incentive
to invest in bribing and corrupting government officials, whose positions are
more likely to be long-term and secure.”(unquote)
All that this Political Consultant
had said even before the Eighteenth Amendment became Law here, have found
confirmation in Sri Lanka
later.
The Eighteenth Amendment expanded the
power of the Executive to make appointments, eroding the independence and power
of other government actors and branches. Changes to the appointment process
within the Eighteenth Amendment has presented a special threat to the
independence of the Judiciary. The President’s expanded appointment powers has
extended to the selection of the Chief Justice and the Judges of the Supreme
Court, the President and the Judges of the Court of Appeal, the Members of the
Judicial Service Commission other than the Chairperson, the Attorney-General,
the Auditor-General, the Parliamentary Commissioner for Administration, and the
Secretary-General of Parliament. Additionally, the Eighteenth Amendment’s
expansion of the President’s privileges with regard to Parliament has
compromised the autonomy of Parliament. The prerogative to address Parliament
and the acquisition of full Parliamentary privileges has significantly
increased the President’s influence on the Legislative branch, virtually
eliminating the separation of powers between the Executive and the Legislature.
18 A destabilised the Sri Lankan political system
Thus the 18th Amendment has
destabilised the Sri Lankan political system. Its effects will only grow with
time. The drama taking front pages in the Newspapers these days is only proof
of such demoralizing effects. The Amendment has removed essential limits on
Executive power and has crippled the Judiciary and reduced the independence and influence of
the Parliament; further, it has ensured political stagnancy and precluded
progress. By, passing the Eighteenth Amendment, Sri Lanka has destroyed what
democratic framework that was in place rather than improving it. When the Supreme Court decided on this
issue it ought to have borne in mind the precarious balance of power and ought
to have realised that changes of this nature change the essential structure of
the Constitution and as such the very nature of a democracy.
Thus the Executive power under the
1978 Constitution, which is the Constitution still in vogue with many
amendments so far, is reposed absolutely
in the President. But the checks and balances on his arbitrary activities have been
effectively blunted. The office has all the hallmarks of a veritable
dictator. The desire to hold on to power
by any means seems to have motivated the enactment of the existing Constitution
which was passed effectively with the help of the steamroller majority that
Mr.J.R.Jayewardene enjoyed during his
tenure of office and now the majority
enjoyed by the present incumbent has given birth to the Eighteenth Amendment.
Use of violence, deception, and unethical means characterized JRJ’s tenure in office.
Stoning of Judges’ residences found its origins during J.R.’s time.
He effectively established a
constitutional structure which appeared democratically feasible but in actual
fact was a design for dictatorship. His deception lies in his successful
enactment of the present Constitution. The present incumbent seems to be
proving himself to be a worthwhile political progeny. And he is a
self-confirmed artiste with histrionic abilities!
It is in the light of such
constitutional provisions one has to look at the unfortunate assault effected
on the Secretary to the Judicial Service Commission and the Impeachment process
now enacted on the present incumbent to the post of Chief Justice.
No one had dared to assault a Judge until
recently, just like none had stoned Judges’ houses until it was done during
J.R’s time. It is the gumption that none would punish them because they are
protected that allows such thugs to resort to such acts. There are some politicians
who would raise the bogey of foreign conspiracies, and magnify insignificant
incidents, as reasons for such happenings, forgetting that such occurrences,
whatever be the reasons that prompted them, cannot be condoned. Then again the
process adopted to impeach the present holder of the office of the Chief
Justice has been roundly condemned as unconstitutional and violative of any
notion of Natural Justice or fair play.
The public domain is filled with learned discourses on this debacle and
there is little that can be added, except that it is the logical extension of
the process of aggrandizement of power by the Executive to the detriment of the
judiciary and democracy. And if I may
say so, honest reflection will show that the Judiciary played its role in
allowing this to happen.
To state that the extrinsic dimension
of the independence of the Judiciary is in a perilous state would be an
euphemism.
(This is an slightly Edited version of the speach dilivered by the retired Supreme Court Judge C.W.Wikneswaran at ANNUAL CONFERENCE, of the JUDICIAL SERVICE ASSOCIATION OF SRI LANKA, 2012, ON 22nd DECEMBER, 2012)
to be continued