Rule of Law and unruly legislators

In Sri Lanka, we are administrating a fantastic structure to dispense justice to the citizens. Judicial machinery consisting of a minister, deputy, Judicial Services Commission, judges, Supreme Court, Appeal Court, Magistrate Courts, a Bar Association, Attorney-General’s Department and a plethora of lawyers operationalise the judicial arm of the Government. With all these structures in operation and given what is observed in the absence of justice, has judicial independence reached a questionable level in the island?

– Pic by Shehan Gunasekara

By Jayasri Priyalal

Representative democracy is subject to many challenges in this era of acceleration. It is observed that outcomes of many elections held in mature and amateur democracies across the regions; the popular will of the majority to rule is often gets side-lined. 

Political parties, who were responsible to drive the representative democratic systems, are also subject to disruption of the power of information flows bombarded through social media. Casino capitalism that led the unrestrained financialisation infected the multi-party democracies and packed with corrupt leaders of all shades; as such, many of the political parties founded on different ideologies are now operating beyond their expiry dates. 

Rule of Law is the rock bed of democracy; this writes up is to revisit the process of legislation and practice in the hands of unruly lawmakers, which has a significant impact in restoring public confidence and trust in democratic political systems. 

Greed and corruption erupt in different countries in different forms and no one is immune to these viruses either in developed or developing countries across the globe. Financial embezzlements, nepotism are often exposed in media and get enough publicity yet the chances of eradication of these unethical practices are distant dreams. 

The basic causal factor is human weakness coupled with greed for power. Abusing one’s authority to influence the Judiciary to victimise opponents and a mute dissent is also a serious form of corruption in any democratic systems, which the average citizen may not feel as a crime on the part of those who are in power. 

Examples from ASEAN member countries

Amongst ASEAN member countries one can draw numerous examples from Cambodia to Thailand. In Malaysia opposition politician, Anwar Ibrahim is an unfortunate victim tested and tried so many times for crimes committed as interpreted in scriptures.  

In Singapore, Prime Minister Lee Hsien Loong took a different approach, when his estranged brother and sister announced that they lost confidence in him when dealing with property owned by their late father Lee Kuan Yew. 

Instead of filing defamation against his siblings in the court of law, Singapore Parliament debated on the issue enjoying the Parliamentary privileges denying the opportunity of explanation of aggrieved parties, his own brother and sister, who expressed their concerns stating an action leading to the loss of confidence. 

SAARC, South Asia has no exceptions from Bangladesh to Sri Lanka.  In Pakistan, public perception is such that the Chief Justices in the past and present acted in the best interest of the nation holding the corrupt politicians accountable for the crimes committed. 

In India, a collegium of Supreme Court judges held a press conference on 12 January, and criticised that certain judicial orders passed by the Court had adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the office of the Chief Justice of India.  Retired Justice Jasti Chelameswar, one of the dissenting Supreme Court judge, went on to add that unless the institution of Supreme Court was preserved, democracy would not survive in India.

Sri Lanka’s fantastic structure to dispense justice

In Sri Lanka, we are administrating a fantastic structure to dispense justice to the citizens. Judicial machinery consisting of a minister, deputy, Judicial Services Commission, judges, Supreme Court, Appeal Court, Magistrate Courts, a Bar Association, Attorney-General’s Department and a plethora of lawyers operationalise the judicial arm of the Government. With all these structures in operation and given what is observed in the absence of justice, has judicial independence reached a questionable level in the island? 

Nobody gets justice; people only get good luck or bad luck, said Orson Wells, American writer, in one of his many famous quotes. This assertion applies well in Sri Lanka starting from the famous ‘Sudu Kodi’ (white flags) to ‘Sil Redi’ (white cloth worn by Buddhist while observing eight precepts) cases tried in courts of law in the recent past.

What is really influencing jurisprudence in Sri Lanka?

What is really influencing the jurisprudence in Sri Lanka? Is it Rule of Law or rule of lawyers? The recent announcement by the President Maithripala Sirisena re-introducing the death penalty for drug-related criminals has opened up for a new social dialogue. 

In the light of the new development, warrants a proper causes and effect analysis that led to the current state of affairs to restore the public trust and confidence in the judicial system in Sri Lanka.

Dr. Shirani Bandaranayake, 43rd Chief Justice of Sri Lanka, was one whose justice was denied by President Mahinda Rajapaksa’s administration. The unjustified removal of the CJ was remedied by way of another controversial manner with the election of the Yahapalanaya Government.  This was not the only incident where the Executive and Legislature abused their political authority in Sri Lanka. The first such abuse was put into practice by President J.R. Jayawardena when he harassed then Chief Justice Neville Samarakoon. 

President Jayawardena’s administration went on to manipulate the Judiciary to silence the Opposition by removing the civil rights of Sirimavo Bandaranaike Leader and key officials in the SLFP. The UNP Government of 1977 used the extrajudicial demonstration under the leadership of “Kalu Lucky” for pelting stones on the residences of the judges who stood by their independent professional judgement.

Bigger impact of contagious effects of judicial manipulation 

Contagious effects of judicial manipulation from Sri Lanka to our closest neighbour, the youngest democracy in SAARC region, the Maldives, is seen having a bigger impact as well. On 10 May the island’s Chief Justice Abdulla Saeed and Justice Ali Hameed were sentenced to one year, seven months in prison on charges of influencing court rulings. Saeed was also sentenced to five months in prison on obstruction charges, and both justices face additional charges of terrorism.  The current political crisis in the Maldives was sparked by a Supreme Court ruling on 1 February that overturned the convictions of nine members of the opposition, including former President Mohamed Nasheed, the country’s first democratically-elected leader, who had been sentenced to 13 years in prison on terrorism charges in 2015.

It is very clear, that the justice is obstructed cleverly abused by the lawmakers; who get elected to the legislative arm of the governments in many of the representative democracies such as in Sri Lanka. 

If one analyses the professional background of those politicians who were instrumenting these injustices, they themselves are lawyers. Fortunately, they end up as politicians, academicians and professors of law instead of practising lawyers. Had they opted to bring justice by practising their profession, many adjudicators would have hanged themselves, instead of sending the criminals to gallows, witnessing their dualities.

The members of Sri Lanka’s Parliament

Prof. M.O.A. de Zoysa, former Chancellor of the University of Peradeniya, revealed to the media that amongst the 225 members elected to the current Parliament there are only 25 graduates, alarmingly 94 of them even do not have passed GCE Ordinary Level. But many of them as we know are lawyers, some have given up their lucrative legal practice and taken up politics. 

Parliament is a place that makes laws, with knowledge of their subjects, and logical intelligence. Moreover, those who are elected to make law as legislators are expected to conduct themselves in a dignified manner. As reported in media, some legislators even outsource underworld criminals as their bodyguards in addition to the security escorts provided by the State.

Absence of judicial independence

This author is of the view that deterioration of maintaining the rule of law starts from the temple of the Legislative assembly. As seen in many past incidents the politicians who are lawyers by themselves instigated to violate the justice systems for weakening dissent and hang on to power. 

When these things take effect, citizens lose confidence in the Judiciary and opt for instant justice. The absence of judicial independence as perceived by many foreign investors is one of the key obstacles to attract foreign investment into the country. 

It is these systemic failures that need to be addressed on an urgent basis to bring the functioning democracy back on track in Sri Lanka. A delegation of political power, creating parallel administration and holding elections frequently will certainly not rectify these abusive practices. The current state of affairs of the Northern Provincial Council in Sri Lanka is a real testimony to prove this point.  

Decaying democracy in Sri Lanka 

In conclusion, as at present, to the disappointment of many, it is rule of lawyers and legislators that are in command and control of decaying democracy in Sri Lanka. The first corrective step should start with pruning excessive perks and privileges offered at the tax payer’s expense to so-called people’s representatives with immediate effect as a deterrent to avoid wrong guys standing for elections for honourable jobs. 

Moreover, the candidates put forward by political parties should be screened by civil society and expose them through social and all forms of media to the electorate for their choosing, irrespective of their political party affiliations and credentials.

To end, let me quote Justice Robert H. Jackson of the US Supreme Court: “Men are more often bribed by their loyalties and ambitions than by money.” This applies squarely for many legal luminaries in Sri Lanka.