Mannar: Demonstrate Commitment To Judicial Independence
On Friday July 22, lawyers and judges stayed away from courts around the country protesting against the alleged threat to the Magistrate of Mannar over the telephone by Rishad Bathiudeen, Minister of Trade and Commerce. Also connected to this allegation is the attack on the Mannar courts complex by a mob said to be in protest against an order issued by the Magistrate.
There has been a public outcry against the mob attack on the courts and the alleged threat, by many lawyers’ organisations and well known citizens. While the minister has denied the allegation and there are attempts made to explain the mob attack, the statement of the Judges’ Association focuses on the crux of the issue: ‘Although attempts were made to portray the incident which took place in the Mannar Courts Complex as a public protest it is an organised act challenging the independence of the judiciary’.
President Mahinda Rajapaksa has assured the public that the government will take necessary measures to protect the independence of the Sri Lankan judiciary and a police inquiry has been instituted. Indeed, it is incumbent on the part of any person who holds office of president and a government in power to protect the independence of the judiciary, the last bastion left to protect the freedom and the rights of the people. Now the barbarians are at the gates of the last bastion.
While the assurance given by President Rajapaksa is indeed welcome, public confidence in such assurances is not high, given the number of instances where justice has not been done when government personalities are involved.
The most outstanding example is that of the Minister for Media, Mervyn Silva whose disgraceful public performances have been well recorded even on state owned TV Channels but the minister remains unscathed. He stormed the Rupavahini Studios with thugs because a speech of his was not telecast by that channel; he tied a public official to a tree for not following his directions and had it on national TV; he acts like the uncrowned king of Kelaniya because he is the organiser of the electorate for the ruling party so much so that the his own party’s Pradeshiya Sabha members of the electorate protested against him and wanted him removed. The President promised that an inquiry would be held on Silva but Silva carries on regardless. The self-declared ‘Dr’ now wants to crash through the portals of academia and wants to mediate in the issue of increased salaries for university academics! There is certainly no justice meted out to Silva.
While the Mannar incident is the high water mark of judicial interference, the infection of a once healthy judiciary commenced long ago with a former Minister of Justice, Felix Dias Bandaranaike appointing his own judge to the Supreme Court. Dias inveigled some judges to attend his parties that led to many allegations being made about the conduct of judges at some parties. However, by and large the judiciary remained rock solid and retained public confidence. The UNP government did many injustices to the judiciary – even getting thugs to stone the residences of Supreme Court judges.
It has been pointed out that the main causes for the degradation of judicial independence were the 1972 and 1978 Constitutions that took away much of the protection afforded to judges from politicians under the Soulbury Constitution. The 17th Amendment, passed unanimously by parliament intended to ensure freedom of the public services – police, judiciary and the elections department – through the appointment of a Constitutional Council was not implemented by the Chandrika Kumaratunga government. The Rajapaksa government went one worse by replacing the 17th Amendment with the 18th Amendment which provides for the establishment of a Parliamentary Council whose members and chairman are all appointed by the President!
This insidious Amendment takes away all semblance of independence in the public service, police and most importantly the judiciary. This has happened under a President who came to power by unrelentingly attacking the powers of an executive president but has gone on to empower himself with ++near dictatorial powers. So much for President Rajapaksa’s commitment to an independent judiciary.
Under the UNP regime while serious attempts were made to establish inroads into judicial independence, there still remained judges of integrity and daring character who stood up to the vultures of judicial independence, There was Justice Neville Samarakoon who had been a friend and lawyer of President J. R. Jayewardene and despite being a political appointee, stood rock solid against the inroads attempted by the Jayewardene government. Justices Mark Fernando and Raja Wanasundera are dignified gentlemen who refused to be cowed down.
At that time there were giants at the Bar like Dr Colvin R. de Silva who were not afraid to speak out when attempts were made against the basic freedoms of the people. They had a sobering effect not only on politicians but even on some judges who were on bended knee. Today the Bar sadly lacks such critics.
Sri Lanka’s political culture for some years has been the culture of hypocrisy. We pay lip service to democracy and do everything possible to damn democracy. Poojas are paid to a media culture, press freedom, and free and fair democratic elections. The coming Provincial Council elections provide an opportunity to demonstrate the government’s commitment to these ideals. Now is the time when every Tommia, Dickiya and Harriya will mount public platforms and cry out for judicial independence.
How the Rajapaksa regime acts on the Mannar violations of judicial independence will demonstrate the sincerity of the country to judicial independence.