President Rajapaksa’s Dilemma
President Mahinda Rajapaksa on Thursday denied allegations that he had attempted to interfere in the affairs of the judiciary and declared that as a lawyer who had practised his profession for nearly two decades, he was an ardent advocate of the independence of the judiciary. President Rajapaksa assured media heads he had invited to Temple Trees that safeguarding the independence of the judiciary by the chief executive of a country is axiomatic in any genuine democracy. His declarations should be read in that context.
Reiteration of Mahinda Rajapaksa’s commitment to the protection of the independence of the judiciary is all the more important because he has vested in himself much more executive power than any other previous head of state in the post Independence era. The legislature which was intended to impose checks and balances on the executive president is now fully in his power with his political alliance commanding a two third majority in parliament.
With the executive and legislature woven together as no democratic framer of a constitution would have ever envisaged, it is incumbent on the president to dispel allegations that he is attempting to influence the judiciary to his political advantage.
Being both a politician and lawyer he should be well aware of the much-used saying by judges: Not only must Justice be done; it must also be seen to be done.
An allegation made against him is the summoning of the Chief Justice and some judges to a meeting. He declared that he had wanted to discuss with them some matters such as training and welfare allocations from the forthcoming budget. His intention was not to discuss anything to do with the official work of judges, he declared.
We are not aware of precedents involving discussions between an executive president, chief justice and judges in budgetary allocations required for the judiciary or the administration of justice. Even if there had been such occasions it is not known to the public. Budgetary allocation for judges and courts would have been set in precedents in most democratic countries and indeed in Sri Lanka itself where a high ranking official like that of the secretary to the ministry of justice could have liased between the judges and the president or his officials
It has been reported that the President wanted to talk to the Judges on training programmes with foreign countries.
However honourable the intentions of the President may have been, by attempting to summon the Chief Justice and Judges for discussions, he was laying himself open to the charge of attempting to interfere in judicial matters. In any democratic country, an Executive Officer summoning the Chief Justice and Judges of the Supreme Court for a meeting would have resulted in severe criticism, if not allegations of judicial interference.
President Rajapaksa’s motives may have been honourable. But in the judicial sphere great care should be taken not to trespass on hitherto forbidden ground. To do so is for the trespasser to lay himself open to unfair and unwarranted charges.
The history of the constitutional evolution of Sri Lanka reveals that the legal profession as well as the public have been striving to keep the judiciary free from political intervention. The first constitution – the Soulbury Constitution – bequeathed by the British assured strict separation of powers and the independence of the judiciary. The 1972 Constitution drafted by one of the country’s most renowned lawyers, Colvin R. De Silva, did attempt to keep out judicial interference but the concept of ‘power to the people’ and an ebullient Minister of Justice, Felix Dias Bandaranaike, resulted in the appointment of political judges and made a mockery of judicial independence.
The 1978 Constitution of J. R. Jayewardene did no better and as President Rajapaksa reminded the media chiefs last week, the UNP had the judges stoned.
During the two tenures of his presidency, particularly in his second term Mahinda Rajapaksa’s legislative activism has conveyed the impression that he is more concerned with removing obstacles to implementation of his development programmes rather than constitutional niceties. The 18th Amendment removed the checks and balances imposed by the 17th Amendment and gave President Rajapaksa wide powers in appointing members of the judiciary.
The collective impression created by President Rajapaksa’s constitutional amendments, apparently for speedy implementation of his development programmes, is that he has ridden rough-shod over constitutional safeguards endangering the independence of the judiciary.
Rajapaksa’s dilemma appears to be implementing his fast-tuned executive programme of action while not galloping over constitutional safeguards.