One of the three pillars of the modern democratic political system is the judiciary. When the legislature consisting of representatives elected by the people enacts policies, the instrument that implements those policies is the executive. The responsibility of finding out whether the legislature and the executive act in accordance with the social contract (the constitution) and with the international standards devolves on the judiciary.
It is the judiciary that has the main obligation to see that the legislature and the executive conduct themselves in the proper manner. It must review all legislative activities. It is the judiciary which must play the leading role in preventing legislation that might curtail the freedom of the people or might give undue advantages or disadvantages to any specific group of society. It is also the judiciary which acts as the institution that ensures justice in conflicts that arise from power struggle in politics.
When there is an independent judiciary the executive is not permitted to act autocratically. There will be no possibility for oppression of the people. There will be no scope for politicians to indulge in electoral malpractices. There will be no space for politicians and bureaucrats to rob public assets.
However, in spite of the existence of a judiciary, all those offences are committed on a wide scale in our country. Even the ethnic crisis which developed into a war may be considered an outcome of the fact that there was room for enactment of legislation that led to ethnic oppression. The referendum of 1982 which caused a distortion in the entire political system may be termed a disaster that arose from allowing incorrect legislation. It is because of its belief that the judiciary will not act against it that every party that comes to power goes on to steal elections after coming to power and misuses the resources of the state at the elections. It is because the judiciary does not follow a tough policy about them that the politicians who come to power and the government officers who gang up around them are not too scared to rob public property. It is due to that very reason that the rulers who come to power violate fundamental human rights with impunity.
As Harold Laski has said, the manner in which a national state metes out justice reflects the extent of the civilization of that state. According to that criterion, Sri Lanka falls to the level of a state that has hardly any civilization.
Although the Sri Lankan society has no sense of the level of our civilization in this field, our acceptance at the international level is extremely low. The consensus among the international community is that Sri Lanka is not a civilized state.
In international discussions on Sri Lanka, the subject most discussed in addition to the ethnic crisis is the judiciary. Although our Parliament or the Sri Lankan society does not remember the motion of impeachment against the Chief Justice, the international community has not forgotten it. The Prime Minister himself had to state at a discussion held with newspaper editors that the representatives (including the US Deputy Secretary of State) who participated in the aid group meeting which was held in Norway made inquiries from him about the direction in which the judiciary of Sri Lanka is moving.
The Parliament or the legislature of Sri Lanka has not discussed the report about Sri Lanka published by the International Bar Association with the title ‘Sri Lanka: Failing to Protect the Role of Law and the Independence of the Judiciary’ but it has been subject to heated discussions in the international field.
The activities which are not up to international standards, heard of continuously from the Sri Lankan judiciary, too have contributed to the strengthening of the impression among the international community that Sri Lanka is a country which is not in a civilized state in the sphere of the judiciary. The fundamental rights action filed by the President and the secretary of the association of judges alleging that the holding of the 60th annual conference of the association of the judges was impeded, and making the Chief Justice a respondent, is an event that attracted international attention in recent times. The putting up of posters in the Supreme Court premises against the two judges who had instituted action, and the leveling of death threats against them subsequently, were a subject of discussion in international institutions interested in the subject of justice.
The fact that a fundamental rights petition which had named the Chief Justice as a respondent was heard by a panel of judges which included the Chief Justice, and the petitioner was given a prison term of one year. He was subjected to inhuman assault, and the prison strike which came demanding that the two prison officers who had been arrested on that incident of assault be released, and so on, helped further to confirm the belief in international circles that Sri Lanka is in a low level of civilization.
Dato Param Coomaraswamy, who is in charge of the United Nations’ subject of judicial independence, not only went to the General Hospital to see this prisoner, but also held a news conference on the subject. He expressed his surprise at the manner in which the judiciary had acted in regard to that person and also said that time had come for the bar association of Sri Lanka to wake from slumber.
When a journalist, saying that this situation in the judiciary is not something that has arisen today or yesterday, asked Coomaraswamy whether he, as the chief officer of the UN in charge of the subject of the independence of the judiciary, was aware of that situation and, if he was aware of it, what he had done to obviate it, he said that he had requested permission on three occasions to send a delegation to inquire into the state of affairs in the judiciary, but that he had no favorable response on any of those occasions.
When another journalist asked Coomaraswamy whether he had discussed these matters with the Chief Justice, he (Coomaraswamy) said that he had made inquiries from the Chief Justice on a number of occasions but that no reply was received from the Chief Justice on any of those occasions, and that he (Coomaraswamy) would report this situation prevailing in Sri Lanka to the Human Rights Commission of the United Nations.
This evil state of affairs in the judiciary has a destructive effect on the political culture too. There cannot be a rule of law without an independent judiciary. There cannot be a sound governance in a country that has no rule for law.
This unsound state of affairs has strengthened the political uncertainty in the country and has a negative effect on the attempt to arrive at a peaceful solution to the ethnic crisis. There can be an abandonment of the unitary model and a transition to a federal model, only if there is an independent judiciary, trusted and respected by all. It is the Supreme Court that can function as the protector of the agreement arrived at for a federal system and play the role of the umpire in disputes that might arise between the central government and the governments of the periphery. Therefore, before all other reforms, the question of getting an independent judiciary trusted and respected by the people must be turned into item number one of the agenda on reforms.