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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. Independenceof 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 StateAssembly 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 andthe 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 visthe 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 17thAmendment 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