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Worms amidst the constitutional wood But the credit, (or the discredit as the case may be), for setting the backdrop to this farce, should undoubtedly fall to the helplessly incoherent chorus provided by the incumbent UNF government. Whatever it may be however, we now have the worms crawling out of the constitutional wood, a situation that is, (as disillusioning as it is), far better than the facade of democracy and the Rule of Law that still prevailed despite so many indications to the contrary before. Viewed with any degree of objectivity, the sequence of events during the last two weeks lend themselves to the imposing of a finely balanced degree of censure on both the majority parties in this country. That developments concerning the judiciary or more particularly, a planned impeachment motion on Chief Justice Sarath Nanda Silva, were at the core of the ongoing constitutional furore, despite clumsily drawn linkages made between the Presidential takeover of three ministries and the deterioration of national security and law and order, is undisputed. From that point, depending on which perspective one professes, the opinion delivered by the Supreme Court in the exercise of its consultative jurisdiction under Article 129 of the Constitution with regard to the exercise of Presidential powers pertaining to defence under the Constitution, occupies a position of varying importance. Those who sport the Presidential perspective prefer to advocate, (and vociferously at that), that the planned impeachment was as a result of the opinion that was adverse to the government. On the opposite end of the spectrum, it is contended that the two have nothing in common and that the impeachment is based on mounting allegations of misdemeanours against the Chief Justice during the past four years. That the impeachment motion as reportedly handed over to the Speaker immediately prior to the prorogation of Parliament by President Kumaratunga, makes no mention of the opinion of the Supreme Court, is a fact that has been pushed under by the sound and fury that followed. In general, whether such action on the part of the government deserved such harsh censure as "ill timed and ill-conceived" as put by one domestic editorialist this Friday, is a moot point. It is a reasonable question however as to why, the government delayed for so long to initiate inquiry into these allegations of judicial misdemeanours since assuming political power in 2001. A far clearer public consensus can be made regarding censure by this same editorialist on the recent protest demonstrations of a section of the legal profession against the planned impeachment, "most of whom are apparently unaware of the sharp lowering of the respect and honour the judiciary has had to suffer during recent times." (see Daily Mirror editorial, Friday November 7) These are the bodies, after all, which stayed most palpably quiet during recent times when crisis after crisis enveloped the Sri Lankan judiciary. Their sudden galvanising into action, (the reasons for which are an open secret in legal circles), therefore should be greeted with the prohibitive contempt that this calls for. The claim made meanwhile by the Bar Association in this regard, that it is non-political is more reminiscent of ruder stagehall comedy than fact. In that sense, the professional responsibilities of the lawyers who had presumably taken fees for appearing on the day that strike action was launched is best not dwelt upon. Similarly, this week's strike action by portions of the minor judiciary brings into question, their essential role as judicial officers and their fundamental commitment to litigants who were before court on that day. It is not an insignificant fact that this is the same judiciary that has been identified by national studies conducted by Transparency International and the Marga Institute to be a highly corrupt institution, perceived by the public as being second only to the police in one study. In the Marga Institute survey, almost 83.93% of the respondents thought that the judicial system of Sri Lanka was corruptible, including court users. One conclusion of this study that ought not to be disregarded is that a majority of the seekers of justice such as virtual complainants, civil litigants, remand prisoners and the corporate sector including indeed the judges, lawyers and court staff, were not willing to issue a statement of confidence in the ability of the judicial system to dispense justice at present. Neither were they willing to assert that the judicial system is free of extraneous influences and pressures. There, in brief, one has the judicial system in this country, parts of which went on strike this week. Meanwhile, it is not only these sectors of society that have been clearly exposed. During recent times, it is no secret that a non-political and impartial process of calling for accountability by the judiciary were objected to very strenuously by lawyers affiliated to the United National Front on the basis that this would 'embarrass" the government. It is also no secret that the manner of reporting this process by the Lake House newspapers, then under UNF control, was highly partisan and extremely selective. There can thus be very little sympathy for these elements now, coping as they are now with a crisis far more severe to their personal political interests than mere embarrassment. The issue is, therefore, not whether the recent opinion of the Supreme Court on the defence powers of the President is constitutionally proper. It is with the public perception as to the context of that self-same opinion. This is where the real damage to our judiciary has been wrought. Unless we recover that element of trust in the last recourse that citizens have for justice, whatever actions we indulge in will only push us deeper into the morass where we have been struggling for the past few years. For this to come about, we need to look beyond strict constitutional provisions and recover an element of basic courtesy in our manner of functioning whether it is in regard to disputes between the Attorney General and the Chief Justice in court or Presidential actions regarding the government when the head of the government is abroad on a state visit. In the alternative, we should forsake all our pretensions to civilised behaviour and content ourselves with descending to the levels of a well styled banana republic. Most vitally, resolving allegations made with regard to the head of the Sri Lankan judiciary remains a still seething question. It remains imperative for these allegations to be inquired into and if found to be unsubstantiated, dismissed with due promptitude. If the contrary is found to be the case, action should be taken as constitutionally mandated. If neither of these happen, we will yet continue to have constitutional crises after crises that will render us the laughing stock of the entire world. |
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