Focus on Rights

In whose hands should justice lie?
The judiciary, now indisputably a part of candid democratic governance, is constitutionally mandated to act disinterestedly in order to bring about distributive justice. Only the most politically or intellectually blinkered individual can assert otherwise.

Poignantly, in Sri Lanka, we have retrogressed from deliberating the role of the judiciary, (ie; should it be comprised of timorous souls or bold spirits?), to very basic concerns with regard to its independence. Frighteningly, these concerns appear to be better suited to a failed state rather than an ostensibly functioning democracy. And in the process, timeworn perspectives have been turned almost entirely on its head with an irreversible impact on the reverence traditionally accorded to the institution itself.

The statement by the Civil Rights Movement issued late this week re-iterates in characteristically compelling language, its "profound concern and unease" at this state of affairs. The CRM has suggested a serious and non-partisan examination of the laws and of the Constitution while taking care not to interfere with the principle of the independence of the judiciary.

Its statement is issued in relation to the recently announced decision of one of Sri Lanka's most respected judges, Justice M.D.H. Fernando, (also the most senior judge on the Supreme Court), to retire prematurely. However, its concerns have a wider focus, going beyond personalities and have serious implications for the future of this country as far as democratic governance is concerned.

In perhaps the most singular instance in the history of this country, we are seeing unprecedented public concern voiced with regard to the judiciary not only by key civil society organisations in Sri Lanka but also by pre-eminent figures across the length and breadth of this society. Many of them have had no immediate contact with the law but have instead a profound respect for the institution of the judiciary as well as for old-fashioned values of integrity, honesty and accountability. And it is no insignificant fact that these are also persons who have demonstrated in their own lives and workings, those self-same personal values.

Thus, it is also not surprising, (by this same logic), that we continue to see a studied silence with regard to these concerns on the part of formal bodies purportedly representing lawyers in this country, most notably the Bar Association of Sri Lanka. So, where should the demand for justice lie? Should it be in the hands of an elite few or in the voices of the multitudes? By this same reasoning, to what do we trace the accountability of those who govern us, to ensure that our demands are met and our concerns addressed?

One is not talking here of periodic elections but rather of a continuing process of governance by which our leaders, whether in the executive, the legislature or, indeed, the judiciary, are held accountable for their actions. This is true, evidently with regard to almost every issue affecting the people. In the absence of such demands for accountability, what we would have is a mere substitution of one set of political charlatans for another, as indeed, what we have been experiencing in this country for the past several decades.

As far as Sri Lanka is concerned, since independence, the Bar in this country has engaged, at times, in a head on confrontation with the State involving the life and liberty of its members. The classic example, of course, is the situation that prevailed in 1987-90, during the JVP youth insurrection where lawyers were killed for attending to their professional duties.

Then again, in the seventies, executive attempts to politicise the judiciary were met with strong opposition from the Bar. Perhaps the most striking of these well documented instances was when the judiciary and the Bar united to protest against "invitations" being sent out by the then Law Minister Felix Dias Bandaranaike on the inauguration of the Supreme Court under the 1972 Constitution.

In other instances, the legal profession might have been bolder as a powerful executive president transformed the face of the country's political system and trespassed without conscience on the preserves of an independent judiciary by "reconstituting" the appellate judiciary under the 1978 Constitution. Some other notable instances were allowing judges to be personally intimidated when unpopular decisions were delivered and bringing a sitting Chief Justice before Parliament for remarks made in public that were critical of the government.

The late eighties and particularly the nineties, however, saw the gradual development of an interventionist Bar and a concerned Bench preoccupied with issues of social justice and effectively working the fundamental rights chapter under the Constitution. Rights focused interventions into governance became as a matter of course, though this assumption of judicial authority, (hampered as it was by restrictive constitutional provisions), did not come anywhere near what India experienced from the late seventies.
Regardless, as tensions exacerbated between the executive and the judiciary following authoritative judicial pronouncements reining in the executive, the inability of the legal profession to absorb and control the political fall out became clear.

This profound breach of faith on the part of the Bar occurred ironically enough, not so much in 1988-89 where the country saw unparalleled dislocation of normal life and unprecedented violence directly affecting lawyers. Rather, it was in the ostensibly calmer but morally more crippling years from the late 1990's.

Thus in the nineties, President Chandrika Kumaratunga and her Ministers engaged in intemperate and inaccurate criticism of selected Supreme Court judges following particular judgements delivered by the Court. While judges' houses were not stoned this time around, the effect of such executive anger was none the less devastating.
The Bar, however, was silent. And this pattern of extraordinary inconsistency on the part of the country's legal profession is best demonstrated in the manner in which the Bar responded to crucial appointments to the office of Chief Justice of the country at different periods of time.

Thus, a united opposition by the Bar to executive departure from time honoured convention was manifested in the 1980's despite significant differences of political opinion on the part of senior members of the Bar. In contrast, however, facing a similar situation in the nineties, an indecisive and highly politicised Bar preferred a problematic silence to valour. Clear political considerations dictated the decisions of the executive in both these instances, indeed in a much more worrying context in the latter instance than in the former.

The public accountability of the legal profession has acquired an even more dubious tinge since then, as recent experience shows. While an increasingly concerned public is left wondering time and time again at each fresh convulsion that a seriously subverted system throws up, the silence on the part of the Bar has been without any sense of shame or indeed, conscience. The historical responsibility that the Sri Lank Bar Association as well as the leaders of the Bar will be called upon to bear in this respect is very clear.

But then, on the other hand, there is also a quaint logic to this. After all, justice is of the people. It is not something to be hogged by charlatans or their supporters. Thus, there is indisputably a reason and a rationale for the whole, at least for the purpose of exposing a body of elite who mistakenly think, like the emperor, that their nakedness is not visible to the world. This column is excerpted from a paper "Justicising the Law; Public Accountability of the Sri Lankan Legal Profession", presented at a Law and Society Trust symposium on Fifty Years of Law, Justice and Governance in Sri Lanka.

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