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Monday, 24 December 2012

Why adopt extra judicial methods

As we said last week the western legal system has begun to collapse. Unlike in medicine, the other oldest western profession in Sri Lanka, it is impossible to have simultaneous systems in judiciary so that one could go to an alternative system if one is not satisfied with the dominating western system. There can be only one legal system in a country as it would play havoc to have simultaneous legal systems operating, though there are exceptions as in the case of laws on marriage. However, overall there can be only one judicial system and in Sri Lanka it is the western system based on Roman Dutch Law that is the recognized legal system. The collapse of the western legal system began with the publicity given in the media to the impeachment motion. The charges against the CJ were published the moment they were presented in the Parliament and the lawyers of the CJ responded with leaking their written submissions to the Parliamentary Select Committee. Then there were the theatrics by some of the lawyers who not only shouted Jayawewa and Bhangawewa but dashed coconuts though apparently in front of a Bo tree and not in the premises of a devala. The CJ herself used the public entrance to come out of the Supreme Court building on her way to the Parliament, just as a politician does, and on Monday the magistrates, district court judges, and some other judicial officers were summoned to Colombo ostensibly to apprise them of her defense against the media reports that had been published. As a result the courts in the provinces could not function and the litigants were placed in the same position as the patients are placed when the medical practitioners resort to trade union action. It may not be a strike by the judges and the magistrates but it amounted to such. The CJ has set up a bad precedence and in the legal profession where many decisions are taken resorting to precedents, one can only speculate as to what would happen in the future.

The three wheeler drivers have already demonstrated in favour of the impeachment motion and on Tuesday a Sathyakriya had been organized in order to invoke the blessings of the gods on the CJ. Somebody could organize a sathyakriya in favour of the present judicial system in the country but I doubt very much even the gods could help the Roman Dutch legal system that we had had to put up with for few centuries. This is a good opportunity to think of an alternative legal system based in our culture but I am sure that the legal pundits would only scorn me for even suggesting such “outrageous” ideas! In any event there are some misconceptions that have already been exposed and people are now freely debating on the powers of the judicial, and on cases before the courts which would have been anathema just a few weeks ago. Individuals are debating freely and publicly on what were termed subjudice matters, and we now know that the learned judges would not be swayed by public debate on the material before courts. If the lawyers could argue before the bench to sway the judges to their opinion, it is what they do in effect, there should not be any reason why the laymen could not express their views so that the judges also could hear, and listen to if they are interested. The laymen may not be aware of the principles of law but they may be having valid points on cases that are before the courts. Also they may raise certain fundamental issues that escape the minds of the lawyers who very often argue by analogy with the help of precedents. We also know now that it is not a crime to criticize a judgment though one has to abide by a decision of the Supreme Court. In the case of the other courts one could appeal to a higher court which in effect says that not only that one does not agree with the verdict given by the particular court but one does not accept such decision.

The ideas on contempt of courts have also been changed since the impeachment motion was handed over to the speaker, and criticizing a judge does not amount to contempt of courts. If one (not the members of the select committee) does not answer the summons issued by courts it could amount to contempt of court, and I would say that hooting at judges, stoning of the residents of judges lie on the border of contempt of courts. In any event those who resort to such actions are punishable under the law, though very often those who are behind such actions go unscratched. Even if we stick to the present legal system, these concepts have been given different interpretations by the public, who after all have the sovereignty at least in the abstract. The sovereignty of the people is now becoming a concrete concept and the people that includes the present writer has begun to feel the sovereignty without keeping it to the constitution and to the books and journals on political science in the abstract. These are good developments and we have to be thankful to those who brought up the impeachment motion for initiating the democratization process of the legal system. It is true that we all have to respect the judicial system but we do not have to be scared of the system.

However, what is clear is that the CJ has resorted to extra judicial methods in facing the impeachment motion. Not only that the CJ has acted in the above ways, the cases filed against the Parliamentary Select Committee (PSC) based on the impeachment motion are to be determined by judges appointed by the CJ herself and this goes against the maxim one should not hear one’s case. It may be said that in the PSC the government MPs are in a majority and that as far as the impeachment motion is concerned it is a foregone conclusion. We do not know what conclusion the PSC would come to but nobody could expect a committee with the opposition members in a majority. It is the way western democracy works though one may call it majority supremacy. Unless western democracy comes up with the concept of minority supremacy we would have to put up with the so called majority supremacy if we do not design our own schemes to deal with such situations. The composition of the PSC or any other matter as far as its decisions are concerned does not give the CJ even moral authority to adopt extra judicial methods in her defense.

It is said that the judges of the higher courts do not have the rights of the other people as far as their defense is concerned. It is not quite so and if a judge is involved in a crime as an individual he/she would be prosecuted under normal law and would have the opportunity to defend him/her. However the question arises as to what happens if a judge abuses the judicial power or acts in a way unbecoming of a judge. This is a problem that the western hierarchical systems which are based on a linear thinking have to surmount. The judges are at the apex of the judicial hierarchical system and who would judge them as judges? This is where so called separation of power comes to the picture. The separation of powers as a concept was introduced after the unfinished English revolution by the bourgeoisie who wanted the legislative judicial and executive power to themselves. However they were not successful though the parliament was named supreme with the king continuing to be the head of state. The judges were also in the parliament in the form of the Privy Council and there is no clear demarcation of powers. The American Revolution realized these shortcomings and adopted a constitution that said sovereignty is in an abstract people. However in USA it is clear that it is the President who controls everything in the final analysis, and there is no separation of powers as such except in theory. The abstract concepts do not work in practice even in western Physics let alone in western Political science. We who have “inherited” these concepts as a result of colonialism also have a constitution which proclaims that the sovereignty is in this abstract entity called the people. In ancient Sri Lanka there was a “separation of powers” among the Sangha, King, and the Public as shown by Trevor Ling. We should be ashamed that we could not come out with this “thrikendra bala” (tri - centered power) system before Ling pointed it out. However recently we have mixed up this system having elected members of Sangha as MPs. In any event we have not been able to absorb the western system of “separation of powers” into our culture and we now have a pickle (achacharu) as far as separation of powers is concerned. In Sri Lanka the Parliament is supreme to the courts and the judges have to be judged by the Parliament. The argument that the MPs are not trained judges does not hold water as judges themselves do not have an expertise on so many matters that they pronounce judgments. However, I am happy that the public have begun to get themselves involved in the system not as an abstract dead entity but as a concrete living force.

If the CJ wants to change the present system I am with her but she has to wait for the decision of the President on the address to him by the Parliament according to the present constitution. The impeachment motion has been brought under the present constitution which says in 4 (C) that “the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law”. The Parliament is superior compared with the courts according to this Article though secondary to the abstract people, and the judicial power as well in addition to legislative power is exercised by the Parliament. It is not only through courts and tribunals that the Parliament exercises judicial power but through institutions created and established, or recognized, by the Constitution, or created and established by law, and I argue that the PSC is such an institution. As we have argued last week Article 107 (3) empowers the Parliament to decide on the procedure through standing orders and 107 (3) is now law and the Supreme Court has no jurisdiction to decide on Acts already passed.” It is clearly stated in the Article 80(3): “ Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed theron, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.” The Supreme Court may decide on Bills before the Parliament but not on Acts. It is in accordance with 107(3) that the standing orders 78(A) have been passed in the Parliament and I am afraid the Supreme Court has no jurisdiction on standing orders passed in accordance with the Article 107(3) that became law as far back as 1978.

Though it gives the appearance of a clash between the legislature and the judiciary the impeachment motion has deeper implications politically. It is nothing but a Hulftsdorp Spring after the Academic Spring of FUTA, and the western forces want to stage a spring to oust the so called Rajapakse Regime by hook or crook as they could not pressurize the government to give into the LTTE that was supported by the west. The same forces, except for a few additional lawyers, who were with the LTTE and separatism or federalism leading to separatism are against the impeachment motion and the intentions of these forces are very clear. As long as Mahinda Rajapakse is the president the west cannot charge him and Gotabhaya Rajapakse for so called war crimes and they want to oust him as soon as possible through Springs. They want to oust the government and bring another Prabhakaran to the fore may be through the TNA. The west knows that Mahinda Rajapakse is going to be there until at least 1921 (now that Ranil Wickremesinghe has become the leader of the UNP for another six years it is no more a dream of Rajapakse supporters) and impeachment motion is a good opportunity for them to push the forces against it to oust the government. However what the west does not realize is that in Sri Lanka we have an eternal summer and no need for springs.

Copyright Prof. Nalin De Silva