Future of Independence of the judiciary will be determined by political developments

It is hardly necessary to argue the importance of the independence of the judiciary in a democracy. The integrity and independence of the judiciary is the surest safeguard for the citizen who seeks justice, whether it is in resolving a dispute between himself and a fellow citizen or, in protecting himself against the excesses of the State.

When an ordinary citizen is pitted against an influential person, it is the judiciary that holds the scales evenly, and ensures that justice is meted out, irrespective of the social or other status of the parties to the dispute. In the case of a citizen or, group of citizens, pitted against the State, it falls upon the judiciary to ensure that a fair and just determination, according to the law, is made.

While the final determination in a judicial process is important, because it determines the rights and obligations of the parties, equally important is the reasoning behind the order. It helps the parties and the public to understand the reasoning process that helped the Judges to arrive at their final determination on the matter in dispute.

While the public may not comprehend the importance attached to the reasons contained in a judgement, the legal fraternity understands that it makes the process transparent and protects judges against any perception of bias. It is also a process of making judges accountable for the orders they deliver.

The significance of ensuring the public's perception of the independence of the judiciary, cannot be over emphasised. Dr. Colvin R de Silva, one of Sri Lanka’s ablest lawyers, articulated this concept, when he once told Parliament that, there HAVE BEEN bad judges and there WILL BE bad judges but, there ARE no bad judges. As the saying goes, judges should not only be independent but also be perceived to be independent. Only then, will the public have confidence in the system of justice.

The independence of the judiciary can be undermined in several ways. One is the process of direct interference by the State, Executive or even an influential private citizen, in an ongoing case. This can succeed only in a situation where there is a pliant judiciary that accedes to the demands of the high and mighty.

Another way of undermining the independence of the judiciary is by weakening the institutions that relate to the administration of justice. Both the 17th and 19th Amendments to the Constitution attempted to reverse this process.

An insidious way of seeking to influence the judiciary is by applying pressure in the form of public posturing and creating public hype, while a case is ongoing.

The country has recently witnessed two such attempts in the recent past. The first, was the case of Dr. Shafie of the Kurunegala Hospital, who was accused of sterilising Sinhalese women without their consent. Politicians made public statements, visited hospitals and questioned witnesses in the full glare of media publicity, and even marched in procession to the courts, on the days when the case was being called, in a blatant bid to influence and intimidate the judiciary and the police .

The second was in the case filed in the Court of Appeal by Gamini Viyangoda and Professor Chandragupta Thenuwara, questioning the citizenship status of the Sri Lanka Podujana Peramuna Presidential candidate Gotabaya Rajapaksa. Here too, the media gave publicity to politicians making submissions to the public, while lawyers were simultaneously addressing Court.

Additionally, after the judgement had been delivered, there have been threats made on Viyangoda and Thenuwara, compelling them to make complaints to the police. In addition, they are being publicly maligned for initiating legal action on a matter of national concern.

According to media reports, several interesting matters emerged during the hearings in the court. The whole process of granting dual citizenship has been brought to the forefront, while some files containing the dual citizenship process have gone missing. While the Court of Appeal will deliver its reasons for its decision to dismiss the petition, in due course, its observations on the missing files will be eagerly awaited. By bringing this fact to the knowledge of the public, the petitioners have done a great service.

Immediately after the order in the Viyangoda- Thenuwara case was announced, there were many politicians who went into raptures about their confidence in the independence of the judiciary and that, the decision was a manifestation of such independence. Ironically, many of them were the ones who were in the forefront of the campaign to impeach former Chief Justice Dr. Shirani Bandaranayake, merely because she delivered a judgement that did not meet with their approval.

The independence of the judiciary is not only dependent on the integrity and uprightness of the judges who exercise such independence, while performing their judicial function, it is also greatly determined by the environment of independence that the State and Government ensures to the judiciary and other organs of the State.

While the Yahapalana Government has been criticised for failing to fulfil some of the pledges contained in their January 8, 2015, Agenda, it can legitimately claim to have started the process of strengthening the Independence of the Judiciary, through the 19th Amendment to the Constitution, as well as by its hands off approach to the Judiciary and other organs connected to the administration of justice.

While there have been quite a few judgements against the Government recently, there has been no words of reproach from any functionaries of Government. In fact, during the past two weeks, one UNP politico has been remanded, while another had a warrant issued against him.

Clearly, the independence of the judiciary is one of the fruits of the Yahapalana regime’s efforts, but the judiciary must be further strengthened to ensure that its independence takes firm root in the system of justice. Political developments will greatly influence the trajectory of the Sri Lankan judiciary's ability to re-establish its pre-eminent place, for which it was renowned, not only nationally, but also internationally. (javidyusuf@gmail.com)