|by Bijo Francis
( November 22, 2012, Hong Kong, Sri Lanka Guardian) The Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake, is facing impeachment in that country. Those who know the state of affairs in Sri Lanka, might have no doubt, that the impeachment is politically motivated. To justify the process, the government has levelled allegations of corruption against Justice Bandaranayake. The Constitution of Sri Lanka (Article 107) and the Parliamentary Standing Orders, though allows such a process, in law and theory, the entire process is devoid of legal and jurisprudential merits, a question that the Supreme Court of Sri Lanka is now considering, by way of receiving a reference petition to consider the constitutional vires of Article 107 of the 1978 Constitution.
Sri Lanka is not a country far and distant from Indian shores. Neither are the people, culture and politics of Sri Lanka alien to India. Though some people in both countries would argue for and against India’s involvement in Sri Lankan affairs, the impeachment of the Chief Justice for purely political reasons is not something that India could pretend to ignore. Sri Lankans and Indians and all those who believe in democracy have the moral duty to express their opinion about the impeachment process. New Delhi has a little more difficult job, perhaps in expressing its concern about the impeachment process to Colombo, a responsibility nonetheless. The notion of state sovereignty is not a moral or legal impediment to this.
That no government in India would ever dare to initiate impeachment proceedings against a judge in the country, without complying the constitutional requirements that guarantee universally accepted norms of justice, fair trial and due process strikes a stark contrast to the process adopted in Sri Lanka. That none of these guarantees are offered to a judge, when a judge is judged in Sri Lanka, is reason persuasive enough for any government to express its concern to Colombo about the impeachment.
Whenever in India, the state legislatures or the central parliament has tried using parliamentary privilege for unjustifiable reasons against the judiciary, the judiciary has corrected the legislative houses. Additionally, the basic structure doctrine, postulated in Kesavananda Bharati (petitioner) against State of Kerala and others (respondents) [All India Reporter 1973 Supreme Court p. 1461], triumphs the clarion call of the power of judicial review and the limits drawn upon the parliament, even in its legislative authority. Justice J. R. Mudholkar who first postulated the concept in 1965 proposing a limit to legislative power of the parliament, or Justice Hans Raj Khanna and his brother judges who together in 1973 put the concept into practice were not attempted to be impeached by the then all-powerful Prime Minister of India, Mrs. Indira Gandhi, though the fallout from the judgment resulted in the promotion of junior judges. That too was not left without critique, immortalised in the words of former Chief Justice Mohammad Hidayatullah as an “attempt of not creating ‘forward looking judges’ but ‘judges looking forward’ to the office of Chief Justice.”
At the core of the issue is the concept of independence and separation of powers in governance. Power of judicial review, is one of the building blocks required by all states to prevent the deterioration of democracy into dictatorship. In that, the impeachment of a judge in Sri Lanka is the impeachment of the entire justice process in that country. The asphyxiation of what is left of judicial independence in Sri Lanka will have far-reaching and damaging effects upon its neighbours, India included.
During Ms. Aung San Suu Kyi’s visit to India, she said that India’s active appreciation of the military junta in Burma saddened her. Ms. Suu Kyi said that she was not surprised by India’s accommodation of Burma’s military dictators, who have brutally denied and continues to do so, the people of Burma, their freedom. Pretending ignorance of the impeachment proceedings in Sri Lanka will only cement this image.
Democracy and institutions of democracy are not internal affairs of a country, since no country can claim absolute ownership of democratic norms and values. Neither is this concept western, as often wrongly portrayed by individuals like Mr. Lee Kuan Yew, who has self-assumed the right of all Singaporeans to decide what is best for them, on the basis of a fake Asian value doctrine, or like Mr. Hun Sen of Cambodia who has decided on behalf of the Cambodians to continue in power until he is 80 years old.
The concepts of democracy and freedom, the institutions necessary to sustain these concepts and the character of these institutions and their relationship between each other are the results of centuries of human struggle to free the public from unwarranted state control over fundamental freedoms. Crystallised into legal theory, these concepts translates into legal restrictions against arrest and detention; as concepts of bail; presumption of innocence; right against torture and everything that is understood as fair trial. In constitutional theory this means among others, the separation of powers between the organs of the state and the respect state institutions maintain about each other while discharging constitutional mandates.
The quintessence of democracy is freedom and administration by consultation, embodied in the concept’s ability to check absolute control. Judicial independence is elementary to this premise and the judiciary’s ability to review acts of the executive, legislature and the judiciary itself, openly and freely is a prerequisite to realising democracy. When these spaces of freedom and consultation are shrunk, no matter where it happens in the world, it is the moral and legal responsibility of everyone who values these concepts to express concern and be worried.
When it happens in the neighbourhood, it brings matters close to home.
( The writer is a human rights lawyer with the Asian Human Rights Commission, where this piece originally appeared.)