| by Gajalakshmi Paramasivam
( December 15, 2012, Melbourne, Sri Lanka Guardian) I write in response to the Sri Lankan Guardian article ‘Impeachment Motion: D-Day for Lawyers (December 15) ’ by Mr. Basil Fernando.
Mr. Basil Fernando opens his article by saying ‘Tomorrow, December 15 will be a day that tests the will of the lawyers of Sri Lanka to defend their own profession and the independence of the judiciary in the country which is the foundation on which the legal profession stands.’
The average person needs to compare and ‘vote’ as to whether or not the Judiciary has earned its independence. Towards this, we need an opposition.
Mr. Basil Fernando states giving form to this ‘opposition’: ‘There are ideologues that are supporting the executive as is quite evident from those who are speaking over radio programmes such as the one which is inappropriately called ‘Peoples’ Power’ and in newspapers and other media. For example, Dr. Nath Amarakoon wrote that the Chief Justice is an employee of the executive and should behave in that manner.’
The wording of the Constitution of Sri Lanka could be interpreted by each citizen as per her/his belief and so long as it is belief and not thought through external knowledge – that person is right for her/himself and her/his group.
Article 4 of the Constitution states:
4. The Sovereignty of the People shall be exercised and enjoyed in the following manner :-
(a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;
(b) the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;
(c) 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;
As per 4 (c ) above, at surface level – Parliament comes before the Courts. It is like saying that Mothers are first parents. In the traditional families – mothers exercised intellectual/reasoning power through the father. If the Judiciary were equal to Parliament – leave alone the Executive – the wording would not have contained the word Parliament. At primary stage therefore – Parliament first and Judiciary next. But the real power of the Judiciary is equal to that of the Parliament and this has been confirmed by limiting the Parliament’s authority to directly exercise power in relation to their internal operations. This confirms that the Parliament is independent of the Judiciary. Without this authority to self judge – the Parliament would have been lesser power than the Judiciary.
The positioning of authority should not be confused with “Independence”. But to the lay person driven by apparent position power – this positioning means higher powers. It is time based which works only when we are at the primary level. This is also why the Legislature has the power to enact laws. Not the Judiciary. When we say ‘Government’ we usually mean the Parliament. But as per the above Article the Judiciary is also ‘Government’. The problem is most members of the Judiciary driven by material benefits – tend to not realize the goal of independence and hence do not think of themselves as ‘Government’. It’s when they are about to lose that ‘status’ they thought they had – that they get upset.
Mother and father have equal opportunity to be parents and need to be taken as being equal parents until known otherwise. But their apparent positioning is mother first and father next. Just because the father brings the money does not make the father the employer and the mother the employee. When we work without being conscious of money and status – we work for the whole and develop feelings of ownership. When this common element is high – there are no employer/employee relationships within the family. For functional purposes there is respect and status that denotes respect.
The statement that the Chief Justice is an employee of the Executive is technically correct given that the Executive is above the Parliament and the Parliament is Equal to the Judiciary in status and the Head of the Executive is the President. As per Article 107 of the Constitution, the President has the power and duty to appoint the Chief Justice. These are administrative functions and they do not render direct subjective authority over the person with lesser status. Even a cleaner appointed by the Executive is an independent authority and not a personal servant of the Executive or the President.
Article 30 (1) of the Constitution states ‘ There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces.’
The President as Head of State is above the Chief Justice in status. Hence it would have been more accurate to state that the Chief Justice is employed by the President. In substance all public officers are employed by the People/Public through those holding high positions in the Government structure. One who does her/his duty would realize independence through even the lowest of positions. Independence is the goal. As in the story of the hare and the tortoise – one who is distracted by benefits – including sleeping benefits – is likely to be delayed in achieving this goal, compared to one who slowly and steadily fulfills her/his duty and keeps doing what s/he can to reach the goal of Truth / Independence, through that institution / path. When majority within a group are distracted by material benefits – the whole group keeps slowing down and lose their real status as Equal Powers. This applies also to migrant groups who get distracted by quick benefits from the Parliament and Civil Administration.
Mr. Basil Fernando states ‘Often the judiciary has also failed in their management of the system of justice. The judges cannot be unaware of the unscrupulous manner in which the court proceedings are manipulated so blatantly. However, very little attempt is made to give their minds to this problem collectively and find solutions including firm action to demand from the government the allocation of resources in order to ensure that the system of justice functions without defeating the very objectives of justice.’
Judges to whom the difficulties of the People are not their difficulties, would not have the self confidence to demand the resources needed to manage their system independent of the Parliament. Both are empowered by the People. As equal arms of Government – of the same group of People, the Judiciary is entitled to Equal level of resourcing as the Parliament. They have the duty to deliver justice at least at equal level of efficiency as the parliament.
Often, people come to Courts because they are not able to resolve issues locally – including through their elected members of Parliament . Only a Judiciary that has the self confidence to obtain such funding, would confirm its independence of the Parliament. Judges who are not successful in such attempts need to use the media to inform the People – so that the People will decide at the following elections. Judges who do not complete that cycle to bring the essence of their work to the People are confirming that they are not independent. I did not expect to win when I complained against my supervisors, here in Australia. But I completed the cycle by sharing the Truth I discovered, with others in need. I believe that this has taken me to ownership level where I am naturally empowered by other believers in the Australian system.
If the Judiciary and the Legal Profession is able to complete their cycle of Independence – Sri Lanka already has an Independent Judiciary and even one genuine citizen believing that the Judiciary is independent would give the real status to the Judiciary. Until then it is merely majority vote within Sri Lanka and rights and wrongs as per intellectual discrimination for other Judiciaries outside Sri Lanka. Both are paths to Independence and do not independently empower the judiciary or its Chief.