Declining Trust In A Legal System; Where The “Fence Is Eating The Crops”! 

By Mohamed Harees –

Lukman Harees

“Laws are spider webs through which the big flies pass and the little ones get caught.” –  Honore de Balzac

 ‘The law and morality do sometimes overlap, but the law, as they say, is whatever is boldly asserted and plausibly maintained. There is an old axiom: much law, little justice. We like to think the law provides some measure of justice, and sometimes it does. But justice is a more cosmic principle than what the law embraces. It needs no rocket science or elaborate surveys to find out that majority of those at the grass-root levels have the least trust in a system that appears unfair, confusing and inaccessible. They feel that wealth and political connections are now more important factors in gaining access to justice than it used to be. Impunity, breakdown of the rule of law and growing public suspicion about the independence of the Judiciary are some of the worst crises besetting Post- war Sri Lanka in recent times. Question should be asked “What would the Sri Lanka’s proverbial man on the street, “Citizen Silva” think?” of how justice system has served its ‘checks and balances’ role under the constitution in the recent past. 

Take for instance some examples in recent times. On one hand, there are many instances where impunity reigns high and those who are openly flouting the law, most notably monks and politicians, are being allowed to operate without fear of arrest or being dealt with under the law. Many cases of corruption brought against politicians were swept under the carpet. The present Parliament is a good reflection of this sad decline of moral standards in politics, with an array of swindlers, corrupt, drug dealers and underworld thugs being elected. Presidents are above law due to immunity, misusing their power of pardon. Sirisena pardoned Jude Jayamaha, who murdered a Swedish teenager in 2005 and Ven Gnanasara who was jailed for contempt of court. Gotabaya too let murder convict  ex-army soldier Sunil Ratnayake free. On the other hand, the usually laudable Sri Lankan Judiciary which has given many landmark progressive judgments in the past (like the judgement in 2018 suspending Sirisena’s controversial decision to dissolve parliament) has also been losing its credibility in recent times due to many apparent tainted decisions. Decision on favour of the 20th Amendment, murderer Premalal Jayasekara’s swearing in as an MP, former Presidential Secretary Lalith Weeratunga and former Director General of TRC Anusha Pelpita being exonerated, Pillayan on murder charges being released on bail, Basil Rajapakse’s foreign travel ban being lifted, are some of  the blackspots on this vital branch of government. On the other hand, imprisonment of some journalists and also Lawyer Hejaaz without being brought to trial is also a cause for concern. 

Both political violence and gross impunity for crimes by the state and pro-state forces Sri Lanka, have also plagued Sri Lanka especially in its recent history. With the trend towards apparent politisation of the Judiciary, the nation has been facing a new assault on justice and the rule of law, making politically-connected criminal suspects into victims, and investigators and legal reformers into criminals. Particular concern is also where Rajapaksa family members are being rescued from prosecution. 

At independence in 1948, Sri Lanka had a comparatively professional and independent judiciary. New constitutions in 1972 and 1978, however, cut back on the judiciary’s protection from parliamentary and presidential intrusions. The 1978 constitution vested unfettered control of judicial appointments in presidential hands. Analysts say that unlike other South Asian countries, no strong tradition or norm of consultation between the president and the chief justice developed. Nor did predictable rules immune from manipulation, such as promotion by seniority, emerge. 

Misfits/ corrupt like Sarath N. Silva (of ‘Helping Hambantota’ shame), chose to exercise his powers in ways that further sapped the independence of the lower courts and the Supreme Court. The illegal and highly politicized impeachment of Chief Justice Dr Shirani Bandaranayake in January 2013, followed by the equally politicized appointment of Mohan Pieris as her successor, was emblematic. International Commission of Jurists echoed that the Sri Lankan justice system cannot ensure accountability for human rights violations and war crimes because the judiciary has been deprived of its independence and impartiality, and lawyers suffer intimidation, hindrance, harassment and improper interference. 

Few sentences have been quoted more often than the aphorism: “Justice must not only be done, but must also be seen to be done”. This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1 KB 256. In this case, Lord Hewart went on to observe that what was important was not what was actually done, but what might appear to have been done and held :“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

This principle is important in an era where public attention is focussed on the courts as the ultimate arbitrator in meting out justice to the people. Lord Hewart’s principle requires that Judiciary not only should be actually independent from executive interference but to be seen as being independent entities and not as departments or appendage of the those in the higher echelons of power. Naturally, harm is caused to our own legal system and its credibility by ignoring this salutary principle. It sustains an ethical requirement that judges and decision-makers more widely cannot hear a case if, from the perspective of a reasonable and informed observer, their impartiality might reasonably appear to be compromised — an appearance standard. In Sri Lanka, justice does not appear to be done in the eyes of the public, with the fence itself eating the crops it is supposed to protect.    

The judiciary is the branch of government that determines whether the law has been violated. Though Sri Lanka’s current constitution does not effect a total separation between the legislature and the executive branches of the government, the judiciary is intended to function in complete independence. Unlike the Indian Constitution which established a strong and independent judiciary, which has become one of the most powerful in the world, by contrast, judicial independence was never entrenched in Sri Lanka due to insufficient constitutional safeguards and political interference. 

The politicization of the judiciary and the lack of judicial independence will continually resurface as key factors enabling, if not perpetuating impunity. Interference in the judiciary has been a long-standing issue in Sri Lanka that has significantly impaired the ability of the judiciary to meet its obligation to provide justice to the victims. The appointments process for the superior judiciary is widely cited as a key contributor to the politicization of the judiciary. In Sri Lanka, multiple governments have contributed to the crisis of impunity. But the Rajapaksa governments have been notable in its systematic approach to weakening the judiciary and other mechanisms for establishing State accountability.

The UN General Assembly has stated on more than one occasion that ‘the rule of law and proper administration of justice […] play a central role in the promotion and protection of human rights.’ The Universal Declaration of Human Rights of the United Nations adopted in 1948 declares that: “It is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression that human rights should be protected by the rule of law’.

In times of crisis, the role of the judiciary is paramount in safeguarding human rights and the rule of law, as the judiciary serves as the essential check on the other branches of the State. The UN Basic Principles on the Independence of the Judiciary affirm the obligation on the State to guarantee the independence of the judiciary. Principle 4 requires States to protect the judiciary from inappropriate or unwarranted interference with the judicial process. Under Principle 2, the judiciary must be able to decide matters on the basis of facts and in accordance with law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect.  At all times, the judiciary must be kept independent of the executive and the legislature. The institutional independence of the judiciary is essential in maintaining the rule of law and the notion of a fair trial.

Impartiality, while closely related to independence, is a separate and distinct concept. The Human Rights Committee sets out two requirements to assess impartiality First, judges must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.

Chief Justice K. Sripavan in ‘Noble Resources International Pte Limited vs Minister of Power and Renewable Energy et al’ case, delivering the judgment, quoted the words of a former Chief Justice Sharvananada in another case where the latter had stated that the “Rule of Law depends on the provision of adequate safeguards against abuse of power by the executive … The Legislature has necessarily to create innumerable administrative bodies and entrust them with multifarious functions…the abuse of power by them, if unchecked, may … bring about an authoritarian or totalitarian state. The existence of the power of judicial review and the exercise of same effectively is a necessary safeguard against such abuse of power.”

In S. P. Guptha v Union of India (1982) nine Judges of the Supreme Court of India ruled in favour of a public interest suit filed by certain lawyers as a writ petition. In this judgment, Bhagawathi J., stated: “If there is one principle which runs through the entire fabric of the Indian Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.

When 20A was taken up for discussion, even Bar Association which does not usual take hardened political stances against the government, also warned that its passage would increase the risk of violent insurrection: “If the public do not have access to remedy a grievance against the unlawful exercise of powers by all powerful President. The only remedy will be to take arms against the State. This is equally true in the face of the sad decline of the confidence in the perceived independence of the judicial process and undermining of the rule of law by an autocratic political hierarchy, rising levels of intolerance, ultra-nationalism  and an accompanying impunity crisis. No citizen will be secure in his/her rights, and no safety valves will be in place should popular discontent begin to build, making all those concerned with the country’s stability and prosperity very worried indeed.

Rule of law has its own strength for protecting human right, resolving dispute and establishing a peaceful society. It helps people to feel that there is always an invisible friendly hand who will act as a shield against the inequalities they face in their daily life. But its establishment is very much dependant on the sovereign authority of the state. If they fail to make the law equal to everyone, and  make Justice also to be seen to be done”, deprived citizen will then feel that law of their state is a tyranny for them. A government should enforce those laws which will go with the public interest, not for authorities’ own illegal purpose, not against the public sentiment. Because they have to know that law has a wide array of implications in every layer of the society.

Therefore, rule of law will protect the society from any kind of crime, anarchy, inequality and it will facilitate everyone to get their proper judgment. The authority of the state has the power to create a new constitution, a new law. But that doesn’t mean that they can do as they wish. All are equal in law and should have equal access to seek justice. Everyone has to be stood in front of law if any unlawful thing happens. So not only the public but also the government, the sovereign authority must have to obey the law and have to make the proper use of law to protect the civilization from any hazards. In this regard, public activists and legal activists/ fraternity should also engage in reflection, self-introspection and act together to avoid the laudable field of law and sacrosanct territory of justice from being polluted by the State or self-serving politicians. As US author Hunter S. Thompson said, “We cannot expect people to have respect for law and order until we teach respect to those we have entrusted to enforce those laws.” 

“What is law? Is it what is on the books, or what is actually enacted and obeyed in a society? Or is law what must be enacted and obeyed, whether or not it is on the books, if things are to go right?” ― Bernhard Schlink, The Reader