15 October 2012

Sorting out Executive-Judicial tensions

There is the executive.  Then the legislative. And there is the judiciary.  ‘Separation of powers’ refers to lines demarcating territory and jurisdiction.  These are certainly not hard lines, but nevertheless the very existence of boundary makes for checks and balances.  When the lines are soft and pliable, when they are porous, it means that anarchy of the worst kind is around the corner.  Thankfully we are nowhere close to that.  There are tensions, yes, and there always have been, not just in Sri Lanka but all over the world.  When tensions are not sorted out through established procedures, democracy inevitably suffers. 

A ‘situation’ has arisen with respect to this ‘territoriality’.  The Judicial Services Commission (JSC) perturbed by allegations that the Chief Justice (CJ) had been ‘summoned’ by the President, issued a statement demanding that the executive keep its hands off the judiciary.  The Secretary of the JSC, who authored that demand, was later beaten up by unidentified assailants.  The response from Government spokespersons have ranged from condemnation to trivializing. 

It has been pointed out (see ‘This is my nation’, September 30, 2012) that ‘if there was a concerted effort to undermine the independence of the judiciary, this would not be the first occasion and more pertinently, this is a government that has the least need to do so’. 

It is not common for the executive to be peeved by the judiciary and vice versa.  J.R. Jayewardene’s hand-picked CJ, Neville Samarakoon, upon appointment steered clear of executive reach, prompting harassment from JR.  Samarakoon was brought in from nowhere in 1978, when the 2nd Republican Constitution came into effect.  JR brought down the number of Supreme Court judges from 19 to 7, effective demoting 12 of them to the Court of Appeal.  At the time, he let them retain the ‘Justice’ title and dismissed demotion-complaint by saying it was part of the new constitution.  Seven of these twelve were in a ‘pool’ of judges.  When the executive brushed aside a salary hike request, Samarakoon responded by detailing the President’s salary while addressing a gathering at the Raja Sinnathurai Educations Institute at Mile Post Avenue, Colombo 3.  JR retorted that the CJ was out of order.  When JR was sworn in for his second term, the CJ not only arrived late, but looked askance during the ceremony.  After Samarakoon retired, JR appointed Parinda Ranasinghe ahead of the more senior and reputedly ‘harder’ Justice Mark Fernando.

Sarath N Silva, who was similarly hand-picked by Chandrika Kumaratunga, was certainly not a yes-man.  His determinations certainly helped Mahinda Rajapaksa win the Presidential Election, even though they may not have been designed to facilitate this outcome.  Silva was not just independent to a fault, he even transgressed boundaries, venturing on several occasions into executive territory. 

There are two points that need to be made.  First, that even though the President does the appointing, once appointed, the CJ, on account of position-stature and probably acquired standing warranting appointment in the first place, comes into his/her own.  It is not impossible to remove a CJ constitutionally, but quite about the legality of such an eventuality, good faith needs to be established and obtain general public approval.  The latter is easier said than done.  Impeaching a CJ is out of order for many reasons and it is heartening that Minister Nimal Siripala Silva has effectively squashed such rumors. 

Secondly, Chief Justices show a pattern of being more assertive and less concerned about hurting executive sentiments when the relevant President is at term-end.  Sarath N Silva’s ruling on when Kumaratunga ends her term came late in the day.  Similarly, he started chewing on executive territory only when there appeared to be a possibility of Rajapaksa being defeated by Sarath Fonseka.  The current tension may be traced to similar perceptions.

These tensions are therefore not abnormal or unprecedented.  A sense of responsibility, especially with respect to the need to separate powers, by all parties generally helps iron out issues which also tend to be subject to media-inflation.  Harassment is possible by both parties but is best avoided.
One thing is clear.  Problems between the Executive and Judicial arms of the state should not be resolved by Choppe Aiya.  That would spell doom for both spheres and the general public too. 
 [First published in 'The Nation', October 14, 2012]