Foundation of Judicial Independence
The U.N.P. Government is playing to form and up to expectations. The wave of victimisation which followed on its installation has now spread to and engulfed the Supreme Court. Seven of its nineteen Judges have been fired for good by the President.
The Daily News has announced the news characteristically. "Twelve Judges to sit in S.C. and Appeal court" is its headline. You have to come to the fifth paragraph of the announcement to know that seven judges are to be dished. And even then the victimised seven are referred to only as "The seven Supreme Court judges who have not so far been re-appointed." We-and they-can await further news with bated breath. The world knows who they are; for they have been carefully named.
The advertisers’ trick in the form of the announcement deserves to be fully exposed. As one of them once explained to this writer: you don’t speak of a half – empty plane; only of a half – full plane. Finance Minister Ronnie de Mel never spoke of taking away the rice ration from seventy lakhs of the population; he spoke of giving the ration to seventy lakhs. You would have thought that he had only just introduced the ration. Clever, isn’t it? In the present case, it is a clever way of trying to hide from the unwary that seven S.C. Judges have been victimised. "Twelve have been appointed," you see.
The new Supreme Court- which is substantially a resuscitation of the Court of Appeal which the Samagi Peramuna Government abolished, is to consist of the Chief Justice and not less than six or more than ten other judges. The present appointments consist of the minimum and are all drawn from the present S.C., though not in order of seniority. They are not the senior seven of the present S.C. There is some leap-frogging. We do not know whether there are surprises in store coming from the unofficial bar. Not likely, perhaps; for the Supreme Court will have very little work for some time.
The situation of scanty work for the new S.C. arises from the fact that it will really be, substantially, a new court of second appeal-a court to which a litigant can appeal from the new Court of Appeal. As at present, there is only one appeal-to the present Supreme Court from the trial court.
The new Court of Appeal to which the first appeals from the trial courts will go, will have a President and not less than six or more than eleven other judges. Only five new appointments, all from the present S.C., have been announced. So we can expect further appointments, which may be from the High Court or the minor judiciary (District Judges and Magistrates) or from the unofficial Bar or other sources. The five so far chosen are not according to the order of seniority in the present S.C. What casualties there will be among the High Court Judges and which fortunates will receive promotion to the Court of Appeal are not yet known. Let us wait and see.
To leap-frog colleagues over the heads of their seniors is to discriminate against the seniors concerned. S.C. Judges are colleagues and are a collegium. The Chief Justice is only primus inter pares (first among equals). As for the victimised seven, not all fall into the category of being the most junior. However, they are all appointees of Mrs. Bandaranaike. Nobody has heard that any of them has ever been brought up before the Judicial Services Disciplinary Board which by Constitution is the exclusive disciplining authority over them. Dismissed by Constitution, they stand cast out by the President in the same way as employers of old cast out employees they disliked. The only difference is that the President is not even their employer. They were employed by the nation-on known terms which the nation has allowed to be broken while the bulk of the nation stands uncomprehending or, as in the case of the once strident Bar Association, as if they had suddenly been struck dumb.
The President is storing up trouble for himself, his Government and his Party. It is his claim-and theirs- that monkeying with the judiciary played a decisive part in bringing down the previous regime. In fact, his government is occupied with the effort to establish his claim. But he is treading the same road-with an apparent sureness which spells moral and political blindness, He should remind himself how Mrs. Gandhi got into trouble in India by leap-frogging a Supreme Court Judge to the post of Chief Justice which had fallen vacant in the normal course and not artificially. Here we have in fact sheer artificiality: the indefensible procedure of first dismissing all the Judges of the Supreme Court (and High Court, which does not arise at this stage) and then appointing some of them, and even then discriminatorily, disregarding seniority-to new judicial posts and just tossing out others altogether to the outer cold; also discriminatorily.
So now it is clear why this Government and the President broke the nation’s undertaking of security of office to the nation’s judges. Manifestly it was done to clear the way for the President to make his own appointments. That was a political act, and the President is proceeding on his political course.
The new courts system starts under a cloud. The blame attaches, first of all and lastly, to President J.R. Jayawardene. Who sows the wind reaps the whirlwind.
President Jayawardene and the U.N.P., having sown the wind in their new Constitution, are now reaping the whirlwind. The consequence of breaking faith with the nation’s judges are already cataclysmic. The principal victim is the Judiciary. The task of rooting the new courts system in the firm soil of unchallenged and automatic public acceptance is going to be long and difficult in the environment of hypocrisy which the U.N.P’s dharmishta society denotes. Stern and sterling Judicial independence-readiy visible and sustained Judicial independence in relation to the Executive, will be required in the face of the grave damage done by inept and unwise legislation and the meddling fingers of the Executive. Justice will not only have to be done- but will also need to be most manifestly done. It is an ill-starred political operation which the Government has carried out.
How sordid and fateful a spectacle have we witnessed in the last few days! The wrong and indefensible, the unprecedented and unwise, mass dismissal of the entire body of members of the Supreme court and High Court in order to enable to President to make his own appointment to the newly created Supreme Court, Appeal court and High court has proved to be a witches’ brew. The pressure –lobbies swung into action, ranging far and wide to reach the Presidential ear. Policies got mixed up with personalities, and principles with both. Principles were the inevitable casualties. The Cabinet got drawn into the fray; and both President and Cabinet stand hurt in the outcome. It has been hard for anyone involved to come unscathed from the imbroglio. One Judge at least of the shamefully dismantled and dispersed Supreme Court has refused from the outset to have anything to do with the witches’ cauldron. He will go into history and into the distinguished succession of judges who have firmly stood on the ground of principle when judicial independence cam e under executive or legislative assault. It is also known now that another judge washed his hands of the whole affair by refusing his announced appointment after the slight of announced non-appointment.
The President and his partisans, his Government and his Party, indeed his whole dharmishta set-up, have in mounting this operation overlooked or deliberately brushed aside the bed-rock fact that security of tenure of office of judges is the fundamental condition of the independence of the judiciary and of judicial independence itself. The personal integrity of judges is only a superstructural factor, decisive though it also be, which the rule of good conduct is intended to safeguard. But to breach or impair security of tenure shakes the very foundation of the judiciary’s independence, reducing the judiciary itself to the level of a government corporation whose chairmen and directors are removable at the will and dictate of politicians in power. That is the consequence and meaning of what the President, the Government and the party in power did in throwing out of office, holus bolus, the whole body of Supreme Court and High Court Judges who held office at the time of the new Constitution. It needs to be emphasised over and over again that they had all taken and held office in terms of the national undertaking of security of tenure subject to good behaviour enshrined in our law and convention and Constitution until this Government broke it. After that gross breach of faith, what value can there be in any new guarantee of the same faithless Government and Parliament?
How can any Judge feel secure any more, whatever be the provisions of the new Constitution? How-especially in the light the fact that it was through this very Constitution that the security of tenure of judges was breached and buried? No wonder there has been hesitation in accepting the new appointments! And the spectacle of mind-changing and reversing at the political top must itself be an unnerving experience. Wanted today and not wanted tomorrow! Not wanted today and again wanted tomorrow! Helpless in the stream of politics unless others came to their rescue. The stigmata f this experience will be scars on the judicial system also.
The president, the Government and their supporting party have cast cloud where no cloud should be at nay time-on the judiciary. They have engaged in acts which smack of the very doings which they are so stridently denouncing in others before the Presidential Commission. All of society and the State system will have to pay for what has been done.
What a start for the new Courts system!