Dr Laksiri Fernando
As reported by the Colombo Telegraph on 21 December
2012, the Central Committee of the Communist Party of Sri Lanka has decided
almost unanimously not to be involved in any manner in the impeachment effort
of the government against the Chief Justice. As the
members have correctly pointed out “it is important to see the real reasons
behind the impeachment.” They have identified that “while the immediate reason
was the judgement of the Supreme Court on the Divineguma Bill, the long term
aim is to have a judiciary that is subservient to the Mahinda
Rajapaksa regime,” as reported.
It is not exactly clear whether they in fact have
officially used the term ‘Rajapaksa
regime.’ If they have, it would be difficult for them logically to affiliate
with such a personalised regime in the future. Even if they mean merely the
‘Executive,’ it is sufficient at this juncture to remind the left affiliated
sections of the UPFA, including individuals, that there is something
fundamentally wrong with the impeachment motion by the government contravening
all the democratic norms of justice, constitutionality and rule of law in the
country. Therefore, this decision of the CP should be hailed by all sections of
the democratic forces in Sri Lanka irrespective of party or ethnic affiliation.
This should be an eye opener for not only the other left parties in the UPFA
but also for all democratic sections of the Sri Lanka Freedom Party (SLFP) who
admire at least the moderate and democratic policies of its founder, SWRD
Bandaranaike.
It was at the last Party Congress that the Communist
Party made a self-criticism and announced that the decision of their
representatives in Parliament to support the 18th
Amendment, although hesitantly, was a mistake. We should be
proud to have such parties or politicians in our midst that could frankly admit
their mistakes and make necessary policy changes not to repeat such mistakes in
the future. Although my political affiliations during the young days were with
Trotskyism (as some commenters like to point out repeatedly!), I always had a
soft corner for the Communist Party as it particularly happen to take
progressive positions on the national and other democracy questions in Sri
Lanka. But today, these or other narrow ideological debates or differences are
completely meaningless. I am no longer young or this is not 1960s or early
1970s!
The central choices that the country has to make today
are between democracy and dictatorship; one or the other. It is in that context
the defence of the independence of the judiciary from the Executive is of
paramount importance. Under normal circumstances there shouldn’t be a conflict
between the Legislature and the Judiciary, if the Legislature is not
manipulated by the Executive. Both should work in harmony and with
understanding, particularly in the case of interpreting the constitution and
other matters of judicial review of parliamentary Bills. The Speaker has a
major role to play in maintaining this harmony. In a healthy parliamentary
democracy, the Speaker is supposed to be independent and a moderate father
figure. But today, more than in the past, the Speaker appears to be another
dictator, perhaps because he is the brother of the President. In the case of
Britain, the highest judiciary has also been the second chamber of the
Parliament until the Supreme Court was created recently in 2009.
The relationship between the Judiciary and the
Executive by definition is different. There are certain differentiations in the
separation of powers between the three branches, many people appear to neglect.
It is not one and the same thing. The Judiciary should always be cautious and
should guard its independence jealously from the Executive. Otherwise, all
rights and liberties of the citizens will be trampled by the Executive. If you
show a leniency, the culprits would jump on the occasion and stifle the
independence. This has happened in the past and it should be prevented in the
future. There is no business for the executive to interfere in the matters of
the judiciary. There is no need to work in coordination with the Executive
although that is what advocated by the present President of Sri Lanka.
There are some rich but often tragic experiences that
come from the past of the left movements in other countries. The most
instructive might be the experience of Germany prior to the advent of Fascism.
The Weimar constitution of 1919 appeared to be one of the most democratic
constitutions of that time as Dr NM Perera pointed out in
his PhD thesis. But one major weakness of the system was its rather supine
judiciary. It lacked institutional independence. When Hitler’s dictatorship was
on the rampage, with manipulated public opinion and vote, the judiciary
obviously failed to protect the citizens. That is one reason why Martin
Niemoller had to make a desperate appeal to the citizens to
fight against the Gestapo when they come after anyone whether a Jew, a
Communists or a Socialist. Otherwise they would come after everyone as he
implied.
There was little or no understanding among the
communists or the socialists about the importance of protecting democratic
institutions and particularly the independence of the judiciary during those
days. Some would have said: ‘the systems are collapsing, so what?’ Equally
tragic was the thin liberal opinion among the intellectuals, the academia and
legal professions in Germany. Luckily, Sri Lanka is better placed today, the
legal professionals and even the judges taking a firm and rational stand on the
matter.
The Communist Party decision to disassociate
themselves from the impeachment effort is very welcome that could be an eye
opener for the left and other parties in the UPFA coalition, but perhaps it is
not sufficient. They should actively oppose it. There is a need to have a
broader discussion and a discourse on the subject as the Socialist Study Circle
has already initiated. They could also invite the broadest possible sections to
participate in these discussions including obviously the opposition (UNP and
JVP etc.) and liberal sections of the old SLFP.
http://www.colombotelegraph.com/index.php/left-parties-should-follow-the-cp-decision-on-impeachment/
