Are punishing the corrupt and protecting the independence of the judiciary contradictory?

This post is for a crucial conversation that will determine the survival of democracy in Sri Lanka.

The rule of law in any civilized society rests on two main principles. One of them is that fraud and corruption should be punished regardless of their status before the law. The other foundation is that the judicial system that punishes and dispenses justice should be completely independent, free from the influence of the executive or political authorities.

Today, what is being discussed again in our country is the old but dangerous ideology of judicial independence and executive interference.

Especially when the political authorities are tempted to change the tenure or retirement age of judges, especially by putting forward popular topics such as stopping the delay in cases or punishing the corrupt, we must question them very rationally.

Judicial independence is not a gift from politicians.

Looking at the history of our country, from the abolition of the judicial posts by the 1978 constitution to the mob protests in front of the judges' houses in 1983 to the political impeachment of the Chief Justices, the same thing has happened in many cases. That is, attempts to bring the judiciary under the control of the executive under the "legal cover".

Passing a bill or constitutional amendment may be legal simply because there is a 2/3 majority in Parliament. But not everything that is legal is democratic or fair.

Even if a measure such as suddenly extending the retirement age targeting current judges is legally passed today, it will undermine the public's trust in the judiciary.

The suspicion that "is this a benefit given to the judiciary by the government?" cannot be prevented.

The stalling of promotions of capable, senior judges in the lower courts could demoralize the entire judicial system.

This would set a precedent for any future government to change the tenure of judges as it sees fit.

What are the real solutions to stop the backlog of cases and punish the corrupt? Punishing the corrupt and reducing the backlog of cases is certainly necessary. But it does not require hasty decisions that undermine the independence of the judiciary. There are plenty of progressive alternatives for that.

This includes changing the law to apply only to future appointments (Prospective Application). If the retirement age is increased, it should apply only to judges newly appointed after the date of passage of the Act. Then there is no accusation of political favoritism.

The other option is to provide special/temporary judge appointments (Ad-hoc Judges). Retired veteran judges can be re-employed on a fixed-term contract basis for a specific short period of time to clear the backlog of cases.

Infrastructure and digitalization are another option. Equipping the judicial system with modern technology, increasing the number of judges in lower courts and making case management systems efficient can be done accordingly.

What should we protect? The fight against corruption and the independence of the judiciary are not two different things, but two sides of the same coin. In a country without an independent judiciary, the corrupt will never be truly punished. This is because a judiciary that is subject to political authority today will also acquit and release the corrupt who come to power tomorrow.

Therefore, to protect the rule of law,

the process of punishing the corrupt must be carried out scientifically and impartially. Also, all forms of executive interference that undermine the independence of the judiciary and the spirit of the Constitution must stop immediately.

As citizens, we should stand up for an independent judiciary and the rule of law, not for individuals.

It is no secret that among those who oppose extending the retirement age of judges, there are also those who are trying to prevent the punishment of the corrupt. If citizens of a country act to vilify such groups and give the executive or legislature a license to undermine the independence of the judiciary, it will be a repeat of the era of JR Jayewardene and R Premadasa, not a new era.

I personally still believe that this attempt by the National People's Power government to extend the retirement age of judges will increase the possibility of an executive or legislative decision that will unduly affect judicial independence.

If it does not happen, it is certain that the difference between the JR Jayewardene, R Premadasa era and the Anura Kumara era will become thinner.

Edward Perera ✍️