The Preamble to the 1978 Constitution sets out the Mandate given by the Sovereign People to assure to all peoples FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and THE INDEPENDENCE OF THE JUDICIARY, as the intangible heritage that guarantees the dignity and well being of succeeding generations of the Peoples of Sri Lanka. Significantly “Justice” and “the independence of the Judiciary” are given particular emphasis.
Article 4(c) has brought about a functional separation of Judicial power from Executive and Legislative powers. The domain of Judicial power (except for the limited area specifically assigned to Parliament) has been entrusted solely and exclusively to the Judiciary, to be exercised strictly upholding the solemnity and sanctity of the Rule of Law.
In 1215, after armed rebellion by his barons, King John acceded to the Great Charter of Runnymede, the Magna Carta which indelibly enshrined that “the Rule of Law shall be upheld with utmost commitment, with the words “To no one we will sell, to no one deny or delay right or Justice.”
In 1688, Judicial Independence was at stake. People staged a revolution, ousted King James II from the throne and accepted his successors William and Mary on condition that they shall “guarantee the tenure of the Judges, essential to their true Independence of mind and action.”
In 1701, the People’s goal of ensuring that brutal intimidation of the Judiciary would not occur again in England, was achieved by the enactment of the “Act of Settlement.”
The 7th President of the USA, Andrew Jackson (1829 -1837) stated that “all the rights secured to the Citizens under the Constitution are worth nothing and a mere bubble unless guaranteed to them by an Independent and Virtuous Judiciary.
Bertrand Russel observed that “Government can easily exist without law, but law cannot exist without Government.”
Michael Tamplet stated “We have a problem when the same people who make the law get to decide whether or not they themselves have broken the law.”
When British imperialism was at its peak in 1937, Abrahams C.J., Maartensz J and Soertsz J, Colonial Judges who sat in our Supreme Court in the Bracegirdle case, upheld the Rule of Law in an exemplary manner. They held that the Supreme Court was entitled to inquire whether the conditions necessary for the exercise of the power in the Order-in-Council have been fulfilled, and quashed the order made by the Governor.
Sir Winston Churchill said “Our aim is, not to make our Judges wealthy men or women, but to satisfy their needs to maintain a modest and dignified way of life suited to the gravity, and indeed the majesty of the duties they discharge.
Referring to the Judiciary in the UK recently, Lord Phillips said “The media is not slow to attack the Judiciary, but I am not aware that it has ever accused a judge of political bias, and I am not even aware of the politics of my colleagues in the Court.
Mahatma Gandhi said “There is a higher Court than the Court of Justice and that is the Court of Conscience. It supersedes all the other Courts. Whatever any one may say or interpret, I dare say that “when independence of the Judiciary is lost or endangered, people do not own anything in that country.”
Archibald Cox, US Solicitor General and Special Prosecutor in the Watergate case noted three reasons for Judicial Independence.
1. To guard against abuse of Executive power.In 1983 a nine-judge bench of the Supreme Court headed by Chief Justice Neville Samarakoon held that “Rule of Law is the foundation of the Constitution, and Independence of the Judiciary and fundamental human rights are basic and essential features of the Constitution. There can be no free Society without law administered through an independent Judiciary. The supremacy of the Constitution is protected by the authority of an independent Judiciary to act as the (sole) interpreter of the Constitution.” President Jayawardena who commanded a 5/6th majority in Parliament acted swiftly to impeach Samarakoon C.J., but failed.
2. To halt legislative erosion of fundamental human rights.
3. To provide assurance to the public that judges are impartial and fair in their decision making processes.
The South African Constitution categorically spells out that Judicial authority provides that:
1. Courts are independent and subject only to the Constitution and Law which they shall apply impartially and without fear, favour or prejudice.
2. No person or organs of the State shall interfere with the functioning of the Court.
3. Organs of the State, through Legislative and other measures shall assist in protecting the Court to ensure the independence, impartiality, accessibility and effectiveness of Court.
In 1995, the President issued a Proclamation in an electoral boundary delineation matter. On an application for Judicial Review, the Constitutional Court of South Africa struck down this Presidential Proclamation, as being unconstitutional.
On the same day, President Nelson Mandela appeared in the media and said that he “honestly believed that the Parliament had given the power of proclamation to him”. Since the Constitutional Court found otherwise, he said, he respects the decision of the Court.
There may have been Legal eagles who advocated the enactment of legislation to confer retroactively such power to the President who had suffered 26 years of incarceration for the sake of his country. The humility and Statesmanship displayed by him, clearly demonstrated that, in South Africa even the President is subject to the law.
The golden thread that runs through the fabric of law is “adherence to the Rule of Law.” The cardinal mandatory requirement to uphold the Rule of Law is the independence of the Judiciary and that of the Judges as well. Even the slightest departure from this principle would result in a whirlwind sweeping across the whole gamut of governance, thereby causing inevitable destruction and devastation of all those near and dear to us and dashing to smithereens all human values and liberties.
To safeguard the inalienable Sovereignty of the 20 million Sri Lankans, all stakeholders of a democratic society viz. the Executive, the Legislature, the Judiciary and the Media, are duty bound to safeguard the independence of the Judiciary.
The liberty and guarantees given to the People by the Constitution will remain a mere ornament unless the Judiciary is permitted to perform (and in fact performs) its duties and functions in strict impartiality and without any fear or favour, from whichever quarter it comes.
Crunch time is upon us! - Is servile acquiescence an option ?
Elmore Perera,
Attorney-at-Law
Founder,Citizen’sMovementforGood Governance
Past President, Organisation of Professional Associations