22 June, 2021

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The Supreme Court Should Resign Before The Executive Destroys The Judiciary

By Bijo Francis

 

Bijo Francis

The Supreme Court should resign before the executive destroys the judiciary as a separate branch of governance through the persecution of the Chief Justice

The political attack on the Chief Justice, which is in retaliation to some independent judgements given by the Supreme Court, is quite clearly an attempt to stop the Supreme Court judges doing what they are mandated to do. It is not just an attack on one person; it is an attack on the entire Supreme Court and, in fact, on the entire judiciary, on the very notions of the independence of the judiciary and the separation of powers. To suppress the independence of the judiciary and the separation of powers is to undo the judicial role and to reduce the judges to the same status as other government servants. Under these circumstances the only way to assert their unique mandate as members of the judiciary who belong to a separate and independent branch of the government is to let the government know that they will all resign unless the government immediately stops the persecution of the Chief Justice by way of the impeachment attempt.

Rarely in history does an institution like the judiciary face the option to be or not to be.

If the Supreme Court judges remain in office despite their mandate being fundamentally challenged and reduced it would mean that they would have opted not ‘to be’. Their character, their mandate and their position would be fundamentally altered despite them retaining their jobs.

However, if they let the government know that if this persecution of the Chief Justice by of the impeachment attempt does not stop forthwith they will resign, then it is taking the option ‘to be’.

The people will clearly get the message about the proportion of the threat that the judiciary is faced with. That it is the will of the judges to retain their position of independence as members of a separate branch of governance rather than to cow down to the obstinate will of the executive.

If the people see the will of the Supreme Court expressed so clearly they will rally round their Supreme Court, clearly understanding that it is their right for justice dispensed by independent judges that is at stake. The people will not let the judiciary sink if the judges themselves are willing to fight for the right to preserve their independence. If the people do not see that will expressed firmly, they will feel discouraged and let down.

The cynics may argue that if the Supreme Court resigns the executive will replace them with others. In this, as always, the cynics fail to see the movement of history. Whenever judges have expressed their firm will to defend and to stand by the norms and standards of their profession and to defend the independence of the judiciary at the risk of losing their own jobs, nowhere have the judges been let down by the people.

In the history of Sri Lanka in recent decades it is some judges who have betrayed the people, not the people who have betrayed the judges.

For example, in 1972, by way of a new constitution, judicial review was removed and the supremacy of parliament replaced the supremacy of the law. If the Supreme Court had then challenged the coalition government that pursued that course the government would not have been in a position to so seriously damage the independence of the judiciary and the rule of law. Similarly, despite the four/fifths majority of the UNP government, if the judiciary had stood up against the obnoxious provisions of this constitution, then the power of the executive presidency could have been subdued at that point itself. Even later, when the 18th Amendment to the Constitution was proposed, if the judiciary had stood its ground and opposed the suppression of the 17th Amendment and also the extension of the powers of the president contrary to the well known traditions of constitutionalism throughout the world, the people would not be facing the monstrous attack on their rights by the power that is exercised without restraint.

Perhaps at this final moment the Supreme Court can undo many of its own mistakes in the past and help the people to reassert their sovereignty against tyranny.

It is on the sovereignty of the people alone that the power and the independence of the judiciary rest. Therefore there is the obligation of the judiciary to defend that sovereignty at whatever cost to themselves. If the prosecution against the Chief Justice succeeds, it is the sovereignty of the people that will suffer a serious setback.

At this crucial moment the judiciary should not cow down to tyranny. They should, by taking a risk themselves, provide the opportunity for the people to intervene decisively in protecting democracy.

*Bijo Francis,Interim Executive Director, Asian Human Rights Commission

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Latest comments

  • 0
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    If they all resign, rajapakse will pack it with generals and his relatives.

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      Indeed what a silly suggestion that the judges of the SC resign!

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    If the SC resigns Rajapakse will be the happiest person and Gota will appoint all his cooks in Army Uniform as SC judges.You cannot expect the people to rally round the Supreme Court hence Rajapaksa is playing the patriotic card to save the country.

  • 0
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    Yes that would be playing into the hands of the junta. Better to remain and fight to the last. The world is watching.

  • 0
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    I too believe as the writer said if supreme court judges resign the masses will look in to this problem in a different angel.

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      In SL masses open their eyes ONLY , if they are directly effected , if not every one pretends nothing is happening and carry on their day to day activities , here are few examples

      1) Who cared about introduction of 18 Amendment?
      2) Who cared about conviction and subsequent imprisonment of General SF ?
      3) Who cared about when bevy of opposition MPS crossed the floor?
      4) Who cared about introduction of appropriation bill ?
      5) Who cared about selling/leasing of prime lands?
      6)who cares about impeachment process of CJ

      On the contrary

      1) FTZ workers fought back for their own EPF/ETF
      2) Fishermen fought back for their fuel ration
      3) students/lectures fought back for their rights/demands
      4) Lawyers fought t back when one of their kind was attacked
      5) Doctors fought back when one of their colleagues was attacked
      6) Cricket fans fought back when there were not enough tickets available

      SL is truly a remarkable country.

      • 0
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        Too true Srilal…very good. This is what is so wrong with all of us.

  • 0
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    Idiotic suggestion done without knowing the Sri Lankan situation! Do not know whether the writer is in the pay role of the GOSL!

    • 0
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      As the track-record of the Regime is known internationally, and with
      the chances missed earlier in this direction as pointed out by the Writer, what guarantee is there that the masses will support or read
      the signs of a mass resignation, by Sri Lankan standards?

  • 0
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    Should not rule out the option suggested by the writer. But why be impulsive; let us wait till the Parliament finally acts. The govt. after putting both feet you know where it might want to exit with least damage to itself. So give a sporting chance.

  • 0
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    It is a Soverign Right of the People to elect an MP of their choice. Once he is elected by one Political Party he can not cross over to another to be in Parliament. This is very clearly stated in the Sri Lankan Constitution although the Scum Bag former CJ Sarath N Silva interpreted to his advantage to allow MR to have a 2/3 rd power base in Parliament after rescuing MR from the Tsunami Fraud. Now what the Citizens of this country has to undo all what the Judiciary has committed wrong under the Former CJ Sarath N Silva is to file action in the SC to implement the provision stated in the Constitution preventing any MP to cross over. Automatically all those UNPers who crossed over will be unseated and a balance of power will return to the Legislature that will prevent further errosion of Democracy. Next when the powers of the Executive is reduced in the Legislature, the Hambanthota Tsunami Scam should be reopened. Automatically MR will have to take his due place at the State Guest House. Unfortunately the Welikada massacre is a little too premature and should have waited for a little while more.

    • 0
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      Well said viva Sri Lanka?
      Where else in the world would an army allow uneducated uncultured rascals to jail their top general? India, Pakitan ?
      where are you generals who can remove these greedy vermin?

  • 0
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    GAMINI,
    BRAVO!!!!WELL SAID
    “MR” IS GOING ON A ROLLER COASTER DRIVE WITH THE “SCUM” WHO CROSSED OVER,
    THANKS TO THE RULING OF THE FORMER “CHIEF OF INJUSTICE”.
    WE ARE ALL IN THIS BLOODY MESS DUE TO HIS FAULTY AND BIASED JUDGEMENTS.
    HAVING DONE ALL THIS, HE WAS UNTIL LATELY PREACHING BUDDHISM ON TNL.
    HOPING TO ATTAIN NIRVANA,

  • 0
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    WELIKADA MASSACRE WAS AGAIN A “MASTER PLAN OF THE RAJAPAKSES” TO
    ELIMINATE SOME OF THE WORST CHAPS OF THE UNDERWORLD, WHO WERE USED BY THEM, SO THAT THEY WOULD BE SILENCED. THERE ARE STILL SOME ON THE RUN.
    SO WHO KNOWS WHAT WILL HAPPEN NEXT!!!!

  • 0
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    Hello the Indian…Bijo Francis, could you kindly mind your own business closer to India.
    You guys at AHRC just sing for your supper.

    Bijo try your thinking on India.

    Goda Perakadoruwa…. Bijo Frtancis is in [Edited out]

  • 0
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    MARA is very good at duping the masses. Holding infants, caressing children’s heads, giving kiribath, lunches , danselas in the president’s house and other places, opening some crazy project(unvailing tombtones) every week,visiting and giving dana and gifts to Pansalas, giving laptops, cars to reporters, bribing, giving land to both for and against the govt.communities and playing kotiya card etc. I think uniting every trade union,from professionals to peasants,opposition parties, women’s groups,all clergy, the diaspora community and the international rights groups should be the solution. Supreme court is the last foundation left in our democazy and MARA is fighting very hard to break it. Therefore everybody including SUPREME COURT SHOULD STAY PUT AND FIGHT WITHOUT RESIGNING. Meanwhile I herd the PSC is constantly blocking and imposing new sanctions against CJ to get a fair trial. Therefore People, academics and the opposition should fight for CJ to get a fair, transparent and impartial trial. People and representatives should be given to witness the trial procedures and should telecast in the TV similar to USA.

  • 0
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    Jayantha, exactly. We all should fight for that purpose.

  • 0
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    MR is not worried about people rising against him as the majority of our citizens are timid, as seen during the long years of the war with LTTE, when the youth in the South (including JVP) were reluctant to join the army, and even after joining the large number of deserters- 50 thousand out of 200 thousand (1 in 4).
    If not for India who wanted to eliminate VP & LTTE, there would have been no victory in hte war.

  • 0
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    I have a doubt about the intentions of the writer. May be he miscalculated or imposterd. If the SC resigns MARA will definitely appoint his servants and serpents to the vacancies and the idiotic people in this country would be happy ever as before because they don’t know about head or tail about the burning issues in the country and would carry on like beggars on the streets! Then what? The resigned, rather than fight for the cause, would have to fight for their job as well! This is ridiculous! As srilal has already said the whole legislature must galvanize themselves for a massive counter attack on the government. They have the most logically arguing and cunning brains in the country. They can make the cases and break the cases, make the law and bend the law! This is the time you all have to challenge the stupid politicians in this country. Even the constitutions in the countries of the world are heavily contributed to by the legal luminaries when they are written. So find out all the lines openings and avenues of attack against the regime. They have the world’s most corrupt criminal conduct records and behavior. The laws they have violated are infinite! So exploit this vulnerability! Attack the regime! Challenge the regime! Send it to the prison where the inmates would perform the final rights on them!

  • 0
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    If the supreme court judges resign,Namal will become the chief justice.Why do you think he was given 98 out of 100 marks. To show he is the best no.’Dr’.Mervyn Silva will become the secretary of the Judicial Service Commission.Why do you think he was bestowed a doctorate for if it is just to keep in cold storage.Mohan Peiris will be appointed a supreme court judge to work under Namal and do all the legal work as per the Rajapakshe’s instructions,because they don’t know two hoots about the law and need him as their workhorse while Namal gets the the credit.

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