By 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