The Judiciary is one of the 3 pillars representing the People’s sovereignty. If the other 2 pillars fail the People, the Judiciary is left to fill that lacuna. While the Judiciary must uphold its independence, it has to be biased towards safeguarding the sovereignty of a nation & upholding the fundamental rights of the citizens. By biased, the implication is that any judgment impacting the Nation & its future must always be swayed in the interest of the Nation & its People and no other.
Sri Lanka’s judiciary has weathered many storms.
We have had a CJ removed following due process but the West used the incident as a tool for political advantage, but the same West chose to look the other way when another CJ was removed simply by not allowing him to enter his chambers.
We’ve seen a CJ removed simply for a speech at a school prize-giving in 1984.
We’ve also seen homes of judges pelted with stones also during the 1980s simply because they did not tow the government’s line.
If that was not enough we saw brazen interference by foreign envoys even attempting to intimidate the judges by sitting in court and frantically lobbying during the October 2018 constitutional crisis. It was round about the same time that rumors were afoot of foreign trips as reward for following instructions.
We’ve even heard a MP claiming he has an audio recording of a foreign embassy taking members of the judiciary to a foreign country and then telling them to frame bogus charges against individuals which included the sitting President.
We’ve also heard shocking video tapes taken by another MP of conversations with judges who were pleading for promotions and agreeing to assist with political demands.
We’ve even seen fellow lawyers wash dirty linen of their own fraternity in public https://youtu.be/1rgEDFGQoLE
All this has been an affront on the judiciary and one that the Judiciary top down cannot ignore. As humans, members of the judiciary too have their weaknesses and it is obviously these grey areas that are being tapped or manipulated.
But as a powerful beacon and pillar standing up for the interests of the Nation & its People, the judiciary must showcase its superiority in terms of integrity of office and conduct.
In such a scenario, the Bangalore Principles comes to mind with significant inputs by late Justice Weeramantry.
The Judiciary certainly needs to play a pivotal role in protecting Sri Lanka – Sri Lanka’s sovereignty, territorial integrity, Sri Lanka’s assets & resources and most importantly protecting the Citizens.
That fundamental rights cases take around 75% of Supreme Court time reiterates the value of the 3rdpillar of governance articulated in Article 3 of Sri Lanka’s Constitution with the Supreme Court duty-bound to hear the People and serve the needs of the People.
“In the Republic of Sri Lanka Sovereignty is in the People and inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.
Unfortunately, the Supreme Court’s role in determining if a Bill is inconsistent with the Constitution or if a Bill amending the Constitution requires a referendum can happen ONLY if & when, within a week, citizens petition Supreme Court after a Bill is placed on the Order Paper of Parliament.
So, inspite of Article 3, the People have just one weekto petition Supreme Court against a Bill and in turn the Supreme Court, to help People uphold their sovereignty can only do so after a Bill is placed on the Order Paper of Parliament & after the citizens make use of the 7 day window to challenge the Bill.
Therefore, given this restriction for both Supreme Court & the People, it is crucial that the Supreme Court in its determination take the side of not political parties or individuals but what a Bill could do to the future of the Nation vis a vis national security, sovereignty & territorial integrity.
This is why in the context of determining Bills of National significance & relevance, the Judiciary must be biased and look at what dangers a Bill can result in to the Nation & the People and thereby determine the Constitutionality & whether it requires the People’s mandate via referendum.
The Judiciary must at all times have the wellbeing of the Nation’s sovereignty, territorial integrity & future interests of the Nation & people when making determinations on Bills of National relevance in particular constitutional amendments.
The role of the Judiciary is far more than determining words or clauses on a piece of paper. Their determination holds the key to the future of the Nation and where the Nation is headed. Sri Lanka aspires to develop following a non-aligned policy concentrating on a Sri Lanka First approach at all times.
Shenali D Waduge