Role of the Judiciary in upholding democracy: Lessons from Sri Lanka

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Following is the address delivered by K. Kanag-Isvaran, President’s Counsel, at the inauguration ceremony of the Asia Pacific Master’s Degree Programme on Human Rights and Democratisation, University of Colombo 23 January

The role of an independent judiciary is therefore a central component of any democracy, and is crucial for Rule of Law and human rights I am honoured to have been invited to share with you my thoughts on the role of the Judiciary in upholding democracy, and the lessons you can learn from the country’s experience on the subject. Being participants in the Asia Pacific Master’s Degree Programme on Human Rights and Democratisation 2014/2015, of the University of Colombo, you are at the commencement of a truly invigorating journey.

I invite you to treat it not as an end in itself – to embellish your CV, perhaps, but as a means to energise, and take forward the values of democracy and human rights, for surely your future and the country’s future would to warrant it. The word ‘Democracy’ has several shades of meaning. It is one of the most used terms of the political vocabulary. Recall that the framers of our first Republican Constitution of 1972 sold it as a ‘Socialist Democracy’. The second Republican Constitution of 1978, styles itself ‘The Democratic Socialist Republic of Sri Lanka’! I have not the time to regale you with the difference between ‘Socialist Democracy’ and ‘Democratic Socialism’! Suffice it to say that both the Constitutions claimed to be Democratic. What’s the magic in the word ‘Democracy’? So what is the magic in the word ‘Democracy’? Democracy is a vital concept. Through its trans-cultural dimension, it touches the very fundamentals of the life of human beings in society. Though it has given rise to much written comment and reflection, there is no agreement as to its precise definition. One can, therefore, only talk about the principles of democracy. Democracy is a universally recognised ideal as well as a goal, based on common values shared by peoples throughout the world community irrespective of cultural, political, social and economic differences. It is a basic right of citizenship to be exercised under conditions of freedom, equality, transparency and responsibility, with due respect for the plurality of views and in the interest of the polity. As an ideal, democracy aims essentially to preserve and promote the dignity and fundamental rights of the individual, and among others to achieve social justice and to create a climate that is favourable for peace. Human rights, which you are going to master in the coming academic year, is also one of the inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being, regardless of their nation, location, language, religion, ethnic origin or any other status, e.g., ‘boat people’. Human rights require empathy and the rule of law. Human rights cannot be taken away except as a result of due process based on specific circumstances and require freedom from unlawful imprisonment, torture and execution. Democracy, therefore, provides the natural environment for the protection and effective realisation of human rights. Realisation and enforcement However, the recognition, acceptance and enthronement of the basic principles of democracy and of human rights in a country’s constitution by itself are meaningless, unless they are enforceable at law in the hands of an independent Judiciary. It is, therefore, imperative that one must move from a mere recognition of the basic principles of democracy and human rights to its realisation and enforcement. Historical experience reveals that democracy cannot be attained without a system of government which divides power among the co-equal branches of power – the Executive, the Legislature and the Judiciary. In such a system of governance, which recognises the doctrine of separation of powers, of which there are many varieties, the role of the Judiciary is paramount. It is the judiciary which channels power related conflicts through a legal process which uses agreed legal reasoning to interpret and apply pre-existing law. It is the judiciary which is in the forefront of the rule of law, which is fundamental to democracy. This must first be achieved. Under the First Republican Constitution of 1972 all three powers of the government – the Executive, the Legislature and the Judiciary – were vested in the National State Assembly, the Supreme instrument of state power. Article 5 of the First Republican Constitution provided as follows, ‘The National State Assembly is the supreme instrument of State power of the Republic. The National State Assembly exercises— a) the legislative power of the People; b) the executive power of the People, including the defence of Sri Lanka, through the President and the Cabinet of Ministers; and c) the judicial power of the People through courts and other institutions created by law except in the case of matters relating to its powers and privileges, wherein the judicial power of the People may be exercised directly by the National State Assembly according to law.’ No separation of powers. The Constitution of 1978 whilst preserving the republican character, recognised the theory of separation of powers and Article 4, mandated that the legislative function should be exercised by the Legislature, executive function by the Executive, and judicial function only by the Courts. Article 4 of the 1978 Constitution reads as follows, ‘The Sovereignty of the People shall be exercised and enjoyed in the following manner:- a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum; b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People; c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members wherein the judicial power of the People may be exercised directly by Parliament according to law;’ In this we pass the test of democracy. Judicial independence and impartiality It is also vitally important in a democracy that the Judiciary as a whole be impartial and independent to be able to realise the basic principles of democracy and to be the arbiter in power related conflicts between the state and the citizen. Role of an independent judiciary is therefore a central component of any democracy, and is crucial for Rule of Law and human rights. Judicial independence is composed of two foundations. [Barak (A) The Judge in a Democracy] Firstly, every judge should be free to decide the matters before him without any improper influences, inducements, or pressures, direct or indirect, from any quarter or for any reason, and, secondly, that the Judiciary is independent of the Executive, and the Legislature, and has jurisdiction, directly, or by way of review, over all issues of a judicial nature. These two foundations are cumulative. Neither is sufficient by itself. Only together do the two guarantee the independence of the judiciary. These two foundations are the independence of the individual judge and the independence of the judicial branch. Personal independence of a judge is a constitutional principle. It means that the judge is subject to no authority other than the law. Institutional independence is also a crucial condition, because judge’s personal independence is incomplete unless it is accompanied by the institutional independence of the Judicial branch, designed to ensure that the Judicial branch can fulfil its role in protecting the constitution and its values. Personal independence and institutional independence are protective walls which prevents the Legislature and Executive branches from influencing the way judges realise their role as protectors of democracy and its core values. You break these protective walls and the checks and balances mandated by the doctrine of separation of powers, you will have anarchy and the demise of the Rule of Law. Impeachment of 43rd Chief Justice In Sri Lanka, the impeachment motion to remove the 43rd Chief Justice brought to the fore and underscored the importance of the role of the Judiciary in upholding democracy. This sordid saga posed a severe threat to the continuity of democratic values and democracy itself in the country. The 17th Amendment to the Constitution, which was introduced in the year 2001 establishing the independent institutions to conserve, secure and protect fundamental democratic values, was felled with one murderous swoop by the 18th Amendment to the Constitution in the year 2010 and reverted the country to the dark ages. I have not the time, in a 10-minute presentation to go into the depths of this dark page of our history, or analyse its impact on the role of the Judiciary, but it is a lesson to be learnt and remembered if democratisation is to continue and we wish to ensure that the judges are given the freedom to be personally and institutionally independent to protect and safeguard democracy in Sri Lanka. However, all appears not to be lost. Just a few days ago the sanitising warmth of the early breezes of democracy and the rule of law appears to have been permitted to blow, flow and permeate into the body politic. Making you feel a little serendipitous! It is perhaps a harbinger to the full realisation of the principles of democracy and of human rights and of a truly independent Judiciary. I wish this Programme of the University of Colombo and the students of the Master’s Degree every success in your endeavours. Thank you.