Dragging Judiciary through gutter

Last week, much Parliamentary time was taken up by MPs arguing for and against extending the tenure of superior court judges, with both sides casting serious doubts on the credibility of the Judiciary.

Too often in Parliament and its committees, one hears the dictum: “Parliament is supreme.”

Members of Parliament also enjoy privileges. Parliamentary privilege grants them legal rights and immunities to discharge their constitutional functions without interference, intimidation, or legal liability for what they say during Parliamentary proceedings – and some MPs take their role seriously; one was publicly hurt to find that MPs’ salaries matched those of Postal Clerks!

But privilege has a purpose. It protects the work of Parliament. It does not place Parliament or its members above the constitutional order. Separation of powers is not an academic nicety. It exists to prevent one arm of the State encroaching on another.

That concern underpins objections by the legal fraternity to proposals to extend the retirement ages of superior court judges. Whether judges should serve another two years is only part of the dispute. The question is how far the Legislature and Executive can reach into judicial tenure, and whether the proposed change requires the consent of the people at a referendum.

Sri Lanka has been here before, though with many of the roles now in reverse. The Executive and Legislature once combined their powers to remove a sitting Chief Justice. Today, different individuals occupying the same institutions seek to extend judicial tenure. The purpose may be different. The intrusion remains a matter for concern.

The Bar Association of Sri Lanka (BASL) is right to scrutinise the proposed 22nd Amendment to the Constitution and the Judicature (Amendment) Bill. Parliament will consider the proposals. If petitioned, the Supreme Court will decide whether they pass constitutional muster and whether a referendum is required.

But the Bar cannot invoke judicial independence against the Executive and Legislature, and then look away when MPs use Parliamentary privilege to assail judges.

That is what happened during last week’s debate. MPs on both sides ventured beyond the merits of extending judicial tenure. Aspersions were – inadvertently or by design – cast on the Judiciary and the incumbent Chief Justice, raising questions about the standing of the institution itself.

The BASL has had much to say about extending judicial tenure. Its silence when the Judiciary is assailed from inside Parliament is harder to explain.

Parliamentary privilege protects an MP’s right to speak. It does not certify what is said as fact. Nor does it oblige the Bar or the public to accept allegations made under its cover. Privilege should not provide convenient shelter to attack judges who cannot enter the Parliamentary chamber and answer their accusers.

Judges are not beyond criticism. Courts can be scrutinised, judgments dissected and judicial conduct questioned through the means provided by law. Judicial independence does not extinguish accountability.

But there is a difference between scrutinising the Judiciary and dragging it through the political gutter.

The BASL should recognise that distinction. Its responsibility to judicial independence does not change according to whether the pressure comes from the Government, Opposition or elsewhere. Silence in one instance weakens objections in another.

Finally, the true measure of the various actors in this unfolding constitutional debate will emerge only at the end, which brings us back to the dictums.

Parliament — on both sides of the aisle — proclaims its supremacy. The Judiciary claims sanctity as the guardian of the Constitution. The Presidency wields the executive power of the people.

And all of us? Merely sovereign.