JUDICIARY UPHOLDS PEOPLE’S SOVEREIGNTY

Fr. Augustine Fernando (Diocese of Badulla)-Monday, July 1, 2019-Monday, July 1, 2019 

The notion of democracy arose initially among the Greeks. This notion got incorporated also to the Senate and the Roman People (Senatus Populus Que Romanus). SPQR is still symbolically extant even today in Rome. Jus gentium, law of the people, came to be applicable to the Roman citizens and foreigners in Rome. Marcus Tullius Cicero (106-43 BC), lawyer and statesman has said, ‘In a republic this rule ought to be observed: that the majority should not have the predominant power’; ‘More laws, less justice’, ‘Let your desires be ruled by reason’. Consequent to this spirit the notion of justice developed around the Mediterranean with also the intervention of St. Augustine of Hippo (354-430 AD) who questioned “What is a state without justice but a robber-band?” (City of God, Book IV Ch 4). Thus over the centuries began a development towards a people’s involvement in government which came to a climax with the Magna Carta.

There was a time when a despot or a king was a sovereign ruler and judge at the same time. The king took executive and arbitrary decisions on the basis that the king was divinely appointed and therefore above the law. But when the king as executor became unjust the powers immediately close to him rebelled over the curtailment of their liberty to rule over others. It is in such a background that the Magna Carta Libertatum, the Great Charter of Liberties came to be formulated in 1215. This proceeded to gradually develop the foundation of liberty of individuals against the arbitrary authority of autocrats.

Consent of the people came to be a requisite to determine whether kings or consults or magistrates were to be in authority over the people. It was up to the people to establish a kingdom, an aristocracy or a democracy as was done in Rome.

Early in the 17th century, the Jesuit Cardinal Robert Bellarmine (1542-1621) wrote that kings do not rule by divine right but by the consent of the governed as political authority is in the people. This was a radical new idea in the early 17th century though it is a common view today. The thought of Robert Bellarmine caught the attention of Thomas Jefferson who in 1787 incorporated these ideas in the American Constitution of Independence which is the first Constitution to recognize the sovereignty of the people. Constitutions of many countries including Sri Lanka have been influenced by the American Constitution.

THE LEGISLATURE AND THE EXECUTIVE

Today the sovereign powers of the people have come to be vested according to Constitutional provisions in the three branches of the State: the Legislature, the Executive and the Judiciary and they are to serve the sovereign people. Though the very idea of democracy gives the State a firm foundation, without the citizens’ vigilance the modality of the State could suffer deterioration. The tendency for the Legislature and the Executive to arrogate excessive powers remains high as they neglect accountability, the common good and the security of the people. It is also possible for state persons and power to go mad, as instances in Sri Lanka have shown.

The Legislature enacts laws in keeping with the Constitution. The laws are valid for the whole of Sri Lanka and all citizens and others who happen to temporarily reside in Sri Lanka are subjected to those laws. In Sri Lanka too, laws get multiplied, but order and discipline tend to get totally neglected and injustice continues to prevail.

The Legislature could amend the Constitution itself if two thirds of the members vote for it and such amendment is approved by the people. Governments have overlooked this requirement and sometimes undemocratically ignored the people's verdict. Politicians in power often presume that populist support sanctions anything they decide to do. And they descend to the depths of extreme corruption. About a century ago G. K. Chesterton said that “Strength is the great weakness of politicians.”

The Executive presently are the President, Prime Minister and Ministers who are members of the Cabinet. They exercise authority. They are persons of governance individually and collectively responsible. To avoid embarrassment and taking decisions they often pass the buck. They are also often culpably ignorant, that is, they do not know what they should know! Those elected to the Legislature are members of the Legislature and are called Members of Parliament, MPs. They frame the laws and the Executive and state agencies enforce them. But there are instances where they break the laws they enact. Except seven members of the Legislature, none of the elected have declared their assets and liabilities as required by law. That is because they have many things to hide. Those who do not make the required declarations should be debarred from being candidates at any election.

The Legislature and the Executive should not set themselves up as superior to the Judiciary that upholds people’s sovereignty through the supremacy of the Law. The New Constitution should wipe away the ambiguities and contradictions that remain in the current constitution.

THE JUDICIARY

The Judiciary is an indispensable branch of the State upholding the sovereignty of the people through the supreme authority of the Law. The Judiciary is independent of the Legislature and the Executive.

The Judiciary can also judge between the persons and agencies of the State and any individual, group or community. Judging consists in watching over the socio-economic, politico-cultural relationships and equity among the people, individually, intra-community and inter-community relations as well as relations of people with the State and those representing the State. Through the courts of law spread throughout the island, the Judiciary interprets and applies the law to every case that comes before a Court and the Judge pronounces a judgement that all must adhere to. The judge has to rigorously reflect whether a motivation, word or action has been right or wrong. The judiciary must not also let slip from its hand the interpretation of the law and the cause of justice. Judges should not be carried away by sectarian attitudes or populist sentiments like politicians. The Judiciary must bring to the phenomenon of national, inter-community and society’s life order, sobriety, sanity and common sense. Judging is a function of governance and implicates justice and righteousness which is exercised by the Judiciary as the bulwark of democratic rectitude.

The people of our democratic society expect the judges to be learned in the Law and impartial and to pass judgements without fear or favour irrespective of the high authority of political institutions or even of the State, influential, powerful and rich who appear before them. In spite of the accused or the accusing persons having lots of money to spend on leading luminaries of law who could demolish the arguments of the opponent’s lawyer retained at a modest fee, a sagacious and wise judge could still pronounce a just, fair and well-reasoned judgement that cannot be opposed or challenged.

Those who do not agree with a judgement could appeal to a higher judicial authority. Judges too, even while acting without any malice, could make mistakes. The remedy is to appeal, in an orderly and civilized manner, without casting aspersions on anyone. However annoyed one may be with the verdicts given in courts of law, no one can barge into a court, create a disturbance and insult the judges. At the same time, no judge, however highly placed could treat anyone appearing before him in a roughshod and an unbecoming manner. Contemptuous behaviour is not permitted to anyone appearing before the honourable Judges. And judges too are respectful of the human dignity of those who appear before them. Judges should have acquired a judicial temperament. Courtesy, patience, understanding, compassion, courage and humility adorn good judges.

Sadly nonetheless instances of Contempt of Court have occurred in Sri Lanka. Though rare, instances of judges acting arbitrarily have cast a shadow on the impeccably good mirror image the people have of the judges in all parts of the country who are highly respected.

LAWYERS

Lawyers should in all circumstances assist the Judges in administering the law and upholding justice. It is not the lawyer’s function to justify the position of his client whatever the wrong he may have done. Lawyers cannot promote the impression that whatever the wrong or crime committed the ingenious and shrewd lawyer is able to save the wrong-doer or the criminal whatever his felony. Lawyers sometimes strain a gnat and swallow a camel.

A poor thief gets punished, a big thief with the help of a lawyer goes scot-free. Upholding justice is more than defending one’s client or supporting one’s partisan point of view. The social fabric should not be torn apart by the shrewdness of lawyers; intelligent lawyers should act democratically and help build the nation by upholding the principles of social justice. When one's client is obviously guilty, in some cases a way of just reconciliation or a plea for leniency and mercy preceded by a suitable warning may be more in order.