Editorial Board, article 2
In this issue of Article 2 the central theme is judicial independence. Judicial independence is under threat everywhere in Asia. Therefore the selection of the theme is quite timely.
In a very recent order from the Supreme Court of India, the court stated as follows:
For this Court, the life of a policeman or a member of the security forces is no less precious and valuable than any other person. The lives lost in the fight against terrorism and insurgency are indeed the most grievous loss. But to the State it is not open to cite the numbers of policemen and security forces killed to justify custodial death, fake encounter or what this Court called “Administrative liquidation”. It is simply not permitted by the Constitution. And in a situation where the Court finds a person’s rights, specially the right to life under assault by the State or agencies of the State, it must step in and stand with the individual and prohibit the State or its agencies from violating the rights guaranteed under the Constitution. That is the role of this Court and it would perform it under the all circumstances. We thus, find that the third plea raised in the counter affidavit is equally without substance.
Suresh Singh vs Union of India & Another – Writ Petition(Criminal) order dated January 4, 2013
In this issue the threat faced to the independence of the judiciary in Sri Lanka by way of the arbitrary removal of the Chief Justice, Dr. Shirani Bandaranayake, is discussed. An extract from the report on the impeachment of Sri Lanka’s Chief Justice by Sir Geoffrey Robertson on behalf of the Human Rights Committee of the Bar Association of England and Wales gives a succinct exposition of all the factors relating to this removal and why the removal was wrongful.
It is quite relevant to note that this bold attack by the Executive to remove the Chief Justice for the first time in the long history of the Supreme Court of Sri Lanka, the first chief justice of which was appointed in 1802, did not happen by way of an accident.
There was a long process leading up to the gradual undermining of the Supreme Court.
Close examination of the conflict between the Supreme Court and the Executive would show that one of the very important causes (perhaps not the sole cause) of the conflict between the Executive and the Judiciary also lies in the area that the Indian Supreme Court stated, in its judgment on Suresh Singh vs. Union of India, as: ‘administrative liquidation.’
In Sri Lanka, from1971 following a minor insurrection, the government and with the complete support of the opposition at that time, engaged in a ruthless spree of killings of between 5-10,000 persons. The victims were mostly youths who were killed in custody after their arrest. There has never been a proper judicial intervention to inquire into these killings, and the manner of which could be considered as an: ‘administrative liquidation’. From then on there has been a continuous extrajudicial killing often by way of enforced disappearances and the number of such disappearance would easily exceed 50,000. The government appointed commissions and they themselves recorded the complaints of enforced disappearances of around 30,000 persons between 1987 and 1991 mostly in the south. The conflict with the LTTE (Liberation Tigers of Tamil Eelam) has caused large numbers of disappearances in the north and east and all these have not been counted. It was recently reported that about 5,000 complaints were made to the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) and the Sri Lankan government only accounted for 17 out of the 5,000.
What is relevant in the Suresh Singh vs. Union of India case was that these killings, if applied in the Sri Lankan context, are considered to be as a legitimate form of ‘Administrative liquidation’. However, the inability of the Supreme Court of Sri Lanka and the judiciary to challenge these arbitrary killings by Sri Lanka security forces and its willingness to be silent on the issue has undermined the Judiciary more than any other reason. The silence of the courts has created a vast gap between the people and the courts. The courts have failed in proving that it is capable of intervening on this crucial issue by demanding accountability from the government in power.
This was perhaps the reason why the Executive was able to move to the extent of arbitrarily removing the Chief Justice herself. Had the courts maintained their moral authority by way of a proper judicial intervention to require accountability, for example when the government takes the lives of some of its citizens, the
people would not have allowed the Executive to strangulate the Judiciary by way of such an arbitrary removal. The Judiciary, having failed to play its role in the protection of the most precious of all rights: the right to life; has bared its throat to an extent that the Executive is now able to take away its own life.
In Pakistan the judiciary played a great role in bringing to an end a long period of military coups in the country. When the Chief Justice, Iftekhar Choudhry, was removed by the Executive the people intervened and brought the Chief Justice back to his chair. The Supreme Court in turn by way of an historical judgement declared that any arbitrary overthrow of the government as unlawful and that the Judiciary will stand against it. In this way the Judiciary paved the way for the stability of the democratic system. The Supreme Court, too, played a crucial role in the protection of the right to life by taking so motu action on cases of enforced disappearance and extrajudicial killings.
In fact, the role that the Pakistan’s judiciary prior to March 2007 had taken, by way of protecting the constitutional rights of the Pakistani to life, helped in having its judicial independence restored by way of a popular movement after four months of bitter struggle by the lawyer’s movement. However, six years on there are some concerns as to whether the Supreme Court has overstepped its boundaries in some instances. This is discussed in this edition.
In Philippines, the overthrow of the dictatorial Marcos regime in February 1986 by a popular people’s power, known as the EDSA revolution, give rise to the 1987 Philippines Constitution. The Filipino’s experience in the dark years of martial rule made a huge contribution in the impeachment of the former Supreme Court Chief Justice, Renato Corona, over allegations of corruption. The Constitution’s provision on impeachment of high officials has also legitimized the impeachment process of the country’s former highest officials: Joseph Estrada in 2000 and Corona in 2012.
Corona’s linked with former president Gloria Macapagal-Arroyo, who appointed him month before the then newly elected president, Benigno Simeon Aquino III, was to assume office, has tainted his credibility to uphold the integrity and independence of the judiciary. Corona’s predecessor, Reynato Puno, was popularly known for his judicial interventions, by promulgating the writ of amparo and writ of habeas data, during his term. In contrast, Corona’s alleged use of his authority to frustrate or block investigation against former President Macapagal-Arroyo for widespread violation of human rights, notably of extrajudicial killings of human rights and political activists, has aggravate his unpopularity and the lack of support to his defense from the Filipino people.
Moreover, the experience of the Philippines in the impeachment of Corona, and former president Joseph Estrada, who were both accused of corruption, is also discussed in an article of critiquing the Philippines and the Sri Lanka impeachment of chief justice.
In conclusion, the judicial role in the protection of the life and liberty of the people and judicial independence are inseparable. The Judiciary needs to be independent in order to play the role of the protector of the individual. On the other hand the courts need to play that role effectively so as to justify their existence legally and morally.
Thus, when threats to the independence of the judiciary are posed, as in Sri Lanka, the responsibility of the Executive as well as the responsibility of the Judiciary itself should also be examined. The Judiciary that fears to expose itself to risk, by way of defending the rights of the individual, will sadly expose itself to the Executive who would not fear to attack the Judicial independence. It is even more evitable when the Executive knows full well of the great gap that existed between a Judiciary whom the people believe lacked courage in protecting their constitutional rights. Therefore, the lesson to be learnt that comes from the recent Indian case cited above should be considered quite seriously in discussions on the independence of the Judiciary.
By exposing the current events in Asia, we hope that this edition could contribute to the ongoing discourse on constitutionalism and judicial independence, and of the utmost role of the judiciary on the protection of fundamental rights.
Editor’s note: Danilo Reyes would like to thank his colleagues, Marya Zaborowski and John Stewart Sloan, for their assistance in copy-editing. He also wishes to thank Prof. Michael Davis of the Department of Law at the University of Hong Kong, for his insights that contributed to this theme during their discussion.
To his colleagues: Basil Fernando, Baseer Naweed and Prof. Akmal Wasim for their contributions and invaluable insights as shown in the articles that they have written for this edition of article 2.
