The judicial crisis regarding Chief Justice Sarath N. Silva is a question that could affect the politics of the country.
An independent judiciary is essential for a democratic political system. There was a time when the executive, the legislative and the judicial powers were concentrated on the same person or the same institution. However, in modern democracies, at a time when attention is paid to the sovereignty of the people, the separation of those three powers is considered essential.
In a democratic political system, the legislature makes laws and the executive, implements them. The judiciary is entrusted with the task of exercising vigilance over the activities of the legislature and the executive.
If the judiciary becomes a slave of the government, then the separation of powers between the executive and the judiciary, which is an essential condition in a democratic system, comes to an end, tolling the death knell of democracy in the country.
A fundamental obligation of the country is not to allow any legislation that deprives or limits people of their sovereignty, and also to protect the fundamental rights of the people.
To put it more specifically, it is the responsibility of the Supreme Court not to allow the enactment of laws that would extend the period of office of a legislature or permit it to establish its power in such a way as to curtail or distort the sovereignty of the people, not to allow a bill that would permit the executive to get funds for more than an year, not to allow any enactment of laws that would give special advantages to any ethnic or religious community or place any disabilities in them, and not to allow enactment of any laws that would harm the fundamental rights of the people.
At no time should the Supreme Court be a partner in a programme put forward by an executive that would go against those principles. If the judiciary knowingly becomes a party to such a programme, that might be the lowest level to which a judiciary can fall.
If the Constitution of 1978 was the creation of an executive presidency, the best thing that happened from it was the creation of the provision for fundamental rights. Fundamental Rights existed in the 1972 Republican Constitution, but it was the 1978 Constitution that gave it teeth by making it justiciable. There were several judgments given by the Supreme Court which greatly displeased the executive even when the UNP had a five-sixth majority in Parliament.
Even during the period of Mr. Premadasa who is considered to have been an extremely powerful ruler, there were a number of judgments which embarrassed the government. Although the courts have been acting in such way as to broaden the framework of the fundamental rights, disregarding the adverse influence of the executive.
The Supreme Court should not regard the fundamental rights cases as creating unnecessary problem for the executive and which narrows powers of the executive.
Otherwise without finding an early solution to the crisis, it will be impossible to achieve any reforms (including the building of democratic reforms and finding a peaceful solution to the ethnic problem).
If an institution like the Supreme Court functions as a slave of the executive rather than as an institution that takes independent decisions, it will not be possible to do anything that does not accord with the wishes of the executive.
Whatever wrongs it may do, it will not be challenged in a Court of Law. However, if it were otherwise the executive will lose that protection, and the institution will again come to a position of independence and there will be greater space for democracy in the country.