Upholding moral spirit of the Republic | Sunday Observer

Upholding moral spirit of the Republic

7 July, 2019

When a nation is at a moral crossroads – its political managers pushing limits and, the citizenry and their ethical leaders in contention – that third arm of the modern republic, the judiciary, must play its societal role to the full.

In such crisis situations, the judiciary’s task is to mediate between strands of contending discourse, firstly, by offering platforms for reasoned, constructive, authoritative deliberation. Secondly, the judiciary offers constitutionally-informed options for institutional action with guidance for a graduated process of action or resolution, thereby unpacking contentious issues so that various elements of the problem can be directly addressed.

Having slowed down a headlong rush toward some potentially ruinous action through its intervention, having, then, nudged the debate and contest along constitutionally appropriate pathways, the judiciary finally makes its conclusive ruling that is meant to provide for constitutionally authorised institutional and individual action. In mediating thus, the judiciary fulfils a social-historical function: it perpetuates the validity of the Constitution but also adds to the core moral consensus of our Republic, that is, our island political community.

By its interim ruling in the cases of Fundamental Rights in relation to the implementation of the Death Penalty, the Supreme Court on Friday has taken yet another step in its engagement with this hugely contentious moral-legal challenge.

In the previous week, the Court of Appeal, fully aware of the chillingly relentless mechanics of a State-implemented death sentence, asked for assurance by the Prisons authorities that no death sentences would be implemented for at least a week. The Court wanted that time to begin to consider the writ applications submitted before it in opposition to the implementation of the death penalty. And their Lordships clearly did not wish any life to be threatened even as they debated its sanctity.

In obtaining that seven days’ reprieve from possible executions, the Court had begun its mediation in this moral-legal crisis. It had begun slowing the rush down decision-making channels that seemed to have left caution and reasoning by the wayside.

The Supreme Court, on Friday, considered the one of the 13 Fundamental Rights petitions that challenged, on a variety of grounds, the implementation of the Death sentences that had been authorised. The Court, having heard preliminary arguments, issued an interim ruling temporarily staying execution of the Death sentence until October 30.

Equally importantly, the Court fixed the next date of hearing as October 29, providing a lengthy time period free of Court deliberations. The avoidance of the courtroom tug-of-war and its consequent news media dramatization during these intervening months will enable a freer public debate and moral-political negotiation that could help create an atmosphere for a more reasoned, calmer understanding of the issues pertaining to the Death Penalty.

Thus we see, once more, a country’s judiciary, nay, a democratic republic’s judiciary, meticulously fulfilling its mediatory role in the sustenance of the system.

For individual citizens most directly affected, namely, those convicts for whom execution warrants had been signed, and also for their loved ones, the Court stay order is a delay in the otherwise inexorable tightening of the noose. That these columns must discuss such macabre things reminds us of the depths of brutality that human civilisation can reach.

Ours is not the only democratic Republic that is yet uncertain about measures that appropriately resolve the illegal drug abuse problem. But in repeatedly endorsing governments that desisted from implementing the Death penalty, our island republic has consistently signalled to the world community that we are a civilisation with refined sensibilities. These refined inclinations have been demonstrated even as our nation battled sedition, social rebellion, secessionist insurgency and brutish authoritarian rule.

And Sri Lanka’s judiciary has been second to none in its crucial interventions and mediations that, when much else had failed, when energies have gone astray, when leadership was benumbed, had shown a way out of the crisis.

Perhaps the most historic intervention was the Supreme Court rulings during the Constitutional crisis last November and December which clarified for the nation and its leaders, the constitutionally appropriate identification of legitimate government in accordance with the practice of representative democracy.

Having shown the way so decisively during that crisis, the judiciary now continues to fulfil its role as mediator and upholder of both constitutional governance and a protected citizenship.