Executive presidential system and the judiciary

(November 22, 2012, Hong Kong, Sri Lanka Guardian) From the beginning of the executive presidential system, the most important threat to it was perceived to be the judiciary.

With a four fifths majority in parliament, J.R. Jayawardene, the UNP leader, made sure that all his party members in the legislature surrendered their rights to him. He got this through undated letters of resignation he took from everyone except for a few who refused to comply. He was therefore certain that there would be no challenge to his authority from the parliament.

However, he saw the judiciary as the real threat to his authority. Being the cunning politician that he was, he adopted many strategies to counteract any possible challenge to him from the judiciary.

The first step he took was to appoint his former lawyer and friend, Neville Samarakoon QC, as the Chief Justice. 1n 1977, as the new constitution was being prepared, he wanted to ensure that there would be no opposition to the passage of the constitution from the judiciary. By the appointment of Neville Samarakoon QC as Chief Justice, he managed to avoid any direct threat to the passing of this constitution. It was quite possible that if Neville Samarakoon QC was not there in the Supreme Court, that the court may have examined the new Constitution more critically. At this stage, Neville Samarakoon QC naively believed in the good faith of his friend J.R. Jayawardene and the conflicts between the two only began later.

However, it was at this early stage that the 1978 Constitution should have been scrutinised more closely. If that had been done, many of the internal contradictions of this constitution would have been exposed and the court could have quite possibly taken up the position that several of the provisions were a serious threat to the character of the constitution as a republic and a democracy. In particular, the threats posed by the constitution to the rule of law should have been examined at that stage, prior to its promulgation.

Particular attention should have been paid to the threats posed to the independence of the judiciary itself. The possibilities of the quick passage of some bills, including those for amendments to the constitution itself, were clearly contrary to democratic norms and practices and posed a threat to the independence of the judiciary, in that they did not provide adequate time for interventions by the public and thus the court was deprived of the opportunity of proper consideration of such proposed amendments. It was the possibility of passing laws hurriedly that was created by this constitution, which later enabled the executive president to enhance his power through several amendments. There were other provisions too which should have been examined closely from the possible threat that was posed to the independence of the judiciary. Article 35 (1) which placed the president outside the jurisdiction of the courts should have been subjected to scrutiny at this stage itself. Article 107 (3), which related to the impeachment of superior court judges, should also have been subjected to scrutiny, and safeguards for the judges should have been insisted on by the courts. However, with Neville Samarakoon at the head of the judiciary, none of these things happened.

Even worse, several Supreme Court judges who were functioning prior to the promulgation of the constitution were not reappointed. The objections to this issue were quite publically raised. However, Neville Samarakoon as Chief Justice did not take objection to the 'dismissal of the judges by the Constitution'.

Thus, appointing Neville Samarakoon QC as Chief Justice was an important maneuver that J.R. Jayewardene resorted to.

The first conflict with Neville Samarakoon as Chief Justice was the closing of the doors of the Supreme Court to prevent the judges from entering the court. The problems that arose from this situation are discussed in Vishvalingam vs Liyanage. How strongly the Chief Justice felt is quite clearly expressed in this judgement. He said it was the greatest insult against the courts in Sri Lanka since their inception.

From that point on, J.R. Jayawardene's strategy was to harass and humiliate Neville Samarakoon QC, the Chief Justice, as openly and blatantly as possible. In doing this, J.R. Jayawardene was clearly passing a message to all other judges. Any kind of opposition to him would lead to unpredictable, adverse consequences to any judge.

That message was more forcefully conveyed when the impeachment motion was filed against the Chief Justice. It was not merely a threat to Neville Samarakoon QC. It was a clear demonstration to all other judges, showing them that the president had the ultimate weapon against them and that once it was used they would be helpless.

It was a deliberate maneuver on his part to get the Standing Orders relating to the impeachment of judges made in such a way as to deny them the right to a fair trial before an impartial tribunal. This was not an oversight, this was a deliberate strategy. In fact, the court should have struck down these Standing Orders, as they contravened the constitutional principles relating to the separation of powers and the independence of the judiciary. It was an irony of history that having come to the top as a friend of the president, the Chief Justice was unwilling to pursue all the possibilities that existed for his defence within the judicial system itself.

After this period, a much more brilliant strategy was adopted by Chandrika Kumaratunga as president. She brought someone in as Chief Justice who would do every possible service to the president, not only by preventing opposition from the judiciary to the executive president, but also support the president when opposition arose from other quarters. Sarath N. Silva as Chief Justice provided this service both to Chandrika Kumaratunga as well as Mahinda Rajapaksa.

With the end of the tenure of Sarath N. Silva, again the problem of the possibility of people resorting to seeking relief from the courts against the actions of the executive president arose.

It is this problem that President Mahinda Rajapaksa is trying to resolve again through the impeachment proceedings against Shirani Bandaraniake. The strategy again is to eliminate the possibility of a threat to the president from an independently functioning judiciary.  The courts are expected to blindly support the executive.