Power, Separation of powers and powers that be

| by Sarath De Alwis

A leaf was riven from a tree,

"I mean to fall to earth" said he.

The west wind , rising ,made him veer.

"Eastward " said he, I now shall steer."

The east wind rose with greater force.

Said he: "Twere wise to change my course".

With equal power they contend .

He said "My judgment I suspend".

Down died the winds: the leaf elate,

Cried "I’ve decided to fall straight."

"First thoughts are best" That’s not the moral ;

Just chose your own an we’ll not quarrel .

However your choice may chance to fall ,

You will not have any hand in it at all

Ambrose Bierce – Devil’s Dictionary

 Power: The ability to take, cause or to prevent action.

Separation of powers: The principle that seeks to limit power.

Powers that be: The people who are actually in charge.

( November 21, 2012, Colombo, Sri Lanka Guardian) The expression "separation of powers" has often baffled me. I always regarded it as some mumbo jumbo that was as vital to human beings as good table manners or exceptional measures of personal hygiene. Good table manners do not make the food more palatable. Exceptional measures of personal hygiene may not prevent the occasional itch and the subsequent scratch.

A chance encounter with a friend whom I hold in very high regard changed my cavalier attitude to the subject. First, I must describe my friend. He is the quintessential pundit as we understand the term. In Sinhala he would be called "Bahustrutha" a person who is a repository of wisdom and experience. He commands absolute fluency in Sinhala and English both of which he specialized in at the University. He had a successful career in the public service. Remarkably successful yet not distinguished to be noticed. Later on he studied law and excelled in it. He reached the appellate courts fast enough to carve out an impressive practice which his razor sharp mind deserved.

He told me that the Separation of powers is a subject "far more serious which should not be treated with either fun or flippancy. Democracy my friend intoned "allows people to elect a government. The opposition is there to check the performance of the Government. The Press is there to inform the people. Now, if the opposition is colluding with the government and the Press is muted where does the aggrieved citizen seek solace? It is the courts. So read Palkhivala" he advised. And so I did. Palkhivala says "We interpret the constitution as if it was an exercise in grammar"

In this approach the average arm chair liberal assumes that every institution under the constitution acts strictly according to the rules that supposedly bind them. So, if each institution acts strictly in accordance with the rules that govern them it works more or less as the proverbial Swiss Cuckoo Clock. Rule of law would chime on the hour.

It is here that according to Palkhivala, the exercise in Grammar becomes less grammatical and more contrived. Absence of grammar results in chaos. Who meant what becomes more important than what it is all about. If all the arms of the state function strictly according to the rules laid down for their guidance we have the happy situation that is described as "the rule of law." But if any of the institutions under the constitution is placed above the rules the Cuckoo Clock does not tell you the exact time of the day.

Then we have the Rule by law instead of rule of law. Obviously, my Pundit friend is correct. For Palkhivalla to make this remarkable reading of symptoms, the ailment or the decease should be rather common.

In the case of Rule by law, those who enforce the law need to be above the law. For example if an offspring of a Minister is disciplined by an official of the state it becomes mandatory for that officer to be disciplined in return. After all, the law must be upheld at all costs. Rule of law has the embedded disadvantage of placing the law above everybody. It assumes that nobody is above the law. It is an Ethiopian, sorry, a Utopian proposition to those of us who wish to measure success against benchmarks set in house and not by the Washington based Freedom house.

In sharp contrast rule by law places those who enforce the law above the law. It seems to be a very pragmatic approach. After all, long years ago Father Aiden de Silva my teacher told me, "He who pays the piper calls the tune.’ Apparently, this happens frequently in the Indian subcontinent.

So much so that Some Judge called Justice V. R . Krishna Iyer has called it "ethical entropy in public life". Now it looks as if I had waded in to strange waters. What is entropy? It is supposed to be the measure of the disorder of a system. Now that is an area that angels would avoid and so would I.