| by Ranga Jayasuriya
( December 23, 2012, Colombo, Sri Lanka
Guardian) The nominally electoral democracies, which mushroomed in the newly
independent former colonies of the British empire largely failed in their
democratic transition into functioning liberal democracies mainly due to one
reason: Their own elected leaders, who gradually dismantled those very
constitutional structures that helped them to come to power.
 |
A Parliamentary Select Committee was appointed to investigate the charges levelled against the chief justice. Now they have given the report. And the president is planning to appoint an independent committee. Doesn’t that mean the executive is ridiculing the legislature?
Many of those newly independent nations
sought to get rid of constitutional mechanisms that the departing British
introduced as bulwarks that would stand in the way of majoritarian impulses and
abuse of power by politicians. Most of those constitutional mechanisms are of
elitist nature such as the independent courts and independent bureaucracy,
which kept tabs on the excesses of the elected offices. That was an anathema
for the newly elected local elites who appeared to believe that an elected
office was a carte blanche. However, one country which did not succumb to this
trend was India. That was despite its diversity and abject poverty, which was
further aggravated by the post independent closed economic model. One
institution that made sure that India remained a democracy was its activists
courts, which have regularly delivered rulings
in order to foster and promote fundamental rights of its citizens. The
conduct of her neighbours had never been impressive, at least until recently
when Pakistani Chief Justice Iftikhar Chaudhry set in motion a new wave of
judicial activism, which effectively ousted one dictator (Gen. Pervez Musharaf)
and disqualified an elected prime minister,Yousuf Raza Gilani, the latter for
contempt of Court.
In Pakistan, the catalyst for the fall
of Gen. Musharaf was the removal of the chief justice, which triggered a wave
of countrywide protests. It was a
miscalculation on Musharaf’s part who had been overstretching his powers. Those
are abject lessons that the ruling regime in Colombo should learn from its
neighbours.
However, the Rajapaksa administration seems to
be pushing further to the point of no return in its face-off with the
increasingly activist Judiciary. That was even after the Court of Appeal on
Friday cautioned the speaker, who is also the president’s elder brother, that
disregarding the Court directive would lead to a ‘chaotic situation.’
Chaotic situation
The Court delivered that determination,
while issuing notices on the speaker and 11 members of the Parliamentary Select
Committee to appear on January 3.
Issuing their determination, the three
member judges of the Court of Appeal, S.
Sriskandarajah (President of the Court of Appeal) and Justices Anil Gooneratne
and A.W.A. Salam stated: “This Court is of the view that any steps taken in
furtherance of the findings and/or the decision contained in the report of the
2nd to the 8th Respondents marked P17 would be void if this Court after the
hearing of this application issues a writ of certiorari to quash the said
findings and/or the decision of the PSC. Therefore the relevant authorities
should advise themselves not to act in derogation of the rights of the
Petitioner until this application is heard and concluded, since any decision
disregarding these proceedings to alter the status quo may lead to a chaotic
situation”
The Court further noted the constitutional
mandate of the Appeal Court and noted those powers cannot be abdicated by the
executive or the legislature.
Following is an excerpt from the Appeal
Court determination:
“The power of the Court of Appeal to
exercise judicial review on findings or orders of persons or body of persons
exercising authority to determine questions affecting the rights of subjects
are wide and this power has been provided to the Court of Appeal by the
Constitution of the Democratic Socialist Republic of Sri Lanka.”
“Therefore this power cannot be
abdicated by the other arms of the government namely the Legislature or
Executive.”
“Article 140 of the Constitution
provides that: Subject to the provisions of the Constitution, the Court of
Appeal shall have full power and authority to inspect and examine the records
of any Court of first instance or tribunal or other institution, and grant and
issue, according to law, orders in the nature of writs of certiorari,
prohibition, procedendo, mandamus and quo warranto against the judge of any
Court of first instance or tribunal or other institution or any other person.”
The Court also noted that the PSC in
considering the charges against the Petitioner is “not exercising its
legislative power but exercising powers of judicial nature, whether it can
exercise judicial power against a person who is not a member of Parliament is a
question that will be determined in another application pending before this
Court.”
The Court also referred to the statement
made by the speaker that a previous Supreme Court directive issued to him and
the members of the Select Committee was a nullity and entails no legal
consequences.
“On this ruling of the Hon. Speaker,
this Court wishes to have it placed on record that the order to issue notice on
the Respondents of this application is nothing but a legal obligation on the
part of the Court to afford the Respondents an opportunity of being heard, thus
adhering to the concept of audialterampartem.”
However, the government is bracing for
further confrontation. Yesterday, the
deputy speaker ChandimaWeerakkody speaking in a programme conducted by the
state controlled ITN, said that the speaker and the Parliamentary Select
Committee members would disregard the Court notices and would adhere to the
speaker’s earlier ruling.
He noted that former speaker Anura
Bandaranaike issued a ruling of the similar nature and the former chief justice
Sarath N. Silva conceded.
However it is not clear whether the
deputy speaker was speaking on behalf of the four opposition MPs who served in
the committee. The four opposition MPs walked out of the PSC in protest, citing
the bias on the part of the PSC.
The government is digging deeper.
However, by doing so, it is further aggravating an already complicated crisis
involving two pillars of governance. Should the government succeed, that would
come at the cost of the independence of the Judiciary.
Last week, the judicial review of the
Constitution was challenged by cabinet spokesman and Minister Keheliya
Rambukwella.
Following is an excerpt from the Q &
A session held during the cabinet press briefing.
What is the issue with the judicial review of a bill?
Has it been stated anywhere that the
Judiciary is more supreme than Parliament. If there is any evidence, show me
one paragraph of it. There should be a limit for these interpretations (by the
Court). There can be areas where the interpretations are accepted and there are
instances where they are rejected. Now you are asking me why people go to court
if Parliament is supreme. I am not saying there is no point of going to court.
You are saying that the Court should not
go beyond its limits when intercepting the constitutionality of a bill. Are you
suggesting the Court exceeded its limits when interpreting the Divineguma bill?
Parliament has already taken a decision
on that. If you want I will give you a full report.
A Parliamentary Select Committee was
appointed to investigate the charges levelled against the chief justice. Now
they have given the report. And the president is planning to appoint an
independent committee. Doesn’t that mean
the executive is ridiculing the legislature?
Not at all. When there is an issue,
there is a procedure to analyse it . Therefore, why an independent committee is
appointed is to analyse the issues in full and to enlighten the president. It
is not a process that goes beyond that point.
( The Writer, Editor of the Lakbima
News, where this piece was originally appeared)
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