| by Basil Fernando
( December 26, 2012, Hong Kong, Sri Lanka Guardian) The construction of a government
that prevents one person becoming the prey of another can be said to be the aim
of constitutionalism. Ever since Montesquieu, the greatest of political
thinkers and statesmen have struggled to develop principles to achieve this aim
of preventing citizens becoming prey of rulers who rule not for the purpose of
achieving the greater good for the people, but to enrich themselves at the
expense of the nation. The foundations of most of constitutions developed to
achieve this aim are based on the work of John Locke.
The recognition of the liberties
of the individual as a central concern is one of the major characteristics of a
government that is created for the purpose of preventing authoritarianism,
which simply means the attempts by the ruler to control the nation for the
benefit of him or herself as against the interests of the population. Without
embedding the liberties of the individual as enforceable rights, it is not
possible to have a form of governance that is for the benefit of the people.
The development of the idea of
the separation of powers arises from the recognition that the liberties of
individuals are a part of the structure of the government. That the executive
should be controlled by a system of restrictions on power led to the
recognition of separate branches of government. Such separation, therefore,
cannot be artificial and has to be genuine, so as to bear concrete results when
disputes arise between the ruler and the individual citizens.
The development of judicial power
arose from this recognition of the conflict that is unavoidable between the
ruler and the individual citizens or groups of citizens. In such conflicts, the
settlements need to be fair and the working out of such fairness is what is
called justice. Thus, there is always a conflict between power and justice. The
task of those who hold judicial power is to protect the individuals or groups
of individuals without allowing them to become prey for those who hold power.
If those who hold judicial power are unable to do that, then their existence
has no purpose.
The right of the judicial review
of legislation arises from these same principles. In the name of making laws,
the rulers should not be allowed to suppress the rights of individuals or
groups of individuals. To put it in another way, legislation should not be a
means of making individuals or groups of individuals prey of those who hold
power.
Thus, the judicial power and the
power of judicial review are inseparable. To say that there is the separation
of powers is to say that the judiciary has judicial power. To say that judges
have judicial power is to say that they have the power to review legislation.
That even this simple premise has
become a matter of dispute in Sri Lanka shows how some people have become so
powerful that they claim the right to make prey of others.
When Justice Vigneshwaran spoke
of the constitutional tomfoolery played in Sri Lanka, what he was pointing to
was the way that the very basic principles of constitutionalism have been
distorted by the 1978 Constitution and how the 18th Amendment to that
Constitution has completed that distortion. This tomfoolery has made the Sri
Lankan legal system into a dysfunctional system. The present attempt to remove
the Chief Justice of the country without observing the internationally
recognized norms relating to such removals will further destabilize the entire
legal system of the country.
Everyday events are showing the
extent to which the whole system is distorted. Take, for example, the situation
of a village, now well-known to everyone due to a large number of mysterious
killings that took place there. The murders took place in the village of
Kahawatte, where about 20 persons were brutally killed within a short span of
time. Now reports are coming out about how some of the alleged murderers are
being dealt with. Two people were reported to have been shot dead after they
were released on bail. A third person has gone missing since last week, also
after getting bail. It was not long ago that four persons who were initially
arrested as suspects of a brutal murder were found dead with gunshot injuries,
with their hands tied behind their backs and blindfolded. The suspicion is that
these killings are done by the police or paramilitary groups, and that this is
the way crime is being dealt with in Sri Lanka.
In some other cases, the suspects
have connections to the government. It is just under a year ago that a British
citizen was brutally murdered by the Chairman of the Pradeshiya Sabha, Sampath
Chandra Pushpa Vidanapathirana and others, in Tangalla. A Russian girl, who the
murder victim was protecting, was also attacked and narrowly escaped death.
However, the suspects are now roaming freely.
Thousands of similar situations
have been reported.
The attempt by the rulers in Sri
Lanka to manipulate and play the fool with the constitution and other laws has
created this situation.
These are matters that should be
a big part of the discussion on the impeachment issue. Do Sri Lankans want to
continue to be the prey of their rulers or do they want a rational form of governance
that will protect them from being such prey? If the people want the latter,
then they should protect their judiciary, which is their last resort when they
are faced with assaults because of the failure of governance.
None of these serious matters are
of any concern to the state media. The state media does nothing at all to
expose the failure of the system of governance in the country. Their attack is
on those who do try to expose these matters and call for a reform of governance
in order that the people’s security can be assured. Cynics who support
constitutional tomfoolery lead these state media programs. Such cynics, who get
paid with taxpayers’ money, sing songs for those who prey on the people
themselves.
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