| by Gajalakshmi Paramasivam
( January 28, 2013, Colombo, Sri Lanka Guardian) I write in response to the Sri Lanka Guardian article ‘The Post-Impeachment Future and the Role of the Judiciary’ by Dr. Jayantha Dhanapala and Ms Suriya Wickremasinghe.
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| Chief Justice Dr. Bandaranayake |
The authors state in relation to the dismissal of the Chief Justice ‘In this political landscape, it is the resolute actions of the judiciary that gives a glimmer of hope to the people of Sri Lanka. The judiciary did not cave into the wishes of the Executive as did Parliament. The Courts stood their ground despite the pressures under which we presume they had to function during the impeachment. That can be said irrespective of whether one agrees or disagrees with the judicial opinions expressed by the courts on the constitutionality of the impeachment process.’
I identify fully with the above as per what actually happened. To that extent my belief in the Sri Lankan Judiciary is strengthened. But what about the Plan? – the structure through which the activities of the Chiefs are required to be regulated. There is question in my mind as to the appropriateness of the structure of the Government (as per the Constitution) that is claimed to uphold the independence of the Legislature, the Executive and the Judiciary from each other. I therefore conclude that there is room for confusion, from the lay person’s point of view, about how to intellectually use the powers of sovereignty as stated in the Constitution – the highest national plan. As per the events that actually happened – the Executive would be seen as being above the Judiciary, resulting in higher respect being placed on the Executive and the elected members of Parliament than the Judiciary .
To the surface reader of the Constitution the Judiciary are equal to the Parliament and to the Executive. Yet, the Executive has the power and duty to appoint the Heads of the Judiciary. To that extent the Executive is in the higher position. To be truly equal and parallel, the Head of Judiciary would need to be appointed by the Governing Council of the Judiciary which Council needs to be elected by the Judiciary itself, through its ordinary members. That is true sovereignty.
Article 107 (1) of the Constitution states ‘The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.’
The word ‘appointed’ taken at its common meaning gives the picture that the appointer is in a higher position than the appointee. The fundamental value of sovereignty requires the core power to be placed when we divide. Hence a citizen is divided into Governor and the Governed when a member of Parliament is elected. It is this power which is taken as being ‘full’ after division of the form that renders the Legislation its powers to make laws on behalf of the people. When a child is born – the human powers of the mother and child are equal – even though at body level – they are seen as more than one. This is the concept of sovereignty through which we elect people to represent us. A child thus represents a family until known otherwise on merit basis. When a mother believes that the child is herself - her powers protect the child naturally and the mother feels the pain and pleasure of the child as if they are hers.
Appointments on the other hand are made through conscious calculations based on common principles. In form therefore the mother has higher status than a child. As per the above structure outlined in the Constitution of Sri Lanka, the President has the duty to appoint the head of Judiciary. He is not required to ‘elect’ the head of Judiciary. At that point – the powers of the whole are no longer placed in the appointed person. It is the parallel of when the Chief Justice appoints other judges. If the President elected the Judicial heads then the President is giving birth to others like her/himself. Not so in appointment where the First power is divided into two or more equals or less. When you add them up – the power would be equal to the First power. When one is elected – each elected part has the power of the whole. When given form – each individual part has the same power as the whole. Hence it cannot be divided as per substance. This is the value of Love / Truth / Sovereignty. As Professor Bruce Dowton often said when he was Dean of Medicine at the University of New South Wales – the value of the whole would be greater than the sum of the individuals in such a system.
Hence under the current wording of the Sri Lankan Constitution, the Head of Judiciary – (The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal) is at best Equal to the Government if they could – through their performance demonstrate this in Administration of Justice. Neither has the power of the whole. Given that the President has the power and duty – the level of sharing is determined by the President. Even when taken to be equal to his own power – the Judiciary’s power to be equal to the President needs to be the total of the ‘Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal’
The parallel of this is the Tamil community’s problem regarding devolution. The President appoints the Governor. Provincial Councils are elected by the People and the Chief Minister is the parallel of the President. Where does the Governor appointed by the President stand in terms of ranking? – above or below or equal to the Chief Minister? Article 154B lists the process to remove a Governor and these are similar to the ones listed in relation to the removal of the Chief Justice. The President has the ultimate power to remove. The requirement to get the advice of elected members in each case – is constitutional. But the President is not required to act as per that advice.
Hence in both instances the structure is not democratic once a President is elected. To continue to be democratic – elected persons have the right to be removed only by majority vote by the body that elected them. The rest are strictly Administrative.
Article 4 (c ) of the Constitution confirms this: ‘(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law’
This is how an independent lay person would read the logic of this Constitution.
Reality however could be different. When there are more citizens practicing democracy than the government – the gap between their earned status and their allocated status – becomes real power which spreads naturally to connect them to others beyond local borders. This is how, so many migrants of Sri Lankan origin have had head starts in Western countries where practice of democracy including the Doctrine of Separation of Powers is at a higher level than in Sri Lanka. Whether we remain physically in Sri Lanka or outside Sri Lanka, to the extent we draw on this real credit – we would empower the side that we identify with. That is how Natural Justice works. It did in the case of the Chief Justice also. In turn such leaders need to share their international status with others in similar need – especially those below them in status and therefore do not have access to international bodies such as the UN.
 I write in response to the Sri Lanka Guardian article...){kind=link}