Editorial

Parliament (the Legislature) seems to have exercised its right of reply to a recent salvo from the Judicial Services Commission (JSC) that there was an oblique attempt by the President (Executive) to interfere with the independence of the Judiciary.
Over the past few weeks, this tussle between the competing pillars of any democracy has been on the boil. On the eve of the Speaker’s announcement on Tuesday was the unfortunate incident of a hitherto unidentified group of assailants pistol-whipping the JSC Secretary on the public road, an all too familiar trademark under the present administration to suppress dissent.
The Speaker’s 17-page statement blaming the Supreme Court for sending its opinion on the controversial Divineguma Bill to the Secretary General of Parliament and not to him (the Speaker) is the bone of contention.

The gravamen of his argument is that the Supreme Court ought not to have confused him with the Secretary General of Parliament in terms of the Constitutional requirement to have its opinion delivered to him. He proceeds to make heavy weather of what the country’s apex court has done.

The fact that the court’s order was to frustrate the Government in proceeding with the Bill complicated things. And, unmistakably, the static electricity between the Executive and the Judiciary contributed to the situation. One can reasonably ask, whether the same fuss would have been made, if the court had given an opinion in favour of the Government on this Bill, and not asked it to go get the consent of the Provincial Councils before introducing it.

Letters often addressed to the President are sent to the President’s Secretary, and to think that the Secretary General of Parliament would not deliver upon receipt an opinion from the Supreme Court to the Speaker forthwith is demeaning to that exalted office. But the Speaker has taken the strict letter of the Constitution and he is entitled to his position. The problem however, is much larger than this.

There is, clearly, a problem brewing between the Executive and the Judiciary, but that is not always a negative matter. In fact, it could even be seen as a healthy sign of any vibrant democracy with the separation of powers; the Executive, Legislature and Judiciary stoutly defending their turf and vigorously exercising their powers.

One would have been concerned if these three arms decided to scratch each other’s backs. To be brutally frank, there was very much a public perception that there was too cosy a relationship between the Executive and the Judiciary in recent times. The introduction of the 18th Amendment (18A) to the Constitution reinforced this perception. Public confidence in the independence of the Judiciary began to erode even further. Even the legal fraternity would advise clients against hitting their heads on a brick wall by taking on the Government in a court of law. Like in the Police, judicial officers were given the crystal clear message through the 18A that if they wanted to go up the judicial ladder they had to first fall at the feet of the Executive. Only those in the lower judiciary were showing some spine in resisting these moves.

As a widely respected and outstanding British law lord, the late Thomas Bingham said, the relationship between the Government and the Judiciary is unlike a happily married couple, and by virtue of the different roles they must play, are actual or potential antagonists.

It is interesting to note that in his book ‘The Rule of Law’ Baron Bingham, who visited Sri Lanka and met local judges as a personal guest of his friend, the late Foreign Minister Lakshman Kadirgamar, refers to the sovereignty of the British Parliament over its courts and says they can enact laws that even violate its international treaties and human rights obligations whatever the courts may say. But, he concedes (page 170), that this is because Britain doesn’t have a written Constitution (like the US, countries in Europe and those that won independence from Britain), and ‘the Queen in Parliament’ makes all laws, not judges. If Britain wishes to reverse the situation, and have a codified, entrenched Constitution, her people must take that decision, after informed debate, he says.

In Sri Lanka, which has a written Constitution, it is specifically stated that the Supreme Court has the “sole and exclusive jurisdiction” to interpret the Constitution, and it is a great relief that the Speaker, in his admonition to the Supreme Court has recognised this fact in his statement, and that the Government, whatever the drum-beating, proceeded to act according to the Supreme Court’s order in getting the approval of the Provincial Councils prior to re-tabling the Divineguma Bill.
The Divineguma Bill has been challenged once again before the Supreme Court, which will, no doubt, be guided solely by the constitutional legality of the provisions contained in the Bill.

The Government will have no choice but to follow its ruling. The guessing game as to how the friction began continues. Some say that it has to do with a decision involving the former Army Commander, aggravated after a sting operation engineered by the Government as tit-for-tat on a questionable financial transaction of a family member of the head of the Judiciary.

With the 18A in particular, the country has witnessed the rise of authoritarianism and the dismantling of the separation of powers. If all laws are merely to flow from the Legislature and the Executive in the fountain of justice, then what is the use of courts? An ‘elective dictatorship’ is no substitute for the independence of the Judiciary, which citizens have a right to look up to as the last bastion of the Rule of Law.

The issues and the contests, if any, must be on a higher plane, not triggered by animus and personal vendettas and prejudices. The national interest will need to supersede all other interests.

The present differences, once the personal elements are set aside, are a healthy sign. In our neighbourhood, especially in India and Pakistan, the Judiciary has stood up to the Executive, and even the Legislature. The widespread opinion is that such independence is to each country’s national benefit. As long as the clash does not spill on to the roads, an element of antagonism is not a bad thing.

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