Focus on Rights

When Chief Justice Charles Evan Hughes proclaimed in 1862 at a meeting of the First Congress of the United States, that Parliament and not the judiciary has both the purse and the sword, he was only stating a salutary truth. His consequent caution that, in the enterprise of making democracy workable, both are partners and one cannot say to the other that one has no need of the other, is equally salutary.

In countries that have, in fact, made democracy workable (at least to some extent), this is a reflection that has stood the test of time. The old delightful notion of a society governed by the rule of law, predicates that the judiciary would hold parliament in check and would subject the actions of each and every individual to the law while at the same time, not getting itself embroiled in the task of open legislation. This has seldom worked out to its idealistic full in any society.

However, in inchoate jurisdictions, the relationship between the twin institutions of Parliament and the judiciary has been even more complicated, aggravated as it is by immunities afforded to the executive and the legislature. Across South Asia, we see the judiciary continually under siege and in turn, its authority weakened by what is perceived to be politically influenced, timorous or inconsistent decision making. The attacks that have been made on the independence of the judiciary have been many and varied as we have seen in Sri Lanka, ranging from 'packing' the Court with political supporters to stoning houses of judges who deliver unpopular decisions.

Indeed, in a context where the sitting Chief Justice has been twice brought before Parliament for impeachment based on the alleged 'political' nature of his decision making, (interrupted on each occasion by then president Chandrika Kumaratunge's proroguing/dissolving of Parliament), these questions have been transferred from university lecture halls to the ordinary streets for heated debate. In the process, the extent to which judges can challenge the political institutions of the executive and the legislature has become an extraordinarily important question. In this regard, judicial responses to practices of rigid immunity being upheld in respect of acts of parliamentarians individually and indeed, of parliament as a whole, have attracted no little public attention. Equally so has been the judicial response to the question of constitutional immunity afforded to the President in respect of his acts while in office.

Whether the question concerns a minority group of parliamentarians stone walling the one remaining appointment to the Constitutional Council and thus enabling an explicit constitutional provision to be blatantly disregarded by President Mahinda Rajapakse or whether it concerns Parliament itself deciding to gratify its members by a mammoth salary increase, the issue is the same. In the exercise of its powers of judicial review, to what extent should the Court allow such decisions to be beyond its authority? And at the minimum, is there not a duty laid on the Court to articulate uniform principles in respect of its power of intervention or non-intervention as the case may be?

These questions are undoubtedly vexing as witnessed by the recent divided bench of the Supreme Court which by majority decision, decided not to allow leave to proceed in a petition filed by a group of trade unionists challenging the salary increase of parliamentarians. The majority's view was that this decision had been by way of a parliamentary resolution which was beyond judicial review in terms of the Court's fundamental rights jurisdiction as it was not executive or legislative action. The minority view was that the impugned action in question was not legislative but administrative in nature and hence, could be reviewed.

Some years back, it must be recalled that we saw a similar tussle brought before the Court. This instance concerned one of the two impeachment attempts of the Chief Justice wherein three petitioners invited the Supreme Court to rule that Standing Order 78 A pertaining to proceedings relating to the resolution for impeachment was unconstitutional on the basis that it does not provide for the essentials of a fair inquiry and permitted arbitrary political action by the Select Committee. They contended that the Select Committee appointed thereunder would result in the violation of the petitioners' rights to equality, freedom of expression, freedom to engage in a profession and the basic right to invoke the fundamental rights jurisdiction of the Supreme Court.

As must be further recalled, (and in acute contrast to the refusal of leave to proceed in the recent case of the increased salaries of parliamentarians), the Court in that instance awarded interim relief restraining the Speaker from appointing a Select Committee of Parliament under Standing Order 78A. This in turn, resulted in the deliverance of an indignantly reasoned order of then Speaker Anura Bandaranaike, ruling that the Court had no authority to inquire into the parliamentary processes of impeachment of judges. Further proceedings were rendered academic on the dissolution of Parliament by the President soon thereafter.

We may have well seen a similar response on the part of current Speaker WJM Lokubandara if the Court had given leave to proceed on the impugned increased salaries of our representatives. However, this is only idle conjecture in the absence of a unanimous decision by the Court. What is clear is that the interaction between Parliament and the judiciary in general and more specifically, the question of the impregnable character of Parliamentary resolutions cannot be left to depend on the varying factual contexts of individual petitions. We need consistent decision making on this question. Interestingly in this context, the question of the sanctity of parliamentary resolutions has become a key question in India in reference to resolutions passed by the Lok Sabha in regard to the status of Kashmir.

And if we are to deviate slightly in this regard, a pertinent question would be as to why should we have immunity or privileges of parliamentarians or of the President at all. The term 'privileges" itself, (borrowed from British notions of constitutional law as any first year law student is aware), in fact, sits oddly with the republican nature of Sri Lanka's Constitution and should be abolished.
As much as Parliamentarians have found it so easy to reward themselves with the goodies of extra remuneration for misgoverning this country, so have Parliament and the President found it easy to frustrate the working of the 17th Amendment to the Constitution. While some individuals approached for extra - constitutional appointments to the formerly independent commissions on the police, the public service and the national human rights commission have declined on grounds of the unconstitutionality of such appointments, others (including former judges and lawyers) have accepted such positions with ill conceived gusto. Cases filed in court in this regard have, in turn, been defeated by the argument that the immunity afforded to the President prevents the appointments from being challenged in court. And as this column commented some weeks, back, the Parliamentary Select Committee on the reform of the 17th Amendment has disappeared into a parliamentary limbo. And as things stand, we seem to be in a situation where the status quo will become 'constitutional' simply by virtue of it being accepted without public protest.

These questions are of acute and bewildering complexity, concerning classic contradictions of governance in a country that pays theoretical homage to the rituals of constitutional democracy such as the independence of the judiciary and the rule of law but which, in practice, has scant disregard for such oddities. Weak civil society constituencies in the context of a decades long war and internal conflict have made the subversion of the democratic process quite comically easy. This remarkable public passivity to the erosion of democratic freedoms must stop at least now.