Sunday Times 2
The Supreme Court proves supreme
View(s):One of the most fundamental principles of democratic government is the separation of powers of the government.
These powers are divided among three branches:
The Legislative Branch which makes the laws
The Executive Branch which puts the laws into operation
The Judicial Branch which interprets the laws
The traditional division into equal and separate entities, functioning as checks and balances on each other, exists under the Westminster system of parliamentary democracy which we in Sri Lanka adopted from our former colonial ruler, Britain, and then adapted to suit our own situation.
However, in our country today although the three branches do exist, this strict separation does not really exist. We have a legislature in the form of a single chamber Parliament (the old Senate having been done away with in 1972), we have an Executive in the form of the President, ministers, and government departments for which they are responsible and we have a Judiciary in the form of judges and courts.
However, since the President and ministers (the Executive) — who are drawn from Parliament — are responsible to Parliament (the Legislature), there is a great deal of interconnection between these two branches. The Judiciary, however, is expected to be distinct, and to be not unduly influenced by the other two branches.
Sadly, we have seen over the years in our own country a blurring of the lines of separation between these independent powers. Ranjan Ramanayake, a deputy and state minister from 2015 to 2019, went to jail for expressing concern over the state of affairs. He certainly had no business to make such a sweeping statement tarring all members of the judiciary with the same brush, and had to recant his words before he was granted a presidential pardon.
In an article last year, Dr Nihal Jayawickrema, former permanent secretary to the Ministry Justice, a respected legal academic and since 2000 Coordinator of the UN-sponsored Judicial Integrity Group, discussed a 2002 survey conducted by the Marga Institute. Entitled ‘A System Under Siege; An Inquiry into the Judicial System of Sri Lanka’, the survey recorded lawyers in Sri Lanka reporting hundreds of incidents of bribery. Several judges admitted to being aware of such acts of bribery and added members of the legal profession to the list of beneficiaries.
A freely elected legislature and an independent judiciary, after all, are the cornerstones of a democracy. Have things changed since the 2002 Marga survey?
So I was very pleased – I was jubilant in fact — when the Supreme Court delivered its landmark judgment last week after hearing the fundamental rights petitions in the case of the 2019 Easter Bombings. The seven-member bench headed by Chief Justice Jayantha Jayasuriya unanimously ruled that former President Maithripala Sirisena and four officials in charge of security and intelligence had violated the fundamental rights of the petitioners by failing to prevent the Easter Sunday attack in April 2019 despite receiving prior intelligence information.
It reminded me of another landmark judgement of November 2018 when the Supreme Court stood up for justice to protect the people from the wrongdoing of the Executive and the Legislature. A three-member bench of the Court — consisting of then Chief Justice Nalin Perera, Justice Prasanna Jayawardena and Justice Priyantha Jayawardena – put a stop to the illegal dissolution of Parliament by then President Maithripala Sirisna who had tried to dismiss the duly elected Prime Minister Ranil Wickremesinghe and appoint Mahinda Rajapaksa in his place.
There is a classic work of political science entitled Politics as a Vocation written by German academic Max Weber in the early part of the 20th century.
One of Weber’s most significant quotations from this work is this: ‘The most effective politician is one who can excite the emotions of the people who follow him, while governing strictly with a cold hard reason – because decisions must be made with the head and not with other parts of the body.’
Sadly, the politicians we have entrusted with governing us in recent years have been people who can excite the emotions of the people and rouse the rabble — because rousing the rabble and appealing to its baser instincts is all it takes to motivate gullible voters to cast their votes and put these vote-seekers into office. However, good governance requires the exercise of cold hard reason – decisions based on rational reasoning rather than judgements based on emotional attachments to followers and sycophants.
I long for the days when we had committed ministers who worked for the benefit of the people rather than those who come into office thinking that a portfolio is simply a vehicle to provide jobs for constituents or contracts for the friends and family. The main aim of many of today’s MPs is to get themselves re-elected, society and the people having nothing to do with their plans and activities.
So last week’s judgment by the Supreme Court gives me hope – that we still have in our country a Judiciary that can protect us the people from a Legislature and an Executive that lack both responsibility and moral rectitude.