Columns

For the starry-eyed among us, it must be repeated with force that President Ranil Wickremesinghe’s sharp admonition to the Supreme Court recently (ie; Parliament has powers over public finance, orders or instructions will not be tolerated from ‘anyone else’) is not a chance political remark tossed into public debate.

Going beyond debt restructuring priorities

Rather, this is a specific message with dire undertones for the people and the judiciary alike. As such, it cannot be taken lightly or shrugged away casually. For that reason, we return to this Presidential messaging with intent to examine its ramifications beyond the present context of Sri Lanka’s domestic debt restructuring. As was observed in these column spaces last week, the President’s remarks must be read in tandem with the Speaker’s ruling soon after.

That was to the effect that the 1st July 2023 parliamentary resolution on domestic debt restructuring is ‘beyond the jurisdiction of the Court.’ The ruling was in the context of fundamental rights petitions filed to the apex court, particularly challenging the impact that the debt restructuring will have on worker funds (EPF/ETF). That reasoning proceeded on the basis that ‘a parliamentary proceeding’ cannot be questioned by the Supreme Court.

In what a wit might characterise as irony of the most palpable kind, the ruling was delivered on the same day (and before) the Court dismissed some of the petitions so filed before it. In its wake, the question was asked in genuine puzzlement as to how and in what way, does the act of filing a fundamental rights challenge per se, constitute ‘‘impeachment’ or ‘questioning’ of a parliamentary resolution or a ‘proceeding’?

Taking the Government’s argument at face value

The Speaker’s referral of Speaker Anura Bandaranaike’s ruling (2001) declaring that interim orders issued by the Court restraining Parliament from ‘proceeding’ on the impeachment of ex-Chief Justice Sarath Silva were made ‘without jurisdiction,’ is singularly unhelpful. In the current instance, no such orders, interm or otherwise had been made. So in what way is Section 3 of the Parliamentary Powers and Privileges Act attracted? That question remains unanswered.

Technically and even taking for argument’s sake what the Government insists, the linkage between the 1st July 2023 resolution and the petitions filed to court, was by no means clear in the first instance. In other words it did not follow that petitions challenging potential injustice caused to EPF/ETF funds were automatically caught up in the scope of a broadly framed resolution which gave the President and his Ministers the authority to embark on debt restructuring.

Even more so, the ludicrous nature of this argument becomes clearer when one looks at potential amendments to various Acts, some proposed by the Opposition, as a consequence of the debt restructuring exercise, including to the EPF Act. Are we then to witness the President and the Government trying to nullify the specific constitutional power conferred to the Court to examine the same if citizens embark on a challenge? Where does this end?

Difference between ‘resolutions’ and enacted law

That said, it is trite law that a ‘resolution’ and an ‘Act of Parliament’ are two entirely different creatures, in shape, size and form. Courts in this country are prevented from examining the constitutionality of enacted statutes in an archaic nod to the colonial (read, British) notion of the ‘supremacy of Parliament.’ But what prevails here is the supremacy of our basic document. How and in what way are ‘resolutions of the House’ equated to enacted law?

If we are to go all British about this, let us also give an ear to what the final fount of constitutional wisdom in that isle, revered constitutional theorist AV Dicey said when he pronounced with gravitas that, ‘ the Resolutions of neither House is law.’ Across the Palk Straits and even with all their trials and tribulations, Indian democracy is not plagued by such peculiar nonsense as Sri Lanka seems to (never endingly) be.

The Indian Supreme Court has been engaging in judicial review of enacted law since the country shook off its colonial fetters. That has not resulted in the collapse of that country’s political, administrative or legal systems. Resolutions passed in the Indian Parliament or the state legislatures are not equated to ‘sacred cows.’ Generally, all resolutions are not treated the same or given blanket cover of ‘no review’ either. In some instances, resolutions have direct legal impact such as the impeachment of the President.

Drowning in constitutional confusion

In others, resolutions are merely consequential, following Cabinet decisions or expressing opinions. These are not shut out from judicial review. That line is drawn (generally strictly) to resolutions that govern the business of the House in regard to which the judiciary cannot intervene, as is accepted. That is how it should be. In Sri Lanka however, lines are blurred and we drown in the resulting confusion which undermines the Constitution at its core.

Very soon, we will become inured to repressive patterns that promise to destroy what remains of constitutional governance as much as savage police attacks on protestors are now routinely shrugged off. A few days ago, heavily armed riot policemen used water cannons on student protestors at Viharamahadevi Park, one officer was heard yelling, ‘ we do not need court orders to stop you.’

That is the extent of the degeneration of the policing function. What we see here is more of the politicisation of the governance process that brought Sri Lanka to bankruptcy in the first place. What would happen if, for example, the President declares one fine day in a fit of unreasonable irritation that, determining all liberties and rights of citizens are also within the ‘supreme province’ of Parliament and that orders or instructions from ‘anyone else’ will not be tolerated?

Reading the Constitution
as a whole

The House (obediently) passes a ‘resolution’ accordingly. What would result thereafter? An immediate counter argument to this would be that, this is an eminently hypothetical scenario as the Constitution itself guarantees rights to citizens and the Supreme Court is conferred the power to adjudicate accordingly. But, that very same argument applies to the present factual dispute that has arisen in respect of the debt restructuring exercise.

The Constitution’s conferment of the power over public finance to Parliament is not given special privileges within the constitutional scheme. That must be read in the context of the Constitution as a whole, a fundamental pivot of which is the separation of powers which envisages checks and balances between the executive, legislature and the judiciary. Judgments ad nauseam on these cautions that underline the ‘basic structure’ of constitutional governance stud our history but all to vain.

Each time, political transgressions on these vital matters are just a little bit more. Finally we will have no Constitution to speak of.  From a historic refusal to allow courts to review enacted laws even if they are unconstitutional, we will keep quiet when legal review is whittled down still further. That warrants concerted and collective resistance from thinking Sri Lankans, not an isolated opinion column or two as the case may be.

An alarming Faustian
bargain in truth

Red lights flashing bright in regard to greater erosion of our terribly weakened constitutional and legal systems must be recognised for what they are. All of this has sobering consequences for governance as a whole, going beyond the specifics of the country’s debt restructuring process.

Whichever way the arguments go, we must have spirited discussion and debate on these matters. Instead, a deafening silence prevails for the most part. Colombo’s elite seems to have struck a Faustian bargain with the President, ie; he is the only one who can deliver us from this economic devastation, therefore he must be given full leeway.

Needless to say, this is (to be kind) shortsighted in the extreme.