Speaker rules against the Supreme Court, Court proceeds with hearing on petitions

The least dangerous branch in some real danger:

December 1, 2012, 7:11 pm

Rajan Philips

More than two hundred years ago, Alexander Hamilton considered the judiciary with "no influence over either the sword or the purse", as the "least dangerous" of the three branches of state power to the protection of "the political rights of the constitution." One of the founding fathers of the United States of America and one of the three contributors to the Federalist Papers, Hamilton (in Paper #78) went on to say that the judiciary has "neither Force nor Will, but merely judgment, and must ultimately depend on the executive arm even for the efficacy of its judgments." But the thrust of Hamilton’s argument is that being the ‘least dangerous’, the judiciary must also be the ‘most independent’ to offer judgment according to the Constitution and ensure the protection of the political rights of the people from the actions of the other two branches. Put another away, the judiciary needs the protection of the other two branches for it to be independent and its judgment must be respected by the legislature and the executive for the whole system to work.And in the area of political rights, the ultimate frame of reference is the prevailing Constitution, regardless of its merits and demerits, and the final authority in interpreting the Constitution is the Supreme Court.

In our time and here at home, Dr. Colvin R. de Silva restated these old truths with inimitable eloquence and authority: "In the field of independence of the judiciary and of judicial independence, it is the upper echelons of the judiciary that most matter, being the final guardians against executive intermeddling and even legislative invasion." As is well known, Colvin R. de Silva identified the incorporation of entrenched clauses and judicial review of legislation as two of the five major defects of the Soulbury Constitution and did away with both in the 1972 Constitution of which he was the principal author. Instead, the 1972 Constitution provided for a Constitutional Court to preview legislation for constitutional consistency before becoming law through passage in parliament.

We could endlessly debate the wisdom of the1972 transformation and decry its deformation in the 1978 Constitution, but suffice it to say that just as much as he challenged the use of unalterably entrenched clauses and the concept of allowing the judiciary to review legislation, Dr. Colvin never questioned the authority of the Courts to interpret the Constitution and legislation and never underestimated the importance of judicial independence in the performance of that interpretive function. And there can be neither debate nor disagreement that right now in Sri Lanka the interpretive authority of the courts and judicial independence are both in peril. The least dangerous branch is in some real danger.

Impeachment, the price of

judicial independence

The unfolding saga of the impeachment of the Chief Justice is an attack on the independence of the judiciary. That is the substance of the petitions by public-interest citizens and the Bar Association that are now being argued before the Supreme Court. That is also the sentiment across the entire social spectrum - from the Mahanayakes to former President Chandrika Bandaranaike Kumaratunga. Equally, the Speaker’s ruling in parliament, based on an apparent cross-floor consensus of views, while affirming the privileged authority of parliament is tantamount to undermining the interpretive responsibility of the Supreme Court.

The issue is at hand is over the manifest contradiction between two articles of the Constitution – Article 4 (c) dealing with the exercise of judicial powers and Article 107 (3) dealing with the process for investigating superior court judges. The question relating to their interpretation first arose in 1984 during the aborted impeachment of the then Chief Justice Neville Samarakoon. But the matter was not referred to the Supreme Court for determination and it went into abeyance until the current investigation by a Parliamentary Select Committee of the allegations against the present Chief Justice, Shirani Bandaranayake, and the petitions challenging the investigation that are now before the Supreme Court.

For the first time the Supreme Court has the opportunity to determine the interpretation of Articles 4 (c)and Article 107 (3), and the Court has made a recommendation, rather than deliver an order, that the Parliamentary Select Committee delay its proceedings until the Court determined the question of interpretation. This would be in keeping with Article 125 of the Constitution that empowers the Supreme Court to "have the sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution."

But as Hamilton noted, the Court cannot perform this function and deliver its judgment without the support and protection from the two branches of state power. Denying that support and protection will tantamount to what Colvin R. de Silva warned as "executive intermeddling and … legislative invasion." The assertions in parliament that no intervention by an external agency is consistent with the established principles of law, unfortunately beg the question because intervention by the Court is necessary to clarify the constitutional principle in this instance. The Court’s intervention is all the more important because we are dealing with an ill-drafted and internally inconsistent constitution.

For its part, the Supreme Court has fixed the hearing for December 13 and 14 and directed that the respondents in parliament be notified of the hearing. The Supreme Court can only deliver judgment, beyond that it is helpless to enforce or execute its judgment. At the same time, the Supreme Court cannot abdicate its responsibility to hear the petitions and deliver judgment without risking the credibility of the entire judicial process.

Those who are seeking protection of their political rights through their petitions deserve an answer from the court. Thankfully it has not been suggested so far by anyone from the government side that the petitioners have gone to the wrong place for remedy, and that they should have gone not to the courts but to the presidential palace. Not to mention that it was the failure of the Chief Justice to accept the presidential invitation to discuss ‘purse’ strings that brought on her the executive ‘sword’. The price of independence is impeachment.

Slide to stone-age in constitutional governance

The government and parliament have a number of options to avoid the impending constitutional deadlock. They could simply withdraw the impeachment motion. Or, they could be prudent and defer the PSC sittings until the Supreme Court rules on the petitions before it, and abide by the decision of the Court. Or, they could persist in bulldozing ahead and impeach the Chief Justice using the majority in parliament followed by presidential order, and leave it to the Mervyn Brigade to execute the order.

Another way that has been alluded to is to find some eminent people to broker a face saving compromise between the beleaguered Chief Justice and her powerful detractors. The golden compromise would have the impeachment process withdrawn and the Chief Justice agreeing to retire. Given the way things work in Sri Lanka, the Chief Justice could go back to teaching, even as Dean of Law, or may be offered a post overseas. There is nothing golden about such a compromise and there will be no eminence attributable to those who will venture to broker such a compromise. For, in fact, there cannot be a worse death blow to the independence of the judiciary than brokering such a compromise.

After initial indifference, there has been a groundswell of opposition to the impeachment process against the Chief Justice. The few people outside the government who are not opposed to the impeachment process are Ranil Wickremesinghe and his handful of hangers on. There are growing misgivings about the impeachment even within the UPFA. Perhaps to capitalize on these concerns in the UPFA, especially among the main SLFP MPs, that former President Chandrika Bandaranaike Kumaratunga denounced the impeachment move in a timely and powerful article in The Island, Tuesday, 27 November. Almost brilliant, one might say. She could not have had a better occasion to take her political nemeses to task. Who, if any, from the brotherhood will respond to Kumaratunga’s cogent arguments?

By extension, Ms. Kumaratunga’s denunciation also exposed the shamefulness of Ranil Wickremesinghe, who as the Leader of the Opposition should be leading the charge against the impeachment process but instead he is daydreaming that he has convinced everyone that he and his Party would protect the independence of the judiciary without protecting its chief justice. But Kumaratunga’s main message is to the SLFPers, challenging them to take a stand on principle in regard to the 1978 Constitution, in general, and the Judiciary in particular. Equally, principled UNPers should tell their Leader to stop dithering and take a stand for once before his political career is over.

The Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay, in the formative days of the American Constitution more than two hundred years ago. The three men went on to serve the new union respectively as its first Secretary of Treasury, its fourth President and the first Chief Justice. It was the time of swords and pistols and horses and darkness with no electricity, or running water, or the internet. It was also the time of the nascent nation state and national isolation. Despite the relative primitiveness and isolation of their times, the American founding fathers laid down the parameters of constitutional governance in exemplary detail for all time and for those interested in constitutional governance in every country.

Two hundred years later, a little republic like Sri Lanka with the benefit of global wisdom and modern technology need not find itself sliding back to the stone-age in constitutional governance. But that is where the country will be heading if parliament were to succeed in impeaching the Chief Justice and in the process irreparably undermine the independence of the judiciary and the sole and exclusive jurisdiction of the Supreme Court to interpret the Constitution.

- rajanphilips@rogers.com