The Need to Restore Judicial Review

Photo courtesy of Daily Mirror

BASIL FERNANDO- 05/05/2022

Many discussions are taking place concerning the issue of restoring democracy by way of undoing the executive presidential system. As a way of achieving this, the suggestion is for the abolition of the 20^th Amendment to the constitution and to replace it with the former 19^th Amendment, with suitable changes, as the 21^st Amendment to the constitution. However, the belief that this in itself will restore democracy is based on an underestimation of the damage done to the entire political and legal system by the enactment and practice of the 1978 constitution.

If the aim of the present day reformers is to restore democracy, the first step that needs to be taken is to declare in the constitution, clearly and without ambiguity, that the separation of powers doctrine is recognized by this constitution. That means that the legislature, the executive and the judiciary are equal branches of the state. They have separate functions but by their balancing of powers, it is their duty to sustain the democratic framework of the country. It was the deliberate removal of this doctrine that created the foundation for the kind of system that is often spoken of as the executive presidential system. That executive presidential system was in fact not a modification of the separation of powers principle but a complete displacement of it.

In 1978, the primary aim of the constitution was to diminish the power of an independent judiciary. President J.R. Jayewardene understood that the threat to his scheme lay primarily at that stage with the judiciary. It was when this overall scheme of undermining the judiciary came to be discovered that the conflict between the then Chief Justice Neville Samarakoon and the President developed and intensified. At that initial stage, the Chief Justice lost and the President gained the upper hand in pursuing his scheme of constitutional reform. Later, there were other judges like Chief Justice Sarath Nanda Silva who went out of their way to accommodate the new system and to play a subordinate role to the executive.

If the idea of reforms that are being talked about today has the aim of restoring a viable form of democratic government, then, the first step that should be taken is to reinstate the judiciary within the framework of the separation of powers principle that should be clearly enshrined within the constitution.

For that purpose, many things in the 1978 Constitution need to be changed. The most important change to be brought about is a statement within the section of the constitution on the sovereignty of the people, that the judiciary will exercise the sovereignty of the people, vested in them, through the parliament. Thus, the judiciary has been relegated to a subordinate position to the legislature. This was a deliberate move to indicate very clearly that the classical separation of powers principle does not apply within the framework of the 1978 Constitution. Therefore, the relevant provision needs to be removed and instead there should be a clear statement that the judiciary exercises the sovereignty of the people by the exercise of their judicial function. This way, in the exercise of the sovereignty of the people, there is no distinction recognized between the legislature, the executive and the judiciary. They are all equally deriving their powers from the sovereignty of the people.

It is from this point of view that the restoration of judicial review becomes an essential aspect of the restoring of the principle of the separation of powers as well as the recognition of the independence of the judiciary.

The Soulbury Constitution recognized judicial review and there were many instances in which the people resorted to the judiciary when a conflict arose between various forms of legislation and their entrenched rights. On several occasions, the court held in favor of the litigants.

It was this position that was changed by the 1972 Constitution. Several of the spokesmen at the debate on the newly introduced 1972 Constitution stated very clearly that they did not want the judiciary to interfere with the laws that they are making. Thus, the possibility of ensuring that the laws that are made fall within the legitimately recognized principles of legality was removed. The 1978 Constitution, making use of this situation, relocated the power of the judiciary to look into the constitutionality of laws only at the bill stage before the law is finally enacted. However, the principle of judicial review provides opportunity for any citizen to challenge a law at whatever the stage, even long after their enactment, if it could be proved before court that the law that has been passed violates the principle of legality that is enshrined within a democratic constitution.

A lot of talk about the replacement of the executive presidency is often based on sloganizing and trivializing the serious problems that have been created by the 1978 Constitution with regard to the maintenance of a system of law that is capable of providing stability to the democratic way of life. What has been challenged within Sri Lanka is a possibility of maintaining a legal order within the framework of the supremacy of the law and the operation of the rule of law. Thus, by allowing any kind of legislation to be passed at the request of the executive president by the parliament, where the government majority will rubber stamp whatever the president wants, a situation was created where there were serious conflicts of legal principles which made it difficult and even impossible for the judiciary to exercise their powers in a rational manner as it is required to do. When there are inherently conflicting principles operating through the constitution itself, it becomes an impossible task to sort out which principles should be recognized and which should not be recognized. This conflict of principles contributed to a confusion which over 40 years have dragged the legal system into many problems that cannot be resolved.

If the idea of removing the excessive powers of the executive president is meant to restore the supremacy of the law, then something more needs to be done than merely adopting the 19^th Amendment or a similar provision as the 21^st Amendment. The creation of many commissions merely reduces certain arbitrary powers of the executive president but it does not create the fundamental imbalances that have been created through the adoption and operation of the 1978 Constitution.

If these problems are not addressed, the mere adoption of something similar to the 19th Amendment will not remove the kind of amendments that the country is beset with.

Sri Lanka is a country in which the tampering with the legal system through irresponsible constitutional changes has gradually developed into the collapse of the economy itself. The legal crisis and the economic crisis are intertwined. If the idea of making the amendments to the constitution is for the purpose of finding ways to stabilize the economy and also to stabilize the political system, which is an essential condition for the sustainability of the entire economy, then something much more needs to be done than merely playing into the sloganizing and making a superficial change that does not alter the basic character of the 1978 Constitution.