There had been an acceptance from the time of Aristotle that political power could be divided into three main segments, legislative power, executive power and judicial power.
The thinkers who are considered to have contributed this political theory to a modern system of government are Locke and Montesquieu. While the legislature enacts general laws necessary for regulating society, the executive functions as the institution which implements those laws. Although these two institutions see to it that accepted laws and regulations are adhered to, it is the judiciary which functions as the institution which resolves questions in terms of the law when such questions arise between private citizens on the one hand, and the state on the other when it cannot be resolved through consensus.
Although Montesquieu argues that when legislative power and executive power are concentrated in the same person or institution it will inevitably result in a dictatorship, the modern system of government is so integrated that there is no clear division between the legislative power and executive power. For example, according to the system prevailing in Sri Lanka, members of the Cabinet- which can be considered the main executive institution- are recruited from amongst the MPs belonging to the ruling party. Although they function as members of the Cabinet they also function as a group having voting rights in Parliament.
Although there may be such integration in most countries, in various ways it does not apply to the judiciary. That the judiciary should be always independent of the legislature and the executive is an undisputed principle. However, due to the nature of politics, it may generally be expected that a State administration without political discipline would attempt to bring the judiciary under its own control. The persons so involved would always try to make the judiciary a kind of institution under their control by some means or other.
In such a situation where the judiciary strives to maintain its independence, conflicts are likely to occur between the government and the judiciary. Such conflicts are also likely to heighten the independence of the judiciary and to enhance the people’s confidence in and their respect for it. Such a conflict arose in the time of J.R. Jayewardene and has clearly arisen in the time of the present administration too.
The manner in which justice is dispensed in a state is a main indicator of the level of its political culture. In conflicts arising between different citizens, dispensation of justice is easy. But it is more difficult in disputes between citizens and the state. It is in a dispute between the citizens and the state that the extent of the independence of the judiciary is indicated.
The judiciary also has a responsibility to defend the democratic political system and to act in such a way as to improve that democratic system. Preventing the undue prolongation of the period of power of a legislature is considered a basic responsibility of the judiciary. It is also the responsibility of the judiciary not to allow money bills of the executive to be enacted for a sum higher than that required for one year. The judiciary has a fundamental responsibility not to permit bills that are to the advantage of a particular group and to the disadvantage of another group on the basis of race, religion or language.
If the judiciary fails to act impartially in fundamental matters which affect the vital democratic features of the political system even while acting quite impartially in other matters of adjudications, such failure can have a disastrous effect on the democratic political system of the national state. If the judiciary had acted according to law without succumbing to the popular sentiments in the country about Prime Minister Bandaranaike’s policy on the Sinhala language, the ethnic crisis which has developed into a war now, could have been controlled. In the same way, if the judiciary refused to grant the legal approval when President J.R. Jayewardene wanted to extend by six years the period of office of the Parliament in which his party had a five sixths majority, perhaps the decline in politics which has led to continuous bloodshed might have been prevented.
Although there have been in the recent history of the judiciary in Sri Lanka tragic instances in which the judiciary subjected itself to the narrow political interests of the leaders of government, there have also been famous instances in which the judiciary stood up against narrow political interests of government leaders. The judiciary has greatly blemished itself by its approval of the referendum for extending the period of office of the Parliament. On the other hand, the Chief Justice Nevil Samarakoon’s courageous, unbending conduct in opposing the autocratic conduct of the President brought great prestige to the judiciary of Sri Lanka.
After the passage of some time, the judiciary has again become a main topic of discussion and debate among the people. The disgraceful conduct of the district judges Lenin Ratnayake and Upali Abeyratne, the manner in which Attorney General Sarath N. Silva had acted, when he was the President of the Court of Appeal, to see that a case instituted against him was allegedly conducted in a manner advantageous to him, and the policy being followed by the Judicial Service Commission to protect these persons, have become central issues of discussion. If the problems that have arisen in connection with the conduct of these people are not resolved in a manner that will bring credit to the judiciary, that situation will inevitably have a disastrous effect even on the honorable persons in the judicial service.
Who is going to be appointed to the post of Chief Justice which will fall vacant on September 15, is another main subject of conversation among the people.
Although G.P.S. de Silva, the Chief Justice who is due to retire is a righteous person not lacking in good qualities, there is no evidence that he has had the leadership qualities that a leader of the judiciary should possess. It is due to those weaknesses of his that the problems that have arisen in connection with Lenin Ratnayake, Upali Abeyratne and Sarath N. Silva have gone so far.
The post of Chief Justice was second only to the post of head of state. He is the head of the Supreme Court. He is also the head of the Judicial Service Commission which looks after the discipline and the administrative affairs of the lower courts. If a person who can be made to do the bidding of politicians is appointed to such an honorable post instead of a suitable person, that will no doubt, mean the death of the judiciary as an independent institution. The conduct of the Chief Justice affects the security of the democratic political system in addition to the normal working of the machinery of justice.
This court has the responsibility of resolving in a way that meets the democratic requirements of the people, the complicated problems that might arise in the political system. In the existing Presidential system, a President can be moved from office during his period of office only by an impeachment. Even when an impeachment has the backing of 2/3 in Parliament, it must have the assent of the Supreme Court. It is therefore natural that every President is interested in having a controllable Supreme Court. The simplest way to control the Supreme Court is for the President to use his discretion in appointing the Chief Justice in such a way that a person is appointed who can be controlled by the president. It is the Supreme Court which also inquires into election petitions. Even if a ruler wins in a crooked election, that victory will inevitably be nullified if he fails in an election petition that comes before the judiciary. For this reason, the Supreme Court and especially the independence of its leader are important to the people.
It is also the Supreme Court which has the responsibility of interpreting the constitution. The Supreme Court in India and that in Sri Lanka seem to be interpreting the law in such a way as to broaden democratic freedom. Under the present constitution the President has wide power and authority, and a situation has arisen in which his or her activities cannot be questioned before a court of law. But according to a judgment given recently, even a President is liable for prosecution after his or her term of office. This has curtailed the immunity from prosecution which earlier a President enjoyed for life. Now a President has to think twice before committing an offence. The possibility of future prosecution has to be taken into consideration, even if there is no prosecution when a president holds office. This can be considered a victory for the people from a view point of democracy. This process which helps a broadening of democratic freedoms can be taken forward in such a manner as to develop it further only if the head of Supreme Court is not a political henchman.
In the period of administration, as in that of the UNP, corruption is taking place on a mass scale. The PA government has refused, as the UNP government refused in its time, to grant adequate powers to the Commissioner of Elections or to set up an independent Election Commission. In the circumstance, it is from the Supreme Court that the necessary provisions or orders have to be sought for a free and fair election in the future. A presidential election and a parliamentary general election have to be held before the end of next year. Violence and corruption that may occur in those elections can be minimized only if there is a Supreme Court which functions independently and there is a leader of justice who cannot be dancing to the tune set by politicians.