It is evident that the country’s judiciary has taken a drastic turn and entered, by its previous standards, a completely new path of development. The court has begun issuing verdicts that stir the public and making statements that reassure the nation of the sovereignty of the public’s judgment. From 1999 to approximately early 2008 the court followed a policy which protected and perpetuated the corrupt measures of the Executive. But now, the Supreme Court has succeeded in passing judgments that reverse and criticise the policies of the Executive.
In the previous era, the court’s verdicts invariably made the Opposition discontent and, the Executive extremely satisfied. At the moment however the court’s conduct is, making the Opposition extremely satisfied and the Executive extremely restless.
While the public has, to a large extent, been thrilled by the Supreme Court’s new role as the Defender of the Constitution and balance against the authoritarian policies of the government, there is a fear among many prominent lawyers and academics that in many of its verdicts, the courts have overstepped the limits of it authority and in the sweeping nature of its judgments, violated the very Constitution it exists to protect.
R. K. W. Gunesekera, a prominent civil rights lawyer, in an interview with the English language newspaper ‘Lakbima News’ and in a lecture given by him at the Law College made a critical analysis of recent verdicts issued by the Supreme Court. His opinion was that while these rulings proved to be extremely popular with the public, many recent rulings have not been in accordance with the law and the Constitution.
His criticisms were themselves re-criticised by Nihal Sri Amarasekera, and while both views for and against the Supreme Court’s recent decisions are important, what hasn’t been fully explained is why the Supreme Court has gravitated towards an entirely new mode of operations.
And while the actions of the courts are at the moment subject to intense discussion and debate at several points in the comparatively recent past, significant decisions, incidents and actions initiated by the courts went largely unnoticed – their implications neither analysed nor discussed.
For example an impeachment motion moved against the Chief Justice was halted through a Stay Order, which rendered it illegal for the Speaker of the House to pass judgment on the matter. This created an untenable situation in parliament and while the Speaker refused to accept the Stay Order, the parliament never investigated why such an arbitrary and illegal order violating the Constitution was issued by the Supreme Court.
On another occasion, when a Fundamental Rights Petition was filed against the Chairman of the Judicial Services Commission, the Chief Justice and a group of judges who were co respondents, were allowed to examine the petition. They ordered the imprisonment of the petitioner for a period of one year. He was brutally assaulted within the prison, and after his release, a group of men attempted to abduct him, forcing him to flee the country.
Thereafter a member of parliament S.B. Dissanayake was imprisoned for two years on dubious contempt of court charges. His political colleagues however did not so much as debate the issue in parliament. Thereafter a retiring Supreme Court judge made amusing public statements criticising the conduct of the Supreme Court and claiming that proceedings at the court routinely violated the conventional legal order and the norms of lawful conduct.
The resignation of two Supreme Court judges from the Judicial Services Commission claiming that they were incapable of working in a just manner under the conditions prevailing in the Commission was another recent incident which points to institutionalised corruption and malpractice within the judicial system. On two occasions the Opposition has directed impeachment motions against the Chief Justice and it has also suggested that a parliamentary Select Committee be set up to investigate the conduct of the Supreme Court.
Even though the Opposition’s proposals bore a large number of serious charges, neither the Legislature nor the legal society of the country took any substantive measures to investigate the accusations.
On balance therefore the track record of the Supreme Court is riddled with inconsistencies and allegations of misconduct and while recent decisions have been heartening, the idea that an institution that is quite possible endemically corrupt and fundamentally flawed has assumed so much power is hardly comforting.
A test case
Although there are a number of incidents and cases that would effectively highlight the deficiencies prevalent in Supreme Court judgments, I will present my ideas by focusing on the contradictory stance held by the Supreme Court regarding the 17th Amendment.
The present policy of the court regarding the 17th Amendment is basically correct, but the policy it followed on the issue for the five years until it came to its current standpoint was completely flawed.
The petition forwarded by Sumanasiri Liyanage asking the Supreme court to order the implementation of the 17th Amendment is not the first or only petition pleading for its implementation. The 17th amendment had set up the Constitutional Council to make appointments to a number of independent commissions and senior public and judicial positions. The non implementation of the 17th Amendment is not a recent phenomenon and has been an issue since 2002. The individuals recommended by the First Constitutional Assembly as suitable members for the Elections Commission, were not appointed by the President. Members for the Second Constitutional Assembly were simply not appointed and thereafter the Constitutional Assembly was ignored completely with power being transferred to ‘Independent’ Assemblies. People who were troubled by this flagrant violation of the law and sought to have the 17th Amendment implemented turned to the courts to rectify this. Even the Commissioner of Elections made an attempt to have the impasse regarding the 17th Amendment rectified through the courts. All these various campaigners and petitioners returned empty handed. Some were even criticised by the court for daring to attempt to have the law of the land implemented through the nation’s principle judicial organ.
The court made it clear that it considered such petitions a waste of its valuable time. When individuals were appointed to the Supreme Court, to the Appeals Court, and to the Judicial Services Commission without the approval of the Constitutional Assembly, Fundamental Rights Petitions were again filed against this. Even in that instance the relevant petitioner was criticised by the court and their petitions were rejected.
Following these unhealthy experiences even the most ardent campaigners abandoned their policy of reaching out to the courts in order to have the 17th Amendment implemented.
Sumanasiri Liyanage with Lawyer Ravi Jayawardene appearing for him set out on this well trodden path of petitions and appeals at a time when most other activists had given up on the idea of using the Supreme Court to force the implementation of the Amendment. To make matters worse, the respondent named in their petition was none other than his Excellency the President himself.
Until then, the court did not allow the President to be a respondent in any petition other than a Presidential Election Petition. This is because the Supreme Court held that the immunity provided to the President in the Constitution barred him from being made a respondent in any court in the country. In all previous Fundamental Rights Petitions, the respondent was named as the Secretary to President. Under such circumstances, it is unclear why the lawyer in this petition named the President as a respondent; it seemed clear the petition would immediately be rejected. To everyone’s surprise however the Chief Justice refused to reject the petition on these grounds stating that no one stands above the law.
As a result of the success of the petition the President must now appoint members to the Constitutional Assembly. Although this is the correct outcome it is not clear what effects the decision could have on the country’s decaying political system.
If the Supreme Court possessed the power to override the President and implement the Constitutional Assembly why did it refrain from doing so during the past six years?
Why did it on previous occasions, send back individuals who presented the same case empty handed? Does this mean that the powers which the Supreme Court possess can be enacted in any form that it wishes and at any moment when it wishes?
If the Executive and the Legislature have violated the Constitution by not implementing the 17th Amendment, surely the Supreme Court for years assisted the Legislature and the Executive in its non implementation. Therefore was not the Supreme Court itself in breach of the Constitution for at least 6 years?
Should only the Executive and the Legislature be punished when they violate the Constitution? Shouldn’t the Supreme Court be held responsible for taking six years to take the correct measures regarding the 17th Amendment. What of the loss incurred by the nation during the six years it took the Supreme Court to arrive at the right decision. If one goes by some of the strictures imposed on public officials by the Supreme Court in the recent past, the court will have to sack themselves.
The courts are an instrument of the people’s power and guarantee that the fundamental rights of citizens will be protected. When the courts themselves begin to abuse their power and act in breach of the Constitution, is this not a breach of the public’s trust?
Interpretations on the Chief Justice’s new activism are diverse. Some say that he intends to do as much as he can for the betterment of the country’s political system before he retires. Although reforming the country’s moribund political system is undoubtedly a meritorious cause, it is impossible to change this corrupt political system only by way of Supreme Court decisions. Remedying deficiencies in the system through Supreme Court decisions offers only a temporary solution to the nation’s problems.
Even before the current Chief Justice acquired his present position, the previous Supreme Court made a number of decisions which favoured the cause of the public. The latter gave orders to implement free and fair elections after the plunder of votes during the North Western Provincial Elections. Due to that decision those provinces were blessed with unprecedented freedom and independence during their elections. During that period the State did not use the State media for its propaganda purposes, and the police was largely unbiased but this situation lasted only until the current Chief Justice Sarath. N. Silva was appointed. He reversed the decisions made by the previous Supreme Court which served the interest of the general public.
Perhaps as a result of the guilt he feels on account of his own previous malpractices, he is now making decisions that uphold the public’s rights. Regardless of his intentions however, his decisions can easily be reversed by his successor. Ultimately the country does not need a temporary patchwork of remedial measures implemented through the Supreme Court rather, it needs permanent solutions, which can be only won by changing the political system.