A judicial rebuke to executive excess

| by Harim Peiris

( September 27, 2012, Colombo, Sri Lanka Guardian) It was the French philosopher and scholar, Baron Montesquieu, who argued in his popular work, "De L’Esprite de Loix, the importance of the separation of powers in a democracy, between the executive, the legislature and the judicial arms of the state. The executive and legislative powers of the state may be vested in a government, but the judiciary should act distinct from and independent of the government of the day, to dispense justice according to law, a key requirement for a society governed by the rule of law.

President Rajapaksa in Kilinochchi, on Tuesday, 25 Sep. 2012

Further the powers of these organs of the state vary. It was a well known Indian jurist who commented that the Executive commanded the power of the gun or the use of state force, the legislature control over the state’s finances or the power of the purse. The judiciary on the other hand had neither force nor money, except the trust of the populace that it served justice without fear or favour, often typified by the image of the blind folded lady with the scales. Accordingly it is crucial that the judiciary in Sri Lanka not only dispense justice but be seen and believed to be doing so. Governments’ operate on the basis of the views of the majority. The Rajapakse administration is more than happy to govern Sri Lanka according to the wishes of its core constituency. The judiciary on the other hand must have a much broader and near consensus acceptance of its integrity by the populace and needs to ensure the executives’ compliance with the rule of law.

It was therefore refreshing and long overdue that the Courts and the Judiciary recently gave a stunning rebuke to the executive. One hopes as the ensuring drama unfolds, that the judiciary will not back down. In Sri Lanka, the Courts have been generally, more often than not, reluctant to take on the executive and to seriously act as a restraint on governmental excess. But refreshingly and reassuringly more recently, the courts have seemingly been more ready to examine issues, independent of executive convenience and government wishes. The current unusual spat between the government and the courts seem to have arisen both due to the Supreme Court’s determination on the "Divi Neguma Bill" and also due to the interdiction of a judicial officer with known close links to government insiders. This clash between the executive and the judiciary, specifically the Judicial Services Commission (JSC) also arose in the context of a stoning and attack on the Mannar Magistrate, allegedly by a Government Minister, who received no censure or punishment, but rather only support from the government.

Government receives a rebuke

The Rajapakse administration seemingly believes that there is no limit on the extent of its executive power. Especially after the passage of the 18th Amendment to the Constitution, as one political analyst noted, if there was any doubt that Sri Lanka has an elected dictator system rather than an elected presidential system, then the 18th Amendment removed the last vestiges of doubt in that regard. One key aspect of the judiciary and especially a nation’s Supreme Court, tasked with safeguarding constitutional governance is to clearly demarcate and indicate what is a legal exercise of power according to law and on the contrary to define what is ultra vires the constitution and hence null and void and of no force or avail in law. One such act of executive excess was when the constitutionally created Judicial Service Commission (JSC) comprising of the Chief Justice and two senior judges of the Supreme Court and tasked with judicial oversight of the dispensation of justice in the country was summoned for a meeting by the Executive to discuss its work and functioning. Clearly the executive believed it was within its purview to supervise and manage the Judicial Service Commission, much like it manages the Police Commission, the Human Rights Commission, the Public Service Commission and all other such commissions now, post 18th amendment, clearly subservient to the executive. The rather obvious exception of course had to be the Judicial Service Commission (JSC). Obviously the executive didn’t believe so and summoned the JSC for a meeting regarding its affairs. The JSC had an internal meeting amongst itself and decided quite rightly that it should not attend any meeting regarding its own functioning, which is constitutionally mandated to be independent of any government interference. The Bar Association of Sri Lanka has strongly backed the Judicial Service Commission. Executive interference with the judiciary is never acceptable in a democracy and is sometimes not good for even the political well being of the executive as the experience of Pakistan demonstrates.

Pakistan experience

Pakistan underwent a similar experience a few years ago. Military hero retired General Pervez Musharaf was the popularly elected civilian President of Pakistan when he overreached himself and sought to dismiss Pakistani Chief Justice Chaudhry. Similar to the Sri Lankan executive fiat to the JSC being ignored, the Pakistani Chief Justice, refused to let himself be dismissed and considered the President’s move as null and void of no force and avail in law. The Bar Associations of Pakistan backed the Chief Justice fully, leading to street protests by lawyers and bringing the work of the Courts to a standstill. President’s Musharaf’s attempt to place the Chief Justice under some form of house arrest only escalated the conflict and eventually it is now, former President General Mushraff ruing his missteps in voluntary exile, while Chief Justice Ifthikar Chaudhry continues to serve as the presiding judge of Pakistan’s apex Court.

The lessons from the South Asia region then for Sri Lanka should well be to allow the judiciary to function independently and impartially with integrity. However powerful and popular an executive might be, the separation of powers between the executive and the judiciary is essential for democracy, in Sri Lanka as well as elsewhere.