| by Victor Cherubim
(October 1, 2012, London, Sri
Lanka Guardian) The acid test of freedom of expression is the independence of
the judiciary.
In Sri Lanka over the years since
independence we have been proud of two institutions, the supremacy of
Parliament and the supremacy of law. The supremacy of parliament was
overshadowed by the Republican Constitution of 1978.Article 35 – (1) of this
Constitution places the executive president above the law.
The powers of the parliament and
the rule of law system are greatly reduced. Parliament has no law making
capacity of its own, if the executive president cannot make laws. Besides, the
executive presidential system does not allow for the independence of the
judiciary.
The judicial system can only then
be independent when government policy and the judiciary function are not in
conflict. But the judicial system however, is not completely subjected to
government policy. It might indirectly operate under government policy but use
its limited powers to influence judicial decisions. We hear the common term
used in legal circles “law and peace”
(“neethiya samaya”).This means
that whatever the State does in the name of achieving peace is deemed legal.
Thus if the judges make decisions
purely on the basis of administrative considerations into account, their
decisions take on an administrative nature and they lose their juridical
substance.
“The logic underlying the
exercise of justice is that of the Executive – it is not a logic based on the
foundations of legal knowledge.”
Hardly had the historic visit at
the invitation of the Speaker of Parliament, Chamal Rajapaksa, to the highest dignitary of the Standing
Committee National Peoples’ Congress, China, Wu Bangguo ended, another historic
event occurred. The Supreme Court informed the Speaker that the proposed Divi
Neguma Bill before Parliament needed the approval of the Provincial Councils
before being adopted as law by Parliament.
The bill proposes the
establishment of a new department called Divi Neguma Department by amalgamation
of the Samurdhi , Southern Development and the Udarata Development Authorities
respectively.
The Economic Development Deputy
Minister stated that there are attempts to create a conflict between the
Judiciary and the Executive. Persons with vested interests have taken the
proposed Divi Neguma Bill to Court in order to create a conflict between the judiciary
and the executive.
The Minister further stressed
that the Government would never interfere with the judicial process.
The Opposition charged that it
was a direct attempt to centralise powers that came under the Provincial
Councils.
On the heels of this
announcement, the Bar Association of Sri Lanka (BASL) adopted two resolutions
against the threat and influence against the country’s judiciary by certain
executive agencies, attacking the autonomy of the Judicial Services Commission
(JSC).
The message being conveyed in all
these pronouncements has been articulated by Eran Wickramaratne to the Business
Times on the Budget 2013, that the independence of the judiciary from the
Executive, which he said was possible, only if the salaries of judges are
sharply increased:
“Invest in the judiciary and rule
of law and investment will flow, budget deficits will reduce.”
The President, as Finance
Minister is too well aware of this, but he is cautious, especially in the
present financial crunch situation, and the confrontation with trade unions.
However, in another concern, State institutions are being directed to provide
compulsory savings of 12% in the 2013 Budget spending review.
Whilst demands are growing to
abolish the 13th Amendment, what we are further witnessing is without changing
the rigid Constitution, the Executive is sending a message that adjusting and
accommodating to the changing circumstances is in order and necessary. The
public is sensitive to the rule of law and the time is ripe to strengthen the
rule of law of the country.
President Rajapaksa is adept at
calming troubled times. Whether it is pacifying “Big Brother” India by meeting
the TNA leader, Sampanthan, days before his Sanchi visit, or confronting his
Minister Rauf Hakeem in his demands for the Muslim community, or for that
matter taking head on the deposed Chief Minister of North Central Province and
relieving tensions, in all these instances being sensitive to impending issues,
we hope is reaping dividends for national unity.
The advantage of an unwritten
Constitution as in U.K, is that evolution of the rule of law can take precedence with changing
circumstances in the nation. Like many other nations, with written
Constitutions, in Sri Lanka, progress may be hamstrung, but the protection of
fundamental rights is available, but at a price.
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