So will the Executive stop treating the Judiciary as a lesser power?

| by Basil Fernando

( October 24, 2014, Hong Kong SAR, Sri Lanka Guardian) It must have been somebody’s idea that judicial independence in Sri Lanka must be destroyed. When the idea was first generated we do not know. It is possible that it arose more or less at the same time as the 1962 coup. Those were wild times for some people who had enjoyed privileges at the top. They were unanimous in their opinion that everything has gone wrong in Sri Lanka and that, therefore, some extraordinary intervention was needed. The idea behind the coup was that democracy should be replaced, or at least modified, to preserve the privileges enjoyed by the elite from the challenge of people claiming democracy as their own. The coup failed; but the ideas around the coup remained; and others, who wanted to achieve some of the ideals through other means, nursed these ideas. The opportunity came when one person considered by all to represent the epitome of reactionary ideas J.R. Jayawardena obtained 5/6th of the seats in the 1977 parliamentary election. The year that followed was when a small “clique” of people put their heads together to come out with a political model within which democracy would be drastically modified, so the idea of people having a greater say through a democratic form of government could either be annihilated or, at least, pushed back for a long time.

This small “clique” of persons who designed the 1978 Constitution had their own reasons to oppose the Judiciary as an independent branch of government. Those who had a taste of the aftermath of the coup would have remembered that a strong Judiciary, protecting the investigative branch, was able to convict leaders of the 1962 coup. It was the Privy Council in England that finally saved these leaders. If such a power is to rest with the Judiciary, it may object to the realization of the ambitions that the makers of the new Constitution wanted to achieve. They formulated the idea that, for development and economic progress, a strong executive was necessary. A strong executive implied a weak judiciary and also a weak legislature. Thus, the equations that were found in the 1948 Constitution, based on the classical separation of power concept, needed to be changed in favour of a new equation in which the Executive was a higher power and the Judiciary and the Legislature were lesser powers.

Which individual was more vocal in favour of this new equation none of us will ever know. Was it H.W. Jayawardena QC, who was the closest associate of President Jayawardena in making of this Constitution or was it someone else? We do not know. All that we may say with certainty is that it was J.R. Jayawardena, who was the then the Prime Minister, who approved this scheme. He had good reasons to do so; his own personal ambition to retain power for as long as possible could be better achieved under the new equation, where challenges to his authority could not ever be pursued in the Courts.

This overall scheme of the constitutional model, which altered the classical separation of power model in Sri Lanka, is what is at the heart of any real change into the 1978 Constitution. Now, an amendment, entitled the 19th Amendment, has been proposed. The basic question in reviewing the 19th Amendment is whether it meets with the requirement to re-establish the equations between the Executive, the Judiciary, and the Legislature as three separate branches that embody separate powers for each of the branches has really been guaranteed.

These days, President Mahinda Rajapaksa says he is the one who wants the Constitution to be changed more than anyone else. Does this mean that he wants the Judiciary and the Legislature to be brought to equal status, in terms of the classical separation of power doctrine? Does it mean that his ideas have changed about the Judiciary, from those consistently exhibited throughout the chain of actions that reduced the Judiciary to a position of a lesser power? If this is so, then he is expressing a willingness to undo all the measures he has taken to ensure that the Judiciary is in no position to challenge his decisions, even when these decisions have violated the basic protections for personal and property rights. It also means that he is willing to abandon the President’s arbitrary powers for appointment and dismissal of judges. This, in turn, implies that he wants to remove the possibilities of arbitrary removal of judges, as in the case of the removal of Chief Justice Shirani Bandaranayake, and of arbitrary appointments, as in the case of the appointment of Mr. Mohan Peiris as Chief Justice and several other judges.

In short, does he want the changes to the relationship between the three branches of government, introduced in the 1978 Constitution, to be removed altogether?

These questions are justified to weigh the credibility of his stated willingness to change the Constitution. These considerations would show that the question of changing or not changing the Constitution depends not on the question of some groups claiming a separate state. The real issue is whether the President wants to stop treating the Judiciary and the Legislature as lesser powers.

About the author: Basil Fernando, Director Policy and Programme Development, AHRC/ALRC