Monday, 12 November 2018 03:44

Judicial Sovereignty Needed To Safeguard National Sovereignty - Jehan Perera

Several political parties and civic groups are to file appeals to the Supreme Court against the dissolution of parliament by President Maithripala Sirisena. Their common position is likely to be that the president has acted in violation of the 19th Amendment to the constitution. This amendment meant to restrict presidential power was passed virtually unanimously by parliament with only one dissenting vote in April 2015 shortly after the change of government that was occasioned by President Sirisena’s victory at the presidential elections earlier that year. At that time, and subsequently on innumerable occasions, the president referred to the unprecedented sacrifice he has made in curbing the powers of the presidency through the 19th Amendment. The president also received praise locally and internationally for his statesmanlike attitude towards power.

The case regarding the dissolution of parliament that is coming up before the Supreme Court is an especially important, and challenging, one for several reasons. On a layperson’s reading of the constitution, it appears that President Sirisena has been advised, or misadvised, that notwithstanding the 19th Amendment his presidential powers are so omnipotent that he can do virtually everything. Indeed, this was also the vision of the architect of the present constitution, former president J R Jayewardene, who in 1978 proudly said that it gave him all power except the power to turn a man into a woman. The resort to the Supreme Court is to seek the court’s verdict on the limits of presidential power as set out by the constitution. This will be an important decision as it will impact not only on the present issue but on the manner in which presidential power is used in the future.

There is also a second reason why the answer that the Supreme Court gives to the present set of issues brought before it by the political parties and civic groups will be important. This is whether the Sri Lankan judicial system can pass the test of international standards and will have consequences for the economy and not only for the polity. Foreign investment will only come into the country if foreign investors feel confident that the national legal system will protect them from arbitrary actions. The failure of the Rajapaksa government to show that it could reach international standards in matters of dealing with human rights violations and war crimes, led to efforts to bring in international experts and investigatory bodies into the country. There was also an imminent threat of international investigations into those allegations. These were forestalled by the Wickremesinghe government’s pledges to reach international standards though Sri Lankan institutions themselves.

The 19th Amendment restricted the president’s ability to make arbitrary appointments to high offices of state. It also prevented the president from acting to change the prime minister in the absence of one of three conditions being satisfied. These were in the event of a voluntary resignation, loss of vote of confidence in parliament and failure to pass the budget. In addition, the 19th Amendment restricted the president’s power to dissolve parliament until four and a half years had elapsed since the term of parliament had begun. This would be the plain reading of relevant sections of the constitution and would be a layperson’s interpretation. However, those on the president’s side claim that the president was within his constitutional powers to sack both Prime Minister Ranil Wickremesinghe and to sack parliament before it had crossed the four and half year threshold.

Underlying the various arguments put forward by supporters of the president’s actions is the notion that the sovereignty of the people is uppermost in a democracy. Such arguments are based on the notion that democracy is about the rule of majority. Accordingly, what the majority wants is what the government should stand for and do. The thesis that they put forward is that the people want a change of government and that was seen at the local government elections held in February this year in which the parties of the government alliance did not fare too well. According to them, the sovereignty of the people justifies the drastic actions that the president has taken in sacking first the prime minister and then the parliament.

The sovereignty of the people is undoubtedly an important aspect of democracy. But democracy is also more than doing what the majority at a certain point of time want to do. It is true that in February 2018, the government alliance performed poorly at the local government election in comparison to the opposition. But in August 2015 when general elections were held, they fared better and were able to garner a majority with a mandate to govern for five years. That mandate stands for five years. Only a little more than three years of that five year mandate has yet elapsed. In mature democracies, it is not only the wishes of the majority that are heeded, the rights of minorities are protected, the rule of law is enforced and corruption is outlawed. And in order to ensure that these happen, there is a separation of powers between institutions so that the best interests of the people are safeguarded.

What is happening at present in Sri Lanka is the opposite of protecting the sovereignty of the people or their best interests. This can be seen in the reappointment of ministers accused of high levels of corruption to the very ministries they are accused of having looted when in power during a previous period, and for which wrongdoing they have had cases filed against them by the Attorney General’s Department in the courts of law. The violation of the sovereignty of the people can also be seen in the shutdown of parliament for over ten days without permitting the elected representatives of the people to choose who should be their prime minister. And now it can be seen in the sacking of the entire parliament due to the fact that parliament stood firm and its members did not break ranks and cross over to the other side in the face of the allure of money and position.

It is in these dire circumstances that the courts of law are now going to be tested. It has been said down the ages that the courts are the last refuge of those who are weak, victimized and unjustly treated. But the judiciary does not exist in a vacuum. It exists in a politically determined time and space. In general, in democracies that are still relatively fragile or volatile, the judicial branch of government is deferential to the executive branch when it is called on to decide between the rights and wrongs of the executive branch in relation to others. The executive branch which is backed by the coercive apparatus of the state can intimidate or punish those who oppose them. This was the fate of former chief justice of the Supreme Court, Shirani Bandaranayake, when she started to give rulings that were adverse to the government of the day.

Now with the sacking of the Wickremesinghe government there is a possibility of international scrutiny of the country’s human rights practices increasing. The International Commission of Jurists (ICJ) has recently stated that the removal of the Prime Minister in violation of the law or constitutional provisions would constitute a violation of Sri Lanka’s commitments to the international community. The ICJ statement goes on to say that “The Human Rights Council will be watching closely to assess whether Sri Lanka is in breach of its commitments. Any serious threat to progress on human rights accountability will compel the establishment of an independent accountability mechanism.” Such an external intervention will not be in Sri Lanka’s best interests and can be forestalled by a demonstration that Sri Lankan institutions remain strong. The independence of the Supreme Court that is manifested in both deeds and appearance will be the best safeguard of national sovereignty.