Elections In Sri Lanka – A Lawyer’s Point of View

Whether or not justice is meted out with fairness and equity in a country is purely a subjective issue, but whether fairness in the administration of justice should be in an election manifesto of a candidate is certainly an objective criterion.

by Dr. Ruwantissa Abeyratne
Writing from Montreal

“There must be a lot of duplication in our country’s laws," said Dukhi. "Every time there are elections, they talk of passing the same ones passed twenty years ago. Someone should remind them they need to apply the laws."

"For politicians, passing laws is like passing water," said Narayan. "It all ends down the drain.”
― Rohinton Mistry, A Fine Balance

By the time this article is published, the results of the much awaited, and indeed much debated general election would have been held and the results known. Leading up to this momentous event, expatriates such as myself could only measure the candidates and their eligibility through social media which had its own share of lobby groups mudslinging at the allegedly known “crooks” on the one hand and adulating self-proclaimed “saints” who could, and would, if elected take the suffering populace to a utopia hitherto never seen. There were also warnings against voting for geriatrics; crooks of all shapes and charlatans intent on charming an unsuspecting and oftentimes gullible proletariat.

Of course, almost all the election promises were to make the lot of the downtrodden better. Fundamentally the theme was economic prosperity which would offer a better deal in food, shelter, clothing and education based on Abraham Maslow’s foundation of the hierarchy of needs. Even if there were promises of fair play and justice, which is one of the essentials of good governance, it was not readily evidenced through the claims of the panjandrums who occupied the social media.

Whether or not justice is meted out with fairness and equity in a country is purely a subjective issue, but whether fairness in the administration of justice should be in an election manifesto of a candidate is certainly an objective criterion. It is in this context that a fair judicial review should be guaranteed to the populace by any well-meaning statesman.

Judicial review is grounded on the administrative action taken in pursuance of implementing a law, rule or regulation. It is a truism that laws are adopted by the legislature whereas usually, rules and regulations are enforced by the executive on whom the legislature vests power and authority. This authority is used through administrative action and a leader elected through the democratic process should ensure that both administrative action and judicial review are applied through the rule of law. This essentially means that an elected leader should eschew arbitrary and capricious centralization of power.

Roscoe Pound, Dean of Harvard Law said in 1920 that genius of administrative action through commissions endangers the doctrine of the supremacy of law. Commissions established for purposes of administering rules pose one of the dangers of impairing the effectiveness of administrative law. In his book "Is Administrative Law Unlawful? " Philip Hamburger, Professor of Law at Columbia University posits that the centralization of power which deviates from a popular mandate or judicial scrutiny leads to a certain insularity brought upon by bureaucratic ineptitude. It is hard to disagree with this premise as the centralization of power would in turn lead to creative inertia and the causal illusion that, in a so-called democracy, the system runs smoothly and justly. Often, this centralization of power leads to an erosion of the fundamental implementation of the process of administrative law which is enactment (by the legislature); execution (by the executive) and adjudication (by the courts).

Leaders should be wary of the dangers of creating subordinate bodies such as commissions composed of unqualified and self-serving individuals. The creation of commissions more often than not vests power in inept and inefficient entities comprised of political appointees with partisan views and vested personal interests. The process suffocates democracy and the rule of law, making sycophants of the executive and the judiciary. It is interesting to inquire how this blatant subterfuge and disingenuous practice can erode the foundations of administrative law.

P.P. Craig, in his book Administrative Law states: "The legislature and courts will both be of importance in determining the shape of administrative law. It should never be forgotten that it is the legislature which enacts the policies which are directly constitutive of the administrative state. It will be the legislature which chooses whether these policies should be imbued with, for example, a market oriented neo liberal philosophy or one which is more social democratic in its orientation. In this sense, the shape and nature of administrative law will be profoundly affected by the philosophy which underlies government policy. The courts also have a major influence on the nature of the subject. They will decide what particular constraints to impose on administrative action, and more generally on the overall purpose of judicial review. Administrative law, when viewed this way, is always a combination of what is going on in the political world, combined with the reactions of the judiciary”.

What commissions do, as Dean Pound said in 1920, is eliminate the supremacy of the law. In fact, eliminate the law in its totality, giving power to the executive (or executive president as the case may be) to do as she pleases, whether to sack a president and CEO of a company owned by the government, or dispense with a high government official, without giving that person recourse to the law.

At common law, which is applicable in England, there lies a remedy in judicial intervention if a government department promulgates advice in a public document that contained directions or advice erroneous in law. In such an instance, as was pronounced by Lord Bridge, in the 1986 Gillick case , although in general such non-statutory advice cannot be questioned by judicial review, the exception to this general rule lay in instances where such advice was inconsistent with the law, where the courts could intervene. The judiciary could also interpret the meaning of codes, circulars and other similar documents, and review the interpretation of such documents by any government entity. There is also the issue of legitimate expectation of the victim of an administrative decision, towards such a decision being consistent with applicable law, and the courts can go into whether such expectation was obviated or eroded.

The courts could also inquire as to whether a decision had relevancy, purpose, reasonableness and was not taken as a result of or corollary to an abuse of discretion. Historically, common law courts have reviewed and exerted control over discretion exercised by public bodies, tribunals and agencies with a view to preventing misuse or abuse of discretion.

The Standing Committee for the Scrutiny of Regulations of Canada has stated: “"When Parliament confers a power to make regulations, the regulation-maker usually exercises this power by drafting the text of the regulation to be enacted. The regulation-maker may also decide that the contents of an existing document are what should be used in the regulation it intends to enact. One way to make the contents of such a document part of the text of the regulation would be to reproduce it word for word in the regulation. Alternatively, the regulation-maker can simply refer to the title of the document in the regulation. The contents of the document will then be said to be “incorporated by reference”. The legal effect of incorporation by reference is to write the words of the incorporated document into the regulation just as if it had actually been reproduced word for word. The incorporation by reference of an existing document is no more than a drafting technique, and a regulation-maker need not be granted any specific power in order to resort to this technique. This is referred to as “closed” or “static” incorporation by reference.

At the apex of judicial review are the courts which are the ultimate arbiters of the administration of justice in a democracy. In the 1803 seminal case of Marbury v. Madison in the United States, three basic principles of judicial review were upheld. They were: it is the duty of the courts to pronounce what the law is and to interpret it and inquire whether a law has violated the basic tenets of the Constitution of the country; decisions of the Supreme Court are the final authority on the status and interpretation of the Constitution; and decisions of the Supreme Court are the final word on the Constitution. These principles were endorsed in 1958 (155 years after the handing down of the Marbury decision) in the case of Cooper v. Aaron which was co-signed by all 9 judges of the Supreme Court.

It would be interesting to learn how many voters in Sri Lanka considered the sincere promise of equal access to justice and proper judicial review as an essential prerequisite for a leader to be elected.

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