Govt. to disregard Appeal Court notices; digs deeper for showdown

| by Ranga Jayasuriya

( December 23, 2012, Colombo, Sri Lanka Guardian) The nominally electoral democracies, which mushroomed in the newly independent former colonies of the British empire largely failed in their democratic transition into functioning liberal democracies mainly due to one reason: Their own elected leaders, who gradually dismantled those very constitutional structures that helped them to come to power.

A Parliamentary Select Committee was appointed to investigate the charges levelled against the chief justice. Now they have given the report. And the president is planning to appoint an independent committee. Doesn’t  that mean the executive is ridiculing the legislature?

Many of those newly independent nations sought to get rid of constitutional mechanisms that the departing British introduced as bulwarks that would stand in the way of majoritarian impulses and abuse of power by politicians. Most of those constitutional mechanisms are of elitist nature such as the independent courts and independent bureaucracy, which kept tabs on the excesses of the elected offices. That was an anathema for the newly elected local elites who appeared to believe that an elected office was a carte blanche. However, one country which did not succumb to this trend was India. That was despite its diversity and abject poverty, which was further aggravated by the post independent closed economic model. One institution that made sure that India remained a democracy was its activists courts, which have regularly delivered rulings  in order to foster and promote fundamental rights of its citizens. The conduct of her neighbours had never been impressive, at least until recently when Pakistani Chief Justice Iftikhar Chaudhry set in motion a new wave of judicial activism, which effectively ousted one dictator (Gen. Pervez Musharaf) and disqualified an elected prime minister,Yousuf Raza Gilani, the latter for contempt of Court.
In Pakistan, the catalyst for the fall of Gen. Musharaf was the removal of the chief justice, which triggered a wave of  countrywide protests. It was a miscalculation on Musharaf’s part who had been overstretching his powers. Those are abject lessons that the ruling regime in Colombo should learn from its neighbours.
 However, the Rajapaksa administration seems to be pushing further to the point of no return in its face-off with the increasingly activist Judiciary. That was even after the Court of Appeal on Friday cautioned the speaker, who is also the president’s elder brother, that disregarding the Court directive would lead to a ‘chaotic situation.’
Chaotic situation
The Court delivered that determination, while issuing notices on the speaker and 11 members of the Parliamentary Select Committee to appear on January 3.
Issuing their determination, the three member judges of the Court of Appeal,  S. Sriskandarajah (President of the Court of Appeal) and Justices Anil Gooneratne and A.W.A. Salam stated: “This Court is of the view that any steps taken in furtherance of the findings and/or the decision contained in the report of the 2nd to the 8th Respondents marked P17 would be void if this Court after the hearing of this application issues a writ of certiorari to quash the said findings and/or the decision of the PSC. Therefore the relevant authorities should advise themselves not to act in derogation of the rights of the Petitioner until this application is heard and concluded, since any decision disregarding these proceedings to alter the status quo may lead to a chaotic situation”
The Court further noted the constitutional mandate of the Appeal Court and noted those powers cannot be abdicated by the executive or the legislature.
Following is an excerpt from the Appeal Court determination:
“The power of the Court of Appeal to exercise judicial review on findings or orders of persons or body of persons exercising authority to determine questions affecting the rights of subjects are wide and this power has been provided to the Court of Appeal by the Constitution of the Democratic Socialist Republic of Sri Lanka.”
“Therefore this power cannot be abdicated by the other arms of the government namely the Legislature or Executive.”
“Article 140 of the Constitution provides that: Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and examine the records of any Court of first instance or tribunal or other institution, and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto against the judge of any Court of first instance or tribunal or other institution or any other person.”
The Court also noted that the PSC in considering the charges against the Petitioner is “not exercising its legislative power but exercising powers of judicial nature, whether it can exercise judicial power against a person who is not a member of Parliament is a question that will be determined in another application pending before this Court.”
The Court also referred to the statement made by the speaker that a previous Supreme Court directive issued to him and the members of the Select Committee was a nullity and entails no legal consequences.
“On this ruling of the Hon. Speaker, this Court wishes to have it placed on record that the order to issue notice on the Respondents of this application is nothing but a legal obligation on the part of the Court to afford the Respondents an opportunity of being heard, thus adhering to the concept of audialterampartem.”
However, the government is bracing for further confrontation.  Yesterday, the deputy speaker ChandimaWeerakkody speaking in a programme conducted by the state controlled ITN, said that the speaker and the Parliamentary Select Committee members would disregard the Court notices and would adhere to the speaker’s earlier ruling.
He noted that former speaker Anura Bandaranaike issued a ruling of the similar nature and the former chief justice Sarath N. Silva conceded.
However it is not clear whether the deputy speaker was speaking on behalf of the four opposition MPs who served in the committee. The four opposition MPs walked out of the PSC in protest, citing the bias on the part of the PSC.
The government is digging deeper. However, by doing so, it is further aggravating an already complicated crisis involving two pillars of governance. Should the government succeed, that would come at the cost of the independence of the Judiciary.
Last week, the judicial review of the Constitution was challenged by cabinet spokesman and Minister Keheliya Rambukwella.
Following is an excerpt from the Q & A session held during the cabinet press briefing.
What is the issue with the  judicial review of a bill?
Has it been stated anywhere that the Judiciary is more supreme than Parliament. If there is any evidence, show me one paragraph of it. There should be a limit for these interpretations (by the Court). There can be areas where the interpretations are accepted and there are instances where they are rejected. Now you are asking me why people go to court if Parliament is supreme. I am not saying there is no point of going to court.
You are saying that the Court should not go beyond its limits when intercepting the constitutionality of a bill. Are you suggesting the Court exceeded its limits when interpreting the Divineguma bill?
Parliament has already taken a decision on that. If you want I will give you a full report.
A Parliamentary Select Committee was appointed to investigate the charges levelled against the chief justice. Now they have given the report. And the president is planning to appoint an independent committee. Doesn’t  that mean the executive is ridiculing the legislature?
Not at all. When there is an issue, there is a procedure to analyse it . Therefore, why an independent committee is appointed is to analyse the issues in full and to enlighten the president. It is not a process that goes beyond that point.
( The Writer, Editor of the Lakbima News, where this piece was originally appeared)

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