| by Basil Fernando
( December 26, 2012, Hong Kong, Sri Lanka Guardian) The construction of a government that prevents one person becoming the prey of another can be said to be the aim of constitutionalism. Ever since Montesquieu, the greatest of political thinkers and statesmen have struggled to develop principles to achieve this aim of preventing citizens becoming prey of rulers who rule not for the purpose of achieving the greater good for the people, but to enrich themselves at the expense of the nation. The foundations of most of constitutions developed to achieve this aim are based on the work of John Locke.
The recognition of the liberties of the individual as a central concern is one of the major characteristics of a government that is created for the purpose of preventing authoritarianism, which simply means the attempts by the ruler to control the nation for the benefit of him or herself as against the interests of the population. Without embedding the liberties of the individual as enforceable rights, it is not possible to have a form of governance that is for the benefit of the people.
The development of the idea of the separation of powers arises from the recognition that the liberties of individuals are a part of the structure of the government. That the executive should be controlled by a system of restrictions on power led to the recognition of separate branches of government. Such separation, therefore, cannot be artificial and has to be genuine, so as to bear concrete results when disputes arise between the ruler and the individual citizens.
The development of judicial power arose from this recognition of the conflict that is unavoidable between the ruler and the individual citizens or groups of citizens. In such conflicts, the settlements need to be fair and the working out of such fairness is what is called justice. Thus, there is always a conflict between power and justice. The task of those who hold judicial power is to protect the individuals or groups of individuals without allowing them to become prey for those who hold power. If those who hold judicial power are unable to do that, then their existence has no purpose.
The right of the judicial review of legislation arises from these same principles. In the name of making laws, the rulers should not be allowed to suppress the rights of individuals or groups of individuals. To put it in another way, legislation should not be a means of making individuals or groups of individuals prey of those who hold power.
Thus, the judicial power and the power of judicial review are inseparable. To say that there is the separation of powers is to say that the judiciary has judicial power. To say that judges have judicial power is to say that they have the power to review legislation.
That even this simple premise has become a matter of dispute in Sri Lanka shows how some people have become so powerful that they claim the right to make prey of others.
When Justice Vigneshwaran spoke of the constitutional tomfoolery played in Sri Lanka, what he was pointing to was the way that the very basic principles of constitutionalism have been distorted by the 1978 Constitution and how the 18th Amendment to that Constitution has completed that distortion. This tomfoolery has made the Sri Lankan legal system into a dysfunctional system. The present attempt to remove the Chief Justice of the country without observing the internationally recognized norms relating to such removals will further destabilize the entire legal system of the country.
Everyday events are showing the extent to which the whole system is distorted. Take, for example, the situation of a village, now well-known to everyone due to a large number of mysterious killings that took place there. The murders took place in the village of Kahawatte, where about 20 persons were brutally killed within a short span of time. Now reports are coming out about how some of the alleged murderers are being dealt with. Two people were reported to have been shot dead after they were released on bail. A third person has gone missing since last week, also after getting bail. It was not long ago that four persons who were initially arrested as suspects of a brutal murder were found dead with gunshot injuries, with their hands tied behind their backs and blindfolded. The suspicion is that these killings are done by the police or paramilitary groups, and that this is the way crime is being dealt with in Sri Lanka.
In some other cases, the suspects have connections to the government. It is just under a year ago that a British citizen was brutally murdered by the Chairman of the Pradeshiya Sabha, Sampath Chandra Pushpa Vidanapathirana and others, in Tangalla. A Russian girl, who the murder victim was protecting, was also attacked and narrowly escaped death. However, the suspects are now roaming freely.
Thousands of similar situations have been reported.
The attempt by the rulers in Sri Lanka to manipulate and play the fool with the constitution and other laws has created this situation.
These are matters that should be a big part of the discussion on the impeachment issue. Do Sri Lankans want to continue to be the prey of their rulers or do they want a rational form of governance that will protect them from being such prey? If the people want the latter, then they should protect their judiciary, which is their last resort when they are faced with assaults because of the failure of governance.
None of these serious matters are of any concern to the state media. The state media does nothing at all to expose the failure of the system of governance in the country. Their attack is on those who do try to expose these matters and call for a reform of governance in order that the people’s security can be assured. Cynics who support constitutional tomfoolery lead these state media programs. Such cynics, who get paid with taxpayers’ money, sing songs for those who prey on the people themselves.