When the United Kingdom’s Supreme Court in a landmark ruling held that Prime Minister Boris Johnson’s advice to the queen to prorogue parliament was unconstitutional, the air was similar to what prevailed in Sri Lanka in December last year, when the country’s highest court rescued parliament from the tyranny of the executive.
In Britain, the Supreme Court was a recent concept. It was set up only in 2009 consequent to a judicial reforms process started in 2003 primarily aimed at strengthening the concept of the separation of powers, especially with regard to the Lord Chancellor, whose office was seen as a fusion of governmental powers. He was a member of both the Cabinet (executive) and the House of Lords (legislature) and was the head of the judiciary. This was done away with the establishment of the Supreme Court in terms of the Constitutional Reform Act 2005. The reforms underline the evolution of Britain’s democratic tradition and a desire to vest in the judiciary as much independence as possible, unlike in Sri Lanka where judicial independence has faced its ups and downs.
Delivering the highest court’s unanimous ruling, Britain’s first female Supreme Court President, Lady Brenda Hale, conveyed a powerful message that governance is not for politicians to manipulate to suit their party or personal agendas. Though the court did not say in so many words, it saw Prime Minister Johnson’s prorogation as a move to prevent parliament from discussing his Brexit plan ahead of the October 31 deadline or a dishonest move to give effect to his no-deal Brexit. When she said the “decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating the ability of Parliament to carry out its constitutional functions without reasonable justification,” she was expressing the court’s belief that parliament has a hallowed duty to debate, discuss and determine all matters on behalf of the people. The ruling upheld the spirit of democracy in what is seen as the zenith of judicial activism.
However mighty you are, you are not above the law. That is independence of the judiciary. Johnson would have had the ruling his way, if the court had gone by the letter of the law, but, instead, the court chose to see the spirit of the law.
The law is not an ass, but the politicians who find loopholes to achieve their crooked motives are.
Now let’s turn to Sri Lanka. How many times has parliament been prorogued for devious political purposes? The last time it was prorogued it was to prevent the presentation of the COPE report on the bond scam. Oh, we wish we had a Lady Hale in Sri Lanka.
Judicial independence is a key pillar of democracy. In Sri Lanka, this hallowed principle is vulnerable to intimidation and political interference.
The high point in Sri Lanka’s judicial independence was seen in December last year when Sri Lanka’s Supreme Court and the Court of Appeal issued several rulings, underscoring the importance of constitutional governance and bringing an arrogant executive branch to its senses.
The superior court rulings restored the people’s confidence in the judiciary. Lower courts began to reflect judicial courage and activism. There was relief that everything was still not lost in this country. Some institutions still can make a difference. When in December last year, the Supreme Court ruling proclaimed that the President had violated the constitution, it was the moment we felt that the judiciary was not dead. We the people, at least the civic minded among us, not the sycophants paying feudal obeisance to politicians, were elated as though we had found a long lost close relative after having lost hopes of finding him alive.
The elation was not without a reason.
Since Sri Lanka adopted the 1972 constitution, the erosion of the independence of the judiciary has been a major concern among civic-minded civilians, especially in views of the high-handed actions of politicians in power to undermine the Separation of Powers concept and give more weight to the executive branch of the government.
With the adoption of the 1972 constitution, the separation of powers concept in its conventional sense was abandoned. The National State Assembly became a point of convergence for all three arms of the government in the name of — or under the guise of — parliamentary supremacy. The judicial power was not vested in courts while the power of judicial review of enacted legislation was taken away from the courts, although a constitutional court came into being to determine the constitutionality of the bills. The judicial Service Commission was replaced with an advisory board.
The 1977 United National Party government with its steamroller five sixth majority in parliament introduced the presidential form of government through the 1978 constitution. It rectified to some extent serious shortcomings in the 1972 constitution, but it left room for the executive’s interference in the judiciary, especially through the constitutional provision that made the President the appointing authority of judges to the high courts and above. Worse still, upon the adoption of the constitution, the new government sacked some Supreme Court judges and demoted some.
Until the 17th Amendment was incorporated into the constitution in October 2001, with bipartisan support, during the Chandrika Kumaratunga government, the judiciary remained vulnerable to the executive’s political demands. Notwithstanding the accolades, Kumaratunga came under a cloud for appointing politically slanted judges to the high posts of the judiciary. In an interview she later admitted the appointment of one particular chief justice was one of the two big blunders she made during her presidency. However, the 17th Amendment -- the rare piece of good governance legislation -- was upended by the Mahinda Rajapaksa regime’s 18th Amendment, which severely undermined the separation of powers concept. So much so, a Chief Justice who gave rulings unpalatable to the then government was unceremoniously impeached in a process that resembled a mafia court. It had been politics as usual for the judiciary since then. The judiciary stooped so low that a chief justice reportedly told the government just elected to office in January 2015 that he could be flexible.
Thanks to the corrective measures the present two-headed government took through the enactment of the 19th Amendment, judicial independence, so vital to the idea of separation of powers, has been restored. Judicial independence means courts and judges have freedom from inappropriate intervention in the judiciary’s affairs. It is important because courts and judges are constitutionally entrusted with the task of safeguarding the people’s rights and freedoms and upholding the rule of law to ensure that the law is enforced impartially and consistently, no matter who is in power, and without undue influence from any other source. It is election time in Sri Lanka and the question is: Where do we go from here? With the November 16 presidential election set to bring in a new political dispensation, one wonders whether the scales that Lady Justice held evenly last year during the constitutional coup, have begun to tilt. Whoever contests or wins, both politicians and judicial officers must hold judicial independence sacrosanct whatever the circumstances are.
Therein lies the future of Sri Lanka as a democratic state. As voters we must insist that the main candidates should spell out their policies with regard to judicial independence. We may be asking too much if we ask them what they have to say about Lady Hale’s ruling.