By Basil Fernando –
The SLBC programme inappropriately entitled “People’s Power” is continuing with its misinformation campaign against basic principles of constitutionalism. On the programme that aired on the 13th of December, there were amusing misinterpretations of the constitutional history of the United States, as well as of Sri Lanka. The commentator of this programme, Mr. Rajpal Abeynayake, states that the United States Constitution does not enshrine the judicial review doctrine and that it was brought in later. The United States Constitution is based on the basic principles of liberal democracy and the separation of powers; the independence of the judiciary is at the very heart of that constitution. The power of judicial review arises from the principles of the separation of powers and the independence of the judiciary. As articulated in Marbury v Madision in 1803 by Justice John Marshall, the doctrine of judicial review is based in Article 3 of the US Constitution, which states the independence of the judiciary.
The simple basis of all the constitutional aspects is the recognition of the conflict between the exercises of power and the liberties of the citizen. The task of the judiciary is to protect the liberties of individuals when the power of the state infringes on these liberties. The power of judicial review arises from this duty of the judiciary to protect the liberties of the citizen. The essence of judicial review is to see whether there are any conflicts with the liberties of the individual, and to declare such an infringing law to be null and void and without any binding effect. The concept of the independence of the judiciary will be without meaning if the judiciary has no power to declare a law invalid if such a law infringes on the liberties of individuals.
In France there is a constitutional council, which is above all the organs of the government and has the power of judicial review into the constitutionality of any matter whatsoever. After the Second World War, Germany created their constitutional court, which also holds similar position. This German court was created due to certain limitations of the Weimar Constitution, which led to the emergence of the dictator Adolf Hitler. Prevention of dictatorship is an essential responsibility of the judiciary. Upholding the constitution implies prevention of every attempt to undermine it abolish it altogether. The United Kingdom does not have a written constitution at all; however, judicial review is part of the constitutional principles and tradition of Britain.
In India, Indira Gandhi attempted to amend the constitution in order to limit the powers of judicial review of the Indian judiciary. The Indian Supreme Court defeated this attempt, declaring in historic judgment that the basic structure of the constitution cannot be amended. Kesavananda Bharati (petitioner) against State of Kerala and others (respondents) [All India Reporter 1973 Supreme Court p. 1461]
Thus, Indira Gandhi’s attempt to do what JR Jayewardene succeeded in doing in Sri Lanka was prevented. It is not the abuse of judicial power that the Sri Lankan judges are guilty of. In fact, their fault was that they did not take an adequately bold step to protect their own power. Had they done what the Indian Supreme Court did, Sri Lanka would not be in the terrible mess that it is in now. Any further weakening of judiciary will have disastrous consequences by way of further destruction of the liberties of the citizen.
This radio programme went on to misinform the public that it was JR Jayawardene who introduced judicial review to Sri Lanka. Anyone with even the least acquaintance with the Sri Lankan law would know that the Sri Lankan judiciary has exercised the power of judicial review from its very inception. There are cases that demonstrate this even in the colonial times. The Soulbury Constitution was modelled on the tradition of liberal democracy and incorporated the principles of separation of powers and the independence of judiciary. The judges exercised judicial review and declared many laws illegal on many occasions. The1972 Constitution limited this power of judicial review by prescribing that the constitutionality of a bill can only be reviewed by the judiciary before its promulgation. The 1978 Constitution merely repeated this provision. Thus, the written constitution of 1972 and 1978 did not introduce the power of judicial review, but rather reduced this power and limited it to be exercised within a limited period.
The silly attempts by Rajpal Abeynayake to misinform the public on the history of judicial review in Sri Lanka is a result of the ludicrous position that the commentator has been pushed into in trying to find ways to justify the impeachment process, which has come under severe attack in Sri Lanka, as well as by authoritative statements from important sources such as the Commonwealth Secretariat and Commonwealth Association of Judges and Lawyers, from the United Nations, from Law Asia and from persons of high international repute, including Sri Lanka’s most senior judge C. G. Weeramantry. Had the commentator of this programme paid any attention to the public statement from C. G. Weeramantry, he would not have demeaned himself to publicly uttering such rubbish through this radio programme.
The commentator tried to support his position by citing an article published by Nath Amarakoon in the Daily News. Abeynayake told his readers that the writer is no ordinary person, maybe with the view to give some credence to his views. Amarakoon tried to argue that in the interpretation of laws the judiciary must promote public interest. This is a clear vulgarization of the words public interest. The judiciary’s primary role is to protect the liberties of the citizen. Any legislation that infringes on civil liberties cannot be in the interest of the public. The public means the people and it is not in their interest to have their liberties crushed. George Orwell’s warning about the distortion of words is quite relevant here.
Amarakoon also goes on to state that the Chief Justice is an employee of the executive and therefore should not go against the legislation promoted by the executive. Amarakoon has forgotten that making legislation is not the task of the executive but that of the legislature. He further forgets that the judiciary is a separate branch of the government and the Chief Justice is the head of that branch. If Amarakoon’s prescription that the employee should do what the master wants is carried out, then both the legislature and the judiciary would cease to be independent branches of government. One wonders as to how anyone could promote such a silly idea.
However, both the commentator and Nath Amarakoon seem to believe that the government means the executive, and thus promote an authoritarian form of government and not democracy.
That state media is being used to misinform the public about the country’s constitution itself demonstrates the extent to which power is abused today. If all abuses of power can be justified on the basis of public policy and public interest, then every dictatorship should be held as a model to be followed in Sri Lanka.
The basic assumption in the views of both these gentlemen is that elected representatives are in a superior position than non-elected judges. Such a view could only lead to the makings of dictators brought about through the ballot.
It should also be noted that the judiciary does not review the government’s policies by way of judicial review. It only reviews legislation. There is a vast difference between a policy and a law. People do not obey policies. But when policies are transformed into laws, the people are expected to obey them. At the stage, when policy is transforming into a law, judicial review of such laws ensure that they are in conformity with other laws, and that they do not infringe on the liberties of the citizens.
Principles stand over policies. Policies that violate principles can only bring about catastrophes. Otherwise even Pol Pot would have to be considered a great ruler, because he too believed that his policies would promote public interest; of course, instead of promoting public interest, those policies brought about one of the greatest disasters in human history. Nath Amarakoon is introduced into the program as someone standing for professionalism. It is strange how such a person can divorce policy from principles.