4 December, 2020

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All Policy And No Principles Lead To Catastrophe: Comments On The Views Of Rajpal And Nath

By Basil Fernando

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.

Related posts;

SLBC Questions Whether The Rule Of Law Is So Sacrosanct

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Latest comments

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    Since 1958 the legislature in SL was geared for anti Tamil, racist and genocidal legislation. Tamil legislators, for greater part of this period, were listening to this junk and were brain washed.

    It culminated in calling the genuine liberation aspirations of the people of Tamil Eelam, mandated by its people in 1977, as a “terrorist movement”, taking away the liberty of both Tamils and Sinhalese.

    The SL presidents manipulated the legislature to this end and caused war crimes and Tamil genocide.

    Both the executive and legislature have caused irreversible mess in SL, as evident from the present confrontation with the Chief Justice.

    The only remedy would be for people, both of SL and TE, to unite and draft a new constitution for the island, accomodating both SL and TE.

    The old guards are too old for this job. we need to undo the racist and opressive laws drafted against Tamils since 1958 and think of justice for all.

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      Rajpal is a half educated idiot who covers his ignorance on most subjects by screaming at people who question his knowledge and integrity, both of which are indeed highly questionable.

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    People listen to this program for entertainment it provides, not for enlightenment! This joker is desecrating a chair once occupied by great journalists like Clarence Fernando, Manik de Silva and Nihal Ratnaike!

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    As Mahatma Gandhi said, one of the seven deadly sins. Politics without Principles.

    The politics of greed, expediency, power, revenge, hatred, revenge, and communalism has taken hold in Sri Lanka. Lack of education over the last several decades has taken its toll. The education of swabasha and racism has turned out a generation of misfits who cannot govern without recourse to underhand and abusive tactics.

    This is mis-represented as peoples sovereignity. Actually it is the politics of the thug and ruffians not the decent people of this country. Hence we are subjected to these crude verbal onslaughts on state media.

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    Yes, Safa. you are 100 percent correct. I think you meant not “onslaughts on state media” but, ” onslaughts by state media”.

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    Don’t fret too much about Rajpal.He has transformed shrewdly to be so raja-pakshe!

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    So, the Rajapakses’ hold on power is much more important than the future of this country??

    Department of Education must seriously do something about this misinformation programme. Our future generations and the country are doomed if this is not challenged by FUTA and other Teachers’ Unions.

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    Basil is in one sense wasting his time. Neither joker Rajapal or Nath should be taken seriously. On the other hand I guess somebody has to get down to the humdrum job of scrubbing the toilet floar; so thanks Basil.

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    What more can one expect of someone of the calibre of Rajpal A? Par for the course for him!

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    I am really really surprised at how far the Lake House has fallen. Its Chairman is a news reader for a TV Channel , getting a salary from a rival news organization ( Conflict of interest !) While at the lake House he is passing information to certain top UNP guys.The Daily News editor is Rajpal Abeynayake, a lawyer, who when he was working at the Sunday Times Predicted that Ranil Wickramasinghe would win the presidential elections of 2005 , after having a drink with the Rest House keeper in Tangalle . Years later after a few more drinks he got involved in a public brawl at a lawyers dinner.About 4 years ago Rajpal was the editor of the Sunday Observer and was sacked because he had criticized a speech made by President Mahinda Rajapakse at the Foreign Ministry. After that he was very critical of the President.
    But obviously Rajpal has forgotten all that when he was offered the editorship of the Daily News.Now he is trying to show he is more blue than Mahinda Rajapakse himself and win the favour of the government. His appearnces on TV are most repulsive to watch.

    To add to that the Observer Editor Dinesh Weerawansa is also a journalist ( actually he was only a sports journalist who wrote extensivly on school Rugby when the Rajapakse kids were playing, which is the true story of his career success )who was once sacked by President Rajapakse for writing an unfavourable article on General Sarath Fonseka who was Army Commander. I think this was when General Sarath Fonseka called the Indian Politicians buffoons but later denied saying it.Sarath Fonseka complained to the president and Weerawansa was sacked immediately. Both these guys once sacked by President Rajapakse are now his biggest mouth piece.Can these so called editors tell us how much self respect(leave alon integrity) they have ?

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      Did Rajpal not lose his ….

      This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
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    Knowing english does not become a person wisdom intelligent and a gentleman. Those Rajpal and Nath trying to destroy the whole country for their benifiits but these mad stupid pandiths do not know they too will face the same fate.

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    SLBC has the tradition of broadcasting what the ruling party wishes the people to be informed. Giving that stuff in a manner the masses willing to hear is the task involved. I see that task is fulfilled and logic and reasons taking the back-row is imminent.

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