By Ananda Markalanda –
The second case filed by public interest attorney Naganada Kodituwakku is an eye-opener. The Supreme Court has a special critical role to play in a democracy and we claim Sri Lanka a democracy. The Constitution gives it the power to check, if necessary, the actions of the President and House.
It can tell a President that his actions are not allowed by the Constitution. It can tell the house that a law it passed violated the Constitution and is, therefore, no longer a law. It can also tell the government of that one of its laws breaks a rule in the Constitution.
The appointment of defeated candidates made through the National List provision of the Constitution is unconstitutional and can declare void all such unlawful appointments made through the National list. Here the constitutional relief sought by the people was not recognized giving more power to the President merely on a request.
The Supreme Court is the final judge in all cases involving laws, and the highest law of all — the Constitution. Although it is the courts’ duty to say what the law is, the other branches of government have an independent obligation to uphold the Constitution.
How important is the Supreme Court to the advancement of individual rights? Very important, many would contend, when the people whose rights are being compromised to advance the political power, the independence of the Supreme Court has suffered. Our constitutional democracy rests, after all, on the notion that people disdained and disfavored by the majority and elected representatives can still find justice before an independent Supreme Court. The current Supreme Court in general has failed in maintaining this trust. The judicial role in protecting individual rights and limiting the other branches of. where government is allowed to exceed the limits of its expressly delegated trust, it loses it’s recognition and respect. This is what happened in this case as pointed by attorney Kodituwakku.
Presidents come and go but the Supreme courts will go on protecting the rights of individual against the oppressive power of the State,
The judges should not insult their own institution’s integrity.
The cornerstone of the system of checks and balances is central to the governance. When the judges are placed on perks after retirement, judicial independence suffers because judges subject to the influence of the legislative or executive branches will be less likely to decide cases in an impartial manner protecting the rights of citizens in constitution and its review matters because, in addition to trying to influence judges, the legislative or executive branches may seek to pass laws or implement policies that are designed to benefit themselves and/or their associates.
The glowing example is Chief Justice Mohan Pieris, as the Prime Minister pronounced in a statement made in Parliament, offered to give any judgment in favor of the government and not to remove him as Chief Justice. There are ample other items of evidence to prove this malpractice in Supreme Court.