By Basil Fernando –

Basil Fernando

The answer to that question is if the legislature can do whatever it likes, as it is becoming fashionable for some in Sri Lanka to say, it can also make such a declaration. The leader of the party that has the majority in parliament (even better if there is a two thirds majority), can order that his party members should vote to that effect and thus ensure that it will become the law.

The impact of the legislature making such a declaration can be twofold. It may merely be a name change. The automobiles will thereafter be called rickshaws. However, if besides a mere name change the legislature goes on to further stipulate that all the engines should be removed from automobiles and that, like rickshaws, they should be pulled by their operators, this would of course mean quite a radical change. If the legislature goes further and prescribes sanctions for those who would not abide by this new legislation, that would result in quite a lot of people ending up in jail or paying fines.

At the moment the attack on the judiciary is made on this basis that the legislature can do whatever it likes. Thus, the legislature can take over the functions of the Judicial Service Commission (JSC) and dictate what the JSC should or should not do. For example, it is the position of some ministers and spokesmen for the government that the secretary to the JSC should not have made a press release mentioning, among other things, the interference on the workings of the JSC and the independence the judiciary. They are also of the view that this particular secretary of the JSC should not have chosen for that post as, they claim, he is not senior enough to have been thus chosen. The government and the legislature have thus taken upon themselves the task of deciding who should hold which post in relation to the JSC and what is or is not appropriate for the JSC to do.

There was at one time the idea that there was something called the separation of powers. The functions of the judiciary under that doctrine are the functions that belong to the judiciary alone and to no one else. That exclusion included the legislature. However, by now, the view of the government seems to be that the legislature can do whatever it likes. This includes the idea that the legislature can do the functions of the judiciary also.

However, it would be unfair to say that this is entirely an original idea of this government. In fact, in 1972 the then coalition government put forward the idea of the supremacy of the parliament in place of the supremacy of the law. The original conception of the supremacy of the parliament meant that the king was no longer supreme but, like anyone else, is equal before the law. This simply meant that no one was above the law.

However, the 1978 Constitution quite simply declared that the executive president was above the law and no court could bring any suit against the president. Thus, the legislature did the very opposite of what parliament did at the origin of its power, which was to reduce everyone to be equal before the law.

President J.R. Jayewardene went on to say that the only thing that the president cannot do is to make a man into a woman and vice versa. This meant that president can, in fact, declare automobiles to be rickshaws if so wishes or anyone not to be what he or she was if the president so wishes.

That is exactly what was done to all who held public office. For example the Inspector General of Police was in charge of the police department and had command responsibility to run that institution. But with the creation of the executive president the IGP no long has that power and the politicians decide on the appointments, promotions, dismissals and disciplinary control of those who belong to the police force. Similarly, the Attorney General used to be the commander-in-chief of his department and was responsible for everything that went on in that department. But the AG’s post is now under the control of the president’s office and he must do what he is instructed to do. Giving independent legal opinions on the illegality or otherwise of the actions of the government is no longer his prerogative. This is also the case of all public institutions and that was all the debate about the 17th Amendment to the Constitution was. That debate was settled by the 18th Amendment, which virtually nullified the operation of the 17th Amendment. Now, automobiles are rickshaws, if one is to use that metaphor, and all these persons who held those officers now merely carry out the direct orders of the president.

There was one institution which was not completely under the president’s control and that was the judiciary. Of course there were all kinds of weakenings as compared to the position the judiciary held before the 1972 and 1978 Constitutions. The 1972 Constitution removed the power of judicial review and the 1978 Constitution placed the president above the law. Besides that there were many ways by which the appointments to the judiciary were made which interfered with the rules universally recognised as being essential for the independence of the judiciary.

Despite of such limitations the judiciary still had limited power to declare a proposed bill to be in conformity with the Constitution or not. Quite reasonably the judiciary used this power and declared the Divinegama Bill to be unconstitutional in its present form.

Now this has angered the president and the government and the debate is now as to whether the judiciary should have such power. Using the argument that the legislature can do whatever it likes, the argument is mooted that this power of limited review of a bill should also be removed. While all kinds of gimmicks are tried to present that view as a profoundly correct perspective on constitutional law, there are writers who always write whatever the government wants, like, for example, the quite notorious C.A. Chandraprema of the Divayina, who has concocted arguments to state that there is nosuch review power for the judges in India and also of the Supreme Court of the United States itself. He claims that from Jefferson to Clinton, all the presidents of the United States have stuck the Supreme Court’s head on a pole and suppressed it. The title he gives to the article is that India should be followed as a precedent on the issue of the Supreme Court.

Writing in Sinhala C.A. Chandraprema seems to believe he can utter whatever falsehood he likes about India and the United States on the issue of the independence of the judiciary and their power of judicial review. What he perhaps does not know is that the power of judicial review in its pristine purity exists in both countries and is a very proud part of the legacy of constitutionalism in these countries, as well as in every other country which believes in the supremacy of the law. Some jurisdictions, such as France and Germany, have even created above the Supreme Court even higher courts such as the Constitutional Court of Germany and the Constitution Council of France to deal with the issue of the judicial power over the interpretation of the law.

As for India, the matter was quite clearly settled when Indira Ghandi, who like J.R. Jayewardene and Zia-ul-Haq of Pakistan wanted to be her country’s dictator, was clearly suppressed by the Indian Supreme Court. In the Keshavananda Barati case (Kesavanda Bharati vs State of Kerala And Anr on 24 April, 1973), the Supreme Court said further that the parliament under the constitution is not supreme, in that it cannot change the basic structure of the constitution. It also declared that, in certain circumstances, the amendment of fundamental rights would affect the basic structure and therefore would be void. It also overruled Golaknath and thus all the previous amendments which were held valid are now open to be reviewed. They can also be sustained on the ground that they do not affect the basic structure of the constitution or on the fact that they are reasonable restrictions on the fundamental rights in public interest. Both the cases, if seen closely, bear the same practical effects. What Golaknath said was that the Parliament cannot amend so as to take away the fundamental rights enshrined in Part III, whereas in Keshavananda, it was held that it cannot amend so as to affect the basic structure.

To quote from the judgment,
“316. The learned Attorney General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:

(1)Supremacy of the Constitution;
(2)Republican and Democratic form of government.
(3)Secular character of the Constitution;
(4)Separation of powers between the Legislature, the executive and the judiciary;
(5)Federal character of the Constitution.

317. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.”

The source of confusion

The 1948 Constitution, which is also known as the Soulbury Constitution, had a basic structure. That basic structure was the same basic structure as of any democracy. The essential elements of a democracy, including the supremacy of law, the rule of law, the separation of powers and the independence of the judiciary, are part of that basic structure. Any amendment that affects this basic structure vitiates the constitution and therefore will destroy the very possibility of the state remaining a democracy. It was this basic structure that was changed by the 1972 and 1978 Constitutions. Unfortunately the Supreme Court then did not follow a course similar to that which the Indian Supreme Court followed in the statement of the doctrine of the basic structure. Had that happened, several parts of the 1972 and 1978 Constitutions would not have been allowed to be passed as law and Sri Lanka would not have been in the mess that it is in today.

The law cannot remain law if the parliament can do whatever it likes. As all human beings dealing with any kind of expression are bound by the rules of rationality, the parliaments are also bound by the rationality of the basic form of government, if that form of government is that of a democracy. The moment that rationality is abandoned, the entire legal structure is affected by irrationality. It is then that automobiles can be called rickshaws, when the judiciary is required to rubber stamp the decisions of the executive, and when the IGP’s, the AG’s and all other officers of the state lose all their independence and just become robots playing to the tune of the executive.

The present debate about the independence of the judiciary, the role of the JSC and all related issues, are the result of the failure to abide by a most fundamental notion, that a democracy has a basic structure which, when abandoned, ceases to be a democracy.

What today’s debate reflects is that the form of government envisaged in the 1978 Constitution is that of a dictatorship and not of a democracy. The dictator now demands the judiciary to submit to its will, and this is what the legislature carrying out the will of the dictator is expected to do to the judiciary and is trying to do.

The way out is a fundamental rejection of the 1978 Constitution and the reinstatement of the doctrine of the basic structure, as India has done. The structure of the government must conform to the basic structure of democracy and, within that framework, the legislature can only do what the basic structure allows it to do. The only path for the future in Sri Lanka is either to submit to a dictatorship or to achieve this fundamental reform to reinstate the basic structure of the Constitution as that of a Constitution of a democracy.