By Jude Fernando –
“Natural justice is a pledge of reciprocal benefit, to prevent one man from harming or being harmed by another.” Epicurus
The iniquitous ex parte guilty verdict of Sri Lanka’s first female chief justice—which according to the Parliamentarian Vijitha Herath is an order from above—is not primarily about her alleged misconduct. Rather, it is about the Sri Lankan justice system’s struggle to maintain its ability to deliver natural justice independently and against the constraints of country’s Constitution, which has been evolving since British Colonial period, and also against the legislature which uses any means necessary to subordinate the Judiciary to its own particular interests, thereby denying the scope within which the Judiciary can deliver natural justice.
Impeachment is not a random blunder, but a survival strategy (a structural necessity) of a regime that derives its legitimacy and security from the forces of capitalism, ethno nationalism, executive presidency, militarism and nepotism, all of which are interconnected and some of which derive their legitimacy from (or unintended offsprings of) the Constitution. Relaxing any of these, forces, means collapse of the others and begs significant constitutional changes. To maintain the status quo, the State has effectively asserted itself as the interpreter of the Constitution. It has appropriated the functions of the judiciary, and consequently, it has done away with one of the few remaining institutions that safeguards the country’s democracy and prevents a slide into despotism and lawlessness.
The protests against the impeachment are evidence that concerned people around the country, including some intellectuals who are ardent supporters of the state, are overcoming the ‘culture of fear’ and demanding that natural justice be upheld. Perhaps, we are witnessing the end of the long winter of discontent and a beginning of spring in Sri Lanka. Any compromise with the government — other than annulling the Parliamentary Select Committee report, holding the State accountable for its misconduct and allowing the courts to determine the best course of actions for the allegations against the CJ — would miss this historical opportunity to restore democracy and would provide further legitimacy to the very forces that brought the crisis.
This three-part series takes a broad look at the tensions between the judiciary and the legislature to make the argument that at this moment in Sri Lanka, protecting the independence of the judiciary is of utmost importance because the tyranny of the legislature is a greater obstacle to natural justice than the alleged misconduct of the CJ. Part I will draw on the findings of numerous legal scholars to outline typical methods used to interpret the Constitution while defending the argument that judges are better suited than elected officials for this task. Part II will be an account of how the Constitution and its reforms since the British colonial period limits the ability of the judiciary to deliver natural justice, particularly because of the Constitution’s affinity with capitalism, ethnoreligous nationalism, executive presidency, and national security. Part III will outline a more concrete account of why the government lacks the legal and moral authority to impeach and that, therefore, the Parliamentary Select Committee Report must be declared a mistrial and those responsible for it must be held accountable.
Part I: Judges, not the politicians, should interpret the constitution
“[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” — Alexander Hamilton
Interpretation Constitution is the sole responsibility of the Judiciary, which means that the Constitutional authority of the legislature to impeach a judge must originate with the Judiciary: Thus, this responsibility of interpreting the law must not be removed from the Judiciary under any circumstances, and it absolutely should not be placed in the hands of elected officials.
Interpreting the Constitution is a delicate exercise, because according to legal scholars, in all constitutions there exist “core uncertainties” and “penumbra of doubts,” also known as the “fringes of vagueness” and “areas of open texture. The rationale, logic and structure behind all laws are determined by the widely-held values and power structures within a society. Laws are not value-free; laws are political and are a collection of beliefs and prejudices that legitimize the injustices of society. Perhaps the best way to understand this delicate is to explore the limitations of three interpretive frames that we find in legal literature: doctrinal, historical and responsive.
According to Robert C. Post of Yale Law School:
If doctrinal interpretation rests on the equation of constitutional authority with law, actual text of the Constitution is remitted to one end of a growing line of precedents. What I shall call ‘historical interpretation’ rests instead on the equation of constitutional authority with consent. If Doctrinal interpretation portrays courts as merely the instruments of the law, if historical interpretation portrays courts as merely the instruments of an original democratic will, responsive interpretation portrays courts instead as arbiters of the fundamental character and objectives of the nation. In responsive interpretation, judges determine the meaning of the Constitution in reference to the society’s current ethos, or morality, from the perspective of natural justice.
If the courts use a purely doctrinal approach, courts may become merely the instruments of the law and subject to the values of the law, which may not be universally shared and which will not adapt to the times. If the Constitution is the law, the courts are constrained by the values of the law, which makes it impossible to reconcile the values and intentions of the authors of those laws with those of the present. Robert Post argues that the doctrinal interpretation rests on an unacceptable notion of the Constitution that applies not the words of the document, but legal rules that judges have subsequently created. The underlying assumption is that “rules elucidate the meaning of the text.” Yet the outcomes of doctrinal interpretation are shaped by the values underlying the hermeneutics of the interpreters.
Treating the Constitution as an objective document dissociates an issue—and its subsequent legislation— from its own historical context and intent. When doctrinal interpretation upholds the sanctity of private property and generalized market exchange in a capitalist society, it is safeguarding the very institutions that are responsible for existing economic and social inequalities. Political dissent against inequality is then treated as a “law and order problem”. Thus, a doctrinal interpretation legitimizes the State’s suppression of dissent and criminalizes any force used by the dissenters. Despite this reality, one cannot discount the potential for natural justice by doctrinal interpretation by an independent judiciary.
A constitution is a historical document and it can neither be abandoned nor can it morph ‘instantly’ to satisfy society’s needs of the present and future. At the same time, the past is not the present; the past cannot be allowed to maintain an unthinking tyranny over how natural justice is served in the present.
A constitution is a political compromise among the elites and it tends to be drafted without the participation of the public. This makes it difficult to discern the individual and collective intentions of these elites. Even the United States Constitution was drafted in closed sessions where its authors swore a lifelong oath of secrecy. George Washington famously disposed of any evidence of the Founding Fathers’ deliberations. James Madison’s notes revealed that the U.S. Constitution was a compromise between merchants, ship owners, planters, and slave owners. These compromises define the limits of the Constitution to deliver natural justice, particularly in situations where the social forces they unleashed are responsible for ensuing injustices. A constitution evolves over time and undergoes changes as a result of the tension between compromise and natural justice.
The historical approach runs the risk of making courts merely the instruments of those who drafted the laws, thereby rendering these laws irrelevant. Attempting to discern the original intent of the Constitution is problematic because it presupposes that the interpreters, as Kenneth Thomas notes, “would be comfortable utilizing historical documents contemporaneous with the drafting and ratification of the Constitution to help inform Constitution doctrine.” One would expect such informed interpretation of the Constitution in countries where there is research-oriented legal scholarship and where historical influences are subject to legal scrutiny, particularly when a country’s history itself is at the root of the issues in question. Even if one is aware of the historical context of a legal document, he or she may not know whether the authors intended a fixed meaning over time. Hence, the passage of time could make any interpretation vulnerable to the “preexisting rules of controlling precedents.”
The historical approach also rests on the assumption that current national ethos identifies with the drafters and ratifiers of the Constitution. But in situations where the Constitution is a product of “only discrete individual preferences,” and where the nation does not have any national ethos, the consent of those long dead should not hold any particular authority for the present generation, notes Robert Post.
The historical approach legitimizes the Constitution’s responsibility to protect a country’s sovereignty. When the sovereignty is contested by groups within the country who feels that it denied them of equal rights and privileges, then the sovereignty becomes a source of denial of natural justice. In such situations, demand for nationhood based on natural justice automatically becomes a violation of the Constitution.
Elected officials’ claim that they are protecting the sovereignty of the nation based on historical interpretations of the Constitution may be superficial and misleading when they use such claims to concentrates power in the hands of a few which result in undermine economic and political sovereignty. Historical interpretations provide less room for judges to maneuver interpretations if they are bound by the intentions of its original framers. This becomes an issue they such intentions in the past are used as a way of legitimizing the inequalities in the present. The framers and ratifiers of Constitutions may not fore see the destructiveness of the social forces that Constitutions could generate.
Over time, the society may recognize that the original intentions and interpretive frameworks have caused an injustice upon which political power rests. In such circumstances, historical interpretations that attempt to remain truthful to the original intentions of the Constitution may obstruct natural justice and appropriate constitutional changes to address injustices. This is an issue in constitutions that are racially, religiously, and ethnically exclusive, when exclusivity is a violation of natural justice. Those oblivious to this history simply subscribe to the myth that the Constitution was crafted through divine intervention in the same way that God wrote the Ten Commandments on the tablets.
The framers of the Constitution are seen as having risen above partisan interests to safeguard national interests, and are elevated to the status of patriots and founding fathers of the nation. As time passes, though, differences and conflict among the framers could easily ‘disappear’ or become ‘marginalized’ in the interpretation. The Constitution increasingly gets treated as an objective document in which justice is not what is equal and fair but what is legal. This tends to become the “technical wrangling of lawyers and Judges,” argues Bertell Ollman. Yet in this wrangling, the discovery of the meaning of the objective intent continues to be a matter of subjective interpretation. The power that wins given interpretation in a court of law does not necessarily reside within the technicalities or competence of the lawyers and judges, but in the larger political economy and popular culture.
Yet historical interpretation should be dismissed. Rather, constitutional interpretation requires an attempt to discover its original meaning and the principles that underlie the text, but how they should be applied cannot be expected to be obvious in the original meaning. The text of a constitution does not necessary change with an amendment, but its interpretation and application change when people become aware of the injustices that stem from or are encouraged by its original meaning.
In responsive interpretation, judges become arbiters of the fundamental character and objectives of the nation. As Philippe None and Philip Selznick put it, law submits to “the sovereignty of purpose” by functioning “as a facilitator of response to social needs and aspirations.” As United States Justice Oliver Wendell Holmes notes, the Constitution is far from being a single coherent document that suggests the consent of all. Instead, “it continues to inhere in the national being that the Constitution has called into life.” The guidelines and authority for interpretation need to be “derived from neither rules laid down in judicial precedents or the original intention of the framers. Rules and authority for interpretation flow from the whole experience of nationhood.” In situations where the evolution of nationhood is responsible for inequalities and injustices, the judicial system becomes the interpreter of nationhood.
The goal of responsive interpretation, according to Robert Post, is to uncover present values, where the “Constitution is understood as having ‘called into life a being’ that, like any ‘organism,’ must grow and develop on the basis of its ‘experience.’” The danger of denying national ethos (as we find in the doctrinal interpretation) is that “rules will be the preservation of order,” and those subject to constitutional rules will necessarily be reduced “to mere objects of the administered life and the constitution becomes a form of “repressive law” that “gives short shrift to the interests of the governed”
At the same time, Post has also pointed out that that it would be “inappropriate for judges to appeal such ‘national’ ethos as a form of constitutional authority,” as it runs the risk of making judges partisan. In fact, “any attempt to interpret the Constitution on the basis of the authority of a national ethos will necessarily degenerate into an unwarranted imposition of private judicial preferences.” Furthermore, “if there are only discrete individual preferences, and if the nation does not have any national ethos, there is no reason why the consent of those long dead should hold any particular authority for the present generation.” Dissolving the responsive interpretation could potentially lead to dissolution of “the Constitution as a specific written text.”
Responsive interpretation becomes compelling when the doctrinal and historical interpretations of the Constitution are in fact root causes of the injustices (under the tyranny of the majority, military, and property-owning class). On the one hand, judges who do not take the national ethos into account will render them incapable of delivering justice and fairness; on the other hand, bending to the national ethos will make the justice system unpredictable and incoherent.
Despite these complexities, the Constitution and its interpretation cannot be separated. The Constitution can only exist with interpretation. Regardless of the constitution or its interpretive framework, the basis for its interpretation should at least be natural justice, defined as follows by Robert Moor:
We don’t have to do anything to earn them, and thus there is equality in their distribution that survives the obvious inequalities that exist between persons with respect to their efforts, their natural endowments, or their social advantages. It is in this sense that natural rights philosophies are egalitarian in character.
Moor’s claim is that natural justice is self-evident simply because we humans have basic need for survival and “what we have right to is a matter of principled Generality. ”Natural justice is based on the notion that laws and morals are inseparable; hence, judges should be sensitive to how the law advances natural justice. Looking at the Constitution from the perspective of natural justice, the courts appear to be far better suited to interpret the Constitution than elected representatives because they are organized as the most appropriate institutions to achieve equality, generality, and morality.
The courts have more time and flexibility to incorporate doctrinal, historical and responsive interpretations than do politicians. Unlike politicians, judges’ interpretations do not necessarily challenge their material and social existence, even if politicians appoint them. In particular, the capacity of the elected officials to deliver natural justice is limited when they are complicit with and directly contribute to the inequalities and injustices arising from a capitalist, ethno-nationalist, patron-clientalist and kinship-based governance. In such situations, even if elected officials resort to direct politicization and harassment of the Judiciary, the Judiciary can better anchor their decisions in natural justice.
According to Robert Moor of the Fordham Law School, the courts are relatively insulated from politics and do not represent the majority’s interests. In fact, majoritarianism does not lie at the heart of the courts as it does in the democratic legislature; therefore, courts are not as tempted to slide from majoritarianism to utilitarianism. The courts are used to non-utilitarian forms of reasoning that involve seemingly conflicting norms. In fact, according to Moor “More intense preferences tend to receive more intense political expression by voters, and more intense political expression by voters tends to generate more intense representation by legislators; legislation emerging from such a process will often accord with what ‘the most prefer,’ i.e., with utilitarianism.”
Morality and justice are not congruent with majority preference, and ’such “utilitarianism is incompatible with natural justice.” ‘“If justice, is a virtue of social institutions then formal justice is the virtue of judicial institutions courts,” Moor concurs with John Ralws.
For Max Weber, modern societies are a form of legal domination because the exercise of political power is considered intrinsic to the law. This reasoning implies that the law is an exercise of legitimate power because it derives its legitimacy from the formal properties of law. Morality, then, is independent of law, and law has its own intrinsic rationality. However, the original enactments of laws are not independent of the moral worldviews of their authors. In modern states, enactment involves combating corruption and inequality and maintaining human dignity and justice. Enactment is about exercising morality because morality gives the public the right to enact the law. Moral reasoning and argumentation is enacted through the law. If morality is rejected in favor of formal properties or because it undermines the rational basis of the law, it also provides legitimacy to legal domination enacted by politicians. These reasons make the interpretation based on fusing morality with law a necessity for neutral justice.
Although popular bodies are elected and they express popular will, the policies of seated elected officials may not express popular will. Alternatively, they automatically provide a space for the people to express their will regarding their reforms or the interpretation of constitutions. The elected officials may privilege particularistic interests of the party at the expense of natural justice, primarily because they are simply instruments of (perhaps even blackmailed by) those who control party decision making. As such, they cannot freely express their views.
Moreover, that which appears as popular will may be the private interests manufactured as public interests. Popular will may mask the fact that power is concentrated in the hands of a minority. Elected officials may use such popular will to justify use of abstract clauses of the Constitution to prevent judicial oversight of the affairs of the legislature.
Even if popular will expresses the will of the majority, the will of the majority may be the root cause of the denial of natural justice to minorities. Demand for justice by disenfranchised minority groups may be considered as a violation of the constitution, when constitution is an expression of majority interests. The point is not to entirely dismiss popular will, but to assess its proximity to natural justice within the prevailing context of the political economy and culture.
The executive president can appear neutral by using immunity to distance him/herself from the particular interpretation of the Constitution and its resulting consequences. In Sri Lanka, the president represents a particular political party, and therefore, heads important bodies of decision making and intervenes in the matters concerning law and order. The executive President is a de facto elected official and he should not be precluded from judicial review if the president irresponsibly uses immunity to obstruct natural justice.
Moor goes on to argue that unlike the judges legislature need not justify the vote they get or return to the voters seeking justification of their decisions nor his job is to find “where truth of the matter lies, ” which makes job accepted by many legislators is less compatible with the reasoned justification needed to protect natural rights.” Because the legislature is a place for businesslike compromises “they capture the popular imagination less than courts, and have as a result less capacity to educate a citizenry in the long run about the moral rights of people.” Unlike legislature courts are not agencies of compromise and thus have less need of the kind of common metric offered by monistic theories like utilitarianism.”
The Constitution controls the actions of the legislature because it is the highest law. As Melvin Aron Eisenberg notes, because the “courts are the mere instruments of the law,” they are peculiarly fitted to interpret a Constitution, the authority of which lies in its character as law. If the Constitution predominates because it is law, then its interpretation must be constrained by the values of the rule of law. (Osborne v. Bank of the United States, 1824) The courts must construe it through a process of reasoning that is replicable, remains fairly stable and is consistently applied. However, when the values of the rule of law undermine justice, judges’ interpretation of the laws—according to natural justice—becomes necessary. The purpose of the interpretation here should create conditions for a minimalist sense of “the good society.”
Judiciary rather than the elected officials are better positioned to interpret the constitution by supposing the coherence of the Constitution as a whole, and then asking whether the norm or norms are applicable to the case in question or fit closely with the majority of related norms. If the norms are unclear, the court will have to choose or devise a norm that is consistent with the whole. The court alone has the right to choose or formulate norms by deliberating conflicting positions and determining whether the choice is consistent with the whole system.
The Constitution itself is about power relations as it disciplines the society to function in a certain way. A common challenge to all three forms of constitutional interpretation is the power in the society, as power could be both positive and negative. Interpretations and their translation into action are exercise of power. Moreover, exercise of power can evade the intentions of the interpreters and produce unintended consequences. The purpose of Judiciary in a democratic society is to minimize the abuse of power. In this regard, the judiciary compared to legislature is better positioned to analyze power maintain greater distance from the place where power resides and put into action, and its interpretations is less likely to threaten its existence of judiciary as an institution.
Elected officials are expected act in “good faith” regarding judges’ decisions. This does not mean that judges in infallible not vulnerable to same forces that corrupt the elected officials hence should not be held accountable. In fact, a tyrannical Judiciary could be worse than a tyrannical majority. Elected officials, though not supreme has the legitimate right to ensure the ethical conduct and competencies of the judges and they must ensure that judges are responsive to concerns of the citizens at given moment in time…
This does not necessarily mean that elected officials have the authority to impeach judges when even the Constitution permits them to do so. Authority is not the same as right, and authority needs to be granted by the Judiciary. Elected officials make the decision to impeach based on majority vote. Majority vote is a brokered power relation which may or may in accordance of the law and natural justice. This is particularly true in situations where the decision making in the legislature is tampered with bribery, nepotism, authoritianism and militarism, all of which is used to mobilize tyranny of legislative majority, and there is widespread public dissent against it. Judiciary on the other hand is less susceptible to these because in ideal settings their interpretation of the constitution is derived from rules of natural justice.
The Judiciary has the sole power to declare that a particular act does not constitute a high crime, an ethics violation, or a misdemeanor worthy of impeachment. The Court determines if Parliament follows the due process and has exceeded its power in removing a public official. Any doubts concerning impeachment need to be resolved by judges, ideally in favor of the independence of the judiciary. Otherwise, the independence of the judicial system could be tampered with, allowing elected officials to use impeachment as a means to crush political adversaries or remove them from public office. Nothing could be more destructive to natural justice and democracy.