By Firdous MHM –

Firdous MHM

Introduction

The recent implementation of the Domestic Debt Optimisation (DDO) Program in Sri Lanka, endorsed by the executive and legislative branches of government with implicit warnings to the judiciary against intervention, has generated significant debate within the legal academic community. This article aims to analyses the compatibility or discordance of these assertions within the framework of constitutional democratic principles. The author of this article has had the opportunity to read two articles in this respect, one written by Mahinda Ralpanawe, titled ‘Did President RW Trespass on Independence of the Judiciary?’, and the other written by Jayampathy Wickramratne, titled, ‘Can Courts Review Domestic Debt Restructuring?‘ This paper critically examines the harmony or disharmony of some key assertions made about the rule of law, separation of power, and parliamentary supremacy within the ambit of constitutional democratic theory and framework.

Constitutional Sanction of Judicial Non-Accountability

Within a constitutional democratic framework, all three branches of government, including the judicial branch, are entrusted with the responsibility and accountability for their actions and inactions, subject to the same laws that govern citizens. Their discretionary powers are always subject to scrutiny, and they cannot evade their responsibilities through discretion alone. When it becomes evident that the government is acting contrary to its constitutional duties, citizens have the right to challenge the actions and inactions of each branch in a manner prescribed by the constitution, depending on the circumstances, within the same branch or other branches of the government.

Both Ralpanawe and Jayampathy’s articles confirm that, in the context of the DDO, at least two of the Fundamental Rights applications filed in Sri Lanka’s Supreme Court were denied leave to proceed and dismissed. Interestingly, both authors did not address the prevailing judicial practice of routinely dismissing public interest litigations filed by ordinary citizens without providing any reasons for such dismissals. The argument against interference from the other two branches loses its relevance and gravity when the court itself, at an early stage, succumbs to the expectations of the government and loses its footing and closes its doors to the public seeking justice. A judicial decision without providing a clear, valid, written reason for the decision is generally considered a violation of due process. 

‘Separation of Power,’ Rule of Law, and Parliamentary Supremacy

The doctrine of the ‘Separation of Powers’ among the executive, legislative, and judicial branches of government is to prevent the concentration of power in one governing branch and provides each branch with the authority to question the actions and inactions of the other branches when they contravene agreed constitutional rights and governance frameworks. However, the supremacy of parliament can potentially undermine the rule of law and the separation of powers in a constitutional democratic system. Parliamentary supremacy can diminish the judiciary’s ability to review and strike down laws passed by Parliament, allowing laws to exist that do not align with fundamental legal principles.

Mahinda’s interpretation of the doctrine of separation of powers oversimplifies the intricate reality of the separation of powers in a functioning government. A governing system with separation of powers, aims to prevent any one branch from becoming too powerful and potentially abusing its authority. The idea is not absolute independence with full control on the subject without interference of other governing branches but a balance of power, accountability, and cooperation among the branches in fulfilling their constitutional duties responsibly. While Mahinda correctly emphasizes the importance of each branch not usurping the powers and functions of the others, the argument derails the essence of checks and balances, where each branch has its distinct functions while also sharing some degree of influence and oversight over the others on the same subject.

Mahinda’s citation of judicial activism in Sri Lanka attempts to explain the concept of the separation of powers in a manner that eliminates the essence of ensuring checks and balances. It portrays all three branches as having unchecked powers, with the legislative and executive branches holding dominant positions instead of balanced position that gives the space to other branches to have their say. Through judicial activism, attempting to provide altered interpretation of checks and balances bolsters parliamentary supremacy at the expense of undermining the separation of powers and the rule of law.

Conclusion

When judicial activism and legal academia enthusiastically endorse the concept of parliamentary supremacy, even as they reinterpret the principles of the separation of powers and the rule of law to align with parliamentary supremacy within the existing constitution, they advocate for a distorted constitutional and legal framework that ultimately perpetuates the current state of affairs. This perpetuation leads to a governance system marked by a lack of accountability and responsibility.

There is a pressing need for a fundamental shift in the approach of legal scholars in the field of public law. It is crucial to recognize that parliamentary supremacy inherently compromises the principles of the rule of law and the separation of powers. Therefore, it is inappropriate for legal scholars in the public law domain to engage in positivist arguments, as such arguments only serve to maintain the existing system, which is characterized by a lack of accountability and can foster authoritarianism.

Instead, the focus should be on advocating for and working towards the establishment of a governance system that guarantees citizens their social, economic, civil, and political rights through the transformation into a constitutional democratic framework. This transformation should involve an unwavering commitment to the principles of the rule of law and the separation of powers in their true and unaltered form. It is essential to ensure that judicial accountability is not sacrificed in the pursuit of political expediency, as a thriving democracy depends on a vigilant judiciary and a public law academic sphere that steadfastly upholds constitutional principles and safeguards the rights of citizens.

*Firdous MHM is an academic specializing in constitution, law, and economy. He can be reached via mhmfirdous@hotmail.com