By Basil Fernando –
When the Speaker of the Parliament made this decision, the Republic had already deprived the Judiciary of the post-legislative judicial review power and it has now been brought to a situation where even pre-legislative review has been removed. What is the nature of the Judiciary that exists in Sri Lanka? These are questions of jurisprudence. These are not just a question of some political opinion. The present situation is logically and legally idiotic. However, to say that there should be no judicial review at all is to say that there is nothing wrong even if decisions are made in an illogical and illegal manner.
In 1972, when Sri Lanka became a Republic by way of adopting a new Constitution, one of the most remarkable features of that Constitution was the removal of the post-legislation judicial review. At the very moment that the country was declaring a republic and completely independent State, it categorically deprived its Judiciary of the power to examine the legality of legislation after the laws have been enacted. Thus, it became a characteristic of the Republic to have a less powerful exercise of judicial power by the Judiciary than the country enjoyed even at the time of the rule by the colonial power or when it enjoyed only dominion status.
Deciding on the legality of the laws, it was ensured that the people are in fact ruled by laws that are legally based on sound principles that the whole legal system is based on. The legal system is what protects the State to be a democratic State as it claims to be and also ensure that even the Legislature cannot make laws which are violative of the basic norms and standards on which good law is grounded. To leave the power of post-legislative judicial review is to allow the Judiciary to be the ultimate arbiter of what is legal and illegal within the land. For reasons better known to those who have proposed and supported that Constitution of 1972, leaving this power of judicial review as it existed so far was considered dangerous. There had been no explanations publicly as to why the Judiciary should not be trusted with post-legislative judicial review.
What started in 1972 was continued in 1978 and the position remains the same even up to now. No Government or a political party has even dared to propose that the full powers of post-legislative judicial review should be returned to the Judiciary. Despite all sentimental talk about respect for the Judiciary and judicial independence, this most important power of judging the legality of laws by the Judiciary itself, whenever a citizen is confronted with a problem of the possible illegality of a law, has been deprived to the sovereign people of Sri Lanka.
While the 1978 Constitution is based on the principle of the sovereignty of the people, these sovereign people do not have the capacity to test the legality of the laws by which they are bound through their own judicial branch. Previously, there have been several occasions during which citizens came to court and challenged the laws that have been passed by the Parliament some time prior to their coming and the Judiciary was constitutionally allowed to entertain their complaints and if the complaints were legitimate, even to declare some laws to be null and void and without any effect in the law for the future.
A mysterious question that has not been openly discussed is as to why the Legislature and the Executive that were virtually directing the path of law making in the country feared the capacity of the country’s Judiciary to judge whether the laws that have been promulgated are keeping with the principles of legality.
The 1978 Constitution went further and at various stages, placed limitations even on the time periods during which the citizens were allowed to come before their highest Court and to raise objections to some legislations. In many such applications that have been made, the Court has often held that many of the clauses that have been proposed as new legislation are not in conformity with the Constitution and that if they are to be passed, the necessary changes must be made in terms of the provisions of the Constitution itself. There can be no assumption that a legislature can make errors relating to law only during that period of the passing of the laws. Errors that were not seen at the time for whatever reasons could surface over many years of the actual implementation of the laws. Most errors manifest themselves clearly only when things are put to practical test. If the practical test creates undesirable results or even harmful results to the individuals or the society as a whole, there should be access to the citizens to their legal institutions to resort to with the view to correct such errors. When that possibility exists, the citizen is not thrown into being a helpless citizen where he or she could only say that the only way to get a correction of what has gone wrong is by way of political actions or by taking to the streets. Instead, the post-legislative judicial review provides a rational and peaceful means by which sober reflections can be made on errors and the errors can be eliminated. Thus, the machinery of the State could run without being affected by such errors,
This possibility also prevents an overzealous Legislature which for some reason may have the required majority to use such majority for limited purposes and thereby cause some major problems to the running of the total machinery of the State and also of the legal system.
Thus, the problem of the post-legislative judicial review is not about this or that Government but is about running the State on sound legal principles. The mere passing of laws by the majorities that may be available due to whatever reasons may create a formal legitimacy but the vitality of the State does not depend entirely on mere formal correction. Formally, many things can be done in many areas of life and still wrongs can continue to accumulate and create havoc for individuals as well as for societies.
Maintaining the rationality of laws is essential to maintain the sanity in all the operations of society. Once what is illogical and incorrect enters into a system, that gradually multiplies itself and creates more and more problems to an extent that the system can no longer produce the kind of results that the Republic is made for. For example, within a Republic, it is expected that by making proper laws and by the implementation of those laws, corruption could be eliminated. Even when laws are made, if the situation of corruption does not see substantial changes for the better, it means that there is something wrong with the laws and also the implementation of such laws. The mere claim that the laws have been passed through the proper manner does not go to resolve the practical problems which the law is supposed to resolve.
It is not only the area of judicial review post- and pre-judicial review related limitations that the judicial power has been interfered with by the Legislature and also by the Executive. Large bodies of laws which come out with provisions which deprive the Magistrate of the power of granting bail as is normally required by law without extraordinary reasons for such limitations being imposed, is a serious attack on the functioning of the legal system. Similarly, many such limitations are made without extraordinary reasons to do so and as a result, there develops a confusion as to how independent the Judiciary is allowed to be. The Judiciary does not create its own power. Its power is given by the Legislature and if the Legislature deprives it of its power, then, there can be serious problems with the actual identity of the Judiciary as an institution.
These days there is talk about gaining respect for the Judiciary. This is one of the most valuable goals that any society should pursue. However, mere speeches about protecting the role of the Judiciary and its independence while creating legislative obstacles to its functioning and also creating confusion about what the courts can or cannot do is far more harmful than anything that any other enemy of the State can do. The State has powers for example to deal with terrorism, however ferocious such terrorism could be, as we have seen in the past. By controlling the country’s financial resources and also law enforcement and military resources, any determined ruler can deal with terrorism if it arises. Above all, a wise ruler who wins the hearts and minds of the people can easily find ways of dealing with attacks on the legitimacy of the State and those who attempt to disrupt the functioning of the State. It is people who are the ultimate guardians of the State. However, when the Legislature creates problems for the functioning of the Judiciary that can be a matter that can create huge repercussions for the entire functioning of the State and also undermines the understanding of the rights of the citizens.
Citizens equate the protections of the rights with the possibilities that they have to access justice. When a citizen feels that in the event of an attack on his or her rights there are avenues open to him or her to go to an impartial and independent judicial institution where he or she could reasonably expect redress for his of her wrongs, that gives the citizen a sense of stability. Even when he or she is not sure as to whether certain rights of his or her has been infringed or not or certain entitlements of his or her have been illegally dealt with, he or she can satisfy himself or herself by saying that an institution which bases itself entirely on law and justice is available to him or her to go and get the matter sorted out.
Thus, it is not merely some errant citizens that can commit disturbances about the exercise of the authority of the courts. The Legislature and the Executive that create limitations can interfere far more seriously on the functioning of a just system of laws than any terrorist could do. The reason is because when such actions take place, there is no defence mechanism available within the State to protect the people. The ultimate function of the State is the protection of the people and the property within the territory of the State. The State exists for the purpose of ensuring that there is authority working within the framework of rational systems of law to protect the people. And within that rational system of law, there is nothing more important for the protection of the people than an independently functioning judicial system. Now, if we take the issue of the recent controversies about the Employees Provident Fund and the Employees Trust Fund and the measures that have been proposed by the Government to be undertaken in terms of what is purported to be as the measures associated with the agreements with the International Monetary Fund, the affected people, which is the entire working population of the country, whose interests are affected for now, and for the future, are likely to have enormous problems about the legality of all that is being done. So, therefore, it was natural as under those circumstances that the people resort to the Court with the view to get the interventions of the Court to sort out the matter. By filing petitions before the Court, these citizens have consented that they accept the authority of the Court and that the Court will finally arbitrate on this matter as required by the law, taking into consideration all the circumstances and also ensuring that all matters are done according to the rules of justice. The much discussed decision of the honourable Speaker deciding that the a resolution passed on this issue by the Parliament cannot be questioned before a court is not merely an issue about this particular resolution or this particular issue about the EPF and the ETF and the rights of the persons affected. It is an issue about legality. There has to be an ultimate assurance about legality if the State is to function on the basis of a structure that is based on the law.
If the structure of the State is not based on the law, what is it based on? Can the mere passing of a law separated from all other considerations relating to legality be a guarantee of legality of anything whether this is about this law or any other law?
Thus, the problems affecting the Sri Lankan legal system are of a very fundamental nature. When the Speaker made this decision, the Republic had already deprived the Judiciary of post-legislative judicial review power and it has now been brought to a situation where even pre-legislative review has been removed. What is the nature of the Judiciary that exists in Sri Lanka? These are questions of jurisprudence. These are not just a question of some political opinion. The present situation is logically and legally idiotic. However, to say, that there should be no judicial review at all is to say that there is nothing wrong even if decisions are made in an illogical and illegal manner.
When questions of this sort arise, under normal circumstances, that has been the courts that have settled the issue. Now, there is no one to settle this issue. That could create one of the most serious confusion that could affect every aspect of the functioning of the State. Now, this happens at a time when the country is at its worst in terms of the economy, in terms of the society, in terms of the political life, in terms of the political life, and in terms of the basic needs of the people where many questions of survival are at stake. The question arises as to what role the State will play in resolving any of these problems. Can the State intervene into these problems while ignoring the fundamental problem of legality?
This is why the present situation is much worse than what has ever been caused by terrorism or any other threat to the survival of a legitimate system of governance within Sri Lanka.