Among the first modern authors, to give principle theoretical foundations to the notion of ‘rule of law’ were Samuel Rutherford in Lex, Rex (1644). The title is Latin for “the law is king” and reverses the traditional “the king is the law”. In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Pain wrote in his pamphlet that “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” In 1780, John Adam enshrined this principle by seeking to establish “a government of laws and not of men.” Thus we see that the rule of law came in to satisfy the needs of market economy of the bourgeoisie society. Market can survive only if promises and assurances are upheld in a formal manner. Such bindings should be sacrosanct; thus giving the necessity to take the law away from human personality to be a thing in itself. All government officers of the United States including the President, the Justices of the Supreme Court and all members of Congress, pledge first and foremost to uphold the Constitution. This formality, with a deep meaning, has been adopted in many countries including Lanka. These oaths affirm that the rule of law is superior to the rule of any human leader. The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. World over, authorities define the rule of law as: “the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence.” on this definition a government based on the rule of law can be called a “nomocracy.”
It is true that the parliament in general is responsible for making laws and in the form of a constituent assembly it can dismiss the current constitution and inaugurate an entirely new constitution. But having said all that we have to agree that even the parliament and all political organs are bounded by the constitution; the fundamental law of the country. No way can we accept the idea that parliament as the law maker stands above the law of the country. Lankan constitution has empowered the Supreme Court as the sole authority to interpret the constitution. In effect it is a power bestowed by the parliament. In fact it is a privilege of the parliament to be able to consult SC when ever the need arises. If so how can the notice of the SC indicating its participation in an interpretation problem, relevant to the parliament activity, could create a breach of parliamentary privilege issue. On the contrary it is a privilege for the parliament to be notified and there is no room to consider that some kind of a warrant has been issued. The actions of a Select Committee or the Parliament are actions of the government and therefore the court alone has the jurisdiction to review the constitutionality of any such action by a government and advice the political leadership. Government is very sensitive on this impeachment issue as it is aware that its action is completely subjective and vindictive and also at a tangent to the constitution. Government leaders have accepted that this attempt to dislodge the CJ came because of her ruling in the Divi neguma case. Even otherwise it is crystal clear to any body that the decision is political and nothing to do with ethics and morals of CJ. If not they should have brought this out long time back.
Already huge campaign of posters, leaflets and booklets combine with hearsay was launched to discredit Shirani Bandaranayke. It shows that the government has no trust in their own legal strategy and hence resorted to a terror campaign to make her resign and go away. We are told that she is a rogue and a cheat; hence not fit to act as a judge. This campaign shows that impeachment is just a façade to initiate pressure to push her out. Government action has created a reaction that has spread through out the Lankan society. It has drawn the attention of international democratic forces including the trade unions. Here too, trade unions have started a campaign to arrest the villainy of the government. It has disturbed the bourgeoisie society too. Not only lawyers but also other professionals and business mangers have come out condemning the actions of the government. It is the government that has taken the first step to draw this issue in to the streets. Disregarding threats of the government people have come out in support of judiciary. People who were angry over budget proposals are now coming out on this issue which has attracted all classes in society. We must expect a civil unrest that could challenge the authoritarian regime of Mahinda.