By Basil Fernando –
Anyone who uses their capacity for critical thought would know that the courts are the final authority in the interpretation of law; this means that once the highest court makes a determination on a matter of law, it should be accepted and acted on. If there is any error, the way to deal with it is to refer it to a higher authority; for example, if a three bench ruling of the Supreme Court is thought to contain some error, then a reference to a bench with a higher number of judges could be requested. However, to reject an interpretation of the law by a superior court on the basis that one of the parties – such as the government – does not agree with it is simply unacceptable.
Anyone with some capacity for critical thinking would also know that when a court issues a writ, that also needs to be respected and obeyed.
Without accepting these premises, it is simply not possible for a rule of law system to survive.
If one wants to argue that the rule of law system is not necessary, then that is simply walking out of any rational form of government.
That is exactly the point that Sri Lanka has reached now. If the president proceeds to make an address to the parliament proposing the removal of the Chief Justice – when the Court of Appeal has held that the constitutional requirement of a valid inquiry, which should precede such an address, has not been carried out – then the president is deliberately contravening the constitution.
All other steps, such as the parliamentary debates on the address, the voting on the issue, the removal of the Chief Justice and the appointment of a new Chief Justice will be acts which are done in contravention of the constitution.
Rationally speaking, it is not possible to carry on with a working rule of law system thereafter. Rule of law is the foundation on which these constitutional principles are based.
When such a situation arises, what will be the consequences?
It will be established that court decisions lack authority.
The president and the parliament cannot say that, on the one hand, the courts do have authority, but that, on the other hand, they do not have to respect the orders of the court. When the president and the parliament themselves flout the verdicts of the courts, then the courts themselves cannot claim that their authority is respected at all. If an ordinary citizen fails to comply with courts orders, there are ways to deal with it, such as by way of arrest, imprisonment and even through contempt of court. However, when the president and the parliament flout the law, then the courts are not in a position to impose the law.
There have been rare occasions in the past when law enforcement authorities have dared to implement court orders regardless of the state or the political position of those who were disobeying such orders.
For example, in Pakistan, it was not long ago when the Supreme Court required the resignation of the prime minister after he was sentenced for contempt of court for disobeying an order of the courts. The prime minister, even though he did not agree with the order of the court, obeyed and resigned. The government accepted his resignation and appointed a new prime minister. That way, the government demonstrated to the nation that it respected the authority of the courts.
The next consequence of the impression that the courts are losing authority is the rapid spread of lawlessness.
The suppression of crime (and every other form of lawlessness) is one of the most important aims of a legal system. This is also one of the most difficult things to achieve in any society. There are many elements in society who would exploit a situation of lawlessness to their advantage. It is only the fear of legal consequences that makes many people comply with the law. Once there is a realization that the machinery of the law has its own problems, there are those criminal elements that would make the best use of such a situation. It may be someone who wishes to take revenge from an enemy; or it may be a person who wishes to steal a neighbor’s property; or it may also be persons who, for all kinds of reasons, want to find their way to gratify their sexual interest without the consent of others; and there are always persons who are thinking of ways to get a rich fast, by whatever means, such as breaking into banks or by way of many forms of fraud. This list can be long and endless. When the courts lose their authority and their influence in society, people become victims of all these lawless elements.
A further consequence of such a situation is the loss of legitimate expectation.
Lawlessness produces low morale. People lose the capacity to make judgments on what can be rationally expected from their endeavors. When the society loses its rules, people develop the mentality that any misfortune may be fall them anytime. They preoccupy themselves with thinking of ways to ensure their security, as there are no organized arrangements in society to ensure their protection.
Corruption increases a thousandfold
When dispute settlements on the basis of law, carried out by legal agencies that are supervised by courts, are displaced, corruption enters into everything. Whenever there are personal or property disputes, all kinds of bribes would have to be paid to powerful persons, who often happen to be criminals of one sort or another. As violence becomes the way of dispute settlement, patronage of all kinds of persons is necessary in order to safeguard once legitimate interests. In fact the idea of what is legitimate and what is not loses all meaning.
These are only a few of the consequences of the kinds of decisions that Sri Lanka will be making within the coming few days.
Neither president nor the parliament can control the consequences of undermining the authority of the courts.
I wish to end this article with a personal note. Between 1992 and 1995, I was in Cambodia and was able to witness a society where the law and the courts had no place. At that time, I hoped, in the deepest part of myself, that the Sri Lankan political crisis should not developed into a similar situation as what I saw there. However, as I suspected and feared, we are moving in that direction. Much of what I have been doing in terms of human rights work in Sri Lanka was with the hope that we could convince each other not to walk into that abyss. However, tomorrow, the 10th of January 2013, if the president decides to proceed with his address, we will be walking into that abyss.
If the president himself is taking us into that abyss, what can we say other than to repeat the local saying, ‘if the fence and the niyara devour the paddy field, to whom can we complain’.
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