By Charles S.Perera

There is a serious political and a social problem in Sri Lanka that hampers the democratic process , which lies in the question of democratic legitimacy of  judicial reviews affecting the governance of the people. The US Constitution makes a point  in stating that, it is the people that should decide  how they are governed and the Constitutional norms that their society holds . The Judiciary having this power is illegitimate…….”.

In an interesting  research article- a thesis on Judicial Dictatorship: Potential Institutionalisation of the Constitutional Review Process  by Stephen Cranney  of the Faculty of Law, Victoria University of Wellington  states  We the People.” One of the most emotion evoking and potentially over used statements has found its way to the center of many democracy-based arguments in constitutional analysis. But if the ‘people’ are center to democracy and the social contract that democracy constructs, then how is it that their voice has become irrelevant?”

https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/4625/thesis.pdf?sequence=2

This  is very relevant to the surprising judgment of two courts in Sri Lanka, an Appeal Court and the Supreme Court  delivered  in interpreting the relevant sections of the Constitution of Sri Lanka with regard to the decision taken by the President of Sri Lanka in a political imbroglio , to  dissolve the Parliament and go to the people for an election.

The decisions of both the Appeal Court and the SC on the issues could be interpreted as judicial errors,  and the interim order issued by the Appeal Court to  stop the Prime Minister and his Cabinet of Ministers functioning until the Appeal Court takes a decision,  an enormous Judicial error, perhaps a first in the world.

As it was stated at the beginning there is a serious political and a social problem in Sri Lanka with the people divided into  ordinary people largely Sinhala Buddhists ,and another English Educated mainly Colombian  high society. The latter group has a following  of  the people depending on the rich and powerful and drawing their strength from them. Those were the people who were  seen recently  filling the Galle Face Green  for a gathering called for by the high society politicians .

Mahinda Rajapakse and now  Maithripala Sirisena belong to the ordinary Sinhala Buddhist population, and trusted, accepted, and loved by them.

The high Society consisting more of the Judiciary, Company Directors , Doctors Engineers, Christians, Evangelists,and the English educated Colombians tend to shun Mahinda Rajapakse  and now  Maithripalan Sirisena. They  have confidence  on the political class led by Ranil Wickramasinghe , the UNP and their allied political parties  belonging  to the high society, and their dependents. So are the  JVP  calling itself a Marist Party is perhaps trying to reach the high and powerful, while Sumanthiran of the TNA wants a federal constitution and the Eelam, and the rest of the Tamil and Muslim MPs are more keen following the rich and well to do in their sense as that helps their business sense.

Therefore there is the  question where lies and who promotes the  democratic legitimacy of the people. Mahinda Rajapakse and his Ministers when they were sworn in on 26 Ocober,2018 was not seeking to take vengeance from his political enemies but keen in making the people benefit from their forming a government to give the people as much relief as possible.

But it is the contrary  when Ranil Wickramasinghe  brings his Kiriellas, Ajith Pereras Champikas, Rajithas , Sarath Fosekas, Harin , and their partners in the JVP, to take over the government. It is for them  to take vengeance and take their political enemies  to courts and prisons , making their lives miserable, rather than find means to give relief to the people as Mahinda Rajapakse did during the short time he was Prime Minister.

In the light of this high society UNP and the political partners who seems to care less for  the people other than to get them to participate in manifestations and fill the grounds where they gather to shout their hatred of Mahinda Rajapakse and President Sirisena. But some how in this political jamboree the Judiciary also seem to play their part along with Ranil and the high society politicians.

Sri Lanka’s Judicial Independence is strange to tell the least. It is certainly independent of the Executive, but not completely independent of the  Legislature  with an evident support for   the right wing  legislators.  It is certainly independent of the people,  unconcerned about their suffering due to political mismanagement of the country by the right wing politicians of the Legislature, that was seen by the Appeal Court making an interim order suspending the functions of the social wing Prime Minister and his Cabinet thus denying the little relief the people were to receive.

The President of Sri Lanka and the Parliamentarians are elected by the people and the people have confidence  in them. However, they are able to show their preference  between  the high society  politicians led by Ranil Wickramasinghe and his political partners,   and the Socialist politicians  led by Mahinda Rajapakse and his parties supported by the President only at an election , but the SC denied them that democratic right ruling that the President cannot dissolve the Parliament for four and a half years.

The two wings of the judiciary  the Appeal Court and the SC seem in my opinion  keen in putting the  Prime Minister Mahinda Rajapakse and President Sirisena, in their place making them understand that the Judiciary is above both of them, and they- the Judiciary have become a deciding factor and it is there with them  that the power lies.   Strangely the Judiciary can exercise this super power of theirs  when a Constitutional review is demanded from them.

A Constitutional Review is defined as the inquiry and decision of whether a piece of legislation is consistent with a constitutional norms”.

There are critical studies made on using the Judiciary with no political or democratic legitimacy as  the ultimate resort  to make Constitutional reviews. The article referred to above on Judicial Dictatorship, argues as follows:

This power given to the courts, of the judicial review of legislation, involves a group of people who seemingly enjoy no political legitimacy and certainly no democratic legitimacy to impose their preferences on citizens generally. The judiciary’s decisions work to thwart policies of the democratic branches of government. The individuals who strike down the legislation are both unelected and unaccountable. What they are effectively doing is invalidating democratically adopted laws.The question must be asked of how this role can be justified in a system that is based on the view that policy and value choices are for the elected and politically responsible institutions.”

This paper argues that the underutilized organ of the executive can be employed to legitimise and solve many of the issues surrounding the constitutional review power that currently lies with the courts.

The paper proposes three review mechanisms. Firstly, an executive override of judicial decisions, where the executive branch can return a piece of legislation that has been struck down to legal effectiveness. Secondly, a veto of constitutionally consequential legislation, where the executive can render a piece of legislation legally ineffective, coupled with an inability for a legislative override. Lastly, an executive mandate for judicial intervention, where the executive informs the judiciary which pieces of legislation can potentially be struck down. The paper expands of these descriptions, discussing potential problems that these methods face before finally defending one decision-making process. By this, the paper aims to satisfactorily create a stable and democratically legitimate constitutional review procedure.

However, it appears correct that  using the Judiciary for  a Constitutional review is un-acceptable in terms of democratic legitimacy of a Judicial decision on a matter concerning the Constitution, as the Judiciary consists of men who are not elected by the people and unaccountable for their decision.

A  future Government should reconsider the question of Judicial independence, specially of its role in  Constitutional reviews in the interest of the people and the country. This is very important  specially  in the case of Sri Lanka a Sinhala Buddhist Country with a culture as old as its history.  It would not therefore be wrong to include in the Constitution that the Chief Justice should be a Sinhala Buddhist.

That would avoid the danger of electing some one like the retired Judge Wignesvaran as Chief Justice of Sri Lanka.  It is not being extra nationalist, but when we see the role that is being played by the TNA MP Sumanthiran and Sampanthan with regard to writing  a new Constitution and JVP wanting to have the President of the Country elected  by the Parliament, the Sinhalese- the majority should remember that they have a responsibility to perpetuate both the  Sinhala Buddhist Culture and  its Buddhist  religious background for the future generation of Sinhala Buddhists,  as Sri Lanka is the only Country they have, which they can call their own. 

We welcome Tamils and Muslims to be part of it without forgetting what Sri Lanka is and what it has given to all minority Communities that lived with the Sinhala  for thousands of years.