Ajit Randeniya

The Supreme Court ruling on President Sirisena’s bold executive attempt to offer the public an opportunity for a fresh beginning is one of the most remarkable judicial intervention in recent history of the country. Following the decision, the ebullient mood of the public that accompanied the October 26 decision was quickly changed in to one of dejection again; The non-performance of the ‘new’ government is adding insult to injury. The people now have to wait, hopefully only for another short while, before they receive real justice in the form of their right to vote.

The harsh reality that follows decisions of the ‘supreme’ court, reminds the hubris of the politician and 11th Chief Justice of the US, Charles Evans Hughes who declared infamously in 1908: ‘We are under a Constitution, but the Constitution is what the judges say it is’. Citizens concerned about the proper operation of the Rule of Law, and are keen to avert ‘government by tribunal’, however, are obliged to comment on the decision. It is also warranted by the awful, but real prospect of judges with power to arbitrate the law also being liable to make mistakes like all human beings.

The objective here is to undertake a critical review of the Supreme Court decision last December on the dissolution of parliament, in the interest of the political well-being of society and its citizenry. It is also important that the mindset of the influential sections of Sri Lankan society be freed from post-colonial, slavish and astoundingly socially insensitive ideological commitments to principles and values that clearly inhibit the economic, political and cultural salvation of a desperately struggling country.

At first glance, the Supreme Court decision (SC FR Application No. 351-361/ 2018) of 13 December appears counter-intuitive from the perspective of millions of poor Sri Lankans who were seeking relief from an incompetent, corrupt, so-called ‘government’ sitting catatonically on top of crumbling economic, political and social structures. The president’s decision to ‘pull the trigger’ did not look a day too early; The virtual absence of public protests against the president’s decision, and lack of public support for the so-called campaign to protect democracy initiated by those who lost power — assisted overtly and covertly by foreign neo-colonialist forces — showed widespread grassroots support for the president’s decision. Alas, the court decision made in ‘splendid isolation’ from ground level realities — by the court’s own admission — appears to have shattered peoples’ expectations of relief, in the name of justice. The question arising is, ‘justice for whom’?

It needs to be pointed out at the outset that the court decision partly reflects the failure of president’s legal team to competently present his case by way of cogent legal arguments and astute courtroom tactics. Tactically, the original submission that relied on challenging the jurisdiction of the highest court of the country to hear the petitions probably served the function similar to that of a red rag to bulls; The suggested alternative remedy of impeaching the president — in a parliament that has been dissolved — was a non sequitur, as has been rightly pointed out by the court. Nor was the inauspicious beginning redressed with later submissions designed to guide the court through issues of fact and law to support the president’s case. The petitioners’ legal teams on the other hand, effectively ‘poisoned the well’ by creating the perception that the Respondent’s legal team exhibited first duty to their client rather than to the court, or indeed to the constitution. The decision amply demonstrates that the court relied exclusively on the petitioners’ legal arguments, almost derisively rejecting every single argument submitted by the president’s legal team. But that is water under the bridge now.

The seemingly ham-fisted handling of the case by the president’s legal team however, does not justify covering the decision with glory; The court decision lends itself to criticism at a preliminary level on a number of grounds, and at a deeper level, on its selection of modes of interpretation and other underlying principles in particular. All in all, a careful reading of the decision suggests, disturbingly, that modern trends in legal thinking have largely passed the upper echelons of constitutional jurisprudence in Sri Lanka by.

At a preliminary level, the ratio of the length of the decision proper to Headnotes in the 88 page document (27 pages to 61) suggests a relatively insignificant level of analysis of issues, compared to the lengthy exposition of the legal submissions. Secondly, the ‘unanimity’ that has apparently been reached by the Bench is atypical, and shows a level of ‘statistical improbability’ in relation to the degree of unison to be expected from a deliberation involving seven mature legal minds; Instances of expression in the first person singular pronoun (e.g., I am compelled, I am unable to agree, and to my mind) in the decision add to scepticism on the level of engagement of the other six judges. Such perceptions conveyed by the decision distract from the democratic values that the court is working to protect.

To focus briefly on the importance of dissenting opinion in judicial decision making, reasoned dissent is regarded vital for maintaining the relevance of law and the delivery of justice to changing community needs and standards; The presence of dissenting opinions is also a pointer to the integrity of the judicial process and independence with which the judiciary discharges its functions. It is known however, that judges have a tendency to stay away from disagreeing with colleagues due to fears of being branded a holder of aberrant views, or a ‘cantankerous’ person. As further analysis of the decision reveals, lack of dissenting opinion on any significant point is one of its major flaws.

Looking at the judicial method adopted by the court in reaching its particular conclusions, the issue of law has been justifiably reduced to one of correctly reading the powers and procedures set out in Articles 33 (2) (c), Article 62 and Article 70 of the Constitution with respect to the constitutionality or otherwise of the presidential Proclamation to dissolve parliament. The court has concluded that the power of the president to dissolve parliament referred to in Article 33 (2) (c) is subject to, and limited by, the second paragraph of Article 70 (1). The Chief Justice has therefore held that the Petitioners’ rights guaranteed under Article 12 (1) of the Constitution have been violated by the issue of the Proclamation, and declared it null, void ‘ab initio’ and without force or effect in law. It is notable that in reaching its conclusions, the court has not ventured beyond the infamous 19th amendment or considered any practical implications of its decision, as forewarned.

The court deserves gratitude for the detailed exposition of the general rules of statutory construction and constitutional interpretation it resorted to, and other principles it relied on, because the choices demonstrate how commitments to ‘colonial’ values and traditions inculcated in general and legal educational systems in post-colonial societies ‘shackle’ progress on delivering justice in a universally beneficial manner.

Obviously, the court’s conclusions have been dictated by the set of ground rules it chose to adhere to. Relying primarily on the chosen authorities (recent editions of Maxwell on the Interpretation of Statues and N S Bindra’s Interpretation of Statutes, supplemented by the court’s own authority in Somawathie v. Weerasinghe), the court has decided to: consider interpretation of the constitution not different from the interpretation of other statues; consider the object of all interpretation as to discover the intention of Parliament (deduced from the ordinary meaning of the language used ignoring any defect in the language, free of notions of what is just and expedient), with a view to enforce the Rule of Law. The court has also adopted the doctrine of separation of powers, and has refused to recognise that any public authority has ‘unfettered’ or absolute discretion or power as underlying values.

The first observation that arises from a reading of the court’s chosen principles is that it has either chosen to ignore, or has been oblivious to, more modern alternate views on each of the chosen principles. Broadly, the court has chosen the American-inspired, intent-seeking ‘originalist’ approach to statutory interpretation in preference to more progressive, dynamic methods.

World has moved on

The court’s declared position of treating the country’s constitution as not different from other statutes is contrary to simply observable facts that have been highlighted in many legal texts and decisions of courts in other jurisdictions: while written constitutions and statutes are similar in that they are instruments designed to provide authoritative directions for officials and citizens within liberal democracies, the similarity ends there. Acknowledgement of the existence of a hierarchy of laws — consisting of a constitution or founding document at the apex; statutes or legislation; regulations; and procedures in descending order of influence — is fundamental to the Rule of Law: the constitution simply is not just another legislative document, but the supreme law of the land that is ‘sui generis’ (in a class by itself; and unique). It deals with more fundamental questions — the setting up of government, the distribution of power within government, and the guarantee of basic rights — than other forms of law. It is made through a different process, and it is ‘entrenched’ in order to render its amendment more difficult, requiring super-majorities in parliament. The interpretation of the constitution is directed at ascertaining the supposedly inherent foundational values as a standard test for all other legislations, therefore requiring innovation in its interpretation.

The court’s adoption of the ascertainment of legislative ‘intent’ as the goal of statutory interpretation has also been challenged by many legal educators and judges over the last quarter century at least. Naturally, promotion of intent as the ‘be all and end all’ of statutory interpretation in a colonial text such as Maxwell on statutory interpretation — a book originally published in 1875 by W. Maxwell and Son of Fleet Street, authored by a committed colonialist named Peter Benson Maxwell (knighted in1856, later serving as chief justice of Straits settlements 1867-71, the island of Muralag 1856-66, and Singapore 1866-71) — is to be expected because colonialists never had cause to suspect the intent of colonial legislations to be anything other than to benefit the tribe through exploitation of other domains. (In fact, Maxwell’s next book published just three years later in 1878 was tellingly titled ‘Our Malay Conquests’); Uncritical adoption of such ideas that were part of colonialism however, can hardly be considered appropriate in any process that is intended to serve justice to the victims of colonialism still trying to emerge from the ravages of it.

The new critical theory challenges the notion that a reader of any written communication can uncover the intention of an author in any meaningful sense. (The same applies to verbal communications too). Theoretical questions about interpreting statutes and constitutions raise general questions about the process of human communications, bringing in issues analogous to those discussed in the philosophy of language and linguistics.

The real criticism of the search for ‘intent’ as the dominant mode in the construction of a legislated text arises from its underlying assumption that legislative texts are the product of ‘reasonable persons pursuing reasonable purposes reasonably’. Modem theories of politics however, view policymaking as an enterprise by governments controlled by organised special interests who capture the so-called democratic political processes and the coercive power of government to feather their own nests. There can hardly be a better example than the 19th amendment to Sri Lanka’s Constitution adopted in 2015 to demonstrate the ‘hidden’ intents of the legislative process: its purpose purely and simply was to insure the reign of a prime minister — who ‘piggybacked’ the popularity of another politician — against the risk of being sacked by the president, based on previous experience. The objective (or the intent) was to curtail the president’s powers to dissolve parliament.

The court’s decision to adopt a superficial literal reading of the words of s19 to determine the ‘intent’ therefore goes to legitimise its nefarious intentions. It is arguable that a deeper and broader examination of the constitutionality of presidential action needed to have involved an evaluation of the intent and processes that led to the adoption of the s19 entrapment. The court’s adopted processes provided no leeway for such progressive approaches, raising issues about the delivery of democratic right or justice to the broader public, other than parliamentarians who complained of violation of their fundamental rights.

On other matters, it is a great pity that the court has been unable to consider (probably due to time constrains) the 10 December decision of the Indian Supreme Court Bench comprising the Chief Justice that dismissed a challenge by the BJP leader of the Jammu and Kashmir state to the dissolution of the State Assembly by the Governor as an ‘arbitrary and illegal’ act in violation of the Article 39A of the Constitution of India.

Separation of powers is not sacred

The court’s apparently uncritical commitment to the concept of separation of powers also lends the decision to similar criticism; As is commonly known, the idea of separation of powers was expounded by the 18th century French philosopher Baron de Montesquieu in his L’Esprit des Lois (The Spirit of the Laws, 1748) as ‘trias politica’ (Separation of Powers), as the best way to prevent tyranny which he saw as the primary threat in any government.

The enthusiastic adoption of this concept by the framers of the US Constitution — who were a collective of land and slave owners — is seen as a cynical exercise aimed at protecting vested interests by creating disunity between the legislature and the executive through the so-called ‘checks and balances’, with a view to ward off threat of reforms such as abolition of slavery and protecting Native Indian rights. Today, the separation of powers is being adopted by all developing countries under American influence as the only means of good government, justified by abstract concerns about tyranny.

A little known fact however, is that Montesquieu’s espousing of trias politica was done under his misapprehension that he was describing the structure of the British Constitution. Walter Bagehot, the 19th century British jurist who debunked Montesquieu in The English Constitution (1867), revealed what he called the ‘efficient secret’ of the Westminster constitution in the UK that the Executive and the Legislature are not separate at all, but are closely intertwined. He also claimed that intertwining of the two arms is the glue that provides stability and efficiency in the operation of government, unlike the impasse that results with the American Constitution when Congress and the President disagree (as is happening right at this moment).

While there is a clear case for separation of powers as far as the judiciary is concerned – judges have to be beyond political interference from Parliament or government – the case for a strict separation between the executive and legislative powers in developing countries like Sri Lanka is much weaker due to such separation introduces the risk of administrative paralysis, inhibiting economic development and strong executive leadership; There is no magic to the classic Doctrine of Separation of Powers, and we need our own common sense-based, decent principles of government than what the American example offers.

Delivering true justice needs critical thinking

Though the court decision lends itself to criticism on a number of other grounds similar to the issues raised above, what is important is to acknowledge that the law is not a complete and coherent system with fixed boundaries. Ultimately, the justification for the exercise of judicial power will need to be located in a socio-political system without adherence to ultimate ground norms, particularly those inappropriate for the current needs of Sri Lankan society. Such an approach is necessary in order to retain confidence on judicial power among the citizenry as the corner stone of representative democracy, engendering a level of social stability needed for the effective operation of the Rule of Law.

The role of judges in society and the special powers granted to them entitles the citizenry to demand that they execute the law to reflect the will of the majority rather than adopt methods and procedures that inadvertently favour vested interests only. Judicial decisions that over-rule actions of elected government leaders and representatives have the potential to lead to the breakdown of Rule of Law and undermine the popular will in a democracy.

The only way to ingest such values relevant to Sri Lanka’s current socio-political status is to contextualise our own national history and modern history of the world as a distortion of value systems and social and political institutions that existed for thousands of years — distorted over the last 500 years by European colonisers; Slavish borrowing of social and political values from the very perpetrators of the distortion is neither logical, nor strategically sound.

The process has not worked in Asia, Africa or Latin America: All attempts by the European colonisers and the inheritor of the empire, the neo-colonial Americans over the last century to transfer political superstructures branded indispensable ‘democratic structures of government’ to former colonies have failed, due to the process being the reverse of what they underwent over the last 500 years: the European democracies were founded on the massive physical and social infrastructure they built with the wealth of the entire world transferred to Europe. The problema the developing world is current facing is based on the fact that they are attempting to build ‘democratic’ superstructures without forming an economic or social foundation, the infrastructure, capable of sustaining them. The process is bric-a-brac. Progress is unlikely to be made until indigenous thinking that sees the role and function of constitutions, parliaments, political parties and other paraphernalia of democracy not as means to serve the interests of politicians, but to ensure the survival and well-being of people is forged in developing country societies.

The court decision, seriously puts in to question the assumption that underlies the powers of judicial review of government actions that judges are always intent on addressing moral issues about democracy, not because judges are corrupt or morally inept, but because the institutional setting in which they act and the particular legalistic way they address issues fails respond to majority expectations, often giving rise to fundamentally undemocratic and morally unjustifiable outcomes. The institutional setting in which they act and the legalistic way they address questions about rights makes it hard for essential moral questions concerning the poor be identified and addressed.

This issue is evidenced by the court’s rejection of the argument by some added Respondents that refusing the Petitioners’ applications will enable a general election, giving effect to the franchise of the people, on the grounds that such considerations are ‘tinged with political considerations’.

Progress is unlikely to be made until the forging of indigenous thinking that sees the role and function of constitutions, parliaments, political parties and other paraphernalia of democracy not as means to serve the interests of politicians, but to ensure the survival and well-being of people.

We might have to wait for quite a while.