SOVEREIGNTY OF THE PEOPLE

Conflict between judiciary and executive could yield good results

SOMETIMES FROM DOUBTFUL AND QUESTIONABLE SITUATIONS GOOD RESULTS CAN ARISE, WE ARE NOT LOOKING INTO THE APPROPRIATENESS OF THIS APPOINTMENT—WHATEVER IT MAY BE, WE MUST BE THANKFUL THAT THE JUDICIARY OPENED ITS EYES

Rift between Executive and Judiciary

Q: There is a perceived rift between the executive and the judiciary; this is being portrayed in the most negative light. However it could be said that the three arms of government should work independently and not in conjunction with each other. What is your view on this?

I would take a mixed approach to this; basically this conflict could be looked at in a positive light. The three arms of government while working in accord with each other, should not support each other—they should support the constitution and the people’s freedoms and rights and good governance. If you support each other, it is a collusive government where the checks and balances are not working. In an ideal situation, the checks and balances would be in place and this would support the idea of the separation of powers, on which our system is based.

If we take the legislature, the parliament—they fall in line with the executive. Whatever the executive dictates (I mean no insult to parliament) parliament will enact. Basically parliament tows the line, any bill that is presented by the executive, parliament passes including the 18th Amendment. When the 18th Amendment was presented in parliament, all the opposition did was walk out—that is a total loss of parliamentary control. The only other arm, is the judiciary and they were seen to be somewhat pliant. This conflict between the judiciary and the executive is natural in this type of set-up.

If you take the history of our judicial system our Supreme Court was established in 1802, with the advent of the British. By 1804, there began a conflict between the judiciary and the executive. The Supreme Court was functioning in the Fort, where the President’s House is located. At that time there was corporal punishment, but the Supreme Court insisted that these punishments should only be carried out under judicial orders. The governor resisted this order and because he was angered moved them out of the Fort to Hulftsdorp, at the time that was wilderness. They were literally driven away into the wilderness but the judges did not succumb. We should harp on this tradition of our judiciary never succumbing to the executive.

The executive is always, the strongest arm of government— because they have the Police and the armed forces in their power. Despite this our judiciary has always remained independent. In 1939 there was a famous case where the judiciary gave a judgment against the government, who was a representative of the monarch. This conflict prevailed during the time of Neville Samarakoon and throughout my time. Somehow we have managed to keep the judiciary above water, and not get submerged by the executive—you can get kicked around but you must keep your head above.

In recent times we have witnessed what seems to be a tendency for the judiciary to work in consultation with the executive. There were so many instances, like the Katunayake Free Trade Zone incident, Anthony Fernando the peaceful protestor in Chilaw and the bashing and thrashing of students—in neither of these cases has the judiciary taken any prompt action. Sarath Fonseka was manhandled and taken away and jailed in the most questionable of circumstances and ultimately he had to go to the executive.

In this setup we looked to some positive action by the judiciary and it came with the Divi Naguma Bill and the Z-score to some extent.

Q: What do you think triggered this change in the judiciary?

There can be so many incidents, but on the surface if we look at the timing of events—we can see some causes, one of which seems to be the conflict with the Chief Justices husband and his involvement—was an improper appointment. He should not have been given a political appointment. Thereafter there were some issues regarding his conduct and the President did not stand by him.

Doubtful and questionable situations can give good results and without looking into the appropriateness of this appointment—whatever it may be, we must be thankful that the judiciary opened its eyes, and should look at it as a positive development.

Q: How can you look at it in a positive light, when the judiciary took this action merely due to a personal conflict? We are also left with the question of what we are to expect when that personal conflict is resolved.

That is correct, you got me there. You are hinting at the fact that once the personal fallout is resolved the judicial eye will shut—that danger is always there. We, the ordinary people of this country, are helpless in this situation—we are victims, we have no control of the judiciary or the executive. I think today the sovereignty of the people is below the hoof, it has been brought to nothing. We have to be hopeful; and not look for a whole panacea for this. The public also needs to be alerted to this.

This must be looked at as an opening, may be it has a murky background, but even from the mud a lotus can bloom.

JSC and the Executive

Q: The Secretary of the Judicial Services Commission claimed in a statement that the executive was attempting to influence the judiciary, by calling them for a meeting. But the government has denied this and said it was merely to discuss administrative issues and not to influence the judiciary. What is your view on this? Does the president have the right to request a meeting with the JSC and does the JSC have the right to refuse? Even though the JSC is appointed by the president?

The executive as head of state can send for anyone, because despite the separation of powers, he is the head of government and head of the executive and the commander of the armed forces—he rises above the rest. He can send for the JSC, which is an administrative body, he was not sending for the Supreme Court. We must see the difference here; the JSC is an administrative body appointed by the executive, after consultation with the parliamentary council—which is in effect under the control of the executive. The JSC is an administrative authority and they are performing the role of the executive; discipline and administrative duties.

Q: Do you think this situation was handled correctly, by all those involved?

With all due respect to the Chief Justice, she reacted wrongly. She should not have got the administrative officer (the secretary of the JSC, has no judicial status, and performs the activity of the executive) to write to the head of the executive. That is a huge gap in the system, a low ranking officer writing to the executive. Thereafter making that statement public.

There is a clear implication in that statement that the executive is trying to influence the judiciary. However sending for the JSC is not influencing the judiciary, and this is where they all went wrong.

Despite everything Mahinda Rajapaksa’s luck works in his favour; he was able to say “I called to discuss administrative matters”. With all due respect I don’t believe that.

The JSC made a fundamental error in the way they handled the situation. The JSC is an administrative body and subject to judicial review. When I was head of the JSC, there were several cases filed against the JSC. It would have been different if the president called for the Supreme Court, the Chief Justice could have written and

said “no we are not coming”.

Q: There is some confusion with regard to the line of authority, in the case where the Secretary of the JSC comes under disciplinary action. How can the secretary of a certain body, come under disciplinary inquiry of that same body? The government has used this as a defence to say that the JSC refused to attend the meeting because of the accusations levelled against the JSC Secretary.

There is a clear mistake in the understanding of the government. Under the 1978 constitution, the JSC was appointed by the president, in consultation with the cabinet of ministers. When the 17th Amendment was put in place, I was instrumental in getting this provision to ensure that the disciplinary authority of the Secretary of the JSC will be the JSC itself. But when it came to the 18th Amendment, they wanted to repeal this provision—and whoever did this, did a very clumsy job and reenacted the same section. Therefore the government thought we had returned to the 1978 constitution and the executive was still the disciplinary authority of the Secretary of the JSC.

Q: If the government wants to take action against the secretary of the JSC, it cannot. The disciplinary action has got to come from the JSC?

Yes, the executive cannot take action against the secretary of the JSC.