On that ‘Judicial Coup’ and other aberrations

One must confess to being somewhat tickled this week by Prime Minister Ranil Wickremesinghe’s use of the Singarasa precedent in making such a sparklingly scandalous allegation as a judicial coup against Parliament.

Sorting out the fundamentals

The Speaker is now expected to rule on the relevance of Singarasa on the people’s (and the Parliament’s) sovereignty in respect of the validity and applicability of the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) in Sri Lanka. This Protocol gives the right to Sri Lankans to file individual petitions before the juristic body of the United Nations Human Rights Committee alleging violations of ICCPR. The Committee comprising reputed jurists and experts in turn, hands down ‘Views’ as to the measures that it recommends the State should take.

Let us first sort out a few fundamentals in this unhappily convoluted mix. In its Comments on the nature of its own authority, the Committee has been quite categorical that its ‘Views’ have no binding force within a nation-state. No new domestic ‘remedies’ are directly attracted by the Protocol. Instead, where specific domestic incorporation of international treaties is required on a country’s Constitution, it is up to each State to enact laws or reform policies.

Against that background, the Singarasa precedent handed down by a Divisional Bench under the hand of retired Chief Justice Sarath Silva in 2006 exhibited judicial adventurism of an unpleasantly novel kind. The President of Sri Lanka was pronounced to have exercised legislative power in acceding to the Protocol by promising to ‘give a remedy’ for the violation of ICCPR rights. The Court further opined that the Presidency had acted in excess of its powers in the decision to accede as the Committee had been allowed to exercise judicial power within the country.

Atrocious contradictions of international law

These views amounted to an atrocious contradiction of international law and international practice. The Singarasa ruling reverberated far beyond the facts of the particular case and indeed, beyond the national sphere. It struck a chilling blow to the very basis of Sri Lanka’s adherence to international law.

In fact, both the Kumaratunga Presidency which had acceded to the ICCPR Protocol in the late nineties on the sagacious advice of the late Lakshman Kadirgamar, then Foreign Minister and the later short lived United National Front government under Ranil Wickremesinghe had airily ignored the Committee’s ‘Views.’ But no visible displeasure was evidenced from the UN system, other than protests by advocates monitoring the process.

But a Government’s amnesia is entirely different to the highest Court of the land proclaiming that the very act of Presidential accession to the Protocol was unconstitutional. Notoriously slow to intervene in the internal judicial functioning of a member state, jurisprudential organs of the United Nations woke up and started rubbing their eyes. From demonstrating a healthy and measured approach to international law by judges who once stood their own in the Commonwealth, the Sri Lankan judiciary began to be eyed askance with a degree of startled alarm.

Reaffirming state commitment to the ICCPR

At the time, reactions to the Singarasa precedent within the country were muted. Indeed, yahapalanaya ‘born-again’ corruption crusaders from the Attorney General’s Department gleefully hinted before the Supreme Court that the UN Committee was made up of nonentities. Senior lawyers from the unofficial Bar whose knowledge of international law was sketchy at best, defended the indefensible. In academia which should have engaged in exceedingly sober discussion of a dangerous precedent, silence prevailed in the main.

In that sense, the Prime Minister’s statement on the floor of the House that ‘the Court meandered into a totally irrelevant area,’ holding forth on the constitutional competence of the President’ is understandable. Thus the acerbic note that ‘the Supreme Court does not have the power to violate the basic tenets of the Constitution which unfortunately the SC had been doing in the last decade.’

But while the reaffirming of State commitment to the implementation of the ICCPR is reassuring, parts of that statement invoke concern. Indeed, we are familiar with the concept of people’s sovereignty being commonly and cynically tossed about at various points of time to aid a particular argument, judicial or parliamentary as the case may be. As a case in point, Articles 3 and 4 of the Constitution on the separation of powers cited by the Prime Minister constituted the very same basis on which the Silva Court handed down the Singarasa decision in the first instance.

Eschewing short term ‘solutions’

Granted, as long as the Singarasa precedent is in force, Sri Lanka’s sign- ing of international conventions would have no effect. And the predicament of the Government in hesitating to go the correct way, namely in inviting a Full Bench of the Court to reconsider this decision, is obvious.

But the Prime Minister’s stress on the ‘parliamentary exercise’ of judicial power is worrying. Of course Sri Lanka’s parliament is no stranger to the unedifying practice of ‘legislative judgments.’ Barely three months after a new Constitution was promulgated in 1978, a Parliament under the iron Presidential hand of the late JR Jayawardene nullified an appellate court ruling that a Special Presidential Commission of Inquiry inquiring into the actions of former Prime Minister Sirimavo Bandaranaike could not be vested with retrospective powers. Similar precedents have been evidenced in earlier times.

Yet this political undermining of constitutional norms is precisely why the very idea of the Constitution has lost all meaning for Sri Lankans, from the North to the South. And as Humpty Dumpty realized full well at a point, all the ‘king’s horses and all the king’s men’ could not restore public faith in that regard.

A palpable irony

Wrongs of the past must be corrected. But notwithstanding the classic Scylla and Charybdis dilemma faced by this Government, short term and expedient measures is not the way to go. This ‘solution’ would be as perilous as President Maithripala Sirisena dismissing a Chief Justice by executive fiat last year with an ingratiating Bar and sundry lawyers groups cheering on the sidelines. This controversy of a ‘judicial coup’ emanating from the Singarasa precedent has surfaced exactly at the same time that the Government advances a package of constitutional reforms before the people.

Surely that palpable irony should not be lost on us.