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Monday, September 25, 2023

If the Executive or the Parliament usurps SC function to interpret the Constitution the whole system of democratic governance will collapse

MA Sumanthiran M.P.
Last week we saw an unprecedented action by the Supreme Court. I wonder whether any court, let alone the Supreme Court, has ever before made a ‘request’, without making a coercive order. This perhaps was dictated to by the experience gained on two previous instances. Both involved the former Chief Justice Sarath Silva.
In 2001 when a Motion for his impeachment was presented to the then Speaker Anura Bandaranaike, the Supreme Court issued a stay order restraining him from appointing a Parliamentary Select Committee (PSC) in terms of Standing Order 78A of the Parliament. On that occasion the Speaker ruled that he was not bound by the order of the Supreme Court.

The second was when the Supreme Court presided over by Sarath Silva ordered the lowering of fuel prices. On this occasion the Executive refused to abide by the court order. On both occasions the judiciary was unable to enforce its orders. The reason for this lies in the way the concept of separation of powers ought to work.

The theory of separation of powers obligates each institution of government to respect and work harmoniously with the other two institutions. If not there will be clashes and confrontations between each other and democracy will not be able to function. Therefore it is a sine qua non that each organ leaves the function of the other two organs to themselves without transgressing into the areas, which are the exclusive preserves of those. In such a set up the question as to which organ is supreme does not arise. Each is supreme within its own area of competence, as laid down by the Constitution, which alone is actually supreme.

The Constitution recognizes that the people are sovereign and that their powers of governance shall be exercised by three separate organs: legislative power of the people by the Parliament, executive power of the people by the President and the judicial power of the people by the Parliament through courts, tribunals and other institutions established by law, subject to one exception where in respect to their own privilege the Parliament can exercise judicial power directly. It is this principle of separation of powers that s being breached when Parliament tries to exercise judicial power of the people in matters other than privilege. Standing Orders 78A and 78B were hastily introduced when the UNP government tried to impeach the then Chief Justice Neville Samarakoon QC, which unconstitutionally vested in a Parliamentary Select Committee, certain judicial functions.

This issue as to the constitutionality or otherwise of Standing Orders 78A and 78B has loomed large again in the context of the present efforts ot impeach the incumbent Chief Justice. The matter was referred to the Supreme Court by the Court of Appeal for interpretation, since it is the Supreme Court that has been vested with the sole and exclusive jurisdiction of interpret the Constitution. No other institution, not even another court, has been conferred with such power. The Supreme Court, having been properly taken cognizance of the matter, will make a pronouncement within a period of two months as prescribed by the Constitution. In the meantime it is the duty of all others to await that determination and not seek to present the country with a fait acompli.

In other words, when the PSC became aware that the Supreme Court was in the process of considering this matter, it ought to have held its hand without even a prompting by anyone. That is what is expected of a responsible institution. In this case, the Supreme Court acted in an unprecedented manner and made an overt request. It certainly was obligatory on the part of the PSC, in the interest of comity, to immediately stay its proceedings and await the Supreme Court’s determination.

After all it is only the Supreme Court that has the power to interpret the Constitution. Neither the Parliament nor the Executive can do that. If the Executive or the Parliament usurps that function, or effectively prevents the Judiciary from doing that, the whole system of democratic governance will collapse. Perhaps that is precisely what the government wants. They do not want any other institution to check their abuse of power. Therefore it has now become necessary to undermine the powers of the judiciary and take it over, so that it will then have absolute power.

Power corrupts – and we can see that very well. Now they want absolute power! God forbid the achievement of that objective.

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