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Did President RW trespass on independence of the Judiciary?

Tuesday, 29 August 2023 00:00 –      – 54

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 The comments made by the President regarding the DDO Program were well within not only his constitutional rights but also the responsibilities, and they in no way trespass on the independence of the Judiciary

 

Overturning of well-established constitutional and judicial principles at the whims of a minority hell bent on doing things their way and insisting that the President takes the highway should not be permitted. Such fallacies maybe expected from laypersons but not the legal fraternity. In fact, attempting to do so is akin to inviting the Judiciary to trespass on the independence of not only the Executive but also the Legislature

 

The resolution to implement the Domestic Debt Optimisation (DDO) Program proposed by the subject Ministry and approved by the Cabinet and the Parliamentary Committee of Public Finance, was passed in Parliament by a majority vote of 122/62 on 1 July 2023.

Certain members of the Opposition, as well as civil society and professional groups including those of the legal profession, have been engaged in a discourse on whether the comments made by the President on the matter interferes with the independence of the Judiciary. Two Fundamental Rights Applications had also been filed against the DDO measures, and subsequently dismissed by the apex Court without granting Leave to Proceed.

Did the President’s comments in fact impinge on the independence of the Judiciary, or was he within the Constitutional bounds and obligations reposed upon him as the President and the head of the Government?

The President’s speech at the Coconut Growers Association

As reported by the Daily FT of 5 August 2023 (https://www.ft.lk/top-story/President-RW-stresses-Parliament-s-authority-over-Govt–s-fiscal-measures/26-751451) the President, at the 29th Annual General Meeting of the Coconut Growers Association held on 4 August 2023 said:

“The control of public finances lies with the Parliament, and the debt optimisation activities have already been approved by it. The Parliament, being the custodian of the sovereign power of the people, under Article 04 of the Constitution, exercises all the necessary powers. The Government operates within the framework set by the laws of the Parliament, and decisions can only be changed or continued with the Parliament’s notification…However, some groups sought to disrupt the program, resorting to street protests which are ultimately unsuccessful in garnering public support. Now, they are attempting to utilise the Court for their political agenda, seeking prohibition orders…”

The Speaker’s ruling of 9 August

In response to a question of privilege with respect to the DDO, the Speaker announced a ruling on the same lines, wherein it is stated inter-alia (as per the Hansard of Aug 9, 2023):

  • Article 4(c) of the Constitution provides that “the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;”
  • Article 148 of the Constitution provides, “Parliament shall have full control over public finance…”
  • As the Resolution on DDO Programme has been passed by Parliament, the Resolution is “beyond the jurisdiction of the Supreme Court or any other court…”
  • The Ruling of June 20, 2001 given by the then Speaker, the late Anura Bandaranaike, held that “Parliamentary proceedings cannot be called in question and/or interfered and/or intervened by courts…”
  • Section 3 of the Parliament (Powers and Privileges) Act, No. 21 of 1953 read with Article 67 of the 1978 Constitution, provides that the Proceedings of Parliament shall not be liable to be impeached or questioned in any court or place out of Parliament.

Fundamental Rights Applications against DDO measures

Even prior to the Cabinet approval, a Trade Union affiliated to one of the Opposition parties had filed a Fundamental Rights Application seeking an Order from Court to prevent the Government from restructuring debt obtained from the two largest Provident Funds. Subsequently, another party had filed a Fundamental Rights application along the same lines.

Both the Applications were dismissed without granting Leave to Proceed by two separate Supreme Court Benches, on 9 August and 11 August respectively.

The three pillars of the Democratic State

Article 3 of the Constitution provides that the Sovereignty is in the people and is inalienable. Article 4 provides for the manner that the Sovereignty shall be exercised and enjoyed (inter alia):

a) the legislative power of the People shall be exercised by Parliament consisting of elected representatives of the People and by the People at a Referendum;

b)the executive power of the People shall be exercised by the President of the Republic elected by the People;

c)the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the or created and by law, except in immunities and powers of and of its wherein the judicial power of the People may be exercised directly by Parliament according to law;

The Legislature, the Executive and the Judiciary are the three pillars that our system of Democracy is built upon. Each is required to check and balance the other, but all three exist for the purpose of upholding a single element – the Sovereignty of the People.

None of the three pillars are above the other, or more or less than the other, for if they are not equal, the Sovereignty which they uphold would stand crooked and unbalanced.

The doctrine of Separation of Powers

Each pillar has its specific role and responsibilities, for the fulfilment of which the powers, authority and resources are provided for in the Constitution and other legislation. The necessity for each of the pillars to not usurp the others’ powers and authorities, has been established time and again in landmark judgements of the Supreme Court.

In the recent Supreme Court determination “Municipal Councils (Amendment) Bill, Urban Councils (Amendment) Bill, and Pradeshiya Sabha (Amendment) Bill” (SC(SD) 25/2023, etc.), the Court cited the observations of Jathika Sevaka Sangamaya v Sri Lanka Hadabima Authority thus:

“The doctrine of separation of powers is based on the concept that concentration of the powers of Government in one body will lead to erosion of political freedom and liberty and abuse of power. ….There are three distinct functions involved in a Government of a State, namely legislative, the executive and the judicial functions….Those three organs are constitutionally of equal status and also independent from one another. One organ should not control or interfere with the powers and functions of another branch of Government and should not be in a position to dominate the others and each branch operates as a check on the others….the said three branches of Government…act independently and are superior in their respective areas as enshrined in Article 4 of the Constitution.”

The supremacy of Parliament (in its sphere)

In the same Determination (SC(SD) 25/2023, etc.), the Court further observed:

“…According to the doctrine of parliamentary superiority, which is also known as parliamentary sovereignty, the Parliament is the supreme authority that can make, amend or repeal any law in the country without any hindrance or being challenged in any forum.”

In addition to Article 80(3) which specifically ousts judicial review of laws passed by Parliament, the Court also cited Article 67 of the Constitution read with the Parliamentary (Powers and Privileges) Act, No. 21 of 1953 and Article 4(c) of the Constitution, “which restrict courts from exercising any jurisdiction in relation to proceedings of Parliament, except to the extent provided by the law.”

Citing the Ruling dated June 20, 2001, of the then Speaker Anura Bandaranaike, the Court held “…Parliament enunciated that parliamentary proceedings cannot be called into question and/or interfered and/or intervened by the courts. In the aforementioned circumstances, due to the separation of powers enshrined in the Constitution and the exclusive power conferred on the Parliament to enact laws, Courts cannot interfere with the parliamentary powers in legislating laws, which exclusively fall within the realm of the Parliament.”

Accordingly, Parliamentary sovereignty is not limited to the specific act of enacting laws falling within the ambit of Article 80(3), but also to parliamentary proceedings within which parliamentary resolutions fall under, and are part and parcel of the legislative power of the People exclusively exercised through the Parliament.

The powers of the Parliament in public finance

Article 15(7) of the Constitution provides that the exercise and operation of the fundamental rights declared and recognised by Articles 12, 13(1), 13(2) and 14 shall be subject to restrictions inter alia for the purpose of meeting the just requirements of the general welfare of a democratic society.

Article 148 of the Constitution provides: “Parliament shall have full control over public finance…”

The DDO is clearly a matter of Public Finance, over which the “Parliament shall have full control”.

In the recent Supreme Court determination on the “Colombo Port City Economic Commission” (SC(SD) 04/2021, etc.), the apex Court recognised the wide discretion of the Cabinet in public finance: “This Court has on numerous occasions emphasised that in revenue matters, in making classifications for the purpose of granting concessions or imposing liability, there is a wide discretion…. “

The Court went on to observe: “In Appropriation Bill S.C.S.D. Nos. 3 & 4/2008, this Court held that legislative power of Parliament includes the “full control over public finance” as stated in Article 148 which is a vital component of the balance of power firmly established by the Constitution in relation to the respective organs of government…”

Therefore it is clear that the apex Court has recognised in no uncertain terms that especially matters of public finance fall squarely within the realm of Parliamentary sovereignty.

The State can function only if each branch stays within its own sphere

In the above-mentioned Supreme Court determination (SC(SD) 04/2021 etc), the Court cited the judgment of Attorney General and Others v. Sumathipala (2006) 2 SLR 126 at 143, as follows:

“… Judge cannot under a thin guise of interpretation usurp the function of the Legislature to achieve a result that the Judge thinks is desirable in the interests of justice. Therefore, the role of the Judge is to give effect to the expressed intention of Parliament as it is the bounden duty of any Court and the function of every Judge to do justice within the stipulated parameters. Referring to the function of a Judge, Justice Dr. Amerasinghe was of the view that (Judicial Conduct, Ethics and Responsibilities pg.284), the function of a Judge is to give effect to the expressed intention of Parliament. If legislation needs amendment because it results in injustice, the democratic process must be used to bring about the change. This has been the unchallenged view expressed by the Supreme Court of Sri Lanka for almost a hundred years’…”

In the United Kingdom, Erskine May ‘Treatise on the Law, Privileges, Proceedings and Usage of Parliament’, (often referred to as the “Bible of Parliamentary Procedure” in the UK), 25th Edition (July 2022 Update), Paragraph 16.23, expresses the same sentiments, and the danger of trespassing into the realm of one branch of the State by another:

“…in terms of parliamentary privilege the principal point determined was that, even if a case of a breach of the administrative law principle of legitimate expectation could be made out, the court could not make any order or declaration which might imply a duty or obligation on any Member of Parliament to take any action in their capacity as a Member of Parliament. A similar challenge was brought…claiming the Government was obliged to hold a vote in the Commons before formally opting-in to European Union measures…The High Court ruled that such a declaration would amount to the courts giving Parliament directions about how it should arrange its business, and that this would breach article IX of the Bill of Rights.

In R (UNISON) v Secretary of State for Health the court, citing Wheeler, held that a successful challenge would delay the introduction of a bill, which would be close to forbidding a member from introducing a bill, contrary to the restraint exercised by the judiciary in relation to Parliamentary functions. The court also dismissed the claim that there was a legitimate expectation of consultation, since ‘(1) the subject matter of the claim and expectation places it squarely in the realm of politics and not of the courts; (2) there is an established means of giving consideration of different views about the merits of the proposals – the passage of the Bill through Parliament.’

In the USA, in Youngstown Sheet & Tube Co. v. Sawyer (343 U. S. 579(1952)), Justice Jackson set out the test of legality of executive orders of the President, where it was recognised that the authorisation of the legislature maximises the authority of the Executive:

“When the President acts pursuant to an express or implied authorisation of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. ….If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power…”

In each case, the principle is the same, that each Branch of State should function within its own sphere, and not interfere with the others, if the State is to function and exercise the Sovereignty of the People.

Democracy must prevail

The Legislative and Executive Sovereignty is exercised by the People directly through the Parliament and the President, as they are elected by the People through exercise of their franchise. The Judiciary, although standing at equal footing as the other two branches, stands a degree distanced from the People as befitting its role.

The process of Democracy is built on the will of the majority (and not on the impossibility of the will of everybody). If the minority on the losing side of a resolution passed in Parliament, is permitted to go to Court seeking alteration of such a Parliamentary decision, it would be but a travesty of the democratic process.

While the “Aragalaya” was instrumental in the dawn of a new era for the country, one of its short sighted slogans (which fortunately was not realised) was to send the “Parliament home” and for a group of unelected citizens to take that role. Such undemocratic and unconstitutional means have never resulted in the desired end. In democracy, the means matter, perhaps even more so than the end. This is evident from the seven countries of the Arab Spring, where the Governments were overthrown through public protests, and replacements were appointed contrary to Constitutional process. Decades later they are struggling to regain a foothold in democracy. The same fate should not be allowed to befall Sri Lanka.

We are fortunate indeed, that throughout the democratic history of this country, the three pillars have fiercely safeguarded not only their own, but also each other’s independence even against a few former incumbents who sought to transgress from time to time.

The judgment of the Supreme Court in SC (FR) 351/2018 etc. on the validity of the dissolution of the Parliament by a former President is a case in point, in which the 7-Judge Bench unequivocally held that the Constitutional process must be followed.

Conclusion

The President’s comments in relation to the DDO are simply expressing the provisions of the Constitution he is bound by, and are in accordance with the astute observations of the apex Court’s determinations on the very matter. In fact, what would have been unconstitutional and undemocratic is if the President had bypassed the Parliament in matters of Public Finance like some of his predecessors have unfortunately done. Having thus chosen to go through the democratic process as set out in the Constitution, the President must now be allowed to chart out unhindered, the best way forward for a country already brought to its knees by an unprecedented economic crisis.

It is in fact his Constitutional responsibility, especially as he is also the Minister of Finance, along the same lines of the Judgment of the Supreme Court in the Easter Sunday Case (SC(FR) 163/2019 etc), in which the 7-Judge Bench observed that the President is clothed with “awesome powers” as his “…personal attention is required in extreme cases of emergency”, since the “…citizenry is entitled to the protection that the Constitution and laws accord them.”

Overturning of well-established constitutional and judicial principles at the whims of a minority hell bent on doing things their way and insisting that the President takes the highway should not be permitted. Such fallacies maybe expected from laypersons but not the legal fraternity. In fact, attempting to do so is akin to inviting the Judiciary to trespass on the independence of not only the Executive but also the Legislature.

Therefore it is the opinion of this writer, the comments made by the President regarding the DDO Program were well within not only his constitutional rights but also the responsibilities, and they in no way trespass on the independence of the Judiciary.

(The writer has a legal practice spanning more than 40 years, specialising inter-alia in matters of Constitutional law, Administrative law and Fundamental Rights.)

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