• No institution is entitled to undermine the Constitutional independence of another

Democracy rests on three essential pillars — the Executive, the Legislature and the Judiciary. They have different Constitutional responsibilities, but none exists in isolation. Their relationship must be one of checks and balances, mutual respect and Constitutional restraint, not confrontation.

Unfortunately, a debate arose on the powers of the three pillars when the Government decided to bring in the 22nd Amendment to the Constitution in haste, without allowing a national debate. Once the Amendment was challenged, the Supreme Court (SC) had no alternative other than hearing the petitions and giving a verdict. There is certainly a clash of interest as the SC Judges too are beneficiaries of the Amendment. The fact remains the SC has to give a verdict after examining the Constitutional provisions.

When these three institutions work within their respective spheres, democracy becomes stronger. When one attempts to dominate the others, the Constitutional structure begins to weaken. And, when political leaders openly challenge judicial decisions or the Judiciary is perceived as acting beyond its Constitutional mandate, public confidence in the entire democratic system suffers.

The recent debate surrounding the SC and Parliament once again demonstrates why Sri Lanka needs a mature understanding of the separation of powers. Any attempt to interfere is not healthy for this sensitive balance.

The sad state of affairs due to the 22nd Amendment was aptly described by former Justice Minister, President’s Counsel (PC) M U M Ali Sabry who expressed his sorrow over the need to tell the highest Court about the ill effects of the proposed Amendment. He referred to previous determinations of the SC, including the Determination on the Inland Revenue Bill, in which the Court had considered the relationship between judicial independence and the sovereignty of the people guaranteed under Article 3 of the Constitution. 

Ali Sabry PC pointed out that the independence of the Judiciary is essential to maintaining the separation of powers. “The Government may think about maintaining power forever, but the Judiciary should function independently to preserve its fairness, and Constitutional Amendments should not be used in a manner that would place the Judiciary in an embarrassing position or compromise its independence,” he said.

Despite the debate that spread like wildfire in social media, the fact remains that the Constitution is supreme. Hence, whatever the SC ultimately determines on the 22nd Amendment, its verdict must be accepted and implemented in accordance with the Constitution. That is not a concession to the Judiciary. It is an obligation arising from the rule of law.

No branch should become invincible

Sri Lanka's Constitutional history provides ample warning about what happens when checks and balances are weakened. Excessive Executive power produced one set of problems. Attempts to politicise independent institutions produced another. Constitutional Amendments that strengthened one branch at the expense of others repeatedly altered the equilibrium of the State. The lesson should now be clear: no branch of Government should become invincible.

The Executive must accept that a popular Electoral mandate is not a licence to disregard Constitutional limitations. Parliament must understand that its majority does not eliminate the need for institutional accountability. The Judiciary must recognise that independence carries with it an equally important responsibility for transparency, consistency and Constitutional discipline.

The three branches should therefore neither become enemies nor operate as rubber stamps for one another.

This is particularly important when Governments undertake major Constitutional or institutional reforms. Such reforms should not be driven by the immediate political interests of whichever party happens to control Parliament. Constitutional arrangements must be designed to survive changes of Government.

Sri Lanka has a proud record of changing Governments at Elections. Today's political majority may be tomorrow's opposition. The safeguards that protect an Opposition politician today may protect a Minister tomorrow. The judicial independence that frustrates one administration may protect the next administration from arbitrary political pressure. The Parliamentary oversight that embarrasses one Government may ultimately protect another.

That is why Constitutional democracy requires politicians to defend institutions even when those institutions produce decisions that they dislike.

The recent political tendency to portray judicial decisions as victories or defeats for particular political camps is especially dangerous. The Judiciary should not become another arena of partisan politics. Nor should court judgments be interpreted through the prism of whether they favour the Government or the Opposition.

Constitutionalism imposes obligations

A real test for a Government is whether it demonstrates that it can accept Constitutional limits even when those limits are inconvenient. A Government committed to good governance must be willing to hear an inconvenient judgement. A Government committed to democracy must respect an independent court. A Government committed to Constitutional reform must accept that Constitutionalism imposes obligations on those who possess political power. This is particularly important because the Government has itself placed considerable emphasis on institutional reform and strengthening democratic governance. Constitutional reform cannot credibly be pursued while the independence of Constitutional institutions is weakened.

Sri Lanka needs a political culture in which disagreement with a judgement does not automatically become an attack on the Judiciary; where judicial scrutiny of Government action is not portrayed as an attack on democracy; and where Parliamentary authority is respected without allowing Parliamentary majorities to escape Constitutional limitations.

Democracy is not simply majority rule. It is majority rule constrained by law, protected by institutions and balanced by Fundamental Rights. The Executive, Legislature and the Judiciary are therefore not three ships sailing in different directions. They are three essential components of one Constitutional vessel. If one attempts to overpower the others, the entire vessel becomes unstable.

Sri Lanka has already paid a heavy price for institutional confrontation and the excessive concentration of power. The country now needs a different political culture, one based on Constitutional humility.

The President must respect the courts. Parliament must respect Constitutional limitations. Judges must respect the boundaries of judicial power. And, all three must respect the sovereignty of the people, which is exercised through the Constitution rather than through the temporary authority of any individual or political party.

Sri Lanka's Executive, Legislature and Judiciary must therefore learn not merely to coexist, but to balance one another. Their independence must be protected, their powers restrained by the Constitution, and their disagreements resolved through Constitutional means.

The Executive derives its authority from the Constitution and the mandate given by the people. The Legislature represents the sovereignty of the people through Elected representatives and is responsible for making laws and scrutinising the Government. The Judiciary, meanwhile, is entrusted with interpreting the Constitution and the law and protecting the rule of law.

These are not competing sovereignties. They are different expressions of the same Constitutional order.

The Executive cannot expect the Judiciary to endorse every policy decision merely because the Government possesses a popular mandate. Similarly, the Judiciary cannot be treated as an obstacle whenever its interpretation of the Constitution or law is inconvenient to those in power.

Judicial independence

Parliament too must recognise that Legislative supremacy does not mean Constitutional supremacy. Parliament makes laws, but it operates within the Constitution. The courts have a legitimate Constitutional role in determining whether Constitutional requirements have been respected.

Equally important, judicial independence does not mean judicial infallibility. Courts can make decisions that Governments, political parties and sections of society may disagree with. Such disagreement is legitimate. The proper response, however, is through Constitutional and legal mechanisms and not political intimidation, personal attacks or attempts to undermine the credibility of judges.

This distinction is particularly important in a country such as Sri Lanka, where institutional trust has been repeatedly damaged by political interference, Constitutional crises and the excessive concentration of power.

The danger begins when political disagreement is transformed into an institutional confrontation. A Government may criticise a judgement. Parliament may debate its implications. Lawyers and academics may challenge its reasoning. Citizens may express disagreement. All these debates must take place within a framework of respect for the independence of the Judiciary.

Likewise, judges must remain conscious that judicial power is exercised within a Constitutional framework and that the legitimacy of the Judiciary ultimately depends on public confidence in its independence, impartiality and restraint.

The answer is therefore not to create a Judiciary that is subordinate to the Executive, nor an Executive that is paralyzed by judicial intervention, nor a Parliament that regards itself as above Constitutional scrutiny. No institution is entitled to undermine the Constitutional independence of another.

The lighter side of the retiring age

If retirement ages can be increased whenever experienced officials are needed, perhaps the same principle should apply throughout the public service. Parliamentarians could have their retirement age extended indefinitely. Ministers could be declared “too experienced to retire.” Presidents could receive a Constitutional extension whenever the country decides that replacing them would be inconvenient. And perhaps, even voters could be told that Elections are an unnecessary interruption to experienced governance. And that would be a rather uncomfortable judgement for democracy.

The writer is a journalist, diplomat, and media professional with experience in public communication and international media relations

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The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication