IMPEACHMENT AND SOVEREIGNTY –HE CHECKED-HIMSELF-MATE

For sheer 24 carat comedic self-aggrandizing hubris – this bloke must be given a full 100 marks. Chrismal check-himself-mate Warnasuriya, writing to the Daily Mirror of November 28 states, ‘Several teams of lawyers have been attempting to uphold the Rule of Law and the Constitution over the last few weeks, as we have sworn an oath to do on behalf of the People and this Republic; some before Court arguing the legal principles, some in educating the masses across the country by public rallies, agitations and meetings and some defending Her Ladyship the Chief Justice before the Parliamentary Select Committee (PSC).’ (Emphasis mine.)

Ah the masses! Poor sods. Waiting to be educated, no? On what, we shall presently see!

Self-aggrandizing would be quaint understatement in the present consideration! Here is a lawyer who is appearing for petitioners challenging the impeachment of the Chief Justice.

That professional duty is one would have thought, a professional lawyerly service. But not for this man, the nicety of refraining from canvassing for the case one appears for – in the newspapers. He takes out nothing less than a full page to do so!

Nothing more should be said about the ‘ethics’ and ‘integrity’ of such teams of lawyers ‘attempting to uphold the Rule of Law and the Constitution.' Anything goes. We argue cases in court -- then, basically we report them (oh, at least cheer on their behalf!) in the newspapers too. Hmm.

How very ethical, this man who seems so determined to check-himself-mate. But wait, there is more. Starting on that gratuitously high ethical note --- he says the issue he wants to canvass in the newspapers ‘revolves around the sovereignty of the Sri Lankan citizen.’ Phew. Oh no it does not revolve around the case he appears for in court – it revolves around ‘the sovereignty and the protection of the right to the independence of the judiciary’ -- and the PEOPLE he says need to know, screaming over the top of his head, on behalf of those ‘people’ in upper-case.

Promotional agents

The PEOPLE (upper-case) must be very pleased indeed (heh, heh!) that there are lawyers who double as their own promotional agents in national newspapers, but never you mind …

Having set himself up as the promoter of the PEOPLE’S (upper-case) cause, each step of the way he effectively blows his own trumpet because that’s what he does best in the end, promote his own cause and case – this prize specimen of ‘integrity’ and ‘ethical values’. Warnasuriya check-himself-mate then goes on to, in his quite cringe-worthily overwrought prose, to state that it was the PEOPLE (ah, upper case!) that created the Constitution and the three separate arms of state, to be checked and balanced by each other, or at least some such thing, according to this prolix pundit masquerading as a modern-day Montesquieu.

Such wisdom! Such trenchant thinking, eh? What other earth shattering truths has this contemporary sage discovered, for the edification of the lesser mortals, the (upper case) PEOPLE he so deigns to ‘educate’?

He writes: “Analyzing the order made by their Lordships of the Supreme Court on Thursday (Nov. 22, 12), it may be seen from the language used that these strict separation of powers had been foremost in their minds; that the Judiciary will not assume a superior role to Parliament, expecting that same reciprocal courtesy from Parliament as well. The order (excerpts only) reads as follows:

“This Court whilst reiterating that there has to be mutual respect and understanding founded upon the rule of law between Parliament and the Judiciary for the smooth functioning of both the institutions, wishes to recommend to the members of the Select Committee of Parliament that it is prudent to defer the inquiry to be held against the Hon.

Chief Justice until this Court makes its determination on the question of law referred to it by the Court of Appeal.

The principle of “Separation of Powers” operates in its true classical sense in our 2nd Republican (1978) Constitution and that is the supreme law of this Republic; no single Organ is superior or inferior to another; they each have distinct roles to play and therefore necessarily must work together.’’

So having argued the case, check-himself-mate then proceeds to give us the decision of the court, and without so much as a by your leave, arrogates to himself the task of deciding what the Parliament - - the elected Legislature - should do, all this, mind, not on behalf of himself or promoting his own interests as an Attorney-at-Law appearing in the same case, but on behalf of the (upper-case) PEOPLE.

Where do these guys come from – from under which exact area of the woodwork did they emerge – I’m tempted to ask, but I would keep that query in abeyance to get to the ‘substance’ (cough!) of Mr. check-himself-mate’s thesis -- for thesis it is.

Says he as if he has discovered the Rosetta stone all by himself, that ‘the three branches of government are equal, and none is superior to the other.’

Earth-shattering wisdom

That’s just as well, when there is smooth sailing between all branches of government. Such co-existence is the ideal - - but it does not always happen. Remember, on check-himself-mate’s own admission we can glean the not so earth-shattering wisdom that these three arms of State or branches of government are supposed to keep check on each other, and thus maintain what’s called ‘a system of checks and balances.’ In an instance in which the Legislature has thought it fit to check what it would deem the excessive use of/and/or abuse of power by the Judiciary, we come, as in the present instance in Sri Lanka, to one of these impasses that arise when one of the branches of government seeks to exercise its power of curtailing (‘or keeping in check’) the other. This is perfectly constitutional. In fact, in check-himself-mate’s own admission, this is what these branches of government are supposed to do with each other – keep one another in check.

When such a constitutionally expected oversight function by any branch over another occurs, there would almost inevitably be a situation of standoff. It is in such a conjuncture of stand-off that eventually, one arm of State would have its comeuppance over the other.

Nature of democracy

If one branch of State would not seek comeuppance over the other in a situation of a standoff, it would follow logically that the function of checks and balances would not have been properly carried out. Unpleasant as it may seem, the only way that the Legislature could effectively check the Judiciary or vice versa, is if one or the other of these branches depending on which is applying the screws, has the power to follow through with the oversight (checking) that is applied.

Third is where all the LEARNING (upper case mine, dedicated on behalf of Mr. check-himself-mate’s monumentally amusing sense of self-importance) of the PEOPLE’S champion lawyer comes unstuck. Yes, no branch of State is superior to the other, ideally – but when it comes to an engagement between two of three branches, one will invariably have to come up trumps over the other for the issue to be resolved!

Check-himself-mate presupposes that it is the Judicial branch that has to prevail, with its opinion already delivered in court. Why so? Because he argued for that outcome before that very court? Phew! A better piece of self-advocacy, it would be rare to see in the annals of court-craft in Hulftsdorp, but let’s allow that to pass.

Parliament may think that its own power to check the Judiciary prevails, and the Judiciary may not be the best party to judge the efficacy of such a move, and decide in its own cause. The Legislature will argue therefore that its writ shall prevail in the matter.

In other words, the Legislature would proclaim its ‘supremacy’ no matter how speciously legalistic check-himself-mate sounds. That’s what it boils down to -- which branch is more powerful, or has ‘supremacy’ over the other!

In documented standoffs of this nature between Legislatures and Judiciaries in functioning democratic polities, one strains to find an instance in which the Judiciary has come up trumps in the confrontation! That is fundamental to the nature of democracy. The elected Legislature would - - who can argue otherwise – have more power in a standoff due to the simple fact that it is elected, while the Judiciary is appointed. It is -- shorn of all legalese -- and in terms that check-himself-mate may himself understand, a no -brainer.

Individual suitors

Question also should be asked, why should it be otherwise? Why shouldn’t the elected Legislature prevail over the appointed Judiciary in a standoff created from the former pursuing the legitimate constitutional function of keeping the latter in check?

The PEOPLE (upper-case) after all, elected the Legislature. What is the basis on which it could be stated that the PEOPLE (upper case) would prefer their power to be exercised through the Judiciary, rather than through the Legislature? Who, pray, checks what perchance may be the untrammeled power of the Judiciary, if it exceeds its mandate? Is it Chrismal check-himself-mate – Warnasuriya on behalf of the (ha ha ha ha) PEOPLE (upper-case) who will do that?!

Said Thomas Jefferson: "At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account." (Emphasis mine?) Now, who would you believe? Thomas Jefferson, or Chrismal check-himself-mate Warnasuriya? Would that be a brainer, or no-brainer?

It is the Constitution, not the Supreme Court, which is the Supreme Law of the Land. Even the Supreme Court should be accountable for overstepping Constitutional limits on federal power. (That’s from a constitutional paper written in the United States.)

So much for Mr Chrismal’s tilt at the windmills of Rule of Law and Constitutionality. In truth it’s no more than a bending over backwards to further his own rather inconsiderable courtroom reputation. Incidentally, should not the PEOPLE (upper-case) sue for using their name in vain for such flagrantly self-aggrandizing purposes?