ACT JUDICIOUSLY
Yesterday it was mentioned in this space that Parliament has
reached consensus over the fact that there cannot be strictures
passed on the functions of that legislative body by the
Judiciary. The government and opposition had reached an
unequivocal agreement on the matter.
Shortly after, the Speaker of the House gave his own ruling,
and in no uncertain terms said that the notices issued by the
Judiciary are a nullity. The Supreme Court however has gone on
today to call for written submissions from the respondents - -
the members of Parliamentary Select Committee (PSC) for
instance, with regard to the petitions filed challenging that
body and its functions.
The Judiciary must obviously be doing this as a matter of
routine; respondents in these types of cases are asked to submit
written submissions subsequent to the issuance of notice. But
this is certainly not just any other case, and the persistence
on the part of the Judiciary on insisting on written submissions
after the Speaker's very unequivocal and rather strongly worded
ruling, is to say the least, not prudent -- and certainly not
quite in order, never mind the considerations of good taste.
The Supreme Court may be perusing this matter in a routine
manner, but that does not necessarily absolve the highest
members of the Judiciary for embarking on a direct
confrontational route with the elected representatives of
government.
Such a confrontation is a serious matter. It seems time that
the highest court of the land acted within their powers, so as
not to provoke a needless constitutional crisis from which it
cannot emerge victorious. Precipitating a constitutional crisis
that has the potential to snowball into something serious, is
not a matter that would be appreciated by the people of this
country.
The Judiciary should also take into cognizance the fact that
the emphatic assertion of authority by Parliament over the
Judicial branch is not a matter to be trifled with, particularly
when the Executive and the Legislature are in concert on this
matter.
It is in other words, two arms of the State, against one -
and if one arm of State hopes to outmaneuver the two others put
together, this is to create a constitutional standoff that puts
the Judiciary in a very bad light, in the context of the forces
that are arraigned against it.
Certain so called neutral observers had made the observation
in this matter that the Legislature too consists of a large part
of the Executive in this country, since the large cabinet is
part of the Executive and is represented in the Legislature - -
but that contention, whether valid or not, can no longer be made
when the Opposition has made its own position patently clear on
this matter, concurring with the Executive and the rest of the
Legislature that the Judiciary has no business passing
strictures on it, or interfering in any way on a matter strictly
within its ambit such as the appointment of a PSC to investigate
misbehavior charges involving the Chief Justice.
The Judiciary should also beware (... and be aware of) the
potential appearance of bias in that the Judicial branch seems
to be poised in this tentatively confrontational direction
against the Executive and the Legislature, mostly on behalf of
its own Head.
To threaten the entire edifice of governance and the delicate
balance between the three branches of government in the
pursuance of an issue involving the embattled chief of its own
Judicial branch, smacks of a certain partisanship and a judicial
arrogation of powers to be judge in what would be seen as its
own cause.
The Judiciary should also have been under the circumstances,
aware of precedent in this matter -- the ruling by former
Speaker Anura Bandaranaike that no writs can be passed on
Parliament.
In the backdrop of all of these relevant considerations, the
Judiciary if its is not to be perceived as having provoked a
deliberate confrontation, will be well advised to embark on a
path of course-correction and be cognizant of the constitutional
prerogatives of the elected Legislature, which have been
stressed and asserted in no uncertain terms on both sides of the
aisle. |