GET RID OF JUDICIAL REVIEW OF LEGISTLATION

Several opinionated people have posited the theory that it is the divi neguma bill and what followed from that -- i.e.; the challenges to the Bill in Supreme Court, and what was seen as an adverse ruling, that was at the root of the entire impeachment move against Chief Justice Shirani Bandarnanyake, that is now become the central issue of the day.

That there are genuine integrity issues that concern the Chief Justice does not seem to be relevant to the persons who adduce this point of view. But, divi neguma at bottom is an issue that arose due to the provisions for judicial review in our constitution.

Here is how the theory goes: No judicial review --- no divi neguma ruling, and according to the opinionated of course, no divi neguma ruling, no impeachment.

Be that as it may, how did judicial review creep into the J R Jayewardene constitution? It was apparently ‘Yankee Dicky’ J R Jayewardene’s fealty to the Anglo-French-American values that he so espoused, that did it.

The late fox thought that he would incorporate the American judicial review system as a written article in our constitution, so that the document would begin to look very respectably visionary and democratic. After all the only thing that he could not do was the make a man a woman and a woman a man, so it is not as if he cared that the judiciary was going to be powerful, because he had other ideas about that.

But what he probably did not know was that judicial review was not something that was in fact written into the America constitutional document, idealistic though some of its framers may have been.

Constitutional

In the US, judicial review began as an adventure undertaken by the judiciary, in the early 20th century or thereabout, though this columnist regrets not being able to list the first case that come under review without further research. But, what can be said definitely, is that one bench of the US Supreme Court, once upon a time, took it jupon themselves to review a certain piece of intended legislation, and thereafter the practice of judicial review has come to stay.

But if anybody thinks that the intellectual elite in the United States has accepted this ‘constitutional’’ and allegedly Rule of Law oriented practice, such a person would have to think again. Many Americans feel that the courts have usurped the power of the Legislature, and thereby usurped the power of the electors -- the people.

They feel this is so primarily because in a functioning democracy, the Legislature can be trusted to take the country in the direction that the majority of the people intended.

The majority of the people have elected their representatives to the Legislature.

They make their decisions to enact laws after using the public discourse on a given issue as a sounding board -- and therefore it is by and large the will of the people that is reflected in a legislative decision taken by the elected people’s representatives.

Those who argue on behalf of judicial review of intended legislation however, say that this is to give into the tyranny of the majority.

Others say, if that is so - - who is going to counterbalance this so called the judiciary that is mandated to keep in check this so called tyranny of the majority?

Oh, I see. An unelected body of a few people is going to impose their own tyranny against the tyranny of the majority?

It is clear that judicial review, in this way, is a much overrated concept, and that there is no agreement in any democratic polity that it is salutary, or absolutely essential in maintaining the balance of power between the separate pillars of State.

There is no settled wisdom let alone settle Constitutional law on this matter. Judicial review, as Nath Amarakone the former president of the Organization of Professional Associations observed yesterday in an opinion-piece in this newspaper, goes against the fundamentals of the State prerogative to make and implement policy.

Sacrosanct

To say the very least, there is nothing that is sacrosanct about the concept of judicial review of legislation by the Supreme Court.

Even in the given instance, writers such as C A Chandraprema have shown that there is no real overrunning of the territory of Provincial Councils by Central government due to the divi neguma bill.

If that was the case, Mr S L Goonesekera for instance should be aware that it is the much un-settled principle of judicial review, that he invokes as the sacrament which had been violated in the current impeachment impasse …

That may be no reason to impeach the Chief Justice still, if she had no integrity issues against her name -- but when she clearly does, what self respecting government will not try to impeach her?

But anyway, that’s a matter of conjecture. Integrity is integrity. It has nothing really to do with the judiciary’s function be it on judicial review of legislative decisions or otherwise.

But the issue of judicial review of legislation is an entirely different matter. Its time that the government seriously thought about bringing in necessary constitutional amendments to get rid of this controversial policy of judicial review which is not accepted universally, and more importantly, not accepted unanimously by academia in the place of its origin, the United States.

Judges are fallible, their security of tenure is assured, and therefore, their power can be dangerous. This was asserted by none other than one of the framers of the American constitution, Thomas Jefferson.

It is high time that there is at least a reasonable discourse begun in civil society about the infringement of state policy by unelected persons holding judicial office. That much is owned to the people.