The judiciary's role? NEEDED: A REDEFINITION

Dr Kamal Wickremasinghe

Logic demands that a persuasive argument be based on a premise that supports the conclusion. The premise of the argument of the defence team of the Chief Justice (CJ) that impeachment based on ‘misbehaviour’ of a judge is an attack on the independence of the judiciary fails this test badly, and obviously so.

Notwithstanding the fact the argument does not favour CJ’s case in anyway, a review of the merits of an independent Judiciary in a functioning democracy, a developing one like Sri Lanka in particular, is warranted in the context of any future amendments to the Constitution;

This is because the uncritical adoption of a system of government that incorporates a ‘madly’ independent Judiciary introduces the risks of corruption and impeding economic development through obstacles to legislative programs aimed at rapid economic advancement of the country.

Another fundamental reason for needing a system of government that incorporates appropriate mechanisms of supervision over the Judiciary is found in Justice Robert Jackson’s self-description of the US Supreme Court, “We are not final because we are infallible, but we are infallible only because we are final. If you do not like a politician's decision, it can, in principle, be changed at the next General Election. You cannot easily change the decision of a judge.”

Despite such misgivings, it is remarkable that most Sri Lankan legal and academic commentators venturing in to matters of democratic governance seem to rely, almost always, on the US constitution for inspiration and guidance. Worse still, they appear to be engaging in it without critical analysis of the particular historical background that gave birth to the US constitution, and its operational experience over the last 200 years. Comparisons of the US system with other jurisdictions such as the UK are also rare.

Judiciary serves drastically different roles in the UK and US

As far back as 1835, French commentator Alexis de Tocqueville observed in Democracy in America that, “In America, every political question eventually reduces itself to a legal question”; The same cannot be said of Britain. Until recently, law played a negligible role in British politics, and indeed in British government.

Many texts on the subject including the 19th Century treatise of Walter Bagehot, The English Constitution, do not contain a chapter on the judiciary or the law. The law played a very passive role due to the central British constitutional principle of the sovereignty of Parliament. British jurist A.V. Dicey who first developed the doctrine of Parliamentary sovereignty in detail, noted: “The roots of the idea of Parliamentary sovereignty lie deep in the history of the English people and in the peculiar development of the English constitution.”

The limited role of courts in Britain made the judges remain low profile, strictly neutral and reluctant to become involved with matters to do with legislation which were seen purely as ‘political’ issues. It was formally accepted that senior lawyers who became judges, who are neither elected by, nor accountable to the people should confine themselves to matters of legal interpretation and the maintenance of the rule of law; British judges could not overturn what politicians decided, as of course they could do in America.

This situation has changed in recent years with the signing of the Maastricht Treaty in 1992, which conferred wide powers upon UK courts to enforce a wide range of binding European Union legislations. The prime instrument among such legislations which radically changed the status quo was the Human Rights Act (HRA) that came into force in 2000.

The non-existence of a written constitution in the UK allowed the introduction of the HRA without being subjected to the scrutiny and debate that would have ensued if constitutional amendment would have been necessary. By the same token, the significant implications of the powers conferred upon UK judges under the HRA were underestimated.

Senior judiciary in the UK began to be thrust increasingly into the political limelight through cases emanating from the HRA. Unhappy with the trend, in 2006, just six years after the it was passed, the then Prime Minister, Tony Blair, expressed the view that it needed to be amended to limit the role of the courts,a view supported by the then Leader of the Opposition, David Cameron.

The US Judiciary have made absurd public policy

Though the early situation relating to the level of involvement of the US Supreme Court in politics was not different to Britain,it rose to prominence after the end of the Civil War in 1865. The trend of the US Supreme Court striking down, or limiting the reach of a range of federal laws passed by Congress in policy areas with broad impact such as civil rights, criminal justice, abortion, gay marriage and economic regulation gathered momentum in the 20th century.

Many of the controversial Supreme Court rulings that have struck down crucial pieces of legislation have been based on newly restrictive reading of powers of Congress enumerated in the constitution by conservative majority of Justices by thin margins, on the basis that Congress had exceeded general powers. The Supreme Court has acknowledged that their interpretations have been expanding the doctrine far beyond anything explicitly stated in the Constitution (Seminole Tribe of Florida v Florida 517 U.S. 44 (1996).

It is significant that the interventions of the US Supreme Court has almost always favoured the vested interest groups directly or indirectly. For much of its history,the US Supreme Court has not intervened to protect civil rights and civil liberties of disfavoured minority groups from majority tyranny, but have limited the power of the majority to expand rights protections to minorities justified on the federalism doctrines.

In the vast majority of cases, the court decisions limiting federal reach have favoured the interests of the rich and powerful, by undermining the government policy agenda to restore a semblance of equality to the Indigenous peoples, Afro-Americans, and poor whites in America. Such decisions have limited the reach of federal laws regarding minimum wages, discrimination in employment on the basis of age and disability, and regulation of Indian Gaming.

The Dred Scott decision of 1857 ruled: “the federal government had no power to regulate slavery in the territories, and that people of African descent (both slave and free) were not protected by the Constitution and were not US citizens”.

Non-white citizens in the Southern States were excluded from protection under the Equal Protection Clause of 1870.

In 1935, the Court was involved in a dramatic confrontation with Congress and President Franklin Roosevelt over the major legislation that instituted the New Deal package of economic programs designed to relieve the public of the effects of the Great Depression.

Many of the policies articulated by the Bush administration regarding detainees in the “war on terror” quite clearly contradict procedural standards articulated in the Bill of Rights, including the rights to access to counsel, a speedy and public trial, to be informed of the nature and cause of an accusation, and the Fifth Amendment requirement of a grand jury indictment.

The Supreme Court has been limiting the applicability of the Constitution’s procedural protections to non-citizens and those being held at bases such as Guantanomo Bay, despite the word “citizen” does not appear in the Bill of Rights.

The ‘twisted’ Supreme Court interpretation of the ambiguously worded 2nd Amendment to the constitution to mean anyone in America can have any firearm they want, and in whatever quantity they want demonstrates the adverse social impact on the US society: this interpretation has led to the absurd scenario where purchase of a trolley full of AR-15 assault rifles and magazines that can carry up to 100 bullets can be readily purchased at Walmart with no questions asked while six packets of cough lozenges or various French cheeses is not allowed because they are deemed ‘health risks’. The 311 million people in the US possessed an estimated 300 million guns as at mid-2012.

The 5-4 Citizens United decision of 2010 was the most recent, glaring example of the US Supreme Court intervening to safeguard the vested interests of Corporate America by allowing them to provide unlimited financing of presidential elections through back-door methods: in Citizens United decision the court ruled “spending is speech”, and is therefore protected by the Constitution, irrespective of the fact that the ‘speaker’ is a corporation. The court also ruled that because these funds were not being spent in coordination with a campaign, they “do not give rise to corruption or the appearance of corruption.”

Incensed by the ruling Barack Obama commented in his 2010 State of the Union address: “With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. Well, I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people.” The Republican Senator John McCain called it the bench's “worst decision ever.”

The Citizens United ruling led to further decisions that allowed the creation of the Political Action Committees (super PACs) and business league which act as de-facto political parties and accept unlimited donations from billionaires and corporations, most of it negative from people like the billionaire casino magnate Sheldon Adelson.

Sri Lanka must weigh up choices on separation of powers

The US struggles over the relative power of the federal and state governments on which the Supreme Court is feasting, emanate from the peculiar American constitutional history: the original Constitution was established by agreement between the 13 states that had produced unprecedented amounts of wealth through invasion of a massive continent and annihilation of its peoples. The state leaders feared taxation by a powerful federal government and were keen to ensure that the federal government is hamstrung by a limited ‘list’ of powers laid down in the constitution: Rights of the states were paramount.

The provisions granting those powers, intentionally worded in broad, open ended language, to provide flexibility, has allowed Judicial powers to expand in a manner unforeseen at the time of the founding.

Sri Lanka in 2013 on the other hand is a developing nation that has just come out of an ethnic war of 30 years, a hangover from 500 years of colonial exploitation. Sri Lanka’s primary focus need to be the well-being of the nation, with individual rights protected through provisions that reflect the culture and civilisation the nation reflects. Separation of powers is only important to Sri Lanka to that extent, rather than as an academic pursuit. This is not to say that sovereignty of Parliament should be unrestrained.

It needs to be noted that the American suspicions of government were based on the British ‘foreign’ government against whom they had fought Wars of Independence on the issue of taxation without representation. The Sri Lankan situation is quite different due to the fact that, at conceptual level, government and the people are one and the same.

What is most relevant from a Sri Lankan point of view is that the Executive, Parliament and Judiciary arms of government cannot operate independently of one another in the national battle of economic development. As the US experience shows, battles between the Legislature and the Judiciary result in legislative gridlock and ineffective governance. The comparative experience of democratic form of government the world over is showing that pure separation of governmental power makes effective government impossible.

Also, the nature, structure and the differences in enforcement capabilities makes maintaining strict separation between legislative, executive and judicial power is well-nigh impossible. Sri Lanka needs to think for itself, discuss and determine the best form that suits its own particular needs.