Judicial review and political thickets

The unique feature in the 1978 Constitution is the right of a citizen to challenge the legislature before it becomes a law. In England, from where most of our public laws are derived, judicial review of administrative action is present but courts do not have an inherent right to review acts of parliament because English judicial systems upholds the supremacy of the parliament.

Prof. A.V. Dicey has summarised the parliamentary sovereignty in three points viz: parliament can make laws concerning anything. No parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future parliament), a valid act of parliament cannot be questioned by the court. There is no written constitution in England and most of the constitutional issues are resolved through precedents.

However in Sri Lanka, the Constitution provides a citizen with a remedy if the Executive interferes with his or her fundamental rights. Moreover, the Constitution provides another remedy if in the opinion of a citizen or a group citizens that a provision of a bill violates the basic structure of the Constitution, it can intervene and invoke the jurisdiction of the Supreme Court by way of a petition once the bill is placed in the Order Book of Parliament. The central thrust of such an action is to protect the rights of citizens’ guaranteed by the Constitution. It has however been observed by many legal experts and scholars that time frame within which a bill has to be challenged is grossly inadequate.

If any provision of a bill is set to violate the basic law of the land it is the responsibility of the civil society to intervene and invoke the Judiciary for review of the legislation and to seek an interpretation that the proposed bill would be inconsistent with the provisions of the supreme law of the land that is the Constitution. This has been a cornerstone is modern democracies where Executive and administrative actions have been challenged through judicial review.

The framers of the Constitution have provided that privilege for citizens and the civil society must actively engage in the affairs of the country. There have been many bills which did not see the light of the day but had to be withdrawn due to adverse judicial interpretation that provisions of the bills have been found to be inconsistent with the Constitution or that it requires special majority in parliament and that it also requires approved at a referendum.

Successive governments have pushed through legislation often under the pretext of ‘urgent bills,’ whereas the real ambit of the legislation required thorough discussion and greater public participation. On the pretext of ‘urgent bills,’ the Executive has often diluted the necessary ingredient of public discussion in a functional democracy. This exercise of rushing through ‘urgent bills’ have often been found to be politically controversial bills and if it is exposed to wider public discussion it would ignite masses and cause dramatic shift in public opinion detrimental to the government of the day.

Interference with judiciary

There have been plenty of cases where successive governments have meddled with the Judiciary when the Judiciary falls out of the thinking of the government or the philosophy of the government of the day. This phenomenon is not unique to Sri Lanka.

In India the then Prime Minister late Indira Ghandhi had been accused of having meddled with Judiciary over an election petition and the judicial appointments. There are many such instances in Sri Lanka since the time 1978 Constitution was adopted. There have been occasions where good intentions of the successive governments had been curtailed by judicial action due to procedural hiccups. Those were the manifestations of deficiencies of the very individuals who had drafted such legislation or perhaps proper legal opinions might not have been availed before submission of bills to Parliament.

It would be unfair to lay the blame at the court when there were patent defects in the bills. The constitution has clearly demarcated the separation of powers doctrine and three organs of the State, viz the Legislature, the Executive, and the Judiciary, must respect each other, and must not intrude into each other’s domain.

In Asif Hameed vs. The State of Jammu and Kashmir, the Indian Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.”

The UNP, during the period 2001-2004, wanted to bring an amendment to the Constitution to restraint the powers and functions of the then President of Sri Lanka Chandrika Bandaranaike Kumaratunga from dissolving Parliament. The court discovered that there was a patent defect in the bill and it was rejected by the Supreme Court. That was due to sloppiness in drafting the Constitutional Amendment Bill despite many legal luminaries in the UNP camp then.

Political thickets

There have been cases where decisions of the Cabinet of Ministers had to be revoked through a judicial review of an Executive action. One such case in point was the sale of Insurance Corporation and the Golf course. One could argue that the ultimate decision of any political action is the endorsement by the Cabinet of Ministers but the decisions have since been revoked by the Supreme Court and this is a clear conflict between Executive and the Judiciary.

The national policy of any government is implemented by the decisions of the Cabinet of Ministers. It derives the strength to implement the national policy from the mandate it received at the election. Would it be reasonable for the Judiciary to halt the national policy of a government elected by people?

The Constitution has given the Parliament absolute control over public finance. Could the Judiciary interfere with any transaction that has been carried out in compliance with the procedure established by law, however repugnant the moral side of the transaction?

During the proceedings of the above case, the media reported that former Chief Justice Sarath N. Silva made some strong remarks against the conduct of the Urban Development Authority (UDA), which alienated the land on the instructions of the Cabinet following then President Kumaratunga’s proposal.

The Chief Justice said: “Whatever the faults of former Presidents J.R. Jayewardene and R. Premadasa, they had a vision for the upliftment of the poor. President Premadasa in a capitalist regime did not utilise public lands for capitalist purposes and instead built housing schemes like Sanchiarachchiwatta. But, Kumaratunga, in a socialist regime built a luxury golf club, and if she had said that at the 1994 election campaign, no one would have voted for her Government.”

Political question doctrine

In US, judicial decisions involving political questions have often been referred to as the Political Doctrine Question where judiciary has left the political decisions to the executive and this is adequately demonstrated in the Baker Vs. Carr case decided in 1962.

In Baker Vs. Carr, Brennan J. formulated the political question doctrine, identifying six factors to help in determining which questions were “political” in nature. Cases that are political in nature are marked by (1.) textually demonstrable constitutional commitment of the issue to a coordinate political department; as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be “political questions” (2.) “A lack of judicially discoverable and manageable standards for resolving it;” (3.) “The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion;” (4.) “The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;” (5.) “An unusual need for unquestioning adherence to a political decision already made;” (6.) “The potentiality of embarrassment from multifarious pronouncements by various departments on one question.”



(This writer is a freelance journalist and a political lobbying and government affairs consultant.)