Supremacy of the law

Natural law is a system of law which is determined by nature and thus universal. Natural law refers to the use of reason to analyse human nature and deduce binding rules of moral behaviour. Natural law holds that morality is a function of human nature and reasoning and those valid moral principles of conduct can be discerned by studying the nature of humanity in society. Basic and fundamental rights and values are considered to be inherent in or universally cognisable by virtue of human reason or human nature.

As human society emerged from the itinerant hunter gatherer stage to one of stabilised and settled communities in the fertile river valleys of West Asia, South Asia, Central Asia and China, universal rules of conduct and behaviour evolved from the natural law principles, which human beings followed, to a code of universally accepted rules which were enforced by the leaders of the community.

When disputes arose among community members over enforcement of the rules by the leaders, the necessity for interpretation, arbitration and adjudication emerged. Over time a group of persons, other than the leaders who codified and enforced the rules, trusted by the community, to listen to all sides of a dispute and to be fair and unbiased in determining the issues in dispute, of necessity emerged. The determinations made by these adjudicators began to be universally accepted as applying to later disputes, relating a similar set of facts, and thereby precedent and common law emerged.

Common law is a legal tradition whereby certain rights or values are legally cognisable by virtue of judicial recognition or articulation. Two fundamental principles – the rule against bias and the right to a fair hearing – have over time come to be recognised as the two fundamental principles of natural justice.

Manmade law

As human society became more complex, manmade law, came into existence. There was a need to formulate rules to govern new situations, which did not arise in a natural state of affairs. The need to barter and trade required set standards and behavioural rules.

The need to meet the expenses of defending a community from external threats, the expenses incurred by the leaders in undertaking their onerous duties and maintaining their (mostly extravagant) lifestyles, the expenses of those whose task it was to adjudicate and settle disputes, gave rise to the need to raise revenue and taxation came into being.

Representative government, ‘no taxation without representation,’ evolved. People wanted a say over how taxes were raised, what was done with the taxes they paid, they wanted to ensure that taxation was just and lawful and that expenditure was not wasteful. Even hereditary rulers, notwithstanding their claimed ‘divine right’ to rule had to subject themselves, to ‘God’s law,’ to other religious rules like the Dasa Rajah Dharma, to tradition, custom, natural and common law themselves and to the scrutiny of their actions by their subjects, as to their behaviour. Even when absolute rulers were complimented or replaced by elected rulers, the latter’s actions were also subject to law.

Where there is a written constitution, all is subject to that supreme document. Even though the legislature may have the power, through a specially specified process, to amend the constitution, such a constitution, until so amended, is the supreme law. Even where there is a purported amendment, the authority which is vested with the power of interpreting laws has the power to examine such amendments to evaluate whether they are lawful and in terms of and comply with the constitutional and due process provisions – including the natural and common law – fundamental human rights.

Only in Britain, where the constitution is ‘unwritten’ that is, not contained within the pages of one single document is the power of the Legislature (Parliament) claimed to be untrammelled and supreme. But, even in Britain, today, the reality is that the ‘Queen in Parliament’ is no longer sovereign or supreme. The European Communities Act of 1972, the Human Rights Act of 1998 and the three 1998 acts devolving powers to the legislatures of Scotland, Wales and Northern Ireland, constrain the power of legislation of the ‘Queen in Parliament’.

Sri Lanka’s Constitution

In the present written Constitution of Sri Lanka, the powers of government have been kept separate and the independence of the Judiciary and the protection of fundamental human rights have been guaranteed. There is both institutional and functional division between the power of enacting laws and the power of implementing those laws. The power to interpret and adjudicate on those laws is also separated.

Such a system cannot work without an independent institution to arbitrate and determine issues on the subject of allocation of the powers of government and to interpret laws. Fundamental rights will be meaningless if there is no independent institution to protect the individual when those rights are violated.

The argument that the people who make laws are elected, and therefore appointed persons cannot sit in judgment over them is plainly ridiculous. Legislators are subject to law, the law properly enacted in terms of the Constitution by their predecessors and themselves. They can certainly change the law, but they can do so only within the limitations of existing law and by the laid down process – the exception being the purported ‘revolution’ proclaimed by the framers of the 1972 Republican Constitution.

The Constitution of Sri Lanka provides that the judicial power of the people shall be exercised by ‘unelected’ judges! These members of the Judiciary are vested with the power to control and limit, according to the terms of existing law, the elected representatives and the administrators of law.

It has been said that ‘the price of liberty is eternal vigilance’. The vigilance referred to must mean the vigilance of those ruled and the vigilance of a Judiciary to which the ruled have recourse from abuse of their rights by the rulers. The Constitution and laws of Sri Lanka gives no organ of state, the legislators, the administrators , the adjudicators, or even the fourth estate – the media ( constrained by the laws of defamation) – unlimited power. All power is constrained by law.

The legislators are constrained by constitutional limits of their power to enact laws and special processes required in prescribed situations. The administrators are constrained by rules of administrative law, principles of natural justice and fundamental human rights. The adjudicators are constrained by the laws they interpret, precedent and due process requirements. Rarely a court may foray into interpreting a law in such a way, that they could be accused of making law, what is referred to as ‘judge made law’.

While the common law has evolved in this way, in today’s environment where most laws are statutory and judges prefer to interpret the ‘plain language’ of statutory provisions, ‘judge made law’ is rare. But corrupt and unprincipled false judges, from whose pronouncements there is no recourse for further appeal, may, for all the wrong and corrupt reasons, decide to be innovative and create ‘false judge made law,’ which may be slavishly followed as precedent later!

We have seen this in the recent past. The preamble to the Constitution of Sri Lanka says very clearly and categorically that the people ‘ratify the immutable republican principles of representative democracy and assuring to all people’s Freedom, Equality, Justice, Fundamental Human Rights and the Independence of the Judiciary’.

The Constitution provides for an independent Judiciary and protects the citizen’s fundamental human rights. This necessarily means a duty is imposed on some others – a duty of accepting and obeying the interpretation of law by the Judiciary and the accepting and not limiting unconstitutionally the rights and freedoms of the individual. The Constitution is the Supreme Law, the argument ends there.

Unconstitutional and illegal

The Attorney General argued before the Court of Appeal that the writ jurisdiction of the Court does not permit it to issue writs in matters relating to the impeachment of judges.

The Court declared that if the Constitution wanted to prohibit its writ jurisdiction, the Constitution would have express words laying that down in plain language.

A ruling by a previous speaker of Parliament based on the assumption that the powers of Parliament are unrestricted is also clearly misconceived in law. Under the current Sri Lanka Constitution no organ of the state is supreme, only the Constitution is supreme.

The Court of Appeal of Sri Lanka has issued a writ of Certiorari declaring that the determination and the findings and/or the decision or the report of the Parliamentary Select Committee constituted to impeach the incumbent Chief Justice of Sri Lanka is unconstitutional, illegal, and therefore flawed. The issuance of this writ at one stroke takes away the legal basis for the current process to impeach the Chief Justice.

Notwithstanding this, Parliament has voted to accept the determination of the Select Committee and the Speaker will send an address to the President that the resolution on the findings of the select committee has been accepted by Parliament. The President is expected to issue a warrant purporting to remove the Chief Justice from office. (There is said to be backdoor negotiations going on, which are not in the public domain.) Commentators describe this as an open and blatant violation of the Constitution of Sri Lanka. Any further steps in this process are illegal and unenforceable in law.

While the incumbent Chief Justice will continue to be in law recognised as the lawful holder of the office, any other persons who is purported to be appointed to this post, would be clearly a usurper to the office. No judge lawyer, litigant or member or members of the court staff could be lawfully asked to serve such person. In fact serving such a usurper would be illegal and in contempt of court. Such a usurper will have no constitutional authority and cannot lawfully preside over a Court as Chief Justice.

The decisions made by such a person would not have any binding in law. Attorneys at law and litigants will have no reason to appear before or present their disputes to a body presided by such a usurper. If the usurper’s appointment is challenged, the court would have no option but to declare that the usurper’s appointment is unconstitutional and illegal.

Law of Unexpected Consequences

Looking at the chaotic situation which can arise, one cannot but agree with the senior Lord Justice in Britain, who at his felicitation , on retirement, said that his entire career of over three decades as a judge has reinforced his faith in only one basic and fundamental law – the Law of Unexpected Consequences!

Very often the outcomes of an action are vastly different from what was planned, intended or anticipated. When the appointment of the incumbent Chief Justice, from the rarefied atmosphere of academia, to the bench, her elevation to the Head of the Judiciary and the decision to set in train the impeachment process were taken, at different times, these decisions would definitely have been taken with certain outcomes which were anticipated. No one in his right mind would have expected the current imbroglio!

It has been said that a constitution laying down principles of government seeks to solve the problem of how to give sufficient power to the country’s rulers to allow them to govern efficiently and yet ensure that the government will not encroach unreasonably on the fundamental liberties of the individual, by seizing more power than was intended and interfering arbitrarily in the citizens way of life.

Thus a constitutional regime has two purposes. First it restricts the actions of individuals. Secondly it protects the individual by defining the power granted to those in authority. The totalitarian idea, that some would-be dictators have, that there is no such thing as law and that there is only power, is untenable in a legal regime with a written Constitution such as Sri Lanka.

However, even when there is no written constitutional document, absolute power, is, in practical terms limited by convention and tradition which inhibits the actions of the ruler. Under the traditional Sinhala Buddhist monarchs of Sri Lanka, power was constrained by the Dasa Raja Dharma, the Buddhist principles of good governance and the Sirith Virith (customs and traditions) of governance. Decrees made by one ruler, would apply in perpetuity, until changed. Indeed the very words of the decree prescribed that the decree should apply ‘as long as the sun and moon lasts,’ i.e. in perpetuity.

In some stone inscriptions and Ola leaf manuscripts containing the Monarch’s decrees, the symbols of the sun and the moon were engraved. Even in the context of an unwritten constitutional regime as in Britain, in which the legislative power of the ‘Queen in Parliament’ is unfettered, has today undergone change, as described above, by statutes enacted by that legislative institution itself, protecting human rights, devolving power to regional assemblies and subordinating itself to the jurisdiction of the European juridical institutions.

But even before this, conventions – practices regarded as binding – which experience has shown to be necessary for developing, within the law, existing institutions, which are essential for government to be carried out in the true spirit of the constitution exist.

Conventions arise because politics is essentially a matter of human relations, as in our everyday life. Customs are observed which make everyday life harmonious. Obviously such conventions, in the British context vary in importance. Some, as the Monarch having to call upon the leader of the majority party in the House of Commons to form a government, are obviously fundamental. Others like appointing member of the opposition as Chairman of the Public Accounts Committee, may not be fundamental, but are essential for government to be carried out, with a specific constructive and conventional role for Her Majesty’s Opposition.

Readers should note that in Sri Lanka, we followed the tradition of an Opposition member chairing the Public Accounts Committee, but in our steady progress to a dictatorship, we jettisoned that convention!

Long-term repercussions

Everything is connected. The current situation regarding the impeachment of the Chief Justice, whatever the outcome, will have irremediable long-term repercussions on our country. Those who set the process in train as well those who executed it will rue the day they did so.

The late environmentalist Barry Commoner said that ‘the first law of ecology is that everything is connected to everything else’. This principle will apply equally to constitutional processes, to the investment climate, to confidence in the economy, to respect for the law, protection of human rights, to the rule of law and to overall good governance.

Lord Justice Bingham, a former senior Law Lord in Britain, in his magnificent work ‘The Rule of Law,’ says: the core principle of the Rule of Law is ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made… and publicly administered’.

This would apply equally to: an investor in a branch of the Janashakthi Banku Sangam of the Hambantota Women’s Development Federation, to a detainee suspected of being a cadre of the LTTE in Mullaitivu, to an Imam of a Mosque in Puttalam, to a retired employee of the RVDB in Ampara, to the President of the Republic, as well as to the Chief Justice and other Judges of the Supreme Court of Sri Lanka.

News is that the President has issued a warrant removing the Chief Justice. Await with trepidation the unpredictable results of the operation of the Law of Unexpected Consequences!

(The writer is a lawyer, who has over 30 years experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)