Intoxicating mix: Executive Presidency and 2/3rds majority

While there seems to be a general backlash against the Government’s decision to amend the Constitution to extend the retirement age of superior court judges, including sitting members of the Supreme Court and the Court of Appeal, a quick look back at how previous Executive Presidents have tampered with the judiciary gives the National People's Power (NPP) a slight moral, though not ethical, edge over the others.

That said, this constitutional amendment is a step in the wrong direction for a Government that came to power on the back of promises to abolish the Executive Presidency and introduce a new Constitution. Piecemeal constitutional amendments have always been agenda-driven and not in the interests of the public or the country.

The weakness to exercise one’s powers in an authoritarian manner comes because the Executive Presidency, coupled with a two-thirds parliamentary majority, is a political aphrodisiac that gets into the head of those who hold such office, and President Anura Kumara Dissanayake is not immune to such temptations, like his predecessors.

Take the case of the country’s first Executive President, J.R. Jayewardene, the man who introduced the all-powerful presidency to the country, which those out of power love to hate but, once in their hands, find impossible to let go.

Along with the introduction of the new Constitution in 1978 came the controversial restructuring of the Supreme Court, which was a way to get rid of judges who were seen as being partial to the United Front (UF) Government of Sirimavo Bandaranaike that the United National Party (UNP) ousted in 1977. He appointed a new Chief Justice, Neville Samarakoon, but soon he was at odds with Jayewardene and, facing an impeachment motion, decided to resign from office. As Jayewardene’s biographer K.M. De Silva writes in the former President’s political biography, “J.R. was to learn to his regret that judicial reform has its own imperatives which are generally beyond the control of the Executive in democratic governments.”

Take the case of Chandrika Kumaratunga, who appointed the then Attorney General Sarath N. Silva as Chief Justice in 1999. The move brought about widespread condemnation from both local civil society and international legal bodies, but that did not deter the then Executive from handpicking a man to head the SC, which she came to regret later, much like Jayewardene.

Then there is the infamous case of the impeachment of Shirani Bandaranayake, who was appointed as Chief Justice in 2011 by Mahinda Rajapaksa. Her appointment too was controversial, but her impeachment in 2013 drew protests from across Sri Lanka as well as internationally, but that did not stop the Rajapaksa Government from doing as it willed.

Now President Dissanayake and his Government are facing the same kind of condemnation, but the NPP can comfortably pass the constitutional amendment unless there is an impediment from the Supreme Court itself.

The 22nd Amendment to the Constitution and the Judicature (Amendment) Bills were presented to Parliament on Tuesday. Several petitions have been filed in the Supreme Court challenging the constitutionality of the Bill, and its fate now rests with the SC. That the SC has been called upon to rule on a Bill which has a direct bearing on its members is itself not without controversy.

The Government’s justification for the constitutional amendments is that they will help expedite cases and clear the massive backlog in courts. Its opponents see no such noble cause and say they are meant to put political opponents in jail with the assistance of judges seen as favourable to the Government.

Either way, the damage has been to the judiciary.

The famous phrase goes, “Caesar’s wife (or, in this case, judges) must be above suspicion,” which means people in positions of power and authority must avoid even the slightest appearance of being partial to any one side.

The Honourable Members of the SC and the CA and others holding judicial positions are highly respected members of society and must be above suspicion. Sadly, their names are being sullied due to the lack of trust in politicians in the country, be they from the NPP or other parties. Even when decisions may not be driven by agendas, it is hard to convince an apathetic public that such decisions would benefit them.

Getting the constitutional amendment passed is easy for the NPP, but the political fallout will be irreparable. More concerning is the damage to the judiciary, which will take longer to rebuild.