Sugeeswara Senadhira, in Daily News, 5 June 2020, with this title “Executive, Judiciary and Legislature: Precise balance and respect for sanctity”
The essence of the Supreme Court judgement on Tuesday (June 2) was that even though elections could not be held within three months on the day fixed by the Elections Commission and the new Parliament could not be convened as stipulated in the Constitution on the scheduled day, the Presidential Gazette on dissolution of Parliament and the subsequent Gazette on General Elections could not be considered as a void documents.
A significant fact of the verdict of the five-member bench to dismiss all the Fundamental Rights (FR) petitions filed challenging the Gazette issued by President Gotabaya Rajapaksa dissolving Parliament, as well as that of the Election Commission setting the date of the General Elections was it was not a divided verdict, but a unanimous one.
The reliance on the courts and on judicial means for addressing constitutional interpretations, political controversies and public policy questions is one of the most important functions in sustenance of democracy. The Supreme Courts worldwide have been frequently asked to resolve a range of issues pertaining to constitutional ambiguities, varying from the scope of expression and religious liberties, privacy freedoms, equality rights and public policies. The increasing political importance of courts has become more globally widespread than ever before.
Hence, the imperative need for taking the Supreme Court verdict in the correct spirit is of supreme importance to maintain the perfect balance between the three main pillars of democracy. The affected parties must exercise utmost restraint while commenting on the verdict. Prior to the judgement, there were many utterances by those in different political shades. While most of the legal luminaries carefully selected their words, some pretenders to constitutional expertise were seen making references to the judgement purely due to their political prejudices.
President’s Counsel M. A. Sumanthiran PC, who appeared for Petitioner Charitha Gunaratne, said that there were two aspects to the petitions, one of which was challenging the 20 June election date, but as the EC said the election would not be held on that day on the first day of hearing, that petition was not pursued. “For now, the struggle for the establishment of democracy will continue,” he said.
He pointed out that no reasons were given for the Court’s decision to dismiss the petition with regards to the three-month limit on the validity of the Gazette issued by the President dissolving Parliament. However, he refrained from further comments as the reasons for the Supreme Court verdict are yet to be announced.
President’s Counsel Ali Sabry, who appeared on behalf of Intervenient Petitioner Vice Chancellor of the University of Sri Jayewardenepura Prof. Sudantha Liyanage, said the Court has upheld that the President has acted within the law by not reconvening the dissolved Parliament. “Now it is time for the Election Commission to quickly and expeditiously have the election subject to health regulations,” he said.
Former MP Susil Premajayantha said that the path has been cleared for the Election Commission to hold the election now. “The SLPP will extend its fullest support to ensure the election is conducted smoothly,” he added.
Any system is a reflection of the participating stakeholders. This is true even in the case of the executive, legislature, judiciary, business or any other domain. There can be considerable harm to democracy if the legal process and the courts are interfered with by the executive or the legislative and vice versa. It is of paramount importance not to tread on each others’ toes.
The unanimous decision by the five-member bench of Supreme Court reflects its will to refrain from interfering into the powers granted to the Executive by the Constitution. The political parties that make an important fabric of the democratic mosaic must act with utmost restraint when commenting on the judiciary.
In the 1980s, there were ugly scenes such as stone throwing at the houses of judges who had given a verdict that was not seen as favourable to the ruling party and the Government paying the fines imposed on law-breaking policemen by the courts. Adding insult to the injury, the guilty policemen were given promotions.
As President Gotabaya Rajapaksa stressed at the AGM of the Bar Association of Sri Lanka (BASL) in February this year, the principle that the Judiciary should be politically independent from legislature and Executive authority must be zealously safeguarded. Courts should not be influenced by any political authority or external influence. Judges need to be respected for their role, which is exercising judgment. Their function is to interpret and apply the law.
It is the function of the Parliament to make the law. Constantly questioning a judge’s capacity to interpret law is akin to constantly questioning the legitimacy of politicians to even make any law in the first place. If a politician decides to take a few politically opportunistic potshots at a group of judges it will not result in crashing of our democratic state.
“However, the political leadership should ensure that any attack on judiciary should construed as an attack on our democratic foundation, which we cherish,” the President said at the BASL AGM. “Similarly, it is important that the judiciary does not interfere needlessly in the functioning of the executive and legislative branches of the government.”
Article 33(1) of the Constitution says that it shall be the duty of the President to: (d) on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referendum.
The Government has taken required steps to contain the COVID19 pandemic to a manageable level and to bring back normality to the day-to-day activities from the week starting next Monday. The health authorities have provided the guidelines to the Elections Commission to hold the General Elections to elect a new Parliament, an essential component of democratic governance in Sri Lanka.