The Need to Restore Judicial Review – Groundviews

Photo courtesy of the Daily Mirror

Much discussion is taking place on the question of restoring democracy by dismantling the executive presidential system. To achieve this, it is suggested to abolish the 20and Amendment of the constitution and replacement by the old 19and Amendment, with appropriate modifications, such as 21st Amendment to the constitution. However, the belief that this in itself will restore democracy is based on an underestimation of the damage done to the entire political and legal system by the enactment and practice of the 1978 constitution.

If the goal of today’s reformers is to restore democracy, the first step to take is to state in the constitution, clearly and unambiguously, that the doctrine of the separation of powers is recognized by that constitution. This means that the legislature, the executive and the judiciary are equal branches of the state. They have distinct functions but through their balance of powers, it is their duty to perpetuate the democratic framework of the country. It was the deliberate suppression of this doctrine that laid the foundation for the type of system often referred to as the executive presidential system. This executive presidential system was in fact not a modification of the principle of the separation of powers but a complete displacement of it.

In 1978, the main purpose of the constitution was to diminish the power of an independent judiciary. President JR Jayewardene understood that the threat to his plan lay primarily at this stage with the judiciary. It was when this comprehensive plan to undermine the justice system was uncovered that the conflict between then-Chief Justice Neville Samarakoon and the President grew and intensified. At this initial stage, the Chief Justice lost and the President gained the upper hand in pursuing his constitutional reform project. Later, other judges like Chief Justice Sarath Nanda Silva tried their best to adapt to the new system and play a subordinate role to the executive.

If the idea of ​​reforms we are talking about today is to restore a viable form of democratic government, then the first step to take is to restore the judiciary within the framework of the principle of separation of powers which should be clearly enshrined in the constitution.

For this, many things in the 1978 Constitution must be changed. The most important change to be made is a declaration in the section of the constitution on the sovereignty of the people, that the judiciary will exercise the sovereignty of the people, which is vested in it, through parliament. Thus, the judiciary was relegated to a subordinate position to the legislative power. This was a deliberate move to make it very clear that the classic principle of separation of powers does not apply under the 1978 Constitution. Therefore, the relevant provision should be deleted and instead, there should be a clear statement that the judiciary exercises the sovereignty of the people through the exercise of its judicial function. Thus, in the exercise of the sovereignty of the people, no distinction is recognized between the legislature, the executive and the judiciary. They all equally derive their powers from the sovereignty of the people.

It is in this perspective that the restoration of judicial control becomes an essential aspect of the restoration of the principle of the separation of powers as well as the recognition of the independence of justice.

The Soulbury Constitution recognized judicial review and there were many instances where the people sought justice when a conflict arose between various forms of legislation and their entrenched rights. On several occasions, the court ruled in favor of the litigants.

It was this position that was changed by the 1972 Constitution. Several of the spokespersons during the debate on the new 1972 Constitution made it very clear that they did not want the judiciary to interfere with the laws they are being developed. Thus, the possibility of ensuring that the laws that are made fall within the legitimately recognized principles of legality has been removed. The 1978 Constitution, taking advantage of this situation, relocated the power of the judiciary to review the constitutionality of laws only at the bill stage before the law was finally enacted. However, the principle of judicial review offers the possibility for any citizen to challenge a law at any stage, even long after its promulgation, if it can be proven in court that the law passed violates the principle of legality which is dedicated. a democratic constitution.

Much of the discourse on the replacement of the executive presidency is often based on the sloganization and trivialization of the serious problems created by the 1978 Constitution with regard to the maintenance of a system of law capable of ensuring the stability of the democratic mode of functioning. life. What has been challenged in Sri Lanka is the possibility of maintaining a legal order within the framework of the rule of law and the functioning of the rule of law. Thus, by allowing any kind of legislation to be passed at the behest of the executive president by parliament, where the government majority will automatically approve whatever the president wants, a situation was created where there were serious conflicts of legal principles which made it difficult and even impossible for the judiciary to exercise its powers rationally as it is required to do. When there are inherently contradictory principles operating through the constitution itself, it becomes an impossible task to sort out which principles should be recognized and which should not. This conflict of principles has contributed to a confusion that for more than 40 years has embroiled the justice system in many problems that cannot be solved.

If the idea of ​​removing the excessive powers of the executive president is to restore the rule of law, then more needs to be done than just passing the 19and Amendment or provision similar to 21st Amendment. The creation of numerous commissions only reduces certain arbitrary powers of the executive president, but it does not create the fundamental imbalances that were created by the adoption and application of the 1978 Constitution.

If these issues are not addressed, simply passing something similar to the 19th Amendment will not remove the type of amendments the country is beset with.

Sri Lanka is a country in which the falsification of the legal system by irresponsible constitutional changes has gradually turned into the collapse of the economy itself. The legal crisis and the economic crisis are intertwined. If the idea of ​​making changes to the constitution is to find ways to stabilize the economy and also to stabilize the political system, which is an essential condition for the sustainability of the whole economy, then much more needs to be done than just playing around with slogans and making a superficial change that does not alter the fundamental character of the 1978 Constitution.