Constitutional Governance and the Independence of the Judiciary

Photo courtesy of FT

The president’s speech in parliament last week raises serious concerns about his own understanding of the workings of the Constitution and his own commitment to constitutional governance and the independence of the judiciary. There are two issues I wish to consider here; firstly, the Supreme Court’s Special Determination on the Gender Equality Bill and secondly the president’s speech in parliament regarding the Special Determination. Before that I will consider the task performed by the judiciary in cases like this.

The judicial task

Judges, unlike the other arms of government, are set the onerous task of justifying their decisions and giving reasons for their decisions. This is one of the most important checks on the exercise of judicial power, which is also a power that is being exercised in trust for the Sri Lankan people. A judge has to explain to the world the reasoning behind the outcome, explaining the legal, factual and other reasons that led to his or her decision. It is an onerous but necessary task. Once the reasoning is out in the world (we call them orders, judgements or in this case a special determination) it is open to scrutiny by other judges, lawyers, academics and in some cases the public at large. A vibrant and healthy discussion on a judges reasoning in a particular case is important both for the democratic process and also for the development of the law.

In terms of Sri Lanka’s present Constitution (the 1978 Constitution), a narrow window is provided to citizens before a Bill becomes an Act of Parliament to test its constitutional consistency. In the case of ordinary Bills, the role of the Supreme Court is to examine the provisions of the Bill and to determine whether it can be passed with either:

• A simple majority of Members of Parliament voting in favour or
• Two thirds majority of Members of Parliament voting in favour or
• Citizens approving the Bill at a referendum in addition to two thirds majority of Members of Parliament voting in favour.

The Special Determination

The Special Determination on the Gender Equality Bill has three separate opinions which is also unique in these types of cases. The interplay between these three opinions and their impact on the overall determination of the court, deserve more specific attention. The following points stand out:

• The court does not discuss the Special Determination of the Supreme Court in the Penal Code Amendment Bill SC SD 13/2023. I do not know if this determination was not brought to the attention of the court (it should have been) but being a very recent determination and one which deals materially with the same arguments put forward to the court in the Gender Equality Bill case, it should have formed part of the analysis of the court.
• The court’s approach in the Penal Code Amendment Bill in 2023 and the Gender Equality Bill in 2024 are at odds with each other and might be difficult to reconcile. Of course, this is not something that is uncommon even in other countries. It will be interesting to see how these two determinations will be dealt with in a future case. Will the court try to reconcile the two approaches? Or will they abandon one and adopt the other?
• The determination of the court on when a Bill can be challenged, significantly undermines the ability of Sri Lankan citizens to vindicate their constitutional rights and creates significant ambiguity as to when the 14 days should start to run. The fact that the court considered “placing on the order paper” and “the first reading” to be two separate instances is deeply problematic and runs contrary to the Standing Orders of Parliament, the practice of parliament and in fact the previous practice of the Supreme Court. Sri Lankan citizens have already been deprived of the opportunity to test the Constitutional validity of laws passed by parliament, what we are left with is a very limited form of pre-enactment review. If the approach of the court in the Gender Equality Bill Special Determination is adopted in the future, that will, among other things, significantly undermine the ability of citizens to access court.

The president’s speech

While the president, like any other citizen, has the right to engage and critique judgements of courts, the stature of his office requires him to do so in a responsible manner. In addition to being protected by the (now) limited immunity of his office, the president chose to make his statements from the floor of parliament and thereby clothed himself with Parliament’s privileges. The almost absolute freedom of speech granted to the representatives of the people on the floor of the house, has to be used with caution and responsibility.

While the president did highlight some serious concerns with the Special Determination, he went further and:

• Said the Determination was “a perverse determination which this House should not follow.”
• Said that the Determination cannot be accepted and that parliament “has to assert its own rights.”
• Suggested the setting up of a Parliamentary Select Committee to study the determination.

These statements by the president are unacceptable and are contrary to the Constitution he has sworn to uphold. The Constitution is very clear; it is the Supreme Court that has the sole and exclusive jurisdiction to interpret the Constitution not the president. Even if we assume that the Supreme Court’s decision was manifestly wrong, parliament or the president cannot sit in revision of that decision.

The Constitution provides for specific mechanisms by which such errors can be rectified (for the Supreme Court itself to revisit such decisions). In fact one such mechanism was suggested to the president by M.A. Sumanthiran President’s Counsel during the course of the debate in parliament. But appointing members of parliament to review such a decision is not such a mechanism. Here again the Constitution is emphatic; once the court determines that any provision of a Bill is inconsistent with the Constitution such a Bill “shall not be passed except in the manner stated in the determination of the Supreme Court” unless of course necessary amendments are made to bring the Bill in line with the court’s determination.

It is unfortunate that the president ventured on the path he did, basically asking Members of Parliament to violate the Constitution. The president’s analysis of the situation seems to be based on a deeply misguided and erroneous belief in a form of parliamentary supremacy over the judiciary. As Sri Lanka’s Supreme Court has continuously said for decades, there is no absolute power, no plenary power recognised by our Constitution. In this Republic, at least theoretically, sovereignty is with the people and all powers of government are held in trust for the people.