SRI LANKA: A war against the judiciary

The Supreme Court of Sri Lanka, in a judgement that is considered controversial this week (December 17) ordered that petrol prices should be reduced to Rs 100/= per litre to be effective from midnight the same day. The prevalent price for petrol with a octane count of 90, was Rs 122/= and petrol with an octane count of 95 was Rs 137/= per litre. The government, on the other hand, has declared that it will not implement the Supreme Court ruling and has even referred to it as contrary to the government’s war effort against the LTTE. Furthermore, according to the reports of a Cabinet meeting, the president has called on the government to oppose the court. 

A few days earlier President Mahinda Rajapakse stated “I am less than a magistrate” thus, complaining about the judicial interventions against his decisions. Among his complaints are that two of his officers have been removed from their posts due to Supreme Court rulings. More importantly, perhaps, is the issue of the 17th Amendment to the Constitution. The implementation of this amendment was suspended on various pretexts by the government. The Supreme Court intervened and called for the immediate implementation of this constitutional provision. According to the 17th Amendment to the Constitution, a Constitutional Council appointed with the agreement of all political parties is given the power to appoint commissioners to several public authorities with the power of appointment, promotion, disciplinary control and the dismissal of officers. The purpose of this law is to prevent direct political appointments to important posts in the public service and to ensure that persons are selected purely on the basis of merit. The implementation of this law undermines the executive to the extent of preventing arbitrary appointments for political reasons. 

The government claim that the Supreme Court decision affects the government’s war effort may sound comic to an outside observer. However, the political ideology and propaganda in Sri Lanka today is centered on one central enemy at a time, as has always been the case with totalitarian regimes. For Hitler it was communists first and later the Jews, for Joseph Stalin it was the counter revolutionary bourgeoisie and then the Trotskyites. George Orwell in his famous novel, 1984, exposes this aspect of authoritarianism through the character of Goldstein who was the enemy and who was the excuse for all the actions of the party in power. 

Petrol, however, is a commodity that is needed for everything and therefore it affects everyone. Oil prices affect the prices of all commodities. Thus, the Supreme Court decision should help to bring down prices of many commodities, particularly those which are items of basic necessities. In fact, in Burma the uprising in August, 2007 known as the Saffron Revolution was spurred by the increase of oil prices which also lead to the increase of the prices of basic food items. Therefore it would be no surprise that most people in the country would support the lowering of oil prices and also, would hope that this would bring down the prices of all commodities. 

What would also worry the people is the government’s endeavor not to comply with judicial orders. There are many reasons for their concern. First of course, is the 200 year-old tradition of the separation of powers which has created in the local mind the resentment against the absolute power of the executive. For about 40 years there have been many attempts to undermine the judiciary and there have been setbacks in the institution. However, the basis belief in the separation of powers and respect for the judiciary is still strong among the people. On the other hand the contempt for all politicians is a universal element among Sri Lankans. Thus, in any conflict there would be greater support for the judiciary than the executive. 

In recent years there has been a further reason for the people to look to the judiciary as some kind of savior. This is because there is hardly any other institution to have recourse to. All public institutions such as the police, the prosecuting system and the public service has been so politicised that there is hardly any reasonable expectations of assistance from them. Resorting to the judiciary has remained the only outlet. 

The strong support the judiciary still enjoys with the people has so far prevented the attempt by the government to have a unified decision to oppose the court order. Press reports show that in the cabinet itself, there is a serious division of opinion. 

However, the conflict of the executive, which attempts to undo the separation of power principle itself is inevitable. In fact, this tension has been present since the adoption of the 1978 Constitution. Despite of many attempts by several presidents it has not been possible to make the judiciary completely subservient to the executive. In the initial stages the Chief Justice, Neville Samarakoon, previously a close associate of the then executive president, J.R. Jayewardene, turned to be his bitter enemy when the president tried to suppress the independence of the judiciary. Even the appointment of the present Chief Justice by President Chandrika Kumaratunge had been widely perceived as an attempt by her to have the judiciary on her side. However, despite of all such attempts the tension between the executive and the judiciary has continued. It is surfacing now as an open conflict. 

The resolution of this conflict will necessarily be a political one. It will be the people themselves who will have to resolve the issue of either living under a political system which is completely under the control of the executive or to maintain the separation of powers. According to reports the government has already ordered the use of all propaganda at its command to support itself in this new war against the judiciary. On the other hand it is very likely that support for the judiciary will also arise from all quarters. Particularly the middle class in the country, including also the business community, would not wish to have the entire system in the country controlled by the executive. On the other hand for the ordinary folk and the poor, further strengthening of the executive will only mean further hardships including higher prices of commodities. 

Under these circumstances a political crises that will affect the basic human rights of the people has now surfaced. If the executive wins this war against the judiciary the people will soon be heading in the direction of the type of life that prevails in places like Burma and Cambodia. Whether the Sri Lankan people will want to be completely voiceless and submissive in the face of increasing poverty and degradation of life will depend on who they support in the conflict that has arisen between the executive and the judiciary.

Document Type : Statement
Document ID : AHRC-STM-319-2008
Countries : Sri Lanka,