30 November 2017

Does the Supreme Court understand 'public interest'?

Taken by force or happily and willingly conceded?
The late Justice C.G. Weeramantry, delivering the annual Lalith Athulathmudali Memorial Lecture in 2012 chose to speak on judicial ethics.  He did refer to the key institutions of the state and how and why they need to be independent of one another, but stressed that everything depends on that  intangible and irreducible non-negotiable, ethics.   

And this, to me, was the most important observation that he made that day: ’strong  words in a constitution regarding judicial independence can very easily be undermined in practice, unless all members of the executive and the public act in the spirit of this constitutional provision.’ 

While the errors and poverties with respect to integrity in the legislature and executive are widely talked of, we have treated the judiciary with kids’ gloves in the main.   

Weeramantry cautioned that ‘independence’ must be tempered with a conscious effort by judges ‘to rise to the highest levels of rectitude necessary to discharge the hallowed duty that rests on them of delivering justice, pure and unadulterated, to those who come before them’. 

Do we have ‘pure and unadulterated’ and if we don’t (well, there’s no ‘if’ about it), then why not?  M.G. Quibria in a paper written for the Asian Development Bank Institute titled ‘Growth and poverty: lessons from the East Asian Miracle revisited,’ offered the following observation:

'The precondition for establishing the rule of law is a strong judicial system that is fair, competent, and efficient and not subject to political manipulation!’  

This was in 2002.  

That’s another key term: ‘political manipulation’.  Take it with the observation in the breach of delivering pure and unadulterated justice, and we have a serious problem. 

Here’s an exercise for those interested: trace the paths of ascendency of each and every judge of the Supreme Court over the past forty years and in particularly since 1994, and you will see quite a number tainted by the lack of integrity and the crime of acquiescing to political manipulation.  Judges have been taken out of the Appeals Court, given the post of Attorney General and then, at the right time, elevated as Chief Justice.  The Attorney General’s Department and the career paths of lawyers therein are not independent, then, of those of the judges (unlike in Britain, for example).  The Department’s work has been severely compromised by the license that politicians, yes presidents, have to use to to position favorites in the Supreme Court.  

Therefore, we are forced to treat with suspicion any determination in any court that has political implications, especially those that raise issue with the executive and legislative branches of the state.  

Let’s consider for example two directives by the Supreme Court, both referring to petitions seeking a bench of five or more judges.

Let’s take the latter case first.  This is SC Appeal No 99/2017 which sought to evict Geetha Samanmali Kumarasinghe from Parliament on account her status as a dual citizen.  The Supreme Court  decided that the appeal was ‘a matter of general and public importance’ and directed that the appeal be heard by five judges presided over by the Chief Justice.

It makes sense.  After all, dual citizenship implies dual or split loyalty and as such raises questions about the ability of the particular Member of Parliament to represent effectively, honorably and accurately the voter of the particular country.  As such it is clearly a matter of general and public importance.  The seriousness warrants appraisal by a fuller bench rather than a single judge.  

Now let’s move to another case: SC Writ No 05/2-15 filed by public interest lawyer Nagananda Kodituwakku.  This was about the illegality of Article 14 of the Constitution and which cited the Elections Commissioner and 15 other persons.  The petitioner pleaded for a full bench.  Before we get to the directive of the Supreme Court, let us consider the petition.

The 14th Amendment, as Kodituwakku has pointed out and tirelessly contested in court, was written into law bypassing established procedure.  It was a classic piece of constitutional tinkering that went against the grain of everything that Justice Weeramantry said.  The draft compiled by the relevant Parliamentary Select Committee was rejected in favor of one the then President, J.R. Jayewardene had written and sent to the Supreme Court along with a hand-written note!  The CJ of the time duly affirmed constitutionality, thereby effectively allowing the leaders of political parties to name as Members of Parliament and therefore tasked to represent the people individuals who the very same people had deemed unfit to represent them.  To put it simply, the 14th Amendment allowed those who had lost elections to be accommodated in Parliament through the National List of the particular party.  

What happened to ‘ethics’ and ‘integrity’  in May 1988?  What happened to notion that the executive, legislative and judicial branches of the state should operate independent of one another?  Wasn’t there collusion in subverting the sovereignty of the people?  Did the President, Parliament and the Supreme Court of the day ‘rise to the highest levels of rectitude necessary to discharge the hallowed duty that rests on them of delivering justice, pure and unadulterated,’ as Weeramantry believes they should (have)?

No system is error-free.  None are insured against mischief.  However, it is incumbent on better men and women, i.e. people with integrity, to review and correct whenever such lapses are noted and their reversal sought in court.  

Litigation with respect to Article 14, like in the Kumarasinghe case, is about representation.  In the dual citizenship case the issue is one of split loyalty compromising the ability to effectively represent.  In this case, that pertaining to Article 14, it is about the legal and moral right to represent those who have decided that the particular individual is unfit to represent.  Surely, this is a matter of ‘general and public importance’ and therefore deserves a hearing by a full bench, as was sought?  

Well, the Supreme Court has, in its wisdom has deemed otherwise and rejected the request fora full bench, claiming that ‘the matters involved are not of general and public importance!’

We have to ask, then, the following question: 

‘what does the Supreme Court understand to be “the public interest”?’

Does it subscribe to the general view that the welfare of the public, as opposed to the selfish interest of a person, group or firm, are those matters where the whole society has a stake and which warrants recognition, promotion and protection (by the government and its agencies, the judiciary included)? Or does the Supreme Court, as evidenced by the blatant contradiction apparent in the above two directives, dismissive and/or ignorant of the basic caveat pertaining to the Rule of Law that Quibria reminds us of — ‘a judicial system that is fair, competent, and efficient and not subject to political manipulation!’  

Both cases are political.  Politicians and political parties have a stake in both.  Where the first (that of Kumarasinghe) contains ‘public interest’ and has been recognized as such by the Supreme Court, the very same court chooses to ignore similar content in the latter (pertaining to the 14th Amendment).  Is the Supreme Court then telling us that the affirmation of the principle of ‘public interest’ is a matter selectively applied, as garb for political expedience in the dual citizenship case and as irrelevant in the latter case because it is inconvenient for the political establishment?  Are we to conclude that the judiciary is servile to politicians and amenable to political manipulation?  

Malinda Seneviratne is a freelance writer.  malindasenevi@gmail.com.  Twitter: malindasene.