For three days last week, I was following the unfolding of a fascinating drama in the Supreme Court. Thankfully I did not have to go to Court Number One to watch a clutch of celebrated Queen’s Counsel and their juniors dragging trolley-loads of files and bundles of documents, as they sorted themselves out inside the [...]


Drama in the Supreme Court


For three days last week, I was following the unfolding of a fascinating drama in the Supreme Court. Thankfully I did not have to go to Court Number One to watch a clutch of celebrated Queen’s Counsel and their juniors dragging trolley-loads of files and bundles of documents, as they sorted themselves out inside the court room.

Neither did I have to join the queue of interested spectators outside the court house that had start ed building up from around 4 a.m. (if that is not fake news a la Trump) to gain entrance to this ‘holy’ sanctum where a bench of 11 justices was to gather for three days to hear arguments from several sides before determining whether British Prime Minister Boris Johnson was guilty of unlawful conduct.

Joining a queue at day-break was not for me. Why do so when the whole drama was being enacted right here and brought into the sitting room or wherever at home one’s TV is installed.

While in Colombo officials at the state TV- station Rupavahini have been fighting to grab the chairperson’s seat making President Sirisena do the only thing he seems to know to do — dump everything under the Defence Ministry — in London, two channels were bringing the proceedings to the people.

If the Sirisena route to problem-solving becomes an entrenched habit, why, before long one might find uniformed types parading under the defence ministry reading the news and discussing politics on the little screen. No ifs and buts mind you.

According to some reports the audience tuned to the courtroom scene over here amounted to some 4.5 million. It was an indication how absorbed audiences were in the legal battle which was one of the most — if not the most — important constitutional issues in UK’s post-war years.

Most Sri Lankans are aware of the number of times the public and politicians have sought the assistance of the judiciary to adjudicate on issues that had the slightest whiff of constitutional impropriety or implication.

The way fundamental rights applications are being filed over one thing or another, the hordes of Sri Lankan lawyers who have passed through the portals of that Hulftsdorp college must be having sufficient work to keep heart and soul — not to mention stomach — together.

News reports out of Colombo said President Sirisena might again turn to the Supreme Court for advice on when his term really ends or something of that nature.

One would have thought he had kept a count of that. Or his progeny should have so they knew when the good times would be over. As that old song went the “party’s over”.

When we were in boarding school at age five or six, we devised a way of keeping tabs on how many days it was to the holidays. When older students told us how many days it was — say it was 30 days — we hid 30 pebbles in a secret place and threw away one pebble each morning.

So unlike our learned president one did not have to ask the highest judicial institution, we did our own calculations.

In the last couple of years, the most obvious case before Sri Lanka’s Supreme Court was that of President Sirisena’s rash and injudicious act of sacking Prime Minister Ranil Wickremesinghe and installing Mahinda Rajapaksa in place. When he discovered that Mahinda Rajapaksa did not have a parliamentary majority in the House, Sirisena dissolved parliament. The constitution, especially the 19th amendment, was clear enough as to the earliest date the president was entitled to dissolve parliament.

We know how badly President Sirisena was humiliated because he did not seem to understand the constitutional provisions which enabled him to dissolve parliament or he was badly advised by those who misread or misunderstood the constitution. The Sri Lanka Supreme Court unanimously held that the president’s attempt to dismiss parliament and hold snap election was unconstitutional.

The effect of the Supreme Court judgment was to restore the status quo ante with Ranil Wickremesinghe returning as prime minister, the position he held before Sirisena’s disastrous ‘political coup’.

Sri Lanka’s Supreme Court had a relatively easier task when dealing with the Sirisena case than the UK Supreme Court, called upon to adjudicate on the specific issue of Prime Minister Johnson’s prorogation of the House of Commons and the advice he gave to the Queen with regard to the extended five-week prorogation prayed for, instead of the customary three weeks or so.

The problem the Supreme Court here faces was that, unlike in Sri Lanka, there is nothing called the “British Constitution”, no written document that one could carry around in one’s brief case along with a folding umbrella, given Britain’s unpredictable weather made even more uncertain with climate change.

As Dr Wilson would tell undergraduates in his political science class at Peradeniya, the British constitution consists mainly of conventions and political traditions with some written documents such as the Magna Carta. As someone once said of the British Constitution it bends but does not break.

So in some instances, the Supreme Court has to feel its way to test the threshold of its right to adjudicate in matters that the Boris Johnson government lawyers claim are essentially political and beyond the pale of the British court.

The whole issue was compounded by the fact that two courts had previously given two different judgments. A British High Court refused to rule on the matter saying it was a political issue.

On the other hand, the Court of Sessions in Edinburgh, Scotland’s highest court, ruled that the prime minister broke the law. It said that the PM was “motivated by the improper purpose of stymying parliament” and that “His advice to HM the Queen and the prorogation which followed were unlawful and are thus null and of no effect”.

Basically, the government’s argument is that the PM had the power to prorogue parliament and did so for five weeks to allow the government to prepare its agenda and policies ahead of the Queen’s Speech.

Whereas some senior members of his own Conservative Party and others held that the PM was trying to push through his timetable for leaving the European Union and was suspending parliament to silence the Commons so that it cannot question the actions of the executive during the suspension. That stops parliament from holding the government accountable during a crucial period when Johnson was preparing to break ties with the EU by October 31, come what may.

It was not always possible to understand the arguments of the various counsel because some of the case law cited by them was very much domestic and localided and would hardly be known to the average citizen unless they had specific knowledge of them.

Despite the rather academic nature of the arguments presented by counsel, the proceedings did hit interesting patches, especially when some arguments were challenged in the summing up, there were testy comments some justices felt counsel were straying into areas that were political.

The Supreme Court ruling is expected in the next couple of days. The important question is what PM Johnson would do if the court rules against him and finds his acts unlawful as Sri Lanka’s Supreme Court ruled on President Sirisena’s act of dissolution.

In such an eventuality would Johnson try to circumvent the effects of the court finding he acted unlawfully by suspending parliament once again? One cannot rule that out. After all his being called Trump junior is not for nothing.

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