The LAWASIA conference concluded this week in Colombo, its jubilee celebrations marked with a Colombo declaration signed by the Asia Pacific Region Chief Justices calling for a further commitment to the Separation of Powers between the Executive (Government), the Legislature (Parliament) and the Judiciary (Courts). Coming as it did in Colombo in the backdrop of [...]


The harmonious balancing of power


The LAWASIA conference concluded this week in Colombo, its jubilee celebrations marked with a Colombo declaration signed by the Asia Pacific Region Chief Justices calling for a further commitment to the Separation of Powers between the Executive (Government), the Legislature (Parliament) and the Judiciary (Courts).

Coming as it did in Colombo in the backdrop of a missive from the Executive reminding the Judiciary that the Legislature was “supreme” and not to be trifled with by court orders that defeat its efforts (the VAT bill being found to be illegal), the Chief Justices could not have been unaware of the timing and the relevance their call had in a Sri Lankan context.

Separation of Powers is a concept that has travelled many miles across continents and over several centuries since Baron de Montesquieu when King Louis XIV had the temerity to declare; “I am the state”. That is now ancient history. In more recent times, the Commonwealth of which Sri Lanka is a member-state has ingrained this objective in its own Latimer House Principles aimed at ensuring the harmonious balancing of power and that democratic states do not drift towards authoritarianism breeding tin-pot dictators in the process.

Often mandates from the people at democratic elections tend to change the mindset of those elected. They tend to believe, and genuinely so, that such mandates empower them with a God-given right to do as they please. In pursuing that mirage, they find the Separation of Powers hindering their path. And they get annoyed.

Like all laws, and all forms of government, the spirit of the tri-partite Separation of Powers is what it is all about. In Sri Lanka, politicians particularly after the introduction of the Executive Presidency could not resist the temptation to take control of all the arms of governance, including the Courts.

Some Chief Justices concurred in the process of politicising the Judiciary. They were aided and abetted by upwardly-mobile lesser judicial officers. Others resisted and faced the consequences. Towards the last few years, the wheels of the Judiciary began to fall off and it was one mad scramble for power and position by rubber-stamping Government fiats.

It was in this backdrop that the Lessons Learnt and Reconciliation Commission could not have put it better than to say that it was a period when the ‘Rule of Men’ replaced the ‘Rule of Law’. The Commission asked that it be reversed.

Separation of Powers can gridlock nations as it is happening right now in the United States of America. The poison of politics has crept into its body politic to such an extent the laws are not passed and Supreme Court judges not appointed. But such nations have strong institutions that insulate the country from impending disaster. The nation does not revolve around politicians alone and therefore shut down.

With the process set in motion to revise the 1978 Constitution and all the amendments that followed, one can only hope that the framers of the new Constitution will not tinker with the fundamental principles of Separation of Powers, as the Chief Justices have called for.

In Sri Lanka, there is a huge responsibility for all three branches of governance, no more and no less a responsibility rests on the Judiciary itself to restore the credibility of the Independence of the judiciary and the Rule of Law.

Recent judgments from the minor courts to the apex court, some against the incumbent Government are a healthy sign, however an irritant it may be to the political leadership of the country. In the VAT case, it was the Government’s shabbiness that lost it the case. So too was the case with the Divineguma Bill under the previous Government which saw that Government, drunk with power shamefully try and establish a rubber-stamping puppet Bench. The world community has come to question the ‘Kept Judiciary” of Sri Lanka. It is good to see a move in a welcome new direction.

 Modern History: Rebuilding broken bridges

Two senior Indian personalities, one an editor and the other a diplomat, have just released their respective tomes on their country’s recent Sri Lankan adventures.

Neena Gopal’s book to commemorate the 20th anniversary of the assassination of former Indian Prime Minister Rajiv Gandhi (see extracts in ST2 cover) and Dr. Haldip Singh Puri, one-time India’s ambassador to the UN (see review on page 16), both well versed in Sri Lankan affairs come to somewhat similar conclusions; and these are much the same conclusions modern-day India has come to terms with; that India’s policy of hegemony in general and its intervention in Sri Lanka in the 1970s to the 1990s in particular, brought not just abject misery to its neighbours, but to itself.

Ms. Gopal refers to India’s external spy agency, RAW’s manipulation of the LTTE, eventually to be bitten by it. Dr. Puri writes of the broader issue of the UN Security Council and interventions that have triggered hell on earth in West Asia and Northern Africa, but it also devotes a chapter to India’s pussy-footing in Sri Lanka’s internal affairs – which resulted in the death of their one-time PM and over a thousand of their soldiers at the hands of the LTTE. These are lessons to be learnt for any big nation with super-power ambitions and to control if not the world, their patches.

The bitter after-taste of India’s then disastrous Parathasarathian game-plan remains up to this date among many Sri Lankans. The Indian bogey lingers even with a new generation of young people and that is why it is so difficult for any Government in Colombo to enter into any agreement with New Delhi.

There is ‘natural’ suspicion and Indian diplomats who followed in the J.N. Dixit era, try as they might to change this mind-set have found it an uphill task to convince the public that they mean good for the country’s closest southern neighbour.
India blew all the natural goodwill that existed for millennia among a majority of Sri Lankans for contemporary history cannot be so easily erased from the public psyche. The state of Tamil Nadu and its politics are doing no favours for New Delhi as it repairs broken bridges.

Not that relationships cannot change and wounds healed. World War II’s sworn enemies are today the best of friends in win-win partnerships. This is the uphill task the Sri Lankan Government also faces today in trying to convince the people that there’s nothing sinister in the proposed trade agreements with India.

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