Balancing overlapping powers of executive, legislature and judiciary

Democracy, which is described as the best out of the available inadequate systems of governance, could survive when the three branches, the executive, legislature and judiciary consensually enjoy the assigned authority vested under the system of separation of powers, while zealously safeguarding their own power centres.

There is no denying that the judiciary, as the conflict resolution mechanism in a democratic polity, needs to be upright and unfettered. There is wisdom and circumspection in the speech of India’s first Prime Minister Jawarharlal Nehru on May 24, 1949 when he stated in the Constituent Assembly that the judges should be “first-rate” men of “the highest integrity” who could “stand up against the executive government and whoever may come in their way.”

This is equally relevant to Sri Lanka, where the citizens await one of the most important judgements that would have a lasting impact not only on the relations between the three arms of state, but also the future of the country.

The intent of separation of powers between executive, legislature and judiciary is to prevent the concentration of unchecked power by providing for “checks” and “balances” to avoid autocracy, over-reaching by one branch over another, and the attending efficiency of governing by one actor without need for negotiation and compromise with any other.

Separation of powers, therefore, refers to the division of responsibilities into distinct branches to limit any one branch from exercising the core functions of another.

Although the 1978 Constitution gave immunity to the Executive, President Maithripala Sirisena voluntarily surrendered that privilege. Clause 35 of the Constitution says, “While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity”.

Executive Presidency

The absolute immunity of Executive Presidency was withdrawn in the 19th Amendment. However, it has not changed the clause 126 of the Constitution, which has laid down certain limitations to the courts. It says, “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by Executive or administrative action of any fundamental right or language right”.

Under the separation and balancing of power, the three branches have been vested with authority. They should exercise these authority with extreme care and ensure they do not infringe into each other’s territories.

Judiciary, as one of the most important features of democracy and it is responsible for safeguarding the interests and the fundamental rights of the people. Judiciary consists of the Supreme Court, Court of Appeal, High Court and other lower courts. Judiciary keeps a tab on the activities of the government and plays an important role in the event of violation of Fundamental Rights of the people of the country. Judiciary also has the authority to examine the validity of the Laws enacted by the Parliament on the constitutional parameters.

The people have the highest expectations of the judiciary, and Judges’ rights. They are guaranteed by the Constitution. The Constitution gives special emphasis and protection for the judicial independence, Judges and the system of Justice. Independence of the Judges and judiciary should be real and not merely apparent safeguards in which guarantees is zealously guarded by all.

It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law.

Political controversies

The reliance on the courts and on judicial means for addressing political controversies and public policy questions is arguably one of the most important functions in sustenance of democracy. The Supreme Courts worldwide have been frequently asked to resolve a range of issues pertaining to constitutional ambiguities, varying from the scope of expression and religious liberties, privacy freedoms, equality rights and public policies. The increasing political importance of courts has not only become more globally widespread than ever before.

In the past, we have seen ugly scenes such as stone throwing at the houses of judges who had given a verdict that was not seen as favourable to a ruling party. Now when we are at the threshold of an important judgement, we have to understand the importance of judicial independence, which is the principle that the Judiciary should be politically independent from legislature and Executive Authority. Courts should not be influenced by any political authority or external influence.

Judges need to be respected for their role, which is exercising judgement. Their function is to interpret and apply the law. It is the function of the Parliament to make the law. Constantly questioning a judge’s capacity to interpret law is akin to constantly questioning the legitimacy of politicians to even make any law in the first place. If a politician decides to take a few politically opportunistic potshots at a group of judges it will not result in crashing of our democratic state. However, the political leadership should ensure that any attack on judiciary should construed as an attack on our democratic foundation, which we cherish.

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