{"id":83680,"date":"2024-02-25T00:45:15","date_gmt":"2024-02-25T04:45:15","guid":{"rendered":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=83680"},"modified":"2024-02-25T03:45:38","modified_gmt":"2024-02-25T07:45:38","slug":"disregarding-court-ruling-on-bills-has-ominous-consequences-given-that-the-sri-lankan-judiciary-lacks-the-power-to-review-enacted-law","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=83680","title":{"rendered":"Disregarding Court ruling on Bills has ominous consequences given that the Sri Lankan judiciary lacks the power to review enacted law."},"content":{"rendered":"


\nBy<\/p>\n

Kishali Pinto-Jayawardene<\/strong><\/p>\n

As much as lawyers, activists and civic conscious citizens, South Asia\u2019s judges seem to be fighting with their backs proverbially against the wall in these extraordinarily fraught times.<\/p>\n

Concerns on judicial independence across South Asia<\/strong><\/p>\n

At a forum of constitutional lawyers in Katmandu last week, a Nepali legal practitioner confessed deep standing concerns regarding executive interference into the judiciary. This was in a backdrop where the Supreme Court had been left with an acting Chief Justice for more than fifteen months last year at a time when key public interest litigation was pending.<\/p>\n

Earlier, an unprecedented crisis had gripped the Court when judges and lawyers demanded the resignation of the Chief Justice for having \u2018a close relationship\u2019 with the executive. \u201cThe judicial institution does not recover from such a crisis quickly\u2019 he told me. \u2018Even when we have positive responses in some cases, we are concerned about systemic independence. There is a long way more to go.\u2019<\/p>\n

His concerns echo across the region. The tiny Himalayan nation is certainly not the odd one out. In India, the Court had been complaining for quite a while that the Government was increasingly exhibiting \u2018defiance\u2019 towards judicial pronouncements. Mid last year, then Chief Justice of India NV Ramana whose background is distinguished in both law and journalism, passed strictures at a public event on the \u2018ambiguity\u2019 of the Indian legislature in passing laws.<\/p>\n

<\/p>\n


\nForcing judges to \u2018dabble with policy\u2019<\/strong><\/p>\n

He lamented with considerable asperity on the \u2018inclination (of law makers) to pass off the responsibility of decision-making to courts and the lack of foresight and public consultation before making laws.\u2019 This has \u2018forced the judiciary to dabble in policy to render justice to the common citizen\u2019 he added. Under this Chief Justice, the apex judiciary which had long been accused of timidity vis a vis the Narendra Modi led Government, took on a new leash of life.<\/p>\n

The Court activated itself sufficiently to \u2018freeze\u2019 Section 124A of India\u2019s Penal Code relating to the crime of sedition. A Bench headed by Ramana ruled that this provision had been abused to arbitrarily file sedition prosecutions against government critics. <\/p>\n

That arbitrariness in employing the colonial-era sedition provision had been patent.<\/p>\n

Sedition charges had been employed with a sledgehammer against prominent Indian journalists and parliamentarians. Perhaps the most ridiculous instance of this occurred a few years ago when journalists and a former opposition parliamentarian was accused of inciting sedition. This was for reporting the death of a man during a farmers\u2019 protest converging on Delhi due to being shot by the police.<\/p>\n

The Court\u2019s \u2018freezing\u2019 of the sedition provision<\/strong><\/p>\n

The police had alleged that the death had been caused by a \u2018accident.\u2019 Besieged by the use of sedition in the most improbable of circumstances, the Court ruling was welcomed by the media and the legal community. This judicial intervention was made possible due to the Indian Supreme Court possessing the power to review enacted law. Needless to say, that is not a privilege shared by the Sri Lankan Supreme Court.<\/p>\n

The Indian Court\u2019s \u2018freezing\u2019 of the sedition provision and the staying of all existing proceedings is directed to be until the provision is reviewed by the Government as promised by the Attorney General. The Bench had \u2018hoped and expected\u2019 that the police would refrain from filing sedition prosecutions in the wake of its ruling. But it appears that this has not stopped.<\/p>\n

Indeed, the disregard of court orders by the executive is evidenced across the board, not only in this instance. India\u2019s former CJ who retired late last year, complained gustily that contempt of court actions have \u2018exploded\u2019 as a result. This is directly due to the malingering of the executive and the legislature, he said.<\/p>\n


\nLong tarnished glory of the Pakistan lawyers\u2019 struggle<\/strong><\/p>\n

In Pakistan, the apex court continues to struggle in a web of political intrigue and internal squabbles with the glory of the lawyers\u2019 reform movement to establish an independent judiciary, long tarnished. That unseemly development has captured global headlines over a rash of cases brought by the regime against former PM Imran Khan whose party triumphed in the elections. The cases brought against Khan range from violating the Official Secrets Act (wilfully losing a cipher document) to colluding with the enemy to reveal state secrets.<\/p>\n

Journalists and dissenting judges who refuse to tow the party line are routinely harassed. In fact, the prestige of the Court has sunk so low as to lead to a Bench of the apex Court asking the Attorney General at one point to confirm that its orders will be adhered to. <\/p>\n

This was during the hearings of the constitutionality of military trials against civilians even though the legal issue itself had long been settled.<\/p>\n

At home, we are in no less a happy situation. A few months ago, the Supreme Court\u2019s finding that the Acting Inspector General of Police (IGP) had been implicated in acts of torture perpetrated on a civilian seemed to have scarcely ruffled the feathers of the ruling regime. The gentleman concerned continues with nary a care in the world, propagating his vim and vigour in dealing with the Sri Lankan underworld in the sadly mistitled \u2018Yukthiya\u2019 operation.<\/p>\n

Ink drying on Bills that are unconstitutional<\/strong><\/p>\n

At an even more concerning level, we have the ink drying on a highly controversial Online Safety Act passed without adherence to the letter of the Supreme Court\u2019s amendments. The resultant furore seems not to have had any effect either with the opposition alleging that this week\u2019s Court ruling on the Anti-Terrorism Bill may also be met with the same level of legislative frivolity when the Bill comes before the House for passage.<\/p>\n

Disregarding Court ruling on Bills has ominous consequences given that the Sri Lankan judiciary lacks the power to review enacted law. Where the Anti-Terrorism Bill is concerned, a main preoccupation of a five member Bench in reviewing the Bill was as to whether its clauses reflected lofty ideals of combating terrorism which has to be reconciled with the object of protecting and promoting the fundamental rights of the citizenry.<\/p>\n

In that regard, the Court agreed with those challenging the Bill that the offence of terrorism as defined in clause 3 did not make allowance for legitimate causes or goals such as protest or dissent. \u2018\u2026such an ambiguity is indeed rife in the definition,\u2019 the Bench stated. This resulted in the clause violating Article 12 (1) of the Constitution which will require a special majority to be passed, it was concluded.<\/p>\n

The strict letter of the Court\u2019s revisions<\/strong><\/p>\n

The only way in which this could be remedied was to prescribe an exemption or carve out to Clause 3. This, the Court said, will ensure that protests, advocacy or dissent, strike, lockout or industrial action will not, by itself, be sufficient to determine an illegal act or omission. Several other amendments were detailed, including clauses relating to detention until conclusion of trial and the basis on which indictments can be withdrawn by the Attorney General.<\/p>\n

If unamended, these clauses were deemed to need not only approval by a special majority but also at a referendum. A meticulous scrutiny of the Bill had been engaged, the Court noted, due to the fact that, if enacted into law, it will replace the \u2018much maligned and controversial PTA.\u2019 Its Determination needs to be rigorously analysed in another space. But at least, amendments to clauses as prescribed by the Court must be followed to the letter in the minimum.<\/p>\n

In the alternative, this puts the country on a far more dangerous trajectory than the rest of our neighbours in South Asia.<\/p>\n

Courtesy:Sunday Times<\/em><\/p>\n

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By Kishali Pinto-Jayawardene As much as lawyers, activists and civic conscious citizens, South Asia\u2019s judges seem to be fighting with their backs proverbially against the wall in these extraordinarily fraught times. Concerns on judicial independence across South Asia At a forum of constitutional lawyers in Katmandu last week, a Nepali legal practitioner confessed deep standing …<\/p>\n

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