The Republic That Fears The Independence Of The Judiciary Even More Than Terrorism

2023-08-18

When the Speaker of the Parliament made this decision, the Republic had already deprived the Judiciary of the post-legislative judicial review power and it has now been brought to a situation where even pre-legislative review has been removed. What is the nature of the Judiciary that exists in Sri Lanka? These are questions of jurisprudence. These are not just a question of some political opinion. The present situation is logically and legally idiotic. However, to say that there should be no judicial review at all is to say that there is nothing wrong even if decisions are made in an illogical and illegal manner.

In 1972, when Sri Lanka became a Republic by way of adopting a new Constitution, one of the most remarkable features of that Constitution was the removal of the post-legislation judicial review. At the very moment that the country was declaring a republic and completely independent State, it categorically deprived its Judiciary of the power to examine the legality of legislation after the laws have been enacted. Thus, it became a characteristic of the Republic to have a less powerful exercise of judicial power by the Judiciary than the country enjoyed even at the time of the rule by the colonial power or when it enjoyed only dominion status. 

 

Deciding on the legality of the laws, it was ensured that the people are in fact ruled by laws that are legally based on sound principles that the whole legal system is based on. The legal system is what protects the State to be a democratic State as it claims to be and also ensure that even the Legislature cannot make laws which are violative of the basic norms and standards on which good law is grounded. To leave the power of post-legislative judicial review is to allow the Judiciary to be the ultimate arbiter of what is legal and illegal within the land. For reasons better known to those who have proposed and supported that Constitution of 1972, leaving this power of judicial review as it existed so far was considered dangerous. There had been no explanations publicly as to why the Judiciary should not be trusted with post-legislative judicial review. 

What started in 1972 was continued in 1978 and the position remains the same even up to now. No Government or a political party has even dared to propose that the full powers of post-legislative judicial review should be returned to the Judiciary. Despite all sentimental talk about respect for the Judiciary and judicial independence, this most important power of judging the legality of laws by the Judiciary itself, whenever a citizen is confronted with a problem of the possible illegality of a law, has been deprived to the sovereign people of Sri Lanka. 

Read more: https://www.colombotelegraph.com/index.php/the-republic-that-fears-the-independence-of-the-judiciary-even-more-than-terrorism/