Monday, January 21, 2013

Chief justice vs parliament

Jeet H Shroff : Tue Jan 22 2013, 02:50 hrs
Sri Lanka’s predicament reveals the perils of a legislative super-majority
Sri Lanka’s parliament impeached its chief justice, Shirani Bandaranayake, bringing into focus the precarious balance of power between courts and legislatures, a factor that defines the institutional politics of all constitutional democracies. President Rajapaksa’s government, which had previously jailed the country’s army chief, accused Bandaranayake of corruption, based on unproven allegations of disproportionate wealth. The parliament voted, 155 against 49, for the impeachment of the chief justice, ignoring the orders of the Supreme Court, which had invalidated the parliamentary proceedings. The country’s capital is now rife with speculation about an impending showdown between the court and parliament. The developments in Sri Lanka highlight the dangers of super-majorities in parliament.
Constitutional politics usually hinges on issues of legitimacy. The court feels popular governments with standalone majorities command greater legitimacy than minority or coalition governments. As such, the more “legitimate” the government, the less likely the court is to quibble with essential government decisions. With the media focus that defines our times, each of the three institutions that share constitutional power compete for public approval, so that ultimate constitutional power is always in a state of flux. This Montesquieuan state of flux guarantees individual liberty. Because power is never concentrated, its abuse, should it occur, is also limited. Yet, as Sri Lanka’s example shows, when dictatorial tendencies replace democratic propriety, parliamentary super-majorities can threaten this constitutional balance.
First, a super-majority almost always compromises the in-built parliamentary check. In the absence of an effective opposition within parliament, the majority party faces little trouble passing laws and steering debate. A dictatorial ruling party would face little resistance in bringing selfish constitutional changes that could help perpetuate its rule. Indeed, in Sri Lanka’s case, the ruling party used its super-majority to effect a constitutional amendment in 2010 that removed the two-term limit on Sri Lankan presidents.
Second, super-majorities arm the government with an iron-clad mandate. With no opposition to question governmental action, the executive has little to worry about except public perception. Executive decisions then are almost certain to pass parliamentary muster, and the circumspection and cautiousness that must inform government policy may be sacrificed.
Third and most important, a government backed by a parliamentary super-majority has more heft to take on the judiciary. Judicial decisions that invalidate government policy or parliamentary law usually count on voluntary compliance by the elected branches. A judicial decision has no teeth. Its enforcement is dependent on governmental cooperation. And governmental cooperation is usually forthcoming because of the severe reputational sanction the government’s inaction can invite. However, super-majorities can play truant with this rule. A government that is assured the successful passage of a law has the option of ignoring a judicial decision by simply re-enacting the law invalidated by a supreme court decision. As the chief justice’s impeachment demonstrates, a dictatorial ruling party can choose to ignore judicial decisions riding on its sheer strength in numbers. Yet, judicial power can gain popular currency when it is aligned with public discontent. As the stunning reinstatement of Chief Justice Iftikhar Chaudhry in Pakistan showed, a stray act of defiance may inspire simmering discontent to find a voice. In Pakistan’s case, Chaudhry’s house arrest provided a rallying point for the repressed political opposition, an embattled judiciary and the ordinary Pakistani. As Bandaranayake runs out of options, she would no doubt hope that her plight finds sympathy and resonance among Sri Lanka’s populace. Sri Lanka’s fate may well depend on whether the chief justice’s story does enough to rally ordinary citizens.
The writer is pursuing a master’s degree at Harvard Law School