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
