Neville Ladduwahetty  Courtesy Island

The Supreme Court had issued an interim stay order preventing the arrest of former Secretary of Defence Gotabhaya Rajapaksa until the full and final determination of the fundamental rights violation petition filed by him (The Island, May 14, 2015). Prime Minister Ranil Wickramasinghe expressed “serious concern” to the point of being “disturbed” about “not getting an early opportunity to reply to allegations levelled against him in the FR petition”, and had suggested that the President “could seek opinion from the Commonwealth Magistrates’ and Judges’ Association (CMJA) and other legal divisions in this regard” (Daily News, May 15, 2015). Even though there may be a compulsion for the Prime Minister to reply early to allegations levelled against him, the question that needs to be addressed is what material benefit would be served by seeking outside opinions from agencies such as the CMJA since the Supreme Court has already made its determination?

To expect Sri Lanka’s Judiciary to revise its determinations to the point of falling in line with the opinions of outside legal agencies after having ruled on matters at hand, is to be naive to put it very mildly. Anyone with sense would realize that a revision by the Judiciary after having made a determination would be an acknowledgment of its own incapacity to arrive at independent decisions guided by their collective capabilities. If the Independence of the Judiciary is to be respected and honoured, the Executive should have the sense not to intervene and recommend sources where the Judiciary could seek legal inspiration, but to leave it to the Judiciary to seek opinions from whatever source it considers appropriate in arriving at determinations relating to issues of judicial consequence. Under the circumstances, it is beyond comprehension what the Prime Minister expected to achieve when he made recommendations to the President, other than perhaps to undermine the faith and confidence of the People in the ability of Sri Lanka’s Judiciary to exercise justice without external intervention.

It appears that outside opinion is being sought selectively only when determinations of Courts are not favourable to the interests of the privileged such as the elected representatives. If so, it would undermine not only the immutable republican principle of the Independence of Sri Lanka’s Judiciary but also the confidence of the People in their judicial institutions that are created to “protect, vindicate and enforce their rights” (Article 105). Furthermore, if the decision to seek opinions from external sources such as the CMJA and other legal divisions is only under exceptional circumstances that affect the privileged, but national institutions are relied upon to exercise judicial powers of the People at other times, it would not be possible to reconcile the Fundamental Right that “All persons are equal before the law and are entitled to the equal protection of the law (Article 12).

If the President who as the Head of the Government acts on the advice of the Prime Minister and seeks opinions from CMJA, which incidentally is an organization without accountability to Sri Lanka or its citizens, he would be discrediting the Judiciary; an institution that in fact is the organ that exercises the judicial powers of the People and is the final frontier that citizens of Sri Lanka turn to for justice and redemption of their Rights. Under no circumstances should the President resort to measures that have the potential to undermine the faith and confidence of the People in one branch of Government in order to serve the parochial interests of other branches of Government.