by Basil Fernando
The Supreme Court of Sri Lanka in a judgment on December 17, considered controversial, ordered a reduction in petrol prices and said that it should be implemented on the same day. The government, on the other hand, declared that it would not implement the court’s ruling and referred it as contrary to its war effort against the LTTE. Furthermore, as per reports of a Cabinet meeting, the president also called on the government to oppose the court. The court ruled petrol prices to be reduced to Rupees 100 (US89 cents) per liter from the prevailing price of Rupees 122 (US$1.08) with an octane count of 90 and ordered the margin between the other petrol grade with an octane count of 95 selling at Rupees 137 (US$1.21) to be narrowed based on pricing formulas.
A few days earlier President Mahinda Rajapakse had stated, “I am less than a magistrate” while complaining about the judicial interventions against his decisions. Among his complaints are, two of his officers removed from their posts due to Supreme Court rulings and more importantly, the issue of the 17th Amendment to the Constitution. The implementation of this amendment was suspended on various pretexts by the government. The Supreme Court intervened and called for the immediate implementation of this constitutional provision.
According to the 17th Amendment to the Constitution, a Constitutional Council appointed with the agreement of all political parties is given the power to appoint commissioners to several public authorities with the power of appointment, promotion, disciplinary control and the dismissal of officers. The purpose of this law is to prevent direct political appointments to important posts in the public service and to ensure that persons are selected purely on the basis of merit. The implementation of this law undermines the executive to the extent of preventing arbitrary appointments for political reasons.
The government’s claim that the Supreme Court’s decision affects its war effort may sound comical to an outside observer. However, the political ideology and propaganda in Sri Lanka today is centered on one central enemy at a time, as has always been the case with totalitarian regimes. For Hitler, it was communists first and later the Jews; for Joseph Stalin it was the counter revolutionary bourgeoisie and then the Trotskyites. George Orwell in his famous novel, 1984, exposes this aspect of authoritarianism through the character of Goldstein who is the enemy and the excuse for all the actions of the party in power.
Petrol, however, is a commodity that is needed for everything and therefore affects everyone. Oil prices affect the prices of all commodities. So, the Supreme Court’s decision should help to bring down prices of many commodities, particularly, items of basic necessities. In fact, the Burmese uprising in August 2007, also called the Saffron Revolution, was spurred by the increase in oil prices, which led to the increase in prices of basic food items. Therefore, it is no surprise that most people in the country support the lowering of oil prices and also hope that this would bring down the prices of other commodities.
What should also worry the people is the government’s non-compliance with judicial orders. There are many reasons for this concern. First is the 200 year-old tradition of the separation of powers, which has created in local minds the resentment against absolute power of the executive. For about 40 years there have been many attempts to undermine the judiciary and there have been setbacks in the institution. However, the basic belief in the separation of powers and respect for the judiciary still remains strong in people. On the other hand, the contempt for all politicians is a universal element among Sri Lankans. Therefore, in any conflict there would be greater support for the judiciary than the executive.
In recent years, there has been a further reason for the people to look to the judiciary as some kind of savior. This is because there is hardly any other institution to have recourse to. All public institutions such as the police, the prosecuting system and the public service are so politicized that there is hardly any reasonable expectations of assistance from them. Resorting to the judiciary has remained the only outlet.
The strong support, which the judiciary still enjoys with the people, has so far prevented attempts by the government to have a unified decision to oppose the court order. Press reports show that in the cabinet itself, there is a serious division of opinion.
However, the conflict of the executive, which attempts to undo the separation of power principle, is inevitable. In fact, this tension has been present since the adoption of the 1978 Constitution. Despite many attempts by several presidents, it has not been possible to make the judiciary completely subservient to the executive. In the initial stages, Chief Justice Neville Samarakoon, previously a close associate of the then executive president, J.R. Jayewardene, turned his bitter enemy when the president tried to suppress the independence of the judiciary. Even the appointment of the present chief justice by former President Chandrika Kumaratunge was widely perceived as an attempt by her to have the judiciary on her side. However, despite all such attempts, the tension between the executive and the judiciary has continued. Rather, it has surfaced as an open conflict.
The resolution of this conflict will necessarily be a political one.
It will be the people who will have to resolve the issue of either living under a political system, which is completely under the control of the executive or maintain the separation of powers. According to reports, the government has already ordered the use of all propaganda at its command to support itself in this new war against the judiciary. On the other hand, it is very likely that support for the judiciary will also arise from all quarters. Particularly, the middle class in the country, including the business community, would not wish to have the entire system in the country controlled by the executive. On the other hand, for ordinary folk and the poor, further strengthening of the executive will only mean further hardships including higher prices of commodities.
Under these circumstances, a political crisis that will affect the basic human rights of people has surfaced. If the executive wins this war against the judiciary, people will soon be heading in the direction of the type of life that prevails in places like Burma and Cambodia.
Whether the Sri Lankan people want to be completely voiceless and submissive in the face of increasing poverty and degradation of life will depend on whom they support in this conflict between the executive and the judiciary.
Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.
upiasia
The Supreme Court of Sri Lanka in a judgment on December 17, considered controversial, ordered a reduction in petrol prices and said that it should be implemented on the same day. The government, on the other hand, declared that it would not implement the court’s ruling and referred it as contrary to its war effort against the LTTE. Furthermore, as per reports of a Cabinet meeting, the president also called on the government to oppose the court. The court ruled petrol prices to be reduced to Rupees 100 (US89 cents) per liter from the prevailing price of Rupees 122 (US$1.08) with an octane count of 90 and ordered the margin between the other petrol grade with an octane count of 95 selling at Rupees 137 (US$1.21) to be narrowed based on pricing formulas.
A few days earlier President Mahinda Rajapakse had stated, “I am less than a magistrate” while complaining about the judicial interventions against his decisions. Among his complaints are, two of his officers removed from their posts due to Supreme Court rulings and more importantly, the issue of the 17th Amendment to the Constitution. The implementation of this amendment was suspended on various pretexts by the government. The Supreme Court intervened and called for the immediate implementation of this constitutional provision.
According to the 17th Amendment to the Constitution, a Constitutional Council appointed with the agreement of all political parties is given the power to appoint commissioners to several public authorities with the power of appointment, promotion, disciplinary control and the dismissal of officers. The purpose of this law is to prevent direct political appointments to important posts in the public service and to ensure that persons are selected purely on the basis of merit. The implementation of this law undermines the executive to the extent of preventing arbitrary appointments for political reasons.
The government’s claim that the Supreme Court’s decision affects its war effort may sound comical to an outside observer. However, the political ideology and propaganda in Sri Lanka today is centered on one central enemy at a time, as has always been the case with totalitarian regimes. For Hitler, it was communists first and later the Jews; for Joseph Stalin it was the counter revolutionary bourgeoisie and then the Trotskyites. George Orwell in his famous novel, 1984, exposes this aspect of authoritarianism through the character of Goldstein who is the enemy and the excuse for all the actions of the party in power.
Petrol, however, is a commodity that is needed for everything and therefore affects everyone. Oil prices affect the prices of all commodities. So, the Supreme Court’s decision should help to bring down prices of many commodities, particularly, items of basic necessities. In fact, the Burmese uprising in August 2007, also called the Saffron Revolution, was spurred by the increase in oil prices, which led to the increase in prices of basic food items. Therefore, it is no surprise that most people in the country support the lowering of oil prices and also hope that this would bring down the prices of other commodities.
What should also worry the people is the government’s non-compliance with judicial orders. There are many reasons for this concern. First is the 200 year-old tradition of the separation of powers, which has created in local minds the resentment against absolute power of the executive. For about 40 years there have been many attempts to undermine the judiciary and there have been setbacks in the institution. However, the basic belief in the separation of powers and respect for the judiciary still remains strong in people. On the other hand, the contempt for all politicians is a universal element among Sri Lankans. Therefore, in any conflict there would be greater support for the judiciary than the executive.
In recent years, there has been a further reason for the people to look to the judiciary as some kind of savior. This is because there is hardly any other institution to have recourse to. All public institutions such as the police, the prosecuting system and the public service are so politicized that there is hardly any reasonable expectations of assistance from them. Resorting to the judiciary has remained the only outlet.
The strong support, which the judiciary still enjoys with the people, has so far prevented attempts by the government to have a unified decision to oppose the court order. Press reports show that in the cabinet itself, there is a serious division of opinion.
However, the conflict of the executive, which attempts to undo the separation of power principle, is inevitable. In fact, this tension has been present since the adoption of the 1978 Constitution. Despite many attempts by several presidents, it has not been possible to make the judiciary completely subservient to the executive. In the initial stages, Chief Justice Neville Samarakoon, previously a close associate of the then executive president, J.R. Jayewardene, turned his bitter enemy when the president tried to suppress the independence of the judiciary. Even the appointment of the present chief justice by former President Chandrika Kumaratunge was widely perceived as an attempt by her to have the judiciary on her side. However, despite all such attempts, the tension between the executive and the judiciary has continued. Rather, it has surfaced as an open conflict.
The resolution of this conflict will necessarily be a political one.
It will be the people who will have to resolve the issue of either living under a political system, which is completely under the control of the executive or maintain the separation of powers. According to reports, the government has already ordered the use of all propaganda at its command to support itself in this new war against the judiciary. On the other hand, it is very likely that support for the judiciary will also arise from all quarters. Particularly, the middle class in the country, including the business community, would not wish to have the entire system in the country controlled by the executive. On the other hand, for ordinary folk and the poor, further strengthening of the executive will only mean further hardships including higher prices of commodities.
Under these circumstances, a political crisis that will affect the basic human rights of people has surfaced. If the executive wins this war against the judiciary, people will soon be heading in the direction of the type of life that prevails in places like Burma and Cambodia.
Whether the Sri Lankan people want to be completely voiceless and submissive in the face of increasing poverty and degradation of life will depend on whom they support in this conflict between the executive and the judiciary.
Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.
upiasia
