The myth of separation of powers

By Nalin de Silva

The government has to be commended for handing over the impeachment motion against the Chief Justice to the Speaker before the commencement of the Universal Periodic Review of the Human Rights Council (UPR) on Sri Lanka. This does not reflect the merits or otherwise of the impeachment, but all I am saying is that the government was not intimidated by the UPR. Many would have expected the government to hand over the impeachment motion after the UPR so that it would not be discussed at that "august" assembly. These councils including various other United Nations outfits are only glorified meeting places where the western countries try to bully the other nations not even through what their "intellectuals" call majority supremacy. The western countries are not in a majority nation - wise or population - wise but they control the other nations by their political power very often exercised through the military power and/or using their knowledge which itself has been imposed on others through political power initially. The so-called intellectuals of this country who talk of majority supremacy should ponder on these arm twisting tactics by the west even without having a majority by themselves.

The western education imposed on us again using the political power of the west brainwash us to believe that these assemblies and councils are very important, and the "educated" people have been "trained" to follow the proceedings diligently as if our very lives depended on the outcome of the meetings. Our media both print and electronic are full of news pertaining to the meetings and most of the "educated" people are scared of the UPR and other ‘gonibillas’ [bogeymen]. The interesting fact is that there are charges against the US, which has committed much graver crimes, has impeached Judge and even tried to impeach a president and when UPR on USA is taken up the US media are not concerned about what is taking place in these glorified assemblies. The US is not bothered about what the other nations have to say about its Human Rights violations and carries on regardless. The Sri Lankan government now either probably understands that these councils and assemblies are mere glorified meeting places or that it has not violated the human rights of Dr. Shirani Bnadaranayake by moving an impeachment motion against her.

This is the third impeachment of a Chief Justice in this country and it has attracted more attention of the NGO lobby and others than on the previous occasions. I cannot remember so-called educated people lamenting on the last nail on the coffin of democracy over the last two impeachments of the Chief Justices or on the fate awaiting Mother Lanka. If Mother Lanka could survive under J. R. Jayewardene and R. Premadasa, and also after the JVP and LTTE, not to mention the coup by educated gentlemen and officers in 1962, it is difficult to imagine that she would lose all the so-called democratic rights under M. Rajapaksa. It is clear that as in the case of the English educated Tamil Vellalas who lost some of their privileges after Universal Franchise talked of grievances of the Tamils in general, the educated brown sahibs who lose some of their power under SLFP led governments grieve over the fate of Mother Lanka. I am not saying that the present government is the ideal administration that Sri Lanka could have had but it has defeated the LTTE terrorists, who were supported by the west, India and some of the "intellectuals" in Sri Lanka, and who were the biggest threat to democracy in the western sense in Sri Lanka after the English, Dutch and the Portuguese, though one would say that there was no democracy even in the west during the periods referred to. Irrespective of whether there was no western style democracy in the west or not, until 1931 there was no universal franchise in Sri Lanka.

The impeachments are neither unconstitutional nor undemocratic in western sense, and it is beyond my capacity to understand why the US should raise the impeachment of the Chief Justice at the UPR. Is it a crime or is it against the wish of the God to impeach the present CJ. I suppose the US Envoy knows the answer to that question more than the NGO pundits and other intellectuals of this country. In any event by handing over the impeachment motion to the Speaker before the commencement of the UPR the Government of Sri Lanka has given the opportunity to raise her voice at that assembly. When the majority of the countries praised the Sri Lankan Government on its human rights record, which is certainly better than that of US, more publicity was given to the criticism of the US envoy!

At the moment of writing this article neither the charges in the impeachment motion nor the decision of the Supreme Court on the Divineguma Bill was known. Hence I would not comment on them. The rest of this article would be devoted to question the so-called separation of powers that the ‘intellectuals’ talk of imitating the western scholars. The separation of powers is another myth propagated by the creators of knowledge in the Judaic Christian culture in western Christian modernity that commenced towards the end of the fifteenth century. The separation of different items, properties, powers etc is supposed to be a characteristic of western Christian modernity though it is never practised. In western mathematics there is a theorem representing the separation into different groups; it says under certain conditions the elements of a set can be assembled into disjoint classes. However, these conditions are never achieved in sociological world and the separation into different groups in practice remains a myth.

It is said that in the present world, very often called the modern world, the state is separated from the Church. This is not practiced as the states in the western world are associated with the Church culturally as well as politically. The separation of the state from the Church (religion) is preached to the non western countries while the western states remain Christian. Whoever is elected as the President of US on Tuesday will take his oaths by the God, and the English would pray to the God to save the Queen. They are not symbolical gestures as these ceremonies are based on hundreds of years of Christian culture.

Though the western Christian culture in theory claims that the state is separated from the Church, Knowledge including western science is independent of Religion it is not so. After all, the world (or the universe) acts as a whole and these various features are interconnected. The courts of law themselves reflect this interconnectedness in a way. As Feyrabend has shown, in the courts ‘experts’ in Forensic Medicine or Physics are cross examined by lawyers who do not necessarily have an advanced knowledge of these subjects. The judges who give a verdict on Z-score do not have to have an expert knowledge of statistics. On the other hand Parliament that would most probably appoint a Select Committee on the impeachment of the Chief Justice is not bound to appoint a committee consisting entirely of lawyers, though the members of the committee would act as judges.

It may be that in western style democracies all over the world the Constitutions are enshrined with the words the sovereignty is in the people and is inalienable. However, in our country the Thirteenth Amendment says something else and we are no longer a unitary state contrary to Article 2 of the Constitution. It is believed that the constitution also states that the legislative power, the executive power and the judiciary power of the People shall be exercised respectively by the Parliament, the President and Judiciary. However, it is the People who have the ultimate authority and even in the case of the President he/she is elected by the people. That interconnectedness is established through the People in western style democracies.

The judicial power is also not independent of the people. The Article 4 (c) is very clear on this. It says "the judicial power of the people shall be exercised by the Parliament through courts, tribunals and institutions created ... by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of Members, wherein the judicial power of the People may be exercised directly by Parliament according to law." The judicial power of the People is exercised by the Parliament through Courts and not directly by courts, and under certain conditions it is exercised directly by Parliament. After all, the Judges are not appointed by the people through an election and the Constitution is very clear that the judicial power of the people is exercised by their elected members in Parliament. Although in the popular belief the judiciary is independent of Parliament it is not so and I suppose it is the situation in all western style democracies. In the US the Judiciary in practice is controlled by the Executive Presidency.

මහාචාර්‍ය  නලින් ද සිල්වා, 

The Island

2012-11-07