A spate of decisions from the Supreme Court that in effect show the judicial arm venturing into the territories of the executive and legislative, coupled by an executive that shows a fascination with foot-dragging with respect to implementing constitutional prerogatives as well as decisions of the Supreme Court (SC), and a legislative that is accused of simply not doing its business, one contends, have all the signs of opening the door to anarchy.

The word ‘anarchy’ conjures up images of people rioting, looting, the replacement of rule of law with all that is contained in terms such as ‘free-for-all’ and ‘every man for himself’, etc. The word, in addition to connotation of general lawlessness and disorder and of course the absence of government, also refers to the absence of any coherent form of political authority.

The separation of powers among the legislature, executive and judiciary is fundamental to democracy for it seeks to avoid tyranny on the one hand and anarchy on the other. The search for balance of power is rooted in several fundamental principles; security, liberty and freedom, accountability, efficiency, development, and the capacity for chance.

In real life, and in the political milieu that is unfolding right now, we see a frequent referencing of these principles by representatives of the three key organs of the state and those who comment on related issues. Part of it is serious concern about enabling and decent overall governance and part of it is petty politicking.

There are enough people to cheer populism, whatever its source. And there are enough people to couch populism in academic, public-interest, strictly I-am-just-doing-my-job terms. And there will be those who will paint sober imperatives as cheap populism. And so, we have seen all kinds of reactions to the recent SC decision on fuel prices. There is no doubt, however, that the decision provides an opportunity to review the overall structures of the state, how robust they are in relation to one another and how relevant or otherwise they are to the matter of democracy and general well being of the people, which, in the final instance, is the basic objective of constitutional enactment.

The President says he has less power than a magistrate in an unveiled barb directed at the Chief Justice. The Chief Justice says he is above party politics. He also says he has been forced to do the jobs of the executive and the legislature. Various ministers say that it is through parliament that tax levies are instituted. What does the constitution say?

Article 4 is the point of reference and I quote the sections pertaining to the three organs in full:

The Sovereignty of the People shall be exercised and enjoyed in the following manner: (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum; (b) the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People; (c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law.

Ravi Karunanayake submitted a Fundamental Rights (FR) application to the SC regarding the price of fuel. The SC determined that the price of a litre of petrol should be set at Rs. 100, the decision obtaining power from Article 126, referencing fundamental rights jurisdiction and its exercise.

Now, Article 126 (1) says clearly that "The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right". However, Article 126, taken in conjunction with Article 4 (c), indicates that a decision of parliament is not subject to FR jurisdiction. Parliament has the fundamental responsibility of exercising judicial power (through the courts); the SC is merely an organ.

There is therefore a certain paradox here with respect to power separation: the judiciary is independent in spirit but is constitutionally bound to Parliament as per 4(c) and to the executive as per appointment of the CJ (for example), but in terms of this decision, if the Government so decided to take up the issue in Parliament, it could be resolved with a simple majority.

Whether the Government will do this is not our business. Since it is a price reduction there will be political repercussions involved. That too is not my business here. On the face of it, forcing the Executive to revert to Parliament more often on account of the SC’s penchant for extending its arm is perhaps cheer-worthy in the absence of a willingness of the Executive to implement the 17th Amendment and its manifest reluctance to amend this important Amendment and cure its obvious flaws.

Among the question marks raised by the decision is that which pertains to ‘precedence’. The SC has essentially said, ‘no taxes’. We applaud. Now, theoretically, the SC could also say ‘no subsidies’. Will we applaud? Will we weep? Will be have a choice in the matter? I am but a student of law, so I may be way off mark here, but common sense tells me that if the SC can ‘fix’ taxes, the SC can ‘fix’ overall fiscal policy as well. Would we not then have experts in these fields second guessing themselves at every turn wondering if some Tom, Dick or Ravi will run to the SC crying ‘foul’ and a SC, peopled by those who are not necessarily required to know the basics of economic management passing judgment?

The argument can be extended, I believe. The SC could, would it not, get involved in decisions pertaining to an obstetricians performing a caesarian section on a pregnant woman? Of course, such a determination would seem silly and ridiculous. The point is not whether the SC "would" but that it "could" if, for example, cabinet decided that it will not budget for surgery in the matter of maternal healthcare.

What it boils down to is this: unless urgent action is taken to sort out the problems of the 1978 constitution regarding the separation of powers, we are in for a season of bickering which underlies a more serious political possibility: anarchy.

The SC has moved in getting the 17th Amendment implemented. The SC earlier determined that Dayananda Dissanayake cannot retire. Of course, had the SC determined that he retire, the Executive could have appointed another person as Elections Commissioner and continued without a fully fledged Elections Commission as per the 17th Amendment, we can conclude in hindsight. However, that particular decision, "caveated" with expected regret on the part of the SC, sent what I believe is a serious and negative signal with respect to the value that the SC attached to the 17th Amendment. We note that Mahinda Rajapaksa did not cheer that decision, but more crucially, did not object or take steps to get the Elections Commission properly instituted once he assumed executive authority.

Article 118 should be revisited by all. It outlines the ‘General jurisdiction of the Supreme Court’: The SC shall subject to the provisions of the Constitution exercise (of), (a) jurisdiction in respect of constitutional matters; (b)  jurisdiction for the protection of fundamental rights; (c)  final appellate jurisdiction; (d)  consultative jurisdiction; (e)  jurisdiction in election petitions; (f)   jurisdiction in respect of any breach of the privileges of Parliament; and (g)  jurisdiction in respect of such other matters which Parliament may by law vest or ordain.

Today SC is all about FR. The CJ may say he is above party politics and claim he was ‘drawn into politics’, he may say ‘no one says I am corrupt’, but there is a fundamental responsibility on that office to calculate repercussions of ‘doing politics’ (reluctantly or otherwise). Not being corrupt is not coterminous with ‘not being out of order’, constitutionally or morally, I am sure the CJ will acknowledge.