The Supreme Court (SC) certainly has been the cynosure of all eyes in recent years, especially in the last 12 months. Its decisions have evoked broad public acclaim (preventing the expulsion of transient Tamil residents from Colombo, the Lanka Marine Services de-privatisation case and the petrol price reduction decision), or Sinhala public acclaim (North-East de-merger and scuttling PTOMS). Personally, I think the former decisions were laudable and politically constructive, and the latter regrettable; but what is quite unmistakable is that we now have a very active SC in Lanka. Is this good or bad, and under what circumstances do courts assume this profile?

Famously controversial justices

John Marshall and Oliver Wendell Holmes are, arguably, the two most illustrious justices in American judicial history, but they were also controversial. Marshall was the longest serving American Chief Justice and dominated the Court for over three decades from 1801-1835. The online encyclopaedia Wikipedia says: "He played a significant role in the development of the American legal system. Most notably, he established that the courts are entitled to exercise judicial review, the power to strike down laws that violate the Constitution. Thus, Marshall has been credited with cementing the position of the judiciary as an independent and influential branch of government".

In the face of arbitrary abuse of power by the executive branch of government for many years in Lanka and the supine impotency of the legislature, it is natural that the Lankan public craves for a similarly independent court. The national legacy of unmitigated corruption has disillusioned people so thoroughly with political personages and state officials that there is a yearning that the judiciary would step in and enhance its clout.

Furthermore, Marshall made several important decisions relating to federalism, "shaping the balance of power between the federal government and the states during the early years of the republic. In particular, he repeatedly confirmed the supremacy of federal law over state law". Marshall was a forceful personality who dominated his fellow judges and he usually wrote the judgements on behalf of the court, thus placing his imprimatur on the Supreme Court. Whatever the viscidities of the civil war in Lanka, federalism is the only feasible minimum-maximum (Tamil-Sinhala) compromise to sort out the national question. One might, in the future, then, be able to glean interesting parallels between Lanka’s SC, and the experience of the US during Marshall’s tenure.

Oliver Wendell Holmes, who served as a judge on the US Supreme Court from 1901 to 1932, (and previously as Chief Justice of the Supreme Judicial Court of Massachusetts), is actually best remembered because of many misunderstandings in the public mind. He is famously remembered for the doctrine of ‘clear and present danger’, in the absence of which, he opined, the state could not take away the right of a citizen to oppose the government; that is the fundamental right to free speech. The truth, however, is that Holmes enunciated the doctrine in 1919 in Schenck v. United States where he held that there was in fact, a ‘clear and present danger, and upheld the criminal conviction of Charles Schenck, Secretary of the Socialist Party, for printing and distributing leaflets opposing the draft during World War 1.

He then prevaricated and in the following year (1920), in another case, using the ‘clear and present danger’ test, he argued that protests by political dissidents posed no actual risk of interfering with the war effort. Holmes has been accused of inconsistency; the Court’s majority rejected his views and adopted the position that a legislature could declare that some forms of speech posed a clear and present danger, regardless of the circumstances in which they were uttered; but it was Holmes who had in fact done the damage. (Note: The dates refer to the appeal judgement dates, some years after the contested events themselves).

The interesting thing, despite these controversies, is that Holmes is the most widely cited American justice, including, especially, never ending debates about the ‘clear and present danger’ test. The key to his popularity is that Oliver Wendell Holmes was an outstanding scholar and his appointment was one of the least controversial ever. Did intellectualism, and distance from political dogfights, lend inconsistency to his judgements? Hamlet-like, intellectuals are not men of decisive action, or so they say; "whether it is nobler in the mind" to do this, or to do that!

Moral relativism

Holmes has also been criticised for ‘moral relativism’, meaning that he deferred to the legislature too frequently (unlike Marshall) and he refused to take a judicial stand on economic interests and welfare related issues. One can reasonably extrapolate that Holms would have dissented from the recent Lankan SC judgement on petrol pricing. In several judgements "Holmes declared that due process of law, the fundamental principle of fairness, protected people from unreasonable legislation, but was limited to only those fundamental principles enshrined in the common law and did not protect most economic interests", (Wikipedia).

Most of us today, especially in developing societies, would differ with Holmes, but it is interesting to ask when does an economic issue become a justiciable matter. An extreme example illustrates one side; if essential medication needed to treat a life threatening condition was so highly taxed by the state as to place it beyond the reach of the ordinary poor, then, a petition alleging the violation of fundamental rights clearly becomes a justiciable matter and a moral imperative.

What about petrol? A government could argue that differential taxes on different commodities need to be looked upon as a totality, and that cross subsidising between different commodities is an economic policy option that properly belongs to the province of government economic strategy and is no business of the courts. For example, petrol taxes may be high so that schools can be paid for, or a war prosecuted - irrespective of the moral degeneracy of the war itself. Consumers could respond that there are limits within which such a strategy can be legitimately pursued, and, for example, petrol taxes that are so high, say in excess of 100%, are so palpably unfair as to be a violation of the rights of a category of the citizenry.

As an aside though, in the present case, the government’s refusal to implement a court order in the interim, pending review of its objections by the SC, is surely in contempt of court. It will be interesting to see if the SC acts upon this contempt, as this will indicate how the chips are falling in the balance of power between the different arms of state. With the government hell-bent on consolidating its monolithic authoritarianism this stand off is of deep public concern.

Is an interventionist court a good thing?

Clearly, the Sri Lankan public is enamoured of its interventionist Supreme Court. If it ever comes to a showdown with the political executive, like in Pakistan, no doubt about it, public outrage will spill over in similar forms - hence the Rajapakse regime, its policemen and its Mervynite thugs, would be wise to back off, if ever they entertained visions of taking on the judiciary illegitimately. But the swiftness with which political conflict develops these days is giddying. My neighbour, a Black Label aficionado, has a post-tot story, probably apocryphal, that when asked for his views on the impact of the French Revolution on world history, Chou En Lai, that scion of 5,000 years of civilisation, responded, "It’s still too early to say!" Now that’s a nice measured pace.