This is the accepted formulae to make democracy a workable system of government. However, there could be lapses in the system, therefore to avoid facing a dead end in the exercise of governance there are constant checks to avoid the derailment of the separation of powers. This latter checking process is an accepted cause of tension between the judiciary and the executive, as we see it today in Sri Lanka.
This tension is considered by some as an example of a government that functions well. However, the continued tension between the executive and the judiciary, which is more often the case, undermines the trust of the people in the judiciary, and governance difficult. The Judiciary is however not above the people, represented by the house of representatives- the Parliament. The Executive may therefore, seek the legislature to intervene to find a way out, from the judiciary overstepping its allotted power under the governing system.
Apart from the exercise of the judicial power to cheque the executive , the judiciary should use its wisdom not to make the governance difficult by interfering into areas which is not within its competence. The Governing is more difficult, and has more obstacles to overcome, than the judicial function which is to interpret the law, and make judicial decisions to be applied by the executive enabling it to carry out its functions according to the law.
But the Judiciary should not handicap the government with its decisions, which would make governing difficult. The legislature, judiciary and the executive should, on the other hand, be a coordinated system, functioning together supporting each other, in the interest of the country and the people. It is in this that intelligence, human, and the comprehensive nature of the man in the cloak of the judge, contributes for the smooth governance.
A judge who allows human weakness of anger, jealousy, ambition to influence his judicial decisions will hamper the progress of a government, creating conflict between the government and the people.
In the present case of the Judiciary over stepping its bounds to fix prices of commodities is exercising its power in an area not within its competence. The Government as it has correctly explained , has a right to tax in various ways, by sometimes increasing the price of one commodity and lowering the price of another to balance its budget of income and expenditure.
In that exercise the government no doubt takes into consideration, the price of one commodity used by a larger number of the population to be reduced, and that which is used by a few to be increased. This exercise is not the responsibility of the judiciary, and the judiciary exercising its judicial power to disorganise the system of collection of revenue, is certainly over stepping its boundary of power, to make it difficulties for the executive, and also to put the population against the government.
The Judiciary in this case has resorted to a populist exercise without self restraint to keep its judicial power within limits. Pleasing the people or taking revenge from the President of the Country or the government is not what is expected of the judiciary. Judiciary should interpret the law and make decisions to be applied by the executive in the smooth functioning of the government, what ever government it is, even if it differs from the political view of the judge making judicial decisions.
This is what, Lord Woolfe in the University of Western Australia Law Review had said , about occasional tension between the judiciary and the executive, which has to be handled with care not to end in political chaos, “ … no more than that created by the unseen chains which … hold the three spheres of government in position. If one chain slackens, then another needs to take the strain. However, so long as there is no danger of the chains breaking, the fact that this happens is not a manifestation of weakness but of strength.”
It is more apt to mention, as it had been said else where, that the separation of power is not to promote efficiency of the exercise of the executive power, but to stop an abuse of it that would lead to the use of arbitrary power, and an eventual autocracy. That fear of the Present Government of Sri Lanka and its President, making arbitrary use of power with an eye to being an autocracy is certainly out of the question.
The danger of judicial authority going beyond its limit, in a system of separation of power, lies in the civil organisations, which may make use of a populist judicial decision, to serve their own ends by organising the population against the government. In which case the situation would be out of control of the judiciary, allowing the executive to resort to its powers to stop agitation, which would result in an unhealthy political situation.
Therefore to avoid a confrontational situation a wise judiciary, may amend the controversial decision in the interest of the country and the people, if not in the interest of the executive, which it had unthinkingly, or deliberately put into an embarrassing position.
The Government of the President, and the decisions it had taken so far are far from being arbitrary. Its executive power had been exercised in the normal function of the government to fix prices, not to put the majority of the people in to greater difficulty, but with the object of providing financial support for an ongoing “war” against terrorism, that takes priority for a country and a people who had suffered three decades of extreme terror.
The Judiciary in making the decision to reduce the price of a litre of petrol, had not taken into consideration that the Government had already prepared its projects and programmes according to the Budget for 2009, which had already been passed, at a revenue calculated at the then prevalent market prices of commodities. In such circumstances, the judiciary “arbitrarily” reducing the price of an important commodity, that was considered as an item that brings in a larger income, has placed the government in an embarrassing and a difficult situation unable to carry out its already planned projects and programmes under the Budget for 2009.
The Judiciary in making its decision had not taken into consideration relevancy as a matter of judgement, which has put the executive into an unexpected difficult situation. The judiciary has in this case exercised its judicial power without taking into consideration the administrative difficulties that would be caused by the decision.
In reducing the price of a litre of petrol, the judiciary had taken it in isolation of the other consideration, therefore the judicial decision had been taken without the essential relevancy to other matters, considered for the preparation of the Budget.
In order to avoid similar situations in the future, the Parliament may introduce new legislation redefining areas of intervention by the judiciary, thus restricting the judiciary from over reaching matters strictly within the executive power.
This had been done to restrict the jurisdiction of Federal Courts, in the Australian Parliament, in the Migration Act 1958 (Cth),
“………as amended, provides in section 474 that a privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The Act defines a privative clause decision as a decision of an administrative character made, proposed to be made, or required to be made under the Act or a regulation. "Decision" includes decisions about the issuance of visas, imposition of conditions on visas, conduct preparatory to the making of a decision and a failure or refusal to make a decision. Section 474(4) lists decisions which are not privative clause decisions – these relate to the purely administrative and mechanical aspects of the migration regime.
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