We are a concerned group of academics fighting to ensure the opportunity of high quality public higher education for the Sri Lankan masses. This blog is intended as a bulletin board to share news and ideas relevant to the cause. The views and opinions expressed here do not necessarily represent the views and opinions of the FUTA. If you wish to post any interesting articles please e-mail them to uteachers.sl at gmail.com
On the evening of the November 27 at 06:07 PM (local time), flames were lit in commemoration of Maaveerar Naal 2012 (Martyrs’ Day 2012). It was initiated by the Tamil students from the Jaffna University.
Pre-deployed Sri Lankan troops forcibly entered into the Ladies’ Hostel and attacked the students and damaged properties, soon after they realized that the flames were lit inside the Ladies’ Hostel of the Jaffna University. The victims called the University administration to escape from the attack and seek safety. However, following the attack tensions prevailed.
More troops and policemen were deployed to the university vicinity by the Sri Lankan Defense establishment in Jaffna. The next day (November 28), the students called for a nonviolent protest in opposition to the military attack against the students. The sit-in protest which took place within the university premises revisited memories of the Satyagraha campaign led by the late S.J.V.Chelvanayagam.
Just as successive Sri Lankan governments and their hooligan mobs attacked the Gandhian way of the Satyagraha campaigns of 1956 and 1961, on the 28th the Sri Lankan army and policemen unleashed their terror campaign against the university students, who were marching peacefully within university surroundings holding placards, with a considerable number of students symbolically covering their mouths with black cloths.
The attackers injured about 20 students, damaged the vehicle of a TNA parliamentarian, and harassed and threatened a Tamil journalist trying to cover the incident.
The history of the island indicates that it was the oppression of Tamils’ democratic struggle that led the Tamil youth to take up arms to safeguard their nation’s rights, especially that of freedom. The outcome of which was known not just to the people of the island, but also the world. Despite this, the Sri Lankan Armed Forces’ atrocities against the Tamil people continues today, mirroring past acts of violence.
This act of abuse and oppression reveals the importance of demilitarization, as situation of an open prison is prolonged in the NorthEast, particularly in the North.
Failure of the Media
International media outlets justified their failure to aptly cover the genocidal war in late-2008 to mid-2009 by blaming the Sri Lankan government’s denial to independent and international journalists to access/enter the war zone. Yet, today, with no directive war taking place, media coverage by the Colombo based English and Sinhala media of the brutal attack against the Jaffna University students has been extremely poor. While polarization of the national media continues, imbalanced reporting by international media outlets emanated once again. Jan Jananayagam, Director, Tamils Against Genocide [TAG] tweeted, “sickening that colombo-based european media like @afp have not learned from their failures in 2009”, highlighting that “misleading account from @afp omits to say students threw stones AFTER military attacked peaceful demo” – a vital omission leading to suggest that it was the students’ act triggered the military’s violent response.
She further tweeted BBC “who failed disgustingly in 2009, reporting from colombo repeats srilankan military lies about jaffna protests” and added that the BBC pretends ‘balanced’ reporting involves quoting of discredited lanka army sources w’out mentioning their previous record of mendacity”.
The BBC reportage also failed to include the students’ version of the story – a vital view of the incident, while having given attention to the Sri Lankan military’s false recount of events.
This misrepresentation by the AFP and BBC only assists the Sri Lankan government’s propaganda machine.
Speaking to the victimized students, a student leader said:
This is a most degrading incident. They [the armed forces] have entered the Ladies’ Hostel. This is an indecent act. So we are protesting against this act by the Sri Lankan Army. The University Administration says they knew nothing about it. We cannot believe this because at that time there was no one around. It was only after the army came and took their positions that the officers from the administration arrived and then simply chose to watch the proceedings.
To what extent are you [the University Administration] protecting the students? How can this happen without the administration’s knowledge? What is the use of having a Vice-Chancellor? It is better to have an ordinary soldier as a VC then… If an ordinary soldier can come within the university premises and threaten the students, what is the need for you [the VC]? I am not trying to abuse anyone. Please consider this, our VC, our administration – if the army can freely enter the university premises then what need is there for an administration?
Therefore to prevent these kinds of incidents happening, we can’t ask anyone, we are not in a position to ask anyone, we can only show this as a protest, to the international community. There is no one in Jaffna to listen to us, it is only the international community which must open its eyes and save us.
According to the available information, no prompt statements have been issued by the international community, except for that of the U.S. embassy in Colombo. While describing it as a “peaceful demonstration”, the U.S. embassy said in its statement that it was “greatly concerned about reports of attacks on students in Jaffna”. It further states its concern “about recent threats to freedom of expression in Sri Lanka” with the “November 28 beating of a reporter in Jaffna, harassment by Government of Sri Lanka officials of independent media outlets, and searches without warrants of journalists all..[serving]…to stifle media freedom”.
Reconciliation: Repeating Rhetoric
The Sri Lankan government continues its malicious propaganda in support of its own so-called action plan for reconciliation, while the Tamil people continue to be oppressed in many forms within an open prison. Freedom of Assembly, Freedom of Expression and other democratic rights have been completely denied to the Tamil people.
Not only on Martyrs’ Day, but even choosing to commemorate kith and kin who were killed during the genocidal warfare in May 2009 has also been extremely restricted to the Tamil people. Even if perceived as an enemy, war memories are to be respected, but the Sri Lankan government has engaged in a continuous act of destroying all the Martyrs cemeteries built throughout the NorthEast in memory of more than twenty thousand LTTE cadres.
It is noteworthy at this juncture that academic sources from within the Jaffna University premises have revealed on condition of anonymity to the JDS, “The soldiers were angry that students have somehow commemorated their heroes and lit the commemoration lamp despite many threats and intimidation. Today’s attack was nothing but a violent retaliation on the students for remembering their own sisters and brothers. This simply shows that we don’t have freedom even to cry silently in the NorthEast”.
In a fundamental sense, the reconciliation comes through respect and acknowledgement and not through denial and continuing terror atrocities. Committing massacres and denying the survivors their right to remember is simply an extention of the genocidal policy of the state. Therefore, the international community should act swiftly in order to prevent any further atrocities against the Tamil people in the island, while ensuring their right to peaceful assembly and protest.
A group called ‘Coalition for judicial Independence’ launched an online petition against the Impeachment motion.
We below publish the full text of the petition;
We request the Sri Lankan president and government to withdraw the false Impeachment motion against the Chief Justice.
A notice of an impeachment resolution signed by approximately 117 Hon members of parliament has been handed over to Hon the speakers, against the Hon Chief Justice of Sri Lanka.
Prior to this, there were a number of orders that had been delivered by the Supreme Court Presided by Hon the Chief Justice which may not have been to the liking of the Executive and/or the ruling party, culminating in the handing over of such resolution.
The Sovereignty of the people under the constitution of the democratic socialist republic of Sri Lanka in exercised and enjoyed, inter alia by;
a) Parliament consisting of elected representative of the people exercising legislative power,
b) His Excellency the president of the republic elected by the people exercising executive power, and
c) Court tribunals and institutions created and established or recognized by the constitution or judicial power of the people.
Thus you would see that there is, inter alia, separation of power between the executive legislature and the Judiciary, in order to ensure good governance.
We would also wish to place on reword that the standing orders (No 78A) which was brought into operation in the year 1984 does not seen to ensure a fair trial/ inquiry according to the accepted principles relating to four trial/inquiry to a person thought before a selected committee and it required a drastic amendment to the said provisions, if it is to ensure such a four trial/inquiry.
Further, an impeachment of Hon the Chief Justice at this stage, in the aforesaid backgrounds may have a negative effect on the independence of the Judiciary. This would well have a serious effect on the right of the citizens of this country.
In the aforesaid circumstances, we call upon you to sign with this e- petition to persuading the impeachment concerned to refrain from pursuing the impeachment motion.
Sweeping changes are taking place on Reid Avenue, Colombo. A shiny white colonial building looks set to be the city’s next favourite shopping precinct and hangout. A twin construction is being erected adjacently. As the Urban Development Authority under the purview of the Ministry of Defence continues beautifying the capital city, large and ancient trees that in living memory have always lined the street, are being felled to make way for paved walkways and cycle lanes.
The heartbreaking sight of enormous trees stumps soon to be removed by backhoes and large leafy branches piled up on the side of the road have sparked outrage amongst naturalists and in the tree-hugger community, but none of this is likely to deter the authorities. The tree-felling occurred suddenly and without warning – much like the other business of this Government – and those shade-givers will soon be relegated to being just another victim in the country’s march towards development. Like the weeping willow trees that lined Independence Avenue. Like the shanty dwellings that were razed in Slave Island and elsewhere, turning hundreds of people out of their homes overnight.
In so many ways, the arbitrary decisions to destroy the city’s green landmarks are symptomatic of an entirely different problem. The ruling administration is enjoying the perks of absolute power, in the face of a helpless citizenry, in the face of an increasingly apathetic and impotent opposition. Just ask the beleaguered Chief Justice, Shirani Bandaranayake.
CJ before PSC
Last Friday morning (23) clad in a simple white and black sari, Chief Justice Bandaranayake left the Superior Court complex at Hulftsdorp to appear before the Parliamentary Select Committee investigating the impeachment motion against her. The iconic scenes that greeted the Chief Justice on her way out of the courts struck a chord with the general public, not only because Bandaranayake is a seemingly innocent victim in a high-handed move by the incumbent regime – but because she is also a woman.
She elicited natural sympathy and responded to it with dignity, clasping the hands of junior lawyers who were visibly emotional outside the court house on Friday. At the entrance to Parliament, the Chief Justice also rolled down her car window, giving patiently waiting photojournalists a chance to click a few shots before she proceeded to answer her summons before the committee.
But before the Chief Justice could be granted an audience, the committee had matters pending before it. The previous afternoon, on Thursday (22) Supreme Court Justices Gamini Amaratunge, J. Sripavan and Priyasath Dep had issued an order having heard submissions from petitioners regarding the constitutionality of the PSC process to hear the impeachment.
The Supreme Court bench, in a cautiously worded order referring to the cooperation that should exist between different branches of Government – in this case the Legislature and the Judiciary – requested the 11 members of the PSC to stay proceedings and postpone their investigation into the motion of impeachment against Chief Justice Bandaranayake until after the Court had provided its interpretation of Articles 107 (2) and (3) of the Constitution in respect of Articles 3 and 4 (c).
The Supreme Court order (or recommendation) was being prepared late into the evening by the Court Registrar and was eventually couriered by special messenger to each of the respondents cited in the petitions pending before the court, including the 11 members of the PSC and the Speaker of Parliament the night before the Chief Justice was to answer her summons.
Dismissing SC recommendation
So the first order of business before the PSC on Friday morning was to determine whether or not it would abide by the Supreme Court’s request. While Select Committee proceedings are secret and a matter of privilege, the fact that Chief Justice Bandaranayake appeared before the Committee for nearly two hours later that day, meant that the Committee had decided to ignore the Supreme Court’s recommendation and proceed as scheduled. It is now learnt that the Committee’s opposition members put up stiff resistance to continuing with the proceedings in light of the Court recommendation.
Other information regarding the conduct of certain members of the PSC have come to light following Friday’s proceedings but cannot be made public under the rules of Parliamentary privilege. However several online publications that remain immune to privilege restrictions have made the information public. This includes the full text of the reply drafted by the Chief Justice’s lawyers to the 14 charges contained in the impeachment motion, that range from financial misconduct to conflict of interest issues, perceptions of bias and harassment of junior judges. Interestingly, the response from the Chief Justice’s lawyers also challenges the jurisdiction of the PSC because it amounts to an exercise of judicial power, vested with the courts of law.
The Chief Justice was kept waiting for about 45 minutes past the appointed time and then requested to enter Committee Room One where the Committee was sitting, without her lawyers. When she refused, the committee allowed her to bring the head of her legal team, President’s Counsel Romesh De Silva into the room with her. Subsequently, the other five members of her legal team were permitted entry. It bears mentioning that in the historic case, Chief Justice Bandaranayake is being represented by one of the country’s best legal minds, Romesh De Silva, PC and supported by Nalin Ladduwahetty, PC, and Attorneys at Law Saliya Peiris, Riyad Ameen, Sugath Caldera, and Eraj de Silva.
The legal team is being instructed by Neelakandan and Neelakandan attorneys at law, a highly respected legal firm established 50 years ago. Senior lawyers point out that it also bears noting that in a real court of law, the error-ridden impeachment motion would be summarily dismissed. Instead, the Committee has refused the Chief Justice the six weeks time her legal team requested to fully prepare her defence against the charges mounted against her and gave her instead one week – until 30 November to file additional submissions. The PSC will convene again on 4 December.
Meanwhile, an unceasing wave of litigation is being filed at the Court of Appeal and the Supreme Court challenging the legality of the impeachment process. Several of the petitions challenge the constitutionality of the Legislative committee set up to probe the impeachment because according to Article 4 (c) of the Constitution, judicial power is vested with the courts and according to Article 3 of the Constitution, sovereign power thus vested is inalienable or cannot be transferred and is protected by the supreme law of the land. Adding to the list of litigants and amidst fire about its relative inaction about the efforts to remove the country’s top judge, the Bar Association of Sri Lanka on Monday (26) filed a fundamental rights petition against the impeachment. The case was filed by BASL President and MP Wijedasa Rajapakse and three others and cites that the impeachment motion against the Chief Justice violated their fundamental rights since it may have an impact on the Judiciary decisions on the Government and the entire judicial system. The petitioners have also cited the presence of bias in the Parliamentary Select Committee process that probes the 14 counts of charges against the Chief Justice.
According to informed sources, the Bar is also mulling bringing charges of contempt against members of the PSC who are also attorneys-at-law and seeking their disbarment for disrespecting the dictates of the Supreme Court. Seven out of 11 members of the PSC are attorneys.
On Friday, concurrent to PSC proceedings in Parliament the Supreme Court bench comprising Justices Amaratunga, Sripavan and Dep gave leave to proceed in three Fundamental Rights petitions. While hearing submissions, Justice Amaratunga took a firm line with Deputy Solicitor General Shavindra Fernando, asking him to read out Standing Order 78A and Article 4 (c) of the Constitution, before disagreeing with him that 78A pertained to the business of Parliament and could not be encroached upon.
The fundamental argument being made by petitioners, many of whom are being represented by some of the country’s most erudite legal practitioners, is that (a) Article 4 (c) of the Constitution vests the judicial power of the people in the courts of law, (b) that Article 3 of the Constitution implies that these powers thus vested cannot be transferred and (c) Standing Order 78A is not a law and cannot therefore seek to accrue judicial power to a legislative committee and that such empowerment violates Article 4 (c) of the Constitution. The power to examine evidence and rule on guilt and innocence is the exercise of judicial power, several lawyers for the petitioners argue.
In their written submissions to the Supreme Court, to which court a writ of prohibition filed by Chandra Jayaratne in the Court of Appeal was referred for Constitutional interpretation, lawyers for the petitioner led by K. Kanag-Iswaran PC, argue that framers of the Constitution could not have envisioned or intended for Parliament to be the accuser, judge and executioner in the process of removing a justice of the superior courts.
President’s Counsel Kanag-Iswaran in his submissions also refers to the process for the removal of a President of the republic in which the Constitution makes abundantly clear that the process for investigation, hearing evidence and pronouncement of guilt or innocence is undertaken by the Supreme Court, an established judicial body.
The trouble with ’78
Considering the Constitutional quagmire Sri Lanka finds itself in today, there is a widespread perception that the 1978 Constitution has not gone into adequate detail with regard to the process that needs to be undertaken to remove a judge of the superior courts. On the other hand, the framers of the ’78 Constitution offer more clarity on the process to impeach the President, naturally because that process would have been of particular interest to Sri Lanka’s first Executive President, J.R. Jayewardene.
For instance, 1978 calls for only an absolute majority of 113 members to vote on the impeachment of a judge, while the impeachment of the President requires a two thirds majority in the House, a difficult ask under any circumstances preceding the crossover ruling provided by former Chief Justice Sarath N. Silva. Safeguards are therefore in place to make the impeachment of a president incredibly difficult, but the Constitution does not offer the same protection for a judge of the superior courts due to a lack of clarity in the provisions pertaining to process for the removal of a judge as set out in Article 107 (2) and (3). Under the circumstances, a judge of the superior court against whom a motion of impeachment is moved, has no redress outside the Parliament mechanism set up by Standing Order 78A which was hastily adopted in 1984.
Legal experts are arguing that the PSC set up by 78A goes against all laws of natural justice, because the majority in the committee is held by members of the Government that brought the motion of impeachment against the Chief Justice. Under the circumstances, it is virtually impossible to believe that the Chief Justice will be given a fair trial, the right of every citizen of the Republic of Sri Lanka.
As Kanag-Iswaran points out in his written submission to the Supreme Court, Article 38 (2) of the Constitution provides for a judicial undertaking on the charges levelled in an impeachment motion against the President by the Supreme Court, once a resolution of impeachment is passed by two thirds of the members of the House. The President or his legal representative has the right to appear and be heard before the Supreme Court after which the Court reports its determination to Parliament. If the Supreme Court finds the president guilty of the charges levelled or incapable of functioning in the office, the resolution must be passed once again by a two thirds majority of the House.
The phrasing of the provisions relating to presidential impeachment, some lawyers argue, imply that if Supreme Court returns the determination of not-guilty, the impeachment matter ends there. The most important point, in terms of the challenges to the impeachment process against the Chief Justice is that the charges are judicially examined in the case of a presidential impeachment, by a legitimately constituted court of law.
Under the circumstances, in their order issued on Thursday, recommending the stay on PSC proceedings, the Supreme Court’s exercise of restraint was particularly important. Had the Justices issued a stay order on the PSC instead, it would have propelled the Judiciary and the Legislature headlong into a constitutional deadlock that resulted in the proroguing of Parliament after a similar ruling by the Highest Court in 2001 was challenged and overruled by Speaker Anura Bandaranaike.
Furthermore, noises emanating from opposition quarters make it clear that in the event that the Supreme Court attempts to stay the business of Parliament, the UNP led by its Leader Ranil Wickremesinghe will fully back the Government to assert Parliament’s supremacy over the courts. Therefore many activists for the Chief Justice’s cause, say such a move could prove devastating in the larger scheme of things.
In any case, bearing in mind the necessity to keep all organs of the state functioning harmoniously, the Bench decided to go the gentler route, of making a civilised request of legislators in the PSC who are all bound by an oath to uphold the Constitution of Sri Lanka. Government legislators are warning the Supreme Court to refrain from challenging the Parliament’s supremacy over the courts, but legal analysts point to the provisions to impeach the President as testament that the Constitution’s framers did not believe that Parliament was beyond judicial reach when it pertains to the exercise of judicial power – inquiry, examination of evidence and pronouncement of guilt, etc.
The fact that Supreme Court must deliver a guilty verdict in order for Parliament to proceed with impeaching a president, means that in judicial matters the Legislature must submit to the Judiciary, although this is not to say that either organ of the State is supreme to the other, but that the Constitution clearly vests specific powers with specific branches of the State and those powers are simply non-transferrable. But even as legal challenges to the impeachment mount, legal experts are warning of an impending Constitutional deadlock with the Government determined to steamroll their way through this impeachment process, irrespective of how the courts of law feel about it.
In fact the regime is intent on going through with the process irrespective of the feelings of much of its House membership which is opposed to the impeachment against the Chief Justice. Several SLFP seniors are deeply perturbed by the Government’s intent to forge ahead amidst mounting domestic and international pressure that is bound to be deeply damaging to the Sri Lankan State in the long run.
On the eve of the Chief Justice’s appearance before the PSC, a senior President’s Counsel reportedly met the Chief Justice to offer her ‘all support’. The senior lawyer is the father of a Deputy Minister in the UPFA Government, also a lawyer, who is playing a role in the impeachment process on behalf of the Government. The website Colombo Telegraph reports that this senior lawyer visited Chief Justice Bandaranayake at 11 a.m. on Thursday (22). His son is reportedly perturbed about the perception that he has a hand in the impeachment process. Interestingly, when the UNP brought a motion of impeachment against Chief JusticeSarath N. Silva, the senior lawyer in question along with three other lawyers petitioned the Supreme Court on behalf of the Chandrika Kumaratunga led People’s Alliance for a stay order against Anura Bandaranaikeappointing a select committee to probe the motion. The stay order was granted by the Court but overruled by Speaker Bandaranaike.
Opposition to impeachment
Forces against the impeachment continue to gather. Yesterday the Chief Prelates of the three main Buddhist monastic orders issued a second letter to President Mahinda Rajapaksa urging him to stay the impeachment process. The Chief Prelates issued a similar missive to the President several weeks ago which has gone largely ignored, other than for a cursory response to the chief monks, saying “attention had been drawn to the contents of their letter.”
“The majority of the people think that the impeachment motion against the Chief Justice will lead to disenchantment about all branches of the Judiciary. Therefore the Government should think patiently about the ill-effect of the prevailing attempt of the Legislature, Executive and the Judiciary to go above the other and take steps to safeguard the independence of the Judiciary and solidify the feelings of justice in the minds of the people. By the display of just behaviour of the Government it will definitely generate a feeling of satisfaction in the minds of the people. It is possible to get humans to respect law and traditions by acting according to human ethics without scorn. Therefore to avoid the breakdown in law and deterioration of society as a result of the impeachment motion we kindly request that the impeachment motion be withdrawn, taking into consideration the recent recommendation of the Supreme Court. This will be beneficial to the country,” the prelates said in their letter to the President.
Former UNP Deputy Leader and MP Karu Jayasuriya is believed to have been instrumental in spurring the prelates into action once more, even as the impeachment saga intensifies. Jayasuriya enjoys significant support from the country’s clergy, having maintained a pluralist political outlook whilst maintaining his ties to Buddhism according to which philosophy the senior politician says he tries to live his life.
Having swept to power on the back of support by the Sinhala Buddhist majority and commanding the alliance of right wingers within its coalition, one would think that the appeals from the monks would sway the Rajapaksa Administration somewhat. But when it comes to this impeachment process, the Government prefers to be done with it as soon as possible and no matter how many obstacles stand in their way, whether they don saffron robes or not.
Government insiders and Opposition Parliamentarians claim that the verdict on the motion of impeachment is already being drafted by senior Government Ministers and former AGs based on the Chief Justice’s reply to the charges and the administration is intent on concluding PSC proceedings by 8 December if possible. In every respect however, even the ruling regime realises it may have bitten off more than it can chew. According to senior UPFA sources, the Government was certain that the pressure brought to bear upon her by the impeachment motion would force Chief Justice Bandaranayake to step down, clearing the way for the appointment of a CJ more to the regime’s taste. Her decision to fight the impeachment and the frivolity of the charges contained in the tabled resolution however, have posed a conundrum for the regime which cannot backtrack on its bid to impeach Bandaranayake, but also faces serious issues of de-legitimacy if the flawed process goes through.
Even if Chief Justice Bandaranayake loses this battle, and that is the likely outcome, she will go down in history as being a person who stood up to the Executive and refused to go out without a fight. Either way, Friday’s iconic scenes as the Chief Justice made her way to Parliament to face her accusers proved that the net result of the Government’s move to remove the country’s top judge was something they never wanted. It has turned Dr. Shirani Bandaranayake, Sri Lanka’s first female Chief Justice, into an unlikely heroine.
With the impeachment motion against the Chief Justice, some of the old debates have surfaced in new form. One of which is the question of supremacy of Parliament. This was a matter of contention in early 1970s during the debates over the 1972 constitution which somewhat died down with the advent of the executive presidential system; JR Jayewardene claiming that he could do anything other than making a ‘man a woman or a woman a man.’ This adage was traditionally attributed to the British Parliament, which was claimed to be supreme. JR kept undated letters of resignation from all MPs of his party to ‘prove or disprove’ that ‘Parliament is supreme.’
When the first press announcement was made about the impeachment motion, the government spokesman, Keheliya Rambukwella, claimed that the Chief Justice has violated the supremacy of Parliament (Combo Page, 1 November 2012). But it was not a charge in the impeachment motion. By that time many MPs in the ruling coalition had surrendered their signatures to a blank paper to be attached to the impeachment motion, reminding the undated resignation letters of JR Jayewardene’s time! What they verbally said however was that the judiciary should not object to whatever they want to do in Parliament whether constitutional or not apparently on the instructions of the President. During the Divineguma hearing before the Supreme Court, some argued that the Bill is not unconstitutional because the Parliament is supreme.
The reason for this argument is one phrase in Article 4 (c) of the Constitution which says the following:
“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.”
The phrase “the judicial power of the people shall be exercised by Parliament through courts…” cannot however be taken in isolation without properly reading the conditional clause “created and established, or recognized, by the Constitution, or created and established by law…” The intermediation of Parliament between the people and the judiciary is conditioned by the Constitution and the Constitution is supreme. If there is any judicial power directly to the Parliament that is in respect of “matters relating to the privileges, immunities and powers of Parliament and of its Members.”
It is understandable that the parliamentarians wish to ‘feel and claim’ that they are part of a supreme body, but constitutionally speaking this is not the case in Sri Lanka. It is only good for their ego. Even people might be delighted to see if the parliamentarians could assert their dignity and pride against the Executive President, under whose powers the Parliament has simply become a rubber stamp or something worse. If they assert, then they may call it ‘supreme.’ But this is not the case at present. Instead they try to assert their illusory supremacy against the Supreme Court, which in fact they should respect and safeguard. This is the tragedy of the political situation in Sri Lanka today. They are barking up the wrong tree.
The Supreme Court is only doing a professional job independently by interpreting the constitutionality of the bills. They should not be dragged into politics by all parties, those who are for or against the impeachment.
Talking about ‘supremacy’ of anything is only illusory or relative these days. This applies to the concept of ‘sovereignty’ as well, except in its ultimate sense in respect of the ‘people’s sovereignty’ who can legitimately overturn governments and reconstitute constitutions through genuine representatives. Otherwise all are dependent on each other and the balance between the ‘national and the international’ or the balance between ‘different branches of government’ are common everywhere. That is in respect of politics and society.
But in respect of law, some still wants to refer to a specific legal source and that his how the British concept of the supremacy of parliament emerged. Parliament here however did not mean only the House of Commons. AV Dicey is one of the prominent authorities on the subject. In his Introduction to the Study of the law of the Constitution (1885) he said “Parliament means The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the ‘King in Parliament’, and constitute Parliament.”
He further said “The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.”
In the above statement, ‘no person or body’ at one point meant mainly the Church or the Pope. We also have to keep in mind that the House of Lords was Britain’s ‘Supreme Court’ before 2009. Therefore, the ‘Supreme Court’ was included in the concept of supremacy.
Leaving aside that legal concept, there is no political reality in the concept of the supremacy of Parliament in the United Kingdom today. Four main reasons can be attributed: (1) the devolution of power to the Scottish Parliament and the Welsh Assembly, (2) the Human rights Act of 1998, (3) the UK’s entry to the European Union in 1972 and (4) the decision to establish a Supreme Court in 2009.
Supremacy in Finland
In the case of republics like Sri Lanka, the general concept of the source of law is not Parliament but the people themselves. Jayampathy Wickremaratne has very clearly explained this to The Island newspaper giving an interview to Lynn Ockersz (26 November 2012). That is why the American Constitution begins by saying “We the People of the United States.” There the separation powers are almost a sine qua non. It was rather dangerous to handover sovereignty of the people to one single body.
But there were countries, in the socialist block, which believed that the people’s sovereignty can be transferred into a legislature that would constitute supreme; and no law court or any such institution could curtail or check its legislative functions. Most of these countries now have vanished, except the caricatures like North Korea. Almost all of these countries were one party States. The theory of this ‘supremacy’ in fact was a justification for the authoritarian one party rule.
There were very few other countries which were not directly in the socialist block but nevertheless shared a similar concept of legislative supremacy. Sri Lanka in 1972-77 and Finland even today are examples. Their concept was or is a combination of some sort of socialism and utilitarian thinking. Even the liberal utilitarian thinkers (i.e. Jeremy Bentham) strongly believed in strong horizontal democracy for progressive legislative purposes. There is some resonance of this thinking even today among those who oppose the Supreme Court ruling on the Divineguma Bill and wanted to impeach the Chief Justice for that crime. But this is only a mistaken conception.
Neither in the present Finish Constitution (2000) nor in the First Republican Constitution in Sri Lanka (1972) that a blatant concept of supremacy was enshrined as asked by the government aligned law makers today in Sri Lanka. The reason why the Finish Parliament is called supreme is the following clause in Section 2 of the Constitution.
“The sovereign powers of the State in Finland are vested in the people, who are represented by the Parliament.”
Based on that premise, the Supreme Court in Finland does not review the constitutionality of a bill prior to enactment although the judicial system headed by the Supreme Court has considerable power on rule of law and implementation of law based on separation of powers in the Constitution. The review of constitutionality of a bill is vested within the Parliament itself. There is a Constitutional Law Committee of Parliament to review all bills and recommend changes, if needed. They do it fairly impartially. They do not allow normal legislation to go through in contravening the Constitution through a special majority like in Sri Lanka. Most interestingly, the Finish courts do have a form of ‘post-judicial review’ to the extent that if there is an inconsistency between a normal law and the Constitution then they have power to uphold the Constitution. In Finland changing the Constitution is also not an easy process.
Now our law makers should not jump on the Finish example to uphold the supremacy of Parliament and reject the directives or ‘recommendations’ of the Supreme Court. Sri Lanka’s present Constitution is different. I remember the former President of Finland (1994-2000), Martti Ahtisaari, saying at a close meeting in Colombo, organized by Lakshman Kadirgamar, somewhere in 2003 that the Finish Constitution is still under scrutiny and they may go for more separation of power through experience. He also explained that the supremacy of Parliament was instituted to move away from the previous Presidential system where the President had veto powers on legislation. As far as I understand, Martti Ahtisaari played a major role in this transition.
1972 and 1978 Constitutions
One may argue that something closer to the supremacy of Parliament was in the First Republication Constitution of Sri Lanka in 1972. But it is not the case today. Articles 3 and 4 of the 1972 Constitution stated “In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable. The Sovereignty of the People is exercised through a National State Assembly of elected representatives of the People.” (my emphasis).
The comparable Article 3 of the 1978 or the present Constitution says in contrast the following.
“In the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”
It is very clear that the second proposition which was there in the 1972 Constitution that the ‘sovereignty of the people is exercised through National State Assembly/Parliament’ or something similar is not there. Instead, sovereignty is defined to include ‘fundamental rights and the franchise’ in addition to the ‘powers of government.’ It has to be added that the Supreme Court has constitutional power in safeguarding the fundamental rights of the people which is a clear part of sovereignty.
In terms of the three branches of the government or how the delegated sovereign powers are exercised, there are comparable articles in the 1972 Constitution and the present (1978). In the 1972 Constitution, it is Article 5. In the present Constitution it is Article 4. Article 5 of the 1972 Constitution begins by saying:
“The National State Assembly is the supreme instrument of State power of the Republic.”
It is very clearly stated that the ‘National State Assembly is the supreme instrument of State power.” In contrast, Article 4 of the present Constitution simply begins by saying
“The Sovereignty of the People shall be exercised and enjoyed in the following manner.”
I can go on and on giving more examples but simply there is no conception of the supremacy of Parliament or anything similar in the present Constitution. That is what matters to the present debate. Of course some of the parliamentarians of the UPFA may say that they uphold the ideology of the 1972 Constitution and not the present. That is well and good but first they should respect the present Constitution and work within its four corners.
Conclusion: Supremacy of the Constitution
In respect of any supremacy that we can think of in politics, it is the Constitution that is supreme. The rule of law and constitutionalism are the main derivatives of that supremacy. Supremacy of the Constitution in turn is a reflection of the sovereignty of the people, their powers of government, fundamental rights and the franchise that are mentioned in the Constitution. The ‘powers of government’ are not the powers of corrupt politicians but the powers of the people. They include not only the powers of the Centre but also the Local Government and the Provincial Councils.
Even in ancient times there were two types of law that were recognized: (1) Dhamma Thath or laws ofDhamma and (2) Yasa Thath or laws of the King. It was believed, although not always practiced, that the laws of the King should be consistent with the laws of Dhamma. That is how the moral legitimacy derived for government. Dhamma Asoka was one king who tried to practice his laws according to the higher laws ofDhamma.
Supremacy of the Constitution in Sri Lanka is evident from many aspects of the Constitution; first and foremost from the strict provisions for its amendment and repeal. The Constitution is subordinate only to the sovereignty of the people, ultimately through referendum. The legal and formal interpretation of the Constitution is assigned only to the Supreme Court and that is why the SC should be considered in utmost respect as a collective and an institution. Their interpretations are binding on the members of Parliament and the Parliament itself. People are well aware of the character and calibre of many politicians in the country today, particularly of the governing party. They have simply become corrupt through money and power. The backing of the army should not be considered as legitimacy for their illegitimate behaviour or arrogant disregard of the Constitution.
All members of Parliament have already taken an oath to uphold the Constitution. This is a vindication of the supremacy of the Constitution. According to Article 63, the oath is as follows:
“I ……………. do solemnly declare and affirm /swear that I will uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.”
Politically speaking, however, the people may appreciate the Parliament asserting some sort of ‘supremacy’ against the Executive; a supremacy on condition and with checks and balances. That should be against the Executive and not against the Judiciary. The Judiciary is a professional body and should be independent from all politics. This assertion against the Executive should lead to a change in the present Constitution from the executive presidential system to a parliamentary form of government in the future.
The need for this assertion today primarily derives because of family rule within the Executive; the President holding almost absolute executive powers; one brother controlling the armed forces and now also the police; another brother is being the most powerful Minister in Parliament; and yet another brother trying to control Parliament being the Speaker of Parliament.
If there had been many family dynasties in history, the present caricature in Sri Lanka might be the worst and the vicious kind clothed under a ‘democratic garb.’ This is utterly shameful by all ethical norms and standards.
The future of a judge who would have been the longest serving Chief Justiceof the nation is grim in Sri Lanka. Widely alleged as politically motivated, the current move by the President to impeach her gives an opportunity to analyze the soundness of constitutional principles relating to judiciary in general and impeachment of judges in particular.
The bedrock on which the judiciary in Sri Lanka is built like most constitutional democracies is found in the Constitution. Unlike many constitutions, it has detailed provisions spanning from 107 to 147 with myriad of amendments relating to judiciary.
The primary concern in the present context is the competence of the relevant constitutional provisions to safeguard the interests of the institution of judiciary in a democracy. The most fundamental value would be independence of judiciary. The independence is not only an end in itself but is also a means. It is in the independence of the institution, the present and future of a democracy rests. Independence of judiciary is a prerequisite of a sound legal and governance system. The provisions relating to appointment, tenure, conditions of service and removal are the bulwarks of judicial independence. Provisions of Sri Lankan constitution are an anathema to the claim of independence.
In the context of the current attempt to impeach a judge, an assessment of the provisions and procedure of removal is taken up to test on the claim of judicial independence.
Removal of judge in Sri Lanka as per the constitutional scheme is virtually in the hands of the executive. This cuts at the very root of judicial independence. Though the legislature is involved, the requirement of the simple majority makes the ultimate decision at the sweet will of any government, which invariably will have majority in the parliament. Article 107 of the constitution of Sri Lanka provides that the President may remove a judge on proved misbehavior and incapacity. The process is established by the standing orders (see, Standing Orders 78A). The impeachment process is kick started by the parliamentarians with a notice of resolution signed by one third of the members. After the lapse of one month, the speaker shall appoint a select committee of not less than eleven members who investigates and submits a report within a stipulated timeframe, which is one month from the commencement of the sitting of the committee. On the report of the select committee a resolution shall be passed by the parliament and the same shall be presented to the President for the action of removal. In this scheme of events, the judiciary is entirely under the benignancy of the government in power. It therefore remains as the affair of the government in power.
The breaches of independence vis-à-vis removal in the above scheme could be best understood in contrast with the structure provided by India, a neighbouring nation. Removal of a judge in India is commenced on the recommendation by the judiciary. The proceedings are detailed in the Judges Inquiry Act of 1968. It has elaborate provisions about the process. The enquiry is conducted by a committee of three; two from judiciary and one a distinguished jurists. The report of the committee is so decisive that if it does not find alleged misbehavior or incapacity, the proceedings are dropped. Only on an adverse finding that there will be any further proceedings in the House and the same shall be discussion and adoption of the motion to impeach with special majority. This process if nothing else does not leave the judges at the mercy of the government in power.
This limited comparative exercise brings out the inadequacies of the Sri Lankan scheme of removal of a judge, which is a heavy setback on independence of the institution. Judicial independence has been accepted as a coveted virtue world over. The lack of it is a severe dent on the rule of law record, human rights protection and liberty quotient of the citizen in its relation to its own government.
* Jasmine Joseph is a professor of law at the National University of Juridical Sciences, India.