By Elmore Perera –

Elmore Perera

Prior to the autochthonous Constitution of 1972, under Dominion Status granted in 1948 Parliament enjoyed a very limited supremacy. The Monarch of the UK was considered Sovereign. Parliament was vested with the power to make laws for the peace, order and good government of the Island. Executive power vested in Her Majesty was exercised by the Governor General who was required to exercise such powers in accordance with Constitutional conventions of the UK. In effect Executive powers were exercised by the Cabinet of Ministers headed by the Prime Minister. Parliament enjoyed a limited supremacy.

In 1972, the Republican Constitution provided that Sovereignty was in the people, is inalienable and shall be exercised through a National State Assembly. Established as the Supreme Instrument of State Power, the National State Assembly or Parliament was mandated to exercise:

(i)      Its legislative power directly,

(ii)      Executive power through the President and Cabinet of Ministers, and

(iii)    Judicial power of the people through Courts and other institutions created by law except in the case of matters relating to its powers and privileges, wherein  the National State Assembly may exercise such powers directly.

This Constitution also established a non-executive/ceremonial President as Head of State, Head of the Executive, Commander-in-Chief of the armed forces with the power to declare war and peace, providing clearly that he shall act always on the advice of the Prime Minister or the Cabinet Minister to whom the Prime Minister may have assigned such functions. The National State Assembly, in fact enjoyed “absolute Supremacy”.

On 20^th October 1977, the 2^nd  Amendment to the 1972 Constitution effected the transition to the Presidential form of government and established the National State Assembly and the President as the Supreme instruments of State power, repealed the requirement that the President shall act on the advice of the Prime Minister or Minister and elevated the President to be the sole and untrammelled repository of Executive Power.

The 1978 Constitution, adopted on 31^st August 1978, incorporated the wording of the 2^nd Amendment to the 1972 Constitution, institutionalised the removal of the requirements in the 1946 and 1972 Constitutions for the Head of State to act on the advice of the Cabinet of Ministers or the Minister and consolidated this power in the President as the sole repository of Executive power and the defence of Sri Lanka. Purportedly to strike a balance, Article 42 provided the fiction that “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law.”  This was a mere illusion in view of the fact that the President was empowered to assign and withdraw Executive power to the “legislators elected by the people”, at his will and pleasure and thereby exercised a stranglehold on the legislature. Effectively reduced to a mere rubber stamp of the Executive, Parliament could not stake any claim to a mythical “supremacy.” The Preamble to the 1978 Constitution, significantly gives particular emphasis to Justice and the independence of the Judiciary. Article 4(c) has brought about a functional separation of Judicial power from (the amalgamated) Executive and Legislative powers. The domain of Judicial power of the people (except for the limited area specifically assigned to Parliament) has been entrusted solely and exclusively to the Judiciary, to be exercised strictly upholding the solemnity and sanctity of the Rule of Law.

Whatever motivated the freely elected representatives of the people of Sri Lanka, or however ill-advised these provisions may be, this 1978 Constitution is still the Supreme Law of the land and unless and until lawfully amended is binding on all Sri Lankans. Observance of these provisions has necessarily to be preceded by a reading, understanding and interpretation of the relevant provisions. All who do so are not likely to agree on the interpretation of these several provisions. As such disagreement cannot be permitted to lead to endless arguments, fisticuffs, murders or even politically motivated assassinations, several safeguards have been provided in this admittedly flawed Constitution:

(i)        Articles 120 and 121 provide for the sole and exclusive jurisdiction of the Supreme Court to determine any question as to whether any Bill tabled in Parliament or any provision thereof, is inconsistent with the Constitution.

(ii)      Article 125(1) of the Constitution provides that “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution and accordingly whenever any such question arises in the course of any proceedings in any court or tribunal or other institution (certainly including the Parliament) empowered by law to administer justice or to exercise judicial or quasi judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination (within two months from the date of reference) of such question and make any consequential order as the circumstances of the case may require.

(iii)    Article 129 provides that the President or Speaker may invoke the Consultative Jurisdiction of the Supreme Court to obtain the authoritative opinion or determination of not less than 5 judges of the Supreme Court including the Chief Justice, in respect of a matter of public importance or of any allegation that the President is permanently incapable of carrying out his duties, respectively.

On 28^th September 2012, the OPA called on the President to refrain from undermining the Independence of the Judiciary. However the Executive and the Legislature have moved swiftly thereafter, to impeach the Chief Justice. Many Parliamentarians and a wide range of Professionals supported such moves, arguing that Parliament was Supreme.

In the Public Interest, the Jurisdiction of the Court of Appeal  was invoked on 19^th November, 2012 seeking a Writ Prohibiting the Parliamentary Select Committee from continuing to inquire into allegations of misbehaviour by the Chief Justice, in the exercise of Judicial power, purportedly vested in them by Standing Order 78A in violation of Article 4(c) of the Constitution.

The Court of Appeal referred the question of whether Standing Order 78A was violative of Article 4(c) of the Constitution, or not, to the Supreme Court for an authoritative interpretation in terms of Article 125(1) of the Constitution. Having considered the submissions, on 22^nd November 2012, out of mutual respect and trust between Parliament and the Judiciary, the Supreme Court recommended to the members of the PSC that they defer the inquiry until the Supreme Court determined the question of law interpreting Article 107(3) of the Constitution referred to it by the Court of Appeal.

On the 23^rd of November, 2012, the members of the PSC rejected this request of the Supreme Court and proceeded with the inquiry as the CJ had presented herself for same.

On the 29^th of November, 2012 the crisis between the Legislature and the Judiciary took a dramatic turn when the Speaker, claiming to act in terms of Article 107 and the ruling of Speaker Anura Bandaranaike on 20^th June 2001, (which ruling, according to the Speaker, had upheld “Legislative Supremacy”), declared that he deems Court notices irrelevant and that notices served on him and members of the PSC appointed by him are a nullity and entail no legal consequences, and that his ruling as Speaker would apply to any similar purported Notice, order or determination in respect of the proceedings of the PSC which will continue solely and exclusively under the authority of Parliament. Senior Vice-President of the SLFP and Leader of the House, Nimal Siripala de Silva, Attorney-at-Law, declared that “Parliament  was Supreme and Court cannot challenge the impeachment motion.”  The Leader of the UNP and the Opposition, Ranil Wickremasinghe Attorney-at-Law said that “No one can issue notices on the Speaker, or the PSC.”

In spite of being treated shabbily on the 23^rd November, the CJ submitted a statement of Defence, on 30^th November and was present on 4^th December as requested. To her request that the list of witnesses and the documents to be used against her be furnished to her, she was requested to be present on 6^th December at 2.30 p.m. However, at about 4.30 p.m. on 6^th December 2012 she was informed that there would be no oral evidence led against her, furnished with about 80 documents consisting of over 1000 pages, and told that the inquiry would commence on the afternoon of the next day. Protests that more time was necessary to even read the documents resulted in her being abused, particularly by certain members of the Parliamentary Select Committee, in choice, unprintable language, that is sadly, now accepted as “Parliamentary Language”. At about 5.30 p.m. Brave heart CJ was intimidated into withdrawing from further proceedings of this PSC.

When their requests re the trial were rejected by the Chairman of the PSC and by the Speaker himself, the 4 opposition members of the PSC withdrew from the proceedings in the afternoon of 7^th December 2012. Thereafter, the seven Government members of the PSC proceeded to record the statements of 15 witnesses and compiled a 30-page report by 7.30 a.m.  on 8^th December 2012, presented it first at 8.30 a.m. to Basil Rajapaksa for approval and thereafter to the Speaker, who announced in Parliament that Brave heart had been found guilty of 3 charges.

On 11^th December 2012 Judge Weeramantry felt compelled to make some observations in regard to the crisis facing the Sri Lankan Judiciary which had been highly esteemed both domestically and internationally. He outlined certain unassailable propositions that require observance and protection and stated that “where the issues involved are as grave as misconduct of the Chief Justice of a country, these general principles of law need to be applied with the greatest strictness that is possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.”

On 19^th December, 2012 the Chief Justice filed an application in the Court of Appeal contending that there is no evidence to conclude that charges 1, 4, and 5 are proved, challenging the PSC findings against her and seeking a Writ quashing these findings and the decision.

On 21^st December 2012 the Court of Appeal stated that a prima facie case had been made out and issued notice on the Speaker and the members of the PSC returnable on 3^rd January, 2013. Court also expressed the view that any steps taken in furtherance of the findings and/or decision of the 7 members of the PSC would be void if, after hearing, Court issues a Writ of Certiorari to quash the said findings and therefore the relevant authorities should advise themselves not to act in derogation of the rights of the Chief Justice until the application is heard and concluded, since any decision disregarding these proceedings to alter the status quo, may lead to a chaotic situation. Referring to the Speaker’s aforementioned ruling on 29^th November, 2012, (that the purported Notice issued to him and to the members of the PSC are a nullity and entail no legal consequences, and that his ruling as Speaker would apply to any similar purported Notice, order or determination in respect of the proceedings of the PSC which will continue solely and exclusively under the authority of Parliament) Court recorded that the order to issue Notice was a legal obligation of the Court to afford the Respondents an opportunity of being heard, in keeping with the concept of audi alteram partem.

On 31^st December 2012, at a news briefing Attorney-at-Law, Cabinet Minister and member of the PSC Susil Premajayantha said that “the Impeachment inquiry is not a legal probe but a Legislative process” and therefore “proving of charges is not necessary”. This apparently reflects the view of the President and his numerous “advisors”, and most MPs and the vigilant state media. If that were so, all that was necessary was for the Speaker to accept the motion without any scrutiny, place it on the Order paper, fix an early date in consultation with the party leaders, take the tabled charges as read and submit same to the elected representatives of the Sovereign People for a vote.

On 2^nd January, addressing the media at the Mahaveli Centre Senior Attorney-at-Law and Leader of the House Nimal Siripala de Silva said that the government was not overtly worried about criticism of the ongoing impeachment process by the international community, ruled out the possibility of proroguing Parliament to pave the way for a fresh inquiry and asserted that the government would not, under any circumstances, reverse the impeachment process. The Deputy Speaker, an Attorney-at-Law himself, has warned that any PSC Member who responds to the notice issued by the Court of Appeal will face dire consequences.

To-day, (3^rd January 2013) the Court of Appeal has read out the interpretation of the Supreme Court that “The PSC has no legal power or authority to find a Judge guilty because Standing Order 78A is not a law.”

The Chief Government Whip, Dinesh Gunawardena is older and wiser now than he was in 1984 when his then tender mind compelled him, in association with Anura Bandaranaike and Sarath Muttetuwegama to feel strongly that:

(i)        the President should refer Standing Order 78A to the Supreme Court for an “authoritative opinion” thereon,

(ii)      the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose, and

(iii)    Standing Order 78A should be amended accordingly.

When this Chief Government Whip cracks the whip, the highly disciplined government MPs– including those who obediently signed a charge sheet which had no charges thereon – will, with undisguised glee, vote overwhelmingly in support of impeachment, irrespective of whether they even know what the charges are. They will, undoubtedly, commend the 7 eminent government members of the PSC (including Susil Premajayantha and Nimal Siripala de Silva aforementioned) for the Herculean achievement of summoning and recording the evidence of 15 witnesses, coming to a judicial finding of guilt recorded in a 30-page finding, and compiling a  1575 page report, all in the incredibly short period of 17 hours, without any assistance from the Chief Justice and her lawyers or even the four Opposition Members of their Committee, who walked out in protest at the patently unreasonable procedure adopted.

An unprecedented Constitutional crisis and the very real prospect of a chaotic situation are imminent.

The President, being a senior Attorney-at-Law himself, well knows that save and except for a brief period between 1972 and 1977 when the National State Assembly enjoyed some supremacy, Parliament has never enjoyed the kind of supremacy that is now being vociferously claimed, as now confirmed unequivocally by the Supreme Court’s determination aforementioned.

In these present circumstances this ominous, accelerating race towards absolute anarchy and destruction can only be effectively reversed by a display of exemplary statesmanship by the President and therefore the OPA earnestly urges the President, in the long term interests of our motherland, to take timely steps to avoid a catastrophe by suspending the process of impeachment already in place, and permitting saner counsel to prevail.

*Elmore Perera, Attorney-at-Law, Past President OPA