By Ananda Markalanda –
Ananda Markalanda
The second case filed by public interest attorney Naganada Kodituwakku is an eye-opener. The Supreme Court has a special critical role to play in a democracy and we claim Sri Lanka a democracy. The Constitution gives it the power to check, if necessary, the actions of the President and House.
It can tell a President that his actions are not allowed by the Constitution. It can tell the house that a law it passed violated the Constitution and is, therefore, no longer a law. It can also tell the government of that one of its laws breaks a rule in the Constitution.
The appointment of defeated candidates made through the National List provision of the Constitution is unconstitutional and can declare void all such unlawful appointments made through the National list. Here the constitutional relief sought by the people was not recognized giving more power to the President merely on a request.
The Supreme Court is the final judge in all cases involving laws, and the highest law of all — the Constitution. Although it is the courts’ duty to say what the law is, the other branches of government have an independent obligation to uphold the Constitution.
How important is the Supreme Court to the advancement of individual rights? Very important, many would contend, when the people whose rights are being compromised to advance the political power, the independence of the Supreme Court has suffered. Our constitutional democracy rests, after all, on the notion that people disdained and disfavored by the majority and elected representatives can still find justice before an independent Supreme Court. The current Supreme Court in general has failed in maintaining this trust. The judicial role in protecting individual rights and limiting the other branches of. where government is allowed to exceed the limits of its expressly delegated trust, it loses it’s recognition and respect. This is what happened in this case as pointed by attorney Kodituwakku.
Presidents come and go but the Supreme courts will go on protecting the rights of individual against the oppressive power of the State,
The judges should not insult their own institution’s integrity.
The cornerstone of the system of checks and balances is central to the governance. When the judges are placed on perks after retirement, judicial independence suffers because judges subject to the influence of the legislative or executive branches will be less likely to decide cases in an impartial manner protecting the rights of citizens in constitution and its review matters because, in addition to trying to influence judges, the legislative or executive branches may seek to pass laws or implement policies that are designed to benefit themselves and/or their associates.
The glowing example is Chief Justice Mohan Pieris, as the Prime Minister pronounced in a statement made in Parliament, offered to give any judgment in favor of the government and not to remove him as Chief Justice. There are ample other items of evidence to prove this malpractice in Supreme Court.
thrishu / October 18, 2015
3-goni billas. No, don’t trust them at all
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vas / October 18, 2015
Since independence we had a lawyer as minister of justice. The ordinary citizen is blatantly abused by the lawyers , and justice takes such a long time sometimes a life time. It is time the tradition of appointing a lawyer as minister of justice should change. The Lawyer ministers past and present has not brought any redress to the harassed citizen. The law that should bring justice and FairPlay now is a night mare to the ordinary law abiding citizen. President pease take note
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Ponkoh Sivakumaran / October 18, 2015
It is funny to see these old men in their wigs. The Indian judges have dispensed with them. Such pomp hiding small brains which will sweat out in the heat of Colombo under the wigs. We have had a parade of legal eunuchs sitting on the Supreme Court, acting as the henchmen of the powers that be because they were appointed to follow their political masters. It is not just mohan peiris but his predecessors were of the same ilk. From Basnayake onwards the Chief Justices and other judges were suspect because they were no appointed on the basis of merit, with a few exceptions. The appointees owed their positions to politicians to whom they then owed a bondage. Justice is a joke in Sri Lanka. The Indian Supreme Court has become a much admired court in that country, exercising powers of revision and entertaining public interest litigation. The Sri Lankan Supreme Court is looked upon as a suspect court that gives judgments on the basis of racist and other prejudice.
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Jagath Fernando / October 18, 2015
Lets be honest.
The ideal situation would have been for all SC judges to step down on 8 Jan so that we old have had a new beginning.
Unfortunately SC judges are not keen to give up the perks.
Imagine lawyers who were hanging around the corridors at Temple Trees now sitting on the SC bench. Don’t be too surprised if they even end up as CJs in time to come.
We are a corrupt society and we get what we deserve.
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R K Raghavan / October 19, 2015
‘Are Sri Lankans Served Fairly By The Supreme Court?’
What is supreme in it?
Even Namal will easily become a Supreme Court judge.
Pro. Peiris just missed the bus.
Sarath De Silva is the embodiment of the Supreme Court?
Mrs Bandaranayake is the victim of the pale judiciary.
How many habious corpus applications filed in the SC of the missing persons?
It is deep rooted failures.
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kali / October 20, 2015
Ananda Markalanda
Are Sri Lankans Served Fairly By The Supreme Court?
*** I dont know which planet you are living on. But for your information Sri Lanka is a Planet of Apes. These are not my words but that of the UN Chief with a Prinmitive Judicial System. Before I comment on some of the things in your Article let me give you some hard evidence.
1) Sri Lanka Co sponsored the resolution with UN.But before the pen was dry MS, RW uttered the words that they will spend any amount of money and will buy the best Legal System in the World tp protect the Killer Soldiers. The latest annoncement is that all the accused Soldiers will be PARDONED. Justice has already been delivered even before the hearing started.
2) So they have already fallen foul on their Vomit. They have served Notice that the GOSL will only represent the interest of the Perpertrators and not the Victims.
3) Where else would you see the Judge ( SC) deciding to support the CRIMINALS so openly. This is Justice Sri Lankan Style.
4) We have the minister of Justice uttering the following words.
“Justice Minister Wijeyadasa Rajapakshe emphasized that convicted LTTEers couldn’t be released unless the Sirisena-Wickremesinghe administration took a policy decision to that effect”
He was the head of the Bar Council and he doesnt know the difference between ” Accused ” and Convicted.
Who convicted these Poor LTTErs. They were never Charged or Produduced before a other than the Kings NEETHI MANTRAM.
Were they offerd any Legal Aid to fight the case. NOTHING.
As for your Article:
1) The Supreme Court has a special critical role to play in a democracy and we claim Sri Lanka a democracy. The Constitution gives it the power to check, if necessary, the actions of the President and House.
*** This is aganist the weight of evidence. Just look at the AG. He is a laughing stock.
2) It can tell a President that his actions are not allowed by the Constitution. It can tell the house that a law it passed violated the Constitution and is, therefore, no longer a law. It can also tell the government of that one of its laws breaks a rule in the Constitution.
*** If you did that how can you sleep at Night. Even under MS & RW there will be a White van waiting to pick up your family in the Morning. So your Freedom is Limited. Justice depned on how much you can bribe.
3) The appointment of defeated candidates made through the National List provision of the Constitution is unconstitutional and can declare void all such unlawful appointments made through the National list. Here the constitutional relief sought by the people was not recognized giving more power to the President merely on a request.
*** I dont have to add anything as the EU has already passed its judgement.
4) The Supreme Court is the final judge in all cases involving laws, and the highest law of all — the Constitution. Although it is the courts’ duty to say what the law is, the other branches of government have an independent obligation to uphold the Constitution.
*** This is meant to be a Joke. Correct me if I am wrong.
5) Presidents come and go but the Supreme courts will go on protecting the rights of individual against the oppressive power of the State,
*** At least Presidents come and Go with a LOOT at the End. But SC is a Quack Quack shaking its Bottom.
6) The judges should not insult their own institution’s integrity.
*** They are born with that tendency in their Gene.
7) The cornerstone of the system of checks and balances is central to the governance.
*** You expect this in a Cilivisled Democracy not in an Animal Kingdom.
8) When the judges are placed on perks after retirement, judicial independence suffers because judges subject to the influence of the legislative or executive branches will be less likely to decide cases in an impartial manner protecting the rights of citizens in constitution and its review matters because, in addition to trying to influence judges, the legislative or executive branches may seek to pass laws or implement policies that are designed to benefit themselves and/or their associates.
*** I dont know how much you know about avoiding Inheritance Tax and the above actions confirm that Sinhala Lanka has perfected the art of Avoidance and Early detection.
9) The glowing example is Chief Justice Mohan Pieris, as the Prime Minister pronounced in a statement made in Parliament, offered to give any judgment in favor of the government and not to remove him as Chief Justice. There are ample other items of evidence to prove this malpractice in Supreme Court.
*** This what you call ” You Scratch my BACK and I will Scratch yours.
Yours and Mine. Enjoyment spree.
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Above the Rest / October 21, 2015
Hi Ananda,
Welcome to CT.
Good to see a champion of Lankaweb moving here. Hopefully, growing up – intellectually!
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Upul / October 23, 2015
Other than claiming that the present SC has not not protected the citizenry has Mr. Makalanda offered any examples of his claim? I read his article twice just to make sure, and did not glean any facts pertaining to his claim.
Yes, the Supreme Court can do a better job but they can only pass judgement on what is asked of them. They cannot walk the streets and look for cases to pass judgement on. And, those seeking redress at the Supreme Court have to present facts and convince the court that their version deserves redress. The government as the defendant has no interest in helping the appellants prove their claims. Unfortunately that is how the system is set up.
Mr. Markalanda should know better, living where he does.
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