3 December, 2020

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Judicial Independence Is Limited To Hearing Cases Says Minister Rajitha

By Basil Fernando

Basil Fernando

In a morning programme on SLBC today (29th December) Minister Rajitha Senaratne was interviewed. Here are some of the basic points from what he stated in this interview:

That the independence of the judiciary recognized within the 1978 constitution is only for the purpose of hearing cases; citing articles of the constitution, he took time to explain that the only independence that this constitution recognizes is for hearing cases, where no one can interfere with the powers of the judges to hear and determine cases. Besides that, there is no other independence. The implication of the statement was that universally recognized principles relating to the independence of the judiciary, which include, among other things, that the removal of judges should be done only on the rarest grounds and that it should only be after fair inquiry by competent tribunal, are not recognized by Sri Lankan constitution. This way the objections that have been raised locally and internationally – that the hearing by the PSC did not amount to inquiry by free and fair tribunal – was made out to be irrelevant in terms of the 1978 constitution. This also implies that judges have no right to interpret the constitution.

That those who did not raise objections to the standing orders under section 107(3) have no right to raise those objections now; he said that there were 28 years to raise these objections, and if they failed to raise those objections then, they have no right to raise them now.

That, according to the provisions of the constitution, the president controls all the matters relating to judges and that therefore the president also has the power over the dismissal of judges. This is similar to the position earlier taken up by Dr. Nath Amarakoon, that the Chief Justice is an employee of executive and therefore should behave accordingly.

That what is important is not the process but the substance of the charges. He then went on to demonstrate how gravely wrong the issues in terms of substance are. Going into process without talking about substantive issues was described as not entering into the field but talking about it from outside. According to this argument, if a man is charged with a gruesome murder, nobody is should be talking about providing a fair trial for such a person as the substance of what he has done is gravely wrong. Also implied is that there is no presumption of innocence when you are charged on matters that are grave.

That, according to the constitution, the parliament has all the powers and once the parliament decides on any matter there is no right for court to issue writs or summons to members of parliament regarding such matters. That, he said, is the tradition in England.

That the opposition to the impeachment arose due to the people being unprepared when the impeachment motion was filed. As the people were ignorant of the charges, they were surprised. He has in fact told the president that all these problems arose due to people not being aware of the charges beforehand. Had they been given the time of one month before filing the motion for impeachment, none of these problems would have arisen.

As these matters mentioned above are so important, this broadcast will be aired again in the afternoon, said the chairman of the Sri Lanka Broadcasting Corporation, who was the moderator of the programme.

By way of comment, it may be said that the government is now very clearly indicating that it will not recognize any independence of the judiciary other than the right of judges to hear and determine cases. In essence, this is a complete rejection of the recognition that the judiciary is an independence branch of government. The argument is that the concept of the separation of powers as recognized within a democracy is not what is found in the 1978 constitution.

A similar view was expressed in the English counterpart of this programme, under the inappropriate title ‘Peoples Power’, which also stated that the issue of process is irrelevant as everything was done according to the book, meaning the 1978 constitution. What is blatantly expressed is that the ‘democracy’ in Sri Lanka is a very unique one as defined by 1978 constitution and it should not be criticized on the basis of other principles that are recognized in other democratic countries. This also implies that even the right to a fair trial is not a substantive part of Sri Lankan law.

In my previous article, “Why People Oppose The Undermining Of The Judiciary”, I mentioned how Cambodians used to do things by their book and how in Myanmar the book that Ne Win gave was followed. Now, the constitutional tomfoolery that JR Jayawardene did with the Sri Lankan constitution has become Sri Lanka’s book. The government’s argument is that, if this book was okay for the last 28 years, it is also okay for the future.

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Latest comments

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    Interpreting the constitution is neither Dr. Rajitha Senarathne’s business nor Dr. Nath Amarakoon’s encumbrance and we need not take any opinion expressed by them seriously. However the author seem to take great effort to establish their opinion of the constitution as a view worth consideration. It puts the author in the same perspective of the zanies he’s quoting to establish his point.

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    I would not go to this doctor to even clean my teeth, so how did he become a constitutional expert by crossing over to the govt. He should limit his activities to catching fish rather than fishing in troubled waters.

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    Rajitha Seneviratne has to learn more about law when he practices law. Why is Rajitha Seneviratne worried about giving a fair hearing to the CJ. Blind answers will never make sense and he should not be a party for anarchism in the country. Civil liberties are the live-wire of democracy. Protection of individual freedoms is guaranteed by enshrining civil liberties in a constitution. In Sri Lanka, though civil liberties are enshrined in the constitution, they are subject to security threat of the country. Sri Lanka has a hybrid constitution. It is based on the Westminster and the American model. However, there is no Upper House which could monitor the activities of the Legislature. There is only one House known as House of Representatives. The Executive President cannot be a member of the Legislature. But if the Executive President and majority of Legislative members belonged to one party, there is a possibility of applying more pressure on the Judiciary which operates independently. There should be shared powers between the Executive, Legislative and the Judiciary. If the Executive President and the Legislature belong to one party, they always expect that Judiciary should tow in line with the State Policy. But this is a dangerous exercise as there is a possibility of the Executive with the connivance of the Legislature to suppress the civil liberties and mislead the public, which is now happening (banning of lanka-e-news and Colombo telegraph). It is at this juncture the Judiciary steps out to use the system of Checks and Balances when it determines the constitutionality of a Bill. The Judiciary has absolute authority to lift the vail of the legislative members and that of the Executive, whether this Bill is in conformity with the provisions of the constitution. The Judiciary has to examine the operation of civil liberties to find whether the sovereignty of the people is affected. It is at this juncture the Executive and the Legislature takes steps to suppress the media and unleash military means on the pretext of emergency regulations and ignoring good governance. It is also at this point one should remember that sovereignty does not mean Parliament exercises the sovereignty of the people only. Parliament can only make laws and unmake laws. But it is the Judiciary which has the authority to interpret such laws for the benefit of the people or in the best interests of the people, taking into account of the shared powers the Judiciary has with that of the Parliament. In the absence of an Upper House and as Upper Guardian of the people’s sovereignty, the Judiciary has the absolute power to monitor the activities of the legislators whether they are misleading the people by utilizing the emergency regulations and suppressing the civil liberties.

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    OMG !! THIS IS HILARIOUS…Is this the standard of the people
    who are Ministers in Sri Lanka? We definitely have a unique
    Democracy.Sri Lankawata deiyange pihitayi.

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