By Ananda Markalanda –
The Constitution of Sri Lanka 1978 recognizes Sri Lanka as a Representative Democracy (Preamble to the Constitution) and under the Constitution, sovereignty in Sri Lanka is in the people and this power is inalienable.
The sovereign rights of the people include power of government (Legislative, Executive & Judicial power), fundamental rights and the franchise (Article 3). These rights are absolute and cannot be taken away from the people, unless any such bill brought to deny people’s sovereign rights is passed with two-thirds of majority AND ALSO with a mandate obtained from the people at a Referendum (Article 83 of the Constitution) surrendering their rights, followed by a ratification by the Executive President [(Article 82(5)].
The so-called 14th amendment (Article 99A), which had taken away the franchise vested in the people who exercise their right to elect MPs, have denied the people of their right with party secretaries who are empowered to appoint defeated candidates at the General Election through the National List. One need not know the rocket science and any person with an average common sense would understand that this as a blatant violation of voting rights only vested in the people.
Whole nation knows that there was no such referendum held seeking peoples’ mandate to surrender their power of franchise to party secretaries. Had there been such a referendum, there is no doubt that people of Sri Lanka would have overwhelmingly defeated any such move.
Therefore, as it stands today, this provision of law (Article 99A), which introduced National List with power vested in the party secretaries to appoint defeated candidates without adhering to the laid down procedure, has no force in law and shall not be interpreted or construed or deemed to amend the Constitution [(Article 83 (6)]. Therefore, and any action taken under that invalid provision law absolutely void.
Therefore, all MP appointments through the National List, made by the party secretaries from the rejected candidates, without a scant respect to the sovereign rights of the people and the published ‘‘National List’ during the nomination period for the information of the voters, are VOID from the day such appointments are made. And this cannot be corrected by any means now, that is, by Legislature, Executive or the Judiciary, unless and until people approve such a move at a Referendum.
Independence of Judiciary compromised by the Judges
Shirani Bandaranayake’s tenure during good terms with Rajapaksa appointed her husband as chairman of the Savings Bank, betrayed the sovereign power of the people, surrendering the judicial independence to President Rajapaksa with approval of the 18th Amendment. Later she paid a heavy penalty for the crime committed when she opposed and got impeached.
Then Rajapaksa regime got legal advisor Mohan Pieris unlawfully installed to the office of the CJ. As PM Wickramaisinghe declared in the Parliament recently, Mohan Peiris offered the government with any judgment in favor to man in office. Yet, he was unceremoniously thrown out and then again Shirani B was restored in office only for 24 hours, with an undertaking obtained to return home immediately thereafter. Then came K Sripavan as the CJ. People of country had 3 people occupying the office of the CJ within a week, may be only in Sri Lanka… And now Wicremesinghe/Sirisena regime wants people here and abroad to believe that Sri Lanka has an absolutely independent justice system, which can be trusted by the people of Sri Lanka. If that is the case there is no reason for the fellow Tamil citizens to cry for judges from abroad to try war crime charges.
Food for thought for the Supreme Court history in Sri Lanka
When the planter Bracegirdle (Englishman) was handed deportation orders by the English Governor Reginald Stubb in 1933, it was challenged before the Supreme Court then occupied only by English Judges. These judges fearlessly committed to protect the independence of the Judiciary and Rule of Law and they had the courage to declare that the Order made by the Governor was unlawful.
National List cases pending before the Supreme Court
The decision of the Supreme Court in these cases will give a great opportunity to the people to observe the independence of the Judiciary of Sri Lanka. The Judicial pronouncement in these cases would surely sum up its dependence or independence and its commitment to uphold the people’s judicial power that it required to uphold, vindicate and protect at any cost (Article 105).
“Judicial independence” is the principle that judges should reach legal decisions free from any outside pressures, political perks, financial, media-related or popular. Judicial independence means judges must be free to act solely according to the law and their good faith interpretation of it.
An independent judiciary is a cornerstone not only of our justice system but of our entire constitutional system of government.