One may agree that only on paper Sri Lanka is a representative democracy, which recognizes the constitutional supremacy and the sovereignty in the people. The sovereignty of the people is the foundation of democracy as expressed in the Constitution. The supreme law, the Constitution, protects people’s sovereignty and states that the sovereignty in the people cannot be denied or taken away unless people themselves give a mandate relinquishing their own democratic rights.
The truth of this claim depends on the plausibility of attributing sovereignty to “the people” in the first place, and I am skeptic about this possibility.
‘Sovereignty in the people’, what does it mean?
It means the powers of government; Legislative power, Executive power, Judicial power and it also includes the franchise that people themselves exercise, and the people’s fundamental rights cherished in the Constitution. It is the people’s sovereign power that all organs of the government exercise on a social contract entered into purely on trust. Once that trust is violated representative democracy fails.
When a government fails to respect people’s protected rights it invites the world community to interfere
If governments abuse the trust placed in them by the people, citizens become helpless with no hope for remedial action. This sometimes leaves room for outside interference as in the case of several countries including Sri Lanka. The international community can then penetrate Nation-State’s borders to protect the rights and freedom of deceived and betrayed citizens by the very organs that exercise their sovereign power. The UN Resolution adopted by the Human Rights Council on 01st Oct 2015 on Sri Lanka is one such instance, where the International Community rightly considered that the sovereignty in the people of Sri Lanka has been betrayed. It should be remembered that the government of Sri Lanka itself co-sponsored the said resolution proposed by the USA.
What if the people rise up against corruption committed by the Government?
In most functioning democracies, particularly in the developed nations, the citizens have a better understanding of their democratic rights and there is a system in place for checks and balances within the organs of governance. In such a setting people can effectively ensure that no corrupt politician who abuses his authority is spared and dealt with strictly according to the rule of law by the justice system that makes sense. This makes those holding public office accountable to people and prevents them from abusing their office to favor themselves or others.
Parliament can claim no supremacy over the Judiciary
The preamble to the Republican Constitution clearly provides that only the people enjoy supreme power over all organs of the government. The Constitution also recognizes that the Parliament is the supreme law making body while the Judiciary remains independent of the influence of the other organs. The supreme law in very clear terms recognise the bounden duty of the legislature to work towards the realization of the people’s desire of truly democratic nation with an independent and impartial Judiciary is established by law, as the custodian of all rights of the citizens recognized by the Constitution.
There shall be proper criteria for the respective organs in the governance
In a representative democracy only the people are supreme and all organs of the government shall function independently without interfering into affairs of each other and should respect the doctrine of separation powers. This is to ensure smooth functioning of the concept of representative democracy. Here, huge burden is vested in the Judiciary that exercises people’s judicial power to protect, vindicate and enforce people’s rights whenever other organs violate their constitutional obligations to the people. For this, those who hold office in the Judiciary have taken a constitutional oath pledging the people to uphold their constitutional obligations and to perform their respective offices with due respect and regard to the Constitution and the law.
Sacred duty vested in the Judiciary in any democracy
In any vibrant democracy, the judiciary is vested with a very important responsibility to act as a fearless watchdog, absolutely loyal to its masters, the people. An independent and honorable judiciary is indispensable to ensure dispense of justice. People expect the Judges to maintain high standards of conduct, so that the integrity and independence of the judiciary shall be preserved without being subservient to the executive or the legislature.
However, particularly since independence, it is sad but true that the Judiciary in Sri Lanka, many times for many reasons, has failed to realize the expectations of the people and to defend and protect their rights that are been ruthlessly abused by the other two organs. Apparently this sad situation has made the people of Sri Lanka to seek the United Nations intervention, to restore their rights through a vibrant judiciary with an accountability process in place to hold all judges responsible to their actions.
British colonial rule observed the principle of normative supremacy
There are lessons to be learnt from the justice system prevailed under the British Rule. One of the best examples is the judgment given in the Bracegirdle case in 1936 against the unlawful executive action taken by the then British Governor Reginald Stub against Bracegirdle, a planter.
In 1936 Bracegirdle, with human mindset arrived here and witnessed the way the plantation workers were abused and exploited by the British controlled tea and rubber plantation industry. Then he openly joined hands with NM, Colvin and Phillip of the Leftist Moment, demanding fair treatment for the plantation workers. By doing so he naturally became a real threat to the British colonial administration and was reported to the Governor. The Governor Stub ordered his immediate arrest and deportation, which was then challenged before the Supreme Court headed by the Chief Justice, Sydney Abraham by the eminent lawyer H V Perera. The court simply held against the governor and quashed the arrest and deportation order made against Bracegirdle.
Gross undermining of judiciary after independence
It is depressing that from the independence onwards the dishonest local politician rulers always considered that installing of an independent judiciary would be a threat to their survival. Thus several attempts have been made by the executive from time to time to make the judiciary more pliable to the wishes of the executive.
For example President JR Jayewardene’s mistreatment of the Judiciary is well documented by the International Commission of Justice in its report titled “Sri Lanka: a mounting Tragedy of Errors by Paul Sieghart which states as follows.
“… The President freely conceded that he had personally ordered the promotion of the police officers and payment out of the public funds of the damage and costs. This he said had been necessary to maintain police morale at a time when he found the Supreme Court a hindrance to some of his policies. The conclusion is inescapable that he was deliberately seeking to teach the Judges a lesson in order to make them more pliable to the Executives wishes. If that is so, these were grossly improper acts; but for the immunity from all suits which the President enjoys under Article 35(1) of the Constitution, they might well have been criminal offences…”
The other regimes, which followed J R Jayewardene, too made similar executive and administrative inroads towards judiciary further undermining the independence and the integrity of the justice system.
One of the most notable and direct interference with the independence of the judiciary was witnessed during the CBK regime when she denied the then most senior judge in the Supreme Court Justice Mark Fernando, his legitimate right to the office of the Chief Justice by paving way for Sarath N Silva, a judge in the Court of Appeal to leapfrog to the coveted position.
Mahinda Rajapaksa regime followed suit and punished Chief Justice Shirani Bandaranayake and replaced her with the appointment of Mohan Pieris, a legal advisor to the Cabinet of Ministers, who had been a respondent in a revenue fraud cause filed against him before the Supreme Court at the time of his appointment.
The 17th amendment restores some pride and independence in the Judiciary in the post independence era
The 17th amendment made to the Constitution in October 2001 was a step in the right direction. For the first time Constitutional Council consisting ten members was introduced with three MPs elected by the people retaining some degree of control and influence on judicial appointments. And with this arrangement the power enjoyed by the Executive President to appoint judges to the Supreme Court and the Court of Appeal was removed and judges to the Superior Court system were to be appointed only with the recommendation of the Constitutional Council.
But President Rajapaksa wanted more pliable judiciary
However, Mahinda Rajapaksa who was elected to the office of the Executive President in 2005 was not in favour of the 17th Amendment that denied him any room to meddle with the judiciary as Constitutional Council checkmated the process. Therefore, he was determine to get rid of the Constitutional Council that would hinder his desire of having his own people in the judiciary by abusing the enormous executive power vested in the Executive President under the 1978 Republican Constitution.
Rajapaksa destroyed the independence of the judiciary
When he was contesting for the office of the Executive President for a second time, in his Election manifesto (2010) Mahinda Rajapaksa pledged to be accountable to the people and to eliminate corruption and declared as follows.
“I will address this social decline and establish high values and ethics by eliminating fraud, corruption and malpractices, which have engulfed our society for a long time, and will take whatever measures necessary to eradicate criminal activities” (ref: pg 56 of Rajapaksa election manifesto).
However, what he did after his election on 27 January 2010 was completely the opposite. With the enactment of the 18th Amendment in September 2010, the Constitutional Council was abolished and the independence of the Judiciary was completely reversed. President Mahinda Rajapaksa held a firm grip and made all appointments to the Superior Court system purely according to his whims and fancies. As mentioned earlier his most loyal and subservient man Mohan Peiris was appointed to the office of the Chief Justice after the removal of Chief Justice Shirani Bandranayake by unlawful means. Further, he brought the Attorney General’s department under his purview.
Some People believe that affording Mercedes Benz cars to the judges in the superior court system would help to establish a pro-active judiciary, but the truth is that it was merely a ploy employed by Mohan Pieris to make the judges more flexible to the executive. The executive used various tactics including appointments of retired Judges to high profile public office just to protect the dishonest in the legislature and the executive with an invincible blanket cover introduced against any threats coming from the citizen groups who fought for Justice.
Constitutional Council reintroduced by the 19th amendment was a farce
The people thought after Rajapaksa was dumped independence of the Judiciary and the rule of law would be re-established as promised by Maithripala Sirisena administration with some measures taken through the 19th amendment.
Surely the people with bitter experience of the utterly corrupt Rajapakse administration yearned for restoring of judicial integrity with suitable people appointed to the offices in the superior court system through an absolutely transparent process. The expected the selection process to be based absolutely on merits and only through a properly constituted Constitutional Council with respected, learned people of high esteem appointed, denying corrupt politicians any place in it.
The Constitutional Council proposed by 19th Amendment Bill was exactly the same institution as was in the 17th Amendment. Yet, the ‘Yahapalanaya’ administration too has miserably failed to full fill peoples’ expectations.
Sirisena-Wickremesinghe administration failed to fulfil their pledges to people
The worst thing they did was the compromising of the integrity and independence of the judiciary. The ten-member Constitutional Council established through the 19th amendment has been diluted with 7 out of 10 members appointed from parliamentary MPs. Many of them are, ignorant and dishonest to the core. Form the people’s viewpoint, the fact remains that there was no need at all for a single MP to be appointed to the Constitutional Council.
Judicial independence can never be guaranteed when the legislature and executive decide to have a grip over the judiciary. Corrupt elements holding office in both the executive and the legislature are scared of independent, upright and fearless judiciary that would only be accountable to the people. As Lord Denning remonstrated, these corrupt elements want judges to remain impotent, incapable and sterile in the face of injustice.
Had Sri Lanka blessed with truly independent and impartial judiciary probably this country’s forward march would have been completely different from being a begging basket case.
When the people are gullible and ignorant of their democratic rights installing of a representative democracy is a big ask
Representative democracy would work only if the people have a reasonable understanding of their democratic rights embedded in the supreme law, the constitution. They should have at least a fair knowledge about the responsibility vested in those elected or appointed to various public offices, who exercise people’s immutable sovereign powers. It is the duty of the people to ensure the all three organs of the government discharge their duties vested in their respective offices with due care, respect and regard to the Constitution and the rule of law and that those who engage in any wrongdoings would be appropriately dealt with before an independent judiciary by the people.
Republican Constitution recognises the peoples’ sovereign power but only a myth
In the preamble to the Constitution it is enshrined that the elected representatives are to exercise people’s legislative power, humbly acknowledge their obligation to the people to preserve people’s rights assuring the people of their dignity, freedom, equality, justice, fundamental rights and the independence of the judiciary as an intangible heritage. And the supreme law sets out that in Sri Lanka’s sovereignty is in the people and that it is absolute right which includes power of government, fundamental rights and franchise (Article 3 of the Constitution).
In Sri Lanka judicial independence has been denied
Powers vested in the people and their rights protected in the Constitution become a mere nullity and a farce without an independent and vibrant judiciary committed to uphold people’s judicial power. When the Judiciary is scared of the executive of the legislature it cannot perform its constitutional obligations with due respect to the Constitution and the rule of law. In this context people can charge that there is no independent judiciary as people are denied the rule of law and good governance.
This is why number of persons who held the office of the Chief Justice, including the incumbent chief justice who ruled that the abuse of people’s immutable sovereign right of franchise to appoint those who were rejected by the people though the national list was not a matter of National Importance is now charged for judicial corruption before the Supreme Court with three other former Chief Justices for judicial corruption for alleged abuse of office to confer benefit either themselves or others.
Under the circumstances, it is the people who should come out of hibernation and campaign to restore their democratic rights that can only achieved through a property constituted Constitutional Council, denying any room for politico cheats in it, that can only achieve if the government truly committed to respect and regard the doctrine of separation of powers, allowing no one holding office in the legislature and the executive to meddle with the constitution of the Constitution Council.
Prime Minister Ranil Wickremesinghe’s request to speaker to overrule a Supreme Court judgement is not above board
On the 07th July 2016, the Prime Minister, Wickeremesinghe making a statement in the parliament requested a ruling from the speaker on the constitutionality of the Supreme Court Judgment (SC/SPL/LA/182/99) – popularly known as the Singarasa case – decided more than a decade ago (15th Dec 2006), effectively to overrule the judgment made by the Supreme Court.
The following extract from the Hansard dated 07 July 2016 elaborates the speech made by the Prime Minister Ranil Wickremesinghe. It amounts to clear interference and undermining of the independence and integrity of the judiciary and an insult to the Peoples’ Judicial power itself.
‘… The judicial power of the people is not exercised by the Supreme Court, but by Parliament through the Courts and directly by Parliament…’
‘… The Court does not even have to exercise the judicial power of the people. The Parliament has it and the Court does it on its behalf…’
‘… The powers of Parliament cannot be taken away by the Supreme Court as and when they like it…’
‘…The pronouncement of the Supreme Court in what has popularly come to be known as the “Singarasa case” that accession to the Optional Protocol of the ICCPR needs a two-thirds majority of Parliament and also approval at a Referendum is nothing but a perverted interpretation of the Constitution…’
It is a judicial coup against Parliament and the sovereignty of the people.
I am happy that the Hon. Member agreed with me that the jurisdiction for this rests with the Parliament and not with the Supreme Court. So, all I am trying to do is to take away the Supreme Court acting as a dictator and to bring it into Parliament.
Instead of confining itself to the matters before it, the Court has meandered into a totally irrelevant area and made pronouncements on the Constitutional competence of the President to accede to the Optional Protocol. This, I believe, is something that should be left to the Hon. Speaker of Parliament in this instance. I would ask the Hon. Speaker, after necessary consultation, to give his
Ruling on this matter raised by the Hon. Member and the Statement made by me.
‘… The powers of Parliament cannot be taken away by the Supreme Court as and when they like it…’
Since the above statement clearly violates and ridicule the peoples’ judicial power, being the public litigation activist, I have challenged Prime Minister’s abuse of office and unbecoming conduct before the Supreme Court which is now pending before the Court.
Privilege afforded to MPs is not absolute but subject to constitutional supremacy
According to the Parliamentary Privilege Act, (which is an ordinary piece of legislature, which shall be construed subject to the constitutional supremacy), questioning of any parliamentary proceedings in the Court of law is prohibited by law (Section 3).
However, one should remember that the constitutional supremacy over all ordinary laws, including the Parliamentary Privilege Act, which in very unambiguous terms states that sovereignty of Sri Lanka is in the people and not with any particular organ like the parliament as claimed by the Prime Minister. Those who hold office in any organ of the government must understand that the supremacy is in the people and that no one organ has any supremacy over the other two, which is a mandatory prerequisite in any representative democracy for effective observance of the rule of law and good governance.
Parliamentary Standing Orders in very unambiguous terms say that conduct of the judge in the judiciary who engage in the administration of justice shall not be questioned in the parliament except upon a substantive (Impeachment) motion.
Any right thinking person would agree that the Prime Minister Wickremesinghe has clearly violated the standing orders and his conduct clearly amounts to obstruction of the administration of justice, which needs to be appropriately addressed by the Judiciary, whenever a member of the public makes a complaint on any such abuse to the Supreme Court, on behalf of the fellow citizens who hold all powers. Because under the Constitution, the duty is vested in the Supreme Court to protect, vindicate and enforce people’s sovereign rights, including fundamental rights, embedded in the Constitution, holding anyone who abuses office accountable.
Singarasa judgment is manifestly flawed
Not just the Singarasa judgment, there are many more such judgments made by Sarath N Silva then CJ, who openly pleaded the people three times for mercy on his abusing office to confer benefits to Mahinda Rajapaksa, the Politician. He, on his own volition conceded that he abused the office of the Chief Justice to confer a benefit to Mahinda Rajapaksa who was accused for defrauding a colossal amount of Tsunami funds. For his own voluntary admission of abuse of office of the Chief Justice now Sarath N Silva too face a charge of Judicial Corruption including the Mohan Peiris who pleaded the Prime Minister not to remove him from office of the Chief Justice, promising to pronounce judgments to please the Prime Minister and also to appoint judges the way the government wants.
The Singarasa Judgment given by Sarath N Silva CJ is manifestly flawed and there is no question about it, and similar errors are common occurrences and that is why one section of the society disagrees with death penalty because innocent people who do not committed wrong still found guilty and would be hanged due to human error, that is quite possible.
The role of the judiciary is to secure and advance the rights of the people recognized by the government (Article 4(d). The Constitution clearly states that the government (all organs) shall endeavor to foster and respect for international law and treaty obligations [Article 27 (15)]
As the Prime Minister correctly says Government of Sri Lanka has ratified the International Covenant on Civil and Political Rights popularly known as ICCPR in 1980 and the Optional Protocol in in 1997. And the application made to Supreme Court by Singarasa was to invoke the Supreme Court’s inherent power and jurisdiction to review its own order and not to enforce the ICCPR recommendations; therefore the ruling made by the Sarath N Silva, the CJ, is manifestly flawed.
However, the Parliament or the Speaker has no business over the people’s judicial power that is only being exercised by the Judiciary and parliament has no legal sanction to overrule the Singarasa judgment made by the Supreme Court (SC/SPL/LA/182/99) decided on 15th Dec 2006. The Government should have followed the due process and directed its Chief Legal Officer, the Attorney General, to make an application for revision to have the said judgment reviewed by the Supreme Court itself, without insulting the Supreme Court with arrogance that is grossly unbecoming of a person holding the office of the Prime Minister.
This is what the former Rajapaksa regime adopted in similar cases, however, with bad intentions in most cases. For instance, the judgment given by the Supreme Court (nullifying impeachment proceedings against the Chief Justice Shirani Bandaranayake) was later reviewed and overruled by a fuller bench of the Supreme Court headed by Mohan Pieris, the Rajapaksa henchman, usurping the powers of the office of the Chief Justice, that made the government to take steps according to the law to remove his name from list of the most eminent Supreme Court Judges, the probably the worst ignominy suffered by a person held the office of the Chief Justice.