By Laksiri Fernando –

Dr. Laksiri Fernando

On the 18^th of June, the parliamentary sessions started with the Speaker’s announcement of Supreme Court determinations on several bills, and mainly on Sri Lanka Telecommunications Amendment Bill. The determinations were clear and purposeful. There were several other announcements from the Speaker outlining the work of the day. Then he gave the floor to the President, Ranil Wickremesinghe, obviously on request, but the purpose was not announced.

It was on the Supreme Court’s determination on the Gender Equality Bill; ‘read out by you’ (Speaker), he said. However, it was read out two weeks ago on the 7^th of June. Judging from what the Members of Parliament subsequently said, all were confused. President however was well prepared for the assault on the Judiciary. The Speaker should have re-read or given a brief on what was going to be discussed. Perhaps he was more confused.

The Confusion? 

The President raised the issue, as a “point of order’ that the determination of the Supreme Court on the Gender Equality Bill violates the powers of this House under Article 4 of the Constitution.” “We should appoint a Select Committee to look into this matter,” he further said.

Let me first quote what the President exactly claimed about the matter. “I like to say first and foremost that the ‘bill [!] asks ‘what is the national policy on gender equality and empowerment of women in this bill? At least it is hard to find out. It is not specific and there is no reference in the bill.” As usual, the President was confused about the whole matter, the bill and the determination of the Supreme Court! It was a question of determination and obviously not of the bill. Online full session can be watched here.

Then he went on referring to some of the policies that the governments have taken on empowerment of women and gender equality since 2011. ‘These are obligations of the government under the (UN) Sustainable Development Goals no 5,’ he further said. He also referred to some cases. All these may be true. But why those are not referred to in, in the bill at least briefly in the preamble to the bill?

Perhaps the poor drafting of the bill is the main reason for the confusion. Otherwise, the formulation of the Sustainable Development Goal No. 5 into legislation is not complicated. Have you ever seen the gender equality and empowerment of women’s bill? I have not. It is not on the Parliamentary website or anywhere else.

Judicial Cannibalism?

When a bill goes to the courts, it must depend mainly on the text of the bill, and not the history. If the Supreme Court decides to the dissatisfaction of a government, that cannot be considered ‘Judicial Cannibalism.’ That is what Ranil Wickremesinghe said. While he was confused or tried to confuse the others, he said that we must go back to the 1972 constitution to rely on our inherent rights to mean the rights of the executive and the parliament, ignoring much of the judiciary. While that was partly the case in 1972, many of the down gradings of the judiciary were changed in 1978 and thereafter.

There is no question that some of the determinations of the Supreme Court on the bill are controversial and conservative. In fact, the Supreme Court has completely nullified the bill as common legislation. If the bill must be approved, then it requires a 2/3 majority in Parliament and a referendum they have said.

The President argued that the “Supreme Court cannot rule, they can only advise us.” This statement is controversial. It is well known that Ranil Wickremesinghe love jokes and witticisms. To me, even he looks like Mr. Beans! He said the Supreme Court is ‘transgender.’ He also said this is a ‘perverse’ determination. Among his other crack points during the debate, he said today is favorable day for the Leader of the Opposition, Sajith Premadasa, because Anura Kumara Dissanayake is in London!

Opposition to President

There were two other matters that the President talked about for some reason. One was about Gotabaya government’s prohibition of burials during the covid crisis, and the other about the tax policy to sidetrack the main issue of Supreme Court decision. Even the Leader of the Opposition, Sajith Premadasa, was first out of track talking only about the tax policy.

However, the situation changed when the MPs like Wimal Weerawansa, M. A. Sumanthiran, Charitha Herath, Athuraliye Rathana Thero, Selvarajah Kajendran, Dalas Alahapperuma and others took the floor and questioned the President’s castigation of the Supreme Court decision. Even the Supreme Court determination was not readout. Sumanthiran raised this issue. He said “your concerns are valid, but we are concerned about the route that you are taking. If we appoint select committees on Supreme Court determinations, we are taking a confrontational path.” He suggested that the bill could be re-presented with changes or without, and we can request the Supreme Court to appoint a full bench to reconsider.

MP Charitha Herath expressed his views on the same lines. He said according to Standing Orders 55 (2) B, when the Supreme Court gives us a determination, the Parliament cannot have a debate. He further said that the President participates in Parliament not as a full member, but as a half one. He is not a part of the legislature. He is from the executive. Therefore, he can address the judiciary in that capacity. But he has come under our fold now. When the President express views under the cover of the legislature, it is not correct. He even does not have a vote. He should not abuse our powers. In my view these two powers should be separated.

Sajith Premadasa again spoke and condemned the prohibition of burial under Gotabaya government as extreme racism. On the question of Supreme Court determination, he now correctly said that we have ‘separation of powers between three organs of government, Legislator, Executive and Judiciary. There are and should be checks and balances. If one organ does not agree with another organ’s decisions, there should be cooperative procedures to resolve them without going into confrontations. Independence of the judiciary is also an important pillar in democracy.’

Athuraliye Rathana Thero also expressed similar views and one important question he raised was whether this is President’s view or Cabinet’s view as the collective executive. Selvarajah Kajendran also spoke in resolving the question and confusion. What became very clear was that the President’s view on the separation of power and independence of the Judiciary was authoritarian and undemocratic. MP Dullas Alahapperuma also spoke against the President and said this could be a test run for future purpose (muttiya dala balima). He meant to mean a future attempt to extend the period of the President and Parliament.

President’s Defense and Authoritarianism

Towards the end of the session, the President tried to defend his position. He said except for the right to vote, he has all powers and privileges like other members of Parliament. He said sovereignty of the people rests only on two institutions: on the President and Parliament. The powers of the Judiciary come from Parliament, he maintained.

“We are the people who proclaim laws. No one (to mean the judiciary) can question this power. The Judiciary only can give some advice. In New Zealand and Finland, it is parliamentary select committees that determine whether a draft bill is consistent with the constitution.”

It is true that those two countries have different procedures, but they maintain separation of powers, checks and balances, and independence of the judiciary. In New Zealand, in explaining the constitutional system this is what the Justice website says. “The three branches operate independently from one another, a principle known as the ‘separation of powers.’ This principle is intended to prevent abuses of power, as each branch acts as a check on the others.” This is completely different to what the President was saying.

At the second defense, the President said “I am not criticizing the Supreme Court in toto, but this Bench. We have very clear policies on gender and women empowerment since 2011, this Bench has eaten all these up. That is judicial cannibalism, he repeated! It may be the case that Ranil Wickremesinghe has some personal grudges against the Chair of the bench as he (Ranil) is also a lawyer.

His use of ‘Judicial Cannibalism’ is totally unacceptable and should be denounced. According to the Merriam-Webster dictionary, ‘cannibalism’ means ‘the eating of human flesh by a human being.’ This is an insult to the Supreme Court, whatever the weaknesses of the determination. As several MPs have said, this could be an attempt to threaten the judiciary in an effort to extend the period of the President and Parliament unlawfully and unconstitutionally. If Ranil Wickremesinghe attempts this, he should be thrown out. In such an attempt, I may come to Sri Lanka and join such a protest.

*Dr Laksiri Fernando was Senior Professor in Political Science and Public Policy, University of Colombo.