28 September, 2020

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Siripala, Wickremasinghe And The Validity Of Parliament’s Interpretation Of The Constitution

By Elmore Perera

Elmore Perera

Prior to the autochthonous Constitution of 1972, under Dominion Status granted in 1948 Parliament enjoyed a very limited supremacy. The Monarch of the UK was considered Sovereign. Parliament was vested with the power to make laws for the peace, order and good government of the Island. Executive power vested in Her Majesty was exercised by the Governor General who was required to exercise such powers in accordance with Constitutional conventions of the UK. In effect Executive powers were exercised by the Cabinet of Ministers headed by the Prime Minister. Parliament enjoyed a limited supremacy.

In 1972, the Republican Constitution provided that Sovereignty was in the people, is inalienable and shall be exercised through a National State Assembly. Established as the Supreme Instrument of State Power, the National State Assembly or Parliament was mandated to exercise:

(i)      Its legislative power directly,

(ii)      Executive power through the President and Cabinet of Ministers, and

(iii)    Judicial power of the people through Courts and other institutions created by law except in the case of matters relating to its powers and privileges, wherein  the National State Assembly may exercise such powers directly.

This Constitution also established a non-executive/ceremonial President as Head of State, Head of the Executive, Commander-in-Chief of the armed forces with the power to declare war and peace, providing clearly that he shall act always on the advice of the Prime Minister or the Cabinet Minister to whom the Prime Minister may have assigned such functions. The National State Assembly, in fact enjoyed “absolute Supremacy”.

On 20th October 1977, the 2nd  Amendment to the 1972 Constitution effected the transition to the Presidential form of government and established the National State Assembly and the President as the Supreme instruments of State power, repealed the requirement that the President shall act on the advice of the Prime Minister or Minister and elevated the President to be the sole and untrammelled repository of Executive Power.

The 1978 Constitution, adopted on 31st August 1978, incorporated the wording of the 2nd Amendment to the 1972 Constitution, institutionalised the removal of the requirements in the 1946 and 1972 Constitutions for the Head of State to act on the advice of the Cabinet of Ministers or the Minister and consolidated this power in the President as the sole repository of Executive power and the defence of Sri Lanka. Purportedly to strike a balance, Article 42 provided the fiction that “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law.”  This was a mere illusion in view of the fact that the President was empowered to assign and withdraw Executive power to the “legislators elected by the people”, at his will and pleasure and thereby exercised a stranglehold on the legislature. Effectively reduced to a mere rubber stamp of the Executive, Parliament could not stake any claim to a mythical “supremacy.” The Preamble to the 1978 Constitution, significantly gives particular emphasis to Justice and the independence of the Judiciary. Article 4(c) has brought about a functional separation of Judicial power from (the amalgamated) Executive and Legislative powers. The domain of Judicial power of the people (except for the limited area specifically assigned to Parliament) has been entrusted solely and exclusively to the Judiciary, to be exercised strictly upholding the solemnity and sanctity of the Rule of Law.

Whatever motivated the freely elected representatives of the people of Sri Lanka, or however ill-advised these provisions may be, this 1978 Constitution is still the Supreme Law of the land and unless and until lawfully amended is binding on all Sri Lankans. Observance of these provisions has necessarily to be preceded by a reading, understanding and interpretation of the relevant provisions. All who do so are not likely to agree on the interpretation of these several provisions. As such disagreement cannot be permitted to lead to endless arguments, fisticuffs, murders or even politically motivated assassinations, several safeguards have been provided in this admittedly flawed Constitution:

(i)        Articles 120 and 121 provide for the sole and exclusive jurisdiction of the Supreme Court to determine any question as to whether any Bill tabled in Parliament or any provision thereof, is inconsistent with the Constitution.

(ii)      Article 125(1) of the Constitution provides that “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution and accordingly whenever any such question arises in the course of any proceedings in any court or tribunal or other institution (certainly including the Parliament) empowered by law to administer justice or to exercise judicial or quasi judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination (within two months from the date of reference) of such question and make any consequential order as the circumstances of the case may require.

(iii)    Article 129 provides that the President or Speaker may invoke the Consultative Jurisdiction of the Supreme Court to obtain the authoritative opinion or determination of not less than 5 judges of the Supreme Court including the Chief Justice, in respect of a matter of public importance or of any allegation that the President is permanently incapable of carrying out his duties, respectively.

On 28th September 2012, the OPA called on the President to refrain from undermining the Independence of the Judiciary. However the Executive and the Legislature have moved swiftly thereafter, to impeach the Chief Justice. Many Parliamentarians and a wide range of Professionals supported such moves, arguing that Parliament was Supreme.

In the Public Interest, the Jurisdiction of the Court of Appeal  was invoked on 19th November, 2012 seeking a Writ Prohibiting the Parliamentary Select Committee from continuing to inquire into allegations of misbehaviour by the Chief Justice, in the exercise of Judicial power, purportedly vested in them by Standing Order 78A in violation of Article 4(c) of the Constitution.

The Court of Appeal referred the question of whether Standing Order 78A was violative of Article 4(c) of the Constitution, or not, to the Supreme Court for an authoritative interpretation in terms of Article 125(1) of the Constitution. Having considered the submissions, on 22nd November 2012, out of mutual respect and trust between Parliament and the Judiciary, the Supreme Court recommended to the members of the PSC that they defer the inquiry until the Supreme Court determined the question of law interpreting Article 107(3) of the Constitution referred to it by the Court of Appeal.

On the 23rd of November, 2012, the members of the PSC rejected this request of the Supreme Court and proceeded with the inquiry as the CJ had presented herself for same.

On the 29th of November, 2012 the crisis between the Legislature and the Judiciary took a dramatic turn when the Speaker, claiming to act in terms of Article 107 and the ruling of Speaker Anura Bandaranaike on 20th June 2001, (which ruling, according to the Speaker, had upheld “Legislative Supremacy”), declared that he deems Court notices irrelevant and that notices served on him and members of the PSC appointed by him are a nullity and entail no legal consequences, and that his ruling as Speaker would apply to any similar purported Notice, order or determination in respect of the proceedings of the PSC which will continue solely and exclusively under the authority of Parliament. Senior Vice-President of the SLFP and Leader of the House, Nimal Siripala de Silva, Attorney-at-Law, declared that “Parliament  was Supreme and Court cannot challenge the impeachment motion.”  The Leader of the UNP and the Opposition, Ranil Wickremasinghe Attorney-at-Law said that “No one can issue notices on the Speaker, or the PSC.”

In spite of being treated shabbily on the 23rd November, the CJ submitted a statement of Defence, on 30th November and was present on 4th December as requested. To her request that the list of witnesses and the documents to be used against her be furnished to her, she was requested to be present on 6th December at 2.30 p.m. However, at about 4.30 p.m. on 6th December 2012 she was informed that there would be no oral evidence led against her, furnished with about 80 documents consisting of over 1000 pages, and told that the inquiry would commence on the afternoon of the next day. Protests that more time was necessary to even read the documents resulted in her being abused, particularly by certain members of the Parliamentary Select Committee, in choice, unprintable language, that is sadly, now accepted as “Parliamentary Language”. At about 5.30 p.m. Brave heart CJ was intimidated into withdrawing from further proceedings of this PSC.

When their requests re the trial were rejected by the Chairman of the PSC and by the Speaker himself, the 4 opposition members of the PSC withdrew from the proceedings in the afternoon of 7th December 2012. Thereafter, the seven Government members of the PSC proceeded to record the statements of 15 witnesses and compiled a 30-page report by 7.30 a.m.  on 8th December 2012, presented it first at 8.30 a.m. to Basil Rajapaksa for approval and thereafter to the Speaker, who announced in Parliament that Brave heart had been found guilty of 3 charges.

On 11th December 2012 Judge Weeramantry felt compelled to make some observations in regard to the crisis facing the Sri Lankan Judiciary which had been highly esteemed both domestically and internationally. He outlined certain unassailable propositions that require observance and protection and stated that “where the issues involved are as grave as misconduct of the Chief Justice of a country, these general principles of law need to be applied with the greatest strictness that is possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.”

On 19th December, 2012 the Chief Justice filed an application in the Court of Appeal contending that there is no evidence to conclude that charges 1, 4, and 5 are proved, challenging the PSC findings against her and seeking a Writ quashing these findings and the decision.

On 21st December 2012 the Court of Appeal stated that a prima facie case had been made out and issued notice on the Speaker and the members of the PSC returnable on 3rd January, 2013. Court also expressed the view that any steps taken in furtherance of the findings and/or decision of the 7 members of the PSC would be void if, after hearing, Court issues a Writ of Certiorari to quash the said findings and therefore the relevant authorities should advise themselves not to act in derogation of the rights of the Chief Justice until the application is heard and concluded, since any decision disregarding these proceedings to alter the status quo, may lead to a chaotic situation. Referring to the Speaker’s aforementioned ruling on 29th November, 2012, (that the purported Notice issued to him and to the members of the PSC are a nullity and entail no legal consequences, and that his ruling as Speaker would apply to any similar purported Notice, order or determination in respect of the proceedings of the PSC which will continue solely and exclusively under the authority of Parliament) Court recorded that the order to issue Notice was a legal obligation of the Court to afford the Respondents an opportunity of being heard, in keeping with the concept of audi alteram partem.

On 31st December 2012, at a news briefing Attorney-at-Law, Cabinet Minister and member of the PSC Susil Premajayantha said that “the Impeachment inquiry is not a legal probe but a Legislative process” and therefore “proving of charges is not necessary”. This apparently reflects the view of the President and his numerous “advisors”, and most MPs and the vigilant state media. If that were so, all that was necessary was for the Speaker to accept the motion without any scrutiny, place it on the Order paper, fix an early date in consultation with the party leaders, take the tabled charges as read and submit same to the elected representatives of the Sovereign People for a vote.

On 2nd January, addressing the media at the Mahaveli Centre Senior Attorney-at-Law and Leader of the House Nimal Siripala de Silva said that the government was not overtly worried about criticism of the ongoing impeachment process by the international community, ruled out the possibility of proroguing Parliament to pave the way for a fresh inquiry and asserted that the government would not, under any circumstances, reverse the impeachment process. The Deputy Speaker, an Attorney-at-Law himself, has warned that any PSC Member who responds to the notice issued by the Court of Appeal will face dire consequences.

To-day, (3rd January 2013) the Court of Appeal has read out the interpretation of the Supreme Court that “The PSC has no legal power or authority to find a Judge guilty because Standing Order 78A is not a law.”

The Chief Government Whip, Dinesh Gunawardena is older and wiser now than he was in 1984 when his then tender mind compelled him, in association with Anura Bandaranaike and Sarath Muttetuwegama to feel strongly that:

(i)        the President should refer Standing Order 78A to the Supreme Court for an “authoritative opinion” thereon,

(ii)      the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose, and

(iii)    Standing Order 78A should be amended accordingly.

When this Chief Government Whip cracks the whip, the highly disciplined government MPs– including those who obediently signed a charge sheet which had no charges thereon – will, with undisguised glee, vote overwhelmingly in support of impeachment, irrespective of whether they even know what the charges are. They will, undoubtedly, commend the 7 eminent government members of the PSC (including Susil Premajayantha and Nimal Siripala de Silva aforementioned) for the Herculean achievement of summoning and recording the evidence of 15 witnesses, coming to a judicial finding of guilt recorded in a 30-page finding, and compiling a  1575 page report, all in the incredibly short period of 17 hours, without any assistance from the Chief Justice and her lawyers or even the four Opposition Members of their Committee, who walked out in protest at the patently unreasonable procedure adopted.

An unprecedented Constitutional crisis and the very real prospect of a chaotic situation are imminent.

The President, being a senior Attorney-at-Law himself, well knows that save and except for a brief period between 1972 and 1977 when the National State Assembly enjoyed some supremacy, Parliament has never enjoyed the kind of supremacy that is now being vociferously claimed, as now confirmed unequivocally by the Supreme Court’s determination aforementioned.

In these present circumstances this ominous, accelerating race towards absolute anarchy and destruction can only be effectively reversed by a display of exemplary statesmanship by the President and therefore the OPA earnestly urges the President, in the long term interests of our motherland, to take timely steps to avoid a catastrophe by suspending the process of impeachment already in place, and permitting saner counsel to prevail.

*Elmore Perera, Attorney-at-Law, Past President OPA 

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Latest comments

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    This comment was removed by a moderator because the comment language is English – CT

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      Many thanks for this Mr. Elmore Perera. Please keep up your GREAT WORK, be of good courage and know that you have many admirers.
      Mahinda Rajapakse must be impeached!
      The Rajapakse brothers have sought to cause great harm and disrepute to the sovereign people of Sri Lanka through blatant lies and by running a Kangaroo Court in the parliament and seeking to ruin and corrupt the judiciary by offering bribes and high posts to the CJ’s husband and causing the legislature to operate a Kangaroo court.
      MAHINDA RAJAPAKSE MUST BE HELD ACCOUNTABLE AND IMPEACHED. It is to be hoped that the best legal minds like you Mr Elmore Perera, Kanag Iswaran, Neelakandan, Romesh De Silva etc will be able to draft the IMPEACHMENT MOTION against Mahinda Rajapakse to free Lanka of the “curse of Kuveni” *Kuveinige Sapaya in Sinhala that is today manifest in the from of the Rajapakse family that is a scourge on Lanka today,
      Time has come to turn the tables and hold Mahinda Rajapassa ACCOUNTABLE
      Also, Academics and political analysts need to make the distinction between FORMAL or legal supremacy and SUBSTANTIVE supremacy. For the latter ethical and non-corrupt behaviour is necessary and the masses should be educated about this.
      The time is ripe to IMPEACH MAHINDA RAJAPAKSE.
      A parliament full of corrupt thugs and morons is not and cannot be supreme, NOR CAN THE EXECUTIVE whatever the constitution says – and contrary Rajapakse’s and Ranil Wickramasinghe’s claims that parliament is supreme. Substantive supremacy is the equivalent of natural justice or common law. It is more FUNDAMENTAL than formal or legal supremacy enshrined in any Constitution.
      It is hence that the time has come to IMPEACH MAHINDA RAJAPAKSE and his corrupt brothers and sons who are looting the public wealth and impoverishing the people of Sri Lanka

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    Nimal Siripala is no legal mind. Neither is ranil. Today Ranil has forfeited what little chance he had to be a statesman. He will nwver be accepted by the masses.Time has now come to form a Democratic national Front in sri Lanka. UNP will dissapear just as the Christian Democrats of Italy.

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    I cannot imagine, contrary to the writer’s opinion, that the rulers will willingly allow a crisis situation to arise, unless it reinforces or benefits them politically. For the latter, the public needs to be on side, reinforced if necessary, with a loyal military establishment, compliant mainstream media and large-scale control of financial resources. In such an event, the judiciary will be reduced to the role of a government servant, a mere functionary with no independent will of its own.

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      The regime did not foresee this crisis situation as they expected the CJ to walk away from confrontation because of her husband’s involvement in the financial irregularity at NSB.

      The regime has but no choice than to fight on as a climb-down will end with it losing face, which the arrogant Mahinda Rajapaksa will not accept. The good thing about this saga is that it will bring international opprobrium on the regime and will drive another nail into the coffin of the regime.

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    Dear Gentelman and readers of this news site, I am engaged in Constitutional Studies in the US. The Constitution of Sri Lanka is in plain English and needs no interpretation as the US constitution. Any one of fair intelligence who can read can do the same with the constitutions.
    These are documents to take heart and impliment what is plainly stated. To live by such documents as it brings wholeness, and justice to keep a fallen human kind going off”the deep end”. If our very own Lankan constitution is adhered to, our dear land in Asia can rise up from the gutters of filth this beautiful land has descended to.
    What is of desperate shortage is “intellectuals” and right thinking people to rise up,which in turn is a challenge exampled by Pol Pot and the Pinochet government. Is it not strange, that the very folks who are blessed in a nation to develop, to think and guide, are the very ones killed, abducted or dissappear?

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      Well said.

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    Let us face the stark reality: the refusal by the Executive and the Parliament to adhere to the SC ruling will give rise to virtual foisting of a dictatorship on the people because the moment the Parliament and the Executive cease to respect and abide by the SC ruling, the Constitution becomes a dead letter. To call such a situation a Constitutional crisis is a misnomer.

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    Ex Lankan QCs backed by the US, EU and Solheim with all their legal luminaries, couldn’t stich us up becuase of this Siripala.

    So you think a greedy CJ and her Hultsdorph Herd is the real deal.

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    K.A Sumanasekera

    “So you think a greedy CJ and her Hultsdorph Herd is the real deal.”

    Once a Sinhala/Buddhist legal hero Sarath Silva who was a celebrated CJ for his decision to de-merge East from North is a zero now.

    Once a Sinhala/Buddhist war hero Sarath Fonseka who was celebrated for winning the war is now a zero.

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    Reader Roger reading for a Law Degree in the US is a surprise ,going by the rude, crude and racist connotations about Srilankas in one of his previous posts in another column.

    For US citizens racist remarks are taboo even among the poor working classes ,

    Hopefully reader Roger will improve his etiquette as he reads more in his studies.

    In the mean time he should also write to the New york Times , Boston Globe and the Wall Street Journal alerting fellow American citizens about this “”filthy gutter” where the Hyatt Regency is going to build a 600 room Six Star Paradise.

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    There are serious charges against the C J.
    The C of A has ruled that the Inquiry under the Standing Orders of the
    Parliament , was void .
    The demand of the C J is that she be given a Fair and a Just trial .
    It is quite apparent that the trial / Inquiry , was not so .
    Due process of the Law with the dispensation of natural justice with
    adherence to the rule of law , is what is expected , Nothing more ,
    nothing less !
    If hitherto , mistakes have been made , they have to be rectified .It
    is a mark of Strength and not weakness , to rectify !
    The way out , perhaps the only way out , is for the appointment of
    Eminent, Unbiased Professionals to inquire into the charges and submit
    same to the S C , for comments , before disposal by the President .

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