31 July, 2021

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Sri Lanka Sets For A Constitutional Crisis!

By Laksiri Fernando

Dr Laksiri Fernando

It was incumbent on the Court of Appeal today, 3 January 2013, to rule an order on the writ applications filed by seven petitioners against the impeachment proceedings initiated by the ruling party in Parliament against the Chief Justice on 6 November 2012, coinciding with the Supreme Court ruling on the controversial Divineguma Bill. This Bill was initiated by the brother of the President, Minister Basil Rajapaksa. The Supreme Court ruling pointed out major flaws in the Bill in addition to several contraventions of the country’s constitution, which is supreme.

The ruling of the Court of Appeal says, based on its reference of the matter to the Supreme Court on 20 November 2012, as the writ applications had a major bearing on constitutional interpretation that the Standing Orders are not law and thus the Parliamentary Select Committee (PSC) has no constitutional power to inquire or to determine any misbehaviour on the part of the Chief Justice.

This should have been common sense, at least after the matters were raised, if not for the inglorious political campaign conducted by the ruling party and its media outlets. There are several PSCs under various standing orders, but can they or have they ever prosecuted anybody except on a matter of Parliamentary privileges which is allowed under the constitution? The latter is also a matter that needs to be carefully thought about in a review of the present constitution in the future. Giving any judicial power to Parliamentarians is like giving a razor to a monkey, however much the monkeys call themselves supreme.

It is true that a mock trial was conducted in 1984 against the then Chief Justice, Nevil Samarakoon, but no verdict was given having realized the inherent contradictions of the whole process. The governments in Sri Lanka have so far failed to rectify the situation irrespective of the promises given before the UN Human Rights Committee in 2002. Of course they can even call the UN imperialist or Western conspiracy. What is lacking in the impeachment procedure is an ‘independent judicial component’ outside of Parliament.

Parliamentarians are primarily law makers and not judges. They should bring good laws to the country without relying on the law of the jungle. When they try to transfer roles, trying to be judges instead of being legislators, it is like the donkey trying to do the dog’s job and then getting a good beating. We have a good example of their mockery of trying to act as a judicial tribunal in the PSC’s Kangaroo Court. They undoubtedly surpassed King Kekille.

We should guard ourselves, however, of excessively rejoicing at the Appeals Court ruling or excessively amusing ourselves about the hilarious acts, no doubt, that they conduct because of the serious political implications of the situation. This is a plain and simple, but a serious constitutional crisis. There had been no such a thing in the past. Even the colonial governor finally decided to abide by the decision of the Supreme Court in the Bracegirdle case in 1937. There had been no confrontation between the judiciary and the legislature backed by the executive before. There had been tensions or disagreements which are normal in a democracy under separation of powers. But there had been no head on clash between the two even during JR’s time involving fundamental constitutional issues.

People normally know that the politicians especially when they are in power open their big mouths. But such a venom and hatred against the judiciary as unleashed at present are completely unprecedented. Sri Lanka has experienced industrial strikes, aborted military coups, communal violence, insurrections and even terrorist separatism. But none of these events had led to an institutional or structural crisis in the constitutional framework of the basic democratic system in the country. There had been a decline and a deterioration, but not complete negation. The most problematic factor in the situation is that the onslaught against the so far accepted norms of the judiciary comes from the elected members of Parliament. Have they alienated themselves to such an extent from the accepted norms or do they have or work on a different agenda, knowingly or unknowingly?

There are indications that the country is at cross roads. We have come to a junction where the rulers wanted us to go further in the authoritarian direction. They are promising luxury for a few and only subsistence for the many. They have been painting the surface of the economy but not the substance. They have been neglecting education, health and the poor but emphasising on entertainment and luxuries of the few. First the academics resisted and now the judiciary is resisting in a different and an institutional manner. Some people may be confused because they are the ones who defeated terrorism. But instead of winning peace they are now creating new animosities between the communities.

There are some dangerous pronouncements. President’s brother who holds the armed forces under his tutelage recently announced that there is a foreign conspiracy against the country. He implicated the judiciary directly in this foreign conspiracy. A Sinhala extremist Minister who was a so-called judge in the Kangaroo Court went further and talked about an emerging situation of dual power, between the judiciary and parliament engineered by foreign forces. Many others have been talking in the same lines. These theories or theories of conspiracies cannot be easily dismissed as political rhetoric.

The vehemency of this propaganda must be having an agenda. It cannot simply be to oust the CJ or subjugate the judiciary. The government is undoubtedly is becoming unpopular day by day. They cannot deliver what they have promised. The country is running by leasing the resources to dubious quarters. The surface of the economy is inflated through IMF and Chinese loans. The inflated bubble might burs at any time. There is a widening gap between the expectations and possible achievements among the middle classes and the poor and the rich. The type of economy that they are now running is very much similar to North Korea that requires the squeezing of the democratic system, dissent and freedom of expression further.

We are in a crisis. The term crisis in Chinese parlance is not necessarily a bad thing. It means problems; it means prospects. The prospects are to seize the opportunity and change the situation. The coming months and weeks would be decisive in this respect. Wimal Weerawansa addressing the 7th Hour (Sathveni Paya) at Rupavahini recently lamented that the crisis was initiated by the judiciary. There is some truth in it in the sense that the judiciary has started asserting its independent role after so much of pressure and bullying in the past. It is a good sign.

With all the best prospects for the people to pressure the government to drop the impeachment charges and respect the independence of the judiciary, one sad thing in the present situation is the ambiguous policy of the main opposition party, the UNP. Their members have declined to respect the summons of the Court of Appeal very much similar to the position of the ruling UPFA. It is an internationally accepted norm that impeachments are subject to judicial review if constitutional transgressions are involved. The present impeachment in Sri Lanka is a clear case in this respect. It is hoped that the UNP soon makes a correction of this position without being too late.

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Latest comments

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    These clowns in parliment need to be put in their place. They are elected representatives of the people and have to obey the laws of the land same as any other citizen. They thought that they could treat the CJ like their servant at home. Enough of their nonsense. The people must assert their sovereignity and ask these jokers to go home.

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      All these crisis Laksiri thought ultimately resulted nothing and nothing at all … Crisis in the army, educational 6% crisis and all other crisis did not go anywhere and persons who originated these crisis are licking their wounds still .. So, this Black coat crisis would end up the same way … Earlier the better …
      This political circus by the blackcoats lead by CJ who is marching the same path as our main Sarath should be ended as soon as possible … These blackcoat clowns should be shown the door … Most of our politician in government and opposition are surely clowns … At least, people have a say at the elections regarding those clowns … Whether the decisions of the people are right or wrong is another matter … But, ultimate decisions are with the people and they would suffer if their decisions are wrong … But, only way to take out the corrupt judges through parliament and the process should be upheld … If the parliament is wrong, people who are the supremos in this land should take cate about these parliamentarians … The decision on judges should not be left to the ‘judges brotherhood’ at any cost especially since they have been showing their big BROTHERHOOD among themselves openly in everywhere.

      The institutions run by these blackcoats are the most inefficient, corrupt and ugliest in the land and even cricket governing body looks like saint compared them … People who are the most vulnarable and poor in this country die in courts struggling 29 years inside courts for a land dispute … After 29 years, still the case is not finished .. May be another 30 years to finish the case …. These people like Laksiri who wanted us to think these blackcoats community as saints and guardians of justice are taking the people of this country for ride … Their aim is too obvious … Regime Change … They never cared about the people of this country or the country … Any crisis they think in terms of Regime Change … People know these guys … Narrow minded with desire to take this country into Arabian Winter has no love for this country of ours … Luckily, they are pathetically bankrupt in politics … Always appealing to outsiders for help because they know they have no support inside …

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        What’s wrong with clown-politicians ruling clown-voters passively observed by a clown-judiciary?

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    What Constitutional crisis? When MaRa is he’ll bent on appointing a new CJ.Perhaps a self taught lawyer like the self taught ecomist Cabral Heading the Central Bank with excellent capabilities of cooking the books to show to the world how well we are doing in the Sri Lankan Economy.Heaven Help MARa and his cronies when the people open their eyes

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      Will it be with the ‘yes’ word of the leader of the so-called democratic party, the Uncle Nephew Party, with the nephew wanting to safeguard what the uncle did?

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    As Anura Kumara Dissanayake rightly said, if the parliament is supreme, it should be the same with the fish market. This is the stark truth.Mr S L Gunasekera, a gentlemen to the true sense of the word is on record saying that those who clamour that the parliament is supreme are a bunch of donkeys. What else can you say. This is the debacle of Asia

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      Very correct.

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    FINALLY THE CARAVAN HAS REACHED IT’S DESTINATION BUT THE SO CALLED DOGS ARE STILL BARKING AND SOON THEY WILL START BITING THE BALLS OF THE RIDERS. THAT IS ONLY IF ANY OF THE RIDERS ARE BLESSED WITH NON CANCEROUS ONES. THESE BARKING DOGS PREFER ONLY UNADULTERATED BALLS.

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      Oh Danny Boy, the Caravan has reached a DEAD-END. I think you would have been thinking of Wairawanse and Maravyn as the barking dogs. Yes, they will not bite the cancerous balls of their leader and the Speaker. The dogs will not find any unadulterated ones and they will go for the hanging and “hanchipaised” ones.

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    If there is indeed a “crisis” in the offing, that is not limited to the tussle between the two arms of government as the writer attempts to imply, then the outcome will be determined by who controls the armed forces, the finances and the media, and not those who interpret and apply laws and statutes in the abstract. These are the hard realities they face in Sri Lanka.

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    There cannot be a Constitutional crisis, because the Parliament and the Executive have to respect and abide by the ruling given by the Supreme Court and none can challenge the Supreme Court’s jurisdiction to interpret the Constitution. If the government pursued the impeachment proceedings notwithstanding the SC ruling, it would constitute a breach of trust placed in it by the people – an act of treachery! It would also amount to usurpation of the sovereignty of the people. Only a dictator would usurp the sovereignty of a people. And the Executive should be held accountable for the arising of such a situation.It is a misnomer to describe such a scenario as a Constitutional crisis. Because when you say ` a Constitutional crisis’, you have to presume that the Constitution is still in operation. But the moment the Executive or the Parliament ceases to recognize the legality of a ruling given by the Supreme Court, the Constitution will cease to exist! There will be anarchy. There will be a free-for-all. Therefore, we should not downscale the gravity of a such a situation to the status of a `Constitutional crisis. I am not a Constitutional expert. But this is how I read the picture.

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    The constitutional role of the Appeal Court was to make a declaration of interpretation and issue a writ of certiorari. The court has done that. It is not the court’s business to create an outcome beyond that. Civilised governments adhere to court declarations and ensure outcomes accordingly but a government like this that is intent on demolsihing the judiciary to complete its totlaitarian agenda will seek a different outcome. Sri Lanka is in the realm of the Absolute Star!

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      Shyamon! Shaymon! Shaymon!
      You are the absolute star …
      Read what Tissa Vitharana said about the ‘crisis’ on this page … I quote a passage from that below ..

      “In an interview with Daily FT journalist Chamitha Kuruppu,  when asked ‘is it justifiable to come to such conclusion by looking into only one side of the case?’ Viatarana said; “How can you say it is one-sided? This is all documented. What she should have done was, if she had evidence, produce that evidence to refute it. She was given time to produce written evidence. She didn’t do that. Giving evidence, Shiranee Tilakawardena said that this case was taken off her without her consent. Where in the world is a judge who is peculiarly interested in a particular case going and taking it from another judge and putting it into her court? Is it fair to do that? Do you justify that? Look at the bank statements. The amounts there are withdrawn in middle of March and statement at the end of March is blank. And then in April that amount of money is put back in the bank. If even a Government official had acted in that manner, it would be taken against that person. Here we are having the Head of the Judiciary doing that. We raised this matter at the party leaders’ meeting with the President. We asked President Rajapaksa why he appointed Shirani Bandaranayake’s husband Pradeep Kariyawasam as the Chairman of the NSB. The President said he did it under her specific request. President Rajapaksa did not want to antagonise her and therefore had to accommodate her request. Where in the world does a judge go and make such requests? When judges retire they are not supposed to take any posts, otherwise they will be offered things while they are acting as judges so they will be biased in those cases in anticipation of some reward later. These are ethical standards a judge has to maintain. Here we are talking about the Head of the Supreme Court of our country.”
      #################

      So your lilly white CJ asked president to appoint her husband as chairman of the NSB!
      Regarding this appointment, Laksiri F said president should be blamed!
      Shyamon, my friend, what do you have to say about this?

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        What a great reply!!

        We should go by this triple heresay (Tissa tells that MR told him that Shirani wanted)verdict. There is no need for a court or tribunal vested with powers given by LAW.

        Brilliant Bruno.

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    We have in Sri Lanka three bodies, the Executive, the Legislature and the Judiciary. All three have equal status, as long as they remain within their own space. When any one of the above start crossing boundaries we are going to have issues. If there is an issue between the Judiciary and the Legislature, then it is the duty of the Executive to bring about a solution or at least a settlement. In Sri Lanka this again is an issue. Some of the writers to various media have been suggesting that the President should defuse the situation. While this is an acceptable answer, knowing well that it was the President who gave the green light to the impeachment process, this again becomes a major issue. In a three way battle, or should I call it two way battle (Executive & Legislature on one side and the Judiciary on the other), a situation such as what we now see in Sri Lanka the only solution is for the Supreme Powers – the Power of the People of Sri Lanka to take over. How can this be done, well its time for a “New Year Uprising” of the masses similar to one that was seen in the Arab countries. This need not be violet but peaceful protest could do the job.

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    Oh my god, disaster! Laksiri is really excited.

    We have a crisis because Sri skandarajah has put the line in to fish in troubled water.

    Weliamuna, Wijedasa and Laksiri are salivating.

    We will see where this crisis is going in about two weeks. OK?

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    Where in the world does a President comply with such a request? Minister Vitarana should have sought an an answer to this question first?

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