Nagananda Kodituwakku
Constitutional reforms: Proposals for establishment of true representative Democracy
On paper Sri Lanka is a REPRESENTATIVE DEMOCRACY, and the preamble to the Constitution recognises the immutable principles of REPRESENTATIVE DEMOCRACY and assures the people FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY.
Yet these objectives have never been realised in this island nation, which claims to be a democracy. There are very serious issues concerning the constitution making in this country and the ones discussed herein are highlighted to make the people aware of the serious abuses of their sovereign powers. These lapses are brought to the attention of the architects of the new constitution to realise the importance of making a constitution that makes all three organs of the government answerable to the people. This however cannot be achieved unless there is a genuine in the interest to break free judiciary from the clutches of the executive and legislative organs.
Article 3 of the Constitution recognises that Sri Lanka’s sovereignty is in the people and is absolute. This sovereign power includes legislative power, Executive power, judicial power, fundamental rights and franchise.
The Constitution also recognises the principle of Separation of Power and it states that the judicial power of the people shall be exercised by the ‘Parliament through the Judiciary’. [Article 4(c)].
It goes on to say that appointment of Judges to the Superior Court system to be made by the President on the recommendations made by the Constitutional Council from the names referred to it by the President (Article 107). [Under President Rajapakse situation was far worse as he (under 18th amendment) retained all judicial appointments under his absolutely control, effectively destroying the integrity of the justice system and people’s confidence in it with a appointment of one of his stooge to the office of the Chief Justice].
The interference with the judicial appointments in any manner weaken the integrity of the Judiciary, and this serious error required to be rectified, if the Judiciary is to be functioned independently and strictly enforcing the rule of law to the letter, against any person or body accuse of abusing people’s sovereign powers. This may include the Executive Presidents, Cabinet of Ministers, MPs or any other body or person responsible for abuse of office for improper purposes.
Need for administration of justice through an absolutely independent judiciary
As provided by the Constitution [Article 4 (c)] there is no reason for people’s judicial power to be exercised by the Parliament through the judiciary. The judiciary shall be made absolutely independent from other two organs to exercise people’s judicial power, with no interference whatsoever from other two organs.
As law provides the Supreme Court, the Court of Appeal and such other courts of first instance, are required to protect, vindicate and enforce the rights of the people including the judicial power (Article 105).
However, free independent exercise of people’s judicial power has been dented in this country with the power vested in the President (to make appointments to the judiciary (Article 107). This power allows the executive president to refer ‘suitable names’ of ‘his own choice’ for the approval of the Constitutional Council and then made such appointments.
People want robust judiciary
People want judiciary to function its constitutional duty effectively without any fear or favour. Therefore, it is proposed that provision to make appointments to the Superior Court System by the Executive President be removed with the power of election of persons shortlisted by the Constitutional Council vested in itself. Even while taking oath the constitution shall make provision for appointees take oath before the Chief Justice and in the case of appointment of the Chief Justice to make provision enabling the person elect to the office to take oath before the next senior most judge in the Supreme Court.
Judiciary violates law causing acute delays in dispense of justice
Right now there are 11 judges in the Supreme Court and the number of new cases being filed in Court on regular basis, is always on the increase and the Supreme Court is unable to dispense justice within a specified time scale.
Right violation cases and writ applications suffer for want of justice
The Constitution requires the Supreme Court to hear and determine right violation cases within two months from the date of initiating of such actions (Article 126). Yet there is a large volume of right violation cases pending in Court for several years and in some cases the delay is over 5 years. The law (Article 104H) also requires that cases filed in the Supreme Court against the Election Commissioner too shall be heard and determined within two months.
The courts must made free to discharge its constitutional duty
Recently the government permitted appointment of over ten candidates who were rejected at the last General Election 2015 through the party secretaries. And some of them have been Cabinet ministers. Right now there are several cases filed against these appointments.
The law requires such cases shall be dealt with speedily and effectively and the delay in dispensing justice, naturally tantamount to the violation of the Constitution. Although it is very unfortunate, this is what the people of Sri Lanka experience in reality.
Owing to this unacceptable standards of dispense of justice, people have lost their faith and confidence in the justice system, compelling the international community to intervene and made the government of Sri Lanka to set up a hybrid court system to hear and determine cases. In this regard all three organs of the government are to be blamed for this awful situation.
What matters here is not a court system with international judges but a court system with adequate number of judges with a proper case management system put in place. The proposed action plan is a must that should perform according to a pre-specified mandatory time scale to discharge justice. There shall be no postponement of cases for want of time for lapses on the part of the lawyers representing both the state and the private parties and judges. This is the only way forward to restore people’s trust and confidence in the justice system.
Under the existing constitution the Supreme Court is permitted to make rules (Article 136) and it is proposed to introduce mandatory clause, compelling the justice system to be accountable to the people with specific provisions made for case management as mentioned above, assuring of effective and speedy disposal of justice sans laws delays.
Like in other countries, where the justice systems are designed to discharge their duties effectively, the Supreme Court shall make strict rules applicable to both the Attorney General Department and the Private Bar. The absence of a Lawyer/Lawyers shall not be tolerated. The lawyers representing their clients shall be held responsible, in the event a lawyer cannot make available for whatever reason, to make adequate arrangements to proceed with cases. The justice system shall respect the people’s acute desire for speedy disposal of justice with no room whatsoever for requesting for dates, the major cause of denial of justice to the litigants in this country.
Leave no room to demean the principles of Representative Democracy
The judiciary shall be vested with full power to compel the two organs respect the constitutional norm ‘representative democracy’, ensuring all organs strictly adhere the procedure established by law, when any bill is presented for the purpose of amending or repealing the Constitution.
To preserve a real democracy with a delicate balance between its elements (Parliament, Executive and Judiciary), a formal constitution with entrenched provisions is always preferable, to curtail improper meddling with the constitution. To operate effectively, a Constitution should enjoy normative supremacy and should not be as easily amendable as a normal statute, with judges given adequate power to review the constitutionality of amendments (Aharon Barak, Professor of Law and Chief Justice of Israel 2012 in ‘The role of the Supreme Court in a Democracy’).
Due process is habitually ridiculed
This norm of Constitutional making is duly recognized in the Republican Constitution (1978) in Chapter XII with specific provisions made for amending or repealing the Constitution.
The Article 82 of the Constitution requires that any amendment to the Constitution shall not be placed on the Order Paper of the Parliament unless in the bill it is described as being an Act for the Amendment of the Constitution and Article 78 requires that no such bill shall be placed on the Order Paper unless published in the Gazette (for the information of the citizens) at least fourteen days before it is placed on the Order Paper of the Parliament. Article 83 further provides that no law to amend the sovereign rights of the people, including the fundamental rights and franchise can be made law unless people’s approval, for any such denial of their rights, is obtained at a referendum.
Evidence of abuse of law making process for private benefit
Yet, the Executive President JR Jayewardene in 1988, and President Mahinda Rajapaksa in 2010, blatantly violated the procedure established by law when 14th and 18th Amendments were brought in as ‘urgent bills’ denying the citizens any opportunity to exercise their sovereign rights of challenging the bills for their consistency with the supreme law the Constitution. And it was very unfortunate that in both these occasions the Judiciary had failed to enforce judicial power of the people appropriately, compelling the executive to follow the due process established by law. Instead it permitted the executive to abuse the people’s executive power, by approving the said two bills to be passed as urgent bills.
People’s sovereign rights betrayed
In April 1988, when the 14th Amendment bill was referred to the Supreme Court by the then Executive President, JR Jayewerdene, who introduced the National List provision (Article 99A), permitting the political party Secretaries to elect rejected Candidates to the Parliament, the bill was never published in the gazette for the information of the citizens, denying them any opportunity to challenge the constitutionality of the bill. Making it worse, when the Supreme Court was requested to make available a copy of the draft bill to make objections against the content, the Court simply refused the request and ruled that the said provision (Article 99A) was not inconsistent with the Article 3 of the Constitution, a fatal failure on the part of the judiciary.
And once again in September 2010, when President Mahinda Rajapaksa want to bring the 18th amendment), for his private benefit (to contest the Presidential Election for a 3rd term), once again the due process was violated in amending the Constitution. It was unfortunate that here too the Judiciary, that exercises people’s judicial power on trust, failed to protect the democratic rights of the people and allowed the passage of the bill unhindered.
What is cited here are two glaring examples of cases, where the law has been openly flouted to satisfy the hunger for power of two individuals, who held the office of the Executive President of Sri Lanka, who are directly responsible for destroying the norm of representative democracy and for causing tremendous damage to the furtherance of the democracy in this island nation.
Take corrective measures to free the judiciary from clutches of Executive
Therefore, at this crucial juncture of enacting a new Constitution for the ‘representative democracy’ of Sri Lanka, in the interest of the country and the people, it is of paramount importance that the framers of the new constitution take due notice of these lapses and take appropriate corrective measures to free the judiciary from any form of control whatsoever of other two organs, permitting it to function strictly as required by law.
This is the only way forward to restore the rule of law and good governance saving the nation from endless corruption-riddled rule.
Libra / January 3, 2016
Thanks for this highly overdue point of view, Nagananda.
Hopefully ‘those who matter’ will get to see this, although it may not make even a dent in their collective power-hungry consciousness. All these bozos care about is how much they can gain with their temporary positions of authority.
Talk about a ‘can of worms’!
/
Jagath Fernando / January 3, 2016
Naga
Thanks for fighting on behalf of all of us.
Unfortunately the judiciary has been politicized since 1977 an every President is responsible for the current state with MARA being the worst. Every CJ made use of his/ her position whilst in office and delivered some shocking judgements as well.
The system is so corrupt that some senior counsel appear in the SC depending on who the bench is !!!
Hope that one day the judiciary will be free from political influence.
Also we need some good judges who could write some decent judgments. Let’s be honest that there is a gradual deterioration of the legal profession just like any other profession.
Many thanks for all your hard work.
Many thanks for not acting like Nihal Sri who gets paid hundreds of millions by the state for fighting public interest litigation.
/
Adrian / January 3, 2016
1. The Constitution also recognizes the principle of Separation of Power and it states that the judicial power of the people shall be exercised by the ‘Parliament through the Judiciary’. [Article 4(c)].
4(c)article should be changed to…‘Judiciary through the Parliament’.
2.It goes on to say that appointment of Judges to the Superior Court system to be made by the President on the recommendations made by the Constitutional Council from the names referred to it by the President (Article 107). [Under President Rajapakse situation was far worse as he (under 18th amendment) retained all judicial appointments under his absolutely control, effectively destroying the integrity of the justice system and people’s confidence in it with a appointment of one of his stooge to the office of the Chief Justice].
This should be amended to that the appointments are made by JSC on the recommendation of CC.
Good suggestions.
/
Naga / January 3, 2016
What is needed in Sri Lanka today is a fearless judiciary with judges who are capable of rising above petty personal and political considerations in dispensing justice according to the true tenor of law.
Having in place an impeccable system for the appointment of judges alone, be it to higher judiciary or to the lower courts, either through the Constitution or other statutory laws, would be useless if the persons appointed as judges are incapable of resisting political and or personal pressures.
Common Law countries follow different procedures in the appointment of judges to the superior courts. Some countries like the United Kingdom have laid down detailed statutory procedures for the appointment. However, in all cases it is the head of the executive who makes the formal appointment.
I summarise below the procedures followed in United Kingdom, the United States, Australia, India and Canada. Sri Lanka can adopt or copy one or more of these procedures which have ensured the independence of judiciary in these common law countries.
United Kingdom
In my opinion, the most elaborate statutory procedure in the appointment of superior court judges is followed by the United Kingdom. In UK, the Queen makes the appointment on the advice of the Prime Minister which is based on the recommendation made by a selection commission forwarded to him by the Lord Chancellor.
The selection commission makes the recommendation based on merit. The selection commission itself is convened by the Lord Chancellor and chaired by the President of the Supreme Court of UK. The Deputy President cannot be a member of the selection commission and in his or her place the President nominates a senior judge from anywhere in the United Kingdom but that person cannot be a judge of the Supreme Court. In addition there is a member of each of the Judicial Appointments Commission for England and Wales, the Judicial Appointments Board in Scotland, and the Judicial Appointments Commission in Northern Ireland. At least one of those representatives has to be a lay person. Nominations are made by the Chairman of the relevant Commission/Board. If a commission is convened for the selection of a person to be recommended for appointment as President of the Court then the out-going President may not be a member of the commission. In those circumstances the commission is to be chaired by one of its non-legally qualified members.
The commission must have regard to any guidance given by the Lord Chancellor as to matters to be taken into account but such guidance must be subject to the provision in the Crimes and Courts Act 2013 in making a selection. In practice each selection commission determines its own process.
A set of people must be consulted by the Selection Commission before making its recommendation. These are senior judges and include the judges of the Supreme Court; the Lord Chief Justice of England and Wales; the Master of the Rolls; the Lord President of the Court of Session; the Lord Chief Justice of Northern Ireland; the Lord Justice Clerk; the President of the Queen’s Bench Division; the President of the Family Division; and the Chancellor of the High Court. In addition the selection commission has to consult the Lord Chancellor, the First Minister in Scotland, the First Minister in Wales and the Secretary of State for Northern Ireland.
The Selection Commission must make just one person only for the judicial position. The selected person must have held high judicial office either as a High Court judge or Appeal Court judge or Judge of the Court of Session in England and Wales or of Northern Ireland for at least two years. Alternatively, he or she must satisfy the judicial-appointment eligibility condition on a 15-year basis, or have been a qualifying practitioner for at least 15 years.
Once a selection commission has made its decision, it must submit a report to the Lord Chancellor which must state: who has been selected; who was consulted; and which contains any other information required by the Lord Chancellor. Lord Chancellor may ask for any further information not included in the report.
The Lord Chancellor is under a statutory duty to consult the senior judges, any other judge who has been consulted, the First Minister in Scotland, the First Minister in Wales and the Secretary of State for Northern Ireland. Lord Chancellor can invite a reconsideration or he can reject a candidate. But if he does either of those he must give reasons.
If, following these consultations, the Lord Chancellor is content with the recommendation made by the selection commission, he forwards the person’s name to the Prime Minister who, in turn, sends the recommendation to the Queen who makes the formal appointment.
Australia
In Australia, appointments to the High Court of Australia are officially made by the Governor-General in Council. However, in practice, appointees are nominated by the Prime Minister, on advice from the Cabinet, particularly from the Attorney-General of Australia.
Since 1979, the Attorney-General has been required to consult with the Attorneys-General of the states and territories of Australia about appointments to the court. The states merely have a consultative, rather than a determinative, role in the selection process.
There are no qualifications for Justices in the Constitution other than that they must be under the compulsory retirement age of 70. However, the High Court of Australia Act 1979 requires that appointees have been a judge of a federal, state or territory court, or that they have been enrolled as a legal practitioner for at least five years with either the High Court itself or with a state or territory Supreme Court. There are no other formal requirements.
The appointment process in Australia stands stark contrast with the highly public selection and confirmation process for justices of the Supreme Court of the United States or the detailed vetting process in UK. It must be noted that despite the lack of public process, Australia’s High Court justices have upheld the independence of the judiciary and the quality of appointees had seldom been disputed even though both former conservative and labour politicians had been appointed as High Court justices.
United States
In the United States, the President appoint Justices to the Supreme Court of the United States, but their appointments involve several steps set forth by the United States Constitution which have been refined and developed by decades of tradition. Justices appointed by the President must be confirmed by the United States Senate. This is presently done following a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee.
It is a fact that most Presidents nominate individuals who broadly share their ideological views. But in many cases, a Justice’s decisions may be contrary to what the nominating President anticipated. An example cited was Chief Justice Earl Warren who was appointed by President Dwight D. Eisenhower expecting him to be a conservative judge, but his decisions were seen as among the most liberal in the US Supreme Court’s history. Another example was the appointment of David Souter, who was nominated to the high court in 1990 by President George H. W. Bush. He was at that time expected to be a conservative but his opinions were seen as more liberal.
The US Constitution does not set any qualifications for appointment as a Justice, and the President may nominate anyoneto the Supreme Court. However, that person must receive the confirmation of the Senate. The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.
A simple majority vote is required to confirm or to reject a nominee and once the Committee reports on the nomination, the whole Senate considers it. Rejections are relatively uncommon. It is also possible for the President to withdraw a nominee’s name before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed.
India
In India, independence of judiciary is held to be a basic feature of the constitution. The Judiciary interprets the Constitution. Mandated by the Constitution, it acts as a watchdog, by calling for scrutiny any act of the legislature or the executive from overstepping bounds set for them by the Constitution. It protects the fundamental rights of the people, as enshrined in the Constitution, from infringement by any organ of the state. This has resulted in a whole lot of public interest litigation. It also balances the conflicting exercise of power between thecentre and a state or among states, as assigned to them by the Constitution.
Indian Constitution assures independence of the judiciary by providing that no minister or even the executive collectively, can suggest any names for appointment as judges, to the President. It is the President of India who ultimately decides on appointing Supreme Court and High Court judges from a list of names recommended only by the collegium of the judiciary. The collegium is a closed group of the Chief Justice of India and the most senior judges of the Supreme Court make recommendations for appointments to the Supreme Court. The same group together with the Chief Justice of a High Court and its senior-most judges, makes recommendations for appointments to the High Court.
Judges of the Supreme Court or a High Court of India cannot be removed from office once appointed, unless an overwhelming two-thirds of members of any of the Houses of the Parliament back the move, and that too only on grounds of proven misconduct or incapacity. A person who has been a judge of a court is debarred from practicing in the jurisdiction of that court.
However, the Indian collegium system has come under criticism. There are now moves by the Supreme Court to improve the selection process.
Canada
In Canada, Justices of the Supreme Court are appointed by the Governor General-in-Council, based on the advice of the Queen’s Privy Council for Canada. By tradition and convention, only the Cabinet, a standing committee in the larger council, advises the governor general and this advice is usually expressed exclusively through a consultation with the prime minister. The Canadian provinces and parliament have no formal role in such appointments.
The Canadian Supreme Court Act limits eligibility for appointment to persons who have been judges of a superior court, or members of the bar for ten or more years. A Supreme Court Justice, as with all federal judges, may sit on the bench until the age of 75 years, at which age retirement is mandatory.
/
shankar / January 3, 2016
how are you going to stop the minister from interfering into the judicial system.he will say he is responsible for the portfolio so he has to put his two cents worth.The present minister blocked the avant garde probe and i personally know of the former minister interfering and getting good outcomes for his supporters and clinging onto that post like a leech.
Once you have a minister of justice you are automatically corrupting the system because you are throwing it into cow dung,because the political culture is just that and the buggers don’t have any principles.
the moral of the story is never have a minister of justice until our democracy matures enough that people start to trust politicians again.
/
Plato. / January 3, 2016
Not only the Citizens of this country but even Judges of the Supreme Court should be grateful for this single handed crusade of Lawyer Nagananda.
If the Judiciary is rid of any form of control,permitting it to function strictly as required by Law,the Judges too will earn the respect and regard of the people.Unfortunately,this has not been the case for several years now.
Cheers Nagananda all the way!
/
Uthungan / January 4, 2016
Plato
In that regard, let us hope that the SC hearing postponed by the CJ for 26th January on the matter of nominating defeated or rejected candidates to parliament under the National List by Mr. Nagananda, will bring something positive in the interest of democracy and justice in the New Year for the people of the country.
/
sella / January 3, 2016
I agree that without independent and robust judiciary our country has immensely suffered for which the executive is directly responsible,
Since the British returned home, the locals were given option to rob the nation and we, the people of Sri Lanka have suffered enough in the hands of utterly corrupt governments, this cannot allowed to go on and on. It is we who should take an initiative in the right direction.
In this country it is we, the people who holds all power, the SOVEREIGNTY.
What Parliament, President and judiciary exercises is our power on trust and we don’t want any of them to have any kind of control over the affairs of another.
We want media to play its role when any of these found abuse our power.
We want all these to respect the principle of Representative Democracy, which cannot function appropriately, unless all organs respect the norm of separation of power.
Therefore, the framers of the new constitution must make sure that Executive plays no role in the selection or appointment process of judges.
/
punchinilame / January 3, 2016
This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/
/
Dias / January 3, 2016
I agree with the following mentioned in the Article.
‘And once again in September 2010, when President Mahinda Rajapaksa want to bring the 18th amendment), for his private benefit (to contest the Presidential Election for a 3rd term), once again the due process was violated in amending the Constitution. It was unfortunate that here too the Judiciary, that exercises people’s judicial power on trust, failed to protect the democratic rights of the people and allowed the passage of the bill unhindered’.
There is no question that in Sri Lanka there exists a powerless justice system functions of which totally depends on the mood of the executive.
Best proof in this regard is the statement made by PM in the Parliament on 29th Jan 2015, about the credibility of Justice system particularly about the Chief Justice Mohan Peiris. He had promised PM to give any judgement the way government wants, and let him hold the office, the thing he did since appointed as CJ by President Ranapakse.
The one who held office and unceremoniously removed, CJ Shirani Bandaranayaka was not an exception. When she was in the good books of Rajapakse, she did all dirty work for Rajapakse, and approved the 18th amendment empowering Rajapakse to have absolute control of judicial appointments.
And when Rajapakse wanted to contest for 3rd term he referred the matter to Supreme Court and ALL JUDGES in the Court accepted it as a ‘National Issue’ and unanimously approved Rajapakse’s request.
The best example of holding total control over judiciary by the executive is the recalling of CJ Shirani Bandaranayake only for 24 hours, permitting her to claim all her retirement benefits, pack her things and go home. She meekly followed this direction. At least she should have courage to inform the people of this country, persecution she was subjected to and the state of judiciary in this country, that function under the firm grip of Executive, which however, she didn’t do.
In fact, CJ Bandaranayake was dispatched home, 7 years before her retirement. Ant then came Kanagasabapathy Sripavan. This is the sorry state of judiciary of this country.
In the given circumstances, it would be a daydream, if one thinks that the new CJ would be able to uphold the Rule of Law in this country.
/
justice / January 3, 2016
In Sri Lanka, we have what is known as a “Select Committee of Parliament” which can “examine” a Chief Justice while keeping him/her standing and intimidate/abuse him/her using unparliamentary language, judge his/her conduct and “impeach” him/her.
This does not occur in any other democracy.
This situation needs to be corrected.
/
Jim softy / January 3, 2016
There are no democratic countries in the world. Strong countries need only their system.
Some countries could not solve their drug problem for generations. So, they used it to destroy other countries. Sri Lanka is going through that. They also spend money to spread their agenda in other countries. If they can not they destroy those countries as well as the leaders, That is how Suddam Hussein, Gadhaffi …became villains and Venezuela president suddenly got deadly cancer and died.
They also pay Journalists to write their agenda.
I think, they knew Mahinda rajapakse was difficult to handle, that is why they were against Mahinda Rajapakse.
See how blacks are treated in the USA even though the president is a black.
/
Inspector Dirty Hari / January 3, 2016
Nagananda,
Thank you for your work.
/
BBS Rep / January 4, 2016
You are not alone Nagananda. We are with you. Your single minded efforts must be lauded though it is an uphill task to make our undemocratic country a real democracy.
/