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.