21 October, 2021

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The Appointment And Dismissal Of Judges Is The Sole Privilege Of The Executive President

By AHRC

The judgement of the Supreme Court which was given last week held that the judgement of the Court of Appeal allowing the writ of Certiorari on the parliament of Sri Lanka was wrong. The simple argument of the five judges is that the parliament of Sri Lanka, like the parliament of Great Britain enjoys supremacy of parliament which excludes the possibility of any jurisdiction being exercised by the courts over anything that it does. The issue before the court was about the legality of the dismissal of the former Supreme Court judge, Shirani Bandaranayke who claimed that her rights had been violated as the due process of law was not observed in her dismissal. The implication of the Supreme Court judgement is however, that the due process of law is not a relevant matter where the dismissal of the Chief Justice is concerned . If the parliament so wishes, it can dismiss a judge of the Supreme Court, including the chief justice without observing due process. If that was not the case, the judgement implies, it would be a violation of the principle of the supremacy of the parliament.

Mahinda, Mohan and BasilThe argument may be explained by way of the following simile: a man goes to the doctor and complains that he has lost a leg due to an accident and wishes to obtain treatment. The doctor, who has peculiar habits, tries to console the man by making an argument. He tells the man that is OK; he has not lost a leg and he can prove it. The man is thoroughly surprised and asks the doctor to do so. The doctor then tells the man, you are a human being. All human beings have two legs and therefore you are presumed to have two legs. This is impeccable logic, the doctor tells him and there is nothing more to say about it.

The principle of the supremacy of the British parliament is premised on the basic assumption which is that the parliament of Great Britain would not abuse its supremacy and the development of principles, norms and standards are the basis on which the supremacy principle is based, like every other such principle.

Now what we have to conclude is that there is also the assumption in Sri Lanka that the country’s parliament will not abuse its supremacy. That is the assumption that has now become part of the law of Sri Lanka in terms of the judgement announced last week by the Supreme Court. We must assume that the parliament of Sri Lanka will not abuse its supremacy.

Particular historical circumstances in Sri Lanka reveal that in 1978 a constitution was promulgated and within that constitution it is the president that has the sole executive power and that parliament itself has been subordinated to the authority of the executive president. It is not relevant to look into the issue of the assumption that parliament is supreme and that it will not abuse its supremacy. After all, the 1978 Constitution is only a matter of history and we should not pay too much attention to actual history but go by the assumption on which the constitution operates. Whatever may have happened in 1978 and thereafter in Sri Lanka is quite irrelevant. The sacred assumption that parliament is supreme is inviolable and we must all believe in this inviolable principle whatever may be the particular history of the country.

A further assumption on which the Supreme Court judgement is based is that Sri Lanka is a common law country. Has Sri Lanka ceased to be a common law country by way of the adoption of a constitution in 1978 which goes against all the principles of common law and should this be treated as an irrelevant matter. The assumption is that Sri Lanka was a common law country and it will always be a common law country regardless of whatever a particular constitution may be and how the country functions. The abuse of the common law, and, in fact, the complete disregard for the common law by the adoption of an authoritarian constitution is merely a passing matter of history. What a nation should be governed by is the assumption on which the British system is based and the British system is based on the supremacy of the parliament and therefore for all time, Sri Lanka will be bound by this principle whatever a particular government or parliament may decide to do by way of the adoption of laws and even constitutions that go against the common law altogether.

The judgement of the Supreme Court has established a principle which from now on will be the law in Sri Lanka that whatever the particular method by which judges are dismissed is irrelevant when considering their legality. Whichever way the parliament decides to dismiss a judge it is valid because of the sacred principle of the supremacy of parliament. The 11th and the 12th respondents cited many cases from India to show that, in India, the courts have, in fact, interfered with the decisions of the parliament when the courts were of the opinion that the parliament had violated the basic structure of the Indian constitution with certain decisions. A large number of Indian cases were cited but the Sri Lankan court thought to ignore these citations and did not comment on them in their judgement. The Sri Lankan Supreme Court did not try to distinguish these Indian judgments from the judgement that they have made in this case. The Supreme Court of Sri Lanka has taken note of the submission by the 11th and 12th respondents the case of Arunanda Barathy vs. the State of Kerala and another (1973) that the safeguarding of the basic structure of the constitution is the task of the court. However, by implication, the Supreme Court of Sri Lanka, in their judgment, does not agree with this position. On the basis of the supremacy of the parliament, the basic structure of the constitution is irrelevant.

What is to be taught to law students from now on

The problem that will arise for any person who will teach constitutional law to students and others in Sri Lanka arising from the Supreme Court judgement is that it will not be possible to teach anymore, that there are specific safeguards to be observed in the appointment and dismissal of judges as a prerequisite of safeguarding the independence of the judiciary. There cannot be such safeguards when the parliament has the sole authority to dismiss any member of the judiciary in whatever manner it chooses. The new principle that would have to be taught to law students in Sri Lanka is that the old principle of safeguards to be observed in the appointment and dismissal of judges is no longer valid as the parliament has the sole power to dismiss any judge in whatever manner and by whatever procedure it chooses. Judges have no jurisdiction to challenge the parliament in regard to whatever procedure that it adopts in the dismissal of judges as the notion of the supremacy of the parliament is inviolable and sacred.

Normally courts are expected to inquire into false allegations and to discover the factual and the historical reality behind political claims   But in Sri Lanka, whatever that is claimed on behalf  of the government is now taken as the truth.

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Latest comments

  • 7
    0

    Sri Lanka’s constitution, grants, but does not protect the rights of citizens any more after the Supreme Court decision delivered by the Lebbe’s son.

  • 0
    4

    Sri Lanka’s constitution, grants, but does not protect the rights of citizens any more after the Supreme Court decision delivered by the Lebbe’s son.

  • 1
    3

    Sri Lanka’s Constitution grants but does not protect the rights of Citizens after this judgment delivered by the Lebbe’s son.

  • 5
    0

    A good explanatory essay. How independent can be a parliament that is at the beck , call and abject service of the Executive President? Could a parliament working to the dictates of the EP and is subservient to him, be supreme? Even the 1978 constitution , despite the large holes in its details, defines the three pillars of state as the Parliament, the Executive and the Judiciary, which are independent, though interactive and interdependent. In the instance of this judgement, however debatable it was, wasn’t the Supreme Court the only instrument that had the right to affirm the right of the parliament to do the right thing wrongly or the wrong thing wrongly?

    There is no doubt this judgement has opened a Pandora’s box, which will lead to manifold problems in the future, unless the constitution itself is re-written, to close it again.

    Dr.Rajasingham Narendran

    • 1
      0

      The Parliament would not be supreme when the elected President has executive powers, as is the case in France and the US. In the UK it is another matter when the Parliament to all appearances is endowed with this power when the Queen (the Head of State) is merely a figurehead. As is evident in the US the President acts on his own whenever he can without the approval of the Congress and/or the Senate even though they are meant to act as moderating influences. The Head of State can and does on occasion veto the demands of the said bodies.
      The Judiciary is independent, but the President has to appoint to the higher statum from the available pool, with which he cannot interfere.

      • 0
        0

        Surely one of the basic differences between the British and Sri Lankan sytems is that Britain does NOT have a written Constitution, which is why the British Parliament is supreme, whilst the Sri Lankan or Indian Parliaments are governed by Constitutions and are subject to it.

  • 13
    3

    Sri Lanka as a country is a sham:

    It has no independence of a pliant justice system, no rule of law, dysfunctional police, war crimes accused military, no democracy, opposition bought over with public funds; white van disappearances, torture, rape all with impunity, arbitrary land grabbing by the state, immense corruption by the ruling elite, and the list is endless.

    It is morally and functionally a decadent state, where the minsters, MPs and the president have no integrity; they are liars and cheaters. The society is racist and keeps on electing these rogues to power.

    What a sorry state of affairs independence has been brought on the society by rogue, unscrupulous and crocked leaders since independence.

    • 3
      3

      But still you are wasting your time in a Sri Lankan news site but not on a UK news site aren’t you? What obsession do you have with Sri Lanka?

      • 0
        0

        My understanding is that CT is not for Sinhalese only like lankaweb.

      • 1
        0

        what a stupid reply “liberal” one

      • 0
        0

        Same obession you and everyone else here has, that being we Tamil or Sinhala have called SL home for well over a millenia and in the case of Veddah a lot longer than that.

      • 0
        0

        Liberal one, You seem to be a fan of BBC and CH4, the mouth pieces of the British regime.

    • 0
      0

      Thiru,
      Have you heard of a place called India that nothing of what you list ever happens? I wish people will realize this fact and move there for a better life.

    • 1
      0

      Jehan,

      Why did Dayan J, unabashed bootlicker of the Rajapakses, in his well-attended speech at the Colombo Club (Taj Samudra) end by saying he fears for what is likely to happen in the country after March. Why did Lalith Weeratunga warn of “chaos in the country” if the US Resolution in Geneva is adopted next month. Both remind one of the Great Fox JRJ’s interview given to Paul Sieghart of London’s Daily Telegraph a few days BEFORE the July 1983 pre-planned pogrom against the Tamils where JRJ cold-bloodedly said “From now on Tamils will have to take care of themselves” And then during the week after the attacks made his outrageous justification on National TV “the Sinhala people have reacted”

      It is time this habitual inclination to hold innocent Tamils hostage to gain political advantage is done away with.

      R. Varathan

  • 10
    0

    This ruling by the supreme court is a laughing matter, not only in Sri Lanka but all over the world. By this decision it has been clearly brought out to the whole world that our justice system is a unjust system. First of all the Cheap Justice who got appointed by an illegal act as per the earlier ruling of the court decides to select the bench. The bench then decides the earlier ruling was null and void. So an illegal act made a legal act null and void.

    This new ruling in my mind has created more trouble for SL. As per this rule tomorrow a drug dealer (politician) who is judged by the courts to be hung for the violation of the law can be pardoned by his colleagues who have the majority in the parliament and the courts can do nothing as this case has decided that parliament is above the law of the land. What a shame and a sham!

  • 6
    0

    This man deserves bullets rather than the ballots.

    He is the nucleus to all entwined crime and drug menace that the country face today due to his negligence towards the implementation of rigorous law and order by 17 Amendment of the current constitution.

    • 3
      0

      Time has come to stat with molotov cocktail. People should rally round to stand against the brutal tyranny of Rajapakshse Oligarchs.

      Enough is enough. Now they have gone beyond all bearing.

    • 0
      0

      Sun, we Tamils have learned a lesson at a great price. Bullets achieve only one thing; Self-destruction. You want to see a prosperous future for Sri Lanka, get rid of the bullets.

  • 6
    0

    What it shows is that the Judiciary is subordinate to the Impunity of Parliament. And the Parliament is subordinate to the Impunity of the Executive. Impunity is a key element in the Constitution of Sri Lanka.

  • 6
    1

    The Chief Justice we have should be taken to Galle Face green, stripped naked and be done to what he deserves from the rear.

    • 4
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      Today the situation is seen as a state with no Chief Justice. Cheap Justice appointed by them is on party mood. He is to please them in power. The style has now become beyond that of Mugabe, Gaddafi or the like. The Common wealth countries should put all pressures on this failure state finally removing the all abusive president- but not allowing him to leave the country for any other places. My wish is at least to rise a coup realizing the people’s agony by being unable to face the life but being compelled to listen/watch familial abusive performances. People are not that far to react to the very manner Ukraine opposition or the arab spring did the job – billions grabbed by this highly corrupted men should be confiscated putting them all in life long imprisonment.

  • 0
    0

    All by rules and regulations promulgated under the Parent Act and passed by Parliament would not be subject to judicial review in terms of the JUDGEMENT Even the much celebrated JUDGEMENT of Weeamantry in RVDB Case has been negated.

  • 7
    0

    Why AHRC not taking actions against corruptive magistrates who protect illegal garages? 25% cancer hospital patients had lived around the illegal garages more than 10 years. Cancer, headache, skin diseases and disable kids, hearing defects and many more non-curable diseases are happening due to these garages. But many Magistrates are protecting them for money, sex and other influences. If you do not have CEA approval and 40 perches and access road around 20 feet and safe zone you cannot operate spray paintings/tinkering/welding garages in residential areas. These garage owners scare the residents and take forcibly letters and some give money and take letters and some are taking letters from relatives living around these illegal garages. Therefore police cannot do anything and some police officers take money and protect these garages. Mount Lavinia police station is very famous for protecting these garages. Three Wheels and old vehicles are the main customers of these garages. Most of these garages are place for crime, drug and breaking the robbed vehicles. Many robbed three wheels are reassemble in these garages. Piliyandala Police station is directly protecting many of these garages. Where is law and order?

  • 0
    0

    Practically [Edited out] rajapassas are thieves. I know a rajapassasa close associated in gamapaha a mudalali who [Edited out]
    Part of 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/

  • 2
    0

    It seems that the AHRC’s reading of the Supreme Court (SC) judgement is rather inaccurate. An accurate reading of the judgement which is available on the SC’s website reveals that the Court never articulated the supremacy of the Parliament over the Judiciary. (The SC website is available here, http://www.supremecourt.lk/images/documents/sc_appeal_67_2013.pdf)

    All that the SC held was that the Parliament was not “inferior” to the Court of Appeal, and that too in relation to Article 140 of the Constitution:

    …in the light of the constitutional arrangements contained in Article 4 and other provisions of our Constitution, there is no room for doubt that Parliament including its select committees cannot be regarded as inferior to our Court of Appeal when it exercises its writ jurisdiction conferred by Article 140 of the Constitution… (at p.18)

    This cannot be interpreted, as the report by the AHRC has, to mean that the Parliament is supreme – for even a layman would understand that the phraseology does not imply so. A finding that the Parliament is not inferior to the Court of Appeal does not mean that the Parliament is supreme. In fact, in the Sri Lankan Constitutional setting all three organs of government have equal status – sharing powers under the doctrine of separation of powers and checks and balances.

    The judgement of the SC in this instance is an inevitable outcome of the current constitutional setting in Sri Lanka. The AHRC’s report states “The implication of the Supreme Court judgement is however, that the due process of law is not a relevant matter where the dismissal of the Chief Justice is concerned.” Of course, due process is a relevant matter to the dismissal of a Chief Justice (or any other judge or public officer). But the all-important question is, in the case of the dismissal of a “judicial officer”, is it a matter for the courts? That’s what the SC had to decide.

    If the doctrine of separation of powers had any place in Sri Lanka, it cannot be doubted that the outcome of this judgement is correct. More importantly, there is a cardinal rule in law that “no one must be a judge in his own cause”. When the discipline of a judge, even if it is that of the Chief Justice, is in question, no Court or judicial officer who is “currently” in office should be called upon to determine the validity or otherwise of the merits or the processes of impeachment of a judge. This is because the major questions involve the actions of a judge, and it would be turning a blind eye to the doctrine of separation of powers if a functioning judge were to determine the legality of the disciplinary action against a fellow judge. It’s a classic case of sitting in judgement in one’s own cause. There would be an apparent bias.

    This is why it is necessary to have a system of separation of powers and checks and balances. Of course, this is NOT to say that the current Sri Lankan constitution can be abused, and as a matter of fact has, is and will be abused by those in power, especially in cases where the executive and the majority members of parliament are of the same political party.

    If the independence of the judiciary is to be preserved, a mechanism like in South Africa has to be adopted, where an independent body determines judicial appointments, promotions and disciplinary control of judges, and not the executive or the legislature.

    There is no point blaming the SC or any other court or judge(s) for having coming to the only logical conclusion based on the setting of the Sri Lankan Constitution. If change is to occur it has to begin with a change in the Constitution. And if that were to occur the People of this nation will have to elect their representatives with caution and diligence.

  • 3
    1

    The Foundations of a True Democracy is Separation of Powers which acts as Checks and Balances.

    It sounds like the writer is either confused or trying to muddy the water. Let us look at the following.

    1) Now what we have to conclude is that there is also the assumption in Sri Lanka that the country’s parliament will not abuse its supremacy. That is the assumption that has now become part of the law of Sri Lanka in terms of the judgement announced last week by the Supreme Court. We must assume that the parliament of Sri Lanka will not abuse its supremacy.

    I m not sure how the writer makes the above assumption when what we have in Sri Lanka is just the opposite. I am sure it is obvious even to lay person that the Judgement of SC was a political decision to satisfy King Mahintha and his Zero Tolerance to any challenge to his rule.

    2) There cannot be such safeguards when the parliament has the sole authority to dismiss any member of the judiciary in whatever manner it chooses. The new principle that would have to be taught to law students in Sri Lanka is that the old principle of safeguards to be observed in the appointment and dismissal of judges is no longer valid as the parliament has the sole power to dismiss any judge in whatever manner and by whatever procedure it chooses.
    Normally courts are expected to inquire into false allegations and to discover the factual and the historical reality behind political claims But in Sri Lanka, whatever that is claimed on behalf of the government is now taken as the truth.

    I agree with the above entirely and it goes without saying therefore
    that 1 & 2 are World apart.

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