18 September, 2020

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The Danger Behind The Bipartisan Agreement On Parliament’s Supremacy

By Jehan Perera

Jehan Perera

The Rule of Law means that everyone in a society is compelled to abide by the prevailing laws.  These laws are interpreted by the courts of law in the light of the supreme law as stated in the Constitution.  If anyone refuses to accept the decision of the judiciary, they are punished.  If the government refuses to abide by the decisions of the judiciary the Rule of Law will break down.  This is the uncertainty that Sri Lanka faces, now that the highest court of all, the Supreme Court, has decided that the power of the Parliamentary Select Committee appointed to decide on the validity of the charges against the Chief Justice is a nullity in law.

The manner in which some of the members of the Parliamentary Select Committee are reported to have behaved in their face to face interactions with the Chief Justice has not improved public confidence in the justice of their decision.  They found the Chief Justice to be guilty of three of the five charges out of 14 that they were tasked to inquire into.  The speed and manner in which these findings were made, and that the target was the Chief Justice has done nothing to improve the situation.  In the public mind the judiciary remains the most trustworthy institution capable of meting out justice to victims of injustice.

Sri Lankans who desire the wellbeing of their country and of its people, and who are not blinded by the prejudices of partisan party politics, will be hoping and praying that the government finds a better way of dealing with the problem.  Too much is at stake for it to be otherwise.  If the government disregards the Supreme Court, it will send out a message to other wrongdoers that they too can hope to disobey the law and get away with it.  What is sauce for the goose will be sauce for the gander as well.  The intimidation of judges and empowerment of wrongdoers will invariably paralyse the system of justice at all levels, and not merely at the very top.

COMMON POSITION

The ambivalent approach of the main opposition party to the crisis that is engulfing the country might appear to be perplexing.  The UNP’s refusal to permit its members to participate in the Court of Appeal hearing into the petition challenging the Parliamentary Select Committee was no different in practical terms from that of the government.  The government members of the PSC also did not go before the court to argue their side of the case and explain themselves.  Their common ground is the supremacy of Parliament to conduct its affairs without interference from the judiciary.   The question is whether judicial oversight is interference or a guarantee of protection of the rights of every citizen which is the bounden duty of the judiciary.

The common position on the judiciary’s role vis a vis the Parliamentary Select Committee adopted by the government and UNP reveals a mindset of ruling politicians and governments that goes back several decades.  When Sri Lanka received its independence in 1948 its political leaders were steeped in the British tradition of respecting the role of the judiciary. But this broke down in the succeeding decades.  In 1972 the government of that time decided to make a break with those colonial legacies that they felt were holding back the country’s power surge into the future.  The so-called autochtonous or home-grown constitution of 1972 gave pride of place to Parliament and downgraded the judiciary and also brought the public service under the elected politician.

The desire of the government leaders of 1972 was to give Parliament and the ruling party virtually unfettered powers to do what they deemed necessary for the country’s progress and development.  The stated aim was an advanced socialist democracy in which prosperity would be evenly distributed to the masses of people.  However, the results of excessive government intervention and nationalization of economic enterprises were not encouraging and economic development plummeted to the point that people had to stand in line to buy bread.  Unfortunately the lesson that power corrupts and unchecked power corrupts even more was not taken to heart.

DANGER SIGNS

The Constitution of 1978 was designed with the aim of promoting rapid economic development.  Once again power was centralized for the purpose of making those decisions that would propel the country on the path of economic takeoff on the lines of East Asian countries.  But instead of Parliament being the repository of centralized power as in the 1972 Constitution, much of the centralized power was handed over to the newly introduced Executive Presidency.  The first President under this constitution was happy to say that he was now freed from the “whims and fancies” of Parliament to do as he willed.  But the promised economic progress was not sustainable and to make matters worse, the disempowerment of the ethnic minorities plunged the country into ethnic war.

The fact that the two small political parties that had members in the Parliamentary Select Committee decided to go before the Court of Appeal demonstrates their assessment of the need for a countervailing power and system of checks and balances.  Unlike the UPFA and UNP, the TNA and JVP can never hope to control the majority in Parliament.  Therefore they appreciate the role of the judiciary that would ensure the justice they cannot get from the Parliamentary majority.  In addition, the appearance of a bipartisan consensus between the government and UNP in refusing to appear before the Courts on the issue of the impeachment of the Chief Justice may be a tactical one on the part of the opposition party.  It is significant that the UNP has also said that the government should obey the Supreme Court order.  They may well be giving the government the rope to hang itself.

There is also the role of the international community to consider.  Already the government is on the back foot internationally on account of alleged war crimes and human rights violations during the war.  In March last year the majority of countries in the UN Human Rights Council voted that Sri Lanka should implement the recommendations of the Lessons Learnt and Reconciliation Commission.  Among the key recommendations of the LLRC were to strengthen the Rule of Law and for the government to respect the integrity of public institutions, including the judiciary.  The flouting of these recommendations can provide the international community with the opportunity for a stronger recommendation that troubles the government the next time the UN Human Rights Council meets in March of this year.

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Latest comments

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    The principle of rule of law can be subverted by parliment passing laws that are in conflict with the natural laws of justice, human rights and equality of citizens. That is why the Supreme Court has to give clearance for passing of such laws.

    The UNP and RW seems to be adhering to the idea that parliment should reign supreme. It is time our politicians learn to act in the interest of the people instead of clinging on to power and collectively looting this country.

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    I believe you rightly assessed the rationale behind why both Govt. and UNP uphold Parliamentary Supremacy. However as the UNP also holds dearly that the Principal of the Independence of the Judiciary, from interference both from the Legislature and the Executive, the commonality disappears.

    The Govt. patently has compromised the Judiciary, and as part of the 18th Amendment has added to that with no Independent body that puts forward candidates such as for the CJ position.

    So with the rope given to MR to hang himself, he has two options hang himself of not. The former will be a blessing for the Country, but the latter will provide all the ammunition, firstly locally and then in all international fora to discredit the current Administration as knaves and thieves.

  • 0
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    RW is day dreaming to be the next President. So he is not acting impartially. He too wants any future CJ to be very obedient to the President as there is no provision or easy way through the present constitution to get rid off. Therefore he needs the parliament to be supreme and that parliament to be at his beck and call (if he becomes the President).
    He could have taken the side of the masses by opposing the government action through PSC and would have won many a vote for the party. Now, he has won only the wrath. In comparison MR is better than RW. Just imagine what will be the situation if RW gets the power as the President of this country. He is a dictator in his own party by shutting the mouths of his MPs.

    Leel

  • 0
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    Did the Law and Order go kaput, finito, when the Western worshipping legislators impeached our previous CJs?.

    Did you lot make the same noises then?.

    Even better example is how you lot kept mum when Mr Prabkaran was looking after the Law and Order with his own CJ.

    It is a shame to see people who call them Srilankans keep begging the Western countries to prescribe medications or should I say perform surgery even on pimples.

  • 0
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    If we are to accept that the Parliament is supreme, why is that drafts of bills are sent to the Supreme Court to find out whether those pieces of legislation are compatible with the Constitution. What when the Supreme Court says they are not in line (violates the principles) with the Constitution then the Parliament has to amend those pieces of legislation. Otherwise those bills passed are not considered as law. So if the Parliament is supreme why do they allow some outside institution to dictate terms to them, and not allow them to pass a bill at their will. Don’t the morons in our legislature and the Executive vowed to protect the Constitution understand such a simple requirement stated in the Constitution. No institution is supreme but the Constitution and the People are SUPREME.

  • 0
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    “Unlike the UPFA and UNP, the TNA and JVP can never hope to control the majority in Parliament.”

    This is a misnomer.

    At the rate the UNP is self-destructing – it too can never hope to control the majority in Parliament. Certainly not until we sight Ranil Wickramasinghe’s name in the obituary columns.

  • 0
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    The Leader of the opposition has advised the Government to accept the Supreme Court verdict and draft an Act for the impeachment of judges. He has recommended an act based on the recommendations of the Commonwealth of Nations, as Sri Lanka is the member of the Commonwealth hosting the prestigious Commonwealth Leaders Conference in few months time. This is a constructive proposal by a responsible Leader of the Opposition.

    It is difficult to understand why he prohibited his party representatives from attending the courts. The result is that his advice will receive greater consideration by the President and the Cabinet. He has developed to be an astute leader capable of instilling discipline.

  • 0
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    If Parliament maintains it is supreme, why does it have to send a Bill to the Supreme Court to get it certified as ‘URGENT” ? It is quite obvious that the Constitution is Supreme and the SC decides on constitutionality! Why did it think it had to send the Devineguma Bill to the SC?

  • 0
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    Certainly the Legislature should reign Supreme in a society where the cream of that Society, represents the Society. Unfortunately it is the riff raff that fills our Legislature and they should be the concern of the Pundits who criticise in this forum, instead blaming those like Ranil who have proved themselves to be above board where Corruption is rampant and conducting themselves as Gentlemen. Sadly the critics do not see the qualities of such exemplary living, compared to the villainy committed by the rest. Everyone lambastes JRJ and his Constitution but It is not JRJ or the UNP that have abused the Constitution to arrogate Dictatorial Powers to govern for their own aggrandisement. Yet these Pundits blame everyone else other than the perpetrators. It is in this context that these critics are unable to see the message that RW is conveying on the issue of handling the Impeachment. The fault is not in the system but those who are sitting in judgement. Therefore the need of the hour is to send all the riff raff home including the hoax MR, with no exception even to a CJ if found guilty.

  • 0
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    Perera says “The Rule of Law means that everyone in a society is compelled to abide by the prevailing laws.”

    No, it means rule of the black coats. They want the power to run the country over everyone’s head. Are they elected? no. Then how can that become democracy.

    What precedent did the cj create by not defending herself at the PSC? If I am charged with a traffic offence at the local magistrates court, can I refuse to attend the hearing because I have no faith in the magistrate, for whatever reason? So why is cj above the law?

    Ask her to come out in the open and answer the charges. Did she get a discount from Trillium? Did she take Justice Tilakawardana’s case abusing her power?

    Call her now, and ask. Dont tell the Americans.

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