By Vishvamithra –
Chief Justice
On going tussle between the Judiciary, Executive and the Legislative (absolutely nothing more than puppets conduct themselves according to the whims and fancies of the Executive President) is surely a step forward for restoring democracy proper in this inland nation. Particularly since the 1972 Constitution, separation power between the three organs of the government was not worth the paper (the Constitution) it was written. Since then the judiciary, headed by the CJ in most cases plainly deliver what the Executive desired and failed to uphold the role of the watchdog of the people, whose inalienable judicial power it exercises.
Incidence of betrayals of the people, who had placed their trust in the judiciary are in abundance in the recent history. Probably the best is the unbecoming conduct of Asoka De Silva J who was appointed over Srirani Bandaranayake J to approve the 18th amendment to facilitate MR contest for a third term with no issues whatsoever raised when contested before the Supreme Court. Then this very same person simply to please MR had audacity to declare that the Court Martial that found Gen Sarath Fonseka guilty for charges levelled against him without a fair trial afforded to him also a Court. For the job well-done Asoka Silva was given a special presidential advisor post on top of the full pension afforded to him. The judges in the Apex Court are given a pension of 100% salary drawn at the time of retirement for a reason; that is to lead a respectable and exemplary life after retirement sans becoming stooges of any politician or political party.
Next come Sarath N Silva J who let the MR off the hook, in a case where serious allegations were levelled against MR for defrauding tsunami funds. Sarath Silva J, removed all impediments faced by MR and simply allowed him contest the Presidential Election. Later bringing insult to injury Sarath Silva had the audacity to admit that he made a monumental blunder and that he was directly responsible for not dealing MR appropriately as required by law. He publicly admitted that had he acted according to law MR should have been behind bars. It is hard to believe the character of this person who appears to have lost all his senses when he make various public utterances, defending all actions taken by MR regime and the inquiry proceedings conducted by the PSC against the CJ that lacked transparency, fairness that is guaranteed to any citizen in this Country.
Yet, from the peoples’ view point what is unfolding before them seems to be good for the democracy. At least from now if the judges in the Apex Court have little bit of insight should realise their constitutional obligation to the people of this country and that the judicial power they enjoy emanates from the people (who enjoy the sovereignty over all three institutions) and not the Executive.
People with little bit if insight knows that there some public officers appointed to the Apex Court from the Attorney General’s department by the Executive in an effort to have some influence in the Supreme Court. Surely in most of these subservient officials lacks character, will and commitment required to uphold the judicial power of the people, particularly when it matters most like situations where there is serious threat pose to the democratic rights and fundamental freedom guaranteed by the constitution by the Executive or the Legislature.
In this backdrop the right thinking people earnestly believe that judges in the Superior Courts would learn a costly but good lesson from this impeachment saga that is not to betray the people of their rights when there is threat to their rights either by Executive or the Legislature. People cry nothing more nothing less that justice from the Supreme Court headed by the CJ that is to deal with any member or group in the Executive and the Legislature, who had taken a constitutional oath to uphold the rule of law and to perform their respective offices with utmost honestly and integrity, appropriately and as required by law without any fear or favour. Lessons to be learnt are many from neighbouring countries, particularly from Pakistan where the Supreme Court headed by the Chief Justice fearlessly discharge their constitutional duty to the letter, safeguarding rule of law, the democratic rights and fundamental freedom of the people.
Role vested in the Supreme Court headed by the CJ becomes heavier, particularly since the country is under siege by Rajapakse Wickramasighe top-secret pact that had effectively made the opposition redundant and impotent.
Upasiri / December 27, 2012
PSC members like a hound of wild dogs as directed by the maharaja the dog keeper is trying to bit the CJ in a very serious manner. Asoka de Silva, pronounced that CM is a court with Dr. Bandranayake to please the President. Then they declared a technical errror in the Election petition, in any other court should have allowed to proceed to save Rajapaksa when all the dices were on the Sarath fonseka’s side. Sarath N Silva, when he was the CJ refused to answer the telephone calls of the person who helped to get that position in 2005, after that person telephoned him 5 times to his private mobile number to ask from him about the case he was to give a judgement. He allowed Rajapaksa to go scot free on the Helping Hambantota case, and now lamenting about the judgement. But from recent times he is siding Rajapaksa to either get a seat in the Parliament or to get a Ambassadors postions, leaving sarath Fonseka high and dry. What tupe of CJ’s we have in Sri Lanka?
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John Wayne / December 27, 2012
The dead leftists DEW, Vasu and Tissa need to quit their double speak and double games and quit the UPFA and Rajapassa and join the peoples struggle against dictatorship in the streets instead of claiming that they have done their duty by suggesting that the dictator prorogue parliament to save his face!
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Dinuk / December 28, 2012
Indeed! the country is under siege due to the Rajapakse-Wickramasinghe pact for double dictatroship, but also the dead leftists who support this pact and the rest of the corrupt clowns, thugs, thieves and goons who are members of the Diya-wenna Parliament of Sri Lanka.
The majority of politicians are a disgrace and the claim that a parliament full of corrupt morons is supreme – in form or in substance – surely beggars the imagination!
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punchinilame / December 27, 2012
A monumental and now historical blunder of Sarath Silva need be reminded
at this hour as in:-
[Edited out]
Could you please don’t post links repeatedly, if you want to say anything just say – CT
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Ainsley / December 27, 2012
This is a badly written article and makes no sense in language and facts.
Asoka de Silva came AFTER Sarath Silva, not before. And he did not head the judges which heard the 18th Amendment. From what I recall in the papers, it was Shirani Bandaranayake who headed that lot of judges.
Asoka wrote the Fonseka decision which said (laugh! laugh!) that court martials are like any other court.
Vishwamithra, I applaud your enthusiasm but get your facts correct!
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Villager / December 28, 2012
Ainsley,
I agree with you fully that this writer cannot comprehend whatever he wanted to say in English language enable us to understand it properly. Besides, have you not noticed that the man is talking about 1972 constitution not 1977.
How could the judicial power emanates from the people. He should read Article 4 (C) of our constitution. It clearly says Parliament should use Courts as one of the instrument to exercise its judicial power. That means judicial power of the people is exercised by the Parliament and not by the Courts.
Articles 107 (2) and 107 (3)says what apex court judges should do to retain their job and for what reasons and by whom they can be removed. Also it explains set procedure and how to conduct an investigation and prove the alleged misbehaviour or incapacity of apex court judges.
Just show us one sentence anywhere in the constitution that says court procedure has to be followed or even ‘retired’ or ‘white’ judges must judge the judges when parliament want impeached.
We are not bound to follow conventions held somewhere. If such declarations are to be law, our constitution has to amended. If any black coats wanted to do so, they can form their own party, contest elections, win or buy two third majority and do the job. Otherwise they are just wasting time. This CJ will be fired in January period
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Ainsley / December 28, 2012
Villager, I do not agree with you on the 1972 Constituion point. All this rottenness started, not with the 1978 Constitution but with the 1972 Constitution. I agree with Vishvamithra on that point.
As for the rest, please see my comment below.
In brief – I DO NOT AGREE WITH THIS SHAMELESS IMPEACHMENT PUT INTO MOTION BY OUR POLITICAL BUFFOONS FROM MEDAMULANA.
PERIOD.
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dayananda / December 27, 2012
Ainsley you have got your facts absolutely wrong.
First the Vishvamithra states nowhere that Sarath Silva came after Asoka Silva.
And when the 18th amendment to the Constitution was challenged before the SC, the bench was headed by the then CJ Asoka Silva and not Shirani Bandaranayake who was appointed CJ thereafter.
Any reasonably prudent person with common sense knows that Court Martial is not a Court that adheres to the fundamental legal norms such as principles of natural justice, audi ulteram partem etc. Asoka Silva was clearly a self-centered individual who played a dirty game for MR, which the whole nation is full aware of.
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Ainsley / December 28, 2012
Dayananda and Vishvamithra…First, the phrase ‘Next come..Sarath Silva’ in the article is what gives the wrong impression that S. Silva came after Asoka de Silva. Second,here is the text of the decision on the 18th A. which I got from the website. This was decided in Sept 2010 when Shirani B. was the Chief justice. Correct me if I am wrong, anyone by posting the correct text…Dayananda in particular since you have said that Asoka was the main judge.
Text of Supreme Court determination on 18th Constitutional Amendment
Sep 11, 2010 8:01:20 PM- transcurrents.com
Text of Supreme Court determination on 18th Constitutional Amendment
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application under Article 122(1) of the Constitution.
S.C. (Special Determination) No. 01/2010
Present: Dr. S. A. Bandaranayake – Judge of the Supreme Court
K. Sripavan – Judge of the Supreme Court
P. A. Ratnayake – Judge of the Supreme Court
S. I. Imam – Judge of the Supreme Court
R. K. S. Suresh Chandra – Judge of the Supreme Court
Counsel: Mohan Peiris, P.C., Attorney-General
with Sanjay Rajaratnam, D.S.G., A. H.
M. D. Nawaz, D.S.G., and Nerin Pulle, S.S.C., appears on notice.
Dr. Jayampathy Wickramaratne, P.C.,
with Ms. Pubudini Wickramaratne
and Ms. Chandrika Silva for Chandra
Jayaratne and Lal Wijenayake.
J. C. Weliamuna with Maduranga
Ratnayake, Pasindu Silva, Pulasthi
Hewamanna and Sanjeewa
Ranaweera
for Janatha Vimukthi Peramuna.
Saliya Peiris with Asthika Devendra,
Thanuka Nandasiri for K. W. Janaranjana.
Viran Corea for the Centre for Policy Alternatives.
Chrishmal Warnasuriya with Revan
Weerasinghe, Pulasthi Hewamanna
and Dulhantha Kularatne for Sunil Hadunneththi and Vijitha Herath,
Rohan Edrisinha appears in person.
The Court assembled for hearing at 10.30 a.m. on 31st August 2010.
His Excellency The President has made a reference in terms of Article 122(1)(b) of the Constitution with regard to the Bill described in its long title as ‘an Act to amend the Constitution of the Democratic Socialist Republic of Sri Lanka’, which is the 18th Amendment to the Constitution. The Bill bears the endorsement of the Secretary to the Cabinet of Ministers made in terms of Article 122(1) of the Constitution that the Bill is urgent in the national interest.
Upon receipt of the Bill the Court issued notice on the Hon. The Attorney-General as required in terms of Article 134(1) of the Constitution.
Hon. The Attorney-General, the Counsel representing the petitioners, and the petitioner, who appeared in person were heard before this Bench at the sittings held on 31.08.2010.
The Bill proposes, inter alia, to amend the following specific provisions of the Constitution.
A. Clause 2 – Amendment to Article 31(2) and Article 31(3A) (a) (i) of the Constitution, which refers to the election and the term of office of the President of the Republic.
B. Clause 3 – Amendment to Article 32(3) to make it a requirement for the President to be present in Parliament once in every three (3) months.
C. Clauses 4 and 5 – Redefining the composition and functions of the Constitutional Council referred to in Chapter VII A of the Constitution which would be hereinafter known as the Parliamentary Council.
D. Clause 6 – Amendment to Chapter IX of the Constitution with reference to the, powers and functions of the Cabinet of Ministers and of the Public Service Commission.
E. Clauses 7, 8, 9, 10, 11, 22 and 23 – Amendment to Chapters X and XVIII A of the Constitution to classify the Police officers including the Inspector General of Police within the ambit of Public Officers and to redefine the Powers of the National Police Commission
F. Clauses 13 and 14 – Amendment to Chapter XIV A of the Constitution redefines the composition, powers and functions of the Election Commission.
G. Transitional provisions which are necessary and consequential in view of the aforementioned amendments.
The main contention of the learned counsel for the petitioners was that the proposed Amendments referred to above were inconsistent with Articles 3 and/or 4 of the Constitution requiring the Amendment to be passed by the People at a Referendum in terms of Article 83 of the Constitution and specific reference was made to Clauses 2, 3, 5, 7, 8, 9, 13 and 14 of the Bill.
Clause 2
Clause 2 of the Bill seeks to Amend Article 31 (3A) (a) (i) of the Constitution, which is in the following terms:
“The Constitution of the Democratic Socialist Republic of Sri Lanka (hereinafter referred to as the “Constitution”) is hereby amended in Article 31 thereof, as follows:
(1) By the repeal of paragraph (2) of that Article; and
(2) in paragraph (3A) (a) (i) of that Article.
a. by the substitution for the words “at any time after the expiration of four years from the commencement of his first term of office” of the words “at any time after the expiration of four years from the commencement of his current term of office”; and
b. by the substitution for the words “by election, for a further term” of the following:
“by election, for a further term:
Provided that, where the President is elected in terms of this Article for a further term of office, the provisions of this Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be so elected”.
Article 83 of the Constitution refers to the approval of certain Bills at a Referendum. This Article reads as follows:
“Notwithstanding anything to the contrary in the provisions of Article 82-
b: a: Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1,2,3,6,7,8,9,10 and 11 or of this Article; and
b. a. Bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions of paragraph (2) of Article 30 or of, paragraph (2) of Article 62 which would extend the term of office of the President, or the duration of Parliament, as the case may be, to over six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), is approved by the People at a Referendum and a certificate is endorsed thereon by the President in accordance with Article 80″.
It is not disputed that Article 83 makes no reference to proposed Article 31 of the Constitution. However, the contention of the learned counsel for the petitioners was that although the aforesaid Article is not referred to in Article 83, the provisions in the proposed Amendments are inconsistent with Article 3 read with Article 4 of the Constitution which is specifically mentioned in Article 83 of the Constitution.
Learned counsel for the petitioners contended that the removal of the limit on the President’s term of office would affect the manner in which the executive power of the People is exercised and would therefore violate the provisions contained in Article 3 of the Constitution.
Article 3 of the Constitution deals with the sovereignty of the People and reads as follows:
“In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.
The exercise of the sovereignty referred to in the said Article 3 is clearly stated in Article 4 of the Constitution. In the Supreme Court Determination on the 18th Amendment to the Constitution (SD No. 12/2002), this Court, referring to a series of previous Determinations (SD No. 5/80, 1/82, 2/83, 1/84 and 7/87) had stated that Article 3 is linked up with Article 4 of the Constitution and therefore these two Articles must be read together. Article 4 of the Constitution reads thus:
“The Sovereignty of the People shall be exercised and enjoyed in the following manner:
a. the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;
b. the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;
c. the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;
d. the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided; and
e. the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament and at every Referendum by every citizen who has attained the age of eighteen years and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors”.
It is to be noted that the aforesaid Article 4 (e) of the Constitution refers to the exercise of the franchise of the People and the amendment to Article 31 (2) of the Constitution by no means would restrict the said franchise. In fact, in a sense, the amendment would enhance the franchise of the People granted to them in terms of Article 4 (e) of the Constitution since the Voters would be given a wide choice of candidates including a President who had been elected twice by them. It is not disputed that the President is directly elected by the People for a fixed tenure of office. The constitutional requirement of the election of their President by the People of the Republic, strengthens the franchise given to them under Article 4 of the Constitution.
In such circumstances the said amendment does not restrict or curtail the provisions contained in Article 4 of the Constitution and accordingly there is no inconsistency either with Articles 3 and/or 4 of the Constitution.
Clause 3
Clause 3 of the Bill deals with Article 32 of the Constitution, which is to be amended in the following manner.
“(1) by the repeal of paragraph (3) thereof and the substitution therefore of the following:
“(3) The President shall by virtue of his office attend Parliament once in every three months. In the discharge of this function the President shall be entitled to all the privileges, immunities and powers of a Member of Parliament, other than the entitlement to vote, and shall not be liable for any breach of the privileges of Parliament or of its members; and
(2) by the addition immediately after paragraph (3) thereof, of the following new paragraph:
(4) The President shall by virtue of his office, also have the right to address and send messages to parliament.”
It was the contention on behalf of the petitioners that by this provision the immunity granted to the President under Article 35 of the Constitution is being extended. Accordingly it was submitted that this amendment would give rise to the divisibility of the legislative power of the People in terms of Article 3 and/or 4 of the Constitution. Learned Counsel referred to the Determination regarding the Third Amendment to the Constitution (S.D. No. 5/1980).
In that Determination, the Supreme Court had to consider the provisions which sought to seat two members for one electorate – one nominated and the other reelected. In considering the said provision, the Supreme Court had decided that the effect of that Bill was to seat two (2) members for one and the same electorate, which contravenes the provisions of Article 161(a) of the Constitution, in that it increases the composition of the first Parliament and thereby affects the franchise referred to in Article 4 of the Constitution and also infringes the sovereignty of the People entrenched in Article 3 of the Constitution.
However in the present Bill the specific provisions that are being introduced under the amendment do not contravene any of the Articles dealing with the Parliament. In fact the provisions related to President being present in Parliament on a periodically stipulated basis read with Article 42 of the Constitution would clearly ensure that the President be answerable to People in a more meaningful manner which would enhance the provisions contemplated in Articles 3 and 4 of the Constitution.
Accordingly, this Clause has no inconsistency either with Articles 3 and/or 4 of the Constitution.
Clauses 4 and 5
It is to be noted that Clause 4 of the Bill makes provision in repealing Chapter VII A of the Constitution, refers to the Constitutional Council which was introduced under the 17 Amendment to the Constitution. Clause 5 of the Bill, introduces a new heading, the Parliamentary Council, and an Article having the effect as Article 41A of the Constitution.
Learned Counsel for the petitioners contended that the provisions contained in Clause 5 have the effect of diluting the independence of the judiciary and therefore has a direct impact on Article 4(c) regarding the exercise of the judicial power of the People and the sovereignty of the People in terms of Article 3 and therefore requires to be approved by the People at a Referendum in terms of Article 83 of the Constitution.
The said amendment referred to in Clause 5 is in effect to amend the provisions brought in by the 17th Amendment to the Constitution. The Constitutional Council which is proposed to be replaced by the Parliamentary Council, came into being as a result of the 17th Amendment in 2001.
Considering the Bill brought in for the establishment of the Constitutional Council under the 17th Amendment, this Court had noted that the establishment and functions of the Constitutional Council was the core of the 17th Amendment.
The question at that time this Court had to consider was as to whether the subjection of the discretion of the President to the recommendation and approval of the Constitutional Council as envisaged by that Bill, would amount to an effective removal of the President’s executive power in that regard. Considering the said question, this Court had noted the submissions made by the Hon. The Attorney-General that although there was no removal of the executive power of the President, that it was a restriction on the exercise of the discretion by the President. On a consideration of the totality of the provisions in the said Amendment, the Supreme Court had determined that the said Bill required to be passed by a special majority specified in Article 82(5) of the Constitution, but that there was no provision in the Bill, which required approval of the People at a Referendum in terms of the provisions of Article 83.
The contention of the learned Counsel for the petitioners was that the Constitutional Council was established with the intention of safeguarding the independence of the judiciary and the purpose and the objective of the said introduction was to place a restriction on the discretion of the President in appointing judges.
As stated earlier, the 17th Amendment was brought into effect only in 2001 and from 1978 up to the 17th Amendment came into effect, for a period of over 13 years, judges were appointed in terms of the provisions laid down under the 1978 Constitution. This position in fact was considered in Silva v Bandaranayake [(1997] 1 Sri L.R. 92), by a 7 judge Bench of this Court. In that matter consideration was given to the appointment of judges to the Supreme Court by HE the President of the Republic under Article 107 of the Constitution. At that time, as could be clearly seen, the 17th Amendment had not come into effect and the Supreme Court had considered the matter under Article 107 of the 1978 Constitution. In that decision, the Supreme Court had clearly held thus:
“The President in exercising the power conferred by Article 107 of the Constitution has a sole discretion. The power is discretionary and not absolute. It is neither untrammelled nor unrestrained and ought to be exercised within limits.
Article 107 does not expressly specify any qualitifications or restrictions. However in exercising the power to make appointments to the Supreme Court there should be cooperation between the Executive and the Judiciary, in order to fulfill the object of Article 107.”
Prior to the decision in Silva v Bandaranayake (supra) this Court had examined the powers of the Executive with regard to appointments. In Premachandra v Jayawickrama ([1994] 2 Sri L.R. 90), this Court had stated that.
“There are no absolute or unfettered discretions in public law; discretions are conferred on public functionaries in trust for the public, to be used for the public good, and the propriety of the exercise of such discretions is to be judged by reference to the purposes for which they were so entrusted.”
It is therefore quite apparent that even prior to the introduction of the Constitutional Council in terms of the 17th Amendment to the Constitution, there were necessary safeguards which restricted the discretion of appointing authorities since no one possessed any unfettered discretion. The relevant provisions contained in the 1978 Constitution had not violated Article 3 and/or 4 of the Constitution and similarly the introduction of the Constitutional Council also had not violated any of the said provisions.
The present amendment refers to the introduction of the Parliamentary Council in place of the Constitutional Council, which consists of a Prime Minister, the Speaker, the Leader of the Opposition, a nominee of the Prime Minister, who shall be a Member of Parliament; and a nominee of the Leader of the Opposition, who shall be a Member of Parliament. The persons appointed as nominees of the Prime Minister and the Leader of the Opposition should be nominated in such manner as would ensure that the nominees would belong to communities which are communities other than those to which the Prime Minister, the Speaker and the Leader of the Opposition would belong.
On a consideration of the totality of the provision dealing with the establishment of the Parliamentary Council, it is abundantly clear for the reasons aforesaid that the proposed amendment is only a process of redefining the restrictions that was placed on the President by the Constitutional Council under the 17th Amendment in the exercise of the executive power vested in the President, which is inalienable.
Accordingly, these Clauses have no inconsistency either with Articles 3 and/or 4 of the Constitution.
Clauses 6, 7, 8 and 9 Clauses 7, 8 and 9 of the Bill deal with the powers and functions of the Cabinet of Ministers and of the Public Service Commission. By these amendments, Article 55 of the Constitution is to be repealed in order to transfer the powers which were earlier vested with the Public Service Commission to the Cabinet of Ministers, Clause 6 clearly refers to the fact that the Cabinet of Ministers shall provide for and determine all matters of policy relating to public officers. Clauses 8 and 9 also refer to the authority which was exercised by the Public Service Commission, being given to the Cabinet of Ministers.
Articles 55, 56 and 57 of the Constitution do not attract, Article 3 and/or 4 of the Constitution and therefore there is no inconsistency which would need the approval of the People at a Referendum.
Clauses 13 and 14
Clause 13 refers to the amendment of Articles 103 and 104B of the Constitution. These amendments deal with the redefinition of the composition, powers and functions of the Election Commission.
Learned Counsel for the petitioners contended that Clause 14, which deals with the amendment to Article 104B is inconsistent with Article 3 of the Constitution as it curtails the power of the Commission.
The said clause 14 is in the following term:
“Article 104B of the Constitution is hereby amended as follows:
(1) by the insertion immediately after paragraph (4) thereof, of the following new paragraph:
4(a) For the avoidance of doubt it is stated that any guideline issued by the Commission during the period commencing with the making of an Order for the holding of an election or the making of a Proclamation requiring the conduct of a Referendum, as the case may be, shall:
a. be limited to matters which are directly connected with the holding of the respective election or the conduct of a respective Referendum as the case may be; and
b. not be connected directly with any matter relating to the public service or any matter within the ambit of administration of the Public Service Commission or the Judicial Service Commission as the case may be, appointed under the Constitution; and
(2) in paragraph (5) by the repeal of sub-paragraph (b), (c) and (d) thereof and the substitution therefore of the following paragraph:
“(b) It shall be the duty of any broadcasting or telecasting operator or any proprietor or publisher of a newspaper as the case may be, to take all necessary steps to ensure compliance with any guidelines as are issued to them under paragraph (a).”
As could be seen, the amendments are in addition to the present powers, functions and duties of the Election Commission. A careful perusal of the proposed amendments, indicate that they are for the purpose of ensuring that other organizations of the Government are not stifled in their functions during the pendency of Elections. It is to be borne in mind that Commissions such as the Public Service Commission and the Judicial Service Commission are also Independent Commissions established under the Constitution, whose functions should not be curtailed at any time. As stated by Mark Fernando, J., in Karunathilake and Another v Dayananda Dissanayake, Commissioner of Elections and Others ([1999] 1 Sri L.R. 157) in reference to Article 104 of the Constitution,
“Article 104 refers to the powers, duties and functions of the Commissioner of Elections. But that is not exhaustive of his powers and duties. Article 93 of the Constitution requires that voting be free, equal and secret and it follows that the Commissioner of Elections has such implied powers and duties as are necessary to ensure that voting is free, equal and secret.”
It is therefore apparent that the said amendments in terms of Article 1048 of the Constitution do not in any way curtail the powers of the Election Commission, but only brings a safeguard in terms of the functions of the other Commissions.
There are few other matters we wish to make note in this Determination.
In terms of Clause 10 of the Bill, an amendment is brought to Article 61F of the Constitution to bring the police officers within the ambit of public officers and subject them to the same legal regime as the other public officers. Accordingly, the police officers would be treated as any other public officer and the Inspector-General of Police would be a Head of a Department appointed by the Cabinet of Ministers.
None of these provisions would be inconsistent with Articles 3 and/or 4 of the Constitution.
Mr. Saliya Peiris submitted that Clause 21 of the Bill has the effect of amending Chapter XVII A of the Constitution. Accordingly learned Counsel contended that it is necessary to give effect to Article 154G(2) of the Constitution and therefore the Bill has to be first Gazetted and referred to the Provincial Councils. Accordingly at the conclusion of the submissions by all parties, we sought for a clarification on this point from the Hon. The Attorney-General who had appeared on notice.
Clause 21 of the Bill which deals with Article 154R of the Constitution is as follows:
“Article 154R of the Constitution is hereby amended in subparagraph (c) of paragraph (1) thereof, by the substitution for the words “three other members who are appointed by the President on the recommendation of the Constitutional Council, to represent”of the words “three other members appointed by the President, to represent.”
Hon. The Attorney-General had submitted that the objective of the aforementioned amendment is to make consequential amendments brought about by the change of the terminology to the body known as the Constitutional Council for the term “Parliamentary Council” referred to in the proposed amendment. It is an amendment to amend the provisions, which were originally contained in the 17th Amendment to the Constitution. In the Bill pertaining to the 17th Amendment to the Constitution the specific provision had been introduced as Clause 19. The said Clause was considered by this Court in that Determination as a consequential amendment, which did not require any other procedure to follow such as being Gazetted and referred to the Provincial Councils.
Accordingly it is pertinent that the said amendment does not attract the provision of Article 154(G)(2) of the Constitution.
We have examined the remaining provisions of the Bill and we do not see in any of them any issue that would require consideration by this Court in terms of Article 83 of the Constitution.
We have noted the following inconsistency between the English and Sinhala version.
“Clause 41A(6) of the English version refers to the word “Committee” which should read as “Council”.
It is also observed that in view of the Repeal of Article 31(2) of the Constitution, which provides for the qualification required to enable a person to qualify to stand for election as President, it is necessary that a consequential Amendment be made to Article 92 of the Constitution that refers to disqualification for election as President by the Repeal of Article 92(c) of the Constitution.
Accordingly this Court determines that the Bill entitled “the Eighteenth Amendment to the Constitution”
1) complies with the provisions of Article 82(1) of the Constitution;
2) requires to be passed by a special majority specified in Article 82(5) of the Constitution;
3) that there is no provision in the Bill which requires approval of the People at a Referendum in terms of the provision of Article 83 of the Constitution.
We shall place on record our deep appreciation of the assistance given by the Hon. The Attorney-General, learned Counsel who appeared for the petitioners and the petitioner who appeared in person and made submissions in this matter.
Signed
Dr. S. A. Bandaranayake
Judge of the Supreme Court-Signed
K. Sripavan
Judge of the Supreme Court-Signed
P. A. Ratnayake
Judge of the Supreme Court-Signed
S. I. Imam
Judge of the Supreme Court-Signed
R. K. S. Suresh Chandra
Judge of the Supreme Court-Signed
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Jayantha / December 27, 2012
This is the best occasion for public to witness the Genuine Patriotism of Both Govt and the Left Party MP’s.
People including the left and opposition parties know that this Impeachment is flawed from the beginning.
So let’s see who are the real Patriots….and who are mere Parasites and leeches who Live on Tax payer Money paid for worshipping and ar.e licking FOR MAHARAJA.
We could Judge the capability of TRUE BEING OF SINHALAYA REPRESENTATIVE PARLIAMENT MEMBERS.
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capucine / December 27, 2012
vasu Tissa and Dew are worshiping at the feet of MR for their daily bread.The day the Govt changes, which will be very soon, Vasu, Tissa and Tissa’s properties and Bank Accounts should be ceased.They and their families should be banned from wearing clothes in public.They should be forced to eat off dust bins>The dirty dogs.
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Mahela / December 27, 2012
TIME HAS COME TO SEPERATE….. PIG SHIT EATING…”WAL BALU SINHALAYAS”
VERSUS…. THE REAL PATRIOTS WHO REPRESENT PEOPLES RIGHTS IN SRI LANKA PARLIAMENT’S……”NOBEL SINHALAYA”. ….TIME HAS COME TO TEST.
Come January 8th 2013 and the Public could witness which Parliament member voting on CJ impeachment, either to safeguard PEOPLE’S JUSTICE, LIBERTY AND DEMOCRACY……OR……….
RAJAPAKSE MEDAMULANA GENOCIDAL,THUGGERY,BEASTY, DICTATORSHIP.
All country loving Citizen. This is your Judgment Day both to witness the PARLIAMENT VOTE AND TO PROTECT MADAM CJ AND THE JUDICIARY.
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Quick Fox / December 27, 2012
Time has come for the Diaspora, irrespective of their origins – Tamils and Sinhalese to work together to bring about a legitimate democratic law abiding Government to Sri Lanka. The Diaspora has seen and enjoying the benefit of a legal Democracy in their adopted countries. So its time to bring the same which the Diaspora enjoy in their adopted country to the follow countrymen in Sri Lanka. We are all SRI LANKANS FIRST.
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vishvamithra / December 28, 2012
Ainsley, You are absolutely right. Shirani Bandaranayake headed the Bench and the order on the 18th Amendment was pronounced by her. But the issue here is who made that order? Was it actually Bandaranayake J or Asoka de Silva the then CJ and those who are in the ‘inner circle’ only know the answer and in time to come these things will come to light. It was minutely calculated manipulation by Asoka De Silva who made Bandaranayake J to chair that bench which dealt with a very important constitutional issue, where the President sought 3rd term just after elected for a second term. The President did not utter a word during his election campaign to the people that in the event he is re-elected to the office he intends to bring necessary amendment to the Constitution for a third term. Absolutely, in a situation like this, the Supreme Court that exercises peoples’s judicial power should have directed the President to go before the people and ask for a fresh mandate by way of a referendam. It was a grave error on the part of Shirani B and that is why she faces all these problems today . Truth remains that at critical times she was not firm enough to say ‘NO’ to pressure brought on her (for the reasons best known to her) and as a result now she is made to pay a heavy penalty for her own monumental blunders. Yet, there is a Sinahala saying that ‘kahi gaani is better than hotu gani. People do not wish to defend her at all, what they ask for is to afford her a fair trial and not to dump her by puppet Kangaroo Court.
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Ainsley / December 28, 2012
Dear Vishvamitha, thank you for the response. We all make mistakes.
I find your comment to be actually more illuminating than the article which you must have written in a hurry.
Inferred manipulation by Asoka de Silva cannot excuse Shirani B’s part in this. That said, I must completely dissasociate myself from commentatos like ‘Villager’ in this thread that this foolish impeachment of her in justified.
She committed grave mistakes. True enough. However, I agree with you that now she is standing up to a corrupt regime. For that she deserves our support. But our support also must be informed and cannot paint her as an angel.
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Jayantha / December 28, 2012
To: both Vishvamithra and Ainsley,
There were many issues that took place for SC to pass 18th Amendment. They are…….
1)Soon after President won the EELAM war the whole country was still celebrating the war victories and there was no opposition at all for MR to do whatever he wanted…….including imprisoning Gen. Sarath Fonseka without proper trial.
2) The opposition was at it’s weakest due do so many of their MP’s joining MR Government.
3)Influence of previous CJ’s like Sarath Silva, and Asoka Silva also contributed to pass 18th amendment….where CJ Shirani Bandaranaykes was fresh and new to the post.
4) But the most important issue was….that’s the time both international community, UN, UN human rights commission, India and rest of the countries that were involved in the 30 year war…..started asking many questions from Govt. such as Tamil displaced people, about the missing and internally displaced people,white flag, implementing LLRC , war actrocities against SL govt, NE resettlement….etc…etc…and the govt. looking for more powers similar to JR to tackle these issues….whereby SC could not refuse or deny to the 18th amendment.
Also since this is a highly critical issus SC was bound to give Govt. to face these with great powers……including some of the unwanted clauses tying up to the 18th amendment…..which we face the repercussions today.
Also how the 18th Amendment was brought and passed in a lightning speed were all related due to above 4th clause.
Thyerefore looking at theese reasons one cannot blame anybody…..as it was more due to political and Sri Lankan issue tied up with crucial International pressures….and if SC failing to authorize 18th could have backfired and blame could have fallen on it if somethig happenid in the Internationasl Arena.
Thereby SC played it safely both for the benefit of the Country and to safeguard SC politics in International Arena.
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Ainsley / December 29, 2012
@Jayantha – the 18th A. was cocrned with two things.
One – doing away with the Constitutional Council and Two, giving the President unlimted terms to contest.
I disagree totally with you that the SC had no option but to approve the 18th A. because of the prevailing mood in the country. It is not the job of the SC to bow down to public opinion. Judges are reqired to stand above pubic opinion and above ‘public moods’. This was a vicious amendment designed to destroy the country. With conscience, the judges should have opposed. See the excellent speech made by Judge Wigneswaran on this last week.
The point about the ‘international arena’ is also not sustainable. The 18th A. destroyed Sri Lanka in the international image still further. Rejecting it would have passed a clear message to the international community that ours is not a banana republic. That was not to be. I do not approve of attempts made to whitewash those who are responsible for this.
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Charles Perera / December 29, 2012
The Constitution is that which protect the Country and its people by providing rules and regulations for the conduct of the Legislature , the Executive and the Judiciary. In the question of the Impeachment of the CJ it it had been done interms of the Article 107 of the Constitution and the procedural rules of Article 83 of the Standing Orders of the Parliament. The CJ had been found guilty of three charges and the report has been presented to the Speaker. There is a required period of one month set off prior to its presentation to the Parliament for debate. After the debate a report will be submitted to the President for necessary action by him. All that had been done according to the Constitution. Whether the CJ was abused or not or why some members of the PSC left the PSC and all those allied protests are irrelevant. One has now to await the end of the Impeachment procedure. It is wa
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shankar / January 4, 2013
With regard to the 18th amendment allowing the president a third term,what is wrong in that?After all it is the people who will elect him for a third term no.So what is the fuss.Instead of whingeing about it the opposition should get its act together to beat the government at the elections,starting with the local,provincial,general etc because you can crack the grassroot foundation support of the government at that level,before toppling the president.
If the opposition does not change the current leader,then it will have to accept the fact that either mahinda(if not dead by cancer) or basil will be the next president after the next presidential election.It had a golden opportunity to make the change while Ranil was travelling in gondolas admiring Venice when he could have admired srilanka instead, travelling in a canoe in flood hit areas.In the west when you go on long holidays very often you find that changes that you won’t like are made, because people here believe in a competitive environment,and nothing is just left as it is,always striving for some improvement.
Absence makes the heart grow fonder,does not apply in the workplace.
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