Justice S. Sriskandarajah Memorial Oration

Justice S. Sriskandarajah Memorial Oration

 

Delivered 

 by

 

 

Mr. N. Selvakkumaran

Senior Lecturer in Public Law

Faculty of Law

University of Colombo

 on 

“Role of the Judiciary in the Public Law of Sri Lanka : Random Thoughts”

  

February  2015

Colombo

 

 

Preliminary 

I consider it an honour and privilege to have been invited by the family members of the late Justice S. Sriskandarajah, former President of the Court of Appeal of the Republic of Sri Lanka to deliver the Inaugural Oration in his memory. I have very high regard and respect for the late Justice Sriskandarajah not due to my personal acquaintance with him but due to his professional rectitude and fearlessness, even at a time when the odds were unjustifiably stacked against him for standing up for what is right and required of him professionally. His unwavering commitment and steadfast conviction to uphold the independence of the Judiciary cost him not only his professional progress but also his peace & tranquility and perhaps ultimately his life. 

One of my friends who was also a colleague of Justice Sriskandarajah informs me that he was impressed by the professional conduct, courage and quality displayed by Justice Sriskandarajah during their professional association. There were times, I was told, when Justice Sriskandarajah would comment objectively on the draft judgments written by his colleague and express his views very forthrightly and candidly. He is not a Judge who would just accept what a senior Judge says or writes. However, my friend also hastened to add that when things were discussed in detail and explained to him, and if he found that the views carried merit, he was ever ready to learn from others; at the same time, my friend accepts that he too had changed his stance after listening to the comments of Justice Sriskandarajah. In short, it was evident that Justice Sriskandarajah was not at all overawed by positions held by others but acted according to what he felt just and legal in every case that he handled. 

With those prefatory words about the person on whose memory this Oration is being delivered, let me turn to the subject of this Oration, viz., my random thoughts on the Role of the Judiciary in the Public Law of Sri Lanka. 

Before I turn to my subject matter, I would wish to enter a caveat and place on record that my analysis of the issues is essentially one emanating from the perspectives of a teacher of Public Law and that it may at times impinge on the political discourse in the country.

 

Part I - Introduction 

The field of Public Law encompasses many areas of actions and inactions of States, State Organs, Institutions, and Authorities as well as Individuals. In popular parlance, it covers subjects or matters that are generally treated under Public International Law, Constitutional Law, Administrative Law, Criminal Law, Human Rights Law, to name a few. My random thoughts on the Public Law of Sri Lanka relate mainly to those areas which relate to the powers and functions of the Legislature, Executive and Judiciary vis-à-vis the citizens of this country. These could be said to represent broadly Constitutional and Administrative Law. 

Being the organic law providing for and overseeing the institutions of governance – their powers, duties and functions along with their liabilities, immunities and their relationship to one another and to the citizens and people of a country, Constitutional and Administrative Law encapsulates principles and norms which are critically important and vital to ensuring constitutional democracy and the rule of law in the country. Sri Lanka is not an exception to this phenomenon. The growth and development of Constitutional and Administrative Law in the country, however has suffered some severe blows and bruises as well as crises and catastrophes in the recent past. Vibrancy and vigour with which this area should have grown and developed for a true and functional democracy to flourish were sadly lacking in the recent past. While many of these tragedies are man-made, some of them are systemic due to structural constructs in the organic law. However, I hasten to add that there were and are many individuals and institutions which had been and have been campaigning and fighting for enthroning and reinstating the rule of law and constitutional democracy in the country amidst terrible and frightful adversities and personal losses of great magnitude and indelible memories. One of them was the former President of the Court of Appeal on whose behalf this Memorial Oration takes place.  

Many are the significant democratic foundational principles and norms that provide building blocks towards constitution making for a functional democracy. These are extremely vital to ensure a structural edifice that will establish, sustain, promote and operate a stable and secure framework paving the way for a healthy and robust functional democracy.  The Constitution of a State is a living and dynamic instrument capable of facing up to emerging changes that are inevitable in the passage of life; the functionality of a Constitution, therefore, cannot be inflexibly static! Change is a phenomenon which cannot be avoided in life, but the institution of change itself is perpetual.

 

One cannot fail to recognize the need, in designing and making a Constitution, to strike an acceptable balance between rigidity of Constitutional structures and flexibility of Constitutional interpretation. This is of vital importance if a Constitution were to endure real and functional democracy upholding the rule of law and fundamental rights and liberties of the people.  In this respect, the Judiciary plays a pivotal role in sustaining and promoting democratic governance in the country. 

Except for a few ‘mature’ democracies, Constitutions of countries are formulated to suit the interests of a particular group or party. Generally, it is taken as an exercise to serve the present and future interests of the party in power. The ruling party which spearheads the Constitution making exercise tries to formulate the structure and flesh of the Constitution to suit its long-term interests, though the real purpose is smoke-screened through various representations / metaphors and manipulations or rhetoric notions. At least, in the Sri Lankan context the 1st and 2nd Republican Constitutions enacted in 1972 and 1978 respectively were products of the party in power devoid of substantial consensus from other parties in the Assemblies. Well established principles and norms of Constitutional Law and Political Science, such as principles of Constitutionalism, Supremacy of the Constitution, Rule of Law, Separation of Powers, Independence of the Judiciary, Good Governance, did not inform the enactment of these Republican Constitutions. However, the 17th Amendment to the 2nd Republican Constitution was an exception to this practice! 

Constitutions must be formulated, amended and refined, to uphold democratic values and principles if they are to permit the people of a country to enjoy freedoms and liberties. It should enable them to be able to live and let others live peacefully. Constitutions, therefore, are to prescribe the roles of different institutions to ensure the practice and functioning of vibrant democracy in a country. The different organs that are established to govern the country are devised with the purpose of serving the people while safeguarding the interests of the nation. The rights, freedoms and liberties of individuals shall be permitted to be enjoyed by the people except where such enjoyment may cause prejudice or harm to the country as a whole or other people. The persons who operate the instrumentalities of government do not enjoy power for their own sake but for the purpose of enabling the people to develop themselves and develop the country by their judicious and rightful actions.  

Part II – Public Power and Public Trust 

This is the reason why it is held that powers entrusted to public authorities in a Republic are not given to them for their own benefit or for the benefit of their siblings and friends. They are given in trust to be exercised by them for the benefit of the public. They are the trustees of public power to be used and exercised for the sole benefit of the people of the country who are the beneficiaries. However, the reality has been different in recent times; when powers are conferred on organs of the government, the persons – whether elected or appointed - operating those organs exercise the powers not for the exclusive benefit of the people but for their own benefit – at the people’s expense in a majority of cases. 

It is this which has made the people to suffer in the hands of their representatives. The rights, freedoms, liberties etc., of the people are infringed and compromised at the hands of the rulers without any reasonable justification. It is startling to learn that the so-called representatives of the people have tried unbelievable and disconcerting tricks to manipulate things for their own benefit. In a majority of cases, the rulers have either considered the constitutional constructs as amenable and pliable to their liking or they cared two hoots for the constitutionality of their actions. One cannot deny that there have been some critical constitutional deficits which facilitated this culture of thinking and functioning.

 But more than these constitutional deficits, we witnessed, and are made to understand, judicial deficits of serious proportions undermining the wellbeing of constitutional democracy in the country! We have witnessed this several times in the recent past. To the horror of right thinking persons, a pervasive and cancerous culture of impunity and an uncaring disregard for the laws of the land have been destroying the cherished traditions and recognized safeguards of constitutional democracy of this land in the recent past. The sad spectacle is that the Judiciary did not, or rather did not want to, stand up against, and be resolute enough to check, the unbridled and intemperate misuse and abuse of power by the Legislature and the Executive, except for a few judges who made valiant attempts to uphold the rule of law and constitutional governance. These judges, ably supported by committed and steadfast members of the profession, were risking their future but still prepared to stand firmly wedded to solemn constitutional principles. 

 

It is the Judiciary which is looked upon by helpless and besieged people to stand up against the power-wielders and to structure the exercise of their powers within the confines of constitutional governance. They also expect the Judges to provide redress and relief from repugnant and obnoxious conduct of the people’s representatives and appointed agents. In this context the role of the Judiciary becomes critical not only to provide relief and redress to the people affected by governmental excesses and abuses but also, and more importantly, to ensure the rule of law and democratic governance in the country. It is the Judiciary which is commanded to exercise the judicial power of the People. 

The judicial power of the People, being declared to be an integral element of the People’s Sovereignty, stands equal to the other powers of government, viz., legislative and executive powers. There is a mistaken and misplaced belief that the legislative power and the executive power of the People stand on a higher pedestal than the judicial power. This is partly based on the notion that since the wielders of legislative and executive powers are elected by the People directly they enjoy superiority and legitimacy whereas the holders of judicial power lack superiority and legitimacy as they do not obtain such acceptance by the People through regularly conducted elections. 

Such a perception would have attracted some recognition under the government where the doctrine of Sovereignty of Parliament held sway, for example, in the United Kingdom. But this is not the case in Sri Lanka now. The makers of the 1978 Constitution were very clear and direct. They declared that in the Republic of Sri Lanka sovereignty is in the People and is inalienable. According to its provisions, the Sovereignty of the People includes the powers of government, fundamental rights and the franchise. The powers of government are further listed to represent the legislative power of the People, the executive power of the People and the judicial power of the People. 

From this it is recognized by the makers of the Constitution, that all these three powers, viz., legislative, executive and judicial, do refer to, along with fundamental rights and the franchise, the composite concept of the Sovereignty of the People. Therefore, it is not correct and constitutional to recognize that the legislative and executive powers of the People derive a superior status due to the operators of those powers being elected by the People and the judicial power of the People does not derive such a superior status as the Judges who, in effect and for all intents and purposes, exercise the power do not get elected by the People.  The mistaken notion is evident in some speeches and pronouncements of elected representatives; but this should not wrongly blind the judges with regard to the long-term vision and farsightedness laid bare in the Preamble to the Constitution which the Judges are committed to defend and uphold. 

In fact, one could convincingly and forcefully argue that, on a purposive construction of the provisions of the Constitution, the judicial power, by its very nature, should be critical in the proper enjoyment of the elements of Sovereignty of the People. Because the judicial power enables those who exercise it to adjudicate on the extent and scope of legislative and executive powers as well as on the validity of actions or inactions of those who exercise those powers.  And it is the judicial power that ensures the proper enjoyment of fundamental rights and the franchise of the People if those are threatened or infringed. 

One may not fail to recognize that there is truth in the assertion that the representatives of the People who face electoral competitions tend to be ‘unacceptably emotional’ and ‘hastily reactive’ when it comes to exercising their powers as they faced very hard-fought elections. So much so, there is a possibility that their decisions may be irrational, emotional and at times reprehensible. It is essential that the Judiciary consisting of professionally qualified and experienced people should look at and decide issues and claims in a calm and collected manner within the framework of democratic governance. Hence the Judges are expected to play a very laudable and noble task of holding the scale of justice between the power wielders and power providers.  

Part III- Public Law, 18th Amendment & the Judiciary 

Has the Judiciary in Sri Lanka discharged this function in a satisfactory manner? Development of Public Law in Sri Lanka has a history of ups and downs. Let us consider some of the ‘high profile’ cases which demonstrate the above issue. Being conscious of the adage that ‘one swallow does not a summer make’ some of the recent rulings of the courts have failed to maintain and uphold the delicate balance between the organs of the government which balance has to be sustained to ensure that constitutional democracy and the rule of law would continue to be upheld in the country. An elected Government, I mean here the Executive and/or the Legislature, can be enormously popular at a given point of time; they can command an uncritical and impulsive public support due to some reasons or factors. This phenomenon, however, should not be deemed as a licence to dislocate or disrupt the mechanics of governance in order to convert a constitutional democracy into a constitutional dictatorship. 

While the people are expected to be vigilant over how their representatives act and react, it is also the bounden responsibility of the Judiciary in the country to construe the provisions of the Constitution in order to remind the limits of the different organs of the government with regard to the exercise of their authority. When the Judiciary, for one reason or the other, fails to keep vigil over this matter, the delicate balance that should be maintained may be tilted to the detriment of the People and of their Sovereignty! That may also irreversibly and adversely endanger the institution of democracy in the country. 

Let us look at the way the Public Law of this country got shaped in the recent past! Perhaps the defeat of terrorism made the rulers of the country to think that they could do anything that they liked! The elimination of war was not made into an opportunity to enthrone the rule of law which was sagging and slumping in the country; instead, almost all the pillars tried to be erected by the 17th Amendment to the Constitution to promote and further principles of good governance, and thereby responsible and responsive democratic government in the country were dismantled with indecent haste. The victory at the war and the resultant euphoria were manipulated deviously and artfully to achieve the end of dismantling safeguards and creating an almost impregnable Office which could control almost all the organs of the government and the people; in the process, the spirit and purport of the Constitution was also subjected to unwarranted and unhealthy ruination and impairment.  

In the end, it was not the LTTE alone which was eliminated from this soil! But, along with it, the safeguards which were put in place by the 17th Amendment to weed out the unsatisfactory elements which were sucking the bulwark of democracy and liberty in the country were also neutralized and made ineffective. To the contrary, the 18th Amendment enacted with incredible speed introduced features which facilitated the over-centralization of powers in the hands of one individual, devoid of effective answerability, to the detriment of democracy! 

The sad and distressing spectacle in this respect is the role played by the highest Court in the country. The 18th Amendment to the Constitution Bill was referred to the Supreme Court as ‘urgent in the national interest’ under Article 122 of the Constitution. The primary purposes of the proposed amendment, amongst others, were – i) to remove the Constitutional bar placed on a person who was elected twice to the Presidency of the country from seeking further terms as President, and ii) to remove the limitation structured into the unlimited and absolute power enjoyed by the President in appointing and removing persons to specific Commissions and ‘high’ Offices. These Commissions and Offices are deemed to be of such importance to promote good governance and the rule of law in the country that they are, and they do appear to be, free from ‘party political’ influences and pressures of the party in power.  

In the first place, it was unfortunate that the Five Judge Bench of the Supreme Court did not reflect on the question whether it was constitutional and legitimate to entertain the Bill under Article 122 as an urgent Bill in the national interest. The Bill was accompanied by an endorsement made by the Secretary to the Cabinet of Ministers to the effect that in the view of the Cabinet the Bill was urgent in the national interest. Although a mechanical reading of the provision would have permitted the Court to entertain the Bill, such a reading was not what was expected of the highest Court in the country. The Court should have displayed much more care with regard to its overall responsibility and duty of ensuring that the provisions of the Constitution were not misused or abused by the Executive and the Legislature. Being entrusted with the sole and exclusive jurisdiction with regard to the interpretation of the Constitution, the Supreme Court should have demonstrated critical care and judicious attention as to whether the government of the day was entitled to use, or rather misuse, the provisions of Article 122 to bring forth the 18th Amendment Bill before the Court. 

An objective evaluation of the main purposes that were to be achieved by the Bill would have shown clearly that there was no urgency in the national interest to bring the Bill with such haste sabotaging the normal time period allowed for people’s participation and judicial reflection and determination. One would argue that the normal time period permitted under the Constitution for judicial pre-view of the ordinary Bills is in itself inadequate; it would be woefully inadequate when the Bill is proposed to be an Amendment to the Constitution! 

When the 18th Amendment Bill was presented to the Supreme Court under Article 122 of the Constitution in the purported premise that it was urgent in the national interest, the then President-elect in 2010 had not completed even his first term which commenced in November 2005; and his 2nd term had not commenced yet; it was to commence in November 2010 - three full moons after the presentation of the Bill. Where was the national urgency for speedily removing the ban on the number of times a person could be the President of this country? One might justifiably wonder, or suspect, whether it was in the national interest or in the then President’s interest to remove the ban! It might have been argued sometimes that national interest lay in the people not being denied the right to elect a person as their President for more than two terms. However, only two persons were available at that time in this category; they are the then incumbent President and the then immediate past President. 

Even if the above contention was considered a justifiable one, for the sake of argument, there was no shred of evidence to demonstrate the requirement of urgency which this Bill warranted for the invocation of Article 122. When the Bill was brought before the Supreme Court in August 2010, the earliest time for the conduct of Presidential Election could only have been after November 2014– that is four long years after the Bill was presented. Where was the so called urgency in such situation? A façade of an endorsement by the Secretary to the Cabinet of Ministers which flew in the face of reality could not have provided the conditions precedent for invoking the jurisdiction of the Supreme Court under Article 122 validly and justifiably.   

 

Similarly, one of the other purposes of the Bill was to change the method of appointment of persons as Chairman and Members of specific Commissions and as Officers. In this respect, what the 17th Amendment did was to structure the exercise of Presidential discretionary power with regard to these appointments. Here again, the then President had ignored and disregarded the then operative provisions of the 17th Amendment and went ahead, at his sole discretion, appointing persons to these Commissions and Posts. In respect of one Commission, viz., the Elections Commission, he did not constitute it and did not appoint the Chairman and Members to it for about five years. This Commission was not constituted under the earlier regime as well, though the Constitutional Council recommended names for appointment. The President who came to office in November 2005 did not constitute the Constitutional Council under the 17th Amendment. He permitted the Council to go into oblivion. He acted in disregard or in violation of the provisions of the Constitution for almost five long years and during this period did appoint persons as Chairman and Members to the specified Commissions and as Officers. It is not in the order of things for the Court to entertain and hear the claim from such a Government that the issue of appointment of persons as to these Commissions and Posts was ‘urgent’.

It is my considered opinion that the Supreme Court should not have entertained the Bill for its consideration under Article 122. It should have sent a clear message to the Executive Branch of the government that the Executive did not have the prerogative to abuse the process of the Court or to usurp the provisions of the Constitution as it liked.  

With regard to the questions of constitutionality of the provisions of the 18th Amendment Bill, it should be noted that it was the prime responsibility of the Supreme Court to be eternally vigilant and cautious in construing them. The Court was duty bound to uphold the Sovereignty of the People, which included fundamental rights and the franchise amongst others. The Court should have paid considerable attention to those provisions in order to ensure that the provisions in the 18th Amendment did not provide space and occasion to anyone to abuse the provisions in a way that would compromise on the principles and norms of democracy as well as human rights and liberties of citizens. Even the existence of a mere possibility of facilitating a tendency to undermine these principles should have alerted the Court. This is all the more important for two reasons. 

Firstly, the Court knew that its jurisdiction to subject Acts and Amendments to the Constitution passed by Parliament to judicial review had been expressly removed under the Constitution, and that it did not enjoy post-enactment review of Parliamentary Acts and Amendments. Once such an Amendment to the Constitution or an Act was enacted it was not possible for a citizen to challenge the validity of the provisions of the Act. The Court itself would be helpless.  Some of the acts and omissions of the Executive branch of the government, after the enactment of the 18th Amendment, provide support to the contention that the Amendment did not conform to the letter and spirit of the Constitution; nor did it promote good governance. It neither encouraged accountability nor promoted answerability on the part of the Executive. 

Secondly, it was also well known that the Presidential actions and omissions qua Presidency could not be challenged in courts as Article 35 (1) provides an absolute immunity to the President from any proceedings; so the courts have held! It is my considered opinion that some of the judgments need not have construed Article 35 (1) in such a sweeping and broad manner. Be that as it may, the existing legal position is that the President enjoys unmitigated immunity from law suits with regard to all his official and private actions, done as the President while he holds office. Given that context, therefore, the Court should have realized that permitting broad and unstructured power to the President will make it impossible for citizens to obtain redress from the Courts for any violations of democratic norms and principles, which are very clearly pronounced in the Constitution through its Preamble.  These could include actions which derail the Rule of Law in the country. Perhaps this is one reason why we have witnessed the misfortune of partial implementation or no implementation of the provisions of the 17th Amendment and 13th Amendment to the Constitution. It is an indictment on the Rule of Law of the country to witness the non-implementation of some provisions of the Constitution.   

With regard to the use of the Preamble of the Constitution, it is refreshing to note that a Three-Judge Bench of the Supreme Court drew inspiration and support from the Preamble in arriving at its Order in a Case of Reference under Article 125 of the Constitution. This Reference was made by the Court of Appeal in pursuance of a writ application filed against the Members of the Parliamentary Select Committee which was constituted by the Hon. Speaker to investigate and report on allegations of misbehavior and incapacity levelled against the former Chief Justice of the country. 

Part IV – Impeachment of Chief Justice & the Judiciary 

I will now turn my attention to the judicial responses with regard to the Impeachment saga which was a very bizarre and weird chapter in the constitutional and judicial history of this country. It is not my intention to deal with the facts of the case in detail.  However, I would evaluate some of the principles and reasoning underpinning the decisions made by the Courts surrounding the issue. 

The 43rd Chief Justice who was the subject of a resolution for impeachment in Parliament sought the writ of certiorari to quash the findings of the Parliamentary Select Committee. This Committee investigated the allegations of misconduct and incapacity contained in the motion presented to the Speaker in terms of Article 107 (2) of the Constitution. The Court of Appeal issued an interim Order stating that any steps taken in furtherance of the findings contained in the report of the Select Committee would be void if the Court were to issue the writ after hearing the application. The Court indicated to the relevant authorities to desist from acting in derogation of the rights of the Petitioner until the application was heard and concluded.  

Sometime before the above application, several writ applications were filed in the Court of Appeal seeking the Court to issue the writ of prohibition against the members of the Parliamentary Select Committee from investigating into the allegations of misbehavior or incapacity alleged against the 43rd Chief Justice. The Court of Appeal referred, in terms of Article 125, a question relating to the interpretation of Article 107 (3) of the Constitution to the Supreme Court. The Supreme Court considered the submissions of the Attorney-General, Learned Counsel for the Petitioners and for the Intervenient Petitioner Respondents.  

Having analyzed those submissions, various judgments and legal principles, the Supreme Court answered the question referred to it in the following way: “It is mandatory under Article 107 (3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehavior or incapacity and the Judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehavior or incapacity.” 

The reasoning of the Supreme Court can be gathered from the following passages of the Order – 

“In a State ruled by a Constitution based on the rule of law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament which is “law” and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and the affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by “law”. 

A Parliamentary Select Committee appointed in terms of Standing Order 78A derives its power and authority solely from the said Standing Order which is not law. Therefore a Select Committee appointed under and in terms of Standing Order 78A has no legal power or authority to make a finding adversely affecting the legal rights of a Judge against whom the allegations made in the resolution moved under proviso to Article 107 (2), is the subject matter of its investigation. The power to make a valid finding, after the investigation contemplated in Article 107 (3), can be conferred on a court, tribunal or a body, only by law and law alone.” 

 

The Order and the reasoning underpinning the Order of the Supreme Court are consistent with the spirit and intent of the Constitution. The Preamble to the Constitution assures to all people the Independence of the Judiciary, amongst others, as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People of Sri Lanka. The phrase ‘Independence of the Judiciary’ appears, as a sub-title, immediately before Article 107 of the Constitution. In the circumstance, it is not only sound and constitutional but also desirable as well as demanded according to the rules of constitutional interpretation, that the forum to investigate and report on allegations of misbehavior or incapacity of judges of the superior courts, and matters connected with the conduct of the investigation are provided for by a law of Parliament. Furthermore, the members of the body of investigation shall preferably consist of persons from outside the Parliament to accord with the rules of natural justice. It would not inspire confidence in the minds of the people if a few Members of Parliament constitute the Investigative body and report its finding to the Parliament which then passes the resolution into an Address. 

Furthermore, there is no provision which expressly or by necessary implication prohibits or precludes the Supreme Court from holding that it is a law passed by Parliament which should prescribe the body for conducting the investigation and matters connected with the mode of proof, burden of proof, standard of proof of any alleged misbehavior or incapacity of judges of the superior courts. For, the persons subjected to investigation under Article 107 are the Chief Justice and Judges of the Supreme Court as well as the President and Judges of the Court of Appeal. They occupy a very high position in one of the Organs of the Government and do exercise the judicial power of the People. They, by virtue of their office, do and should enjoy a high degree of independence and insulation from the Executive and the Legislature. 

The above premise is further buttressed by an express provision in the Constitution relating to any potential interference with the judiciary. In terms of Article 111C (1), every judge shall exercise and perform his or her powers and functions without being subject to any direction or other interference proceeding from any other person except a superior court, tribunal, institution or other person entitled under law to direct or supervise such judge. It is evident that any institution or person who claims to be entitled to interfere with the exercise and performance of powers and functions of a judge should demonstrate that the authority to interfere comes from a law; nothing short of a law would be consistent with this specific constitutional prescription! This Constitutional provision expressly secures the independence of the judges and the Judiciary. It is to be noted that some of the allegations levelled against the 43rd Chief Justice related to her official duties. 

There is yet another express provision which makes it necessary to have a law if Parliament were to exercise the judicial power of the People with regard to matters relating to the powers of Parliament and of its Members. Article 4 (c) declares that “the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law”. [emphasis added]

 

In light of the above express provisions in the Constitution, the Supreme Court was not acting unconstitutionally or beyond its constitutional duty when it held that the authority to conduct the investigation could not come from a Standing Order which is not a law, but from a law and law alone. 

Referring to the Order of the Supreme Court in the above case, the Court of Appeal issued the writ of certiorari quashing the report/finding/decision of the Select Committee on the basis that it had no legal validity because the Select Committee appointed under Standing Order 78A has no legal power or authority to make a finding affecting the legal rights of the judge. The Court also reasoned that “the Constitution in Articles 80 (3), 81 and 124 expressly oust the jurisdiction of courts.  If the legislature had intended that the jurisdiction of the court should be ousted under Article 107 of the Constitution to impeach judges, it ought to have specifically provided for such an eventuality. As such, in my opinion, the Legislature has clearly placed no such obstacle either directly or by necessary implication in the way of entertaining the present application.” 

The Parliament disregarded the responses of the Courts and went ahead with purportedly ‘impeaching’ the 43rd Chief Justice. Notwithstanding the impeachment and the President’s purported removal of the 43rd Chief Justice, the then Attorney-General, who was not a party to the case in the Court of Appeal but was a friend invited by the Court to assist it as amicus curiae, obtained from the Supreme Court, Special Leave to Appeal against the judgment of the Court of Appeal which judgment, by then, had become of academic interest virtually as the Parliament did not pay heed to the judgment of the Court of Appeal nor did it or the then President stop the course of action that commenced! 

A Divisional Bench of the Supreme Court consisting of Five Judges heard the appeal preferred by the amicus curiae turned ‘Petitioner-Appellant’ and two of the twelve Respondent-Respondents while the Petitioner-Respondent was absent and unrepresented. The Supreme Court granted special leave to appeal on two substantive questions of law to the following effect, viz., i) does the writ jurisdiction of the Court of Appeal extend to proceedings of Parliament or a Committee of Parliament?; and ii) do the words “any Court of first instance or tribunal or other institution or any other person” in Article 140 extend to the Parliament or a Committee of Parliament? In other words, are i) proceedings of Parliament or a Committee of Parliament, and/or, ii) Parliament or a Committee of Parliament amenable to the writ jurisdiction of the Court of Appeal? 

Considering the question whether Parliament or a Committee of Parliament is amenable to the writ jurisdiction of the Court of Appeal, the Supreme Court traced the origins of the writs to the English common law and how it came to be recognised in this country. Adverting to and analyzing many English law authorities and many of the Sri Lankan cases of pre-1978 vintage, the Supreme Court expressed the view that the court, tribunal, institution or person mentioned in Article 140 can only refer to any courts, tribunals, institutions and persons which are inferior in status to the Court of Appeal. Reflecting on the issue whether the Court of Appeal had the jurisdiction to issue the writ of certiorari to Parliament or a Select Committee of Parliament, the Supreme Court turned its attention on examining (a) whether Parliament and in particular, a Select Committee of Parliament is inferior to the Court of Appeal, and (b) whether the powers, privileges and immunities of Parliament would preclude the grant of such a remedy. 

Tracing the autochthonous nature of the Constitution and referring to Articles 1, 2, 3 and 4 of the Constitution, the Supreme Court adverted to a couple of passages from the Determination of a Bench of Seven Judges of the Supreme Court in Re the Nineteenth Amendment to the Constitution [2002] to underscore the point that the 1978 Constitution enshrines the doctrine of separation of powers. Having said so, the Supreme Court went on to state, a number of times in the judgment, that the legislative power of the People is vested in Parliament, the executive power of the People is vested on the President and that the judicial power of the People is vested in Parliament to be exercised through the courts, etc. 

In this respect, the Supreme Court claims that “Article 4 (a) is carefully worded to vest in Parliament, consisting of elected representatives of the People, the legislative power of the People which it can directly exercise, that is to say, to the exclusion of the legislative power of the People that has to be exercised by the People at a Referendum in terms of the Constitution.” It further observes that “according to Article 4 (c) of the Constitution, the judicial power of the People is vested in Parliament to be exercised through the courts, tribunals and institutions as specified therein, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, which may be exercised directly by Parliament according to law.” It also says that “Article 4 (b) vests the executive power of the People directly on the President, who too is elected by the People.” 

It is my respectful view that a careful reading of the relevant provisions of the Constitution does not warrant some of the assumptions spelt out by the Supreme Court with regard to the constitutional arrangements. For instance, Article 3 of the Constitution recognizes and declares that in the Republic of Sri Lanka sovereignty is in the People and is inalienable. It further states that sovereignty includes the powers of government, fundamental rights and the franchise. Therefore, the legislative power, the executive power and the judicial power are recognised to be in the People and are inalienable. If those powers are inalienable, they cannot be vested in Parliament and the President. On the contrary, Article 4 in paragraph (a) provides that the legislative power of the People shall be exercised or is exercisable by Parliament and by the People at a Referendum; in terms of paragraph (b) the executive power of the People shall be exercised or is exercisable by the President; and according to paragraph (c) the judicial power of the People shall, subject to some exception, be exercised or is exercisable by Parliament through courts, tribunals etc. 

Yet another position which has to be realized is that  the judicial power of the People, except with respect to privileges, immunities and powers of Parliament and its members, shall be exercised by Parliament through the courts and tribunals established by the Constitution or other laws only. With regard to matters other than privileges, immunities and powers of Parliament and its Members, the judicial power of the People cannot be exercised by Parliament directly; it has to be by courts, tribunals etc. Therefore, it is the courts, tribunals etc., which in reality exercise the judicial power of the People, save with regard to a limited aspect, viz. the powers, privileges and immunities of Parliament and its Members. 

This apart, one finds that although Article 4 (b) states that the executive power of the People shall be exercised by the President, in terms of Article 43, which comes under Chapter VIII of the Constitution and titled ‘THE EXECUTIVE’, it is the Cabinet of Ministers which is charged with the direction and control of the Government of Sri Lanka and the Cabinet shall be collectively responsible and answerable to Parliament. The direction and control of the Government of Sri Lanka is a key aspect of the executive power of the People.  This clearly demonstrates that Article 4 is not a vesting clause; it is an authorizing or enabling clause. 

Having referred to the constitutional arrangement of the governmental powers and the issues of accountability and transparency, the Supreme Court observed that this was no different from the constitutional structure that exists in England. With due respect, this is not borne out from a comparison between the two systems. While the British Parliament enjoys ‘legislative supremacy’, though this is being doubted of late, the Sri Lankan Parliament does not enjoy the same. With regard to this, the position under the 1978 Constitution is that the Constitution binds Parliament and the latter does not enjoy the capacity to make laws on certain subject matters without the support of the People at a Referendum. Similarly, where Parliament rejects an ordinary Bill, it is possible for the People at a Referendum to make it into a law. These clearly demonstrate that the Parliament under the 1978 Constitution does not enjoy legislative supremacy as it is enjoyed by the British Parliament. 

With regard to the question whether Parliament or its Select Committee is amenable to the writ jurisdiction of the Court of Appeal, the Supreme Court held that there is no doubt that Parliament including its select committees could not be regarded as inferior to our Court of Appeal and therefore they are not amenable to its writ jurisdiction. The Supreme Court did not expressly state the reasons for holding that the select committees of Parliament could not be regarded as inferior to the Court of Appeal. While it could be argued that Parliament could not be regarded as inferior to the Court of Appeal when it comes to the legislative function of the People as the powers are derived directly from the Constitution itself as how the Court of Appeal derived its writ jurisdiction directly from the Constitution itself. However, Select Committees of Parliament do not derive their authority from the Constitution directly; they get their authority from Standing Orders made by Parliament under an enabling provision of the Constitution. This distinction and consequently its effect on the status of the Select Committee were not addressed by the Supreme Court. Instead both Parliament and Select Committees were put together, without subjecting the issue to a critical analysis, and it was held that both are not inferior to the Court of Appeal. 

It is respectfully submitted that the Select Committee of Parliament need not have been considered to be equal in status to the Court of Appeal, in particular when they are not exercising legislative function. In this instance, the nature of the function was not legislative! It is my humble view that the Supreme Court should have considered the critical issues at play and the importance and necessity of ensuring the independence of the Judiciary and its Judges. When such is at stake, it is critically and judiciously important that the institutions which claim exclusion from the Court’s jurisdiction should establish their claim through an express and unequivocal provision in the Constitution; such claim for exclusion should be strictly construed because it is the independence of the judiciary that is at stake and with it the trust and confidence which the People repose on the Judiciary. 

In this respect, a comparison with the position of the President who is also elected directly by the People of the country, would be illustrative. Under Article 35 (1), it is the actions of the President qua Presidency which are immune from any suit. But any acts of the President performed in the capacity of a Minister of the Cabinet holding a portfolio are not immune from the writ jurisdiction of the Court. If the President does not enjoy immunity from suits for acts done by him in the capacity of a Minister, one does not see any reason why a Select Committee performing a non-legislative function be exempt from the writ jurisdiction of the Court. 

 

Having disposed of the 2nd issue on which the special leave to appeal was granted in the above manner, the Supreme Court turned to the 1st issue, viz., whether the writ jurisdiction of the Court of Appeal extended to proceedings of Parliament or a Committee of Parliament when it performed its constitutional function under Article 107 (2) and (3) of the Constitution and Order 87A of the Standing Orders of Parliament. After an elaborate survey of the mechanisms for the removal of a Judge of the Superior Courts that existed under the previous and present Constitutions and having analyzed the arguments presented by the learned counsel for both sides, the Supreme Court opined that the power of removal of the judges of the superior court and the President of the Republic has to be exercised by one organ of State in concurrence with one or more governmental organ or organs,’  and that this ‘feature constitutes a system of checks and balances which is essential for the preservation of the Rule of Law’.    

Analyzing the scope of Article 107 (3), the Supreme Court concluded that the words “by law or by Standing Orders” found in the provision clearly conferred discretion on Parliament to decide whether the matters required to be provided for by that Article should be provided for by law or by Standing Orders. In the process, the Five Judge Bench of the Supreme Court held that the earlier Determination of the Three Judge Bench of the same Court in the Referral under Article 125 had the effect of deleting or rendering nugatory the words “of by Standing Orders” found in Article 107 (3) of the Constitution. It further stated that the earlier Determination did not offer any acceptable reasons for ignoring basic provisions of the Constitution, except for the observation that “no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such, tribunal or body has the power conferred on it by law to make such finding or decision.” The Supreme Court held that it had no authority, whether express or implied, to take away from Parliament a discretion expressly conferred on it by the Constitution itself. Holding the previous Determination of the Three Judge Bench as a blatant distortion of the law, and was altogether erroneous, the Supreme Court overruled the said Determination. 

It is respectfully submitted that the views expressed by the Five Judge Bench of the Supreme Court on the Determination of the earlier Three Judge Bench were somewhat misplaced and exacting. The earlier Court came to the conclusion after a detailed process of careful analysis of the relevant constitutional provisions found in the Soulbury Constitution, the 1972 Constitution and the 1978 Constitution relating to the removal of judges of the superior courts. The Bench also quoted extensively dicta from the separate judgment of Sharvananda J (as he then was) in a Full Bench of Nine Judges of the Supreme Court delivered in 1983 as well as from the Determination of the Seven Judge Bench in the case of In Re the Nineteenth Amendment to the Constitution decided in 2002. Further the Determination critically analyzed the scope of Article 107 (3) and the Standing Order 78A. 

Having quoted these dicta, the Three Judge Bench of the Supreme Court held that it was necessary, in deciding the question of interpretation referred to the Court by the Court of Appeal, to consider the exact nature of the investigation contemplated by Article 107 (3). The Court went on to demonstrate that the findings from the investigation were indispensable legal basis for an Address by Parliament seeking the removal of an impugned Judge by the President of the country. Thus the Court held that the finding that the allegations have been proved is a finding that adversely affects the constitutional right of a Judge to hold office during good behaviour. The Court also itemized separately, in terms of Article 107 (3), the matters which are to be provided by law or by Standing Orders. 

The Supreme Court displayed the gravity of the matters relating to investigation and proof of the alleged misbehavior or incapacity on the constitutionally protected right of a judge of the superior courts. It held that those matters have to be provided for by law and not by Standing Orders because it is the law which can confer power on a court, tribunal or body that can make findings adversely affecting the constitutionally protected rights of the superior court judges.  The Court also explained why the Constitution had used the words ‘by law or by Standing Orders’ and justified their reasoning by having recourse to the presumption that Parliament would not use words in vain or unnecessarily.

 

The main thrust of the Determination of the Three Judge Bench was that the independence of the judiciary is one attribute of the intangible heritage that guarantees the dignity and well- being of the people of Sri Lanka and consequently if any constitutionally recognised right of the judges of the superior court were to be affected, it could be done through a law passed by Parliament and not by a Standing Order, which, though made by Parliament, is not a law passed by Parliament. 

In the circumstance, it is my considered opinion and humble submission that when the Three Judge Bench construed paragraph (3) of Article 107 of the Constitution to the effect that all matters relating to the investigation, such as the procedure, the proof and the right of an impugned judge to appear and to be heard, etc., must be provided for by law passed by Parliament not by Standing Orders of Parliament, it was not doing violence to the language of Article 107 (3); nor was it taking away a discretion from Parliament. It is submitted that what Article 107 (3) does it to locate the authority – a duty not discretion - to provide for the matters referred to in the provision, with Parliament. In this instance, Parliament is permitted to use the form of law not the instrument of standing orders to provide for those matters. In the view of the Court, it is incumbent on Parliament to distinguish appropriately the different matters for the proper use of law and for the proper use of standing orders, taking relevant matters into consideration. It is also an accepted principle of constitutional interpretation that where two interpretations are possible the one which respects and accords with the rights of people must be preferred and adopted. In the circumstance, it is my respectful submission that the Court had not defied the constitutional mandate that the legislative power of the People shall be exercised by Parliament by the Court holding that those matters must be provided for by a law of Parliament. To the contrary one could legitimately argue that by such decision the opportunity for Parliament to exercise the legislative power of the People was enhanced not flouted. 

Part V – Parliamentary Powers & Privileges and the Judiciary 

The Five Judge Bench of the Supreme Court surveyed the origins and development of the concept of Parliamentary powers and privileges from the English Bill of Rights of 1689 to the Sri Lankan Parliament (Powers and Privileges) Act of 1953 in particular its section 3  which provides that there shall be freedom of speech, debate and proceedings in Parliament and that such freedom of speech, debate or proceedings shall not be liable to be impeached or questioned in any court or place out of Parliament. The Court also analyzed some relevant English cases and dealt with arguments of the learned counsel. 

In this respect, having adverted to the fact that there is no definition of the term “proceedings in Parliament” though there had been narrower and wider meaning to those words, the Five Judge Bench observed that the appeal before the Court did not relate to all what transpired before the Parliamentary Select Committee; it was the issue that the appointment by the Speaker of the House of Parliament of the said Committee was invalid and that in consequence the Select Committee was not properly constituted. The Supreme Court also recognized that it was the only justification offered by the Court of Appeal for quashing the report of the said Committee. Further the Court was also invited to consider whether Section 3 of the Parliament (Powers and Privileges) Act amounted to a constitutional ouster of the writ jurisdiction of the Court of Appeal by reason of Article 67 which is as follows: 

“The privileges, immunities and powers of Parliament and of its Members may be determined and regulated by Parliament by law and until so determined and regulated, the provisions of the Parliament (Powers and Privileges) Act, shall, mutatis mutandis, apply.” 

The Supreme Court observed that Article 67 of the Constitution incorporated into that article mutatis mutandis all the provisions of the Parliament (Powers and Privileges) Act  and that the effect of such incorporation by reference was to write into that article the provisions of the Act as if they were part of the Constitution. By this process of reasoning, the Court held further that section 3 of the Parliament (Powers and Privileges) Act read with Articles 4 (c) and 67 of the Constitution would have the effect of ousting the writ jurisdiction of the Court of Appeal in all the circumstances of the case.

 

There arise two concerns in this respect.  One is was there an issue of freedom of speech, debate or proceedings in Parliament impeached in the case before the Court of Appeal? Can the act of constituting a purported Select Committee under an invalid Standing Order be held to fall within the phrase ‘speech, debate or proceedings in Parliament? This was not considered by the Court. If this issue is considered objectively, the applicability of the provisions, in particular section 3, of the Parliament (Powers and Privileges) Act would not have arisen. 

 

The other concern relates to the purported incorporation of the provisions of the Act into Article 67. Here the attention of the Court did not focus on the Latin phrase mutatis mutandis which finds a place in the Article. This phrase is defined to mean “with the necessary changes having been made.” Therefore it is not the entire provisions of the Act which had been incorporated by reference. When the said Act was enacted Ceylon, as it was then known, was not a Democratic Socialist Republic; the Soulbury Constitution presented, with some modifications, a system of government modelled on the British type of Westminster Cabinet Government. It did not spell that Sovereignty is in the People and that the Sovereignty of the People included the legislative power of the People, the executive power of the People and the judicial power of the People.  It is true that it protected the then Parliament and its Members from impeachment for speech, debate or proceedings in Parliament.

 

However, the introduction of a Democratic Socialist Republic had changed many things fundamentally. For example, the Constitution provides for a chapter on fundamental rights guaranteed to the people of this country; it also provides for ensuring the independence of the judiciary. These new features have brought about changes in the way the powers and privileges of the Members of Parliament are to be looked at. As it is expressly provided, the provisions of the then enacted Parliament (Powers and Privileges) Act should be incorporated only if they are not inconsistent with the provisions of the Constitution and to their true spirit and intent. My respectful submission is that those provisions cannot be held, by reference only, to have been incorporated into the Constitution so as to oust one of the important jurisdictions expressly conferred on the Court of Appeal of the country. 

Part VI – Conclusion 

If the Public Law of this country were to be developed into a vibrant branch of law helping people to enjoy the Rule of Law and democratic norms, the superior courts have a lot of responsibility on their shoulders. It is no doubt that the people must be ever vigilant to protect their own rights; but they can do that only through lawful means. Ultimately they can approach the courts for their protection and demand for the Rule of Law in the country. 

It is not my plea that the Courts should make laws; that is for the legislature to do, I accept. However, there is enough and more space within the scope of constitutional and statutory interpretation for the Courts to legitimately set down and follow healthy principles of constitutional democracy respecting the principles of the Rule of Law and Constitutionalism. 

I am glad to note that a similar sentiment was expressed by Your Lordship the Chief Justice recently when Your Lordship addressed those present at the Ceremonial Sitting of the Supreme Court to welcome Your Lordships. Your Lordship noted that “It is for the judiciary to uphold the constitutional values and to enforce constitutional limitations. The fundamental right to move this Court can, therefore, be appropriately described as the corner-stone of the democratic edifice raised by the Constitution.” 

This country has seen some judgments of constitutional creativity and inspiration. They have set new norms such as the doctrine of public trust in the exercise of public power as well as very resourceful and broad construction of the constitutional provision relating to the fundamental right to equality. They are shining examples of the capacity of our Judiciary to function in a positive and creative way to keep the powers that be within the remit prescribed by the legal and constitutional parameters. I hope fervently that this tradition will be followed!

That will be the best honour we will be paying to the memory of Justice S. Sriskandarajah.

 

 

 

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Lawyers do not need to please judges

Press Trust of India | New Delhi Jan 18, 2015 08:25 PM IST

 


A lawyer "should not agree" with a judge if he has a point to propose which is supported by "precedent or authority", a Supreme Court judge said today even as he averred that there was no need to please judges.

Speaking at the award ceremony of the 11th K K Luthra Memorial Moot Court Competition here, Justice Dipak Misra also said that a lawyer can disagree with a judge if he has a valid point.

"You may not immediately disagree with a judge but there is a way to disagree with a judge. And a lawyer in all fairness, if he has a point to propose, and the point is supported by precedent or authority... He should not agree.

"There is no need to please judges," Justice Misra, who was the chief guest at the programme, told law students.

He said that the language used in a court of law has to be "sober and have etiquette" and "this does not mean trying to please any kind of judge".

"A judge who intends to be pleased, in fact, I have no hesitation in stating, possibly doesn't have all the qualities for being a judge," he added.

Stressing on the politeness of language and expression on the part of a lawyer, Justice Misra suggested that employing court craft and showing respect are different from pleasing a judge.

He said the point should be made politely, respectfully and put in a manner that attracts the attention of the judge.

Asking the budding advocates to follow the law of the land, he said that nowadays, certain people, instead of following the law, love to violate it.

"As a lawyer, you really have to try to stand for the law of the land in times to come," he said.

National Institute of Juridical Sciences from West Bengal won this year's moot court competition with Delhi University's Campus Law Centre coming second.

The final round held at the India Habitat Centre here was judged by Justice Sanjay Karol of Himachal Pradesh High Court, Justice Siddharth Mridul and Justice Sanjeev Sachdeva of Delhi High Court.

The competition saw participation from 74 institutions from India and abroad, including George Washington University Law School of the USA, Northumbria Law School of Northumbria University and the Bangor University Law School, both of UK, and Sri Lanka Law College of Sri Lanka. 

A COMPROMISED JUDICIARY

 

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Dr. Nihal Jayawickrama

(The text of a presentation made at a conference on Judicial Integrity and Accountability held in Manila last week.)

In this session on "The Battle for Judiciary Integrity: Lessons from the Asian Experience", I have chosen to focus on a country with which I am familiar. What is interesting about Sri Lanka, as a case study, is that since it became independent of British colonial rule in 1948, it has experimented with two radically different forms of government. In the first 30 years, executive power was exercised by a cabinet of ministers responsible to an elected parliament, headed by a Prime Minister who held that office only for as long as he or she enjoyed the confidence of Parliament. The Prime Minister was subject to the law and the jurisdiction of the courts. Judges of superior courts were appointed by the constitutional head of state on the advice of the Prime Minister, who invariably consulted the relevant stakeholders before tendering such advice. During this period, a strong tradition of integrity underpinned the judiciary at every level. Despite immense political and social change, a competent, impartial and fiercely independent judiciary remained constant in its commitment to equal justice under the law.

In the next 36 years, executive power has been exercised by a President elected by the people. The President is Head of State, Head of the Executive and of the Government, Head of the Cabinet of Ministers, and Commander-in-Chief of the Armed Forces. The President is elected for a fixed term of six years, and may seek re-election as many times as he chooses to. He is virtually irremovable. He does not sit in Parliament. No proceedings may be instituted against him in any court in respect of anything done or omitted to be done by him either in his official or private capacity. He appoints, on his own initiative, the Judges of the Supreme Court and the Court of Appeal, the Attorney General, and the Judicial Service Commission. If the political party of which he is the leader commands a majority in Parliament, he has control of the legislative process as well. In essence, the President enjoys virtually unlimited power, more extensive than that possessed by a Head of State in any other democratic country. He or she is also the supreme source of patronage in the Republic. After three decades of presidential rule, judicial integrity, particularly at the highest levels of the judicial hierarchy, is all but non-existent.

Let me illustrate the impact of these two radically different forms of government on the judiciary. Some 50 years ago, in the year that I was admitted to the Bar, senior officers of the Armed Forces and the Police allegedly conspired to overthrow the lawfully elected Government. That attempt was aborted and the alleged conspirators were arrested. A traumatized Government secured the enactment of a retroactive law that introduced special provisions for the trial of the accused persons. Among these was one which conferred on the Minister of Justice the power to nominate three Judges of the Supreme Court to try the accused persons without a jury. When the Trial-at-Bar commenced before the three Judges handpicked by the Minister of Justice, the defendants refused to plead, arguing that the power of nomination of Judges conferred on the Minister was ultra vires the Constitution.

The Constitution did not contain a chapter on fundamental rights; nor did it specifically provide for the separation of powers. However, after several days of argument, the Court unanimously held that the power to nominate judges, although it might have had the appearance of an administrative power, was so inextricably bound up with the exercise of strictly judicial power or the essence of judicial power that it was itself part of the judicial power. Accordingly, the three Judges nominated by the Minister held that they had no jurisdiction to proceed with the trial for the very reason that they had been so nominated. They further held that even if the view were taken that the power of nomination was intra vires the Constitution, the nomination would have offended against the cardinal principle that justice must not only be done but must appear to have been done, and they would have been compelled to give way to that principle which had become ingrained in the administration of common justice in the country.

The Government did not appeal the judgment. Instead, it restored the power of the Chief Justice to nominate the Court. All three Judges continued to serve until they reached the age of retirement. Nine years later, one of them was recalled from retirement, on the recommendation of the same Prime Minister, to be appointed to the office of President of the Court of Final Appeal which replaced the Judicial Committee of the Privy Council.

Fast forward 50 years to 2012. A controversial Bill was presented in Parliament by the President’s younger brother, the Minister of Economic Development. Its constitutionality was challenged in the Supreme Court before a three-judge Bench chaired by the Chief Justice. The Court determined that the Bill could not be passed by Parliament until it had been approved by the nine Provincial Councils. When one Provincial Council failed to approve it since it had not yet been constituted by election, the same Bench determined that the Bill required not only a two-third majority in Parliament, but also approval at a referendum. On the same day, the government parliamentary group submitted a resolution to the Speaker for the removal from office of the Chief Justice. The Speaker, the elder brother of the President, appointed a select committee of seven cabinet ministers and four opposition members to investigate and report to Parliament on the allegations set out in the resolution.

When the Chief Justice appeared before the select committee, she was denied time to respond to the charges, denied further information on the charges, and denied a list of witnesses or of documents. Two members hurled abuse and obscene remarks at the Chief Justice and her lawyers. The Chief Justice thereupon withdrew from the proceedings. The four opposition members also withdrew, citing callous disregard for the rules of natural justice. On the next day, the seven government members summoned witnesses, recorded their evidence, and, 12 hours later, adopted a 25-page report in which they found the Chief Justice guilty of misbehaviour. The resolution for her removal was passed by Parliament; the order for her removal was made by the President; and the legal adviser to the Cabinet was appointed Chief Justice – despite a determination of the Supreme Court that the proceedings held before the select committee were void ab initio, and a writ of certiorari issued by the Court of Appeal quashing the decision of the select committee.

In my view, the events that I have just described marked the lowest depth in the downward spiral of the Sri Lankan judiciary. The process began on the day on which the presidential executive was established, and it gathered momentum as successive Presidents made their own contribution towards creating a docile, deferential and subservient judiciary. I will refer briefly to the areas in which the most critical and debilitating impact of presidential power were experienced.

 

Abuse of the appointment process

In the parliamentary system of government, the Prime Minister invariably looked to the traditional sources when recommending persons for appointment to the Supreme Court. These were the judicial service, and the official and unofficial bar. The twin principles of seniority and merit were the determining factors in their selection. A Judge of the Supreme Court usually brought to the Bench at least 25 years experience of judicial work in the original courts of the country, or of intimate involvement as a lawyer in the Attorney-General’s Department. It was not a tradition of the Bar for its leaders to make themselves available for permanent judicial office, but there were, as always, notable exceptions. The appointment process was open, transparent, and perceived to be fair.

The process changed dramatically in the presidential system. The first blow was struck by the first President who reconstituted the Supreme Court by excluding eight Judges, and relegating four others to a lower court, without regard to seniority, experience or age. The ambiguous criterion of "political acceptability" became the determining factor. Another President struck the next blow by appointing a relatively young academic who had never practised law or held judicial or legal office and who, at the age of 37, was younger than all the judges of the superior courts, and perhaps also of the courts below. The current President, who had gained entrance to law school under a facility that enabled Members of Parliament to be admitted without the minimum qualification required of others, often appointed those who had been his contemporaries there, apparently influenced by personal loyalty and friendship.

The criterion of "political acceptability" was also applied in the appointment of the Chief Justice. The first President appointed his own personal legal adviser, an original court lawyer who had never previously held judicial office. Later, he again bypassed the most senior judge who had delivered a dissenting judgment in a politically sensitive case. He was clearly not willing to promote a judge who was perceived to have fallen out of line with his government’s political interests. Yet another President chose to appoint the most junior Judge of the Supreme Court who was serving as her Attorney General. The present President has indulged in a game of snakes and ladders. He bypassed the most senior Judge, and then compensated her by appointing her husband as head of a major government institution, the Sri Lanka Insurance Corporation. Never before had the spouse of a Supreme Court Judge been the recipient of political largesse. Two years later, he appointed the previously superseded Judge as Chief Justice, having again appointed her husband to head another state institution, the National Savings Bank. Both these institutions functioned directly under the President in his capacity as Minister of Finance.

 

Interference with judicial tenure

No attempt was ever made during thirty years of parliamentary government to initiate proceedings for the removal of a Judge from office. The advent of presidential government saw Judges being summoned before select committees of Parliament to show cause why they should not be removed. The first such instance occurred when the Supreme Court held that an appeal court Judge serving on a presidential commission of inquiry was, by reason of misconduct, disqualified from continuing to act as a commissioner; the misconduct being that he had engaged in financial transactions with a person whose conduct was the subject of inquiry by the commission. The disqualified commissioner wrote to the President alleging that the judgment had been influenced by improper considerations. Two Supreme Court Judges were summoned and questioned by a select committee chaired by the Minister of Justice. One of them felt it necessary to impress upon the government-dominated committee, in a most abject and humiliating manner, where his political loyalties lay. The other, whose record of independence and integrity was impeccable, also found it necessary to dispel any suspicion that he was anti-government by citing a number of judgments in which he had held for the State. The select committee concluded that the allegation had not been substantiated.

Another instance was when the President’s former legal adviser – now Chief Justice - made an ill-advised speech in which he referred to matters of political controversy, and made some critical comments about the President. The Government’s response was immediate. A resolution requesting his removal from office was presented to the Speaker who appointed a select committee chaired by a cabinet minister. After fourteen meetings it concluded its sittings when the Chief Justice reached the mandatory retirement age. The select committee reported that the speech "does not necessarily amount to proved misbehaviour". The object of that exercise appeared to have been to humiliate a lawyer with no previous judicial experience who had been elevated to the highest judicial office, and had then become critical of his benefactor.

The third had all the features of a black comedy. A constitutional amendment required every person holding public office to take within one month a new oath undertaking not to advocate the establishment of a separate state within the territory of Sri Lanka, failing which such officer would cease to hold office. The amendment came into force on 8 August of that year. All the Judges took the new oath before each other, since they were competent to administer oaths. On 9 September, while sitting in court, the Chief Justice discovered that the oath to be taken by the Judges had to be administered by the President. The Court immediately adjourned, and the Judges wrote to the President that in their opinion the period of one month would expire at midnight on that day, and that they wished to take their oaths before him that afternoon. The President refused, having been advised that the period of one month had already expired. The Judges were informed that they had ceased to hold office. Their chambers were locked and barred and armed police guards placed on the premises to prevent access. It was widely speculated in government-controlled newspapers that the Court might be "reconstituted", with some Judges being replaced. Finally, a traumatic week came to an end when all the Judges were issued with fresh letters of appointment and duly sworn in by the President.

 

Contempt of judicial authority

Presidents who enjoyed immunity under the Constitution also began to demonstrate contempt for inconvenient judicial decisions. Some were ignored with impunity. The first President set the tone for this when he developed the practice of rewarding police officers found guilty of violating the fundamental rights of political opponents. For example, a team of police officers stormed a meeting of the clergy who were campaigning against a Bill that sought to extend the life of Parliament. They assaulted the participants, seized their pamphlets and dispersed the crowd. The Supreme Court found a violation of the right to freedom of expression, and awarded damages and costs to the organizer of the meeting. The assistant superintendent of police who led the team was immediately promoted and the damages and costs were paid out of state funds. This was not an isolated case, but one of several.

When a representative of the International Commission of Jurists on a mission to Sri Lanka interviewed the President, he freely conceded that the promotion of police officers, and the payment of the damages and costs out of public funds, were his personal decisions. These, he said, were necessary to maintain police morale. He also said that he found the Supreme Court a hindrance to some of his policies, and could present real difficulties if it was outside anyone’s control.

 

Relations with the Executive

Lord Hailsham, a former Lord Chancellor of England, described the vocation of a judge as being "something like a priesthood". Having lived in the home of a judge for several years in the mid-twentieth century, I observed that the view of a judge’s life in Ceylon at the time, though more liberal in nature, was still quite monastic in many of its qualities. While judges did not isolate themselves from the rest of society, or from school friends and former colleagues in the legal profession, they rarely, if ever, socialized with politicians in each other’s homes. It is now a common practice for Judges to invite the President, the Prime Minister and other Ministers to their homes to celebrate their appointment to the Court, or to play prominent roles at family events such as the marriage of a son or daughter. Photographs of such events are published in newspapers and on the internet. When the President’s son took his oaths as an attorney-at-law before the Chief Justice and two other Judges, the three Judges stepped down from the Bench and posed in their judicial attire for several photographs with the new attorney and his parents and with Ministers who were also present. That privilege was not accorded to the hundreds of others who also took their oaths on that day in the same ceremony.

More recently, the present Chief Justice travelled from the capital city to the deep south to join the President and his immediate family in celebrating the Sinhala New Year rituals at the President’s private home. Several pictures that were published showed the participants, including the Chief Justice, "attired in white and facing south" feeding milk rice to each other and engaging in other traditional transactions in what was essentially a family occasion. Two months ago, the Chief Justice was a member of the President’s entourage (which included several Ministers, Members of Parliament and officials) on an official visit to Italy. It was the first occasion when a Chief Justice accompanied a political leader on a visit abroad.

 

Patronage and Reciprocity

Presidential patronage also extends to material benefits. One President provided Judges with state land at a nominal price for them to construct their own homes in an otherwise expensive suburb of the capital city. Another President granted massive backdated salary increases to Judges of superior courts. The current President granted permits to judges to import vehicles free of duty, and allowed them to sell the permits if they so wished. He then devised a mechanism to enable them to earn foreign exchange. By arrangement with the military dictatorship of the Fiji Islands, Judges of the Supreme Court and the Court of Appeal were granted leave to serve as judges in Fiji from time to time. This arrangement commenced at a time when Fiji was suspended from the Commonwealth owing to a military coup in that country, and judges from other Commonwealth countries serving in the Fijian judiciary had resigned. Notwithstanding the enormous backlogs in both superior courts, several Judges availed themselves of this presidential concession.

The post-retirement employment of Judges is disapproved of in many jurisdictions, if not altogether prohibited. The provision of an attractive pension for life is regarded as adequate compensation. The conduct of a former Judge often affects the public’s perception of the judiciary and of other Judges who continue to serve after that Judge has left. The political bias displayed by the Bribery Commission and the Human Rights Commission, both headed by retired Judges, has been such that they have now become objects of public ridicule. It was, however, an unprecedented appointment made by the current President that seriously compromised the integrity and credibility of the Supreme Court. Barely weeks after his retirement, the Chief Justice was appointed as an Adviser to the President. It was not known whether the Chief Justice sought this post-retirement employment, or whether the President offered it to him, and why. Nor was it known whether discussions in regard to his re-employment took place while the Chief Justice was still in office presiding over politically sensitive cases. It gave rise to serious questions not only in regard to his judgment, but also to the probity of his recent judicial decisions. It also raised the spectre of judicial corruption. When a Judge, and a Chief Justice at that, decides to take a great leap from the Supreme Court to the Presidential Secretariat to serve the executive branch of government at its core, the alarm bells must surely begin to ring.

Presidential patronage was spectacularly reciprocated by a succession of Chief Justices and Judges who provided their patrons, or potential patrons, with several judgments and advisory opinions they desired. For example, a criminal investigation into an allegation of fraud against a presidential candidate was suspended to enable him to contest and secure election. Another Chief Justice provided an advisory opinion that enabled a re-elected President to defer the commencement of his second term and thereby acquire a "bonus" term of ten additional months. A Judge wrote a determination, within the space of 24 hours, on the constitutional validity of some 93 paragraphs of a Bill which made profound changes in the governance of Sri Lanka, enabling a President to seek re-election to office for as many terms as he wished and abolishing a host of independent commissions.

 

Conclusion

What lessons would I draw from the Sri Lankan experience? The Sri Lankan judiciary has not adopted a code of judicial conduct based on the Bangalore Principles. Would it have made a difference if it had? Prior to the advent of the Executive President, Sri Lanka possessed a judiciary that was rarely, if ever, inhibited by the pomp and splendour, or the power and authority, of the State or its agents. The UN had not yet formulated the Basic Principles on the Independence of the Judiciary, and an international code of judicial conduct had not yet been conceived. Yet, Judges of that time remained true to their only guide: the judicial oath. The fact that the government of the day, even when backed by a two-third majority, might have had a very strong interest in particular litigation, often left the judiciary unmoved. But in the 37 years of presidential rule that followed, the independence and integrity of the judiciary, and especially of the Supreme Court, reached incredibly low depths. The judicial culture that has grown, and developed during this period, is one of extreme deference to the presidential executive. The judiciary capitulates to practically every executive assertion.

The Bangalore Principles will not, by itself, enable a judiciary accustomed to, and apparently comfortable within, an antithetical political environment to assert its independence and integrity. A few years ago, the then Chief Justice of Kenya introduced himself to a judicial conference as "the head of the court with the finest judges that money can buy". When a democratic constitution was introduced in that country shortly thereafter, the Chief Justice’s tenure was curtailed, and each judge, from the highest to the lowest court, was subjected to a vetting process by a commission that included distinguished international jurists, before his or her re-appointment to the judiciary was confirmed. Sri Lanka may well need to adopt that process if it is to ensure that its judiciary, especially at its highest levels, is to regain the trust and confidence of the people whom the judiciary is primarily intended to serve.

WHY DIGNITY IS NOT NEGOTIABLE - A Beautiful

One morning at a Law College, when the new teacher to "Introduction to the Rights"
 entered the classroom, the first thing that he did was to ask the name of
 a student who was seated on the first bench: "What is your name?"

  "My name is Juan, Sir."

  "Leave the classroom and I don't want to ever see you in my class ever!"
 screamed the unpleasant teacher.
 Juan was bewildered. When he got hold of his senses, he got up quickly, collected his
 belongings and left the classroom. All were scared and angry; however nobody spoke anything.

  "Well...." said the new teacher, "whom do the enacted Laws serve?"

  We were afraid, but slowly gained confidence and we began to answer his questions.

  "So that there is an order in our society."
 "No!" The teacher answered
 "To accomplish them."
 "No!"
 "So that the wrong people pay for their actions?"
 "No! Is it that nobody knows to answer this question?!"
"So that there is justice," said a girl timidly.

  "At last! That's it.... so that there is justice. And now, what is the use of justice?"

  All began to feel uneasy by such rude attitude. However, we followed answering....

  "To safeguard the human rights...."

  "Well, what more?" asked the teacher.

  "To differentiate the right from the wrong.... to reward the good...."

  "Ok, that is not bad; however... answer this question: Did I act correctly
 when expelling Juan from the classroom?"

  All were quiet, nobody answered.

  "I want a decisive and unanimous answer!"

  "No!" we all replied in unison.

  "Could you all say I committed injustice?"

  "Yes!"

  "And why did nobody do anything in that respect? So why do we need Rules and
 Laws if we don't have the necessary will to practice them? Each one of you has the obligation of when you witness
 an injustice. All of you! Do not stay quiet, never again! Go and call Juan," he said staring at me.
 
  
  On that day, I received the most practical lesson in my course of Law.

When we don't defend our Rights, we lose our Dignity, and Dignity is not negotiable.