Speaker, SLFP/UPFA Should Take Action against Two PSC Members!

by Laksiri Fernando

When I wrote my last piece on the impeachment debacle, “Parliamentary Select Committee Exposed,” I was extremely concerned and shocked about the fact that the Chief Justice was insulted and humiliated by two members of the Parliamentary Select Committee. These happened reportedly irrespective of protests by the CJ, the legal team and the opposition members, and unfortunately complete disregard or tacit approval of the Chairman of the PSC, Anura Priyadarshana Yapa, whom I so far considered a decent gentleman or politician.

The walk out of the Chief Justice was in protest against this outrageous situation and there   were   unfortunately   some   who   even   considered   the   walkout   itself   as impeachable completely approving the humiliation that she had to undergo before these two male hecklers.
 

It came to my attention how much pain or anguish that public humiliation could inflict on a person, a woman or a man and in both of these cases women, when I came to know about the suicide of a female nurse in London who was humiliated unintentionally though because of a ‘royal prank’ call during the same week from Sydney, Australia.

It is not my intention to say that both cases are same except the fact of humiliation. When Kate Middleton, Dutches of Cambridge, was in a private hospital in London for reportedly morning sickness, there was a call from two young broadcasters from
2Day FM, Sydney, pretending to be the Queen and Prince of Wales asking about Kate’s health early in the morning. A nurse of an Indian origin who was at the telephone  exchange  at  that  time  allowed  the  call  and  information.  She  was apparently gullible under the circumstances. The radio in Sydney without much consideration for the implications, broadcasted the prank in effect humiliating the nurse. The nurse, a mother of two young children committed suicide on Friday apparently because of the humiliation.

The humiliation inflicted in the case of the nurse was not intentional. Last night I saw the two broadcasters who gave the call apologising and virtually crying. But the humiliation  inflicted  on  the  Chief  Justice  was  not  unintentional.  Otherwise  an apology should have been in order by now. I am sure that some even would unashamedly justify the humiliation and some have already done so by trivializing the words used.

One is a nurse and the other is a Chief Justice and a recognized legal academic. There is of course a vast difference in education and background and hence stamina for endurance. The Chief Justice probably would like to forget about the insults given her stature, determination and courage. As the Buddha said, if you don’t take insults, the insulters have to take them back. But humiliation is humiliation whether it is a nurse or a Chief Justice. In the case of Sri Lanka this is a public interest issue given the deteriorating ethics and culture of particularly the politicians. Some have become nose biters and ear eaters!

The reported utterances of the two members of the PSC are completely unacceptable by all standards, national and international. Therefore, disciplinary action should be taken against these two members. By whom might be a million dollar question? The following are some options.

There is no much point in asking the present President personally to take action against these two Ministers. Asking any justice from him would prove futile given his jubilant attitude against the rivals or enemies and also jovial defence of people like (Dr) Mervyn Silva. He does not seem to be serious about justice.
Asking the Speaker to take disciplinary action against these two members of the Parliamentary Select Committee however is in order as they were appointed to the PSC by him in his official capacity. At least in that way the Speaker might be able to  preserve the reputation of the Parliament from public contempt. Otherwise talking
about ‘supremacy’ of parliament is useless.
Asking the Secretaries of the SLFP and the UPFA is also in order because one Minister is a member of the SLFP and the other one does come under hopefully the discipline of the UPFA as his party is a constituent member.
Whether the above efforts would prove futile or not, another option left for the legal fraternity, the civil society and the opposition political parties is to boycott the two ministers from all public events at least for an earmarked period in protest.

We all have seen the photograph published in The Island newspaper yesterday (10
December 2012) captioned “Divided in fighting, united in feasting.” No one would ask opposition parliamentarians or anybody else to be impolite or disrespectful to anybody in the government even those who were involved in insulting the Chief Justice. There are circumstances that we have to be civil and social to all human beings. But politics simply would become a joke if the opposition politicians are not serious     about     what    they preach  or  claim  to  fight  for. The following is the photo.

Divided in fighting, united in feasting



Courtesy: The Island

Is Sri Lanka’s Parliament Supreme?

by Laksiri Fernando

With the impeachment motion against the Chief Justice, some of the old debates have surfaced in new form. One of which is the question of supremacy of Parliament. This was  a  matter  of  contention  in  early  1970s  during  the  debates  over  the  1972 constitution   which   somewhat   died   down   with   the   advent   of   the   executive presidential system; JR Jayewardene claiming that he could do anything other than making a ‘man a woman or a woman a man.’ This adage was traditionally attributed to the British Parliament, which was claimed to be supreme. JR kept undated letters of resignation from all MPs of his party to ‘prove or disprove’ that ‘Parliament is supreme.’

When the first press announcement was made about the impeachment motion, the government spokesman, Keheliya Rambukwella, claimed that the Chief Justice has violated the supremacy of Parliament (Combo Page, 1 November 2012). But it was not a charge in the impeachment motion. By that time many MPs in the ruling coalition had surrendered their signatures to a blank paper to be attached to the impeachment motion, reminding the undated resignation letters of JR Jayewardene’s time! What they verbally said however was that the judiciary should not object to whatever they want to do in Parliament whether constitutional or not apparently on the instructions of the President. During the Divineguma hearing before the Supreme Court, some argued that the Bill is not unconstitutional because the Parliament is supreme.

The reason for this argument is one phrase in Article 4 (c) of the Constitution which says the following:

“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.”

The  phrase  “the  judicial  power  of  the  people  shall  be  exercised  by  Parliament through courts…” cannot however be taken in isolation without properly reading the conditional clause “created and established, or recognized, by the Constitution, or created and established by law…” The intermediation of Parliament between the people and the judiciary is conditioned by the Constitution and the Constitution is supreme. If there is any judicial power directly to the Parliament that is in respect of “matters relating to the privileges, immunities and powers of Parliament and of its Members.”

It is understandable that the parliamentarians wish to ‘feel and claim’ that they are part of a supreme body, but constitutionally speaking this is not the case in Sri Lanka. It is only good for their ego. Even people might be delighted to see if the parliamentarians could assert their dignity and pride against the Executive President, under  whose  powers  the  Parliament  has  simply  become  a  rubber  stamp  or something worse. If they assert, then they may call it ‘supreme.’ But this is not the case  at  present.  Instead  they  try  to  assert  their  illusory  supremacy  against  the Supreme Court, which in fact they should respect and safeguard. This is the tragedy of the political situation in Sri Lanka today. They are barking up the wrong tree.

The Supreme Court is only doing a professional job independently by interpreting the constitutionality of the bills. They should not be dragged into politics by all parties, those who are for or against the impeachment.

British Concept

Talking about ‘supremacy’ of anything is only illusory or relative these days. This applies to the concept of ‘sovereignty’ as well, except in its ultimate sense in respect of the ‘people’s sovereignty’ who can legitimately overturn governments and reconstitute constitutions through genuine representatives. Otherwise all are dependent on each other and the balance between the ‘national and the international’ or the balance between ‘different branches of government’ are common everywhere. That is in respect of politics and society.

But in respect of law, some still wants to refer to a specific legal source and that his how the British concept of the supremacy of parliament emerged. Parliament here however did not mean only the House of Commons. AV Dicey is one of the prominent authorities on the subject. In his Introduction to the Study of the law of the Constitution (1885) he said “Parliament means The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the ‘King in Parliament’, and constitute Parliament.”

He further said “The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.”

In the above statement, ‘no person or body’ at one point meant mainly the Church or
the Pope. We also have to keep  in mind that the House of Lords was Britain’s
‘Supreme Court’ before 2009. Therefore, the ‘Supreme Court’ was included in the
concept of supremacy.

Leaving aside that legal concept, there is no political reality in the concept of the supremacy of Parliament in the United Kingdom today. Four main reasons can be attributed: (1) the devolution of power to the Scottish Parliament and the Welsh Assembly, (2) the Human rights Act of 1998, (3) the UK’s entry to the European Union in 1972 and (4) the decision to establish a Supreme Court in 2009.

Supremacy in Finland

In the case of republics like Sri Lanka, the general concept of the source of law is not Parliament but the people themselves. Jayampathy Wickremaratne has very clearly explained this to The Island newspaper giving an interview to Lynn Ockersz (26
November 2012). That is why the American Constitution begins by saying “We the People of the United States.” There the separation powers are almost a sine qua non. It was rather dangerous to handover sovereignty of the people to one single body.

But there were countries, in the socialist block, which believed that the people’s sovereignty can be transferred into a legislature that would constitute supreme; and no law court or any such institution could curtail or check its legislative functions. Most of these countries now have vanished, except the caricatures like North Korea.

Almost all of these countries were one party States. The theory of this ‘supremacy’ in
fact was a justification for the authoritarian one party rule.

There were very few other countries which were not directly in the socialist block but nevertheless shared a similar concept of legislative supremacy. Sri Lanka in 1972-77 and Finland even today are examples. Their concept was or is a combination of some sort of socialism and utilitarian thinking. Even the liberal utilitarian thinkers (i.e. Jeremy Bentham) strongly believed in strong horizontal democracy for progressive legislative purposes. There is some resonance of this thinking even today among those who oppose the Supreme Court ruling on the Divineguma Bill and wanted to impeach the Chief Justice for that crime. But this is only a mistaken conception.

Neither in the present Finish Constitution (2000) nor in the First Republican Constitution in Sri Lanka (1972) that a blatant concept of supremacy was enshrined as asked by the government aligned law makers today in Sri Lanka. The reason why the Finish Parliament is called supreme is the following clause in Section 2 of the Constitution.

“The sovereign powers of the State in Finland are vested in the people, who are represented by the Parliament.”

Based on that premise, the Supreme Court in Finland does not review the constitutionality of a bill prior to enactment although the judicial system headed by the Supreme Court has considerable power on rule of law and implementation of law   based   on   separation   of   powers   in   the   Constitution.   The   review   of constitutionality of a bill is vested within the Parliament itself. There is a Constitutional Law Committee  of  Parliament to  review all bills and recommend changes,  if  needed.  They  do  it  fairly  impartially.  They  do  not  allow  normal legislation to go through in contravening the Constitution through a special majority like in Sri Lanka. Most interestingly, the Finish courts do have a form of ‘post-judicial review’ to the extent that if there is an inconsistency between a normal law and the Constitution then they have power to uphold the Constitution. In Finland changing the Constitution is also not an easy process.

Now our law makers should not jump on the Finish example to uphold the supremacy of Parliament and reject the directives or ‘recommendations’ of the Supreme Court. Sri Lanka’s present Constitution is different. I remember the former President of Finland (1994-2000), Martti Ahtisaari, saying at a close meeting in Colombo, organized by Lakshman Kadirgamar, somewhere in 2003 that the Finish Constitution is still under scrutiny and they may go for more separation of power through experience. He also explained that the supremacy of Parliament was instituted to move away from the previous Presidential system where the President had veto powers on legislation. As far as I understand, Martti Ahtisaari played a major role in this transition.

1972 and 1978 Constitutions

One may argue that something closer to the supremacy of Parliament was in the First Republication Constitution of Sri Lanka in 1972. But it is not the case today. Articles 3 and 4 of the 1972 Constitution stated “In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable. The Sovereignty of the People is exercised through a National State Assembly of elected representatives of the People.” (my emphasis).

The comparable Article 3 of the 1978 or the present Constitution says in contrast the following.

“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.”

It is very clear that the second proposition which was there in the 1972 Constitution that the ‘sovereignty of the people is exercised through National State Assembly/Parliament’ or something similar is not there. Instead, sovereignty is defined to include ‘fundamental rights and the franchise’ in addition to the ‘powers of government.’ It has to be added that the Supreme Court has constitutional power in safeguarding the fundamental rights of the people which is a clear part of sovereignty.

In terms of the three branches of the government or how the delegated sovereign powers are exercised, there are comparable articles in the 1972 Constitution and the present (1978). In the 1972 Constitution, it is Article 5. In the present Constitution it is Article 4. Article 5 of the 1972 Constitution begins by saying:

“The National State Assembly is the supreme instrument of State power of the
Republic.”

It is very clearly stated that the ‘National State Assembly is the supreme instrument of State power.” In contrast, Article 4 of the present Constitution simply begins by saying

“The Sovereignty of the People shall be exercised and enjoyed in the following manner.”

I can go on and on giving more examples but simply there is no conception of the supremacy of Parliament or anything similar in the present Constitution. That is what matters to the present debate. Of course some of the parliamentarians of the UPFA may say that they uphold the ideology of the 1972 Constitution and not the present. That is well and good but first they should respect the present Constitution and work within its four corners.

Conclusion: Supremacy of the Constitution

In respect of any supremacy that we can think of in politics, it is the Constitution that is supreme. The rule of law and constitutionalism are the main derivatives of that supremacy. Supremacy of the Constitution in turn is a reflection of the sovereignty of the people, their powers of government, fundamental rights and the franchise that are mentioned in the Constitution. The ‘powers of government’ are not the powers of corrupt politicians but the powers of the people. They include not only the powers of the Centre but also the Local Government and the Provincial Councils.

Even in ancient times there were two types of law that were recognized: (1) Dhamma Thath or laws of Dhamma and (2) Yasa Thath or laws of the King. It was believed, although not always practiced, that the laws of the King should be consistent with the laws of Dhamma. That is how the moral legitimacy derived for government. Dhamma Asoka was one king who tried to practice his laws according to the higher laws of Dhamma.

Supremacy of the Constitution in Sri Lanka is evident from many aspects of the Constitution; first and foremost from the strict provisions for its amendment and repeal. The Constitution is subordinate only to the sovereignty of the people, ultimately through referendum. The legal and formal interpretation of the Constitution is assigned only to the Supreme Court and that is why the SC should be considered in utmost respect as a collective and an institution. Their interpretations are binding on the members of Parliament and the Parliament itself. People are well aware of the character and calibre of many politicians in the country today, particularly  of  the  governing  party.  They  have  simply  become  corrupt  through money and power. The backing of the army should not be considered as legitimacy for their illegitimate behaviour or arrogant disregard of the Constitution.

All members of Parliament have already taken an oath to uphold the Constitution. This is a vindication of the supremacy of the Constitution. According to Article 63, the oath is as follows:

“I ……………. do solemnly declare and affirm /swear that I will uphold and
defend the Constitution of the Democratic Socialist Republic of Sri Lanka.”

Politically speaking, however, the people may appreciate the Parliament asserting some sort of ‘supremacy’ against the Executive; a supremacy on condition and with checks and balances. That should be against the Executive and not against the Judiciary. The Judiciary is a professional body and should be independent from all politics. This assertion against the Executive should lead to a change in the present Constitution from the executive presidential system to a parliamentary form of government in the future.

The need for this assertion today primarily derives because of family rule within the Executive; the President holding almost absolute executive powers; one brother controlling the armed forces and now also the police; another brother is being the most powerful Minister in Parliament; and yet another brother trying to control
Parliament being the Speaker of Parliament.

If there had been many family dynasties in history, the present caricature in Sri Lanka might be the worst and the vicious kind clothed under a ‘democratic garb.’ This is utterly shameful by all ethical norms and standards.

Courtesy: The Island

Has the Parliamentary Select Committee (PSC) become a Political Tribunal?

by Laksiri Fernando

The Parliamentary Select Committee’s rejection of the Supreme Court’s decision that the impeachment proceedings against the Chief Justice should be postponed until the Supreme Court determines the constitutionality of the Standing Order 78A that purportedly governs such proceedings, as requested by the Court of Appeal, undoubtedly is the latest breach against the judicial authority in Sri Lanka by the political authority.

The decision of the Supreme Court was good as a ‘determination’ or ‘order’ although the  Deputy  Speaker,  Chandima  Weerakkody,  opted  to  ridicule  it  by  saying  a “request  or something” to  Live  at  12  of  Swarnawahini  yesterday (23 November
2012). The format of the recommendation was like any other court order. It was argued and decided. The carefully worded directive after outlining the legal circumstances said:
“However, at this stage, this Court whilst reiterating that there has to be mutual respect and understanding founded upon the rule of law between Parliament and the  Judiciary  for  the  smooth  functioning  of  both  the  institutions,  wishes  to recommend to the members of the Select Committee of Parliament that it is prudent to defer the inquiry to be held against the Hon. the Chief Justice until this Court makes its determination on the question of law referred to by the Court of Appeal.”
It is important to underline the importance of what it said about the “mutual respect and  understanding  founded  upon  the  rule  of  law  between  Parliament  and  the Judiciary  for  the  smooth  functioning  of  both  the  institutions.”  But,  the  Political Commissars over Diyawanna Oya apparently didn’t want to listen to this sober advice for reasons best known to them. Instead they decided to go ahead with the flawed proceedings. They apparently didn’t even listen to the four members of the opposition. Consensus over the procedure of the PSC perhaps is not their concern. The Supreme Court decision was given after listening to the Counsels on behalf of the petitioners and the Attorney General, Palitha Fernando, as it commented “who appeared on very short notice.” As the decision quoted, the following was the main question that the Court of Appeal has referred to the Supreme Court:
“It is mandatory under Article 107 (3) of the Constitution for the Parliament to provide for matters relating to the forum before which the allegations are to be proved, the mode of proof, the burden of proof, the standard of proof etc. of any alleged misbehavior or incapacity in addition to the matters relating to the investigation of the alleged misbehavior or incapacity?”
It is obvious that the above important question or questions would not have been referred to the Supreme Court unless there had been serious doubts about the Constitutionality   of   the   Standing   Order   78A   that   purportedly   governs   the proceedings of the impeachment. The following questions naturally come to my mind, as a result of the above and other reasons, even without a proper legal background as a concerned citizen as to the consistency between the Standing Order
78A and the Constitution and particularly its Article 107.

Is  the PSC  the  correct  Forum  before  which allegations  against  a  Judge  of  the Supreme  Court  (including  the  Chief Justice)  or the  Court Appeal (including  the President) are to be investigated and proved?
Why the Stating Order 78A from paragraphs 1 to 9 is completely silent on the mode of proof and the standard of proof? Can the PSC be considered a proper legal Forum?
Why the Standing Order 78A is completely silent on any prior investigating procedure into any allegations of Judicial Officers?
More importantly, who has the burden of proof? The PSC or the accused Judge?

Anyone who goes through the scantily drafted nine paragraphs of the so-called Standing Order would come to the conclusion - if the person is unbiased and concerned about natural justice – that the procedure of the impeachment is terribly flawed  and  the fate of the  present  Chief  Justice  should not  be  place under this Kangaroo Court. The following is what the Standing Order says about anything closer to the ‘burden of proof’ in paragraph (5). On all other matters except the question one the Standing Order is completely silent.
“The  Judge  whose  alleged  misbehaviour  or  incapacity  is  the  subject  of  the
investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.”

Now the accused, in the present case the Chief Justice, “shall have the right to appear before it and to be heard by such Committee, in person or by representative.” This may appear great or sufficient to some because she is given a hearing! Then she can “adduce evidence, oral or documentary.” For what, “in disproof of the allegations made against him!”
Now she is not a ‘He.’ Let alone the gender bias in the language, the Chief Justice has
to disprove the allegations! This is travesty of natural justice and people like Anura Priyadarshana Yapa, Nimal Siripala de Silva and Dilan Perera should be ashamed to sit in this Kangaroo Court, not to speak of others.
The Supreme Court also has given very obligingly the reasons why it requests the PSC to kindly postpone the proceedings. As it said, “In terms of Rule 64 (1) of the Supreme Court Rules of 1978 certain procedural steps have to be followed before a determination is made by this Court.” It has also been noted that a decision could be given within two months. This is completely ignored by the PSC. The decision also noted the following more substantially.
“According to the pleadings filed in the Court of Appeal and the submissions made by all learned counsel in this Court, standing order 78(A) of the Parliament contravenes  Article  4(c)  read  with  Article  3  ,  Article  12(1)  and  13(5)  of  the Constitution and are also contrary to the accepted norms relating to the burden of proof.”

The observed points of inconsistency with the Constitution above are mainly four: (1) Article 4 (c) (2) Article 3 (3) Article 12 (1) and (4) Article 13 (5). This is in addition to the  Article  107  of  the  Constitution  which  governs  the  overall   impeachment procedure. The observation shows the absurdity and the arbitrary nature of the PSC procedure. It is also important to quote what it also said in terms of rule of law and justice in trying to persuade the PSC or the Speaker on the importance of postponing the impeachment proceedings.

“The desirability and paramount importance of acceding to the suggestions made by this Court would be based on mutual respect and trust and as something essential for the safe guarding of the rule of law and the interest of all persons concerned and ensuring that justice is not only be done but is manifestly and undoubtedly seem to
be done.”

Unfortunately all these good advices were completely ignored and proceedings went ahead yesterday morning at the Parliamentary complex. It appears that the Political Commissars in the Parliamentary Select Committee seem to think that they are ABOVE THE LAW. They are badly mistaken. The Standing Orders are not law but only rules of procedure. When the Supreme Court decides to hear the objections based on 9 petitions, on Constitutionality and natural justice, by all decency or good sense the PSC proceedings should have been postponed. But it is not to be the case under the present political administration.

What a tragedy of justice if the ‘Chief Justice’ has to prove her innocence before a Political Tribunal hastily convened with inaccurately drafted 14 charges for nothing but political reasons? How can one easily disprove allegations if those are framed and false? What are the implications on rule of law and the system of justice if the so- called Representative of the People (MPs) so behave? These questions speak volumes of the tragedy of Sri Lanka’s democracy under the Rajapaksa rule.

Courtesy: Sri Lanka Guardian