Columns

The Supreme Court’s Damocles Sword of Judgment, which had stood dangling for a month over President Sirisena’s head ever since their Lordships  issued a stay order on his gazette fiat dissolving Parliament in November, finally snapped from its lofty mooring and fell crashing on the presidential pate this Thursday when Seven Supreme Sentinels of the Lankan Constitution delivered their verdict in the dying hours of the setting sun; and found Sirisena guilty of violating the Mother of all Lanka’s laws.

It was a stunning and damning indictment the highest court in the land passed on the highest executive power in the land. Never before, in these last forty years of presidential rule, had the Supreme Court thought fit — nor had it occasion to do so — to condemn the first citizen of the country as being guilty of transgressing article and clause of the very constitution which, as Head of State, Sirisena  had solemnly sworn to uphold in spirit and to the letter at his inauguration as the sixth president of the Democratic Socialist Republic of Sri Lanka at Independence Square on January 9, 2015.

Seven supreme guardian deities of Lanka’s judiciary did not mince their legal dictum nor did they dilute their judicial determination.

The unanimous judgment delivered in one legal voice to which Chief Justice Nalin Perera gave resounding echo, rang its import beyond the surrounding imposing walls of legal pomp and procedure to reach the outer skirts of Lanka’s broad acres where its masses in hardship lived, sweating and toiling  to eke out a living by the honest sweat of their brow whilst their masters, who grovel before them as their servants at election time,  indulged in playing their power games.

The legal message the Chief Justice delivered to the entire nation was simple: that no one, not even the president, was above the law and that all must bow before it; since all are equal beneath its protective shade. That the constitution was no plaything for some insolence made incarnate, an avatar of total ignorance, blind as a bat to the constitution’s purpose, insensible to its d’être, to trample upon it with derision and negate the nation’s goodwill  in the world’s eye; and, by complete disregard for it,  reduce the state, to the tragedy of its own people, to anarchy and condemn the nation to economic ruin — without qualm, without remorse, without reason or rhyme.

THE SEVEN SENTINELS OF JUSTICE: From left, Chief Justice Nalin Perera, Justice Buwanaka Aluvihare, Justice Murdu Fernando, Justice Prasanna Jayawardena, Justice Priyantha Jayawardena, Justice Sisira J de Abrew and Justice Vijith Malalgoda

Ending a nine-day period of suspense — which began on December 4 when court began its proceedings though bedlam had reigned since October 26 — as to how the dice would turn since it began hearing the supporting arguments presented by counsel of both sides, the Supreme Court judges gave their presentations their considered deliberations before pronouncing their judgment.

And when the Chief Justice Nalin Perera delivered his and the consensual opinion of his peers, the verdict came as no surprise. For it was not only what the people expected. It was what justice demanded. Even to the unlearned in the letters of the law, it made sense – common sense.

That Parliament could only be dissolved after four and a half years of its life unless two thirds of parliamentary members passed a resolution requesting the President to dissolve it before the prescribed time. That the Executive had no control over the life of the Legislature, except as provided, in explicit terms, in the 19th Amendment which President Sirisena himself had engineered, enacted and constantly praised himself for fathering its birth; and which he now, for reasons of his own, sought to disown.

The Supreme Court judges put in legalistic terms what all right thinking people held in their heads and in their hearts; and the consolidated enlightened opinion of the law lords helped assuage public fears when they delivered their judgment and rescued reason from brutish beasts who held it hostage in their jaws and claws.

In an eighty-eight-page judgment delivered by the Chief Justice and which had the hand of Justice Buwaneka Aluvihare, Justice Priyantha Jayawardena, Justice Prasanna Jayawardena, Justice Vijith Malalgoda and Justice Murdu Fernando assenting to it, the Supreme Court held in one harmonious judicial choir: that the President had violated the constitution when he dissolved Parliament by a gazetted proclamation on November 9th.

To summarise the judgment:

n    The President had violated the Constitution and exceeded his legal limits by dissolving the parliament.

n    The Judgment held that the President had violated the rights of citizens and parliamentarians, and ordered that the gazette proclamation be quashed and pronounced null and void.

n    The Bench also ruled that the said proclamation was null and void, and had no force or effect in law.

It further added:

n    To us, the words “plenary power” simply mean full power–or complete power–and should not be taken to and cannot be taken to mean a species of inherent unrestricted omnipotent power held by a Head of State which is akin to royal prerogative power. In this regard, it must be remembered that the President, who is the Head of State under the Constitution, is but a creature of the Constitution. His powers are only those which are specifically vested in him by the Constitution and the law. Equally, the exercise of these powers by the President is circumscribed by the provisions of the Constitution and the law.

n    It should also be mentioned that accepting the contention advanced by the Hon. Attorney General and the added Respondents will vest an unfettered power upon the President to dissolve Parliament whenever he may wish to do so and sans any restrictions. That will result in empowering a President to place the very continuation of any Parliament subject to his sole power and, thereby, place a President in a position of supreme power over the Parliament. That would then negate the effectiveness of Article 33A which stipulates that the President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and written law.

n    Such a development will be inimical to the principle enunciated by this Court that all three organs of Government have an equal status and must be able to continue to be able to maintain effective checks and balance on each other.

n    Thus, I am unable to agree with the submission that Article 12(1) of the Constitution recognises ‘classification’ as the only basis for relief. In a Constitutional democracy where three organs of the State exercise their power in trust of the People, it is a misnomer to equate ‘Equal protection’ with ‘reasonable classification’. It would clothe with immunity a vast majority of executive and administrative acts that are otherwise reviewable under the jurisdiction of Article 126. More pertinently, if this Court were to deny relief merely on the basis that the Petitioners have failed to establish ‘unequal treatment’, we would in fact be inviting the State to ‘equally violate the law’. It is blasphemous and would strike at the very heart of Article 4 (d) which mandates every organ of the State to respect, secure and advance the fundamental rights recognised by the Constitution.

n    The Rule of Law dictates that every act that is not sanctioned by the law and every act that violates the law be struck down as illegal. It does not require positive discrimination or unequal treatment. An act that is prohibited by the law receives no legitimacy merely because it does not discriminate between people.

n    The Proclamation has been issued outside legal limits and has resulted in a violation of Petitioner’s rights both in his capacity as a parliamentarian legitimately elected to represent the People and in the capacity of a citizen who is entitled to be protected from any arbitrary exercise of power. For the reasons set out above, I hold that the Petitioner’s rights guaranteed under Article 12(1) of the Constitution have been violated by the issue of the Proclamation and make order quashing the said  Proclamation and declaring the said Proclamation null, void ab initio and without force or effect in law.

If that weren’t enough of a mouthful from six Supreme Court judges, the seventh, namely, Justice Sisira de Abrew chipped in with his own bite. He had taken a different route to arrive at the same destination as his learned brothers of the Supreme Court and his findings on the way only served to reinforce the validity of his peers’ determination and conclusion.

He declared, in a 21-page judgment which focused mainly on presidential immunity and why it does not apply in the present case. He asked: According to Article 35(1) of the Constitution, the President of the Republic while holding office enjoys immunity from suit. But does it mean that the Supreme Court cannot examine the legality of actions performed by the President of the Republic? And Justice Abrew proceeded to give the answer.

He said, inter alia: “I now advert to this question. In terms of the proviso to Article 35(1) of the Constitution, the Supreme Court has no jurisdiction to pronounce upon the exercise  of the powers of the President of the Republic performed under Article 33(2)(g) of the Constitution. This Article deals with the power of the President of the Republic to declare war and peace. The words “anything done or omitted to be done by the President in his official capacity‟ in the 1st proviso to Article 35(1) of the Constitution should be stressed. Thus when Article 35 of the Constitution is considered, it is clear that except the acts done by the President of the Republic in the exercise of his powers conferred by Article 3 (2)(g) of the Constitution, the other acts of the President of the Republic are not immune from suit. It has to be stated here that that the President of the Republic is a creature by the Constitution.”

Justice Abrew went on to state:” This view is supported by Article 30 of the Constitution which reads as follows:“30(1) There shall be a President of the Republic of Sri Lanka, who is the head of the State, the head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. (2) The President of the Republic shall be elected by the People and shall hold office for a term of five years. It is the duty of the President of the Republic to respect and uphold the Constitution. This view is supported by Article 33(1) of the Constitution which reads as follows: 33(1) It shall be the duty of the President to -(a) ensure that the Constitution is respected and upheld

Justice Abrew declared: “The President of the Republic in terms of Article 32 of the Constitution must take an oath stating that he would uphold and defend the Constitution. Therefore, it is seen that the President of the Republic is subject to the Constitution. In Mallikaarchchi Vs Shivapasupathi, Attorney General wherein Sharvananda CJ held thus: “the President is not above the law.”

The Supreme Court judgment did not merely drive the knife in to Sirisena’s heart when the Chief Justice ruled that Sirisena had violated the constitution. Quashing Sirisena’s proclamation and holding it as ‘being null and void ab initio’, the Chief Justice also stated that the President had also violated the fundamental rights of the petitioner ‘both in his capacity as a parliamentarian legitimately elected to represent the People and in the capacity of a citizen who is entitled to be protected from any arbitrary exercise of power.’

Luckily for Sirisena, the courts didn’t order compensation to be paid for the violation of the petitioner’s fundamental right, probably because it was not prayed for in the petition. Luckier still that 21 million people of this country who, as the Chief Justice observed, “in the capacity of a citizen is entitled to be protected from any arbitrary exercise of power,”  didn’t cotton on to be enjoined in the dissolution case with a special prayed for compensation.”

For the last six weeks, dark clouds have hovered over day in and night out over this island mass plunging the populace into turmoil and despair and driven them to a sense of hopelessness. But one silver line has adorned the clouds of darkness. And that is the Supreme Court of Lanka.

And this Sunday morning the nation rises to salute the six brave and honest learned lords and one lady of the Supreme Court for restoring hope in our hearts and kindling the optimism that all will be well that will end well. And pay tribute to their courage and moral rectitude to have delivered the judgment they delivered on Thursday unanimously in accordance with the accepted principles of jurisprudence.

SUNDAY PUNCH ODE Twilight By Don Manu It’s twilight time on a moonless night And cloudy skies shroud heaven’s star light; And in blackened despair when hearts have bled What hope is there when my faith is fled. *** Fled when the tempest growling arose Beyond the seamless sunless pale; To lie e’er in melancholic pose Concealed, curtained in a thick black veil. *** Within this heart that’s cracked at the core Lies coffined hope moribund laid; Mourning the lost star in this heart you tore, Starry love’s light you cruelly slayed *** The pain tinged song one will ever hear Is the dying swan’s last sad farewell, Whose chorus seers in heart rending tears Of a love that was to no avail. *** A love that once promised ever to be To sprout spring in the meadow and dale A love that could have, for you and me, Made our heaven’s sweet bliss unveil. *** So where have all the bright daisies gone And why is the red rose asleep; No more the nightingale’s sweet love song And birds in silenced music weep; *** Mourning for the love that once did flower; The love and trust you never did keep; Love unrequited in this dark hour Love my heart do now deeply grieve *** My thought of you now lie interred In the grave yard of the ghouls; Forever entombed in ashes’ urn Trapped in a heart where sorrow howls. *** But my forlorn hopes still lurk and prowl And stalk hidden in my hooded heart’s cowl; And upon the bare pew of love’s tombstone Pray love’s miracle will my heart adorn.

Is a general election the panacea to Lanka’s woe? The Supreme Court decisions drove the stake into the heart of Rajapaksa plans to precipitate a general election long before its time. Now to find their noses rubbed in the dust by judicial decree which has put a full stop to their ambitious plans known only to them, contained in their secret agenda. Shortly after the Supreme Court verdict had driven a stake into the heart of Rajapaksa plans to usurp power through unconstitutional means and finding their noses rubbed by judicial decree which put a full stop to their dreams to precipitate an election long before its time and achieve the promise of success to the items in their secret agenda, the Rajapaksa heir apparent Namal tells the media that this must be the only country in the world that has a political party that does not want general elections, that is afraid to face elections, that denies the people its franchise and adds, whilst paying due condescension to the Supreme Court — lest he be hauled up next to face contempt charge — that he cannot agree with the judgment and fears that the Supreme Court judges have failed to take cognizance of the people’s demand for elections now. Well, he may want elections and he is perfectly right to express his urging to contest the hustings before the constitution permits. But as far as the rest of the populace is concerned wonder before all hell broke out and the pell-mell began in earnest, whether there was a general public clamour for general elections in October, even a whisper in the wind that elections were the panacea to the ills that Lanka faced and that a Rajapaksa third coming was the placebo that would turn out to be the miracle cure of our time. Or was I merely a way to stop the new founded highway courts from delivering their judgements expresso? For what would the nation have gained by a change of regime before the present corpus had expired? Would the nation have taken a quantum leap to prosperity, would the rupee have appreciated against the dollar, would the international community have stormed Lanka’s shores in droves pledging to give even more aid to make Lanka the miracle of Asia as Rajapaksa promised during the sunshine years of his tenure in office, would they have been able to settle the yearly international interest commitment? Gain international acceptance amongst the league of nations and given a seat at is table with the Rajapaksa regime’s infamous track record on human rights? Even China, now that she has what she coveted and Lanka lays snared in her spider debt web, may not be that eager to lend the helping hand especially when he finds her own hand grasped in a tight all American squeeze, having to tackle as she does her own trade plight now with Trump in the Oval Office? The world has changed during the last three years since the Rajapaksas walked the corridors of power. It’s time to wise up to changing times. Mahinda to resign from what? Ranil to be sworn in as what? MAITHRI: Full surrender MAHINDA: Throws the towel This Sunday morning Ranil Wickremesinghe is expected it is said to be sworn in as prime minister? Though the President can swear in Ranil Wickremesinghe everyday as his beloved prime minister as a daily renewal of faith in his chief in Parliament and the first amongst equals of his cabinet, it’s only natural to inquire as to why this sudden surge of zeal. After all Ranil was sworn in as Prime Minister in August 2015, was he not? And not having given grounds as listed in the 19th Amendment, surely he could not have vacated his post or have been illegally removed, could he? Perhaps it is to show the public that though Maithripala declared on many occasions that the last thing he will do is to appoint Ranil as his Prime Minister, that he would appoint anyone else but Ranil. Perhaps force of circumstances has made him change his mind. Good. Perhaps the Supreme Court judgments on Thursday and Friday may have caused a change of heart and dawned some sanity. It is also reported that Mahinda Rajapaksa has resigned. From what? Some say from being Sirisena’s Prime Minister. That he had been sworn in some sudden ceremony on the 26th of October whilst Ranil was still the legit Prime Minister. If that is so indeed and with his appointment still subject to judicial judgement as the Supreme Court held on Friday, the resignation of the imposter must be a case of one giving up the ghost even as the phantom Peiris of the Supreme Court found to chagrin tha he had only existed as the chief in an airy dairy way and had never existed in substance. Yet while Ranil must be sucking the grapes of triumph in becoming prime minister for the fifth time, it must be rather tough on Maithri and Mahinda to be eating humble pie.   RANIL: Enjoys the spoils