GUEST COLUMN

13th August 2000

Judging the independence of the Judiciary

She was a blend of all political thinking

Judging the independence of the Judiciary 

The existence of an independent judiciary in a democratic political system is an essential pre-condition for the survival of democracy. The sovereign power of a democracy lies with the people. It is a responsibility of the Courts not to permit laws and enactments that reduces that power. 

At a time when a new draft Constitution in under discussion the Government seeks an immediate change in the electoral system, not for the public good, but because the Government needs a system that might help it to win the coming election. This is not an action set in motion after discussion with the other parties and arriving at an agreement with them, but with the sole aim of the Government's advantage. A Constitutional amendment effected with such an aim will weaken and distort the sovereign power of the people. Even the appointment of the Panel of Judges to inquire into this Constitutional Amendment was done in a manner that raised serious doubt in the mind of at least myself who was interested in the matter. Prior to this, every constitutional amendment that had any bearing on the sovereignty of the people according to my recollection was considered before a Panel of Senior- most Judges. For instance, the seven-person panel of judges that inquired into the First Amendment to the Constitution of '78 included Chief Justice Neville Samarakoon and Judges W.T. Samarawickrama who was the Second in seniority, V.T. Thamotheram who was the Third in seniority, I.M. Ismail who was the Fourth and R.S. Wanasundera who was the Seventh in seniority. The Third Amendment too was considered by a penal consisting of the Chief Justice and seven senior judges in order of their seniority.

However, in selecting judges to inquire into the 17th Amendment, it is clear that the principle of seniority has been done away with. Judges Mark Fernando, Dr. A.R.B. Amarasinghe and Ranjith Dheeraratne are now considered to be the most eminent authorities in the Supreme Court on Constitutional Law. One begs an answer to why none of them had been included in the panel of judges inquiring into the 17th Amendment. Or is it none of our business?

The electoral system and the right to vote are included in sovereignty. The system of proportional representation served to make the sovereignty of the people more systematic and to heighten it. Introducing an electoral system that distorts the sovereignty of the people rather than heightening it, is against the accepted principles of a Constitution. 

At the Presidential Election of 1999 the JVP received 3,44,173 votes. If it had been a Parliamentary Election held under the system of proportional representation, that party could have got 6 seats. But according to the new system proposed under the 17th Amendment, the number of seats that party could get drops to zero. The number of votes that the parties belonging to and supportive of the PA got, was 4,3,12,557. 

If it had been a Parliamentary Election, the number of seats that all those parties could have got is 115. Under the system now proposed, the PA and the parties allied to it, could get 130 seats on the electorate basis, 55 seats on the district basis and 17 seats on the national list, and thus, 298 seats altogether. Such a system which could cause such massive distortion of the sovereignty of the people cannot be a just one. 

She was a blend of all political thinking

By Lakshman Jayakody

I would start off by saying that Sirimavo Bandaranaike was there during the height of socialism between 1970 and 77.This was the period when the country gave a mandate to many giants of socialist thinking, like Dr. N.M. Perera, Dr. Colvin R. de Silva, Leslie Gunawardena of the LSSP and Mr. Pieter Keuneman of the Communist Party. Then of course we had our own able and competent people like Felix Dias Bandaranaike and other members of the SLFP, people like George Rajapakse, bless their souls they are no more now. But anyway she had a team of people who were giants in their own time. And the UNP also had their competent people like Dudley Senanayake, J.R. Jayewardene and others. 

I would say that being a devout democrat Mrs. Bandaranaike, worked in the era where the country's development towards democracy was also at its peak. We had a Westminster model system given to us by none other than Dr. Colvin R. de Silva, who was also a Trotskyite and that Constitution which was framed was more suitable to govern the country by a democrat. No one who had any totalitarian thinking could have worked there. So Mrs. Bandaranaike being an ideal democrat and with her liberal thinking towards all sections of the community, be it ethnic or religious she understood all the people. She had a lot of common sense. But I think more than common sense, she had a lot of horse sense also. She could say in time to come what's going to happen. She was a person who could predict the future. One could say to control men like Dr. Colvin R. de Silva was a tough thing for a lady to do. But she did it. So in a nutshell I would say her success was because she did not belong to any ism, and she was a blend of all political thinking in this country . I believe even the UNPers would accept that she was undoubtedly one of the most brilliant stateswoman in this country. And then after all she came to be known as the mother of Sri Lanka. Speaking about being the mother of Sri Lanka I must tell you a small story. The day Mrs. Bandaranaike was called on to become the Prime Minister, Sir Oliver Goonetilleke came to Rosmead Place went down at her feet and said 'oba thumiya jathiye maniyoya'. He's the one who coined that word - "jathiye mawa". Now I would like to speak of one of the most shattering crises we faced - the youth uprising. It was actually not one of our problems, it was a problem of the UNP. But it was during her time that it reached a climax.She was very calm during the period. I think she was the only one who was smiling in the cabinet. Everybody else went about with long faces. There are even stories to say that some hid under tables but she was not frightened at all. She faced this terrible period with courage. 

She always felt that these were her own children, the ones who would shape the destiny of this country. One day she announced, "Well at midnight tonight we are going to lay down our arms. And I will call upon all youth to lay down their arms and surrender, so that we may have a discussion." We took in about 18,000 people. And at that time I think the person who was in charge to rehabilitate these people was none other than our own Speaker. I think her move at that time, to lay down the arms, paid dividends. 

Ofcourse there was the Army that felt we must crush it. Army thinking, I quite appreciate that. But the political thinking was quite different.

The Army had to carry out the political thinking, at that time. So the Army laid down their arms. During those trouble days Felix Dias Bandaranaike and Mr. Colvin R. de Silva, also held the same views as Mrs. Bandaranaike. They were a wonderful set of men who were liberal in their thinking and not extremists. We never had extremism at that time. 

When it came to foreign affairs she was brilliant at keeping friends of all sides. That was her forte you see. The Bangladesh War was a crisis that really troubled Mrs. Bandaranaike. She was concerned about the division of Pakistan and the burden India would face in supporting an impoverished east Pakistan or Bangladesh. She was against the division of Pakistan, in as much as the division of India. Because at that time there was this talk about Banglastan, Dravidastan, and Kalistan, or some Sikhistan, all those sthan's came about and there were many people who were fighting to break up India. She had both countries in her heart. She therefore wrote to Mrs. Gandhi, and asked why did you do this. Those letters and papers are still in the Foreign Office. I don't want to quote anything without the documentation in my hand. 

The Indo-China war was another International crisis. Recently when I went to India there was a foreign office official who told me if not for Mrs. Bandaranaike India would not be what it is today nor China. When I asked him what he meant he said if these two countries had gone to war there would have been so much of human suffering and economic destruction. Mrs. Bandaranaike also played a crucial role as Chairman of the Non-Aligned Movement. She fought hard to keep the member countries together because, that was the time of the cold war and there were moves by the capitalist camp and the communist camp to drag in the non-aligned countries to those camps. It was tough to keep the whole lot together but Mrs. Bandaranaike succeeded in doing so. I think the only country that broke away from us was Burma. I call upon Mrs. Bandaranaike, though she's out of politics to advise us whenever she can while wishing her all the best.

Inside the glass house

Editorial/ Opinion Contents