Farcical statements and violations of the constitution

By Kishali Pinto Jayawardena

The fantastically absurd assertion in clause three of the Sri Lanka Freedom Party's retrogressive constitutional reform proposals that the party 'strongly believes in the independence of the judiciary,' (in the context of the SLFP's proclaimed stance on the unit of devolution), is pure political farce. Would it not have been eminently more honest if the SLFP had stated that it "strongly rejects the very notion of the independence of the judiciary; the party categorically believes that judges ought to be appointed in order to rule in the party's favour and that their sole purpose in sitting on the Bench is to ensure that the party continues in power?"

This was the precise reasoning, after all, that propelled the actions of the SLFP's former little lamented leader, Chandrika Kumaratunge during her time. It is enjoyable poetic justice that she should be now caught on the horns of the dilemma that she herself wittingly created; witness this week's judgment by Chief Justice Sarath Silva, (her own appointee and for whose benefit, she dissolved Parliament in 2001 and 2003 to prevent impeachment motions being decided), curtailing her presidential entitlements.

Then again, has her successor to the party leadership demonstrated actual commitment to the concept of the independence of the judiciary as opposed to mouthing abstract absurdities? Unfortunately, the answer to this question is in the negative, given President Mahinda Rajapakse's predilection to treat the Constitution as if it were an extravagant grocery bill, parts of which are liable to be ignored at will by a poverty stricken housewife or house husband as the case may be.

And yet again, what of the United National Party's commitment in that regard? One of the party's seniors Lakshman Kiriella has reportedly called the Bar Association of Sri Lanka (BASL) to task for its silence on vital matters affecting the rule of law and demanded an open debate on the issue. The BASL and its compromised leadership is, of course, easy game for any critic. Its ludicrous defence reported in a daily newspaper this Saturday that it had not remained silent on the prevalence of extra judicial killings but had instead 'issued a media statement' invites the most profound scorn. So, is issuing a bland media statement, the only effective action that the BASL can resort to? I shall return to this question later.

But for the moment, let us look at the UNP's own responsibilities in the context of the judiciary in recent times. For example, what was the role of the party's senior lawyers in 2003, when one of the country's most erudite and independent Supreme Court judges Justice MDH Fernando retired prematurely due to his inability to honourably serve in judicial office, as specifically stated by him on record? This led to the first ever spontaneous public reaction in recent times from the legal profession, academia, professionals and activists expressing outrage at this development and further, calling for a Select Committee to probe the circumstances leading his premature retirement.

The lack of enthusiasm in this regard on the part of the UNP's legal hierarchy was marked; ultimately the party (in a fractious cohabitation government with the Kumaratunge Presidency at that time), dilly dallied and then proceeded to bring an impeachment motion against the Chief Justice only when it became certain that a crucial judgment on the extent of President Kumaratunge's powers as Minister of Defence was going to be decided in favour of Kumaratunge. This was the second occasion on which Parliament was dissolved.

In sum therefore, let us not have any more absurd statements by any political party in this country professing to uphold the "independence of the judiciary" or have calls by opposition parliamentarians to the legal profession to demonstrate its bona fides. Rather, let us openly admit the fact that Sri Lanka's constitutional culture has long since departed from observing fundamental norms of respect for the judiciary and for the legal system.

That said, the degree to which members of the legal and judicial services have themselves contributed to the general breakdown of the constitutional process is also considerable. The distasteful alacrity with which lawyers and retired judges have accepted unconstitutional Presidential appointments to the commissions well manifests this; for example, the National Human Rights Commission (NHRC) has three retired judges among its current appointees. Lawyers are also found to be scattered within these commissions; the current President of BASL is a relatively recent member of the National Police Commission (NPC). So, should a casual observer unacquainted with the vagaries of the current crisis of the rule of law in Sri Lanka be pardoned for inferring the due legality of these appointments from the preponderance of those who are presumed to know the substance of the law in their ranks?

Let us consider this question somewhat further. The core of the contention advanced by those who defend the Presidential appointments, including obviously the appointees themselves, is that the doctrine of lex non cogit impossiblia, (the principle of impossibility of performance), applies to the precondition that the nominations of these appointees should have been approved by the CC, as the CC was not functional. Consequently, the President had no option but to unilaterally make the appointments.

But let us now examine the circuitous logic of this defence. Why was the CC not functional? Was it because all its members were not in place? Yet, this is not the case. The body, (the quorum of which was anyway, six members), already had nine of its ten members in place; the Prime Minister, the Speaker, the Leader of the opposition and the Presidential appointee while the names of five of the six members who were to be 'eminent' members from outside had been sent to President Rajapakse as joint nominations of the opposition leader and the Prime Minister. The snag was the one remaining nominee to be put forward jointly on agreement of the majority of the smaller parties in Parliament.

This was the appointment that was blocked, primarily by the Janatha Vimukthi Peramuna (JVP), who had had arguably no right to include itself within the smaller parties as it was, at the relevant point very much a part of the ruling coalition. The advice of recently retired Attorney General KC Kamalasabeyson, (who must be commended for attempts to act independently in an office that had lost much of its old prestige), to this same effect was thrown into the dirt. The only consequence was that the JVP then commenced to engage in an abusive diatribe against the then chief law officer of the land.

In any developed jurisdiction, the failure to nominate this one remaining member to a pre-eminent constitutional body would have been resolved either by the Speaker of Parliament, the President himself or, in the final instance, the Supreme Court, using well known interpretative principles that uncertainty in a constitutional provision must be resolved in a manner that gives effect to the spirit of that provision. This was however, not the case. Instead, we had the spectacle of a Select Committee appointed to 'reform' the 17th Amendment which often reportedly, had no quorum with which to hold its meetings. Its report is still pending. Public interest petitions filed in the Court of Appeal against these appointments have also been pending for over a year and interim relief in one petition has been refused on the basis of the constitutional shield of immunity for Presidential appointments.

Generally however, the reason as to why political parties in Sri Lanka deviate from their professed commitment to constitutional democracy is traceable to their inherent difficulty to brook legitimate opposition. What happened to the constitutional commissions when they actually tried to assert their authority is well documented; the National Police Commission was unmercifully maligned when it sought to prevent the political transfers of police officers during the pre-election period and attempted to enforce a simple provision of the Establishments Code by interdicting police officers indicted of torture under the Anti-Torture Act,

Then again, the CC itself had not been a mere rubber stamp for unilateral presidential decisions as was evidenced when it refused to give way to President Chandrika Kumaratunge's opposition to its nominee as the Chairman of the Elections Commission. The Elections Commission was never appointed, despite the pleas of the current Elections Commissioner who has publicly declared time and time again that he wishes to retire. And the contemplated composition of the second CC (judging from the names that were put forward at that time, including former Supreme Court Justice CV Wigneswaran, indisputably one of Sri Lanka's most forthright and courageous judges), would have meant a body possibly even more assertive than its predecessor. This was a risk that could not have been lightly taken by the political establishment. This, in a nutshell, was why the CC was callously made obsolete by the conscienceless collusion of the Presidency and the Parliament.

Until the constitutional process is restored, no faith can be reposed by the majority Sinhalese or the minority Tamils and Muslims in constitutional provisions, whether this involves a solution for an intractable conflict, purports to safeguard the independence of the judiciary or concerns the simple basics of good governance. Those responsible for this calamity, whether they be simpletons, theoreticians, unscrupulous politicians, lawyers and judges governed by political or personal expediency, should be unmercifully judged on this score at a historical point of time.