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President Ranil Wickremesinghe’s call to Parliament that Special Determination 54-55/2024 on the Gender Equality Bill violates the powers of the House under Article 4 of the Constitution and that a Select Committee should be appointed to ‘look into it,’ is tantamount to gravely undermining the authority of the Supreme Court, never mind the President’s casual sop thrown to the gallery that, ‘we need not summon the judges.’

Understanding constitutional fetters

Quite apart from his amusing rider that the majority of members of the Select Committee so appointed should be from the Women’s Caucus in Parliament, the larger point is his injunction ‘not to follow’ the Determination labelled as ‘perverse,’ has repercussions beyond the instant Bill. This is an election period when hugely contested issues of law and rights will invariably come before the Court. If Parliament is called upon ‘not to follow’ judicial rulings in each and every instance that finds disfavour in the eyes of the President, we may as well dispense with the Supreme Court once and for all.

The obvious being said, a semblance of common sense must be brought to this unholy fuss over the Gender Equality Bill hitherto dominated by rude vulgarities. First, let us be clear that the fault lies with the Government and the Bill’s drafters in not having the wit or the legal acumen to understand that a Bill which posits the ‘elimination of gender disparity’ and protecting and promoting ‘gender identity/equality’ as its objectives will not bring all the creepy crawlies out of the woodwork protesting on the basis of preserving ‘Sri Lankan culture.’ That being evident, special care should have been taken to ensure that the Bill rigidly adheres in all respects to constitutional propriety.

This is in order not to allow lunatic fringe elements to ‘capture’ the debate and further expose an already exceedingly vulnerable LBGTQ minority in Sri Lanka. But that caution is not borne out by a reading of the Bill. In fact, even its preamble problematically grafts an addition to Article 12(4) of the Constitution by stating that this Article allows special provision to be made by law, subordinate legislation or executive action for the advancement of women ‘in order to eliminate gender disparity.’ But the reference to the ‘elimination of gender disparity’ is nowhere stated in Article 12(4).

Smuggling constitutional ‘additions’ through statute

That Article, in an unflattering nod to the conservatism of its drafters in 1978, merely lumps the ‘advancement of women, children or disabled persons’ together. In fact, the Constitution is conspicuously absent any mention of ‘gender disparity’ with Article 12(1) confining itself to non-discrimination based on ‘race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds.’ This lies at the core of the Supreme Court’s rejection of the Bill as unconstitutional, infringing Articles 3, 4(d), 9 and 10 of the Constitution.

Specific grounds on which the Court ruled will be examined later in these column spaces due to constraints of space. Suffice it to say that the Bill’s objects; ie; interalia, to ensure the enjoyment of constitutional rights without discrimination based on sex or gender identity, to rectify sexism, stigma etc are praiseworthy. It establishes a Gender Equality Council to, interalia, implement the National Policy on Gender Equality which the Court observed was not part of the Bill. Even so, smuggling core aims of protecting ‘gender identity’ and ‘gender equality’ from under the feet of the Constitution as it were, invited palpable risks.

On his part, the President declared that the Government must formulate policy in line with the United Nations Sustainable Development Goals (SDGs) and various conventions that the State is a signatory to. That is correct. But it is also correct that a Bill seeking to convert ‘policy’ into ‘Law’ cannot violate the Constitution. In his inflamed address to Parliament, the President cited several cases which he said that the judges in this case had ‘eaten up’ and ignored, hence the reference to ‘judicial cannibalism.’ Even so, these cases involved vastly different factual contexts.

Is this a wider attack on the judiciary?

Primarily in issue were questions judicially determined as matters of policy (teacher transfers), custodial death petition filed by the wife of the deceased following the celebrated Sriyani Silva v Iddamalgoda case, violation of the right to equality by refusal to admit a child to a particular school and so on. Additionally, President Wickremesinghe ridiculed the Court’s position that Clause 28 (the routine non-obstante or priority clause) stating that the Gender Equality Bill will supersede any other written law will result in incorporated Buddhist Chapters being compelled to adhere to gender equality when ordaining monks.

This will infringe the Pirivena Education Act No. 64 of 1979 and in sum, violate Article 9 of the Constitution, the Court opined. Reacting strongly however, the President referenced the judgment of the Court of Appeal in Chamara Sampath v Parliament of Sri Lanka, (2023) where the Court took into account the well-established principle of the harmonious construction of statutes. This was in concluding that no conflict arose between the Right to Information Act (2016) and the Declarations of Assets and Liabilities Law (1975). “How can they say that all rights of the Buddhists will be taken away by this Bill?” he asked.

Secondly and even more worryingly, this week’s Presidential ‘critique’ (to be kind) of the Special Determination was framed in a wider and scathingly harsh denunciation of the authority of the judiciary as a whole. Emphasising that ‘people’s sovereignty’ rests in the executive and the legislature, his reversal to the 1972 Constitution carried a peculiar meaning of and by itself. That supposedly ‘autochthonous’ (homegrown) Constitution categorically pronounced that ‘Parliament is sovereign,’ placing all other constitutional structures at a subordinate level.

A wiser course of action to have followed

Indeed, the so-called constitutional brains behind that exercise made no bones of their distaste for the judiciary. But that grievously lopsided ‘privileging’ of Parliament is firmly in the past. What prevails is the many times amended 1978 Constitution which attempted through the 17-19th Amendments previously and presently the 21st Amendment, to redress the lopsided wielding of power by the executive and the legislature. In that context, the President’s hearkening to the 1972 Constitution on the floor of the House is dangerously disingenuous.

In fact, that argument speaks to a menacing shadow of ‘political cannibalism’ in ‘eating up’ checks and balances between the executive, the legislature and the judiciary which the Constitution enshrines. True enough, the Court engages in pre-legislative judicial review but that is not a notional exercise. And where the Gender Equality Bill is concerned, a wiser course of action would have been for the President to call on Parliament to amend Article 12(2) and (4) of the Constitution to add ‘gender’ as a ground of non-discrimination.

If so, the Bill would have been met with less chance of constitutional objection, putting aside loony arguments of ‘Sri Lankan culture.’ As it is, the President used the authority and the privilege of Parliament to accuse the Supreme Court of judicial cannibalism when the Special Determination in issue could have been soberly critiqued. That would have fostered rational public debate rather than leading to confusion worse confounded by political upmanship.

Adding to this cacophony, we have the Minister of Justice and parliamentarians adversely commenting on the Supreme Court preventing the Constitutional Council and the Executive from exercising its powers to appoint judges to the same court through a stay order. If so, should not that stay order have been challenged by referral to a fuller Bench at the time? Why this heat now, several months after the event?

All this is unfortunate to say the least.