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The government’s response to recent decisions of the Supreme Court has raised alarm bells for the future of democracy and the Rule of Law in the country.

Several decisions made by the Supreme Court have been met with unacceptable responses by the president and the government thereby undermining the independence of the judiciary and respect for the Rule of Law.

The judgement of the Supreme Court which issued an interim order restraining the Inspector General of Police Deshabandu Tennakoon from exercising his powers as IGP until the final determination of the application challenging his appointment was publicly rejected by the government.

To date the President has refrained from appointing an acting IGP despite the Supreme Court permitting him to do so.

Another interim order of the Supreme Court restraining the Department of Immigration and Emigration from implementing the scheme to issue visas by the VFS organisation has yet to be implemented with the government dragging its feet and vacillating in the implementation of the said order.

Sri Lanka Muslim Congress Leader Rauff Hakeem during a debate in Parliament, recently criticised the Controller General of Immigration and Emigration, holding him responsible and the Ministry of Law and Order officials for the deliberate delay in migrating to the Electronic Travel Platform previously run by Mobitel in keeping with the SC interim order.

He voiced concerns over the Department of Immigration and Emigration’s failure to comply with a Supreme Court (SC) order regarding the country’s visa processing system.

The court had previously suspended a new visa scheme, ordering a return to the government-operated electronic travel authorisation platform managed by Sri Lanka Telecom-Mobitel, which is considered less susceptible to corruption.

Mr. Hakeem who together with Parliamentarians Champika Ranawaka and M.A. Sumanthiran had petitioned the Supreme Court on the matter at a media conference last week, once again, highlighted the department’s reluctance to revert to the established system, despite SLT-Mobitel’s readiness to resume its former functions.

Mr. Hakeem has emphasised that the ongoing delays are causing reputational damage to Sri Lanka and could potentially result in a decrease in tourist arrivals for the upcoming winter season.

The government’s reaction to the latest decision by the Supreme Court last week with regard to the postponement of the local government elections has once again revealed its scant regard for the Supreme Court. The local government elections were initially postponed from March 9, 2023 to April 2023 before being postponed indefinitely with the government citing a lack of funds due to the economic recovery process.

In its judgement delivered last week the Supreme Court ruled that the postponement of the local government elections, had violated the fundamental rights of voters, marking a significant judgement against the actions of the Election Commission and other officials involved including President Ranil Wickremesinghe. The court has accordingly ordered the immediate rescheduling of the elections.

The decision came following a review of petitions filed by the Samagi Jana Balawegaya (SJB), the National People’s Power (NPP), the Centre for Policy Alternatives (CPA), and the People’s Action for Free & Fair Elections (PAFFREL) by a five-member bench, comprising Chief Justice Jayantha Jayasuriya, Vijith Malalgoda, Murdu Fernando, Gamini Amarasekara, and Yasantha Kodagoda.

Counsel for the Petitioners President’s Counsels Upul Jayasuriya, Nigel Hatch, and Viran Corea, among others had argued that the failure to hold the elections as scheduled infringed upon the basic rights of citizens . The Court had accepted their arguments and held that both the Election Commission and the President, in his capacity as the Minister of Finance, were responsible for violating the fundamental rights of voters, and accordingly ordered the immediate rescheduling of the elections.

This verdict marks the second time a sitting President in Sri Lanka has been found to have violated the fundamental rights of the country’s people. The first instance was in 2018, when former President Maithripala Sirisena was found to have violated the fundamental rights of the people by appointing Mahinda Rajapaksa as Prime Minister, displacing Ranil Wickremesinghe.

The local Government elections were initially postponed from March 9,  to April 2023 before being postponed indefinitely with the government citing a lack of funds due to the economic recovery process. The Supreme Court ruling emphasised that such justifications did not override the fundamental rights of the electorate.

The National Election Commission welcomed the decision of the Supreme Court and said it would strengthen the work of the Commission while President Ranil Wickremesinghe remained unrepentant.

The President acknowledged that postponing the local government elections was a violation of citizens’ basic rights. However, he stated that he did not regret this decision, as the time was dedicated to ensuring the people’s right to live and maintain their safety.

Meantime the Former Bar Association of Sri Lanka (BASL) President Saliya Peiris PC has expressed strong satisfaction with the Supreme Court’s judgement.

In a facebook post Peiris said this ruling marks only the second time in history that a sitting President has been found to violate such rights. He said it has affirmed the BASL’s long-standing stance against electoral disruptions.

He recalled that on February 18, 2023, the BASL had publicly condemned efforts by the Government to obstruct the local government elections, which were legally mandated to occur before March 19, 2023.

“The statement of the BASL at that time on the need to respect the people’s right to elections stands fully vindicated by today’s judgment,” he said.

It may be recalled that the government’s reaction to an interim order issued by the Supreme Court in the very same case was subject to strong criticism both locally and internationally.

In March 2023 the Supreme Court made an Interim Order directing the Government to ensure that funds were available to hold local elections. Consequent to the order of the Supreme Court on  March 7, Sri Lanka Podujana Peramuna Member of Parliament, Premnath Dolawatte, requested the Speaker of Parliament to refer the conduct of the judges of the Supreme Court who gave the interim order pertaining to local government elections as a breach of parliamentary privileges. The Speaker accepted the request and made the referral to the parliamentary committee on ethics and privileges.

On March 10, 2023 State Minister of Finance Shehan Semasinghe requested the Deputy Speaker to advise the relevant authorities not to proceed and take any action on the interim order given by the Supreme Court with regard to the local government election until the parliamentary committee on privileges concludes its inquiry on the privilege issue raised by MP Premnath Dolawatte.

The BASL was of the view that both statements constituted an interference with the judicial process and undermined the independence of the judiciary in Sri Lanka. The independence of the judiciary is part of the intangible heritage of the people of Sri Lanka and all organs of the State must recognize that an independent judiciary is essential to ensure that justice be done between the citizen and the State and between citizens said the statement.

The International Commission of Jurists (ICJ) issued a statement in March 2023 stating that it considered these actions by the government as a serious and unwarranted encroachment on the independence of the judiciary and the judicial function. “It is fundamental rule of law principle that the judiciary has jurisdiction over all issues of a justiciable nature.”

LAWASIA, the Commonwealth Lawyers Association and the Asia Australia, North America and Oceania (ANAO) Region of the International Association of Judges were some of the international bodies which critiqued the government for its attempt to take action against the judiciary.

The government’s approach to judgements of the judiciary seems to be that it would comply with judgements delivered by the judiciary only if they suited the Government which approach would seriously undermine the Rule of Law. It is a constitutional imperative that all government agencies comply with judgements of the Courts in order to make democracy meaningful.

The final judgement of the Supreme Court on the postponement of the local government elections clearly demonstrates that the Supreme Court will not be intimidated by attempts to bring them before parliament on grounds of breach of parliamentary privilege.

In the context of the forthcoming presidential election the attitude of the government towards the judiciary can raise red flags among the voters as to what would happen to the Rule of Law in the event President Ranil Wickremesinghe is returned to office.

It is best that the president and the government clear the air both by word and deed before September 21,  in order to enable the voters to make an informed decision.

(javidyusuf@gmail.com)