Thoughts on the constitutional crisis in Sri Lanka

The  Constitution in which ever  part of the world, I don’t think would be in a crisis. After all it’s a piece of paper. It is those who seek to interpret and enforce or seek shelter under the  constitution that will be in a crisis.
 

The following is the text of a speech made by former President BASL, Upul Jayasuriya PC at a seminar organized by the Bar Association Of India and LawAsia in New Delhi.

Constitution in which ever the part of the world, I don’t think would be in a crisis. After all it’s a piece of paper. It is those who seek to interpret and enforce or seek shelter under the  constitution that will be in a crisis.

Let me Quote from Dr BR Ambedkar the Chairman of the Constitutional drafting committee also known as the father of the Indian Constitution. “However good a constitution may be, if those who implement the constitution are not good it will prove to be bad, however bad a constitution may be if those who implement the constitution are good it will prove to be good.”

Sri Lankan Republican Constitution was drafted and promulgated in 1948 was better known as the Soulbury Constitution. This was replaced by the 1972 Republican Constitution removing the allegiance to the queen of England. That was pioneered by Dr Colvin R De Silva one of the greatest legal luminaries during the time of Mrs Bandaranaike. Thereafter 1978 Constitution was promulgated by President JR Jayawardena. Those who pioneered the 1978 Constitution were Mark Fernando, HW Jayawardena QC and Lilith Athulathmudali who was later assassinated by the LTTE.

One could say that was the creation of a monstrous Executive Presidency which had wide powers even to dissolve the government after one year of the forming of the government after an election. This was how President Chandrika Kumaratunga dissolved Parliament after three years of the election in 2004. Only exception to that rule was if there was an impeachment of the President entertained in the order book then there could not be a dissolution until such time the same is voted.

19th amendment 

Since 1978, it has had 19 amendments. Of the amendments most pivotal was the 19th amendment. It had many salient features. One of its major hallmark was the limitation of the powers vested with the Executive President. This amendment was voted for by all parties including the group led by The deposed President Mahinda Rajapaksha. It was historical. The bill was presented by the President himself. It was voted for by 223 members of Parliament out of 225 the total number of MPs. Up to this moment many successive Presidents vowed to Remove or reduce the Executive powers, no meaningful action had been taken by Executive or the Parliament except the 19th amendment to the Constitution.  

It was a sincere effort taken in the right direction. The President’s name will be emboldened in the history having reduced his own presidential term from 6 years for which he was mandated by the people in 2015 to 5 years. That was an unparalleled effort and step taken to democratize the governance with all humility by President Maithreepala Sirisena. The prerogative that was enjoyed by all the Presidents arbitrarily in appointing the judges to the superior courts, namely the Court of Appeal and the Supreme Court were vested with the Constitutional council represented by all parties and 3 eminent members of the civil society. 

During the tenure of Chandrika Kumaratunga and Mahinda Rajapaksha, presidential exercise of prerogative of appointing judges who were unsuitable to hold the coveted position in the apex court was a total abuse in desecrating the temple of Justice. 

I as the President of the Bar Association of Sri Lanka (2013-2015) whilst addressing the Ceremonial Sittings of several judges tore apart the appointing process and the will of the executive, hell bent to crest a subservient and a dependent judiciary. When my good friend Mohan Peries was appointed after illegally removing Shiranee Bandaranayake as the Chief Justice, Sri Lankan Bar represented by the Bar Association of Sri Lanka headed by me refused to recognize Mohan Peries as the Chief Justice. He was my good friend. My son was understudying Mohan Peries’s wife. That was no concern. I defied the personal relationships and I invited Dr Shiranee Bandaranayake who has been illegally restrained from functioning as the CJ, to my customary convocation upon my accepting duties as the President of the Bar Association of Sri Lanka ignoring the de-facto Chief Justice Mohan Peries.

With so much of frustration that set in, I as the head of the BASL as I was then,  have had to tread on thin ice with caution. On one hand there was a draconian government of Rajapaksha with killer instinct and on the other, a judiciary holding pujas to the executive and the government. I took the risk and decided to discharge my duty my way, come what may. I was vocal in courts and outside courts. My criticism and toung lashing was painful to some and sweet as honey for those who stood by the principles. 

In one of my speeches at a ceremonial sitting of the Supreme Court I had this to say. This was in reference to a judge called Sri Skandaraja President of the Court of Appeal who was overlooked in his due promotion to the Supreme Court simply because he held, in a divisional bench that removal of Chief Justice Dr Shiranee Bandaranayake was illegal. He was a heart broken man and died as the President Court of Appeal with the burst of a blood vessel. 
I quote from my own speech, “We shall kneel before the altar of Almighty Justice, "Father, forgive them, they know not what they do. Their ill will has no bounds or confines." This voice must surely speak, to civil society. The deprivation of his due place for  that humble simple man who sat behind the bench, was nothing but a travesty of Justice.  Are we to blame the “system” and pass the buck? No ! The buck stops here.”

If the Executive persists in acting in breach of these salutary principles it would be an invitation, persuasion or perversion to the mind of the Judges to cast aside their Judicial Independence and succumb to the invidious pressures of the  Executive. Is that what is in the mind of the Executive? To break the back bone of  Judicial Independence? 

“The blame can not be attributed only to the Executive. The persons who do not fall within the time tested and respected criteria, cringe and scrounge brazenly fall at the feet of the Executive seeking such appointment whose lame excuse thereafter is that the Executive invitation can not be turned down; are equally guilty of the transgression against the society. We the Legal Profession and the civil Society and those of us entrusted with that public trust, are also  to blame for it.”

With the creation of the Constitutional Council which was truly independent, emancipated executive skullduggery that was prevalent until then in the appointment of judges and created a new culture by appointing people with integrity, competence and eminence.

I take pride to say that this was a triumph of the Bar which crusade led by me on a head on collusion path against the autocratic regime of Rajapaksha. I was not only threatened but was followed by killer squads. I stuck on. The entire legal profession in Sri Lanka flanked me. We were triumphant at the end. People like Prashanth Kumar, Chris Leone, IBA, ABA, commonwealth Lawyers Association, British Law Society, Spain etc., etc., urged the Rajapaksha government for my safety......

It was our efforts that culminated in achieving the impossible. We reached the distant dawn. With the change of the regime and the introduction of the 19th amendment and the re-introduction of the Constitutional Council we achieved the most salient factors that helped us to solve the crisis.

19th amendment ensured 

*Appointment of commissioners to Independent commissions on Audit, elections, human rights, bribery and corruption were vested solely with the Constitutional Council. 
*High ranking public officials such as the Attorney General, Inspector General, commissioner general Elections were also vested with the same commission.
*Appointment of the Cabinet of Ministers were to be done by the Executive President only in consultation with the Prime Minister. 
*Number of Ministries to be held by the President was limited to Defense, Mahaweli and Environment only. 
*Presidential immunity was removed. Presidential power to dissolve the Parliament was restricted until the lapse of 4 1/2 years since the election.

At the inauguration of the Golden Jubilee Conference in August 2016, I welcomed the President Maithreepala to the conference and said that the changes he has initiated through the 19th amendment we would refer him to be the local Mandela! Some faltered me and had to face brickbats.

Well those were the early years of the Presidency. Between then and now much water has flown under the bridge. There has been substantial mistrust that has developed between the President and the Prime Minister for which both have to take their share of the blame. 

In this backdrop The President took steps to swear-in Rajapaksha as the Prime Minister and bring in his cabinet of Ministers. Simultaneously the President prorogued the Parliament giving time for Rajapaksha to buy over the MPs from the opposition parties. It was a ugly display of ill gotten money of Rajapaksha. Price of a MP went up from 1/2 Million US$ to 3 Million US$. They succeeded buying a few but failed to obtain the magical figure of 113 to have majority in Parliament. The President then dissolved the Parliament and called for a General election. A fundamental rights application was filed in the Supreme Court challenging the dissolution of the Parliament.

Rajopavanam Sambandan the leader of opposition moved a Fundamental Rights application in the Supreme Court challenging the dissolution of the Parliament. Matter was taken up before the normal bench fixed for the day, the Chief Justice and two other Judges. It was taken up in the morning and continued till afternoon. At around 6.30 in the evening the order was delivered staying the gazette dissolving the Parliament and calling for a general election. Parliament resumed on the expected date and continued with the proceedings.

Former Prime Minister Wicremasinghe’s Party brought in a motion of no confidence in Parliament against the brand new regime of Rajapaksha. The speaker attempted to take a vote by name. As the coterie of MPs organized by Rajapaksha at his behest disrupted the proceedings by brandishing knives and throwing chilly powder and breaking the maze of the Parliament. It was mayhem and an ugly scene by all means. The speaker was compelled to take a voice vote. A fresh motion was tabled on another day, and that too was disrupted as Rajapaksha didn’t have the numbers. On the third occasion 122 MPs out of 225 signed affidavits and gave it to the speaker saying that they have no confidence on the “Prime Minister” Rajapaksha who has looted power from Wicremasinghe. 

Another application was filed in the Court of Appeal by way of a writ of quowarranto challenging the Cabinet of Ministers headed by Rajapaksha. The Petitioners were the 122 MPs who had earlier sworn the affidavits. The same day further interim order was issued by the Court of Appeal staying the operation of the Cabinet and the Prime Minister.

You will now appreciate the meaningfulness of the efforts of the Bar in doing everything possible to create an independent judiciary with a backbone. In any one of these occasions bench was not devided. It was a triumph for the Sri Lankan judiciary. It was a triumph of the legal profession that created an environment for it. It is a silver line on the dark clouds that were looming on Sri Lanka. 

I can recall an incident in India and a role model. That’s Justice Khanna one of the five judges of the Supreme Court of India who was also the most senior judge of the Supreme Court of India who was due to be promoted as the Chief Justice. In this case of Nathwani Vs Commissioner of Police Mr Nani Palkhiwala and Ram Jethmalani legends of the Indian Bar led a team of Lawyers of more than 150 including Mr Soli Sorabjee and Mr Anil Divan.  The issue was all the opposition political leaders including Jaya Prakash Narayan, Moraj Desai, Vajpayee, were detained without trial. Four Judges held in favor of the government of Mrs Gahndhi justifying the banning of a meeting of two former Chief Justices MC Chagala and MC Shah and Nathwani. In a book titled front foot written by Anil Divan let me quote a passage of reference to Justice Khanna, “ and yet Justice Khanna  preferred the voice of his conscience at enormous personal cost. It was Justice Khanna’s finest hour. He became a beacon and a symbol of selfless courage and lion hearted resolve to standby what he consid-ered to be right without regard to his personal consequences.” In January 1977 Justice Beg who decided among 4 judges who decided in favor of the government in the said Habeas corpus application, was appointed the Chief Justice over Justice Khanna, who was the most senior,  tendered his resignation.

In a US Presidential election of George W Bush the federal Supreme Court was partisaned. In Britain in the spy catcher case the public opinion was that the House of Lords held with the establishment. It is very crucial and rare even in matured democracies holding against the establishment.

Professor GL Peries, one time Dean of the Law Faculty of University of Colombo, presently a member of Parliament representing the opposition, commended these salient features in his speech in the Parliament and said that the President’s hands were tied by the 19th amendment limiting his power to dissolve Parliament until the expiry of 4 1/2 years since election. However it was sad to see that such a learned man took a diametrically opposite view when the President prorogued the Parliament first and dissolved the parliament before the date of the reconvening of the parliament much against the spirit of democracy in flagrant violation of the Constitutional provision brought in with the 19th amendment. This is where Dr Ambedkar’s quotation becomes more relevant to the Sri Lankan scenario. It is known through the grapevine, that it was the same genial professor of Law and the retired Chief Justice Sarath N Silva who has advised the President to do so. It is more appropriate to call it a political crisis than a constitutional crisis.

We in Sri Lanka were overwhelmed by the support we received from Indian Bar at the initiative of Shyam Divan who invited Mr Soli Sorabjee to give and opinion on the Constitutional issues that were being raised in our Supreme Court. Let me take this opportunity to place our appreciation on record to Mr Soli Sorabjee and Mr Shyam Divan and ........... all the others who helped in the opinion given.

Matter was argued for 4 days in the Supreme Court of Sri Lanka during which period your Secretary General Mr Prashant Kumar former President LAWASIA and Mr Chris Leone present President LAWASIA came to Srilanka on a observation mission. All the parties including those of all who sought to intervene were heard by a full bench of 7 judges. The judgement was historical and unanimous, opening a new leaf in the annals of Sri Lankan Judiciary.

The gazette that was issued by the President dissolving the Parliament and calling for a general election before the expiry of 4 1/2 years from the election was made null and void.

Sri Lanka has created history with an unprecedented judgement in the entire world. India had produced one Justice Khanna! Whereas Sri Lanka has produced 7 Justice Khannas. We have a judiciary that we can be proud of. We have toiled hard for this creation. We are proud that we have a judiciary that is independent. We are proud that we as the bar has had a hand in it in reaching the distant dawn. We shall not allow the temple of Justice to be desecrated once again.