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by Dr. A. C. Visvalingam
July 02, Colombo, Sri Lanka Guardian: In a recent newspaper report, N. Srikantha MP is reported to have said in Parliament that judges had been appointed to the Supreme Court and the Court of Appeal without the approval of the Constitutional Council (CC) and that there would be a constitutional confrontation between the executive and the judiciary if someone challenged such appointments legally, implying that no one had done so to date. The factual position is
that in 2006, members of CIMOGG did challenge, in the Court of Appeal, certain appointments to the Public Service Commission (PSC) and the National Police Commission (NPC) on the ground that the approval of the CC had not been obtained. Subsequently, members of CIMOGG challenged in the Supreme Court the appointments, also without CC approval, of two judges to the Court of Appeal and two to the Supreme Court.
In layman’s language, the Court of Appeal held that the acts of the President, who had made the unconstitutional appointments to the PSC and NPC, were covered by the immunity that he is said to be possessed of under the Constitution and that, even if some injustice resulted from his violating the very Constitution that he had sworn to protect, it was something that the courts were not in a position to correct. The Court added that it was the responsibility of the legislature alone to rectify any shortcomings in the law. As for the fundamental rights application submitted to the Supreme Court, leave to proceed was summarily refused and, hence, there was nothing further that we could do. In neither case was there a confrontation between the judiciary and the executive because of these legal challenges as envisaged by Srikantha.
In the same newspaper report, it was stated that Minister D. E. W. Gunasekera, who we believe was one of those who voted for the 17th Amendment in 2001, together with all his fellow parliamentarians, is reported to have said recently that the 17th Amendment is "an ill-conceived piece of legislation brought to the House hurriedly".
It defeats us why he did not ask for more time at the outset to study the draft of the 17th Amendment in depth and propose the necessary improvements before he voted for it. He is also said to have indicated that "we have identified 15-20 areas where we find flaws and snags in this legislation" and that a Select Committee had been appointed in 2006 to look into this matter. Are we to understand from the position taken up by Minister Gunasekera, that the legislature, the executive and the judiciary are all entitled to violate the existing laws of the land, including the Constitution, which all of them have sworn to uphold, on the ground that there are some shortcomings in those laws? Can there be any legal defence for those who knowingly and deliberately violate the current provisions of the supreme law of the land?
That the minor parties could not agree on who should be the tenth member of the CC was the convenient excuse given for scuttling the CC altogether in 2005/2006. The fact is that neither the Speaker nor the Prime Minister or the Leader of the Opposition or the President made a proactive effort, either individually or jointly, to persuade the minority parties to find a compromise candidate. Instead, to the consternation of the government, the OPA proposed the name of a candidate who was acceptable to all the minority parties but the government did not waste any time concocting a fresh set of excuses to prevent the CC from being constituted.
Going back to the question of "ill-conceived legislation brought hurriedly to the House", we can do no better than to quote from a CIMOGG article which appeared in the press in October 2007: "Looking back at the passing of so-called urgent bills and other less urgent ones by Parliament over the past three decades, we find it difficult to think of a single bill which was genuinely in need of rapid processing. Virtually all past bills have dealt with matters which had been known for years and years, and obviously did not become urgent all of a sudden. It is our position that there is not one bill passed by Parliament since independence that would not have benefited by its publication in the form of a Green Paper or White Paper, giving at least three clear months for the public, concerned institutions, specialists, academics and legal practitioners
to comment on its purpose, scope and specific provisions. The recourse to treating bills as urgent has, in truth, been to deter the public from influencing legislation that was largely intended to serve the ends of the party in power. It has more often than not been a case of political groupings misusing the legislative power delegated in all good faith by the people to Parliament. We might mention at this point that although no legal rights or obligations are conferred or imposed by Chapter VI of the Constitution (namely, the Directive Principles of State Policy and Fundamental Duties), its Article 27(4) states that ‘the State shall strengthen and broaden the democratic structure of government and the democratic rights of the People ... by affording all possible opportunities to the People to participate at every level in ... government.’
There is, therefore, at the very least a powerful moral obligation on our legislators to allow a reasonable opportunity to the people, who are the ultimate repositories of national sovereignty, to have their say on legislation which might well affect them adversely rather than stampede them into supporting, by default, an ignoble political agenda".
We are also at a loss to understand why it has taken over six years for our all-knowing politicians to conclude that there are flaws in the 17th Amendment. Had the public been given an opportunity in 2001 to study and comment upon the relevant proposals before they were presented to the House, we are confident that knowledgeable members of the public would have identified all the 26 flaws which our politicians claim now to have identified.
It is anybody’s guess as to how long our lawmakers will keep going around the mulberry bush before they actually present their proposals to the House, once again without the benefit of informed public inputs, considering that the government has shown in no uncertain manner its dislike of encouraging or establishing, financing and empowering politically impartial institutions.
- Sri Lanka Guardian
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