The citizen deserves the safeguard of a depoliticized public service

"The 18th Amendment vests the President with the powers and strength of a giant. It is going to be difficult for him to convince the sceptical public that he will not use like a giant. There was no need to acquire near absolute power and to remove some of the safeguards for a free and fair election if he did not intend using them."

by Shanie

"O, it is excellent to have a giant’s strength; but it is tyrannous to use it like a giant….
Because authority, though it err like others,
Hath yet a kind of medicine in itself,
That skins the vice o’ the top. Go to your bosom;
Knock there, and ask your heart what it doth know"

(September 25, Colombo, Sri Lanka Guardian) Shakespeare is credited with many words of wisdom. These have been uttered through different characters in the prolific number of plays that he wrote. In one of them, Measure for Measure, a woman pleads for the life of her brother in words that have an eternal truth. The words seem so relevant to us in Sri Lanka in the aftermath of the passing of the Eighteenth Amendment to Sri Lanka’s Constitution by Parliament as "urgent" legislation.

It was good to be reminded by the Civil Rights Movement of the wise words of one of our more illustrious lawyers of a bygone era. Referring to urgent legislation, (former Senator) S Nadesan QC in his submissions on behalf of the Civil Rights Movement to the then Constitutional Council in 1972 stated, inter alia, ‘What is contemplated is a judicial decision as to whether a provision of a Bill is inconsistent with the Constitution. A judicial decision means that the court must judge conscientiously and as correctly as it possibly can. To do this the court must inform itself regarding the arguments for and against, read the authorities cited, and make up its mind. The human mind is not an automation which can be called upon to make a decision in a limited time without regard to arguments, reasons or precedents. A judge should be convinced of the correctness of his decision before he decides. If he decides with a mental reservation that he has not had time to explore all aspects of a question, he should not decide, as he may decide wrongly and thus the citizens may be deprived of the benefit of an important safeguard.’

Five learned judges of the Supreme Court have determined that the 18th Amendment did not, as argued by the intervenient petitioners, require approval by the people at a referendum. Now in terms of the provisions of the Constitution prevailing before the 18th Amendment—(Article 41C)—certain officers could not be appointed by the President without first obtaining the approval of the Constitutional Council. These officers included the Chief Justice, Judges of the Supreme Court and the Attorney General. The President could not even make acting appointments to these positions if the period of acting was to exceed fourteen days. It is well known that when the term of office of the last Constitutional Council expired, President Rajapaksa did not appoint a new Constitutional Council despite the nominations having been received in terms of the Constitution. But he went ahead and filled the vacancies in the posts of Chief Justice, Judges of the Supreme Court and Attorney General in disregard of Article 41 of the Constitution.

Conflict of Interest?

The Eighteenth Amendment has sought to right this by including a clause which stated that "all appointments made in respect of the Commissions and posts described in the foregoing paragraphs of this section, from and after the expiration of the term of office of the Constitutional Council appointed in terms of Article 41a of the Constitution, during the period commencing on the day on which the term of the aforesaid Council expired and the date of the coming into operation of this Act, shall be deemed to be valid and effectual." Thus, all extra-constitutional appointments were being back-validated by the 18th Amendment.

One of the best parliamentary speeches heard in recent times came from the TNA parliamentarian M. A. Sumanthiran, when he argued why the 18th Amendment was a blow to democracy. Sumanthiran, like Sarath Fonseka in the same debate, was subject to continuous and abusive heckling from the government benches. At one stage, he was to ask the Speaker: ‘Mr Speaker, I am repeatedly asking you this question. Are you able to control this House?’ Sumanthiran on that day referred to the legal principle per incuriam. Courts can make a ruling in mistake. In such cases, Courts can later set aside their ruling when they become aware of their mistake.

The Cabinet approved a draft Bill presented before it and certified it as an urgent bill. This was all done in a secretive manner as the draft bill was not presented for public discussion. Some of the intervenient petitioners had managed to get hold of the draft presented at the cabinet meeting the previous evening. (Obviously there are "reporters" even in the present Cabinet.) But when the Supreme Court began hearing the Attorney General the next morning, the intervenient petitioners realised that he was referring to a different draft. Apparently, the draft presented to the Cabinet the previous evening and which they certified was different to the draft presented to the Supreme Court. And the Attorney General went on to castigate the intervenient petitioners for having ‘spurious’ drafts with them. Thankfully, the Bench intervened and a young lawyer had to go with a copy of the Bill the AG was referring to to a Communication Centre in Hulftsdorp and turn out copies for the intervenient petitioners who were then required to make their submissions on the basis of the draft Bill which they had just received.

Justice and Good Governance
Justice Saleem Marsoof is one of the senior Supreme Court judges with a keen and perceptive mind. He edited a collection of legal essays, ‘In Pursuit of Justice" as a festschrift for K C Kamalasabayson, a former Attorney General. In his preface to that collection of essays, Justice Marsoof refers to the advice given by Kamalasabayson to a young State Attorney who was later to be Deputy Solicitor General.

Winning was not always getting a judgement for the State. It was the duty of the State Attorney to help the Judge reach the right decision. The person ‘who comes to Court may have awakened the State to an injustice it would or could never have known of, but for an application for judicial review.’ It was this principle that the late Justice Mark Fernando applauded when made a reference to Kamalasabayson in one of his judgements: ‘’It is abundantly clear that the Attorney General presented his arguments on behalf of the Commissioner of Labour in such a balanced, broad, thoughtful and fair manner that it reflected his concern for natural justice more than an anxiety to defend the official position and the status quo, which would have been the path of least resistance.’

The Seventeeth Amendment sought to depoliticise the public service and ensure that the citizen received a fairer deal. The Eighteenth Amendment has reversed all that. That is why this column salutes public servants of the calibre of Kamalasabayson, who, in the words of the former Dean of the University of Colombo’s Faculty of Law, ‘brought credit and dignity to the office he held through his impeccable professional conduct and eminence…..His professional advice has stood us in good stead when prosecuting the cause of justice with regard to University administration. He did not agree to all what we said and he did disagree and advise us in many instances to modify our stand to uphold and do justice to the cause. I saw in him a man committed to the cause of justice.’ It is that kind of professional public servant who will be in short supply with the 18th Amendment.

The 18th Amendment vests the President with the powers and strength of a giant. It is going to be difficult for him to convince the sceptical public that he will not use like a giant. There was no need to acquire near absolute power and to remove some of the safeguards for a free and fair election if he did not intend using them. All those associated with the passage of the Eighteenth Amendment have deprived the citizen of the benefit of an important safeguard.