Lessons to learn from the court martial judgments

"  The judiciary can only oppose the executive president at their own peril. Chief Justice Neville Samarakoon was the first learn this. The lessons he learned have been lost on others."

 by Basil Fernando

(February 02, Hong Kong, Sri Lanka Guardian) Sri Lanka’s rich and middle classes are coming to a rude awakening about the nature of the 1978 Constitution and the role of courts under this constitution. For decades, constitutional “experts” claimed that under this constitution the separation of powers principle is recognized, despite the fact that the executive president had placed himself outside the jurisdiction of courts. That the separation of powers and the independence of judiciary were not part of the legal conceptions incorporated with in the 1978 Constitution was too much to stomach. The illusion that these concepts were still a part of the constitution was kept up, using some of the phrases in the constitution while ignoring the actual operative powers taken over by the executive that made the courts powerless on the decisive issue of the protection of the liberties of the individual. Today, the executive president has the last laugh and shatters such illusions.

J.R. Jayawardene tricked the sophisticated classes of Sri Lanka, who voted him to power, by using such words as “sovereignty of the people”,” separation of powers” and “the independence of judiciary”. The actual power structure that was created through the constitution did not leave any room for such concepts to have any practical value. Those words only had a sentimental value for those who were attached to liberal ideas. Now, as the actual powers available to the executive president are used to the full, such sentimental enjoyments are no longer possible.

The 1978 Constitution, while retaining the formula of the sovereignty of the people, has reduced the protection of the liberty of the individual. This is a basic contradiction existing in the constitution. Under this constitution executive power of the state is exercised by the president: the executive president is not under the control of courts, meaning that even when he violates liberties of individuals, the courts have no power to intervene to protect the individuals.

On matters of security, the president is in control, in jure as well as de facto. Actions done for security reasons by police and military are executive actions for which president bears responsibility. If the courts are to question such actions, even for the protection of individuals, the courts there by are questioning the actions done under the authority of the president. The constitution does not allow the courts jurisdiction over the president and the president is thus protected in an absolute sense.

The simple conclusion to arrive at is that the Sri Lankan president has the power to take away the liberties of individuals without any limit, and not even the King of England had such power during the Empire. The powers that courts had, and in fact exercised, in a colony, as shown by the Bracegirdle case (1937) and many other cases from many of the colonies of British Empire, are not now available to courts in the Republic of Sri Lanka under the 1978 Constitution.

The claim that the 1978 Constitution has continuity with the constitutional tradition of Sri Lanka prior to it is a fallacy. Equally, the second notion, that the Sri Lankan constitution is based on sovereignty of the people, is itself a fallacy since there can be no peoples’ sovereignty where the protection of rights is not possible. It is the liberties of the individual that is at the core of peoples’ sovereignty as against sovereignty of the monarch in a monarchy. It is the recognition of the individual through protection of individual liberties from all threats, including the threats from a monarch itself, that constitutes democracy. The test is the unlimited capacity of courts to protect the liberties of the individual. No such protection exists in Sri Lanka. What has happened to the writ of habeas corpus is only an illustration of that reality.

The judiciary can only oppose the executive president at their own peril. Chief Justice Neville Samarakoon was the first learn this. The lessons he learned have been lost on others.

The rich and sections of the middle class who supported the 1978 Constitution are now learning that they cannot have their cake and eat it too. It is either executive presidency or judicial independence, but not both.

( W.J. Basil Fernando is a Sri Lankan born jurist, author, poet, human rights activist, editor. He can be reached at basil.fernando@ahrc.asia)