Yesterday the AHRC announced a week of mourning following the executive president’s appointment of two judges and the president of the Appeals Court and a judge to the Supreme Court contravening the constitutional requirement for the selection of these judges by the Constitutional Council. This followed a series of earlier appointments to independent commissions in the same authoritarian manner.
In the following extract from a recently published book, Disorder in Sri Lanka, by a former Supreme Court judge, K.M.M.B. Kulatunga, which helps us to understand the action of undermining the judiciary, the author traces a series of interferences by the executive over the years which resulted in the politicisation of the system of justice. (Disorder in Sri Lanka, published in Sri Lanka in August 2005).
We are also reproducing a section from an article “Constitution for Dictatorship” written by the late Colvin R. De Silva, from a collection of his essays written between 1977 and 1988. You will find these essays at:
http://www.srilankahr.net/modules.php?name=Content&pa=list_pages_categories&cid=75
From Disorder in Sri Lanka
Soulbury Commissioners in recommending the establishment of the Justice ministry said that this was without prejudice to the performance of the duties of the Attorney General and the Solicitor General. There was no interference of the functioning of the duties of the judges; and the Judicial Service Commission consisting of the Chief Justice and the next two most senior most judges were in charge of the appointment and the disciplinary control of Original Court Judges. However, during a period of over 50 years of independence, there has occurred a decline in the administration of justice mainly due to the progressive and total politicisation of the life of the community. Illustrations of this situation follows:
In 1947 Sir Alan Rose (Legal Secretary under the Donoughmore Constitution) was made Attorney General on the recommendation of Prime Minister D.S. Senanayake. At the same time the Attorney General was placed next to the Chief Justice. In 1948 Basnayake who was in the Attorney General’s Department was appointed to the Supreme Court from where he returned to the Department as Attorney General.
In 1955 Basanyake was appointed Chief Justice on Prime Minister Sir John Kotalawala’s recommendation. The same year Sir John Kotalawala overlooked T.S. Fernando Q.C. who was Solicitor General and procured the appointment of H.N.G. Fernando Legal Draftsman to the Supreme Court during the Bandaranaike Government.
In 1966 A.C.M. Ameer was appointed as Attorney General overlooking Victor Tennakoon Q.C. Solicitor General. It is said that this was a decision influenced by J.R. Jayawardena. Tennekoon was appointed to the Supreme Court, a position below the Attorney General on the precedence table. The new Government in 1970 appointed Tennekoon as Attorney General overlooking the claims of L.B.T. Premaratna Q.C. Solicitor General, Acting Attorney General.
From 1972 – 1974 several persons who were associated with pro-government political parties were appointed to the Supreme Court. Appointment of judicial officers and public officers was vested in the cabinet of ministers and its delegates. Appointments of Crown Counsels and the Solicitor General were taken over by the Secretary Justice. I was a crown Counsel in 1970, when Felix Bandaranayake Justice Minister visited the Department and directed that henceforth law officers should assist in implementing government policy. While other officers were silent. I remarked that our duty had always been to assist in implementing the policy of the law.
The new Government elected in 1978 established a Supreme Court and a Court of Appeal and reappointed some of the then judges to the Supreme Court, demoted some to the Court of Appeal. Some were retired. New judges were appointed to the Supreme Court from different sources including conservative judges. Samarakoon Q.C. was appointed Chief Justice over the most senior judge Samara Arickrema Acting Chief Justice. As Mario Gomis comments in his book “In The Public Interest” judges were generally pro executive and conservative.
——————————————–
From “Constitution for Dictatorship”
President is a Dictator
The fulcrum of state-power under the new constitution is the President. Under the 1972 Constitution, it was the National State Assembly. Incidentally, both the NSA and the Republic of Sri Lanka itself disappear in the new constitution. There will be the Democratic Socialist Republic 6f Sri Lanka and there will be a Parliament. Whatever may be said of the Parliament, the new name and title of the Republic is a misnomer. Though many or most of the trappings of democracy are there, in essence the President is a dictator over all. As for socialism, the whole design is to obstruct and prevent the march of the people to socialism. The description of the so-called democratic socialist society in the new Directive Principles of State Policy and Fundamental Duties makes it clear that the new constitution is an instrument for the preservation and development of a capitalist Society.
In the new constitution, the President is made both king-pin and motor of the state. He exercises, directly and untrammeled, the executive power of the people, including the defence of Sri Lanka. He does so from outside Parliament, of which he is not a member although he has the right of audience in Parliament at any time.
Parliament is declared to exercise the legislative power of the people. But, the President is ensured both control of Parliament and of the legislative process by several devices. He, while being head of State, is also head of the Cabinet and also a Cabinet Minister, though he has no seat in Parliament. He determines the size of the cabinet, the personnel of the cabinet, and the allocation of Subjects to ministers, whether of cabinet or district rank. He appoints and dismisses the Prime Minister and all ministers and deputy ministers, and he, though outside Parliament, can keep or take over any number of ministerial portfolios to himself although cabinet is, according to his constitution too, collectively responsible and answerable to Parliament. The cabinet can fall; the Government can fall; but he does not and cannot fall; he continues in all positions. The true meaning of it all can be seen if it is remembered that all legislation originates in .the Cabinet and therefore in him, since nothing can pass Cabinet without his consent as head of Cabinet.
The President’s power over the judiciary is not inconsiderable although it is declared that the judicial power of the people shall be exercised by Parliament through courts and tribunals created and established, or recognized by the constitution, or created or established by other written law. The appointments to the Supreme Court, the Court of Appeal and the High Court are in his exclusive hands. So also, the creation and establishment of courts by other written law is in his control as head of Cabinet.
There is more to be added to the tale. In a whole range of matters the President can frustrate and supersede Parliament in the exercise of its legislative power. Bills not passed by Parliament, and even bills for the amendment or repeal of the constitution which have received less than the necessary two-thirds majority but not less than half the votes, may in his discretion be submitted by him to the people by referendum for acceptance and passage into law. Such acceptance can be by a simple majority of the valid votes cast.
Finally, public security, with its emergency system of rule through police and military and by emergency regulations, is firmly in the President’s hands. The plenitude of his power will then stand naked and unbarred; whereas ordinarily it will be clothed in constitutional trappings All told, and front any point of view, it is an enormous concentration of power in the President’s hands: and virtually unchallengeable power at that. All the provisions for applying to the Supreme Court in respect of the infringement or imminent infringement by executive or administrative action of any fundamental right are not available against him, except in his ministerial capacity, for he is immune from suit. As for parliamentary challenges by a hostile House, it is a good way to examine the ambit of his remarkable powers.
