The bench of three judges of the Supreme Court made an order on June 30, 2006 directing the Attorney General to consider whether action is warranted against two citizens who filed a fundamental rights petition relating to the appointment of four judges by the president without the recommendation of the Constitutional Council. The basis is that the two citizens had filed this application for frivolous and vexatious considerations. This order is a direct attack by the Supreme Court on the basic due process of law and democratic process.
The petition was filed by the two citizens who are the president and the secretary of a well known civil society organisation, the Citizens Movement for Good Governance (CMOGG). The issue of public interest that the CMOGG represented is perhaps the most important constitutional issue of present times which is the bypassing of an imperative constitutional requirement by the president of Sri Lanka regarding appointments to the highest courts. Such a show of public interest and the raising of vital issues to society should have received commendation from the highest court of the country whatever be the final judgment the court may make. It may well be that the two citizens were pushing the court to decide on an issue that the court did not wish to get involved in. However, such a consideration does not make the issue raised either frivolous or vexatious. Nor did it demand the consideration of punitive action.
It was a short while ago that the Court of Appeal decided that the immunity of the Executive President is absolute and that no court action can be taken against him for his actions and omissions, official or personal. (AS-139-2006) The court gave a literal interpretation to this particular clause in the Constitution instead of trying to interpret it in relation to other provisions of the Constitution including the provision which states that all persons are equal before the law. The very basis of a democratic Constitution is that no one is above the law. The court referred to the issue of these contradictory provisions but left the matter for parliament to act on. It is this same issue that would have been the crucial issue before the Supreme Court in the application filed by the two citizens. The Supreme Court is the highest court in the country and these citizens had the right to canvas this fundamental issue which means the difference between a dictatorship and a democracy. Whatever be the court’s view on the matter there is no doubt that the issue itself was of the highest importance and one affecting the entire fabric of society in a grave manner. There is nothing frivolous or vexatious in issues of such fundamental importance. The canvassing and recanvassing of such issues before the highest courts is a basic duty of any citizen who takes their membership of the Republic seriously.
The court’s attack on the two members of this organisation came after several other blatant attacks on litigants. The case of Tony Fernando is a well known illustration of this. The United Nations Human Rights Committee found the decision of the Supreme Court on this matter to be in contravention of Sri Lanka’s obligations as a state party to the ICCPR (http://www.article2.org/mainfile.php/0404/201/). In this case a citizen who pursued a fundamental rights application was summarily sentenced to one year of rigorous imprisonment allegedly for making his representation in a loud voice in court. The citizen was sentenced for contempt of court. The only effect of such a decision is to create a chilling effect on citizens who want to pursue their cases before courts.
A further case of similar nature and clearly directed for political reasons was the sentence imposed on a former minister S.B. Dissanyake for two years of rigorous imprisonment on contempt of court charges for making a comment at a public meeting regarding the court. The minister was then known to the public as a bitter opponent of the then Executive President. The judgment has been described as a direct political decision with a view to suppress the political activities of this minister.
The public perception today is that the Supreme Court under the leadership of S.N. de Silva, the Chief Justice, has become highly politicised in favour of the existing regime. The attempts to suppress all challenges based on public law is quite evident. The use of public law for challenges on the basis of state accountability and the preservation of democratic norms is being treated in the most hostile manner.
The direct result of the politicisation of some judges of the Supreme Court is that most lawyers now refuse to undertake applications on issues of fundamental rights and public law. In private most senior lawyers express their utter frustration about the present situation. However, they are helpless and there is nothing they can do about it. The present order on the CMOGG will have a paralysing effect on the pursuit of public law issues in Sri Lanka. The defence of civil society organisations on the pursuit of public interests is now a matter of survival for Sri Lankan society if it is not to go down under a complete dictatorship with no possibility of the protection of rights through any machinery at all. (AS-156-2006)
