Parliament, Executive and Judiciary should act within
their own powers:
Parliament not answerable to Judiciary - Former CJ Sarath N. Silva
Power rests with the people:
Former Chief Justice Sarath Nanda Silva expresses his views on the
recent developments and his experiences:
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Former Chief Justice Sarath Nanda
Silva |
Q: Can Law Courts issue notices on the Speaker in Parliament?
A: Not at all. There is no law in this country defining the
Appellate Court’s jurisdiction to issue writs. What is in practice in
the nation is the British Common Law of Parliament that the Judiciary
could never issue writs to Parliament.
Therefore, no writs could be issued to Parliament. The Judiciary in
Britain has never issued writs to the British Parliament. The Speaker is
answerable to Parliament and through it to the people. The Judiciary
exercises its powers on fundamental rights in regard to administrative
and executive acts.
Parliament is not answerable to the judiciary and also Parliament is
not subordinate to the Judiciary. The division of powers has been
designed to avoid any conflict. In the interest of democracy the
Parliament, the Executive and the Judiciary should act within their own
powers.
Q: Which is more supreme? The Legislative or the Judiciary?
A: I think it is not appropriate to use the word, ‘Supreme’ in
this context. It is the people who are supreme. It is the people’s power
which the Parliament exercises.
The Judiciary too exercises the same power. The power always rests
with the people. It is the sovereign power of the people which the
Legislature, Executive and Judiciary exercise. The source of sovereign
power is the people, the sole repository and as such there could be no
conflict. Had there been two masters there could have been a conflict.
In this instance a conflict has been created. The two parties ought to
work for the well-being of the people. There is no problem confronting
the people at all.
Q: What is your view about lawyers wearing ties and dashing
coconuts?
A: I don’t approve it. It could have some meaning from a
religious point of view. Coconut-dashing is said to have an impact on
gods. Lawyers are concerned with the law. Our judicial system and
lawyers are the guardians of the law. When lawyers resort to
coconut-dashing it is something like calling curses among themselves.
There were those who dashed coconuts against me. Rather than having an
ill-effect on me, I prospered in my post.
Q: In keeping with the law the Parliamentary Select Committee
is the only procedure to probe the impeachment motion against the Chief
Justice. What is your view as a former Chief Justice?
A: These Standing Orders were enacted in 1984 to deal with
former Chief Justice Neville Samarakoon. Section 108 A of the 1978
Constitution has laid down that the procedure should be according to the
law or Standing Orders.
When the impeachment motion was being moved against Neville
Samarakoon, President J.R. Jayewardene had not realised that there was
no existing law to proceed with. Ranil was also in the team. Therefore,
these Standing Orders were drafted hurriedly.
Appointment of Commission
Q: Former President Chandrika Bandaranaike Kumaratunga has
proposed the appointment of a Commission comprising judges.
A: A law could have been enacted to ensure an independent and
just inquiry. Chandrika too had ample time to do it. She was President
for 11 years. There was also an impeachment motion against me who was
appointed by her. If she had any regard for me, she should have enacted
a law to ensure an impartial inquiry, but she failed to do so.
If the procedure was wrong she had eleven years at her disposal to
rectify it. The whole history of impeachments is full of bruises. There
had been ulterior motives too. Perhaps, here too there could or could
not be a flawed impeachment. You cannot say each and everyone is flawed.
If there is errant behaviour, then it deserves probing.
As alleged by the then Government. There was no deviant behaviour on
the part of Neville Samarakoon; on the contrary it was lofty conduct. He
was a Queen’s Counsel, an eminent personality. Today most people do not
know that there was an impeachment motion against Supreme Court Judges
Wimalaratne, Collin Thome and Vaithylingam who pronounced their verdict
against the then Presidential Commission which had convicted Mrs.
Sirimavo Bandaranaike. They were however, exonerated.
Q: Chandrika Bandaranaike Kumaratunga had spoken about several
Supreme Court judgements delivered during your incumbency.
A: Several people had inquired from me about what she has
said. She had specially said that she wholeheartedly accepted the
Supreme Court judgements delivered during her incumbency. That is
correct not only herself but all others too should accept the judgements
delivered by the Courts. It is nothing special but respecting
judgements.
According to our Constitution, a judgement amounts to an
interpretation of law and as such all are bound to respect it. It is no
tradition but the law of the land.
There is no need to make a song and dance of it. All leaders and
citizens are duty-bound to do so. The duty on the part of the Judges is
to make judgements in good faith according to their knowledge and
conscience.
It is their paramount duty; and they cannot claim that it is
something extraordinary on their part. I cannot subscribe to it. We need
to stress that it is the normal course – respect for law, judges being
unbiased and enforcement of the law to the letter. Nobody is above the
law. In addition to laws enacted by Parliament, the Supreme Court
judgements become case law.
Judgements against government
Q: What former President Chandrika Kumaratunga said was that
she respected even those judgements which were against the government?
A: She had mentioned several judgements given against the
government. You cannot say that these judgements are anti-government.
Almost all the Fundamental Rights violation cases were against the
government. Fundamental Rights violation cases cannot be filed against
the individuals. As provided for under Section 126 of the Constitution
any aggrieved citizen could file a case before the Supreme Court for
violation of his Fundamental Rights due to administrative or executive
action.
All such cases are directed against the government and had been
decided upon. If the Supreme Court is not to pronounce judgements
against the government, then the powers of the Court should be taken
away. It is the 1978 Constitution which has bestowed on the Supreme
Court the Fundamental Rights jurisdiction. Judgements against the then
governments of President J.R. Jayewardene and R. Premadasa had been
given. So with all other Presidents, I feel she has somewhat
misunderstood the position. Those judgements were not delivered against
government ministers and officials.
Q: Chandrika Bandaranaike Kumaratunga still speaks of her term
of office being reduced by one year.
A: Yes, she had spoken about the Presidency. I would like to
explain this for the benefit of the people. My difficulty is that she is
raising this matter again. She came to power in 1994 on the pledge that
the Presidency would be abolished within six months. Now it is 2012 and
she still speaks of a lost year of Presidency.
President Jayewardene took the American Constitution and to an
extent, the French Constitution as a model when he drafted the 1978
Constitution. The term of office of the American Presidency is now
fixed. After four years the Presidential Election has to be held in
November and Oath of office has to be taken in January. J.R. Jayewardene
too wanted to follow same. Due to the lust for power he fixed six years
for the Presidency, when it is four in the USA and seven in France.
Section 160 of the Constitution states the person so elected shall be
deemed for all purposes to have been elected as President of the
Republic and shall hold office for a period of six years from February
4, 1978. But he was not appointed accordingly. He had an ambition to
take oaths on the Independence Day in February. This was how the
Constitution was formulated. President Jayawardene’s term of office was
to expire after the lapse of six years reckoned from February 1978.
The Presidential Election was to be held in February 1984. It turned
topsy-turvy due to the subsequent amendments. Meanwhile, President
Jayewardene deprived Mrs. Sirima Bandaranaike, his political rival of
her civic rights and to capitalise on the the situation President
Jayewardene wanted to hold a Presidential Election before 1984 and give
effect to this and the third Amendment to the Constitution was moved.
The term of office of Presidency was said to be six years from August
28, 1982.
He said after a four years a Presidential Election could be held. He
introduced this Amendment not in good faith but to capitalise on the
situation. Now the new President cannot take the oath of office on
February 4. JR introduced a very ambiguous section into the third
Amendment.
I know this very well, as I worked at the Attorney General’s
Department at that time. After he defeated Kobbekaduwa, J.R. wanted to
take the oath of office on February 4, 1983. The LTTE, meanwhile,
received their training in India. Then violence broke out in July 1983.
Had not the Constitution being taken for a ride the spate of disasters
since 1983 could not have taken place.
Elections
A General Election should have been held at that time to be followed
by a Presidential Election in early 1984. Tamil votes were vital for JR
to secure victory. It was these two Constitutional Amendments that led
to a thirty-year-war against terrorism.
The sixth Amendment to the Constitution alienated TULF Leader
Amirthalingam from representing Parliament. The General Election which
should have been held before the 1984 Presidential Election would have
provided the forum for Prabhakaran and Wijeweera to enter Parliament.
Q: You had pioneered Chandrika’s draft Constitution of 2000.
A: Amidst all these, Chandrika came to power in 1994 pledging
that she would abolish the Executive Presidency and tear off the
Constitution within six months. She appointed me as the Attorney General
to give effect to it.
I myself, participated in 67 parliamentary sessions to abolish the
Executive Presidency and amend the Constitution. G.L. Peiris was the
Chairman of the Committee to amend the Constitution. In my capacity as
Attorney General in fact it was I who studied every section in detail
and proposed amendments. By 1998, the draft Constitution had been
completed. Further progress in this could not be realised due to the
bomb explosion at the Sri Dalada Maligawa in Kandy. Chandrika had lost
her interest to abolish the Presidency. I was appointed Chief Justice in
September 1999. Eventually, Constitutional Amendments were presented to
Parliament in the early part of 2000 to abolish the Presidency after
Chandrika’s term of office expired.
Meanwhile, exploiting JR’s Constitutional Amendments, she sought a
fresh mandate in November 1999. She was re-elected President against her
rival Ranil Wickremesinghe.
Q: It was during Chandrika’s second term of office, that the
question of her losing one year of office arose?
A: Yes. Two days prior to the Presidential Election she
sustained grievous injuries in an LTTE bomb. She was in hospital when
she was elected President. When Balapatabendi enquired from me whether
there was a need to take oaths, I said I held the view that Section
30(2) of the Constitution which reads, “The President of the Republic
shall be elected by the people and shall hold office for a term of six
years” cannot be changed without holding a referendum. That is an
entrenched clause that the holding of office become effective from the
date of being elected. I said that the oath of office has to be taken
within 14 days from the date of being elected, else the claim to office
will be forfeited.
Q: What happened thereafter?
A: Balapatabandi told me that she did not want 14 days but was
ready to take oaths then and there. She went to Temple Trees straight
from hospital to take oaths. I was surprised to see her in a state of
shock, having covered one of her eyes. She took oaths. Her advisers told
her that she should take her oaths only after the term of office
expired. I also told her in November 2008 that she could take her oaths
if she so desired.
A photograph was also taken but it was not published. By 2005 the
question arose whether her term of office expired on 2005 or 2006. Ven.
Omalpe Sobitha Thera presented a petition to the Supreme Court against
the Election Commissioner. I was the Chief Justice at the time.
The Supreme Court was called upon to interpret the constitution which
was a long trial. Having considered all arguments, the Supreme Court
held that Section 30, Subsection 2 was the supreme provision. The date
of being elected and the period of six years are interwoven and it
cannot be exceeded. Accordingly, Chandrika’s term of office expired on
November 2005. Only referendum could have changed it.
This is a translation of an interview which appeared in the Silumina.
Translated by K.D.M. Kittanpahuwa
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