Justice S. Sriskandarajah Memorial Oration

Delivered

by

Mr. N. Selvakkumaran

Senior Lecturer in Public Law Faculty of Law

University of Colombo

on

“Role of the Judiciary in the Public Law of Sri

Lanka : Random Thoughts”

February 2015 Colombo

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THE JUSTICE S. SRISKANDARAJAH MEMORIAL ORATION

BY

N. Selvakkumaran Senior Lecturer in Public Law

Faculty of Law University of Colombo

on

“Role of the Judiciary in the Public Law of Sri Lanka: Random Thoughts”

Preliminary

I consider it an honour and privilege to have been invited by the family members of the late

Justice S. Sriskandarajah, former President of the Court of Appeal of the Republic of Sri Lanka

to deliver the Inaugural Oration in his memory. I have very high regard and respect for the late

Justice Sriskandarajah not due to my personal acquaintance with him but due to his

professional rectitude and fearlessness, even at a time when the odds were unjustifiably

stacked against him for standing up for what is right and required of him professionally. His

unwavering commitment and steadfast conviction to uphold the independence of the

Judiciary cost him not only his professional progress but also his peace & tranquility and

perhaps ultimately his life.

One of my friends who was also a colleague of Justice Sriskandarajah informs me that he was

impressed by the professional conduct, courage and quality displayed by Justice

Sriskandarajah during their professional association. There were times, I was told, when

Justice Sriskandarajah would comment objectively on the draft judgments written by his

colleague and express his views very forthrightly and candidly. He is not a Judge who would

just accept what a senior Judge says or writes. However, my friend also hastened to add that

when things were discussed in detail and explained to him, and if he found that the views

carried merit, he was ever ready to learn from others; at the same time, my friend accepts that

he too had changed his stance after listening to the comments of Justice Sriskandarajah. In

short, it was evident that Justice Sriskandarajah was not at all overawed by positions held by

others but acted according to what he felt just and legal in every case that he handled.

With those prefatory words about the person on whose memory this Oration is being

delivered, let me turn to the subject of this Oration, viz., my random thoughts on the Role of

the Judiciary in the Public Law of Sri Lanka.

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Before I turn to my subject matter, I would wish to enter a caveat and place on record that my

analysis of the issues is essentially one emanating from the perspectives of a teacher of Public

Law and that it may at times impinge on the political discourse in the country.

Part I - Introduction

The field of Public Law encompasses many areas of actions and inactions of States, State

Organs, Institutions, and Authorities as well as Individuals. In popular parlance, it covers

subjects or matters that are generally treated under Public International Law, Constitutional

Law, Administrative Law, Criminal Law, Human Rights Law, to name a few. My random

thoughts on the Public Law of Sri Lanka relate mainly to those areas which relate to the

powers and functions of the Legislature, Executive and Judiciary vis-à-vis the citizens of this

country. These could be said to represent broadly Constitutional and Administrative Law.

Being the organic law providing for and overseeing the institutions of governance – their

powers, duties and functions along with their liabilities, immunities and their relationship to

one another and to the citizens and people of a country, Constitutional and Administrative

Law encapsulates principles and norms which are critically important and vital to ensuring

constitutional democracy and the rule of law in the country. Sri Lanka is not an exception to

this phenomenon. The growth and development of Constitutional and Administrative Law in

the country, however has suffered some severe blows and bruises as well as crises and

catastrophes in the recent past. Vibrancy and vigour with which this area should have grown

and developed for a true and functional democracy to flourish were sadly lacking in the recent

past. While many of these tragedies are man-made, some of them are systemic due to

structural constructs in the organic law. However, I hasten to add that there were and are

many individuals and institutions which had been and have been campaigning and fighting for

enthroning and reinstating the rule of law and constitutional democracy in the country amidst

terrible and frightful adversities and personal losses of great magnitude and indelible

memories. One of them was the former President of the Court of Appeal on whose behalf this

Memorial Oration takes place.

Many are the significant democratic foundational principles and norms that provide building

blocks towards constitution making for a functional democracy. These are extremely vital to

ensure a structural edifice that will establish, sustain, promote and operate a stable and secure

framework paving the way for a healthy and robust functional democracy. The Constitution of

a State is a living and dynamic instrument capable of facing up to emerging changes that are

inevitable in the passage of life; the functionality of a Constitution, therefore, cannot be

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inflexibly static! Change is a phenomenon which cannot be avoided in life, but the institution

of change itself is perpetual.

One cannot fail to recognize the need, in designing and making a Constitution, to strike an

acceptable balance between rigidity of Constitutional structures and flexibility of

Constitutional interpretation. This is of vital importance if a Constitution were to endure real

and functional democracy upholding the rule of law and fundamental rights and liberties of

the people. In this respect, the Judiciary plays a pivotal role in sustaining and promoting

democratic governance in the country.

Except for a few ‘mature’ democracies, Constitutions of countries are formulated to suit the

interests of a particular group or party. Generally, it is taken as an exercise to serve the present

and future interests of the party in power. The ruling party which spearheads the Constitution

making exercise tries to formulate the structure and flesh of the Constitution to suit its long-

term interests, though the real purpose is smoke-screened through various representations /

metaphors and manipulations or rhetoric notions. At least, in the Sri Lankan context the 1st

and 2nd Republican Constitutions enacted in 1972 and 1978 respectively were products of the

party in power devoid of substantial consensus from other parties in the Assemblies. Well

established principles and norms of Constitutional Law and Political Science, such as

principles of Constitutionalism, Supremacy of the Constitution, Rule of Law, Separation of

Powers, Independence of the Judiciary, Good Governance, did not inform the enactment of

these Republican Constitutions. However, the 17th Amendment to the 2nd Republican

Constitution was an exception to this practice!

Constitutions must be formulated, amended and refined, to uphold democratic values and

principles if they are to permit the people of a country to enjoy freedoms and liberties. It

should enable them to be able to live and let others live peacefully. Constitutions, therefore,

are to prescribe the roles of different institutions to ensure the practice and functioning of

vibrant democracy in a country. The different organs that are established to govern the

country are devised with the purpose of serving the people while safeguarding the interests of

the nation. The rights, freedoms and liberties of individuals shall be permitted to be enjoyed

by the people except where such enjoyment may cause prejudice or harm to the country as a

whole or other people. The persons who operate the instrumentalities of government do not

enjoy power for their own sake but for the purpose of enabling the people to develop

themselves and develop the country by their judicious and rightful actions.

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Part II – Public Power and Public Trust

This is the reason why it is held that powers entrusted to public authorities in a Republic are

not given to them for their own benefit or for the benefit of their siblings and friends. They are

given in trust to be exercised by them for the benefit of the public. They are the trustees of

public power to be used and exercised for the sole benefit of the people of the country who are

the beneficiaries. However, the reality has been different in recent times; when powers are

conferred on organs of the government, the persons – whether elected or appointed -

operating those organs exercise the powers not for the exclusive benefit of the people but for

their own benefit – at the people’s expense in a majority of cases.

It is this which has made the people to suffer in the hands of their representatives. The rights,

freedoms, liberties etc., of the people are infringed and compromised at the hands of the rulers

without any reasonable justification. It is startling to learn that the so-called representatives of

the people have tried unbelievable and disconcerting tricks to manipulate things for their own

benefit. In a majority of cases, the rulers have either considered the constitutional constructs

as amenable and pliable to their liking or they cared two hoots for the constitutionality of their

actions. One cannot deny that there have been some critical constitutional deficits which

facilitated this culture of thinking and functioning.

But more than these constitutional deficits, we witnessed, and are made to understand,

judicial deficits of serious proportions undermining the wellbeing of constitutional democracy

in the country! We have witnessed this several times in the recent past. To the horror of right

thinking persons, a pervasive and cancerous culture of impunity and an uncaring disregard for

the laws of the land have been destroying the cherished traditions and recognized safeguards

of constitutional democracy of this land in the recent past. The sad spectacle is that the

Judiciary did not, or rather did not want to, stand up against, and be resolute enough to check,

the unbridled and intemperate misuse and abuse of power by the Legislature and the

Executive, except for a few judges who made valiant attempts to uphold the rule of law and

constitutional governance. These judges, ably supported by committed and steadfast members

of the profession, were risking their future but still prepared to stand firmly wedded to solemn

constitutional principles.

It is the Judiciary which is looked upon by helpless and besieged people to stand up against

the power-wielders and to structure the exercise of their powers within the confines of

constitutional governance. They also expect the Judges to provide redress and relief from

repugnant and obnoxious conduct of the people’s representatives and appointed agents. In

this context the role of the Judiciary becomes critical not only to provide relief and redress to

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the people affected by governmental excesses and abuses but also, and more importantly, to

ensure the rule of law and democratic governance in the country. It is the Judiciary which is

commanded to exercise the judicial power of the People.

The judicial power of the People, being declared to be an integral element of the People’s

Sovereignty, stands equal to the other powers of government, viz., legislative and executive

powers. There is a mistaken and misplaced belief that the legislative power and the executive

power of the People stand on a higher pedestal than the judicial power. This is partly based on

the notion that since the wielders of legislative and executive powers are elected by the People

directly they enjoy superiority and legitimacy whereas the holders of judicial power lack

superiority and legitimacy as they do not obtain such acceptance by the People through

regularly conducted elections.

Such a perception would have attracted some recognition under the government where the

doctrine of Sovereignty of Parliament held sway, for example, in the United Kingdom. But this

is not the case in Sri Lanka now. The makers of the 1978 Constitution were very clear and

direct. They declared that in the Republic of Sri Lanka sovereignty is in the People and is

inalienable. According to its provisions, the Sovereignty of the People includes the powers of

government, fundamental rights and the franchise. The powers of government are further

listed to represent the legislative power of the People, the executive power of the People and

the judicial power of the People.

From this it is recognized by the makers of the Constitution, that all these three powers, viz.,

legislative, executive and judicial, do refer to, along with fundamental rights and the franchise,

the composite concept of the Sovereignty of the People. Therefore, it is not correct and

constitutional to recognize that the legislative and executive powers of the People derive a

superior status due to the operators of those powers being elected by the People and the

judicial power of the People does not derive such a superior status as the Judges who, in effect

and for all intents and purposes, exercise the power do not get elected by the People. The

mistaken notion is evident in some speeches and pronouncements of elected representatives;

but this should not wrongly blind the judges with regard to the long-term vision and

farsightedness laid bare in the Preamble to the Constitution which the Judges are committed

to defend and uphold.

In fact, one could convincingly and forcefully argue that, on a purposive construction of the

provisions of the Constitution, the judicial power, by its very nature, should be critical in the

proper enjoyment of the elements of Sovereignty of the People. Because the judicial power

enables those who exercise it to adjudicate on the extent and scope of legislative and executive

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powers as well as on the validity of actions or inactions of those who exercise those powers.

And it is the judicial power that ensures the proper enjoyment of fundamental rights and the

franchise of the People if those are threatened or infringed.

One may not fail to recognize that there is truth in the assertion that the representatives of the

People who face electoral competitions tend to be ‘unacceptably emotional’ and ‘hastily

reactive’ when it comes to exercising their powers as they faced very hard-fought elections. So

much so, there is a possibility that their decisions may be irrational, emotional and at times

reprehensible. It is essential that the Judiciary consisting of professionally qualified and

experienced people should look at and decide issues and claims in a calm and collected

manner within the framework of democratic governance. Hence the Judges are expected to

play a very laudable and noble task of holding the scale of justice between the power wielders

and power providers.

Part III- Public Law, 18th Amendment & the Judiciary

Has the Judiciary in Sri Lanka discharged this function in a satisfactory manner?

Development of Public Law in Sri Lanka has a history of ups and downs. Let us consider some

of the ‘high profile’ cases which demonstrate the above issue. Being conscious of the adage

that ‘one swallow does not a summer make’ some of the recent rulings of the courts have failed

to maintain and uphold the delicate balance between the organs of the government which

balance has to be sustained to ensure that constitutional democracy and the rule of law would

continue to be upheld in the country. An elected Government, I mean here the Executive

and/or the Legislature, can be enormously popular at a given point of time; they can

command an uncritical and impulsive public support due to some reasons or factors. This

phenomenon, however, should not be deemed as a licence to dislocate or disrupt the

mechanics of governance in order to convert a constitutional democracy into a constitutional

dictatorship.

While the people are expected to be vigilant over how their representatives act and react, it is

also the bounden responsibility of the Judiciary in the country to construe the provisions of

the Constitution in order to remind the limits of the different organs of the government with

regard to the exercise of their authority. When the Judiciary, for one reason or the other, fails

to keep vigil over this matter, the delicate balance that should be maintained may be tilted to

the detriment of the People and of their Sovereignty! That may also irreversibly and adversely

endanger the institution of democracy in the country.

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Let us look at the way the Public Law of this country got shaped in the recent past! Perhaps the

defeat of terrorism made the rulers of the country to think that they could do anything that

they liked! The elimination of war was not made into an opportunity to enthrone the rule of

law which was sagging and slumping in the country; instead, almost all the pillars tried to be

erected by the 17th Amendment to the Constitution to promote and further principles of good

governance, and thereby responsible and responsive democratic government in the country

were dismantled with indecent haste. The victory at the war and the resultant euphoria were

manipulated deviously and artfully to achieve the end of dismantling safeguards and creating

an almost impregnable Office which could control almost all the organs of the government and

the people; in the process, the spirit and purport of the Constitution was also subjected to

unwarranted and unhealthy ruination and impairment.

In the end, it was not the LTTE alone which was eliminated from this soil! But, along with it,

the safeguards which were put in place by the 17th Amendment to weed out the unsatisfactory

elements which were sucking the bulwark of democracy and liberty in the country were also

neutralized and made ineffective. To the contrary, the 18th Amendment enacted with

incredible speed introduced features which facilitated the over-centralization of powers in the

hands of one individual, devoid of effective answerability, to the detriment of democracy!

The sad and distressing spectacle in this respect is the role played by the highest Court in the

country. The 18th Amendment to the Constitution Bill was referred to the Supreme Court as

‘urgent in the national interest’ under Article 122 of the Constitution. The primary purposes of

the proposed amendment, amongst others, were – i) to remove the Constitutional bar placed

on a person who was elected twice to the Presidency of the country from seeking further terms

as President, and ii) to remove the limitation structured into the unlimited and absolute power

enjoyed by the President in appointing and removing persons to specific Commissions and

‘high’ Offices. These Commissions and Offices are deemed to be of such importance to

promote good governance and the rule of law in the country that they are, and they do appear

to be, free from ‘party political’ influences and pressures of the party in power.

In the first place, it was unfortunate that the Five Judge Bench of the Supreme Court did not

reflect on the question whether it was constitutional and legitimate to entertain the Bill under

Article 122 as an urgent Bill in the national interest. The Bill was accompanied by an

endorsement made by the Secretary to the Cabinet of Ministers to the effect that in the view of

the Cabinet the Bill was urgent in the national interest. Although a mechanical reading of the

provision would have permitted the Court to entertain the Bill, such a reading was not what

was expected of the highest Court in the country. The Court should have displayed much more

care with regard to its overall responsibility and duty of ensuring that the provisions of the

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Constitution were not misused or abused by the Executive and the Legislature. Being

entrusted with the sole and exclusive jurisdiction with regard to the interpretation of the

Constitution, the Supreme Court should have demonstrated critical care and judicious

attention as to whether the government of the day was entitled to use, or rather misuse, the

provisions of Article 122 to bring forth the 18th Amendment Bill before the Court.

An objective evaluation of the main purposes that were to be achieved by the Bill would have

shown clearly that there was no urgency in the national interest to bring the Bill with such

haste sabotaging the normal time period allowed for people’s participation and judicial

reflection and determination. One would argue that the normal time period permitted under

the Constitution for judicial pre-view of the ordinary Bills is in itself inadequate; it would be

woefully inadequate when the Bill is proposed to be an Amendment to the Constitution!

When the 18th Amendment Bill was presented to the Supreme Court under Article 122 of the

Constitution in the purported premise that it was urgent in the national interest, the then

President-elect in 2010 had not completed even his first term which commenced in November

2005; and his 2nd term had not commenced yet; it was to commence in November 2010 -

three full moons after the presentation of the Bill. Where was the national urgency for speedily

removing the ban on the number of times a person could be the President of this country? One

might justifiably wonder, or suspect, whether it was in the national interest or in the then

President’s interest to remove the ban! It might have been argued sometimes that national

interest lay in the people not being denied the right to elect a person as their President for

more than two terms. However, only two persons were available at that time in this category;

they are the then incumbent President and the then immediate past President.

Even if the above contention was considered a justifiable one, for the sake of argument, there

was no shred of evidence to demonstrate the requirement of urgency which this Bill warranted

for the invocation of Article 122. When the Bill was brought before the Supreme Court in

August 2010, the earliest time for the conduct of Presidential Election could only have been

after November 2014– that is four long years after the Bill was presented. Where was the so

called urgency in such situation? A façade of an endorsement by the Secretary to the Cabinet

of Ministers which flew in the face of reality could not have provided the conditions precedent

for invoking the jurisdiction of the Supreme Court under Article 122 validly and justifiably.

Similarly, one of the other purposes of the Bill was to change the method of appointment of

persons as Chairman and Members of specific Commissions and as Officers. In this respect,

what the 17th Amendment did was to structure the exercise of Presidential discretionary power

with regard to these appointments. Here again, the then President had ignored and

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disregarded the then operative provisions of the 17th Amendment and went ahead, at his sole

discretion, appointing persons to these Commissions and Posts. In respect of one

Commission, viz., the Elections Commission, he did not constitute it and did not appoint the

Chairman and Members to it for about five years. This Commission was not constituted under

the earlier regime as well, though the Constitutional Council recommended names for

appointment. The President who came to office in November 2005 did not constitute the

Constitutional Council under the 17th Amendment. He permitted the Council to go into

oblivion. He acted in disregard or in violation of the provisions of the Constitution for almost

five long years and during this period did appoint persons as Chairman and Members to the

specified Commissions and as Officers. It is not in the order of things for the Court to

entertain and hear the claim from such a Government that the issue of appointment of

persons as to these Commissions and Posts was ‘urgent’.

It is my considered opinion that the Supreme Court should not have entertained the Bill for its

consideration under Article 122. It should have sent a clear message to the Executive Branch

of the government that the Executive did not have the prerogative to abuse the process of the

Court or to usurp the provisions of the Constitution as it liked.

With regard to the questions of constitutionality of the provisions of the 18th Amendment Bill,

it should be noted that it was the prime responsibility of the Supreme Court to be eternally

vigilant and cautious in construing them. The Court was duty bound to uphold the Sovereignty

of the People, which included fundamental rights and the franchise amongst others. The Court

should have paid considerable attention to those provisions in order to ensure that the

provisions in the 18th Amendment did not provide space and occasion to anyone to abuse the

provisions in a way that would compromise on the principles and norms of democracy as well

as human rights and liberties of citizens. Even the existence of a mere possibility of facilitating

a tendency to undermine these principles should have alerted the Court. This is all the more

important for two reasons.

Firstly, the Court knew that its jurisdiction to subject Acts and Amendments to the

Constitution passed by Parliament to judicial review had been expressly removed under the

Constitution, and that it did not enjoy post-enactment review of Parliamentary Acts and

Amendments. Once such an Amendment to the Constitution or an Act was enacted it was not

possible for a citizen to challenge the validity of the provisions of the Act. The Court itself

would be helpless. Some of the acts and omissions of the Executive branch of the government,

after the enactment of the 18th Amendment, provide support to the contention that the

Amendment did not conform to the letter and spirit of the Constitution; nor did it promote

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good governance. It neither encouraged accountability nor promoted answerability on the part

of the Executive.

Secondly, it was also well known that the Presidential actions and omissions qua Presidency

could not be challenged in courts as Article 35 (1) provides an absolute immunity to the

President from any proceedings; so the courts have held! It is my considered opinion that

some of the judgments need not have construed Article 35 (1) in such a sweeping and broad

manner. Be that as it may, the existing legal position is that the President enjoys unmitigated

immunity from law suits with regard to all his official and private actions, done as the

President while he holds office. Given that context, therefore, the Court should have realized

that permitting broad and unstructured power to the President will make it impossible for

citizens to obtain redress from the Courts for any violations of democratic norms and

principles, which are very clearly pronounced in the Constitution through its Preamble. These

could include actions which derail the Rule of Law in the country. Perhaps this is one reason

why we have witnessed the misfortune of partial implementation or no implementation of the

provisions of the 17th Amendment and 13th Amendment to the Constitution. It is an indictment

on the Rule of Law of the country to witness the non-implementation of some provisions of

the Constitution.

With regard to the use of the Preamble of the Constitution, it is refreshing to note that a

Three-Judge Bench of the Supreme Court drew inspiration and support from the Preamble in

arriving at its Order in a Case of Reference under Article 125 of the Constitution. This

Reference was made by the Court of Appeal in pursuance of a writ application filed against the

Members of the Parliamentary Select Committee which was constituted by the Hon. Speaker

to investigate and report on allegations of misbehavior and incapacity levelled against the

former Chief Justice of the country.

Part IV – Impeachment of Chief Justice & the Judiciary

I will now turn my attention to the judicial responses with regard to the Impeachment saga

which was a very bizarre and weird chapter in the constitutional and judicial history of this

country. It is not my intention to deal with the facts of the case in detail. However, I would

evaluate some of the principles and reasoning underpinning the decisions made by the Courts

surrounding the issue.

The 43rd Chief Justice who was the subject of a resolution for impeachment in Parliament

sought the writ of certiorari to quash the findings of the Parliamentary Select Committee. This

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Committee investigated the allegations of misconduct and incapacity contained in the motion

presented to the Speaker in terms of Article 107 (2) of the Constitution. The Court of Appeal

issued an interim Order stating that any steps taken in furtherance of the findings contained

in the report of the Select Committee would be void if the Court were to issue the writ after

hearing the application. The Court indicated to the relevant authorities to desist from acting in

derogation of the rights of the Petitioner until the application was heard and concluded.

Sometime before the above application, several writ applications were filed in the Court of

Appeal seeking the Court to issue the writ of prohibition against the members of the

Parliamentary Select Committee from investigating into the allegations of misbehavior or

incapacity alleged against the 43rd Chief Justice. The Court of Appeal referred, in terms of

Article 125, a question relating to the interpretation of Article 107 (3) of the Constitution to the

Supreme Court. The Supreme Court considered the submissions of the Attorney-General,

Learned Counsel for the Petitioners and for the Intervenient Petitioner Respondents.

Having analyzed those submissions, various judgments and legal principles, the Supreme

Court answered the question referred to it in the following way: “It is mandatory under Article

107 (3) of the Constitution for the Parliament to provide by law the matters relating to the

forum before which the allegations are to be proved, the mode of proof, burden of proof and

the standard of proof of any alleged misbehavior or incapacity and the Judge’s right to appear

and to be heard in person or by representative in addition to matters relating to the

investigation of the alleged misbehavior or incapacity.”

The reasoning of the Supreme Court can be gathered from the following passages of the Order

–

“In a State ruled by a Constitution based on the rule of law, no court, tribunal or other

body (by whatever name it is called) has authority to make a finding or a decision

affecting the rights of a person unless such court, tribunal or body has the power

conferred on it by law to make such finding or decision. Such legal power can be

conferred on such court, tribunal or body only by an Act of Parliament which is “law”

and not by Standing Orders which are not law but are rules made for the regulation of

the orderly conduct and the affairs of the Parliament. The Standing Orders are not

law within the meaning of Article 170 of the Constitution which defines what is meant

by “law”.

A Parliamentary Select Committee appointed in terms of Standing Order 78A derives

its power and authority solely from the said Standing Order which is not law.

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Therefore a Select Committee appointed under and in terms of Standing Order 78A

has no legal power or authority to make a finding adversely affecting the legal rights of

a Judge against whom the allegations made in the resolution moved under proviso to

Article 107 (2), is the subject matter of its investigation. The power to make a valid

finding, after the investigation contemplated in Article 107 (3), can be conferred on a

court, tribunal or a body, only by law and law alone.”

The Order and the reasoning underpinning the Order of the Supreme Court are consistent

with the spirit and intent of the Constitution. The Preamble to the Constitution assures to all

people the Independence of the Judiciary, amongst others, as the intangible heritage that

guarantees the dignity and well-being of succeeding generations of the People of Sri Lanka.

The phrase ‘Independence of the Judiciary’ appears, as a sub-title, immediately before Article

107 of the Constitution. In the circumstance, it is not only sound and constitutional but also

desirable as well as demanded according to the rules of constitutional interpretation, that the

forum to investigate and report on allegations of misbehavior or incapacity of judges of the

superior courts, and matters connected with the conduct of the investigation are provided for

by a law of Parliament. Furthermore, the members of the body of investigation shall preferably

consist of persons from outside the Parliament to accord with the rules of natural justice. It

would not inspire confidence in the minds of the people if a few Members of Parliament

constitute the Investigative body and report its finding to the Parliament which then passes

the resolution into an Address.

Furthermore, there is no provision which expressly or by necessary implication prohibits or

precludes the Supreme Court from holding that it is a law passed by Parliament which should

prescribe the body for conducting the investigation and matters connected with the mode of

proof, burden of proof, standard of proof of any alleged misbehavior or incapacity of judges of

the superior courts. For, the persons subjected to investigation under Article 107 are the Chief

Justice and Judges of the Supreme Court as well as the President and Judges of the Court of

Appeal. They occupy a very high position in one of the Organs of the Government and do

exercise the judicial power of the People. They, by virtue of their office, do and should enjoy a

high degree of independence and insulation from the Executive and the Legislature.

The above premise is further buttressed by an express provision in the Constitution relating to

any potential interference with the judiciary. In terms of Article 111C (1), every judge shall

exercise and perform his or her powers and functions without being subject to any direction or

other interference proceeding from any other person except a superior court, tribunal,

institution or other person entitled under law to direct or supervise such judge. It is evident

that any institution or person who claims to be entitled to interfere with the exercise and

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performance of powers and functions of a judge should demonstrate that the authority to

interfere comes from a law; nothing short of a law would be consistent with this specific

constitutional prescription! This Constitutional provision expressly secures the independence

of the judges and the Judiciary. It is to be noted that some of the allegations levelled against

the 43rd Chief Justice related to her official duties.

There is yet another express provision which makes it necessary to have a law if Parliament

were to exercise the judicial power of the People with regard to matters relating to the powers

of Parliament and of its Members. Article 4 (c) declares that “the judicial power of the People

shall be exercised by Parliament through courts, tribunals and institutions created and

established, or recognised, by the Constitution, or created and established by law, except in

regard to matters relating to the privileges, immunities and powers of Parliament and its

Members, wherein the judicial power of the People may be exercised directly by Parliament

according to law”. [emphasis added]

In light of the above express provisions in the Constitution, the Supreme Court was not acting

unconstitutionally or beyond its constitutional duty when it held that the authority to conduct

the investigation could not come from a Standing Order which is not a law, but from a law and

law alone.

Referring to the Order of the Supreme Court in the above case, the Court of Appeal issued the

writ of certiorari quashing the report/finding/decision of the Select Committee on the basis

that it had no legal validity because the Select Committee appointed under Standing Order

78A has no legal power or authority to make a finding affecting the legal rights of the judge.

The Court also reasoned that “the Constitution in Articles 80 (3), 81 and 124 expressly oust the

jurisdiction of courts. If the legislature had intended that the jurisdiction of the court should

be ousted under Article 107 of the Constitution to impeach judges, it ought to have specifically

provided for such an eventuality. As such, in my opinion, the Legislature has clearly placed no

such obstacle either directly or by necessary implication in the way of entertaining the present

application.”

The Parliament disregarded the responses of the Courts and went ahead with purportedly

‘impeaching’ the 43rd Chief Justice. Notwithstanding the impeachment and the President’s

purported removal of the 43rd Chief Justice, the then Attorney-General, who was not a party to

the case in the Court of Appeal but was a friend invited by the Court to assist it as amicus

curiae, obtained from the Supreme Court, Special Leave to Appeal against the judgment of the

Court of Appeal which judgment, by then, had become of academic interest virtually as the

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Parliament did not pay heed to the judgment of the Court of Appeal nor did it or the then

President stop the course of action that commenced!

A Divisional Bench of the Supreme Court consisting of Five Judges heard the appeal preferred

by the amicus curiae turned ‘Petitioner-Appellant’ and two of the twelve Respondent-

Respondents while the Petitioner-Respondent was absent and unrepresented. The Supreme

Court granted special leave to appeal on two substantive questions of law to the following

effect, viz., i) does the writ jurisdiction of the Court of Appeal extend to proceedings of

Parliament or a Committee of Parliament?; and ii) do the words “any Court of first instance or

tribunal or other institution or any other person” in Article 140 extend to the Parliament or a

Committee of Parliament? In other words, are i) proceedings of Parliament or a Committee of

Parliament, and/or, ii) Parliament or a Committee of Parliament amenable to the writ

jurisdiction of the Court of Appeal?

Considering the question whether Parliament or a Committee of Parliament is amenable to the

writ jurisdiction of the Court of Appeal, the Supreme Court traced the origins of the writs to

the English common law and how it came to be recognised in this country. Adverting to and

analyzing many English law authorities and many of the Sri Lankan cases of pre-1978 vintage,

the Supreme Court expressed the view that the court, tribunal, institution or person

mentioned in Article 140 can only refer to any courts, tribunals, institutions and persons

which are inferior in status to the Court of Appeal. Reflecting on the issue whether the Court

of Appeal had the jurisdiction to issue the writ of certiorari to Parliament or a Select

Committee of Parliament, the Supreme Court turned its attention on examining (a) whether

Parliament and in particular, a Select Committee of Parliament is inferior to the Court of

Appeal, and (b) whether the powers, privileges and immunities of Parliament would preclude

the grant of such a remedy.

Tracing the autochthonous nature of the Constitution and referring to Articles 1, 2, 3 and 4 of

the Constitution, the Supreme Court adverted to a couple of passages from the Determination

of a Bench of Seven Judges of the Supreme Court in Re the Nineteenth Amendment to the

Constitution [2002] to underscore the point that the 1978 Constitution enshrines the doctrine

of separation of powers. Having said so, the Supreme Court went on to state, a number of

times in the judgment, that the legislative power of the People is vested in Parliament, the

executive power of the People is vested on the President and that the judicial power of the

People is vested in Parliament to be exercised through the courts, etc.

In this respect, the Supreme Court claims that “Article 4 (a) is carefully worded to vest in

Parliament, consisting of elected representatives of the People, the legislative power of the

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People which it can directly exercise, that is to say, to the exclusion of the legislative power of

the People that has to be exercised by the People at a Referendum in terms of the

Constitution.” It further observes that “according to Article 4 (c) of the Constitution, the

judicial power of the People is vested in Parliament to be exercised through the courts,

tribunals and institutions as specified therein, except in regard to matters relating to the

privileges, immunities and powers of Parliament and of its Members, which may be exercised

directly by Parliament according to law.” It also says that “Article 4 (b) vests the executive

power of the People directly on the President, who too is elected by the People.”

It is my respectful view that a careful reading of the relevant provisions of the Constitution

does not warrant some of the assumptions spelt out by the Supreme Court with regard to the

constitutional arrangements. For instance, Article 3 of the Constitution recognizes and

declares that in the Republic of Sri Lanka sovereignty is in the People and is inalienable. It

further states that sovereignty includes the powers of government, fundamental rights and the

franchise. Therefore, the legislative power, the executive power and the judicial power are

recognised to be in the People and are inalienable. If those powers are inalienable, they cannot

be vested in Parliament and the President. On the contrary, Article 4 in paragraph (a) provides

that the legislative power of the People shall be exercised or is exercisable by Parliament and

by the People at a Referendum; in terms of paragraph (b) the executive power of the People

shall be exercised or is exercisable by the President; and according to paragraph (c) the

judicial power of the People shall, subject to some exception, be exercised or is exercisable by

Parliament through courts, tribunals etc.

Yet another position which has to be realized is that the judicial power of the People, except

with respect to privileges, immunities and powers of Parliament and its members, shall be

exercised by Parliament through the courts and tribunals established by the Constitution or

other laws only. With regard to matters other than privileges, immunities and powers of

Parliament and its Members, the judicial power of the People cannot be exercised by

Parliament directly; it has to be by courts, tribunals etc. Therefore, it is the courts, tribunals

etc., which in reality exercise the judicial power of the People, save with regard to a limited

aspect, viz. the powers, privileges and immunities of Parliament and its Members.

This apart, one finds that although Article 4 (b) states that the executive power of the People

shall be exercised by the President, in terms of Article 43, which comes under Chapter VIII of

the Constitution and titled ‘THE EXECUTIVE’, it is the Cabinet of Ministers which is charged

with the direction and control of the Government of Sri Lanka and the Cabinet shall be

collectively responsible and answerable to Parliament. The direction and control of the

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Government of Sri Lanka is a key aspect of the executive power of the People. This clearly

demonstrates that Article 4 is not a vesting clause; it is an authorizing or enabling clause.

Having referred to the constitutional arrangement of the governmental powers and the issues

of accountability and transparency, the Supreme Court observed that this was no different

from the constitutional structure that exists in England. With due respect, this is not borne out

from a comparison between the two systems. While the British Parliament enjoys ‘legislative

supremacy’, though this is being doubted of late, the Sri Lankan Parliament does not enjoy the

same. With regard to this, the position under the 1978 Constitution is that the Constitution

binds Parliament and the latter does not enjoy the capacity to make laws on certain subject

matters without the support of the People at a Referendum. Similarly, where Parliament

rejects an ordinary Bill, it is possible for the People at a Referendum to make it into a law.

These clearly demonstrate that the Parliament under the 1978 Constitution does not enjoy

legislative supremacy as it is enjoyed by the British Parliament.

With regard to the question whether Parliament or its Select Committee is amenable to the

writ jurisdiction of the Court of Appeal, the Supreme Court held that there is no doubt that

Parliament including its select committees could not be regarded as inferior to our Court of

Appeal and therefore they are not amenable to its writ jurisdiction. The Supreme Court did

not expressly state the reasons for holding that the select committees of Parliament could not

be regarded as inferior to the Court of Appeal. While it could be argued that Parliament could

not be regarded as inferior to the Court of Appeal when it comes to the legislative function of

the People as the powers are derived directly from the Constitution itself as how the Court of

Appeal derived its writ jurisdiction directly from the Constitution itself. However, Select

Committees of Parliament do not derive their authority from the Constitution directly; they

get their authority from Standing Orders made by Parliament under an enabling provision of

the Constitution. This distinction and consequently its effect on the status of the Select

Committee were not addressed by the Supreme Court. Instead both Parliament and Select

Committees were put together, without subjecting the issue to a critical analysis, and it was

held that both are not inferior to the Court of Appeal.

It is respectfully submitted that the Select Committee of Parliament need not have been

considered to be equal in status to the Court of Appeal, in particular when they are not

exercising legislative function. In this instance, the nature of the function was not legislative!

It is my humble view that the Supreme Court should have considered the critical issues at play

and the importance and necessity of ensuring the independence of the Judiciary and its

Judges. When such is at stake, it is critically and judiciously important that the institutions

which claim exclusion from the Court’s jurisdiction should establish their claim through an

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express and unequivocal provision in the Constitution; such claim for exclusion should be

strictly construed because it is the independence of the judiciary that is at stake and with it the

trust and confidence which the People repose on the Judiciary.

In this respect, a comparison with the position of the President who is also elected directly by

the People of the country, would be illustrative. Under Article 35 (1), it is the actions of the

President qua Presidency which are immune from any suit. But any acts of the President

performed in the capacity of a Minister of the Cabinet holding a portfolio are not immune

from the writ jurisdiction of the Court. If the President does not enjoy immunity from suits for

acts done by him in the capacity of a Minister, one does not see any reason why a Select

Committee performing a non-legislative function be exempt from the writ jurisdiction of the

Court.

Having disposed of the 2nd issue on which the special leave to appeal was granted in the above

manner, the Supreme Court turned to the 1st issue, viz., whether the writ jurisdiction of the

Court of Appeal extended to proceedings of Parliament or a Committee of Parliament when it

performed its constitutional function under Article 107 (2) and (3) of the Constitution and

Order 87A of the Standing Orders of Parliament. After an elaborate survey of the mechanisms

for the removal of a Judge of the Superior Courts that existed under the previous and present

Constitutions and having analyzed the arguments presented by the learned counsel for both

sides, the Supreme Court opined that the power of removal of the judges of the superior court

and the President of the Republic has to be exercised by one organ of State in concurrence

with one or more governmental organ or organs,’ and that this ‘feature constitutes a system

of checks and balances which is essential for the preservation of the Rule of Law’.

Analyzing the scope of Article 107 (3), the Supreme Court concluded that the words “by law or

by Standing Orders” found in the provision clearly conferred discretion on Parliament to

decide whether the matters required to be provided for by that Article should be provided for

by law or by Standing Orders. In the process, the Five Judge Bench of the Supreme Court held

that the earlier Determination of the Three Judge Bench of the same Court in the Referral

under Article 125 had the effect of deleting or rendering nugatory the words “of by Standing

Orders” found in Article 107 (3) of the Constitution. It further stated that the earlier

Determination did not offer any acceptable reasons for ignoring basic provisions of the

Constitution, except for the observation that “no court, tribunal or other body (by whatever

name it is called) has authority to make a finding or a decision affecting the rights of a person

unless such, tribunal or body has the power conferred on it by law to make such finding or

decision.” The Supreme Court held that it had no authority, whether express or implied, to

take away from Parliament a discretion expressly conferred on it by the Constitution itself.

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Holding the previous Determination of the Three Judge Bench as a blatant distortion of the

law, and was altogether erroneous, the Supreme Court overruled the said Determination.

It is respectfully submitted that the views expressed by the Five Judge Bench of the Supreme

Court on the Determination of the earlier Three Judge Bench were somewhat misplaced and

exacting. The earlier Court came to the conclusion after a detailed process of careful analysis

of the relevant constitutional provisions found in the Soulbury Constitution, the 1972

Constitution and the 1978 Constitution relating to the removal of judges of the superior courts.

The Bench also quoted extensively dicta from the separate judgment of Sharvananda J (as he

then was) in a Full Bench of Nine Judges of the Supreme Court delivered in 1983 as well as

from the Determination of the Seven Judge Bench in the case of In Re the Nineteenth

Amendment to the Constitution decided in 2002. Further the Determination critically

analyzed the scope of Article 107 (3) and the Standing Order 78A.

Having quoted these dicta, the Three Judge Bench of the Supreme Court held that it was

necessary, in deciding the question of interpretation referred to the Court by the Court of

Appeal, to consider the exact nature of the investigation contemplated by Article 107 (3). The

Court went on to demonstrate that the findings from the investigation were indispensable

legal basis for an Address by Parliament seeking the removal of an impugned Judge by the

President of the country. Thus the Court held that the finding that the allegations have been

proved is a finding that adversely affects the constitutional right of a Judge to hold office

during good behaviour. The Court also itemized separately, in terms of Article 107 (3), the

matters which are to be provided by law or by Standing Orders.

The Supreme Court displayed the gravity of the matters relating to investigation and proof of

the alleged misbehavior or incapacity on the constitutionally protected right of a judge of the

superior courts. It held that those matters have to be provided for by law and not by Standing

Orders because it is the law which can confer power on a court, tribunal or body that can make

findings adversely affecting the constitutionally protected rights of the superior court judges.

The Court also explained why the Constitution had used the words ‘by law or by Standing

Orders’ and justified their reasoning by having recourse to the presumption that Parliament

would not use words in vain or unnecessarily.

The main thrust of the Determination of the Three Judge Bench was that the independence of

the judiciary is one attribute of the intangible heritage that guarantees the dignity and well-

being of the people of Sri Lanka and consequently if any constitutionally recognised right of

the judges of the superior court were to be affected, it could be done through a law passed by

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Parliament and not by a Standing Order, which, though made by Parliament, is not a law

passed by Parliament.

In the circumstance, it is my considered opinion and humble submission that when the Three

Judge Bench construed paragraph (3) of Article 107 of the Constitution to the effect that all

matters relating to the investigation, such as the procedure, the proof and the right of an

impugned judge to appear and to be heard, etc., must be provided for by law passed by

Parliament not by Standing Orders of Parliament, it was not doing violence to the language of

Article 107 (3); nor was it taking away a discretion from Parliament. It is submitted that what

Article 107 (3) does it to locate the authority – a duty not discretion - to provide for the

matters referred to in the provision, with Parliament. In this instance, Parliament is permitted

to use the form of law not the instrument of standing orders to provide for those matters. In

the view of the Court, it is incumbent on Parliament to distinguish appropriately the different

matters for the proper use of law and for the proper use of standing orders, taking relevant

matters into consideration. It is also an accepted principle of constitutional interpretation that

where two interpretations are possible the one which respects and accords with the rights of

people must be preferred and adopted. In the circumstance, it is my respectful submission

that the Court had not defied the constitutional mandate that the legislative power of the

People shall be exercised by Parliament by the Court holding that those matters must be

provided for by a law of Parliament. To the contrary one could legitimately argue that by such

decision the opportunity for Parliament to exercise the legislative power of the People was

enhanced not flouted.

Part V – Parliamentary Powers & Privileges and the Judiciary

The Five Judge Bench of the Supreme Court surveyed the origins and development of the

concept of Parliamentary powers and privileges from the English Bill of Rights of 1689 to the

Sri Lankan Parliament (Powers and Privileges) Act of 1953 in particular its section 3 which

provides that there shall be freedom of speech, debate and proceedings in Parliament and that

such freedom of speech, debate or proceedings shall not be liable to be impeached or

questioned in any court or place out of Parliament. The Court also analyzed some relevant

English cases and dealt with arguments of the learned counsel.

In this respect, having adverted to the fact that there is no definition of the term “proceedings

in Parliament” though there had been narrower and wider meaning to those words, the Five

Judge Bench observed that the appeal before the Court did not relate to all what transpired

before the Parliamentary Select Committee; it was the issue that the appointment by the

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Speaker of the House of Parliament of the said Committee was invalid and that in

consequence the Select Committee was not properly constituted. The Supreme Court also

recognized that it was the only justification offered by the Court of Appeal for quashing the

report of the said Committee. Further the Court was also invited to consider whether Section 3

of the Parliament (Powers and Privileges) Act amounted to a constitutional ouster of the writ

jurisdiction of the Court of Appeal by reason of Article 67 which is as follows:

“The privileges, immunities and powers of Parliament and of its Members may be

determined and regulated by Parliament by law and until so determined and regulated,

the provisions of the Parliament (Powers and Privileges) Act, shall, mutatis mutandis,

apply.”

The Supreme Court observed that Article 67 of the Constitution incorporated into that article

mutatis mutandis all the provisions of the Parliament (Powers and Privileges) Act and that

the effect of such incorporation by reference was to write into that article the provisions of the

Act as if they were part of the Constitution. By this process of reasoning, the Court held further

that section 3 of the Parliament (Powers and Privileges) Act read with Articles 4 (c) and 67 of

the Constitution would have the effect of ousting the writ jurisdiction of the Court of Appeal in

all the circumstances of the case.

There arise two concerns in this respect. One is was there an issue of freedom of speech,

debate or proceedings in Parliament impeached in the case before the Court of Appeal? Can

the act of constituting a purported Select Committee under an invalid Standing Order be held

to fall within the phrase ‘speech, debate or proceedings in Parliament? This was not

considered by the Court. If this issue is considered objectively, the applicability of the

provisions, in particular section 3, of the Parliament (Powers and Privileges) Act would not

have arisen.

The other concern relates to the purported incorporation of the provisions of the Act into

Article 67. Here the attention of the Court did not focus on the Latin phrase mutatis mutandis

which finds a place in the Article. This phrase is defined to mean “with the necessary changes

having been made.” Therefore it is not the entire provisions of the Act which had been

incorporated by reference. When the said Act was enacted Ceylon, as it was then known, was

not a Democratic Socialist Republic; the Soulbury Constitution presented, with some

modifications, a system of government modelled on the British type of Westminster Cabinet

Government. It did not spell that Sovereignty is in the People and that the Sovereignty of the

People included the legislative power of the People, the executive power of the People and the

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judicial power of the People. It is true that it protected the then Parliament and its Members

from impeachment for speech, debate or proceedings in Parliament.

However, the introduction of a Democratic Socialist Republic had changed many things

fundamentally. For example, the Constitution provides for a chapter on fundamental rights

guaranteed to the people of this country; it also provides for ensuring the independence of the

judiciary. These new features have brought about changes in the way the powers and

privileges of the Members of Parliament are to be looked at. As it is expressly provided, the

provisions of the then enacted Parliament (Powers and Privileges) Act should be incorporated

only if they are not inconsistent with the provisions of the Constitution and to their true spirit

and intent. My respectful submission is that those provisions cannot be held, by reference

only, to have been incorporated into the Constitution so as to oust one of the important

jurisdictions expressly conferred on the Court of Appeal of the country.

Part VI – Conclusion

If the Public Law of this country were to be developed into a vibrant branch of law helping

people to enjoy the Rule of Law and democratic norms, the superior courts have a lot of

responsibility on their shoulders. It is no doubt that the people must be ever vigilant to protect

their own rights; but they can do that only through lawful means. Ultimately they can

approach the courts for their protection and demand for the Rule of Law in the country.

It is not my plea that the Courts should make laws; that is for the legislature to do, I accept.

However, there is enough and more space within the scope of constitutional and statutory

interpretation for the Courts to legitimately set down and follow healthy principles of

constitutional democracy respecting the principles of the Rule of Law and Constitutionalism.

I am glad to note that a similar sentiment was expressed by Your Lordship the Chief Justice

recently when Your Lordship addressed those present at the Ceremonial Sitting of the

Supreme Court to welcome Your Lordships. Your Lordship noted that “It is for the judiciary to

uphold the constitutional values and to enforce constitutional limitations. The fundamental

right to move this Court can, therefore, be appropriately described as the corner-stone of the

democratic edifice raised by the Constitution.”

This country has seen some judgments of constitutional creativity and inspiration. They have

set new norms such as the doctrine of public trust in the exercise of public power as well as

very resourceful and broad construction of the constitutional provision relating to the

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fundamental right to equality. They are shining examples of the capacity of our Judiciary to

function in a positive and creative way to keep the powers that be within the remit prescribed

by the legal and constitutional parameters. I hope fervently that this tradition will be followed!

That will be the best honour we will be paying to the memory of Justice S. Sriskandarajah.

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