Parliament, Executive and Judiciary should act within their own powers: Parliament not answerable to Judiciary – Former CJ Sarath N. Silva
Posted on December 1st, 2012

Translated by K.D.M. Kittanpahuwa- Courtesy The Sunday Observer

Power rests with the people:

Former Chief Justice Sarath Nanda Silva expresses his views on the recent developments and his experiences:

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, “ƒ”¹…”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.

 

3 Responses to “Parliament, Executive and Judiciary should act within their own powers: Parliament not answerable to Judiciary – Former CJ Sarath N. Silva”

  1. Lorenzo Says:

    “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.”

    What a stupid thing to say!!

    They can’t KILL by becoming MPs. So they would never have entered parliament.

    They were living in BETTER luxury than parliamentarians that time.

    1977 JULY + 6 = 1983 JULY not 1984.

    Interesting if an election was held in July 1983.

  2. SenaD Says:

    Lorenzo,
    The new constitution was adopted in 1978 and the Prime Minister under the old system was deemed to be the President under the new constitution for a period of 6 years.

    What is more of an absurdity is that the MPs elected under the old system were deemed to have been elected for the new Parliament under the new system just by holding a referendum!

  3. Lorenzo Says:

    SenaD,

    Yes.

    Many problems there.

    JR’s govt. could NEVER have more than 125 seats from 1982 to 1989 had an election been held in 1982. They had 150+ seats because of the old system.

    If they had only 125 seats, they could never have done the stupid 13 amendment in 1987.

    Hopefully MR will not resort to that in 2016. May be he might saying JR did it.

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