DHARSHAN WEERASEKERA

In a series of articles, as time permits, I shall discuss some of the idiocies in the present Sri Lanka constitution, because, as far as I’m aware, what little there is of discussion on constitutional matters in the media at present is entirely focused on the purported need to reform the executive presidency, the electoral system, and devolution.  In my view, if Sri Lanka is to have genuine constitutional reform, there are a host of other problems to address, which I suspect will not even be touched on in the new constitution.

The purpose of this series of articles is to briefly point out some of those problems, so that members of the public can at least ask for more time to reflect on and discus these issues, before being forced to vote ‘yes’ or ‘no’ on the new constitution at a referendum.  In this article, I focus on Articles 4(c) and 80(3).

Article 4(c)

Article 4(c) deals with judicial power, and says inter alia:

‘The Judicial Power of the People shall be exercised by Parliament through courts, tribunals and other institutions created and established, or recognized, by the Constitution, or created and established by law.’

It should be noted that, the above provision says that judicial power is to be exercised ‘by Parliament through courts’ which taken literally implies that judicial power is vested in Parliament, and the courts are the instruments or tools by which Parliament exercises the power in question.

Does the provision put Parliament above the purview of the courts?’  I’m afraid it does, and our courts have held that it does also.  The latest ruling in this regard is the one that overturned the ruling of the Court of Appeal on whether a Parliamentary Select Committee was amenable to Writs, re the impeachment of Chief Justice Shirani Bandaranaike.  The court says, inter alia:

‘It is significant that the legislative, executive and judicial powers of the People is vested either with Parliament or the President, both elected by the People, so as to maintain accountability and transparency, and the courts and like tribunals and institutions which are not elected by the People, are accountable and responsible to the People through Parliament….I conclude that, in light of the constitutional arrangements contained in  Article 4 and other provisions of our constitution, there is no room for doubt that Parliament including its select committees cannot be regarded as inferior to our Court of Appeal, when it exercises its writ jurisdiction conferred by Article 140 of the constitution, and would therefore not be amenable to such jurisdiction’ (SC/Appeal No, 67/2013, pg. 18)

The point is that, the status quo at the moment is that actions of the Parliament are beyond the purview of the courts.  Obviously, this situation would not have arisen, or at any rate much confusion not to mention waste of time of the courts would have been prevented, if those two words ‘by Parliament’ did not appear in Article 4(c).

What will happen if those two words are deleted from Article 4(c)?  Will that in any way diminish Parliament’s capacity to create or establish courts by law, in order to meet the ends of justice? Clearly, ‘No.’

Will those two words be deleted in the new constitution, and judicial power vested, say, directly in the Supreme Court or some other court recognized under the constitution itself?’  In my view, ‘No.’  Why?  Because, such a thing will make it possible for the courts to hold the politicians in Parliament accountable if and when they act as it they were a law unto themselves, and obviously, that is not in the interests of the politicians.

Article 80(3)

Article 80(3) is as follows:

‘Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.’

The above means that, once a law is passed, people have absolutely no way of challenging it in the courts, even if the law in question turns out to be unjust and oppressive later on.  What’s wrong with this situation?  I shall point out two things that are wrong with it, and they stem from my experiences in filing Special Determination cases (i.e. cases where members of the public challenge Bills prior to enactment.)

Under our constitution, before a Bill becomes law, it has to go through two steps.  It has to be first placed in the gazette, at least seven days before it is placed on the Order Paper of Parliament.  Once it is placed on the Order Paper, members of the public have two weeks within which to challenge it before the Supreme Court.

Generally speaking, it is difficult for members of the public to keep track of what Bills are coming up, unless they make it a point to read the gazette regularly.  But, supposing that there is a member of the public who does this, I’m afraid the Government has found a way to befuddle even such a person, as follows.

As I mentioned above, the rule is that the Bill has to be published in the gazette at least seven days before it is placed in the Order Paper.  But, there is no time limit for the Government to place the Bill in the Order Paper.  So, on controversial Bills, which the Government knows will be challenged, the Government takes as much time as it wants, and then all of a sudden places the Bill in the Order Paper.  (The recent Office of Missing Persons Bill is a good example.)

So, unless members of the public read every single Order Paper, they never know when the Bill has been placed there. And even if they do, it’s at the last moment, and they don’t have enough time to prepare a challenge.

Second, suppose that a person in the outstations—say, in Anuradhapura, Moneragala, or Badulla—wants to challenge a Bill.  The only way they can do it is to come to Colombo, or retain a lawyer in Colombo, to file the action.  Not many members of the public have the time or the money to do this.

In short, the idea of giving the public an opportunity to challenge Bills is a complete sham.  It is not at all a substitute for the right to seek post-enactment review, i.e. the right of members of the public in most other countries, to challenge laws after they are passed (and to challenge them starting in the lower courts, which are easier for them to access), if and when those laws become distasteful inconvenient, or oppressive.

Is there even a remote chance that this obnoxious provision—Article 80(3)—will be changed in the new constitution?  In my view, none at all.  Why?  Because, to empower people to challenge laws after they are passed means giving average citizens more control over what goes on inside Parliament, and that is not in the interests of the politicians.

And so, just like Article 4(c), Article 80(3) will also continue in the new constitution.  Will there be a squeak of protest about any of this from the professional punditry when the draft is tabled in Parliament, or during the ‘debate’ that will precede the referendum?  I bet, ‘No.’

Dharshan Weerasekera is an Attorney-at-Law.  His latest book, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka, will be in bookstores shortly.