Thoughts On Constitutional Crisis In Sri Lanka
Upul Jayasuriya PC
Constitution in which ever the part of the world, I don’t think would be in a crisis. After all it’s a piece of paper. It is those who seek to interpret and enforce or seek shelter under the constitution that will be in a crisis.
Let me Quote from Dr BR Ambedkar the Chairman of the Constitutional drafting committee also known as the father of the Indian Constitution. “However good a constitution may be, if those who implement the constitution are not good it will prove to be bad, however bad a constitution may be if those who implement the constitution are good it will prove to be good.”
Sri Lankan Republican Constitution was drafted and promulgated in 1948 was better known as the Soulbury Constitution. This was replaced by the 1972 Republican Constitution removing the allegiance to the queen of England. That was pioneered by Dr Colvin R De Silva one of the greatest legal luminaries Sri Lanka produced during the time of Mrs Bandaranaike. Thereafter 1978 Constitution was promulgated by President JR Jayawardena. Those who pioneered the 1978 Constitution were Mark Fernando, HW Jayawardena QC and Lilith Athulathmudali who was later assassinated by the LTTE. One could say that was the creation of a monstrous Executive Presidency which had wide powers even to dissolve the government after one year of the forming of the government after an election. This was how President Chandrika Kumaratunga dissolved Parliament after three years of the election in 2004. Only exception to that rule was if there was an impeachment entertained in the order book then there could no dissolution until such time the same is voted.
19th Amendment
Since 1978, it has had 19 amendments……..! Of the amendments most pivotal was the 19th amendment. It had many salient features. One of its major hallmark was the limitation of the powers vested with the Executive President. This amendment was voted for by all parties including the group led by The deposed President Mahinda Rajapaksa. It was historical. The bill was presented by the President himself. It was voted for by 223 members of Parliament out of 225 the total number of MPs. Up to this moments many successive Presidents vowed to Remove or reduce the Executive powers, no meaningful action had been taken by Executive or the Parliament except of course the 19thamendment that came to be tested in the recent past.
It was a sincere effort taken in the right direction. The President’s name will be emboldened in the history having reduced his own presidential term from 6 years for which he was mandated by the people in 2015 to 5 years. That was an unparalleled effort and step taken to democratize the governance, with all humility by President Maithripala Sirisena. The prerogative that was enjoyed by all the Presidents arbitrarily, in appointing the judges to the superior courts, namely the Court of Appeal and the Supreme Court. With the 19thamendment the said arbitrary power that was once vested with the President was transferred to the Constitutional council represented by all parties and 3 eminent members of the civil society.
During the tenure of Chandrika Kumaratunga and Mahinda Rajapaksa presidential prerogative of appointing judges who were unsuitable to hold the coveted position in the apex court was abused in desecrating the temple of Justice.
I as the President of the Bar Association of Sri Lanka between 2013-2015, whilst addressing the Ceremonial Sittings of several judges tore apart the appointing process and the will of the executive, hell bent to thrust a subservient and a dependent judiciary. When my good friend Mohan Peries was appointed after illegally removing Shirani Bandaranayake as the Chief Justice, Sri Lankan Bar represented by the Bar Association of Sri Lanka headed by me refused to recognize Mohan Peries as the Chief Justice. He was my good friend. My son was understudying Mohan Pieries’s wife. That was of no concern. I defied the personal relationships and I invited Dr Shiranee Bandaranayake who has been illegally restrained from functioning as the CJ, to my customary convocation upon my accepting duties as the President of the Bar Association of Sri Lanka ignoring the de-facto Chief Justice Mohan Peries in 2013. When I did that that there was hell broke loose…..
With so much of frustration set in, I had to steer the BASL on thin ice with caution. On one hand there was a draconian government of Rajapaksa with killer instinct and on the other, a judiciary holding pujas to the executive and hell bent to suck up the government. I took the risk and decided to discharge my duties my way,….. come what may…… I was vocal in courts and outside courts. My criticism and tong lashing was painful to some and welcomed by those who stood by the principles.
In one of my speeches at a ceremonial sitting of the Supreme Court I had this to say. This was in reference to a judge called Sri Skandaraja President of the Court of Appeal who was overlooked 5 times in his due promotion to the Supreme Court simply because he held, in a divisional bench that removal of Chief Justice Dr Shirani Bandaranayake was illegal. He was a heart broken man and died as the President Court of Appeal with the burst of a blood vessel.
