LawAsia observers visit Sri Lanka: SL judiciary praised for conduct, independence and tolerance

2018-12-10

s Sri Lanka awaits another historic judgement to be given by the Supreme Court on President Sirisena’s move to dissolve Parliament, the Sri Lankan judiciary is being praised for its independence. While respecting its initial interim order withdrawing duties of the purported Prime Minister and his cabinet of Ministers, Sri Lankan citizens have once again vested hopes on this pillar of the Constitution. In order to observe the Supreme Court proceedings on the hearing of petitions against dissolution of Parliament, a high profile delegation representing LawAsia visited Sri Lanka recently. Speaking to the Daily Mirror, Christopher Leong, President of LawAsia and Prashant Kumar, Immediate Past President of LawAsia expressed their observations on conduct, tolerance and patience displayed during the hearings.

The commendations

The visit of the delegation was coordinated by former President of the Bar Association of Sri Lanka (BASL) Upul Jayasuriya. He said that the delegation is carrying out a neutral observation and their remit is to see how the rule of law is being upheld here. “The judicial process here is transparent and all parties are allowed to have their say before the court. This is our primary remit and how the court decides on an issue and the sole power is on the Court in a sovereign country,” Upul said giving a background to the purpose of their visit.

“In coming for this observation team, I have had the opportunity to read through the relevant parts of the Constitution of Sri Lanka,” Christopher said referring to the Constitution. “From what we have observed the relevant provisions involve Articles 43, 62 and 70. One of the things we are very confident in saying is that having read through articles and in terms of language, I think Sri Lanka is very fortunate in that the language used in the Constitution is very crisp and clear. It is unambiguous and that would lend an easy and natural interpretation. Having attended hearings, we have also observed that the SC bench that is hearing this matter is very engaged with the issues involved as well as the arguments. They have exhibited judicial temperance and patience hearing this matter.”

“The observations that we have is that the SC Judges are very careful to give the counsel sufficient time to develop and make their submissions,” he continued.“I suppose that is because of the gravity of issues that are involved. The SC judges have endurance and most importantly the members of the SC bench asked questions and clarifications. I think the SC acted expeditiously and they have given priority to these proceedings.”

In his comments, Kumar said that these are tricky Constitutional issues and that the courts have to go in depth. “They have to involve all stakeholders and parties who are present before it. It is not uncommon that the hearing gets prolonged and it takes many days. In India, we challenged the Judicial Appointments Commission and the hearing went on for 45 days. Therefore the determination has to be thorough and all aspects of the Constitution need to be argued before the Judges.”
Jayasuriya further said that in this situation there were ten intervening parties which is a healthy sign where the SC has allowed every one of those parties to be heard.

Maintaining integrity of the Constitution

“The Constitution established in Sri Lanka is a republic and in all republican Constitutions, every power vested in any authority is solely exercisable for furthering the objectives of the Constitution,” Kumar added. “The judiciary is made the final arbiter and the custodian of the Constitution. That is what is before the SC and the SC has this dispute which is to be analysed from the structure of the Constitution and the effort has to be to maintain the integrity of the Constitutional design of the government which has been established. So judiciaries across the region have been very robust especially in India in exercising their powers as custodians of the Constitution. Primarily this is the issue before the SC which is to see how the Constitutional scheme is to be given its meaning in the light of surrounding circumstances; which action will destroy the spirit or undermine the Constitution or which action will further the Constitutional design and objective. This is the trend in modern Constitutions and judiciaries.”

Jayasuriya also added that everyone including the President, Judges of SC, Presidents Counsel and attorneys-at-law have all taken an oath to defend the Constitution. “So when we are supposed to defend the Constitution that doesn’t mean we have a right to violate the Constitution. When in doubt the only authority that can interpret the Constitution best is the SC.”

When asked whether such attempts to dissolve Parliament have been made in other Asian countries or anywhere in the world, Kumar said that there have been similar instances in India at the Provincial level. “There has been an instance where the governor of the state dissolved the assembly and the SC of India went to the extent of restoring the assembly, setting aside the dissolution. This has happened in Arunachal Pradesh and several other states. In India it has been consistently interpreted that the final arbiter of the majority, who form the government is neither the President nor the governor but it is the floor of the house and a test held on the floor of the house.”

Justifying confidence

“The other observation was on the vote of No-Confidence that was taken in Parliament,” Leong added. “As a general rule and a Constitutional provision, the Parliament is always the master of its own house. In this instance, a vote was taken by Parliament to make a determination within the aghast house as to who is reposed with the confidence of the majority of members. That vote was taken twice. As to the manner that vote has to be taken, the Parliament, as the master of its own house could determine the way it could take the vote. It could be taken by a show of hands, a voice vote or by electronic means. But it is the Parliament that determines how it will be taken and the results will be announced by the Speaker. Once the speaker announces the result it is final. Apparently the vote of No-Confidence was taken twice and it was carried by a majority. On both occasions over 120 voted in favour of the vote and matter has been taken to courts by 122 members of parliament.”

"One of the things we are very confident in saying is that having read through articles and in terms of language, I think Sri Lanka is very fortunate in that the language used in the Constitution is very crisp and clear"

Leong also referred to an example in Malaysia. “There’s an interesting precedence in Malaysia where the King, who is the head of state decided that in order to ascertain who would get majority confidence you are not merely confined to having a vote of Confidence or No-Confidence in Parliament. “You can ascertain that from other means if available. In Malaysia, the head of state gathered the members of the state assembly and asked them to affirm their support for which candidate the

majority confidence was reposed. That went to courts, was challenged in court and our apex court decided that it was a valid ascertainment to get the majority view as to whom the Parliament reposed confidence in. Hence, it will be interesting how Sri Lankan judiciary would view this action.”

What would be the answer?

“If an answer is not found to the dissolution then the President can continue this process,” Kumar added. “In fact he will continue until he finds the voter party and majority which he thinks should form the government. So let the new government come and the majority is not to be tested on the floor of the house so that you can dissolve it. Therefore, does the Constitutional scheme suggest that the President has an absolute power and if the election is the solution that he can filter the democracy in a way until he gets the juice he wants? With the series of events that had taken place, one question that needs to be asked is what way to go. If you take one view that the courts cannot intervene and the President has the absolute power to dissolve Parliament then this opens up a possibility which would bring down the entire foundation of a republican Constitution. Then there’s no use of an election. It substitutes democracy with a presidential fiat. This is a question before the courts; not just what happens today but it is the entire future of the republic. That is in the hands of the lordships. Whether the country is going to go ahead with what it has preserved for 70 years is the question that is before Courts.”