9 March 2024 12:00 am Views - 665
For instance, in spite of the battle between the executive on behalf of the two ruling parties and the Election Commission backed by the Opposition parties over the local government elections having been dragging on for more than a year, the two ruling parties – the United National Party (UNP) and the Sri Lanka Podujana Peramuna (SLPP) can boast to have the “mission accomplished.”
Although the Opposition political parties, particularly the main Opposition in Parliament, the Samagi Jana Balawegaya (SJB) and the National People’s Power (NPP), a coalition of politically interested groups led by the Janatha Vimukthi Peramuna (JVP) had been vigorously opposing the government’s efforts to postpone the LG elections when the Elections Commission announced the polls early last year, their interest now seems to have faded away.
This can be attributed to the long delay in hearing of the petitions they had filed against the government’s efforts to make the polls a non-event and a discourse about the Presidential election taking precedence over the LG elections.
Election process
The two ruling parties, especially the UNP wanted to scuttle the election process and postpone them to a date as late as possible. They after so many sabotaging tactics succeeded to achieve it by not releasing funds to the Election Commission for the elections, citing the economic crisis. Their repeated other tactics to prevent the LG polls before the fund issue cropped up vividly showed that funding was just a ruse.
The important point here is that the Supreme Court had ordered the Secretary to the Finance Ministry on March 3 last year not to withhold the funds for the LG election allocated from the 2023 budget. When he failed to comply with the court order several petitions were filed against him citing contempt of court. The Ministry Secretary then submitted in the court that he had conveyed the court order to his minister, the finance minister who is also the President. Apparently, that was the end of it.
The legal immunity of the President protects him from any action against any omission or commission by him, unless his actions are challenged by a Fundamental Rights petition against the Attorney General, under Article 126 of the Constitution. When the Secretary to the Finance Ministry passed the buck to the President nobody attempted to use that Article, and the matter was closed. All these factors have contributed to the purpose of the two ruling parties being fulfilled. However, what is important here is how a Supreme Court order was simply nullified by the Executive.
Several Fundamental Rights petitions against not holding the LG elections and a Writ petition by a retired Army officer against the moves to hold the said elections are still pending. Yet, they are not deemed as urgent matters as the cases against former President Maithripala Sirisena for sacking Ranil Wickremesinghe from the office of the Prime
Minister and for dissolving the Parliament before the period stipulated by the Constitution in 2018.
Online Safety Bill
The executive has bulldozed through the law to pass the highly controversial Online Safety Bill as well. Forty five petitions were filed against the Bill in the Supreme Court when it was presented in Parliament last September. Almost all petitioners were in agreement that the Bill would infringe the freedom of expression.
The Supreme Court had concluded its hearings on the Bill on October 19 and conveyed its judgment to the Speaker on November 7 where it ordered 31 sections of the Bill be passed in Parliament by a special majority, that is two thirds majority or more. The Court also ruled the Bill could be passed by a simple majority if those 31 sections are amended as instructed by it.
When the government presented an amended Bill, the Opposition cried foul claiming that some of the amendments that were recommended by the court were missing. Nevertheless, the Bill was passed in Parliament on January 23 this year. The Opposition parties requested the Speaker not to give his assent to the Bill as the court order has not been fully complied with. Speaker ignored the plea and granted his assent on February 1.
Then Ilankai Thamil Arasu Katchi Parliamentarian M.A.Sumanthiran challenged the Speaker’s action in a Fundamental Rights petition before the Supreme Court on February 14, but the Court refused leave to proceed with his petition on February 29 not on the basis of merit but on the ground that the court has no jurisdiction to intervene into legislative matters.
Judicial review
Sumanthiran might have expected this, since he as a Constitutional lawyer should have known this point and a similar petition by former Chief Justice Sarath N.Silva against the procedure followed when the Provincial Council Election (Amendment) had been met with the same fate in 2017, on the same ground.
There is no procedure or law in Sri Lanka for judicial review of Acts after their enactment in Parliament. Opposition’s contention that some of the amendments recommended by the Supreme Court had not been included in the enacted Online Safety Bill is being vindicated by the government’s announcement after the Bill was passed that the Act would again be amended.
The fact of the matter is the executive that is really behind the enactment of a law, even in the future, can bypass the recommendations of the highest court of the country, using court’s inability to intervene in the legislative matters.
There are two aspects in the post-enactment judicial review of Acts. On one hand, it would prevent the unlawful enactment of laws by the government, while on the other, an Opposition would be able to prevent an Act being implemented at a particular time using the judicial review process. Yet, the way the Online Safety Bill and the Provincial Council Election (Amendment) Bill were passed demands such a review.
Although the Constitutional Council (CC) which is brought in through the 17th, 19th and 21st Amendments to the Constitution to bridle the powers of the executive President has also come under attack now. When President Ranil Wickremesinghe, ignoring the collective opinion by the CC extended the term of the former Inspector General Of Police (IGP) C.D.Wickramarathne for the third time, in October last year, Speaker Mahinda Yapa Abeywardena who is the head of the CC was at a loss. When an MP questioned him was it the CC or the President that was “correct,” he interestingly said both were correct.
Similarly, a bizarre situation had arisen, according to the Opposition Leader Sajith Premadasa when the Speaker used his vote at the CC favouring the President’s recommendation to appoint Deshabandu Thennakoon as the new IGP on February 26. Premadasa who is also a member of the CC accused the Speaker for using his decisive vote when there was no tie, as required by the Constitution, between the members of the CC who voted for and against the appointment. He claimed that four members voted for the President’s recommendation and two opposed while another two had abstained. Again, the Executive prevailed. The Opposition just criticized the Speaker but did not resort to legal action.
However, the President acted differently in the matter of appointing Appeal Court President Nissanka Bandula Karunaratne to the Supreme Court, when the CC rejected his recommendation. He did not bulldoze through the CC process. However, a Fundamental Rights petition has been filed by a lawyer in the Supreme Court seeking an order directing the CC to approve the President’s recommendation. All in All, these incidents prompt us to reevaluate the CC process and its validity.