Is the judiciary playing its role as an independent body in this new political atmosphere?

Recently, the Commonwealth Lawyers Association organised a Webinar titled ‘Solidarity with Sri Lanka- rule of law imperiled?’ with a panel of two expert speakers from Sri Lanka and two commentators from India and Pakistan. It sought to discuss the situation pertaining to the rule of law in Sri Lanka and draw parallels with the experience of India and Pakistan. The speakers were of the view that the rule of law was in jeopardy in Sri Lanka. 

“Rule of law is in peril”- Dr. Deepika Udagama

Stating that the rule of law situation in the country was in peril, Dr Deepika Udagama, the former chair of the Human Rights Commission, argued that rather than promoting the rule of law in a very solid manner the constitutional developments themselves contributed to the erosion of the rule of law.  She pointed towards a stark paradox in constitutional development in post-independent Sri Lanka. “We had the Soulbury Constitution and the two Republican Constitutions of 1972 and 1978. You see provisions that better guarantee human rights over the three constitutions. However, running parallel we have provisions which have eroded checks and balances and separation of powers, and hence the rule of law,” Dr. Udagama said.

“In the Soulbury Constitution there was no bill of rights, but there was a very strong provision on protecting communities from discrimination. The 1972 Constitution saw a bill of rights, but there was no constitutional remedy for violations. The 1978 Constitution saw a Bill of Rights which was accompanied by a constitutional remedy for violations. On the other hand, you see this constitutional development being accompanied by an array of provisions which undermine democratic institutions. It culminated in the 1978 Constitution with the introduction of the all-powerful presidency which was a deathblow to checks and balances and the rule of law.  The Constitution that best guaranteed checks and balances was interestingly the Soulbury Constitution. The first Republican Constitution (1972) in the guise of promoting national pride entrenched the sovereignty of Parliament. There is nothing wrong with that. But what happened was that the guarantees that accompany that form of government were not there. So you had a very weakened Judicial Services Commission which was highly politicized, a very weakened public service commission which saw the public service being politicized, which did not permit the required checks and balances, and we saw an erosion of the rule of law.” She added. 

Dr. Udagama further commented on the executive presidency under the 1978 Constitution. “It concentrated all powers in the executive Presidency. All appointments to the higher judiciary and other important appointments including the appointment of the Attorney-General were made by the President almost unilaterally. So you see a further deterioration of checks and balances and the rule of law,” she said. 

"I got excellent commissioners who were committed to human rights, who represented the diverse communities. This added to our strength" - Dr. Deepika Udagama

SPORADIC VIOLENCE 

She also pointed out that the period witnessed an escalation of violence in the country. “There were several cycles of violence beginning in 1971 where we saw a major insurrection in the South and a second insurrection in the South in 1987/88. This was against the Indo-Sri Lanka accord that was signed between India and Sri Lanka ostensibly to address the ethnic issue in Sri Lanka. Then there were extremely serious very violent ethnic riots targeting the Tamil community in 1983. The same year saw the beginning of a three decade long civil war in the North and East,” she said. 

“When the war concluded in 2009, many of us thought that it was the end of physical violence in the country. This was not a positive peace. It was a negative peace because the tensions were very much there, but the gunshots were silent. In 2014 we saw sporadic attacks against the Muslim community, especially the burning of commercial establishments of the Muslim community. In 2019 we saw the devastating Easter Sunday attack against very peaceful Catholics who were in their churches praying, and the retaliatory violent measures against the Muslim community. All these cycles of violence were accompanied by devastating human rights violations such as enforced disappearances, torture, long term imprisonment, extra judicial executions,” she said.

EMERGENCY RULE 

Commenting on how successive governments governing the country under the emergency rule impacted the country she said: “The law of the exception became the norm. This has left a lasting legacy. It has impacted not only the political life of the country but also the everyday life of the average citizen. The current political culture is very animated by this national security paradigm. Even during the Good Governance government, we did see this national security orientation raising its head from time to time.”

She further pointed out that the enactment of the Prevention of Terrorism Act in 1979 had very devastating consequences for human rights protection in the country. “Some of us see the irony of it and call it the Promotion of Terrorism Act because its provisions are so harsh, that when you brutalize a community you pave the way for further radicalization and violence,” she said.

IMPUNITY 

Asserting that impunity has become a way of life she said: “One dark thread that runs through this entire period is impunity. It is very much part of our political culture and our legal culture. During the previous government which saw a lot of reforms on human rights and democratization, impunity continued because none of the emblematic human rights cases saw a conclusion. They are still pending before courts. The Presidential Commission of Inquiry has recommended that those indicted in very serious cases be freed. A year ago one of the convicts in the Mirusuvil case, an army officer, who was convicted of killing five civilians including a five year old child was given a presidential pardon and released. This was despite a three judge bench finding him guilty and the Supreme Court unanimously affirming the conviction.” 

"Under the 17th A the first Constitutional Council functioned fairly well. But the second Constitutional Council was never appointed" - Dr. Jayampathy Wickramaratne

CONSTITUTIONAL REFORMS

Dr. Udagama expressed the need for democratic constitutional reforms which entrench constitutionalism. “We need to ensure that institutions are strengthened. Over the years institutions including the judiciary have been weakened. There have been times when the judiciary has delivered magnificently but it’s never constant. It depends on the government of the day,” she said. 

Commenting on the need for independent institutions she stressed that the fact that there was a Constitutional Council under the 19th Amendment to recommend appointments made  a difference.  “I got excellent commissioners who were committed to human rights, who represented the diverse communities. This added to our strength. Today you have a Human Rights Commission which is directly appointed by the President under the 20th Amendment. There isn’t a member representing the Muslim community. This is extremely problematic,” she said. 
“The Commissioner of the Presidential Commission of Inquiry that recommended to let go of those accused in serious cases, has been appointed as the chair of the Office on Missing Persons. These are very serious issues,” she added. 

She further stressed on the role of civil society and asserted on the need to reclaim the space of civil society which has dwindled in the face of increased tensions and fear. 

“We are back to executive dominance”- Dr. Jayampathy Wickramaratne PC

Presidents Counsel Dr. Jayampathy Wickramaratne explained in depth the amendments made to the original 1978 Constitution and how it impacted on the rule of law. 
“We had a Parliamentary form of government until a Presidential form of government was introduced in 1978. Under the 1978 Constitution, the President was very powerful. He may dissolve Parliament at anytime after one year. The President appointed the Prime Minister, Ministers and Deputy Ministers and could remove them. He had near total immunity from suit. The President appointed judges of superior courts, the Attorney General, Ombudsman, members of the Public Service Commission, the Judicial Service Commission etc,” he said. 

17TH AMENDEMENT 

He pointed out that the powers of the President were restricted by the 17th Amendment of 2001. “A Constitutional Council was set up. It consisted of three members of Parliament (Prime Minister, Speaker and Leader of the Opposition) and seven were appointed from outside(One person appointed by the President, five nominated jointly by the Prime Minister and the Leader of the Opposition and three of them were to be from minority communities and 1 nominated by smaller parties in Parliament) This provided an opportunity for a potential national consensus on appointments which is very important for the rule of law,” he said. 

“The Constitutional Council’s approval was needed for the appointment of superior court judges, the Attorney General and the Inspector General of Police. Members of the independent commissions were appointed by the President but on the recommendation of the Constitutional Council,” he added. 
“Under the 17th Amendment the first Constitutional Council functioned fairly well. But the second Constitutional Council was never appointed. When the non-appointment was challenged in the Supreme Court, the SC stated that the issue cannot be taken up as the President had near total immunity,” he said. 

18TH AMENDMENT

The 18th Amendment was introduced by the then President Mahinda Rajapaksa after the defeat of the separatist LTTE. “Though he did not have a two thirds majority, he managed to entice a number of MPs from the Opposition to cross over for ministerial berths and other benefits. The Constitutional Council was replaced by a Parliamentary Council that would only make ‘observations’ on top appointments. They had no veto power. The original 1978 Constitution had a two-term limit for the President. That was abolished by the 18th Amendment. With the 18th Amendment, the Sri Lankan presidency became one of the strongest, if not the strongest in the democratic world. We were able to change that in 2015,” he said. 

19TH AMENDMENT 

“After the change of government in 2015, the 19th Amendment was passed at a time when the new government had only 44 members out of the 225. The President’s powers were greatly reduced. The term of the President and Parliament was reduced to 5 years and the President could not dissolve Parliament for four and a half years unless Parliament requested by a two thirds majority. The Cabinet was appointed by the President on the Prime Minister’s advice. The President’s power to remove the Prime Minister was deleted. Prime Minister could be removed only by Parliament by either passing a vote of no-confidence, defeating the budget or rejecting the statement of government policy. The Parliament was strengthened at the expense of the President of course,” he explained. 
He further pointed out how the amendment provided for the President’s official actions to be subjected to judicial review by the Supreme Court under the fundamental rights jurisdiction. “This was a very important achievement by the 19th Amendment,” he said.

“The Constitutional Council was restored, but with seven MPs and only three non-MPs (because the Opposition wanted the ration to be so.) Still it worked well. The appointments to the Supreme Court and the Court of Appeal had to be approved by the Constitutional Council. Several nominees of the President were rejected much to his disappointment. So there was independence. The Commission on Bribery and Corruption was given constitutional status. New Commissions were appointed such as the National Procurement Commission, the National Audit Commission,” he said. 

“Unfortunately there was a breakdown of relations between President Sirisena and Prime Minister Wickramasinghe which led to the latter’s ‘removal’ and appointment of Mahinda Rajapaksa as Prime Minister. It was expected that Ministers would cross over but this did not happen. The president then purported to dissolve Parliament. But this was reversed by the Supreme Court. The SC unanimously in a historic judgment declared the dissolution of Parliament unconstitutional and Mr. Wickramasinghe was re-appointed as Prime Minister,” he said. 

20TH AMENDMENT 

He proceeded to explain how the developments under the 19th Amendment were reversed by the 20th Amendment. “All these gains were reversed in 2019 with the election of Gotabaya Rajapaksa as the President and the appointment of Mahinda Rajapaksa as Prime Minister. At the 2020 Parliamentary elections they had a near two thirds majority. They were able to entice around eight- seven of which were from minority ethnic groups- which was very disappointing. All gains of the 19A were reversed except the two-term limit for the President and the right to information. The SC held that the restoration of Presidential immunity needs approval at a referendum and therefore the proposal was dropped. So we are back to executive dominance.”

THREATS TO RULE OF LAW

He stressed that the new political atmosphere was inimical to the independence of the judiciary and other institutions necessary for the rule of law. “There have been threats to the media and degradation of the environment with impunity. Smaller communities have come under severe pressure. We saw how burials of those who died of Covid-19 were banned and how cremation was made mandatory. Now thankfully it has been taken off. Civil Society groups are under pressure,” he said. 

He cited how the Presidential Commission on ‘political victimization’ of public officials has recommended the ‘acquittal and discharge’ of government politicians and supporters, including one whose conviction for a multiple murder was upheld by the Supreme Court. “A Special Presidential Commission which can recommend civic disabilities was appointed to inquire into opposition politicians and former officials who were members of an anti-corruption committee appointed by the 
Cabinet,” he said. 

“Undoing the effect of judicial actions by way of executive actions has never been tolerated”- Hemant K. Batra

Hemant K. Batra, who is the vice president of Saarclaw International commenting as a lawyer and a public policy expert from India, said, “There are three main issues that need to be addressed: The scope of the executive in the administration of criminal law, can a legislative or executive order overrule a judicial order/verdict and can criminal cases be tried by quasi-judicial bodies or special courts or commissions.”

“Our Code of Criminal Procedure empowers the government acting through the Public Prosecutors to withdraw a prosecution with the consent of the trial court at any time. It is an executive function of the Public Prosecutor for which statutory discretion is vested in him. However the discretion is neither absolute nor unreviewable. It is subject to judicial review.  Therefore, the withdrawal of prosecution should not be prompted by political considerations, or personal vendetta or completely irrelevant factors. A withdrawal can be made only based on legitimate grounds. In several instances courts in India have quashed discretionary actions taken by an authority on the ground that there was no material on record for taking the action that was taken. 

  
Speaking on whether a legislation on an executive order could interfere with the finality of a judicial order he said: “The legislature has carried out amendments in effect invalidating and nullifying pronouncements by the Supreme Court. In one of the cases, People’s Union for Civil Liberties v Union of India, the Supreme Court settled the principle of Constitutional jurisprudence that the only way to render ineffective a judicial decision is to enact a valid law by way of an amendment. The legislature cannot supersede the judgement of a court without lawfully removing the defect or infirmity pointed out by the court. Undoing the effect of judicial actions by way of executive actions has never been tolerated.”
“The Indian rule of law regime enables the legislature to make laws providing for the adjudication or trial by tribunals,” he added. 

“It is necessary to restore the rule of law” -Hamid Khan 

Hamid Khan, a senior advocate of the Supreme Court of Pakistan stated that the fears expressed by the two speakers in relation to Sri Lanka have been felt in Pakistan for a very long time. He emphasized on three concerns: “First, having a Parliament but meddling in Parliamentary affairs. Second is about how the executive is governing. Third is how the judiciary is playing its part in these circumstances. Is it independent enough to stop the excesses or is it helpless?” He also asserted on the necessity to restore the rule of law.