Inability to go beyond constitutional amendments

Neil DIAS

The Constitution on Directive Principles of State Policy and Fundamental Duties lays down that “the State shall strengthen and broaden the economic structure of Government and the democratic rights of the people by decentralizing the administration and by affording all possible opportunities to the people to participate at every level in national life and in government.”

Broadening the economic structure of government and the democratic rights of the people has to go hand in hand with the decentralization of the administration. All this is aimed at actively facilitating the people’s participation in the periphery directly and at every level in the national life and government. It does not recognize ethnic or other boundaries and is really a challenge and a rallying cry and an invitation to go beyond the ethnic and other divisive forces in the country. All of this blends well and happily with the constitutionally declared unitary nature of the State and the sovereignty of the people.

The Constitution decrees that “the territory of Sri Lanka shall consist of 24 administrative districts, the names of which are set out in the First Schedule, and its territorial waters.”

High Court for each province

The Thirteenth Amendment to the Constitution with a view to decentralizing the administration of the judicial process and rearranging the jurisdictions of the judiciary established a High Court for each Province with original criminal jurisdiction and appellate and revisionary jurisdiction in respect of orders of the Magistrate’s Courts and Primary Courts within the Province. Disproving the theories that the legislation was hastily drafted it also provided for the exercise of such other jurisdiction and powers as the Parliament may by law provide.

It is this provision which subsequently enabled the drafting of the bold and groundbreaking legislation that set up the High Courts in the provinces empowering them to hear civil appeals from the orders of District Courts in the respective provinces. As a further safeguard this is to be a concurrent jurisdiction with that of the Appeal Court. This piece of legislation is a bold innovation in more senses than one but primarily in its defiance of the possible accusation of juristocracy and judicialization of politics and that the Supreme Court is becoming a third chamber and acting like a super legislature.

It was Justice Mark Fernando who previously ruled on the unentrenched nature of the provision in the Constitution establishing the Court of Appeal which enabled the transfer of the civil appellate jurisdiction of the Appeal Court to the High Court in the provinces by ordinary law. It is this policing of the Constitution by the Supreme Court that has fostered decentralization and democracy in the country. The other alternative would have been to allow political bosses to decree what the constitution means and allow it to grow without a judicial check!

Fostering democracy

Hence the Constitution, the supreme law of the land, guided by the Supreme Court, has proved to be an all inclusive document yet capable of expansion to meet the demands of the time, which if properly utilized, as it has been done by our Supreme Court, is capable of fostering democracy and achieving the aims and aspirations of the people.

The American legal theorist John Hart Ely sought to develop the argument that judicial interference and review is important because it leads to the promotion of democracy. The Constitution has certainly withstood the ravages of war and 30 years of intense conflict including the unreasonable and unaccountable ire of a past President who having sworn to defend and uphold it abused it in public during the whole of her period in office. This is unprecedented in the history of any country and points to an era when nothing of significance has been achieved in any sphere.

The Supreme Court on the other hand has consistently attempted to uphold and develop for the benefit of the people the aspects of the constitution which attempted to devolve power to the periphery while preserving the unitary nature of the State and the sovereignty of the people.

At its inception Chief Justice Sharvarnanda with three other judges agreeing while holding that devolution does not damage the basic unity and the sovereignty of the country decreed that “Decentralization is a useful means of ensuring that the administration of the provinces is founded on an understanding of the needs and wishes of the respective provinces.” Other devolution friendly rulings by the Supreme Court followed.

In 1996 Justice Dr A. R. B. Amerasinghe while stressing on the Constitutional provisions contained in the Directive Principles of State Policy and ruling on the exercise of the Governor’s discretion in dissolving a Provincial Council, pointed to the need to make way for the aspirations of the people in the provinces to have “substantial powers of government to be exercised at a level closer to the people.”

It is regrettable that the legislature has failed to keep pace with the Supreme Court in fostering the aspirations of the people in decentralizing and devolving power to the periphery as required by the Constitution. I hope that the people in their collective wisdom and without giving into ethnic and other prejudices will this time constitute a legislature which will have the wisdom to achieve these objectives. These measures really should have gone on hand in hand and with equal vigour as with the prosecution of the war. If properly and effectively pursued it would have led to the withering away of the cry for a separate State. If even a fraction of the vast energies spent on the deliberations of the All Party Conference were directed towards bringing in legislation in Parliament to correct these lapses the situation could vastly have been improved. We seek to here point to some of the glaring instances of these shortcomings in the sphere of the administration of justice.

Shortcomings

In terms of the Offensive Weapons Act people “charged with or accused of” (this in all instances include suspects) any offence under this Act cannot obtain bail except by the Appeal Court in Colombo.

This situation prevails since 1966 while all the cases in respect of these offences are being heard in the High Courts in the provinces. Appeals from convictions in criminal cases from the High Courts are still being heard in Colombo even after the civil appellate jurisdiction has been successfully transferred to the provinces.

In respect of a large range of violations of Fundamental Rights under the Constitution the people in the provinces have to come to the Supreme Court in Colombo.

There is an urgent need to confer this jurisdiction to the High Courts in the provinces if people are to really receive the extended and immense benefits available under these provisions.

People in far away corners of the Island and who are being harassed by violations at the hands of certain police and other Government officials simply cannot afford the luxury of filing these cases in the Supreme Court.

The system is by itself a violation. A very learned Judge from a province told me that the existence of this right at the level of the provinces will act as a deterrent to possible violators. An added safeguard could be provided by enabling an appeal to the Appeal Court or the Supreme Court in Colombo from the rulings at provincial level.

It must be repeated that the Supreme Court has vastly extended and enlarged the benefits conferred on the people by these provisions. The hitherto unreported judgment of T. B. Weerasuriya J in T. A. D. Sirimal and others vs the CWE and others is particularly important.

The Chief Justice and Ismail J agreeing held that “It is to be highlighted that the Constitutional provisions being the higher norm, will prevail over other statutory provisions and therefore the petitioners are entitled to seek relief for alleged infringement of their Fundamental Rights even in situations where there are other remedies to pursue.”

The extended benefits arising out of the wide sweep of these pronouncements cannot any longer be denied to the people in the provinces.

This bolsters the argument presented by Justice Mark Fernando that all laws must be interpreted in the background of constitutional provisions specially those coming under the directive principles of State policy. This is a task which should be undertaken at the level of the learned Magistrates.

The experience gained from working the provisions in the Thirteenth Amendment point to the need to expand the writ jurisdiction of the Provincial High Courts to keep in check the invalid actions and inactions of administrative officialdom in the provinces and to empower courts to entertain the private law remedy of a Declaratory Action.

There is a need to amend the provision which limits the issuance of a writ of habeas corpus in respect of persons illegally detained within the province. This is causing immense hardships to the people. If a child is illegally detained in Matara under these provinces the parents from Kurunegala or Polonnaruwa will have to travel to Matara to seek relief under these provisions.

The simple process of applying for a transfer of a case within the province is yet to be transferred to the Provincial High Court. They are yet to be empowered to call for a record of an inferior Court within the province. People are undergoing immense hardships in respect of these basic matters as a result of political and legislative inaction in this sphere.

It is high time that petitions challenging elections to Provincial Councils and Pradeeshiya Sabhas are permitted to be entertained in the High Courts in the respective provinces.

This will certainly eliminate much of the abuses that appear to prevail in the conduct of these elections and facilitate people with lesser financial backing and more abilities to take part in these elections.

This will no doubt strengthen democracy and the people’s right to the franchise. The Bail Act has led to much confusion and abuse in its provisions.

There is an urgent need to correct this situation by empowering the High Courts in the provinces to entertain applications presently allowed by the Appeal Court in Colombo under the provisions of the Code of Criminal Procedure.

All the above matters will have to be subject to the supervisory jurisdiction of the Appeal Court and the Supreme Court by way of revision and appeal.

The writer is Chairman, Outstation Bars Committee, Bar Association of Sri Lanka.