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Tuesday, 8 January 2013

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Judiciary cannot change the Constitution - Part II - Former Chief Justice Sarath N Silva

* Public Service Commission, JSC are there to maintain discipline

* In Sri Lanka, sovereignty is vested in the people

* Constitution is the supreme law of the land


The impeachment motion against the Chief Justice has become the talking point in society. There are criticisms and analysis on the inquiring process in this regard. This endeavour is to explain what is happening in reality. We quote former Chief Justice Sarath N Silva, because he is one of the most suitable persons to speak on this matter.

The first part of this interview was carried in the Daily News of yesterday.


Q: There was no way if it was done according to Standing Orders?

A: No way. This petition has stated earlier that Standing Orders relating to this impeachment are against the Constitution. This is what the SC has stated after considering Section C 12/1, 13/5 and 14/1 of the Constitution. After considering all this the SC has said they are not considering the intervening petitions. According to the SC order the Standing Orders are not valid.

With due respect to Courts I wish to state that it does not state "And".

Now that the court order has been published, we have the right to review and criticize the court order with good intentions. We do it to ensure the Supremacy of the Law. What I am doing is to interpret the law currently if a wrong interpretation has caused a scar on the Supremacy of Law.

It is stated here that the behaviour of a Superior Court Judge should be investigated by a Court established by law. That is not the final opinion. That has been mentioned as a passing gesture.

I don't understand as to what basis this has been stated. As stated in Section 140, the Constitution states that a Writ Order should be made under the law. The Court says there should be a law. Then this judicial process cannot be started. Because a provision of law has not been made in Parliament under Section 140. It is not clear on what basis it has been stated.

It only says a board or committee deciding on people's rights should act according to law. The SC had given it to a great extent saying this should be a right. Under the constitution we refer to common law as the right. There is a fundamental right regarding arrest. That is a right safeguarded if an arrest is made by police or any other institution. Therefore there should be law for a disciplinary inquiry against a Public Servant.

What is here is a service agreement not a right. If you go by it there should be a law for a disciplinary inquiry regarding a public servant if that is so the Public Service Commission cannot take action as there is no law.

All are people holding contracts under the government. Then you cannot give special treatment to SC Judges. That is why for the top echelons it has been stated that it should happen through a Parliamentary motion. Which should be approved by a simple majority and implemented by the President. Thus several safeguards have been made.

But this too is a service situation. The President acts as the competent authority. I think they have mixed up the word right. These are not rights. These are disciplinaries. If you take Buddhism, the Vinaya Pitakaya is separate.

Q: That is very essential for the existence.

A: Yes that's right. We don't look at the Vinaya Pitakaya if we consider the Tripitaka because it is for the Maha Sangha. We look at the other part of the Sutra Pitakaya.

Discipline is something different. Here, it is not about rights but about discipline. The Public Service Commission and the JSC are there to maintain discipline. If a law is passed for them and that power too is given to the judiciary it will be difficult to maintain a public service. We have to go before the Judiciary before doing anything. That situation is not there now.

I know that sometimes an investigation has to be made in the JSC. If the JSC is satisfied it can take action.

Q: Another factor was stated here. Since standing orders are not law a PSC set up under standing orders has no legal power to conduct such investigation.

A: That is what is very serious. Earlier, the validity of Standing Orders were mentioned and we are not taking a decision. What I questioned was whether it was contradicting the constitution.

But indirectly. They say that since it is not a law the PSC has no powers. That is stated without any basis. But with due respect I wish to say that the constitution states that provisions should be made under 'Law or Standing Orders'. Then if the SC gives a determination it cannot separate the words law or standing orders. That is not an interpretation.

That is erasing a part of the constitution. That cant be done. Interpretation of law is a very important subject when interpreting the constitution, every word of it should be interpreted. We cannot single out a single word of the constitution and term it as unnecessary.

The constitution is the supreme law of the land. The constitution at the outset states that "This Constitution is adopted and enforced as the supreme law of the Democratic Socialist Republic of Sri Lanka. Then we cannot leave out a single word of the Constitution. If "or by standing orders" is stated in the constitution it should also be given an interpretation. It cannot be suppressed.

What has happened here is that it has been suppressed. It cannot be done. This has come indirectly.

Q: Another matter is mentioned. That the power to interpret the Constitution is vested in the SC according to section 135 of the Constitution.

A: What the Constitution states in Section 125 is that after interpreting the Constitution the SC has the single power to resolve any problem which arises. That means that if a problem arises about it on any other Court it should be referred to the SC.

It is under this section that the Appeal Court referred this to the SC. If this power is given to other courts this Supreme Law will be interpreted in different ways that is because this is a supreme law which had to be interpreted in a single way. The SC should be very careful in exercising these powers. It should consider every word as important. It should take word by word and give its interpretation. The statement by "Law or Standing Orders' mentioned here has been completely forgotten.

So what has happened here is an amendment of the Constitution rather than an interpretation. That is one point. The other point is that there is an order to pass a law. That is a very serious thing. Parliament says it should somehow do this. There is no powers under the Constitution to do such a thing. Passing a law means legislative power. Which is included in peoples sovereignty. This is stated in the very first sectors of the Constitution.

In Sri Lanka sovereignty is vested in the people and that sovereignty includes administrative power, fundamental rights and the ballot. Thereafter it says how sovereignty is exercised. It states that peoples legislative power should be exercised through parliament which constituted elected representatives of the government and by the people at a referendum. This is a period where Parliament is being belittled.

Sometimes the behaviour of MPs too may have contributed to this. Whatever it is there is a composition of Parliament according to the Constitution. We cannot degrade that composition just because one MP misbehaves here. There is some composition under the Speaker and it is this composition which exercised sovereignty on behalf of the people. If there is a referendum people will exercise it. There is no room for any other institution to intervene in this.

Q: What you say is very clear. There is the Executive, Legislature and the Judiciary. Executive takes decisions. Legislature implements those decisions and the Judiciary, subject them to Judgement. Isn't this the way it works. Do you think that there is some distortion here?

A: To my knowledge Court has never given a decision of this nature. No other Court in the world has given such a decision either. To my knowledge legislature is always appointed by the people.

No Court has asked it to pass a law like this. The Court has no power to issue such order. If there is a conflict the court can settle it.

Q : Doesn't interpretation mean settling it?

A: What it can do is only settle and offer guidance. If Court orders Parliament to pass any law that is exceeding its powers. Then Parliament has no work to do. The Speaker has already issued a statement that they will not take it into account. They can show the initial sectors and say we are the legislature we are only answerable to the people.

There is some room for the Judiciary to interfere. That is when a Bill is published in the gazette before being tabled in Parliament a person can challenge it before the SC. Then the SC should take a decision on it within a given period. Afterthat the SC cannot intervene. It only decides whether it is in keeping with the Constitution or not. The SC or any other Court cannot intervene into the power of drafting laws. What happens here is giving an order when there is no opportunity to do so.

Q : Now as future action on the Impeachment the Parliament will conduct a debate and forward it to the President and the President can remove the CJ if he wants?

A: The law states that the removal should be done on the basis of it. Here too it is not stated that the President is bound to do it. But this is the way President takes action as disclosed by the Constitution.

Q : According to what you said earlier a clash has occurred with the legislature?

A: The proper course of action has not been adopted here. This has caused a conflict with the Judiciary. This is actually a disciplinary matter between Parliament and the relevant Judge. An external unit has come in with the interference of the Judiciary. Court has been joined to it by going to Courts. I think this state of confusion has been created by the people who had gone to Courts.

The CJ has also filed a case in the Appeal Court functioning under her. If the CJ has to say anything she has to submit it to Parliament. What she now states is that Parliament is not giving time. I have this report with two volumes and I have read it.

Q : What have you to say about the argument that sufficient time has not been given?

A: When you look at it the Parliament has given one month time to the Parliamentary Select Committee. If the PSC gives another week after that one month isn't it adequate. They should have made submissions showing cause according to the charges. When I looked at the report I saw that a clash had occurred from the very inception. When the President's Counsel request the PSC to be stopped it will create a crisis.


Judiciary cannot change the Constitution - Part I - Former Chief Justice Sarath N Silva

 

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