Invitaion for Follow up Zoom Discussion

Dear All, Thank you very much for the participants of the Zoom discussion on Constitutional Reform which was held on the 4th December 2020. Please find the Audio and Video files and the Facebook link of the discussion. The follow up discussion will be held on the 18th December from 9.30 am to 12.30 pm. Please keep the date and time free and send us your questions on or before 16th of December. We will discuss them during the meeting. We kindly request that you confirm your participation at your earliest convenience. Thank you. With best regards, Kingsley Karunaratne, Rule of Law Forum 0716884512

Zoom discussion on Constitutional Reform which was held on the 4th December 2020

https://www.facebook.com/100009770886859/videos/1321405704861780/

A government Defence of the judiciary that does more damage than good

A government Defence of the judiciary that does more damage than good Columns By Kishali Pinto Jayawardena. A government Defence of the judiciary that does more damage than good President Gotabaya Rajapaksa and his Minister of Justice who went charging into Parliament this week to pontificate or plead for judges to be protected ‘from criticism’ may well be advised to reflect on some salutary truths. Truly remarkable Ministerial idiocy In South Asia’s less than salubrious context of the separation of powers being limited to constitutional theory rather than evidenced in practice, ruling party politicians defending the independence of the judiciary is the surest sign that the judicial institution is not in a happy state. The Minister justified the wheels of justice turning in fortuitous ways towards Government politicians in recent weeks by arguing that these were all cases filed to extract political vengeance by the previous administration. His most peculiar logic, (or rather, the absence thereof), was that, as a lawyer appearing in many of these cases, he knew that they were trumped up accusations. Far be it from me to waste valuable column inches on asinine politicians but this truly remarkable idiocy belongs in a class of its own. As the President’s personal lawyer once upon a doubtlessly beneficial time not so long ago, the Minister may well believe in his brief that his client, other members of the Rajapaksa family and their sundry supporters including public servants, indicted variously on serious charges ranging from misappropriation to abuse of public property, were innocent. Even so, that is a subjective belief, not to be pressed upon the public as an absurd justification for the propriety of court verdicts which (apparently) the Minister was trying to uphold. Surely those decisions, of the trial court or the appeal court as the case may be, should be defended or critiqued for that matter on an objective assessment of their merits or demerits? Indeed, this Ministerial tilting at the windmills of Opposition parliamentarians who pounced on recent acquittals of the Government’s men to question the legitimacy of the rulings, does far more damage than good to their own cause. “I know the law’ and the lack of commonsense It reminds me of that ‘yahapalanaya’ (good governance) Minister of Law and Order who, when the Avant Garde floating armoury scandal broke in the country, defended his former client, the Avant Garde security firm accused of siphoning massive sums of public money to provide private security services. That Ministerial defence on the floor of the House, was on the basis that ‘he knew’ that nothing untoward had happened. He resigned following the uproar over that statement but after a discreet interval, was brought back into the Cabinet by his Prime Minister Ranil Wickremesinghe. Yahapalanaya’ (then) or ‘Saubhagya dakma’ (now), lawyer-Ministers shine brighter in the clowns gallery of Parliament than any of their colleagues, it seems. This harsh admonition applies without distinction to those who see no conflict of interest in defending their onetime clients in Parliament while holding Cabinet portfolios on behalf of the Sri Lankan State as well as those who absurdly argue that the President should be given absolute immunity from suit as otherwise, ‘he will waste his time in court.’ That particular canard was rejected outright by the Supreme Court in retaining the right of a citizen to challenge Presidential acts in fundamental rights actions. That at least was preserved in the 20th Amendment to the Constitution whatever else the Court thought fit to throw out, much like one would say, ‘the proverbial baby with the bathwater.’ But, the consequential hard truth is that, very much like that bawdy Sinhalese comedy where a roisterous drunkard goes about in the village insisting that, ‘he knows the law,’ our Ministers who purport to ‘know the law’ and pompously hold forth to the common herd, appear to know very little thereof, neither the law or sheer commonsense, one might add. Several discordant notes in Presidential address But to return to this column’s focus of ill advised Government blathering on the independence of the judiciary, this includes President Rajapaksa’s injunction that the judiciary must rise and ‘use its powers to fight,’ (as per press releases carried by the state media), what he has termed as the ‘menace’ of an ‘onslaught on the dignity and independence of legal systems.’ This was said during the swearing in of twenty one new judges to Sri Lanka’s superior courts, courtsey of an expansion of judges being smuggled into the 20th Amendment to the Constitution at the eleventh hour in Parliament. There are several discordant notes in this address that must be pointed to. First, it is incumbent on the judicial institution to maintain its own dignity through the decorum of its members who must not carry the public stigma of behaviour that disgraces high judicial office. It is thus that the judiciary secures the ‘independent’ badge of pride that is essential for its rulings to have weight in society. It does so by the impartial discharging of its constitutional powers, not by ‘fighting’ anyone, by having Ministers plead on their behalf or by evident overreach in the exercise of powers of contempt against critics. The ugly imbroglio that the Indian Supreme Court has now got itself into by hauling up lawyers who criticise ‘political’ judges must serve as a warning for us as well. Secondly, the President’s remark that freedom of speech is not a ‘licence to defame and malign anyone, least of all judges,’ is self-evident. But that is also a two way street, it must be said. Judges have the heavy onus of upholding the integrity of the institution in which they serve, which is a collective duty to the public and trumps the personal interests of individuals as it may be. Failings thereto have greater consequences than in other circumstances as the collapse of public confidence in the judiciary leads to rejection of the very basis on which a society governed by law, functions. That ‘onslaught’ that must be resisted therefore, is of racism, militarism, and political opportunism of politicians who subvert the Constitution, not the ‘onslaught of criticism’ that the President refers to. Beware the resistance that will come In fact, unjust and unfair criticism of the judiciary by the political opposition or their supporters that the President and his Minister is worried about, have no lasting currency in public debate. Hence, one does not have to call upon anyone, least of all judges to ‘fight’ such opinions. Indeed, it is the judicial Centre that must hold when everything else falls at the ‘political onslaught’ of ambitious men. We see this elsewhere in the world when, despite being harangued, vilified and persecuted by the mercifully outgoing President of ‘these Divided States’, judges stood firm in their affirmations of a free and fair election. To have done otherwise would have brought chaos to the streets. Even as the President’s lawyers sought to shout their way in court alleging electoral fraud without any evidence, they were dealt with firmly, fairly and resolutely. This is what distinguishes failed or failing States from democratic (albeit deeply divided) societies in the global North as well as the South. Sri Lanka must make up its mind as to what category it wishes to belong to, judges, citizens alike. In that regard, irrelevant nonsense of Ministers (of Justice or otherwise) in scoring own goals by trying to ‘protect’ the judiciary may be treated with the rich contempt that it deserves. Shared from Sunday Times on 6/12/2020

Sovereignty of the people: Is the Govt. acting lawfully?

Sovereignty of the people: Is the Govt. acting lawfully? Sovereignty of the people: Is the Govt. acting lawfully? By: Tassie Senewiratne, Former S.S.P. The Constitution is the supreme law of the Democratic Socialist Republic of Sri Lanka. Sovereignty of the People is guaranteed by the Constitution. If Sovereignty of the People is denied, then governance becomes unlawful. The Constitution also lays down separation of powers in the organs of the Government to wit: The Legislature, the Executive and the Judiciary. The Legislature makes laws, the Executive enforces them and the Judiciary applies them to relevant cases arising out of the breach of law. That is generally the mode of governance as in other democracies. As regards Sovereignty of the People, the Constitution is good only if it is worked to be good. But when the actual working of the Government is irrespective of the Constitution, then Sovereignty of the People is subverted. This regrettably appears to be the deplorable state of affairs in this country. Working of the Government organs then is desultory of Law and Order. While the concern here is whether the Government is acting lawfully, the further concern is whether the Government and its organs are acting in violation of the Constitutional provision on Sovereignty of the People. This is a vital consideration in the context of Law and Order for the people. There is a serious breakdown in this respect at the hands of the Legislature, the Executive and the Judiciary. These three government organs are in grave breach of this Constitutional requirement for Sovereignty of the People. Only a few examples will be given in illustration due to space considerations. The Law for Conciliation Boards which is manifestly for Sovereignty of the People and was working smoothly, was opposed by the Judiciary and the legal fraternity, and later rescinded by the Legislature in blatant violation of Sovereignty of the People. The Administration of Justice Law (AJL) of 1973 which was to serve the Sovereignty of the People was, likewise, opposed by the courts and the legal fraternity and later revoked by the Legislature in 1978, with change of government. There are many other examples in which the changes serve lesser sovereignties than Constitutional Sovereignty. Now, blatantly violating democratic principles, the 20th Amendment has been foisted on the people. The Judiciary and the Auditor General have been made subservient to the Executive President. Sovereignty of the People has, thereby, been reduced to only a lip service. The Constitution being the supreme law of the country, its transgression is a serious offence against the State. Law and order are now at crossroads at this point of time. Law is turning left. Order is turning right. At the junction point are the Police representing the Sovereignty of the People. The Police are much confused as to how they should move them all forward. There is a mix here, a mix of the Sovereignty of the People reposed with the Police, mixed by the organs of government. The mix is made through all four roads leading to this point. The Police are embarrassed at the junction crossing. Fortunately, however, the embarrassment to the Police does not show because they are wearing face masks. These face masks serve the Police a symbolic purpose, unintended though, to cover their discomfiture. Although the Constitution lays down that the Supreme Court shall be the highest and final Superior Court, being subservient to the Executive President, its powers are pruned, and in reality, the President has acquired for himself unfettered monarchical powers. All these bear heavily on the Police tasked with law and order to serve Sovereignty of the People. The only hope is then that future Constitutions will consider these contradictions. Little wonder, that when I asked a constitutional lawyer about challenging the usurpation of the People’s Sovereignty in courts, the reply was, “Courts, Tassie are you dreaming?” A derisive comment doing the rounds these days in social media is ‘Keekaru adhikaranaya’ (Obedient Judiciary). It is thus a vicious circle, with no remedy within sight. All that the people can do is to exclaim with a groan, “Bloody Hell!” or rise up in unison and fight for rights. (The writer is a Retired Senior Superintendent of Police. He can be contacted at seneviratnetz@gmail.com; phone 077 44 751 44) Shared This Post from Sunday Times.

Change established procedure to treat sovereign voters as ‘Principals’ in Constitution-making

Change established procedure to treat sovereign voters as ‘Principals’ in Constitution-making Former Secretary General of Parliament Nihal Seneviratne has outlined the procedure for the passage of the proposed New Constitution as follows: “These eminent lawyers would sift through the representations and memorandums received and prepare a draft report which is expected to be submitted to the President. The President is expected to submit the report and draft to the Speaker and the Speaker would submit this report and thereafter appoint a Select Committee comprising members from both the Government and the Opposition. “The Select Committee following the usual established procedure would invite representations from the public and would study all these memorandums and submit the report back to Parliament with their recommendation. It would deliberate at length, studying all the representation made and submit its final report to Parliament.” The preparation of a Draft report by an ‘Experts Committee’ consisting of eminent lawyers is acceptable as the Ministry of Justice has called for proposals from the public for their consideration. Barring that aspect, the procedure clearly shows that the politicians acting in collusion as ‘Agents/Representatives’ of the people have got a ‘blank cheque’ to usurp the powers of their ‘Principals’ – the sovereign voters, and have their own way through a ‘Parliamentary Select Committee’ under the pretext of following the ‘usual established procedure’of inviting representations from the public which is a mere eyewash. As we know, such a Select Committee of Parliamentarians will even collude to overturn the very objective of the ‘Draft Report’ in order to protect their privileges and narrow vested interests. The process continues with 2/3rd Parliamentary majority culminating with the final eyewash of a ‘Referendum’ where the people are asked to say ‘Yes’ or ‘No’ to a document framed according to the whims and fancies of politicians under a procedure marred with ‘conflict of interest’. Against this backdrop and in keeping with natural justice and the prevailing ‘Law of Agency’, I as a concerned citizen, would strongly suggest that our ‘sovereign voter dedicated’ organisations like ‘Paffrel’, Caffe, CMEV and other civil rights organisations and the academia, prevail upon the National Elections Commission(NEC) to appoint a ‘Civilian Task Force for Constitutional Reforms’ comprising eminent retired ju dges and representatives of these civil society organisations to study and make their own recommendations to the ‘Draft Report’, sans politicians. The final document by the ‘Civilian Task Force’ after being whetted by the NEC and the Supreme Court respectively, should go before the Parliament only for formal approval. The time is ripe for us to press for a change from the present irregular system of governance dominated by unprincipled and dishonest politicians to a system of ‘People-based Governance’ through a robust Constitution. Bernard Fernando Moratuwa