The Citizens’ Movement for Good Governance (CIMOGG) has consistently endeavoured to keep itself informed of the constructive analyses made and advice offered to the People of Sri Lanka and our elected representatives by numerous knowledgeable, non-partisan persons of wide experience and genuine goodwill. The fact that those in power show scant regard for the views expressed by these wise persons does not diminish the value of the opinions expressed. However, what is deeply worrying is that the majority of the public has now gone into such a despondent mode that they just say “What is the use of our saying or doing anything? It is best to be silent and lie low, and hope and pray for better times.” On the other side of the spectrum, a good number of our fellow citizens have found it convenient and materially rewarding to shut out their consciences and join the bandwagon.
Whenever human beings have got together to work for their own security and advancement, they invariably agreed on a set of rules – nowadays called a “constitution” – to govern their inter-relationships so that a stable society could be maintained. For much of history, most countries did not have a written constitution. But the ground rules were understood by everyone. Here, after Sri Lanka had gone through two earlier constitutions, President J.R.Jayewardene foisted the 1978 Constitution on us. It contained within it much potential for good and but equal potential for bad. The most critical weakness in it was the failure to have a clear separation of powers between the legislative, executive and judicial sectors. Of particular concern is that the wording of the article about the exercise of the People’s judicial power is such that the Judiciary is made a body of secondary importance to the Legislature.
This was not all. The powers of the Executive President were so formulated that they allowed whoever was in that position to hold a “Sword of Damocles” over all MPs in the form of a threat to dissolve Parliament before completion of its full term. Such premature dissolution would cause immense problems for most MPs because they would not have had enough time to earn the expected returns from their pre-election campaign “investments”, which a Cabinet Minister recently said was more than Rs 50 Million per MP! They could also not be sure at all that they would be returned to Parliament after another round of elections. Armed with the “sword”, our Presidents have been able to exercise a most unwelcome influence over Parliament; and over the Judiciary through Parliament.
In or about September 2010, government Parliamentarians helped actively to have the 18th Amendment passed. Even the few who claimed that they were “opposed to it in principle” voted for it for reasons that the public can only guess at. The “sword”, perhaps? By this terrible act, the majority in Parliament recklessly handed over the People’s sovereignty on a platter to one solitary individual – not only to the present incumbent but to all his future successors, even though the MPs concerned could not possibly have had any idea of how cruel and corrupt the successors may turn out to be. The Opposition, on its part, made some half-hearted, token noises at the time against the passing of the 18th Amendment; and that was their total contribution to safeguard democracy. Their protests were not very convincing because they probably spent more time dreaming of the day that they themselves would be able to come to power and enjoy the fruits of JRJ’s Constitution and the new 18th Amendment.
It is to the credit of the Judiciary that, at some politically sensitive moments, it did assert itself and succeeded to a certain extent in trying to uphold the letter and the spirit of the Constitution. But now, the outlook for the future has become very bleak indeed. The move to impeach the Chief Justice and the circumstances that are reported to have some bearing on it are causing much apprehension in the minds of those who are striving for good governance and the Rule of Law. There are a lot of grey areas regarding this impeachment and it is our hope that the Parliamentary Select Committee will find a way out that will not destroy the Judiciary altogether. It would be foolhardy of us to say anything more on this subject at this moment although there is much to be said.
It is frightening to recall that many of those who signed the impeachment motion against President Premadasa later claimed that they did not get an opportunity of reading what they were asked to sign! In the case of the 18th Amendment, the text of it was not seen by most MPs until just before they were required to vote for it. We are not at all certain whether all the 117 MPs who signed the impeachment motion against the present Chief Justice had the opportunity of examining critically what they were signing or were even bothered by the possible implications of what they were doing. Judging by the precedents we have before us, we can be reasonably certain that very few of them would have thought about their obligations in respect of the doctrine of public trust that the People’s representatives should always have foremost in their minds. It is more than probable that most of them have not the faintest notion of what this doctrine is about.
In this background, we must regard with great caution those who are intent on deliberately misleading the public on a key point in the Constitution – that is, as to whether Parliament is supreme as some politicians, even senior ones, loudly proclaim. The truth is that nowhere does the Constitution say so. In fact, quite the opposite. Article 3 of our Constitution states unequivocally that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 4 says that the People’s legislative powers shall be exercised by Parliament; the executive power and the defence of Sri Lanka shall be exercised by the President; and the judicial power of the People shall be exercised by Parliament through the Courts. It is only in matters relating to the privileges, immunities and powers of Parliament and its members that judicial power may be exercised by Parliament directly.
It is plain from these two Articles that sovereignty is in the People, as it must necessarily be, and that the Constitution has been based on the logical concept that the People are supreme. It is the People who delegate their powers to Parliament, the President and the Judiciary and not the other way round. These three institutions are obliged to act as agents appointed to look after the People’s interests; not as the People’s superiors. Consequently, not one of them can be deemed to be supreme in any way in relation to the People.
There can be no leaders if there are no People; but there can be People without leaders. It is not a “Did the chicken or the egg come first?” type of conundrum. The People are unquestionably first, foremost and supreme. The assertion made by a few vociferous, intellectually dishonest characters to the effect that Parliament is supreme is untenable, whether it is viewed from a commonsense point of view or even morally. How long will it be before the People of this country realize, and say so loudly and clearly that their representatives need to be put in their proper places, and join hands with their fellow citizens to do so?