Saturday March 23, 2019

Sri Lanka, if not for an 'independent' judiciary

By Our Political Correspondent

Apr 12, 2015 23:04 PM GMT+0530 | 6 Comment(s)

COLOMBO (EconomyNext) - Sri Lanka would have returned to a parliamentary system of government from April 22 if not for the Supreme Court striking down the 19th amendment which was drafted in line with President Maithripala Sirisena's election manifesto.

The Supreme Court effectively shot down all proposed provisions to reduce the powers of the president and left only a few minor reforms such as the reduction of the presidential and parliamentary terms to five years from the previous six.

However, those reforms will apply from the next elections and there is no move to trim President Maithripala Sirisena's term which ends in 2021.

Sirisena could exercise all the powers he himself claimed were excessive without having to deliver on his election promise spelt out clearly in the manifesto which the Supreme Court in its wisdom, or lack thereof, decided to ignore.

Sirisena's manifesto promised to transfer power to parliament through a prime minister who would be head of government, but the Supreme Court did not allow it while arguing that the president was already answerable to parliament.

"The new constitutional structure would be essentially an executive allied with the parliament through the Cabinet instead of the present autocratic executive presidential system," the manifesto promised. "Under it the president would be equal with all other citizens before the law."

The Supreme Court would have none of that.

The three men who would go down in history as having shot down the people's will as expressed in the January 8 presidential election result are Chief Justice K. Sripavan and Justices Chandra Ekanayake and Priyasath Dep.

The court was also opposed to granting sweeping powers to the elections commissioner to ensure free and fair elections similar to the powers available in India which conducts the world's largest democratic elections.

The Supreme Court held that transferring some of the executive powers from the president to a prime minister in line with a Westminster-style of parliament was a violation of the mandate given to the president.

It is shocking how the highest court in the land could ignore that for the past two decades politicians of all hues and voters at election after election had voted for scrapping the executive presidency although none of the promises were ever kept.

This time, Sirisena has received legal cover for not delivering on the most fundamental promise to do away with the unhealthy powers of the executive.

With the UNP agreeing to go ahead with the watered down bill, this is what the people will get if the 19th amendment is passed on April 20 with a two thirds majority: re-introduction of the Constitutional Council to make key appointments and run key institutions such as the police, the public service, the judiciary and the elections commission.

This is effectively bringing back the 17th amendment which was made ineffective by the 18th amendment introduced by former president Mahinda Rajapaksa's government.

What voters will not get: The promised abolition of the executive presidency and returning the country to a Westminster-style of parliamentary democracy.

If the 19th amendment is not approved by parliament on April 20, Prime Minister Ranil Wickremesinghe is expected to call for an immediate dissolution of the assembly and set the stage for an election by mid-June or July.

As President Sirisena himself announced in Polonnaruwa last week, a snap parliamentary election promised in the manifesto may help restore political stability and end the period of uncertainty that plagued the country after his election.


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  1. Ebahtog April 14, 12:18 PM

    Lal Silva, didn't you know our Judiciary need fixing too. People who will be asked to fix, will also be the more than 80% corrupt legal officers. No wonder they bring in all these vague clauses in order to debate, discuss, and advice. This is how they make their money. Of course, no official receipts for payment received, no taxes etc. Nice job.

  2. ConDr April 14, 01:28 AM

    @Conchshell, "...Due Process and Rule of Law..." yeah right!! I hope that you are still in that land, if so God Bless you my friend, you are so brave!! If only a 'few more' could understand the logic behind what you say, SL would be a different land and I will fly back there in snap. I could not be there and be that change that I aspire, I know it is hypocritical, that is why I am sad! But may be some day....may be..... Best!

  3. Conchshell April 13, 10:58 AM

    Unfortunately lot of the members of the public, including intellectuals failed to grasp the powers of the Supreme Court in general and the scope of the SC Judgement in particular.

    What the SC determined was that as paragraphs 42 (3), 43 (1), 43 (3), 44 (2), 44 (3) and 44 (5) in Clause 11 and some sections in Clause 26 require approval of the people at a referendum in addition to the Special Majority (i.e. a two-thirds majority)

    Merely because the majority of voters gave their greenlight to presidential reforms, the Judiciary cannot give its greenlight. It has to follow the Due Process and Rule of Law. Even if 100% voted for MS, yet the Judiciary cannot waive of the provisions of the Constitution. That mere act itself would be in the detriment and negate the spirit of Good Governance for which this Government stands for.

  4. Jayantha April 13, 09:16 AM

    Very few of the elected representatives really want to change the system. Ranil would certainly like to keep it. So would others who hope to use Presidential powers.

    The SC could not have given a better New Year gift to the ruling parties.

  5. Lal Silva April 13, 09:58 AM

    I don't understand the wisdom of supreme court, the current constitution came in to being not by referendum but by two thirds majority, how come you need a referendum to change it!

  6. BW April 12, 11:12 AM

    This is the true tragedy of our nation. The urban intelligensia is anti-freedom as is shown by the Supreme Court. We are not yet ready for freedom. With this lot even if we get it we will lose it pretty fast. If there was a privy council of normal people this kind of pedantic decision which allows the rulers to keep their powers would not have been given. It does not matter what the letter of the law says. That is why a privy council was set up in the first place - to avoid decisions like these. Our Supreme Court successor to the privy council has failed the people - yet again. A referendum should be needed only if freedoms were taken away from the people and given to rulers. No referendum should be needed to take powers away from the rulers and give it back freedoms to the citizens. It is a great tragedy of this nation. In Britain people keep their freedoms with no constitution. Without a constitution any law which is passed by a simple majority is equal to a constitutional change. The British urban intelligensia through NGOs keep this belief alive as much as possible.

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