Damocles Sword of Judgment falls on the Presidential head
For the first time in 40 years of presidential rule, the executive is found guilty of violating fundamental rights of the petitioners
The Supreme Court ’ s Damocles Swo rd of Judgment, which had stood dangling for a month over President Sirisena’s head ever since their Lordships issued a stay order on his gazette fiat dissolving Parliament in November, finally snapped from its lofty mooring and fell crashing on the presidential pate this Thursday when Seven Supreme Sentinels of the Lankan Constitution delivered their verdict in the dying hours of the setting sun; and found Sirisena guilty of violating the Mother of all Lanka’s laws.
It was a stunning and damning indictment the highest court in the land passed on the highest executive power in the land. Never before, in these last forty years of presidential rule, had the Supreme Court thought fit -- nor had it occasion to do so -- to condemn the first citizen of the country as being guilty of transgressing article and clause of the very constitution which, as Head of State, Sirisena had solemnly sworn to uphold in spirit and to the letter at his inauguration as the sixth president of the Democratic Socialist Republic of Sri Lanka at Independence Square on January 9, 2015.
Seven supreme guardian deities of Lanka’s judiciary did not mince their legal dictum nor did they dilute their judicial determination.
The unanimous judgment delivered in one legal voice to which Chief Justice Nalin Perera gave resounding echo, rang its import beyond the surrounding imposing walls of legal pomp and procedure to reach the outer skirts of Lanka’s broad acres where its masses in hardship lived, sweating and toiling to eke out a living by the honest sweat of their brow whilst their masters, who grovel before them as their servants at election time, indulged in playing their power games.
The legal message the Chief Justice delivered to the entire nation was simple: that no one, not even the president, was above the law and that all must bow before it; since all are equal beneath its protective shade. That the constitution was no plaything for some insolence made incarnate, an avatar of total ignorance, blind as a bat to the constitution’s purpose, insensible to its d’être, to trample upon it with derision and negate the nation’s goodwill in the world’s eye; and, by complete disregard for it, reduce the state, to the tragedy of its own people, to anarchy and condemn the nation to economic ruin -- without qualm, without remorse, without reason or rhyme.
Ending a nine-day period of suspense -which began on December 4 when court began its proceedings though bedlam had reigned since October 26 -- as to how the dice would turn since it began hearing the supporting arguments presented by counsel of both sides, the Supreme Court judges gave their presentations their considered deliberations before pronouncing their judgment.
And when the Chief Justice Nalin Perera delivered his and the consensual opinion of his peers, the verdict came as no surprise. For it was not only what the people expected. It was what justice demanded. Even to the unlearned in the letters of the law, it made sense – common sense.
That Parliament could only be dissolved after four and a half years of its life unless two thirds of parliamentary members passed a resolution requesting the President to dissolve it before the prescribed time. That the Executive had no control over the life of the Legislature, except as provided, in explicit terms, in the 19th Amendment which President Sirisena himself had engineered, enacted and constantly praised himself for fathering its birth; and which he now, for reasons of his own, sought to disown.
The Supreme Court judges put in legalistic terms what all right thinking people held in their heads and in their hearts; and the consolidated enlightened opinion of the law lords helped assuage public fears when they delivered their judgment and rescued reason from brutish beasts who held it hostage in their jaws and claws.
In an eighty- eight- page judgment delivered by the Chief Justice and which had the hand of Justice Buwaneka Aluvihare, Justice Priyantha Jayawardena, Justice Prasanna Jayawardena, Justice Vijith Malalgoda and Justice Murdu Fernando assenting to it, the Supreme Court held in one harmonious judicial choir: that the President had violated the constitution when he dissolved Parliament by a gazetted proclamation on November 9th.
To summarise the judgment:
The President had violated the Constitution and exceeded his legal limits by dissolving the parliament. The Judgment held that the President had violated the rights of citizens and parliamentarians, and ordered that the gazette proclamation be quashed and pronounced null and void.
The Bench also ruled that the said proclamation was null and void, and had no force or effect in law.
It further added:
To us, the words “plenary power” simply mean full power--or complete power-- and should not be taken to and cannot be taken to mean a species of inherent unrestricted omnipotent power held by a Head of State which is akin to royal prerogative power. In this regard, it must be remembered that the President, who is the Head of State under the Constitution, is but a creature of the Constitution. His powers are only those which are specifically vested in him by the Constitution and the law. Equally, the exercise of these powers by the President is circumscribed by the provisions of the Constitution and the law.
It should also be mentioned that accepting the contention advanced by the Hon. Attorney General and the added Respondents will vest an unfettered power upon the President to dissolve Parliament whenever he may wish to do so and sans any restrictions. That will result in empowering a President to place the very continuation of any Parliament subject to his sole power and, thereby, place a President in a position of supreme power over the Parliament. That would then negate the effectiveness of Article 33A which stipulates that the President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and written law. Such a development will be inimical to the principle enunciated by this Court that all three organs of Government have an equal status and must be able to continue to be able to maintain effective checks and balance on each other.
Thus, I am unable to agree with the submission that Article 12(1) of the Constitution recognises ‘ classification’ as the only basis for relief. In a Constitutional democracy where three organs of the State exercise their power in trust of the People, it is a misnomer to equate ‘Equal protection’ with ‘ reasonable classification’. It would clothe with immunity a vast majority of executive and administrative acts that are otherwise reviewable under the jurisdiction of Article 126. More pertinently, if this Court were to deny relief merely on the basis that the Petitioners have failed to establish ‘unequal treatment’, we would in fact be inviting the State to ‘equally violate the law’. It is blasphemous and would strike at the very heart of Article 4 (d) which mandates every organ of the State to respect, secure and advance the fundamental rights recognised by the Constitution. The Rule of Law dictates that every act that is not sanctioned by the law and every act that violates the law be struck down as illegal. It does not require positive discrimination or unequal treatment. An act that is prohibited by the law receives no legitimacy merely because it does not discriminate between people.
The Proclamation has been issued outside legal limits and has resulted in a violation of Petitioner’s rights both in his capacity as a parliamentarian legitimately elected to represent the People and in the capacity of a citizen who is entitled to be protected from any arbitrary exercise of power. For the reasons set out above, I hold that the Petitioner’s rights guaranteed under Article 12( 1) of the Constitution have been violated by the issue of the Proclamation and make order quashing the said Proclamation and declaring the said Proclamation null, void ab initio and without force or effect in law.
If that weren’t enough of a mouthful from six Supreme Court judges, the seventh, namely, Justice Sisira de Abrew chipped in with his own bite. He had taken a different route to arrive at the same destination as his learned brothers of the Supreme Court and his findings on the way only served to reinforce the validity of his peers’ determination and conclusion.
He declared, in a 21- page judgment which focused mainly on presidential immunity and why it does not apply in the present case. He asked: According to Article 35(1) of the Constitution, the President of the Republic while holding office enjoys immunity from suit. But does it mean that the Supreme Court cannot examine the legality of actions performed by the President of the Republic? And Justice Abrew proceeded to give the answer.
He said, inter alia: “I now advert to this question. In terms of the proviso to Article 35( 1) of the Constitution, the Supreme Court has no jurisdiction to pronounce upon the exercise of the powers of the President of the Republic performed under Article 33( 2)( g) of the Constitution. This Article deals with the power of the President of the Republic to declare war and peace. The words “anything done or omitted to be done by the President in his official capacity in the 1st proviso to Article 35( 1) of the Constitution should be stressed. Thus when Article 35 of the Constitution is considered, it is clear that except the acts done by the President of the Republic in the exercise of his powers conferred by Article 3 (2)(g) of the Constitution, the other acts of the President of the Republic are not immune from suit. It has to be stated here that that the President of the Republic is a creature by the Constitution.”
Justice Abrew went on to state:” This view is supported by Article 30 of the Constitution which reads as follows:“30(1) There shall be a President of the Republic of Sri Lanka, who is the head of the State, the head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. (2) The President of the Republic shall be elected by the People and shall hold office for a term of five years. It is the duty of the President of the Republic to respect and uphold the Constitution. This view is supported by Article 33(1) of the Constitution which reads as follows: 33(1) It shall be the duty of the President to -( a) ensure that the Constitution is respected and upheld
Justice Abrew declared: “The President of the Republic in terms of Article 32 of the Constitution must take an oath stating that he would uphold and defend the Constitution. Therefore, it is seen that the President of the Republic is subject to the Constitution. In Mallikaarchchi Vs Shivapasupathi, Attorney General wherein Sharvananda CJ held thus: “the President is not above the law.”
The Supreme Court judgment did not merely drive the knife in to Sirisena’s heart when the Chief Justice ruled that Sirisena had violated the constitution. Quashing Sirisena’s proclamation and holding it as ‘being null and void ab initio’, the Chief Justice also stated that the President had also violated the fundamental rights of the petitioner ‘both in his capacity as a parliamentarian legitimately elected to represent the People and in the capacity of a citizen who is entitled to be protected from any arbitrary exercise of power.’
Luckily for Sirisena, the courts didn’t order compensation to be paid for the violation of the petitioner’s fundamental right, probably because it was not prayed for in the petition. Luckier still that 21 million people of this country who, as the Chief Justice observed, “in the capacity of a citizen is entitled to be protected from any arbitrary exercise of power,” didn’t cotton on to be enjoined in the dissolution case with a special prayed for compensation.”
For the last six weeks, dark clouds have hovered over day in and night out over this island mass plunging the populace into turmoil and despair and driven them to a sense of hopelessness. But one silver line has adorned the clouds of darkness. And that is the Supreme Court of Lanka.
And this Sunday morning the nation rises to salute the six brave and honest learned lords and one lady of the Supreme Court for restoring hope in our hearts and kindling the optimism that all will be well that will end well. And pay tribute to their courage and moral rectitude to have delivered the judgment they delivered on Thursday unanimously in accordance with the accepted principles of jurisprudence.