Sudath Gunasekara PhD (SLAS) and retired Permanent Secretary, President Senior Citizens Movement Mahanuwara. 2.12.2012.

I thought it would be useful to make few observations on the above subject in view of the ongoing and unfortunate conflict between the Executive and Legislature vs the Judiciary. Since I am not a politician or a legal personality I think a person like me is in a better position to look at this debate, rather the tussle, from an objective and an unbiased angle. The root cause of this issue I think is a misunderstanding between the Executive and the Judiciary. I deliberately dropped the word Legislature as I see no difference between the Executive and the Legislature as they function at present. Both are run the way the Executive wants. So much so the Legislature today in this country has got reduced to a mere mechanical arm of the Executive just carrying out the legislative functions according to the wishes of the Executive. At present, in Sri Lanka, the Executive and the Legislature are one, though people talk of them as two separate institutions. The Executive as the Head of the Government, as Head of the Cabinet also holding the Ministries of Finance and Defense ( a mockery of democracy as I see it), as the person who appoints all Ministers and as the Head of the ruling party who decides the fate of all Members of his party in Parliament as well, has the full control of both the legislature and the Executive. In fact under the present Constitution, Mps at all levels have got reduced to mere hostages of the party leaders. In fact they are nothing more than puppets in an Ambalangoda puppetry show. In this backdrop the western concept of separation of power between the legislature and the Executive and the high norms of democracy do not exist anymore in this country.

ƒÆ’-¡ƒ”š‚ In reality the Executive President under the present Constitution control everything from A to Z in the Legislature.ƒÆ’-¡ƒ”š‚  As such the independence of the Legislature does not exist. Under the prevailing situation I donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t think the Legislature is free to do anything independently. The fact that there is no effective opposition in Parliament has made it a one party drama. Both the Legislature and the Executive therefore are one. Therefore separation of power between these two institutions is a classic misnomer in this country and the British model of Parliamentary democracy as enunciated by people like Dicey as died a natural death long time ago.

As everybody knows the current open war between the Executive and Judiciary started with the Supreme CourtƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s decision on the Divinegua Bill, though there are rumors around the country that there are many other hidden issues which we ordinary men are not expected to know. The Judiciary has given its independent interpretation on Divineguma Bill according to the provision in the Constitution. The executive may not have expected such a ruling. This unexpected ruling by the Supreme Court may have angered the President and considered a challenge to his all powerful executive authority.

Probably inspired and embolden by the total control the Executive enjoys over the Legislature he may have thought it timely to tame the Judiciary as well. The President of this country already exercises significant control over the higher echelons of the Judiciary since he is the one who appoints Supreme Court and Appeal Court Judges without being subjected to any ratification unlike in countries like USA. The executive control over these Judges is also tightened by the fact that they could be removed by the executive on an address made to him by Parliament. Such removal is also not subjected to any judicial review at any stage either. This situation makes the position of judges more vulnerable. This clearly shows both the direct and indirect pressure brought upon these judges that could seriously affects the independence of the judiciary.

Under this scenario according to the most common perception of the common man, this issue has arisen out of a judicial interpretation of the provisions of the Divineguma Bill. But even the man on the street also talks of many other issues behind this move by the government to impeach the Chief Justice. They see them as political and personal. The latter view is supported by the statements and actions displayed by many politicians including some Cabinet Ministers against the judiciary. The politically organized anti judiciary demonstrations in front of the Supreme court and the Parliament on the 11^th prove the involvement of the government in these unwelcome precedents.ƒÆ’-¡ƒ”š‚  All these ugly incidences reflect very badly on the Head of the State. Government will come and Government will go but the Judiciary has to go on forever continuously dispensing justice to everybody alike

The nature of the formulation of the Impeachment and the clumsy way how it was presented to the Speaker evince this view. They even went to the extent of choosing an auspicious time to hand over the impeachment to the Speaker. His process clearly shows the intention (mens rea as it is termed in criminal Law). The constitution of the Parliamentary Select Committee and its composition also cast serious doubts on the impartiality one could expect from the proceedings of the PSC. What is worse is it is a clear case of the very complainant sitting on judgment against the accused. There is no defense and no judge. Justice should not only be done but it must also seem to be done. History tells us how the crafty and the cunning got their things done by adorning the King with New clothes. So it is not something new. The process will go on and on until another naked tiny tot by the way side will shout loud ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Mother Mother the King on the elephant is naked!

Further the following statement of the Leader of the House Mr Nimal Siripala de Silva

“Therefore I would call upon the Speaker to take this precedence (Ref to Anura BandaranaiykeƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s ruling) into consideration and to give an order on the notices we received threatening the independence, sovereignty, identity and dignity of Parliamentary democracy.” and the opinions expressed by the members of the House on both side including the Leader of the Opposition and finally the ruling given by the Speaker of the House clearly shows the determination on the part of politicians to defend and fightƒÆ’-¡ƒ”š‚  tooth and nail to preserve their own privileges as politicians at all cost to democracy, justice and sovereignty of the people. How the dignity of not only Parliamentary democracy but also the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”dignityƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ of our Parliament are protected and upheld by our politicians is common sense to everybody. The fact that even school children had to be removed several times from the public gallery speaks for their ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”dignifiedƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ behavior inside the House. As such we need not comment any more on it. The term ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”MagodistumaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ used to describe politicians in this country I think precisely tell the full story.

In his statement to Parliament the Speaker said ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”On careful consideration of this matter, I wish to convey to the House my ruling that the Notices issued on me, as Speaker of Parliament, and on the Members of the Select Committee appointed by me, have no effect whatever and are not recognized in any manner. I declare that the purported Notices, issued to me and to the Members of Select Committee are a nullity and entail no legal consequences. I wish to make it clear that this ruling of mine as Speaker of Parliament, will apply to any similar purported Notice, Order of Determination in respect of the proceedings of the Committee which will continue solely and exclusively under the authority of Parliament

This statement has further complicated matters. Had Parliament requested the Attorney General to represent matters in court instead of taking this course of action it would have been more mature and dignified on the part of the legislature I think. Such action would have certainly protected the dignity of both the Parliament and he Judiciary. The general public sees very little difference between these proceedings and the demonstration by the Tri wheelers against the CJ in front of the Supreme Court. They also think the two are interconnected. All these ill-conceived actions not only further complicate the issue at stake but they also threaten the very foundation of the socio-legal fabrics of our society. As such serious issues have to be handled with more seriousness, prudence and care by everybody concerned.

ƒÆ’-¡ƒ”š‚ In my opinion the judiciary also cannot be always treated sacrosanct as it has also flawed in the eyes of the public many a times in the recent past. For example many rulings given during the former CJƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s time have been seriously criticized. Even the stand taken by the present CJ when the 18^th Amendment was taken up and when her husband was appointed to public positions I think should have been more prudent.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

In this context it reminds me of an extremely valuable thesis presented by Professor KN Jayatilaka the eminent and leading scholar in Buddhist Philosophy on ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”The Principles of International Law in Buddhist DoctrineƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ at the Academy of International LawƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ at Hague some time back. In one of his lectures ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”The Buddhist Conception of Society, Law and human RightsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ he clearly showed that the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Wheel of power turns in dependence on the Wheel of Righteousness.ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ He highlighted the Buddhist perception of Political Power quoting the age old adage ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Balacakran hi nisraya Dharmacakram pravartateƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ Here the Dharmacakram the Wheel of Righteousness stands above the Wheel of Power which is worldly and mundane as against the Wheel of Righteousness which is spiritual and supreme. In this context the Wheel of power has to turn for the good of the people (Bahujana hithaya Bahujana sukhaya as the Budhha had preached.

The behavior of our legislators and even some judicial officers shows that they are more concerned with their own interest than the good of the people. This attitude stands in stark contradiction to the age old and cherished traditions of our society. Prof Jayatilaka further states ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”The sovereignty of the State derives from the will and consent of the people in whose interest it shall govern but sovereignty is subject to the rule of righteousnessƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. In essence it is for the welfare of the many and good of the many and therefore it cannot be used for the welfare of a few men and women, their families and relative and close associates as it is done today in this country. Buddhist political philosophy under which this country was governed nearly for 2500 years was founded on the principle that ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”The wheel of might turns in dependence on the Wheel of RighteousnessƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. ƒÆ’-¡ƒ”š‚ It is high time that the rulers in particular as well as those who dispense justiceƒÆ’-¡ƒ”š‚  and all others look at these high and noble traditions of this nation, sans hatred and ill will if they are honestly concerned about the wellbeing of the people and society a large. ƒÆ’-¡ƒ”š‚ The request made by the Mahanayaka Theros of the Three Nikayas and other religious dignitaries to the President to reconsider the Impeachment against the CJ, I think should not be dismissed by the Executive for political expediency. Because, it comes from the uncrowned, traditional and spiritual Kings of this Nation. It is true that such authority is not enshrined in the Constitution that was adopted by the J.R. Jayawardhana Government in 1987. But that has been the all powerful age old convention, no King or Queen in this country has dared to ignore throughout history.

K.N. Jayatilaka further says Buddhism considers it a duty of the State to promote righteousness. It was in pursuance of this political Dhamma that the Buddhist emperor Asoka adopted welfare state policies of his empire that is widely acclaimed by historians as the best welfare State ever existed on this earth. As the legitimate heir to this great legacy why are we groping in pitch darkness in splitting hair on western political and legal concepts utterly irrelevant to our society that leads the nation directly to total destruction is my question? Is it not high time that we begin to look inwards at least now and seriously ponder as to ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”what is right and not who is rightƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ as my good friend Lalith Atulahmudaly always used to say? I pray wisdom will dawn upon our politicians and all those involved in this disastrous and ugly episode at least now and finally righteousness will prevail over this Thrice Blessed Island Nation!