Changes to Judiciary and Fundamental Law

Constituent Council: Reports of Judiciary & Fundamental Rights Subcommittees

By C. A. Chandraprema-November 29, 2016, 7:55 pm 

The report of the Subcommittee on the judiciary observes that there is no express provision in the Constitution stressing the importance of the principle of judicial independence and aims to remedy that perceived lacuna by recommending the adoption of a provision in the constitution of South Africa which says that the courts are ‘independent’ and subject only to the ‘Constitution and the law’, and that that ‘no person or organ of state may interfere with the functioning of the courts’. There is no harm in stressing that no one should interfere with the courts because that has been the assumption that we have had with from time immemorial. But, whether one needs to go so far as to say to say that the courts are ‘subject only to the constitution and the law’ is questionable.

The constitution and the law all exist for the people (not the other way about) and the courts should be subject to the people whose interests they are supposed to serve. Article 3 of our present constitution says that sovereignty is vested in the people and is inalienable, and article 4 states among other things that the judicial power of the people shall be exercised by parliament through the courts. The report of the subcommittee on the Judiciary does not explain why the present formulation is not good enough. If parliament makes all the laws that the courts have to interpret and implement, why is it wrong to say that the judicial power of the people will be exercised by parliament through the courts?

No institution above people

The legislature which is elected by the people has a handle over the executive because only members of the legislature can be appointed to the cabinet of ministers and the legislature has all powers over finance. Likewise the legislature should have a hold over the judiciary with parliament exercising the judicial powers of the people through the courts. You can’t have any arm of the state that is so exalted that it is not answerable to the people. Judges are not elected by the people unlike the president and the parliament, and have to be accountable to the people through some mechanism. There can be no constitution or law or judiciary that is above the people.

Bar Association’s power Changes to the present procedure for appointing judges of the superior courts have also been recommended according to which the President will appoint judges to the supreme court and court of appeal on the recommendations of the constitutional council and the latter in turn will receive nominations from a panel of former supreme court judges which will include a former chief justice. This panel will be appointed by the incumbent chief justice after consulting the Attorney General and the President of the Bar Association. There is nothing wrong in the constitutional council receiving nominations for high judicial office from a panel of former supreme court judges. But for the incumbent chief justice to be constitutionally required to ‘consult’ the President of the Bar Association in appointing this panel of retired supreme court judges is not acceptable.

The Bar Association is a body that is susceptible to politicisation. At one point a sitting UNP parliamentarian was the President of the Bar Association. Thereafter a President of the Bar Association participated openly in a campaign to bring a new government into power and even before ceasing to be the President of the Bar Association, he accepted a political appointment as the Chairman of the Board of Investment. Furthermore, the Bar Association accepts foreign funding and overseas trips from foreign embassies that have been openly and directly interfering in the politics of Sri Lanka. For a body like the Bar Association to accept funding from foreign powers may not be illegal in Sri Lanka because of a loophole in our law. But in India this is a violation of the law carrying a jail sentence.

That a body like the Bar Association can pretend to be oblivious to the ethical implications of accepting foreign funding and foreign trips from powers that seek to influence politics in Sri Lanka should be a cause for concern for all citizens. The Bar Association’s political leanings are also painfully obvious. After all, the Prime Minister said in Parliament that the Supreme Court decision in Nallaratnam Singarasa v. The Attorney General should be overturned, the Bar Association made preparations to file a motion in the Supreme Court seeking a review of that judgment. If a body like this has to be consulted by the sitting chief justice in appointing the panel to nominate judges for the superior courts, where will things end up?

BASL brought in

The UNP led government tried to give the Bar Association a role in the appointment of judges even in drafting the 19th Amendment last year by trying to stipulate that when the Constitutional Council appoints judges of the superior courts, they should obtain the views of chief justice as well as the Bar Association. Due to the storm or protest that arose over this, the requirement to consult the Bar Association was dropped. Now it has been brought in again through the backdoor by the Subcommittee on the Judiciary. If the Bar Association is given a say in the appointment of judges to the superior courts, that will corrupt the whole justice system because all judges will be compelled to keep influential members of the Bar Association happy.

A related recommendation is that when Judges of the superior courts go on leave without pay to take up temporary assignments in foreign jurisdictions (as judges often do), that ‘short-term ad-hoc appointments’ to the superior courts could be made from ‘leading practitioners’ to tide over these temporary vacancies. When this is seen in relation to the previous recommendation, it is easy to see which way things are heading. The Subcommittee on the Judiciary has also recommended a fast track removal process for judges of the superior courts instead of the present impeachment proceedings. They have suggested the setting up of a ‘Superior Courts Judges Disciplinary Commission’, the members of which will be recommended by the Constitutional Council and appointed by the President.

Removing judges

This disciplinary commission will inquire into any allegations of misconduct or incapacity in relation to judges of the superior courts and submit a report to the Constitutional Council which will examine the contents of the report and make a recommendation for the removal of the judge which will have to be approved by parliament with a simple majority. The President will then remove such judge. This recommendation of the Subcommittee will need further discussion. One cause for unease regarding this procedure is that there are three appointed members in the Constitutional Council who are not people’s representatives or members of the legislature. Only members of the supreme legislature should be in a position to recommend the removal of a judge of the Supreme Court or the court of appeal.

The present procedure is that if a judge of the superior courts is to be impeached, not less than one third of the total members of parliament will have to give notice to the Speaker of such a resolution and a parliamentary select committee will examine the charges. A report will be submitted to parliament after which parliament will pass a resolution to remove the judge with more than half the total number of members of parliament (including those not present) voting for it. The existing system has better safeguards than the fast track system suggested by the Subcommittee. At present only elected representatives of the people are involved in the process and they have to indicate their resolve twice – at the beginning of the proceedings by signing the notice to the speaker and at the end by voting for the removal of the judge.

SC without original jurisdiction

The Subcommittee on the Judiciary has also recommended that that the Supreme Court be made an exclusively appellate body without any original jurisdiction. Accordingly, fundamental rights jurisdiction is to be given to the Court of Appeal. The merits and demerits of this will have to be discussed further, but one recommendation of the Subcommittee on the Judiciary that is bound to encounter vehement opposition is the suggestion that a seven member constitutional court be set up outside the regular courts structure to have exclusive jurisdiction in interpreting the constitution, in reviewing Bills and even powers of post enactment of review of legislation and to adjudicate in disputes between the Centre and the provinces.

The new constitutional court is supposed to be made up of judges with a specialised knowledge of constitutional law and ‘specialists in the field’. If a constitutional matter comes up in any court anywhere in the country, that case will have to be referred to this constitutional court. All this while the interpretation of the constitution and pre-enactment review of Bills was the exclusive preserve of the Supreme Court. To give this power to a body that is outside the structure of the courts which will be made up by ‘specialists in the field’ - who as Sri Lankan experience has shown will invariably be NGO activists plugging various agendas – would not be a palatable proposition for many.

Subcommittee on Fundamental Rights The subcommittee on fundamental rights has recommended that all written and unwritten laws in force at the time of coming into force of the new Constitution including the Chapter on Fundamental Rights shall be read subject to the provisions of the new Constitution and in the event of a court declaring that any such law is inconsistent with a provision of the new constitution, such law ‘shall be deemed to be void’. This is a standard provision that would be a feature of any new constitution. However, the Subcommittee on Fundamental Rights has recommended that this standard provision should not apply to ‘personal laws’ in force at the time of coming into force of this Constitution – which means that certain personal laws will be above the constitution of Sri Lanka and even its chapter on fundamental rights.

The government will be playing with fire if the constitution allows any communal law or ‘personal law’ to stand above the fundamental law of the land. What Article 168 of our present constitution says in this regard is that ‘unless Parliament otherwise provides’, all written and unwritten laws, in force immediately before the commencement of the Constitution, shall, mutatis mutandis, and ‘except as otherwise expressly provided in the Constitution’, continue in force. There is nothing in our present constitution that says that any personal law will continue to be valid even if it is in conflict with the constitution and the chapter on fundamental rights. The basic principle should be that any pre-existing law that comes into conflict with the constitution is ipso facto void.

According to Sri Lanka’s legal system, foreign treaties that are entered into by the government are not automatically incorporated in domestic law. Parliament has to specifically pass a law incorporating the provisions of the new treaty into the domestic law or it remains unimplemented. The Subcommittee on Fundamental Rights has now recommended that the provisions of a human rights treaty should automatically become a part of the domestic law two years after ratification. If Parliament passes a law incorporating a part but not the entirety of the treaty, the unincorporated provisions would also become domestic law at the end of the period of two years. Furthermore, in relation to human rights treaties to which Sri Lanka is already a party, the two year period will begin to run from the time the new constitution is promulgated.

The automatic incorporation of foreign treaties without amending the extant domestic laws to ensure that there are no discrepancies, will create confusion in the legal system. It is quite obvious that this particular recommendation has been made in order to work around the Supreme Court judgment in Nallaratnam Singarasa v Attorney General. Even though the CBK government signed Optional Protocol I of the International Covenant on Civil and Political Rights, which allows appeals from Sri Lanka to be addressed to the Human Rights Committee in Geneva, this has remained unimplemented because parliament has not passed a law incorporating that treaty into domestic law. In the above mentioned case, the Supreme Court decided that international treaties that are not expressly incorporated in our law by parliament are not part of the domestic law.

UNHRC

The government which is wary about trying to introduce legislation in parliament which will subordinate our supreme court to the Human Rights Committee in Geneva, now appears to be trying to incorporate international treaties into domestic law without going through the hassle of a bruising battle within parliament which may spill over into the legal fraternity as well. The recommendation of the Sub Committee on Fundamental Rights which may be the most controversial recommendation of all is that both Sinhala and Tamil be recognised as the official languages of Sri Lanka. According to our present constitution, Sinhala is the official language while Sinhala and Tamil are national languages. Even in India, there is only one official language - Hindi.

The compromise arrived at as far back as the 1950s was for Sinhala to be the official language with reasonable provision for the use of Tamil as the language of administration and the courts in the North and East and in education throughout the country. S.J.V.Chelvanayagam himself endorsed this system by agreeing that in the Tamil speaking Northern and Eastern regional councils that he proposed setting up, reasonable provision would be made for the use of Sinhala for the Sinhala minority living in those areas. Now the Subcommittee on the Judiciary has unnecessarily disturbed things by putting forward a recommendation that is guaranteed to inflame communal tensions.