Assault on Judicial Independence
-the Mrs. Bandaranaike decision
It has been said of the British parliament that it can do everything except make a man a woman and a woman a man. Even in that case, of course, it can pass a law that a man be deemed a woman and a woman a man.
However, there is one thing the British Parliament will not do under any circumstances, whatever be its powers. It will not declare the judgement of a court null and void. It will not substitute through legislation (which is the only way it has) a judgement of its own for a judgement of a court. In short, it will not intervene in or interfere with the judicial process which is the prerogative of the courts.
There is good reason in bed-rock democratic principle for this self-restraint. The principle may be stated thus: parliament legislates; the courts judge. That is to say, parliament makes laws. The courts interpret the laws made by Parliament, apply the interrelation to the facts of a case, then form a judgement and, in accordance with the judgement, order or decree a course of action which the executive side of the Government or State implements.
This is a division of functions which is bedrock to parliamentary democracy and, even before parliamentary democracy was introduced into our country by the British, was never, never broken even under the British colonial system of rule which other wise disfigured our land. It was unthinkable.
On Monday, 20th November, 1978, however, the U.N.P. government used its steamroller majority in Parliament to do the unthinkable. It got a law passed which declared the judgement and order of the Court of Appeal in the Sirima Bandaranaike writ application matter "null and void and of no force and effect whatsoever" and which substituted for the Appeal Court’s judgement a judgement of its own, which is as follows (we quote here the words of the Bill which was passed into law):
"10. The provisions of this Act shall be deemed for all purposes to have come into operation on the date on which the principal enactment came into operation and accordingly:-
- the Special Presidential Commission of Inquiry established by the president by Warrant dated March 29, 1978, as amended shall be deemed for all purposes and at all times to have been and to be valid and effectual, notwithstanding the judgement of the Court of Appeal in Application No.178 against the members of the aforesaid Commission;
- all proceedings held or taken by or before the aforesaid Commission, all orders, findings, determinations, rulings and recommendations made and all other acts and things done by the aforesaid Commission prior to the date of commencement of this Act shall be deemed to have been validly taken, made or done in the exercise of the powers conferred on the aforesaid Commission by the Principal enactment as amended by this Act, notwithstanding the judgement and writ of prohibition aforesaid;
- all the powers, immunities and privileges conferred by or under the principal enactment as amended by this Act shall be deemed for all purposes and at all times to have been validly conferred;
- all matters arising in any proceedings whether instituted before or after the coming into force of this Act shall be determined in accordance with the provisions of the principal enactment as amended by this Act."
This law is a disgrace to our statute book and a shame on our parliamentary (or is it presidential?) democracy. It slaps the Court of Appeal in the face, not once but at least twice over, and throws in a few knocks on the head also for good measure. In any press but our kept and loyal press, it would raise a storm of protest. But press storm or plaudits-it matters not which-as the fact get known the response of public opinion will come. It is for us to try to reach out to the public with the facts and the necessary comments.
Readers will note that this section gives this law retrospective effect. It makes what was illegal when it was done, legal when it was done and thereafter, despite the decision of the Court of Appeal that it was all illegal. The devise used is to enact that it shall be so "deemed." It is as if, in respect of what a competent Court has found to be murder when the killing was done, a law is made after the court’s decision declaring such killing to be not murder but a lawful and innocent act when the killing was done. It could also be other wise on this legislative precedent. A law could be enacted, if the Government was thus interested and it commanded the necessary majority in Parliament, that a person who has been acquitted of murder by a competent Court shall, despite the court’s decision, which moreover is declared null and void by the subsequent law, be "deemed" to have been sentenced to death by hanging on a particular day. In such event, must everyone wait until the hanging is done on the "deemed" murder and sentence to grasp the horror and the horror of it all?
It is no answer to say that no government or Parliament would do such a thing. The principle of what was done by government and parliament last Monday is no different and nobody thought that what was done would be done until it was done. To subject a citizen to civic diabilities, that is to say, to the loss of his civil right, is to sentence him to political death. And this is precisely the outcome sought from the Commission’s proceedings. This country-and the world-cannot be allowed to remain in ignorance of the taint at the root of the proceedings of the Commission which comes of deeming that what was unlawful was lawful.
Two bills were presented by government to parliament that black Monday. Bill No. 17 amended section 140 of the Jayewardene Constitution which Parliament adopted barely three months ago to the sound of the drums and trumpets of a kept and loyal press. Incidentally, neither of the Bills could come before the public so as to enable previous discussion because they were the subject of "urgent in the national interest" procedure. Even the members of Parliament could officially know the contents of the Bills only after they were presented to Parliament on the very day on which they were rushed into law after suspending standing orders. The responsibility for these Bills rests more than usually on a government which, in respect of these Bills, worked behind the backs of the people.
Bill No. 17 simply opens the road to doing "constitutionally" what Bill No. 18, however constitutional it could then be, plans to do unashamedly and nakedly. Bill No. 17 vests in Parliament the power, "in such category of cases as may be specified," to shift from the Appeal Court to the Supreme Court the exercise of the writ power which the Jayewardene Constitution expressly vests in the Appeal Court by section 140. Coming events cast their shadows before!
Here then is one such event (Bill 18):-
"18A. (1). Every application to any court or tribunal to exercise any power conferred on such court or tribunal in relation to any Special Presidential Commission of Inquiry established or purported to have been established under this Law or any member thereof shall, where such Commission at the time it was so established or such application is made consists of at least one Judge who is or was a Judge of the Supreme Courts or Court of Appeal or where such member is or was a Judge of the Supreme Court or of the Court of Appeal, stand transferred to the Supreme Court which shall in respect of such application have and exercise all the powers of such other court or tribunal and such other court or tribunal shall not have or exercise any power or jurisdiction to deal with such application."
Though the section has all the tortuousness that drafting accuracy apparently demands, its succinct meaning is that if a Special Presidential Commission has on it a Judge or ex-Judge of the Supreme Court or Court of Appeal and an application is made to any court to exercise any of its powers in relation to such Commission, such application shall automatically stand transferred to the Supreme Court. By this section, the court to which such application is made "shall not have or exercise any power or jurisdiction to deal with such application."
Coming as this legislation does on the very heels of the Court of Appeal’s decision allowing Mrs. Bandaranaike’s application for a Writ of Prohibition on the Special Presidential Commission (which consists of two S.C. Judges and one C.A. Judge) and the issue of the Writ 9so that the commission had to abandon its proceedings), it is not difficult to see the origin and purpose of these provisions. They are a rejoinder of the Government to the Court of Appeal; in fact a slap in the face for what they have done (which, of course, is contrary to the interests of government, howsoever correct it be in respect of the court’s function of interpreting the relevant law and applying that interpretation to the facts of the case).
What this provision tells the Court of Appeal in effect is: "you are not of the necessary hierarchical status to decide the case which you have decided; although the Constitution itself has vested in you-and in none other than you the writ issuing powers which you have-and entirely lawfully-exercised." One is entitled to wonder whether this insult by law (it is no less to the President of the Court of Appeal and his two fellow judges (all members of the former Supreme Court which was then the highest court in our land) would ever have received the dignity of law if the decision of the three Judges had been otherwise. One wonders also how this hierarchical necessity was not seen when the President appointed a District Judge to the Commission to enquire into its own allegations against a Judge of the Supreme Court who, moreover, was actually functioning in the S.C. at the time, both when the Commission was appointed and when the Counsel for the State made the allegations to the Commission. It is a shameful episode in our legislative history whose adverse impact on the independence of the judiciary and on judicial independence is incalculable.
There is much else in these two bills that requires mention. Government has made the legislation the occasion for covering itself and its Commission comprehensively against the courts. We may note a few material points.
To begin with even the Supreme Court is deprived of the power of "staying, suspending or prohibiting the holding of any proceeding before or by any Special Presidential Commission of Inquiry" except "only upon final determination of such application." It is a knock on the head of the Judges of the Court of Appeal who ordered a stay of the Commission’s proceedings after granting to the Attorney-General leave to appeal to the Supreme Court.
The following new section 18 is substituted for the old section 18 of the Special Presidential Commission of Inquiry Law No. 7 of 1978:-
"18. No civil or criminal proceedings shall be instituted against any member of a commission or any person in any manner assisting a commission including any person employed by or executing or carrying out any order of a commission in respect of any act done or committed to be done by him as such member or as any person assisting a commission."
The above provision obviously knocks out with one fell blow Mr. Felix R. Dias Bandaranaike’s action against Mr. A.C.de Zoysa, Senior Counsel for the State assisting the Commission at proceedings which this very law, through the device of "deeming", now makes retrospectively legal and valid.
Mrs. Bandaranaike’s appeal to the Supreme Court against the parts of the Court of Appeal order which are adverse to her are also covered by another amendment of Law No.7 of 1978 by which the following provisions are brought into definition of "conduct of a public officer."
"In relation to the exercise or purported exercise or discharge of any power, function or authority and whether or not under the guise of such power, function or authority and whether such person was or is answerable to the legislature in respect of such conduct.
"and includes allegations of misuse or abuse of power, corruption or political victimisation……..; and notwithstanding that no court or tribunal or other institution has the power to inquire into, pronounce upon or in any manner call in question such conduct…"
In this connection, just by way of clarification, "Minister" includes "Prime Minister." The only Pr9me Minister during the period which has to be investigated by the Commission was Mrs. Sirima Ratwatte dias Bandaranaike!
The definition of "public officer" is also expressly declared to include the holder of a judicial office." Ex-Justice of the supreme Court, Mr. Pathirana, and other holders of judicial office who have been named and commented on before the retrospectively legalised Commission will not doubt take note.
All this is there in the two Bills and also the customary "dharmishta" hypocrisy. The government, from the President and prime Minister downwards, insists that the Bills are not in disrespect of the Court of Appeal and that they respect the decision of the C.A. and bow to it. It is a funny way to bow to a man to slap him in the face, which as we have shown, is which these Bills do in relation to the Court of Appeal. It is one thing to make a law to implement the intention of Government and parliament which government had failed to implement by the Law under which they acted. It is another thing to deem retrospectively that Government had done by its first and original law what it is doing by its second and amending Law; and then, in terms of that artificial deeming, to declare an already made and implemented decision of court "null and void and of no force or effect whatsoever" and again by the artificial act of deeming, to substitute for the court’s judgement, decision and act, a judgement, decision and act of the Government and the legislature. That is not to respect the court’s decision or the court itself, but to make a mockery of both.
There was in fact a way for both Government and legislature to respect the court’s decision. That way was to legislate Government’s intention effectively, to issue a fresh President’s warrant and to set going a commission anew without the illegalities of the past. And as for those illegalities and those who committed them, obviously without intention of breaking the law or obviously because they acted on an interpretation of the law which Government and Parliament had intended but failed effectively to implement in the legislation which was made, there is the well-known method of a Bill of Indemnity.
Government could not have been ignorant of this procedure which does not in any manner interfere, executively or legislatively, with the judicial process which has to proceed through the courts- and the courts alone.
Instead, the procedure of executive and legislative interference with and intervention in the judicial process has been deliberately pursued to the grave detriment of the democratic process and in grave breach of the principles of parliamentary democracy. It has been said that" not all the waters of the deep blue sea can wash the balm off an anointed king." We are bound to say that even the waters of time cannot wash a2ay the shame to our country of this yet not widely known episode.
We have accused the U.N.P. Government of monkeying with the judiciary when it dismissed our undismissable judges, undermined the independence of the judiciary and judicial independence, and opened the way to packing the judiciary. In that context we said, in a book entitled "Monkeying with the Judiciary" (at page 22):-
"Stern and sterling judicial independence-in relation to the Executive will be required in the face of the grave damage done by inept and unwise legislation and the meddling fingers of the executive. Justice will not only have to be done-but will also need to be most manifestly done. It is an ill-starred political operation which the government has carried out."
These Bills too are another such ill-starred political operation-and worse, Three Judges, in the exercise of their constitution ally assigned functions, came without doubt or hesitation to a judicial decision which, as it happened ran counter to the interests and wishes of the Executive. Their reward for proving themselves to be Judges of the Independence and natural courage which we want and should acclaim in our Judges has been to be slapped in the face through unprecedented Legislation, in which the legislature displaces the Courts and the judiciary. The invasion by the legislature of the judicial field, which our constitution expressly reserved to the courts, strike at the very foundation of our judicial system as if an earthquake has struck. To protect the Judiciary from the consequences; to restore the Judiciary to its true status in parliamentary democracy; these are not tasks for the Judiciary alone or primarily. They are first of all and finally political tasks. What the Government has done is to bring a fundamental issue namely, the rights and place of the Judiciary in Sri Lanka’s state system, into the centre of the political arena. It is in the political arena that the issue will be fought and won.