SC averted Constitutional crisis - Senior lawyer

BY SARATH Malalasekera

THE Supreme Court averted a constitutional crisis by declaring that the Presidential Elections should be held in 2005 in terms of Article 31 (3A) (d)(1) of the Constitution of the Socialist Democratic Republic of Sri Lanka, said Senior Attorney at Law Upali Senaratne.

Senaratne made these observations immediately after the Five Judge Bench of the Supreme Court delivered the judgement, allowing the Fundamental Rights application filed by the Jathika Hela Urumaya (JHU), directing the Election Commissioner to take steps to hold the Presidential Elections this year.

Interpreting this Article in the 24-page judgement, the Supreme court which has exclusive jurisdiction, exercised its right of interpretation in terms of Article 125, Senaratne said.

After careful deliberation by a Bench of Five Judges of the Supreme Court, in its lengthy far reaching judgement emphasised the fact that the interpretation of the Constitution should ensure "a smooth and harmonious working of the Constitution to avoid an absurdity giving rise to practical inconvenience."

Senaratne emphasised that the Supreme Court has traced the history of the present Constitution with special reference to three amendments which were introduced by the then President J.R. Jayewardene for his gain.

The Supreme Court has been careful enough not to mention names of politicians but this judgement is a scathing attack on the political manipulation of an individual who was mostly concerned about his political ambitions, Senaratne added.

The Supreme Court refers to the threefold fiction indulged in by the 1977 Government which was elected according to the Constitution of 1977. By the introduction of a new Constitution the office of the Prime Minister was transformed into that of an Executive President.

The period of six years was made to commence from 1978 and thereby extended unconstitutionally. The persons who were elected to Parliament from respective electorates were deemed for all purposes to have been elected by the people of Sri Lanka.

He said that the Third Amendment to the Constitution was introduced to enable the President to seek a further mandate after completing four years un office.

The Third Amendment was rushed through Parliament on August 27, 1982 and nominations were called on September 17, 1982 and the election was held on October 20, 1982.

The referendum held in order to extend the period of Parliament for six years is also dealt with in the judgement. This referendum was rejected by the people in the North and the East and the Supreme Court shows in the judgement how it exacerbated to conflict in those provinces to an armed conflict with a spiral of violence leading to the ethnic violence of July 1983.

The Supreme Court in its judgement has quoted a number of decisions to fortify the reasons for the interpretation of this Article which caused severe confusion in the minds of constitutional experts and the ordinary man. Bindra, Lord Salmon, Lord Radcliffe have been quoted at length, Senaratne said.

Quoting at length about the judgement of the Five Judge Supreme Court Bench, Senior Attorney Senaratne said: "I am reminded of what Chief Justice Gwyer once said, "a broad and liberal spirit should inspire those who's duty it is to interpret the constitution'.

This classic judgement of the SC will definitely open the eyes of everybody in Sri Lanka to the realization that this constitution which is the canker of our body politic needs incision in the earliest possible time. The SC very correctly holds in its judgement that judges are not emperors but only upholders of the rule of law. Wax and wane."

It would not, by any means, be out of place to state that the recent decisions of the SC have come under worthy praise in the legal circles of Sri Lanka. These decisions have brought with them respect and prestige, which in the minds of many, was waning at this crucial juncture in the political history of this country.

It also echoes the sentiments of that great judge and jurist Oliver Wendell Holmes. Writing in as far back as 1881, he states in his book The Common Law that, "the life of the law has not been logic: it has been experience.

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed....

In order to know what it is, we must know what it has been, and what it tends to become... The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past."

There is a pleasant shift in the SC's decisions towards an all embracing Holmesian approach which needs to be congratulated and admired by all alike.

When this present case was presented to the SC, there was unfounded speculation that the order would be in favour of the President who sought opinion with regard to the date of the Presidential elections. When we reflect on the political history of the country there is ample reason for such thought.

More often than not, when the Government goes to the SC the orders have been in favour of the Government. The number of cases that can be cited to strengthen this observation are legion. On the other hand, when the judges delivered judgements against the government, they were hooted, booed, humiliated and their houses, stoned.

But it is heartening to note that the present SC headed by the Hon. Chief Justice Sarath N. Silva has changed this complexion significantly. It is also heartening to note that H.E. the President Chandrika Bandaranaike Kumaratunga has accepted the verdict with restraint and respect which enables her to create the image of a leader who, unlike most of her predecessors, has respected the rule of law, justice and fair play.

All this reminds me of former US President Franklin D. Roosvelt's observation, "we want a Supreme Court which will do justice under a constitution - not over it. In our courts we want a government of laws and not of men."