Has the SC reintroduced sovereignty of British monarch : in Courts Martial judgment in Gen. Sarath Fonseka’s case?

By Nigel Hatch
President’s Counsel

The statement made by Mr. Ranil Wickremesinghe MP, Leader of t he Opposition in Parliament and reported in The Island of 9-2-2011 under the caption "Ranil asks govt. how long it intends to keep SF in jail" by Saman Indrajith raises several issues of Constitutional significance relating to the relationship between Parliament and the Judiciary within the wider Constitutional setting of a Separation of Powers in the present second Republican Constitution of 1978. Although not explicitly stated the statement was indubitably a reference to the recent determination of the Supreme Court in Sarath Fonseka V. The Secretary General of Parliament & Seven Others (SC Ref: 1/2011; CA (Writ) Appl No:676/2010, decided by the Supreme Court on 10-01-2011).

The Supreme Court was called upon by the Court of Appeal in terms of Article 125 of the Constitution to determine the question weather a Court Martial constituted under the Army Act No.17 of 1949 was included in the expression ‘any Court’ referred to in Article 89 (d) of the Constitution. Behind this somewhat abstruse question of law lay political implications because the question posed arose in the legal proceedings initiated by Gen. Fonseka in the Court of Appeal for a writ to quash several decisions made to declare that his seat as a Member of Parliament had fallen vacant.

The crux of the statement was that "recent judicial observations" had sought to re-introduce the sovereignty of the British Monarch by recognising the prerogatives of the Crown which was tantamount to reversing the present legal order effective since 1972 based on the sovereignty of the people.

These judicial observations according to him were based on two cases decided prior to the first Republican Constitution of 1972, namely Gunaseela V. Udugama (1966) 69 NLR 193 and Edmund Hewavitharana (1915) 18 NLR 334 which accepted the validity of the British Army Act of 1881.

Mr. Wickramasinghe based this conclusion on the following, inter alia: -

(a) The first Republican Constitution of 1972 severed the limb with the British Crown and the source of sovereign power;

(b) The National State Assembly under the 1972 Constitution exercised the legislative power of the people directly and the executive power of the people through the President and the Cabinet and the Judicial power of the people through Courts;

(c) The second Republican Constitution of 1978, which is the present Constitution, which replaced the 1972 Constitution included these powers in Articles 3 and 4 of the present Constitution;

(d) The independence Constitution did not refer to Judicial power but the Privy Council in Liyanage V The Queen (1962) 64 NLR 313, held that Judicial power continued to be vested in the Courts as set out in the Charter of Justice and the Courts Ordinance;

(e) Therefore neither the Courts nor Parliament can give legal recognition to the sovereign powers and prerogatives exercised by the Monarch.

The essence of Mr. Wickramasinghe’s argument was that the Courts instead of proceeding under Article 4 of the present 1978 Constitution have sought to reintroduce the concept of the prerogatives of the Monarch relying on Articles 16, 105(2) and 168(1) of the 1978 Constitution which keeps in existence all laws enforced at the time of the enactment of the present Constitution in September 1978. Moreover he has submitted that "this is the intention of the legislation, unfortunately the judicial observations have not gone into these aspects."

Mr. Wickramasinghe concludes that "we have now come to a crisis situation where Parliament recognises the sovereignty drawn from the people while the Courts have now started to now recognise the prerogative powers of the Monarch."

The rectification of this alleged judicial misadventure proposed by him is that Parliament must therefore safeguard the sovereignty of the people and repudiate the recognition directly or indirectly given to the prerogative powers of the Monarch and declare any such decision invalid. This will be further adverted to later in this article.

The implications of this statement are serious. Quite apart from implying that the Bench has violated their oath of allegiance to the present Constitution, it further implies that there was no legal basis for the determination and that the Bench disregarded basic principles of constitutional law in arriving at their conclusion.

A careful reading of the judgment of the Supreme Court in Gen. Fonseka’s case would establish that the Supreme Court has done no such thing.

Whilst all five judges who constituted that bench of the Supreme Court unanimously held that a Court Martial was included in the words ‘any Court’ in terms of Article 89 (d) of the Constitution, neither the majority judgment authored by the present Chief Justice Asoka De Silva with which Justices Dr. Shirani Bandaranayake, Gamini Amaratunga J. and Sripavan J. agreed with, nor the separate concurring opinion of Justice Saleem Marsoof, PC has in any manner sought to recognise the prerogative powers of the British Monarch in conflict with the sovereignty of the people exercised and enjoyed inter alia by a Separation of Powers between the Executive, Parliament and the Judiciary as postulated in Articles 3 and 4 thereof.

Before an analysis is made of the two judgments of the Supreme Court it should be noted that a common feature of all three Constitutions of Sri Lanka was that provision was made for the continuation and validity of pre existing legislation. This has a pragmatic rationale otherwise chaos would ensue.

As regards the question of law posed for determination - the contention on behalf of Gen. Fonseka was that a Court Martial lacked the features of a Court of civil judicature and is not covered by Article 105 of the Constitution as a Court and contravenes Article 4(c). By contrast the AG argued that a Court Martial being empowered to impose any sentence of imprisonment or death was a competent Court in terms of Article 13(4), and as such, attracted the provisions of Article 89(d) of the Constitution.

Both the Chief Justice and Marsoof J. in order to determine the question posed analysed a series of constitutional decisions between 1962 to 1968 which were cited and are known as the "Judicial power cases". These cases considered whether appointments to certain offices had to be made by the Judicial Service Commission because Judicial power was exercised and whether certain Acts were unconstitutional in the context of the separation of powers in the independence Constitution. The SC also considered its previous judgments in Udugama’s case where the Supreme Court determined that the Independence constitution did not have the effect of invalidating the provisions of any pre existing statute under which judicial power was exercised by a person not holding judicial office and that this rule applied even to the Army Act 1949 which merely reenacted pre existing law; and Edmund Hewavitharana where a writ was refused against a court martial in the context of the law as it stood at that time.

Citing the judgment of H.N.G Fernando (SPJ) in Udugama’s case which dealt with the nature of the powers of a Court Martial and where the legislative history of a Court Martial in the present Army Act of 1949 was considered, the SC in Gen. Sarath Fonseka’s case merely noted that such legislative history revealed that the Army Act 1881 of the UK was part of the law of Ceylon long before independence and even thereafter until the present Army Act was enacted. In Udugama the Court had held that the opinions expressed in American and Australian decisions that the powers of Courts Martial were independent of the judicial power of state could be followed in Ceylon with the adaptation that such tribunals were traditionally distinct from the judicature of Ceylon.

The legislative history of any legal concept in issue is a legitimate tool that any apex Court utilises in determining a question of law before it and has a long and unquestioned acceptance in Sri Lanka’s post independence jurisprudence. The reference to both cases was indeed necessary having regard to the submissions made even by Gen. Fonseka’s counsel that the concept of a Court Martial was valid and operative in the present legal system. The point of departure between Gen. Fonseka and the State was whether a Court Martial was included in the words ‘any Courts’ in terms of the present Constitution.

But in determining the question of law posed the Chief Justice took cognisance inter alia of the constitutional imprimatur of the validity of all pre-existing law (thus even the Army Act of 1949 which provided for the establishment of a Court Martial); that the present Constitution, as indeed its predecessor in 1972, forbad the judicial review of legislation; the consensus between Gen. Fonseka’s counsel and the AG that the concept of a Court Martial was valid and operative in the present legal system; that a Court Martial is empowered to hand down a sentence of imprisonment or death which was valid until and unless overturned by a Court of competent jurisdiction. Construing Articles 4(c) with Articles 16, 105 and 142 of the Constitution read together with the relevant provisions of the Army Act, the Chief Justice determined that a Court Martial is an entity exercising judicial power and recognised by the Constitution in terms of Article 4(c) and was a Court in terms of Article 89 (d) of the Constitution.

Justice Marsoof in his concurring judgment in answering the question characterised as one of "considerable difficulty," approached it from a novel position. He noted that an issue that could arise is whether the provisions of the Army Act of 1949 may be considered to be in force notwithstanding any inconsistency with the Independence Constitution. Noting that since 1972 only pre-enactment review of bills has been permissible, he concluded that there was no fetter on the power of any court or tribunal to review pre-1972 legislation on the ground of inconsistency with the provisions of the Independence Constitution as these laws derive their legal validity from that Order in Council.

The implications of this approach are beyond the scope of this article. Justice Marsoof concluded that the provisions of the Army Act 1949 relating to courts martial did not offend the provisions of the Independence Constitution and were in force at the commencement of the 1972 Constitution.

Thereafter, examining the constitutional status of courts martial in the context of the present 1978 constitution, Marsoof J whilst noting a divergence in the submissions of counsel for Gen. Fonseka, who argued that such a body came within the purview of Article 4(c) dealing with judicial power of the people and the contention of counsel for the 7th Respondent who was nominated to fill Gen. Fonseka’s seat in Parliament, that it fell within the ambit of Article 4(b) which dealt with executive power, concluded that a court martial came within Article 4(b) which deals with the executive power of the people.

Whilst determining that a court martial was not a court or tribunal as described in Article 105 and a member thereof not a "judicial officer" as defined in Article 170, Marsoof J further opined that the question of law had to be understood in the light of Article 89. Analysing the constitution he noted that there can be courts competent to impose punishments, including the death sentence, which are not part of the regular judicial hierarchy. It was in this context that Marsoof J referred to the decision in Edmund Hewavitharana (1915) 18 NLR 334, which noted that a court martial was an "extraordinary court." As such Marsoof J concluded that it was unimaginable that a person convicted or found guilty of any of the offenses contemplated by Article 89 should be free to continue as an MP, thus answering the question of law posed in the same manner as the Chief Justice.

In the circumstances, the criticism leveled by Mr. Wickremesinghe is without foundation. Moreover, the two examples he cites in support of his solution that Parliament declare this decision invalid are also inapposite.

The first was the decision taken by the Speaker in the NSA under the 1972 Constitution that Parliament had the right to proceed with the Press Council Bill despite the fact that the Constitutional Court entrusted with pre-legislative scrutiny had failed to deliver its opinion within the prescribed period of 14 days. What took place on this occasion is neatly encapsulated by Dr. Anton Cooray in his "Judicial Role under the Constitutions of Ceylon/Sri Lanka – An Historical and Comparative Study (1982)," from page 244. Although an effort was made by the then government to resolve this impasse, the Constitutional Court presided over by Justice T.S. Fernando refused to request an extension of time from the NSA, which was in fact what was proposed by the government. What in fact transpired is that the original CC resigned and the Bill referred de novo to a newly constituted Court which communicated its decision within 14 days to the Speaker. Thus the NSA did not deviate from the constitution. However, this episode was specifically cited by the subsequent UNP government before the Special Presidential Commission of Inquiry (SPCI) established in 1978 as an example of the manner in which the SLFP government had attempted to interfere with the judiciary. However the SPCI having gone into the matter decided otherwise (vide SP VI-1979 at pp. 4).

The second is the ruling delivered on 20 June 2001 by the then Speaker Anura Bandaranaike on an interim order issued by the Supreme Court restraining him from appointing a Select Committee on the motion of impeachment presented against the then Chief Justice Sarath N. Silva. In this ruling the Speaker concluded that the Supreme Court had no jurisdiction to issue the interim orders which were not binding on him. This ruling can be justified on the basis that there was no justification for the court order. But this is not the case in the judgment under discussion.

But there is in fact a precedent where Parliament legislated to nullify a judgment of the Court of Appeal not referred to in the statement. This was when Mrs. Sirimavo Bandaranaike sought and obtained in the Court of Appeal in writ application No. 1/78 an interim order against the SPCI on 9th November 1978. The UNP government of the day responded swiftly and retroactively amended the law nullifying the effect of that judgment by the enactment of the SPCI (Special Provisions) Act No. 4 of 1978. This whole exercise of the SPCI against Mrs. Bandaranaike and others has been widely considered to be an act of political victimization– see in general H.L. de Silva, PC in "The Imposition of Civic Disability" published in "FDB" compiled by Lakshmi Dias Bandaranaike (1994) at pg.129.

It is accordingly the considered view of this writer that there is no basis for Parliamentary intervention as Parliament and the Courts operate in their respective spheres. The judgment of the SC in the instant case was only on the interpretation of a question of law. No doubt Gen.Fonseka’s lawyers will vigorously pursue all legal avenues as regards challenging the legality and merits of the verdicts of the courts martial.

The Supreme Court has erred in the past and doubtless may well do so in the future. It is supreme but not infallible. What is essential is that there is an informed scrutiny of its judgments, a practice which has sadly gone into desuetude. Such scrutiny will only strengthen the institution. India affords us a striking example of where such scrutiny has in no way diminished the stature of the institution in the public.

In the context of the 1978 Constitution, the institutional independence of judges of our apex courts as regards tenure and emoluments etc. is assured. Attention has however shifted as to whether there is encroachment on their "decision making independence"in any manner.

There appear to be concerns, some of which have been expressed by prominent opposition MPs, including Mr. Mangala Samaraweera and Mr. Lakshman Kiriella. In fact, so has Mr. Rauf Hakeem, MP whilst in opposition. One would hope that now that he is in the Cabinet as Minister of Justice that if still of that view he would take steps to address some of these issues.

Almost 30 years ago, this writer as a law undergraduate attended a public lecture by the late Dr. Colivn R. de Silva on the 1978 Constitution. After the lecture, Mr.Sam Wijesinha, then SG of Parliament introduced him to Dr. de Silva. I remonstrated with Dr. de Silva that he had been uncharitable as regards the provisions of the 1978 Constitution, which I felt had further strengthened the independence of the judiciary. His response was "young man, you can have any amount of protection in the Constitution for Judges but in the end all this will be useless unless the Judge is impartial and has integrity." The wisdom of this response has remained with me ever since.

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