The judiciary in Sri Lanka
Shylashri Shankar
In January 2006 the supreme court resolved a case in favour of Sri Lankan President Mahinda Rajapaksa in his petition against an investigation of alleged fraudulent transfers of tsunami funds into his private bank account. The court ordered police officers conducting the investigation to personally pay a sum of money to the president as damages for their individual liability in violating his fundamental rights.1 In October 2006 the apex court issued a judgment that the merger of the North and East Provinces, part of the 1987 Indo-Lanka Accord, was null and void from its inception. The ruling had “detrimental” implications for the peace process with the rebel Liberation Tigers for Tamil Eelam (LTTE) that wanted a separate state for the Tamil minority.2 Since its independence from the British, the Sri Lankan state has grappled with the task of maintaining the hegemony of Sinhalese Buddhist national identity without undermining other ethnic (Tamil) and religious (Hindu, Muslim, and Christian) identities. Critics argued that the judgments showed a clear political bias of the apex court towards the ruling regime led by a Sinhalese nationalist president.Their argument is summarized in the following statement: “The timing of the court challenge, 17 years after the merger’s effect and at the height of renewed war, signalled a deliberate attempt to drive a political wedge into the ethnic issue.”3
How are such decisions by the Supreme Court of Sri Lanka to be judged? Is the Sri Lankan judiciary merely a tool to carry out majoritarian impulses or has it championed the rule of law and fundamental rights?4 I argue that the court’s seeming bias towards the ruling regime and its inability to assuage the fears of the minority stems from its structural attributes inscribed in the constitution. Parliamentary sovereignty and the constitutional power of the executive over judicial appointments made the court less able to challenge the parliament. This, coupled with an ongoing civil war with the LTTE, ensured deference to the other state institutions in matters of national security and contributed to the court’s failure “to restrain majoritarianism” and facilitate nation building.5 Despite several opportunities, the Sri Lankan judiciary (unlike its Indian counterpart) remained committed to legal positivism rather than some form of judicial activism.
The first section of this chapter charts the erosion of judicial review and independence in three constitutional documents. I argue that the two later constitutions supported a Sinhalese majoritarian project at the expense of minority rights, with courts functioning as unwilling accomplices. The second section discusses the implications of parliamentary sovereignty on the behaviour of the court towards fundamental rights and the rights of minorities. I argue that the executive’s intervention in the appointments process created a higher judiciary that was more likely to be circumspect and avoid tussles with the president and parliament over minority freedoms. The conclusion highlights the detrimental implications of politicization of the judiciary for law, governance, and democracy in Sri Lanka.
Since independence from the British in 1948, Sri Lanka has formulated three constitutions. A comparison with the Indian constitution highlights the control wielded by the executive in Sri Lanka and explains the court’s deferential attitude. First, the constitutions (particularly the 1972 and 1978 ones) were explicitly designed to preserve Sinhala majoritarianism, in contrast to the ameliorative bent of the Indian counter-part.6 Second, unlike India, the constitution could be (and has been) amended or repealed by a two-thirds majority in the legislature, implying a view of the constitution “as a statute rather than as a special document.”7 Third, the notion that sovereignty was vested in the people, and, by implication, in parliament prevented judicial review of legislative acts— but not executive or administrative ones—with profound implications for minority rights.8 The court has rarely challenged the executive. To understand the quiescence of the judiciary, we have to assess the nature of judicial independence in the three constitutions.
The first, the 1947 Soulbury Constitution, was a “product of positivist aspirations” and a legislative attempt to “reflect the necessary conditions for peace and security.” Instead of a bill of rights, the Soulbury Constitution provided for minority protection (Section 29[2]) forbidding discrimination on the ground of race or religion and legislation infringing on religious freedom.9 The court saw it as an implicit power to declare such discriminatory legislation invalid, and did so, but not as effectively as the minorities hoped.We shall see later how courts interpreted this section. The constitution was also silent on the separation of powers, but allowed the judiciary a modicum of independence to control appointments, transfers, dismissals, and disciplinary actions against judicial officers, by vesting the power in a judicial service commission.
But the succeeding autochthonous constitution of 1972, also known as the first republican constitution, left no doubt about the dominance of the National State Assembly as the supreme instrument of state power.“We are trying to reject the theory of separation of powers,” said Felix Dias Bandaranaike, the minister of justice during the constituent assembly deliberations.10 “We are trying to say that nobody should be higher than the elected representatives of the people, nor should any person not elected by the people have the right to throw out decisions of the people elected by the people.”The legislature made itself supreme with the power to take away the jurisdiction of any court, thus making the judiciary “the most crippled arm” of the government.11
The 1978 Constitution (the current one, as of 2010), which was designed in the wake of severe criticism of the previous constitution’s restrictive provisions for judicial powers, widened the independence of the judiciary by recognizing the separation of powers (art. 4). But it continued to deny judicial review, thereby leaving the fundamental freedoms of all “open to governmental abuse and administrative non-compliance.”12 Significantly, it created a bill of rights which Peiris calls the most important single factor that allowed the supreme court constitutional jurisdiction over fundamental rights:
Today our Constitution recognises that there are certain matters, in respect of which, Parliament does not have the competence to legislate.There are things Parliament cannot do. Parliament cannot restrict the freedom of association, the freedom of publication, the freedom of movement and so on except in circumstances which fall in the provisos which form part and parcel of the constitutional document.13
The court did not use the entrenched articles, which were harder to amend, to fashion a basic structure doctrine, as their Indian counterparts did.14 In the Thirteenth Amendment Case, permitting the repeal of entrenched articles, the Supreme Court said:
If the Constitution contemplates the repeal of any provision or provisions of the entire Constitution, there is no basis for the contention that some provisions which reflect fundamental principles or incorporate basic features are immune from amendment. Accordingly, we do not agree with the contention that some provisions of the Constitution are unamendable.15
What accounts for the reluctance of judges to challenge the executive? Let us assess the nature of judicial independence in the 1978 Constitution. Commenting on judicial independence from 1978–88, C. R. De Silva said that the judiciary was under great threat from the legislative and executive branches because they used select committees to inquire into the conduct of judges.16 A parliamentary committee was set up to investigate the comments, made by the chief justice in a speech, that were critical of the government’s policy on the anti-Tamil riots of 1983.17 The establishment of a Special Presidential Commission of Inquiry by the president in 1978 to oversee the conduct of public officials including judges introduced political oversight and eroded the power of the Judicial Services Disciplinary Board.18 In the same year, the president also used his appointing powers to ensure that seven apex court and several high court judges did not serve again in the reconstitued courts. In several instances, the government promoted police officers who were held guilty by the Supreme Court of violating freedom of speech,19 and did not protect those judges hearing the case from mob violence. Thus, the third constitution reinforced the president’s control over judicial appointments, marring the capacity of judges to operate independently.20 Not surprisingly, the court was restrained in its dealings with the executive, and allowed presidential authoritarianism to continue unchecked, which had severe implications for minority rights and religious freedom.
The underlying ethos of the 1972 and 1978 constitutions supported Sinhalese nationalism at the expense of minority aspirations.21 Scholars have explained Sri Lanka’s bloody struggle as a product of a religious divide between Tamil Hindus and Sinhalese Buddhists;22 colonial practices of divide and rule which inscribed race, class, and religious categories (Wickramasinghe, 1995); short-sightedness of political elites owing to the need to accommodate minorities;23 minority complex based on regional security considerations;24 and Sinhalese linguistic nationalism.25 The Sinhalese–Tamil ethnic relationship followed a sequence of ethnic cohabitation (1948–56), autonomy (1956–72), soft separatism (1972–83), and ethnic conflict and civil war (1983–present).
The judiciary played a significant role in the evolution of the conflict. Immediately after independence, the failure of legal challenges to three discriminatory pieces of legislation—the Citizenship Act of 1948 and the Franchise Legislation of 1949 depriving Tamil plantation workers of Indian descent of franchise, and the Official Language Act of 1956 making Sinhalese the only official language—eroded the faith of the minorities in the institutions of the state.26 The Citizenship Act of 1948 was changed to deprive Tamil workers in up-country plantations of their franchise, but the court dismissed the subsequent appeal on grounds that it was not made explicit that the purpose of the legislation was to deprive a particular community of the franchise. As Peiris wryly points out, when the provisions required that one’s grandfather and great-grandfather had to have been born in the country in order to have the right to vote, it would not have required a great degree of imagination or perception to arrive at a firm conclusion with regard to the objectives of the legislature.The judges, however, found the laws intra vires (within the power of the legislature) despite the Soulbury Constitution’s prohibition on parliament to enact discriminatory legislation (art. 29(2)).
Legal theorist Rohan Edrisinha describes the approach of the court as “narrow and technical” because the judges refused to consider the motive and effect of the legislation. The reason for the court’s position, argues political scientist Jayadeva Uyangoda, was that the political climate in the 1950s and 1960s favored the view that parliament could do no wrong. So, judicial invalidation of any law would be seen as a challenge to the very idea of parliamentary sovereignty. Not surprisingly, the judiciary avoided “crucial political issues” and disappointed Tamil minorities in “its blindness to assertions of discrimination.”27
The formal constitutionalization of Sinhalese majoritarianism, according to constitutional theorist Asanga Welikala, occurred in the1972 Constitution, which discontinued the special protection accorded to minorities by the 1947 Constitution, entrenched the unitary nature of the republic, impinged on the secular principle, and trampled on multicultural sensitivities by giving constitutional recognition to the preeminent position of Buddhism.28 Any impulse for constitutional reform emanating from the Sinhalese political leadership was conceptualized not in terms of democratizing majority–minority relations within a pluralist framework, but as a way of giving juridical expression to the majority community’s nationalist aspirations.29 The legal positivist orientation of the court made it an unwilling accomplice in the majoritarian project, leading scholars like G. L. Peiris to castigate the Sri Lankan judges for being “needlessly diffident” and “ambivalent”30 and for taking a very “narrow view of their functions,” while other critics condemned the court for failing to maintain a balance between majoritarianism and constitutional limitations to protect individual freedom and minority rights.31
The recent (2008–9) success of the Sri Lankan military in wresting its territories back from the LTTE, has been seen by powerful Sri Lankan elites as a victory for the Sinhalese against secessionist claims by Tamils. Such chauvinist sentiments carry a high price for the Tamil and Muslim minorities who face severe curtailment of their democratic liberties. Recent events (discussed in the conclusion) indicate that even if the judiciary supports their petitions, the government is not likely to implement court orders.
The preamble to the 1978 constitution pro-mises all citizens freedom, equality, justice, fundamental human rights, and an independent judiciary. Article 9, which was introduced in 1972 and continued in 1978, guarantee foremost place to Buddhism and made it the duty of the State to protect and foster the Buddhasasana, while assuring to all religions freedom of religion and worship, guaranteed by articles 10 and 14 (1)(a) and (e). This has resulted in imbalances between the rights of Buddhist and non-Buddhist citizens. When Buddhism was not involved, as in a bigamy case dealing with two minority religions (Christianity and Islam), the court adopted a strict legal interpretation of the marriage contract, rather than a cultural one. But when religious freedom had an adverse impact on the freedom of Buddhism, the judges upheld the concerns of Buddhists. In two judgments dealing with rights of Christian missionaries to propagate religion, the Supreme Court upheld the preeminent place for Buddhism and clarified that freedom of religion did not include freedom to propagate. Critics chastised the judgment as “clumsy” and said that it would exacerbate the fragmentation of the polity and weaken the credibility of state institutions.32
The majority opinion in the Thirteenth Amendment Case exemplified the court’s support for the ruling regime’s interpretations and for majoritarian concerns.The Thirteenth Amendment arose from the decentralization agreement negotiated under Indian auspices in the Indo-Sri Lanka accord of 1987. The agreement, which came after years of bloody conflict between a guerrilla group, the LTTE, and the Sri Lankan government, necessitated changes to article 2, which had “entrenched” the unitary nature of the state.The nine judge bench of the supreme court considered whether the amendment was a breach of articles 2 (unitary state), article 3 (sovereignty of the people) and 9 (preeminent position of Buddhism). The shift towards federalism and India’s role aroused violent protests from sections of Sinhalese society, who saw the agreement as eroding the sovereignty of the country. An armed insurgency, led by the Janatha Vimukthi Peramuna (JVP), erupted on the streets while Buddhist organizations challenged President J. R. Jayawardene in court. The court upheld the amendment by a whisker (5:4). Explanations for the tenor of the majority opinion emphasize the institutional and political pressure from the president, who had to implement devolution in order to please India, whereas the minority opinion was seen as reflecting the ethnic (rather than religious) fear of Tamil control by the Sinhalese Buddhist nationalists.
The debate on decentralization/devolution affected the rights of Sinhalese and Muslims living in the eastern part of Sri Lanka. Tamil Hindus formed a majority in the north, while the Eastern Province (at that time) had an equal representation of Hindu Tamils, Muslim Tamils, and Sinhalese. The new bill treated the Northern and Eastern Provinces as a single unit (the North–East province), which meant that Tamils would become the majority group, while earlier they were the majority only in the north. It triggered historical fears of creeping Dravidian hegemony over the whole country, and concerns about the future protection of Buddhist monuments and culture. Chief Justice Wanasundera’s words (in the minority opinion) reflected the worry of the Sinhalese nationalists about the dismemberment of the country.
It is a fact that the single provincial council for the North and East would be dominated by Tamils with an overwhelming Tamil-speaking majority. It would be controlled and administered by Tamils, who had for nearly a half century claimed this territory as their traditional homeland and resisted a Sinhala presence.They have subscribed to a two-nation theory and not to an ideal of a Sri Lankan nationality [author emphasis].33
Nineteen years later, in October 2006, the Supreme Court implicitly supported Wanasundera’s position.The five-judge bench, headed by Chief Justice Sarath de Silva, unanimously agreed with the petitioners, representing the JVP, that the merger of the Northern and Eastern Provinces was invalid because two conditions of the accord had not been fulfilled, namely the cessation of hostilities and the demobilization of militant groups.The JVP’s argument in court focused on debunking historical and current claims by Tamils to a northeastern homeland and highlighted the secessionist consequences of allowing it. In agreeing with the petitioners, the court risked being seen as a Sinhalese nationalist, anti-Tamil entity even though the judges used the rationale of a “right to equality.”
Although, overall, the tone of the judgments favored the positions adopted by the ruling regime, the legal positivist attitude of the judiciary had a silver lining for the victims of torture. The court evolved mechanisms to compensate the victims (usually Tamils suspected of links with the LTTE) when state agencies infringed on fundamental rights such as freedom from torture (art. 11). Similarly, environmental activists benefited from a ruling in November 2005 that Galle Face Green, a 14-acre seaside promenade in Colombo, was a public utility and could not be leased out to private developers.34 The government was directed to pay costs of Rs 50,000 to the NGO plaintiff.
In September 2006, a five-judge bench of the apex court headed by the chief justice ruled that the accession of the government to the Optional Protocol of the International Covenant on Civil and Political rights was inconsistent with the constitution. The judgment came after a petition by a Tamil man who had been arrested and convicted on evidence that was coerced through torture; the United Nations Human Rights Commission validated the petitioner’s claim of torture and found the Sri Lankan state responsible for violating the Optional Protocol.35 Critics saw the judgment as further undermining public confidence— particularly that of minorities—in the state’s (including the judiciary’s) commitment to the rule of law and human rights and, in effect, removing the country from the international human rights community.36
Another worrying development has contributed to further politicization of the judiciary. The Seventeenth Amendment, enacted in 2001, decreed that the president’s nominees to the higher judiciary had to be ratified by a constitutional council (CC), a body with six members appointed by parliamentary consensus, and four ex-officio members.The CC, however, has been defunct since 2005 because of the president’s refusal to fill the vacancies.37 Instead, the president bypassed the CC and appointed several judges on the recommendation of the chief justice.38 Ruling on a petition challenging the President’s actions, the Supreme Court ordered the government to establish the CC by 15 January, 2009. The president lashed out at the court accusing it of undermining his powers and made veiled threats that the judges could find themselves the target of thugs.
In the name of national security, the Rajapakse government has curtailed basic democratic liberties, threatened the media and NGOs, and turned a blind eye to the hundreds of “disappearances” and murders of political opponents allegedly caused by death squads operating with security forces. The decision-making power is now concentrated in the hands of the president and his close associates, particularly his three brothers.With the success of the Rajapakse government in recapturing the eastern and the northern provinces from the LTTE, the judiciary has become the main arena for the battle between president and those political/civil society groups who fear that Rajapakse is using the argument of national security to become autocratic. Several recent judgments—removal of the treasury secretary for corruption, halting the sale of government land to private developers—supported the position of these groups against the president. But the government has ignored court orders or only partly implemented them (e.g. reduced the price of petrol but not to Rs 100 as mandated by the court). In January 2009, the supreme court terminated the proceedings on the oil case saying that the government was no longer implementing court orders on the issue. Executive sovereignty looks set to ring the death knell for the rule of law and democracy (particularly for minorities) in Sri Lanka.
1 Mahinda Rajapakse vs Chandra Fernando and Ors, S.C. (FR) Application No. 387/2005 (also known as the Helping Hambantota Case), reported in Center for Policy Alternatives, Wa r, Peace and Governance in Sri Lanka: Overview and Trends 2006, p. 20.
2 Jayadev Uyangoda, The State and the Process of Devolution in Sri Lanka, in Sunil Bastian (ed.), Devolution and Development in Sri Lanka (Colombo: ICES, 1994); Neelan Tiruchelvam, Federalism and Diversity in Sri Lanka, in Yash Ghai (ed.), Autonomy and Ethnicity (Cambridge: University Press, 2000), pp. 198–200.
3 Center for Policy Alternatives, p. 21.
4 Sri Lanka has a professional judiciary, a strong executive (which is the directly elected head of the state and government), parliamentary sovereignty, and emergency/anti-terror laws to combat secessionism.
5 Rohan Edrisinha, “Sri Lanka, Constitutions without Constitutionalism—A Tale of Three and a Half Constitutions,” unpublished paper.
6 Gary Jacobsohn and Shylashri Shankar, “Constitutional Borrowing in South Asia: India, Sri Lanka, and Secular Constitutional Identity,” forthcoming.
7 Author’s interview with Rohan Edrisinha, Professor of Law, University of Colombo, March 2006.
8 Article 80(3) which reads as follows: “[N]o court or tribunal shall inquire into, pronounce upon or in any manner call in question the validity of such Act on any ground whatsoever.” But the court can vet executive and administrative infringements. R. Coomaraswamy (1994) Devolution, the Law, and Judicial Construction in Bastian, Devolution and Development and Sunil Bastian, Ideology and the Constitution (Colombo: ICES, 1996), ch. v.
9 Ivor Jennings reportedly said in a 1961 BBC interview that a comprehensive bill of rights should have been included: “If I knew then, as much about the problems of Ceylon, as I do now, some of the provisions would have been different”; Jayampathy Wickramaratne, Fundamental Rights in Sri Lanka (Pannipitiya: Stamford Lake, 2006), p. 18.
10 Quoted in Lal Wijenayake, Independence of the Judiciary in Sri Lanka Since Independence (Pannipitiya: Stamford Lake, 2005), p. 5.
11 Radhika Coomaraswamy, Sri Lanka:The Crisis of Anglo-American Constitutional Traditions in a Developing Society (New Delhi: Vikas, 1984).
12 Lakshman Marasinghe, “An Outline for a Constitutional Settlement in Sri Lanka,” Address at the International Center for Ethnic Studies, Colombo, March 2003, p. 11.
13 G. L. Peiris,“Judicial Review of Legislative and Administrative Action,” unpublished conference paper, 28 August, 1988, pp. 437–56.
14 Articles 1 (the State), 2 (Unitary State), 3 (Sovereignty of the People), 6 (National Flag), 7 (National Anthem), 8 (National Day), 9 (Buddhism), 10 (Freedom of Thought, Conscience, and Religion), and 11 (Freedom from Torture) are entrenched.
15 In Re The Thirteenth Amendment to the Constitution and Provincial Councils Bill,S.C. 7/87 (Spl) TO S.C. 48/87 (Spl), p. 329.
16 The 1978 Constitution adopted a three-tiered system of courts: the supreme court, court of appeal, and the high courts. All judges of the higher judiciary (supreme court and court of appeal) were appointed by the president and served until his/her retirement at the age of 63 in the case of supreme court judges and age 63 in the case of court of appeals judges retired at 63, unless removed by the president for misbehavior, which had to be endorsed by a majority of the parliament.
17 Cited from C. R. De Silva,“The Independence of the Judiciary under the Second Republic of Sri Lanka, 1978–88,” unpublished paper presented at the Eleventh Conference of the International Association of Historians of Asia, 1–5 August, 1988, Colombo, p. 491.
18 Special Presidential Commission of Inquiry, Law No. 7, 1978. The parliament declared a judgment of the Court of Appeals (Bandarnaike vs Weeraratne (1981) 1 SLR 10) null and void.
19 Daramitipola Ratnasara Thero vs P. Udugampola (1983) 1 Sri LR 461; Vivienne Gunawardene vs Hector Perera (1983) S.C. Application 20/83.
20 The most recent example was the appointment of Justice Sarath Silva as the chief justice, overlooking Justice M. D. H. Fernando. See Wijenayake, pp. 16–22.
21 With a population of 19.4 million, approximately 70 percent of the population is Buddhist, 15 percent Hindu, 8 percent Christian (mainly Roman Catholics), and 7 percent Muslim (mainly Sunnis).
22 David Little, The Invention of Enmity (Washington, DC: United States Institute of Peace Press, 1993).
23 Jonathan Spencer (ed.), Sri Lanka: History and the Roots of Conflict (London: Routledge, 1990).
24 Stanley J. Tambiah, Sri Lanka: Ethnic Fratricide and the Dismantling Of Democracy (Chicago, IL: University of Chicago Press 1986).
25 Neil de Votta, Blowback: Linguistic Nationalism, Institutional Decay, and Ethnic Conflict in Sri Lanka (Stanford, CA: University Press 2004).
26 Mudanayake vs Sivagnasunderam (53 NLR 25); Kodikam Pillai vs Mudanayake (54 NLR 433); Kodeswaran vs Attorney General (70 NLR 121).
27 Jayadeva Uyangoda, Questions of Sri Lanka’s Minority Rights, Minority Protection (Monograph, South Asia Series-2, International Center for Ethnic Studies, Colombo: Unie Arts 2001), p. 57.
28 Asanga Welikala,“Towards Two Nations in One State,” unpublished conference paper, EURO Regions Summer University of the Institute of Federalism, University of Fribourg, Switzerland, 21 September, 2002.
29 Uyangoda, Questions of Sri Lanka’s Minority Rights, points out that despite a clear victory in the Northern and Eastern provinces for a Tamil party fighting the 1977 elections on the idea of achieving separate statehood for Tamils, the new Sinhalese UNP government adopted a constitution reiterating all features of unitarism and centralization.
30 Radhika Coomaraswamy and Neelan Tiruchelvam, The Role of the Judiciary in Plural Societies (Delhi: Palgrave Macmillan, 1987).
31 Coomaraswamy and Tiruchelvam, The Role of the Judiciary; Rohan Edrisinha, “In Defence of Judicial Review and Judicial Activism,” unpublished paper presented at the Eleventh Conference of the International Association of Historians of Asia, 1–5 August, 1988, Colombo, p. 476.
32 Asanga Welikala, “The Menzingen Determination and the Supreme Court—A Liberal Critique,” Monograph, Center for Policy Alternatives, p. 10.
33 In Re The Thirteenth Amendment to the Constitution and Provincial Councils Bill, p. 377.
34 EFL vs UDA FR 47/2004.
35 Sinharasa vs Sri Lanka, Case No. 1033/2004.
36 War, Peace and Governnance in Sri Lanka,p.21.
37 In June 2006 the Court of Appeals rejected the petition by two citizens in J. Dandaniya and Edirimuni Samith de Silva v Sri Lanka,C.A. Appeal 66/2006.
38 For a critique of the chief justice’s actions, see http://www.alrc.net/doc/mainfile.php/alrc_statements/418/.