History says that before the collapse of the Greek system of city states their activities assumed a grotesque form. Something similar is happening in Sri Lanka too now.
A Commander of the army who had retired without being accused of bribery (Gerry de Silva) and an engineer respected by the professionals (A.C. Visvalingam), filed a fundamental rights petition in the Supreme Court alleging that the appointments made to the higher judiciary without due approval from the constitutional court are illegal and that thereby their fundamental rights had been denied.
This unique petition was taken up for inquiry by a panel of judges which included the Chief Justice. The panel of judges not only inquired into the petition but also ordered the Attorney General to find out whether the petitioners had abused the judiciary by filing such a petition and to inform the Supreme Court accordingly.
What the Supreme Court implied thereby was that no one had the right to question whatever the President did because he had the protection of immunity and that it was an offence to go to the judiciary to question it.
These two citizens are not UNP members. They did not go before the courts to secure any narrow political advantage to a political party. They are two persons who are aware of the process of governance and went before the only and the last place they could go as good citizens against a serious lapse in that process in order to have it rectified.
It may be that they were unaware of the fact that the country is now moving along a wrong track. They may be considered to be two good law-abiding citizens interested in the welfare of the country who went to the right place where such a grievance should be taken, although they might not get any relief from the judiciary.
The reply given them by the judiciary was unique. “We are not prepared to inquire into anything the President does consciously or unconsciously. Dare not bring here any such grievances hereafter,” seemed to be the response of the judiciary.
The main responsibility of the Supreme Court is to defend the constitution. It is a responsibility of the Supreme Court not to permit the Executive to assume any powers that do not accord with the constitution.
However, the Supreme Court of Sri Lanka is not prepared to discharge that responsibility. The Supreme Court has turned the protection of the President rather than the constitution into its main responsibility. Thereby the constitution of the country has been annulled and the President has become the constitution of the country.
It is clear that the constitution has been killed without bringing a new constitution into force. Thereby Sri Lanka has become a land with no constitution and with no fundamental law necessary for carrying out the day-to-day activities.
A court case similar to the one filed by these two citizens has been filed by the Organization of Professional Associations (OPA) too. It is being heard before the Court of Appeal. The subject of that case too is the violation of the 17th amendment to the constitution.
Prior to the filing of that case by them, another group (the People’s Movement for Good Governance) had filed a similar case before the Court of Appeal. The verdict they got was that, in terms of the President’s immunity, no action of his could be questioned before a court of law.
This shows that knowledgeable groups of citizens continue to go before the courts against a serious offence committed in the country and are waging an important legal battle knowing that they would be defeated. Their aim is to tell the country that a serious offence has been committed and thereby to enlighten the people.
However, previously such struggles were waged by the political parties and not by the citizens. But in this vital matter all the political parties are silent. The UNP is silent. The JVP is silent. The Jathika Hela Urumaya is silent. For any of those parties the constitution of the country has not been important.
It has not been important enough for them even to debate it in parliament to say nothing of fighting it before a judiciary. Indeed the Judiciary has now come to abandon an important sphere it was in charge of, namely its responsibility to examine the actions of the Executive and to annul any illegal actions committed by the Executive. As a result the Executive is able to proceed in the way it likes, with no obstacles from the Judiciary.
The Judiciary now does not have the power to defend the citizens when the Executive attacks the rights of the citizens. That power which the Judiciary had, it has now voluntarily abandoned. Consequently the process of governance will go on with no judicial supervision in the same way as things are happening in Prabhakaran’s Reich. Prabhakaran’s Reich has no authority to investigate Prabhakaran’s actions.
Although that had been the only difference between Prabhakaran’s judiciary and ours, now, in a context in which our judiciary itself is giving up that fundamental difference, we are now approaching Prabhakaran’s Reich in so far as civilised conduct is concerned.