Supreme Court stands tall

The Wickremesinghe-Rajapaksa government ignored concerns raised by both local and international organizations. The Commonwealth Lawyers Association (CLA), the Commonwealth Magistrates’ and Judges’ Association (CMJA) and the Commonwealth Legal Education Association (CLEA) declared their concerns over the government’s refusal to comply with the SC court order to release the funds allocated by Parliament for local elections. They also raised the subsequent referral by Speaker Mahinda Yapa Abeywardena of the three Supreme Court Judges responsible for the decision to the Parliamentary Committee on Ethics and Privileges. But, the arrogant political apparatus turned a blind eye to such concerns.

By Shamindra Ferdinando

None of the Supreme Court justices namely Preethi Padman Surasena, Janak de Silva, and Priyantha Jayawardena, PC, who had heard the petitions against the postponement of the Local Government polls, early last year, represented a five-judge bench that delivered the final order last week. Jayawardena retired in the last week of February this year.

The SC held that President Ranil Wickremesinghe, in his capacity as the Finance Minister, violated fundamental rights of the people, guaranteed in terms of Article 12(1) and 14(1)(a) of the Constitution. The SC also found fault with the Attorney General and the Election Commission.

Had the government adhered to the March 3, 2023, directive that funds necessary for the conducting of the LG polls be allocated without delay, it could have averted the stunning blow just weeks away from the first post-Aragalaya national election.

The SC bench that gave the unprecedented order, in respect of political party leader and executive president, comprised Chief Justice Jayantha Jayasuriya, PC, Justices Vijith Malalgoda, PC, Murdu Fernando, PC, Gamini Amarasekara, and Yasantha Kodagoda, PC. Let me mention the full list of Supreme Court justices, CJ Jayantha Jayasuriya, PC, Murdu Fernando, PC, Preethi Padman Surasena, S. Thurairaja, PC, E.A. G.R. Amarasekara, Yasantha Kodagoda, PC, A.H.M.D. Nawaz, Kumudini Wickremasinghe, A.L. Shiran Gooneratne, Janak de Silva, Achala Wengappuli, Mahinda Samayawardhena, Arjuna Obeyesekere and K. Priyantha Fernando.

Altogether four parties, the main Opposition Samagi Jana Balawegaya (SJB), Jathika Jana Balawegaya (JJB), Centre for Policy Alternatives (CPA) and People’s Action for Free and Fair Elections (PAFFREL) moved the SC against the refusal on the part of the Wickremesinghe-led government to hold scheduled polls. The PAFFREL spearheaded civil society efforts to pressure the government.

With the Ninth Presidential Election just four weeks away, the SC order couldn’t have been delivered at a far worse time for the incumbent President accused of circumventing apex court interim orders in respect of petitions filed against IGP Deshabandu Tennakoon and private consortium IVS-GBS and VFS Global dealing with visa issuance.

The SC’s response to threatening moves made by a section of the parliament at the behest of President Wickremesinghe with regard to the interim order given by justices Preethi Padman Surasena, Janak de Silva, and Priyantha Jayawardena has proved the failure of the disgraceful political project.

Obviously, government strategists failed to comprehend how their game plan could end. No one in Wickremesinghe’s camp would have envisaged the devastating outcome of the LG polls petitions, especially after being blinded by mistakenly thinking that the presidential powers they thought they had could help them to bulldoze their way through anything. RW may have also been emboldened by the kid glove treatment he got at the Bond Presidential Commission probe earlier.

It would be pertinent to mention that the major beneficiaries of the SC order are SJB candidate Sajith Premadasa and JJB candidate Anura Kumara Dissanayake as the Sept. 21 presidential contest is widely believed to be among them and the incumbent President.

The devastating SC order severely embarrassed the Wickremesinghe camp, particularly the rebel SLPP parliamentary group that blindly pledged support to the UNP leader, possibly fearing another foreign-backed sinister Aragalaya worse than what they experienced in 2022, or to save their political life. Examples are aplenty if we look around at what happened to our neighbours Pakistan and Bangladesh. They can’t repeat their success that easily in Myanmar as China is keeping a close watch. How would Foreign Minister Ali Sabry, PC, who also holds the Justice portfolio, responds to the developing situation?

Govt. issues warnings

Close on the heels of the interim SC order on March 3, 2023, Attorney-at-Law Premanath C. Dolawatta, who had identified himself as family lawyer of the Rajapaksas, strongly criticized the apex court with regard to the directive issued to the Finance Secretary Mahinda Siriwardana and then Attorney General Sanjay Rajaratnam, PC.

Acting at the behest of President Wickremesinghe and the SLPP parliamentary group, first time entrant to Parliament Dolawatta, in spite of being a lawyer, alleged on March 07 that the SC order violated powers and privileges of Parliament. The SLPP National List MP argued that the SC interim order interfered with Article 43 (1) read with Article 148 of the Constitution thereby seeking to undermine parliamentary control over public finance. Without hesitation, the politician targeted one of the three justices. Declaring that the interim order violated the principle of natural justice, MP Dolawatta alleged: “One of the learned Judges who issued the interim order is related to a petitioner in a similar case being heard before the other bench of the Supreme Court. The learned Judge has not disclosed the relationship, nor has he recused himself from the case.”

MP Dolawatta couldn’t have been unaware of the outcome of the petitions filed against the postponement of the LG polls. But, the MP had no option but to condemn the Supreme Court, regardless of the consequences. That decision, obviously being taken at the highest level, at the end not only caused embarrassment to the President but the entire Parliament as well.

Three days after lawmaker Dolawatta’s controversial declaration, State Finance Minister Shehan Semasinghe stepped up attacks on the SC. Lawmaker Semasinghe asked Parliament to disregard the SC’s interim order until the Ethics and Privileges Committee dealt with the issue. The SLPPer demanded that a letter sent by the Elections Commission to the Finance Ministry consequent to the SC directive, too, be referred to the Ethics and Privileges Committee.

The Wickremesinghe-Rajapaksa government worked overtime to sabotage the LG polls. PAFFREL questioned the combined efforts made by President Wickremesinghe and Premier Dinesh Gunawardena to influence the then Election Commission. The government involved the then AG Rajaratnam in its efforts and the whole political project later exploded in the wake of President’s failed bid to grant a six-month extension to the official.

In spite of declaring its intention to summon Preethi Padman Surasena, Janak De Silva, and Priyantha Jayawardena, PC, the government lacked the political will to go the whole hog. The Opposition lambasted the government over the contentious move.

The government acted in a way that it felt could put off LG polls without suffering major political damage but the final SC verdict seemed to have dealt a devastating blow to Wickremesinghe.

Speaker Mahinda Yapa Abeywardena owed the public an explanation as he accepted MP Dolawatta’s assertion that parliamentary powers and privileges had been violated and the matter be referred to the Ethics and Privileges Committee.

Towards the end of 2022, the Opposition raised the possibility of the government exploiting a private members’ motion, submitted by MP Dolawatta, to enhance youth representation in governance. One-time External Affairs Minister Prof. G.L. Peiris who fired the first salvo against the attempt to put off the LG polls further, alleged that the motion could be utilized to delay the polls indefinitely. The one-time top law academic recalled how the Yahapalana government postponed the Provincial Council elections indefinitely.

The rebel SLPP Chairman pointed out that the government had chosen MP Dolawatta’s motion, handed over to President Wickremesinghe on Oct 31, 2022, though SJB’s Imthiaz Bakeer Markar submitted a private member’s motion on the same lines much earlier. However, that strategy, too, never materialized. TheWickremesinghe-Rajapaksa combinnation simply forgot the LG polls while the UNP leader undertook a high profile project to make the Presidential Election, too, disappear.

President’s questionable strategy

Having quit the ruling SLPP parliamentary group, ahead of the parliamentary vote on a new President to complete Gotabaya Rajapaksa’s five-year term, Prof. Peiris fiercely attacked efforts to undermine the electoral process. The former Vice Chancellor of the Colombo University questioned the President’s attack on the electoral system at an event organized by the BASL in the second week of June 2023.

He chose to challenge Wickremesinghe on the postponement of the LG polls at the BASL’s National Law Conference held at the Grand Hotel, Nuwara Eliya, for questioning the very basis of our electoral system. Before the Judges of the SC, as well as the Court of Appeal hearing petitions filed against the indefinite postponement of LG polls, President Wickremesinghe declared that the people had no faith in elections.

Prof. Peiris emphasized that there had never been a previous instance of a President declaring elections weren’t important as the vast majority of the population, including the youth, had lost faith in elections and the political party system.

In the following month, businessman C.D. Lenawa sought to derail the Presidential Election by preventing the calling of the poll until the SC delivered its interpretation on the date of the presidential poll. A five-member SC bench consisting of Chief Justice Jayantha Jayasuriya, Vijith Malalgoda, Murdu Fernando, Preethi Padman Surasena and S. Thurairaja dismissed the petition. The petitioner was fined Rs 100,000.

The JJB, IUSF on behalf of the Jana Aragala Sandhanaya, NFF and SJB filed petitions against Lenawa’s move that was dismissed in July.

Amidst accusations that the government was behind Lenawa’s move, the President’s Media Division (PMD) denied President Wickremesinghe’s association with the person concerned. The court proceedings on July 08, 2024 exposed Lenawa’s intention and he was asked to pay as cost Rs 100,000 by the SC.

Regardless of Lenawa’s fate, another person, Attorney-at-Law Aruna Laksiri, moved the SC claiming that the 19th Amendment to the Constitution hadn’t been enacted properly, he called for the SC’s intervention to conduct a referendum before the presidential poll. The SC dismissed that petition, too. The SC ordered the petitioner to pay a court fee of Rs. 500,000.

That ruling was made by a bench comprising Chief Justice Jayantha Jayasuriya, Justices Arjuna Obeysekera, and Priyantha Fernando affirming the formal adoption of the 19th Constitutional Amendment without the need for a referendum, in line with prior rulings from 2015.

In his petition, Laksiri claimed that the 19th Amendment amended Article 70 of the Constitution, which deprives the President of the power to dissolve an elected Parliament after one year. The lawyer contended that the amendment has not been approved by a referendum, despite a Supreme Court ruling indicating it should be.

During the proceedings, the Attorney General emphasized before the Supreme Court that the Presidential term is constitutionally defined as five years.

Having scuttled the LG polls, President Wickremesinghe, in late February 2023, explained the circumstances he decided not to conduct thebLG polls. Participating in a debate on the Essential Public Services Act, President Wickremesinghe underscored his strategy that his priority was building the economy and not politics. Obviously that was nothing but a signal for the country and the justices hearing relevant cases. By then, the President’s actions and that of his government had effectively prevented the holding of the LG polls as stipulated on March 09, 2023. The PMD aptly headlined Wickremesinghe’s February 23rd statement: “The President tells parliament his priority is building the economy and not politics.”

President Wickremesinghe defended Finance Secretary Mahinda Siriwardana and others under him whom he didn’t identify over the denial of funds required for the conducting of LG polls. This was in the wake of the Election Commission declaring before the SC that the election couldn’t be held as a result of the Finance Secretary taking up a position that the required funds weren’t available.

The President contradicted the Election Commission. Having done so, the UNP leader acknowledged that he personally briefed the members of the Election Commission on December 14, 2022, regarding the unsuitability of holding the LG polls due to the volatile economic situation in the country. Wickremesinghe wanted the polls delayed till the total number of LG members was reduced to 5,000. The country must be reminded that the number of LG members sharply increased during the period Wickremesinghe served as the Prime Minister of the Yahapalana administration.

Making reference to the transitional provisions of the 21st Amendment (In Part 3 under the Interim Provisions) to the Constitution, President Wickremesinghe categorized the Election Commission as a temporary Commission accountable to the Parliament. He found fault with the Election Commission for failing to discuss the issues at hand with the House before making representations to the SC.

President Wickremesinghe is on record as having claimed that he along with Premier Gunawardena and AG Rajaratnam met members of the Election Commission on January 05, 2024, against the backdrop of what he called division among the members regarding the holding of the LG polls on December 23, 2023. According to the President, the Election Commission should have consulted a lawyer, representing the interests of either SJB or the JVP. Instead, the Election Commission sought the advice of Saliya Peiris, PC, whom members of the Election Commission described as one who engaged in politics.

President Wickremesinghe questioned the authority of the Election Commission to go ahead with the scheduled elections while alleging that the Election Commission didn’t properly take a decision to conduct the election on March 09 regardless of rumours. President Wickremesinghe found fault with the then EC Chairman and Attorney-at-Law Nimal Punchihewa and member M.M. Mohamed.

The PMD quoted President Wickremesinghe as having told Parliament on February 23, 2024: “We don’t need to postpone the election, but we don’t have money for it. If we need, we can discuss and come to a decision, but for the moment, we don’t have money. On the other hand, there is no election at hand as well. So, what have we got to do? The Commission is answerable to the Parliament. The Parliament has asked to appoint a select committee on this matter. So, I request to appoint it, record all and take the report to the Supreme Court. According to section 4 of the Constitution, the financial power is vested in the Parliament. After the 1688 Revolution, according to the Magna Carta Agreement, all monetary powers are vested in Parliament. Therefore, give that report to the Supreme Court through a select committee.”

The recent ruling by a five-judge bench meant that the SC obviously thought otherwise. Let me mention the Counsel who appeared for the petitioners in the historic case: Upul Jayasuriya, PC. with Nisala Fernando instructed by Sampath Wijewardane for the SJB, Viran Corea with Luwie Ganeshathasan and Khyati Wickramanayaka instructed by Sinnadurai Sunderalingam & Balendra for CPA, Nigel Hatch, PC. with Shantha Jayawardena, Ms. Wihangi Tissera, Ms. Azra Basheer, Hirannaya Damunupola, Ms. Niroshika Wegiriya, Sunil Watagala and Ms Illangage for the JJB and Asthika Devendra with Pulasthi Hewamanne, Kaneel Maddumage, Vimukthi Karunarathne and Ms. Abheetha Dinethri instructed by Manjula Balasuriya for the PAFFREL.

The SC was moved in terms of Article 17 read with Article 126 of the Constitution. Argued for 15 days, the decision was announced on August 22, 2024.

Some crucial SC rulings

In the run-up to the unprecedented SC ruling on August 22, 2024, the apex court emphasized in no uncertain terms that politicians, regardless of their status, couldn’t expect favoured treatment under any circumstances.

* Following a landmark SC decision, former President Maithripala Sirisena in March 2022 vacated his official residence at Mahagama Sekara Mawatha (formerly known as Paget Road), Colombo. Sirisena had no option but to leave after the SC quashed a Cabinet decision taken in October 2019 to grant the residence to him after his retirement. The residence in question was the former President’s official residence during his tenure as the Head of State. The Supreme Court held that the Cabinet decision while he was at its helm is arbitrary, unreasonable, ultra vires, illegal, a breach of the provisions of the President’s Entitlements Act, amounts to a violation of the Rule of Law and the Fundamental Rights guaranteed to the petitioners and the citizens of Sri Lanka.

* In January, 2023 SC ordered ex- President Sirisena to pay a sum of Rs.100 million as damages to the victims of Easter Sunday attacks. Sirisena completed the payment two weeks ago on a staggered basis. The consequences were devastating as underscored by the former SLFP leader’s failure to reach a consensus with any candidate contesting the Presidential Election.

* Sirisena suffered yet another setback when the SC invalidated his decision to grant a presidential pardon to a convict who murdered a Swedish teenager Yvonne Jonsson 19 years ago. Sirisena granted Jude Jayamaha a presidential pardon just a few weeks before the 2019 Presidential Election. Jayamaha was convicted in 2012 for killing Yvonne Jonsson in what was known as the ‘Royal Park’ murder case. Jayamaha was sentenced to death. the SC fined Sirisena Rs 3 mn.

* The other judgment was delivered in November 2023 with respect to petitions filed against the economic crisis that led to the declaration of bankruptcy status in April 2022.

The SC held that former President Gotabaya Rajapaksa and his brother, former Prime Minister Mahinda, were among several government officials whose conduct contributed to the country’s worst economic crisis in decades.

* Two other SC decisions that sent clear message were the ruling on IGP and the on-line visa issuance facility.