In a country where the Constitution is supreme, all conduct that is inconsistent with it is invalid. This includes parliamentary legislation, which may be reviewed by the judiciary, potentially resulting in inconsistent provisions being declared invalid. Ideally, other actions of Parliament, such as the conduct of its proceedings and the adoption of resolutions, should also be subject to constitutionality review. Conversely, in countries where parliamentary sovereignty prevails, legislation or processes of Parliament are not open to review.

This article emphasises the importance of permitting judicial review of actions by Parliament and its officials, thereby ensuring the Constitution’s supremacy in practice. It must be emphasised that this also applies to the executive, judiciary, independent institutions, and the citizenry.

Sri Lankan Constitutions

In the Independence (Soulbury) Constitution of Ceylon, although there was no explicit provision conferring upon courts the power to declare legislation invalid, such power was implicitly acknowledged and exercised, as demonstrated in Bribery Commissioner v. Ranasinghe and Liyanage v. The Queen.

Under the Republican Constitution of 1972, the National State Assembly (NSA) was the supreme instrument of state power and possessed unlimited legislative authority, including the power to amend and to replace the Constitution with a two-thirds majority. A Bill inconsistent with a constitutional provision can be passed with a two-thirds majority without amending that provision. All laws that existed when the Constitution came into effect remained valid, notwithstanding any inconsistency with fundamental rights. The Public Security Ordinance, a pre-independence law, was deemed to have been enacted under the Constitution, thereby validating its provisions in relation to the entire Constitution. Legislation can be challenged only at the Bill stage. Section 39 stipulated that the proceedings of the NSA, or anything done, purported to be done, or omitted to be done by the NSA, were immune from judicial review.

The 1978 Constitution declares in the Preamble that it is the Supreme Law of the country. However, several provisions of the Constitution undermine the very concept of its supremacy. Provisions from the 1972 Constitution relating to judicial review, existing laws, passing Bills inconsistent with the Constitution and the Public Security Ordinance remain in effect. The President’s unconstitutional acts could not have been challenged until the Nineteenth Amendment allowed fundamental rights applications to be filed.

The prohibition on post-enactment review means that if citizens have not been vigilant in challenging a Bill containing an unconstitutional provision, such a provision cannot be contested once the Bill becomes law. In a developing country like ours, it is irrational to expect citizens to be watchful and scrutinise all Bills published in the Gazette for potential unconstitutional provisions. Many unconstitutional provisions have escaped the attention of even the Bar Association of Sri Lanka. Furthermore, the effects of a law are best observed once it is in operation; not all possible effects can be anticipated at the Bill stage. Additionally, citizens would benefit from the evolution of the law if post-enactment review is permitted.

Parliament (Powers and Privileges) Act

The 1978 Constitution does not contain a provision similar to section 39 of the 1972 Constitution, stipulating that proceedings of Parliament are immune from judicial review. However, like the 1972 Constitution, Article 67 provides that until Parliament determines its privileges, immunities, and powers by law, the Parliament (Powers and Privileges) Act, 1953, shall apply. Section 3 of the Act states: “There shall be freedom of speech, debate and proceeding in Parliament and such freedom of speech, debate or proceedings shall not be liable to be impeached or questioned in any Court or place out of Parliament.” Several Speakers of Parliament have interpreted Section 3 to assert complete autonomy for parliamentary decisions and unfettered control over proceedings.

For example, Speakers Anura Bandaranaike and Chamal Rajapaksa took up the position that the appointment of a Select Committee to inquire into allegations against a judge of the Supreme Court or the Court of Appeal was immune from judicial review. Speaker Bandaranaike quoted Erskine May, an acknowledged authority on parliamentary procedure in the United Kingdom: The whole of the law and custom of Parliament has its origin from one maxim, ‘that whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates and not elsewhere.’

However, in Chandraguptha Thenuwara v. Chamal Rajapaksa, a five-member Bench of the Supreme Court held that such an appointment did not fall within the legislative powers of Parliament. Instead, it amounted to executive or administrative action, challengeable under the fundamental rights jurisdiction of the Supreme Court.

Yet, the issue of the justiciability of other actions of the Speaker and Parliament remains. One must remember that Erskine May was discussing practices in Britain, where the concept of parliamentary sovereignty reigns. Additionally, in the absence of a specific constitutional provision permitting the judiciary to review the constitutionality of actions by the Speaker and Parliament, judicial decisions would be disregarded, as Speakers Bandaranaike and Rajapakse did.

Globally, there have been instances where Members of Parliament have infringed upon the fundamental rights of ordinary citizens under the pretence of exercising their freedom of speech and debate. Citizens have no recourse against such actions. Such instances are significantly fewer in countries with strong political traditions. While effective internal procedures are the best means to ensure that the rights of others are not violated, it is timely to consider alternative procedures and remedies in countries like ours where such violations continue unabated.

Comparative provisions and judgments

It would be useful to examine constitutional provisions and landmark judgments of developing countries where the supremacy of the Constitution is recognised. I chose India, South Africa, Papua New Guinea and Malawi, all members of the Commonwealth.

Although the Indian Constitution does not explicitly declare so, its supremacy is evident throughout. Numerous decisions of the Indian Supreme Court support this position. Legislation is subject to post-enactment judicial review, and acts of the Executive can also be reviewed. Articles 122 and 212 provide that the validity of any proceedings in Parliament and a State legislature, respectively, shall not be called in question “on the ground of any alleged irregularity of procedure.” In and Rojer Mathew vs South Indian Bank Ltd., the Supreme Court interpreted this to mean that the immunity granted is limited to ‘irregularity of procedure’ and does not extend to substantive illegality or unconstitutionality.

The Forty-second Amendment, passed during Indira Gandhi’s notorious emergency rule, stipulated that no amendment to the Constitution could be challenged in any court on any grounds. This provision was struck down by the Supreme Court in Minerva Mills v. Union of India, stating that “Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.”

Section 2 of the South African Constitution reads: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

Economic Freedom Fighters v. Speaker of the National Assembly

concerned a report by the Public Protector regarding allegations of improper conduct or irregular expenditure related to security upgrades at the private residence of President Jacob Zuma. She concluded that the President derived undue benefits and directed him to pay a portion that was reasonably proportionate to the undue benefit. However, based on a report by the Minister of Police, the National Assembly passed a resolution absolving the President of liability. An eleven-member Bench of the Constitutional Court unanimously held that the National Assembly resolution was inconsistent with the Constitution.

In Papua New Guinea, section 11 of the Constitution declares that the Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and all acts (whether legislative, executive, or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

Under section 18, the Supreme Court has an original and exclusive jurisdiction as to any question relating to the interpretation or application of any provision of the Constitution or an Organic Law.

Application by the Honourable James Nomane MP

related to a decision made by the Private Business Committee of Parliament to disallow a motion of no confidence in the Prime Minister on the ground that it was brought within twelve months after a similar motion was defeated. Standing Order 165 permitted the Speaker to disallow any motion that is the same in substance as one brought within the previous twelve months. The constitutionality of the decision, as well as of Standing Order 165, was challenged in the Supreme Court. The Court was satisfied that Standing Order 165, which constrains the exercise of the right of a member of Parliament to bring a motion of no confidence, was not reasonably justifiable and therefore unconstitutional. The decision of the Private Business Committee was consequently unconstitutional.

The Speaker was directed to recall Parliament on a date appointed by the Court.

In Reference by Morobe Provincial Executive re Re-election of the Governor-General, the Supreme Court declared that the re-election of a Governor-General by Parliament was unconstitutional and ordered that Parliament be recalled as soon as practicable to remedy deficiencies in the nomination and election of the Governor-General.

Thus, acting under section 18 of the Constitution, the Papua New Guinea Supreme Court has declared a Standing Order unconstitutional, reviewed and struck down decisions of parliamentary committees, declared decisions of Parliament unconstitutional and directed the Speaker to convene Parliament. Parliament obeyed the rulings without demur.

Section 5 (Supremacy of this Constitution) of the Constitution of Malawi states: Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid. Section 108(2) states: “The High Court shall have original jurisdiction to review any law, and any action or decision of the Government, for conformity with this Constitution, save as otherwise provided by this Constitution and shall have such other jurisdiction and powers as may be conferred on it by this Constitution or any other law”.

In Tembo v. Attorney-General, the Malawi High Court held that it had no difficulty in concluding that ‘government’ as used in section 108 includes the three organs of government. When the Speaker or the National Assembly makes a decision within the House that involves interpreting the Constitution or a law, such a decision is subject to review by the judiciary to ensure it complies with the law and the Constitution. Both the Supreme Court and the High Court held similarly in Nseula v. Attorney-General, where a decision of the Speaker that the petitioner’s seat in Parliament had fallen vacant as he had allegedly crossed the floor was challenged.

Establishing constitutional supremacy

Sri Lankans are weary of both persons in authority and institutions running roughshod over the law. The Aragalaya’s demand for “system change” exemplified the popular sentiment, which was followed by an electoral mandate for a radical transformation. The promised Constitution must therefore be a transformative constitution that reflects the people’s wishes. Regarding actions of the legislature, this would mean a constitution under which all actions of Parliament, whether legislative or otherwise, are subject to review by the judiciary for constitutionality.

BY (Dr) Jayampathy Wickramaratne, President’s Counsel ✍️

General Hamilton Wanasinghe (Retd) VSV, USP, ndc:

The military funeral of General Hamilton Wanasinghe was held at Borella last Saturday.

A legendary military leader of our time, he served Sri Lanka for more than 41 years (1954-1995) in various capacities such as the Commander of the Army, Commander Joint Operations Command (presently known as Chief of Defence Staff) and Secretary of Defence.

 More than 1,700 troops lined up at Bauddhaloka Mawatha by 1630 hrs, representing the Army, the Navy and the Air Force, followed by the members of The Ex-Servicemen’s Association, where General Wanasinghe was President for a number of years. His contribution towards having a pension scheme introduced for Volunteer Units of Military is always remembered with gratitude.

The casket carrying remains of the General was placed on the Gun Carriage with six pallbearers on either side of it led by General’s own son, Major General Sanjaya Wanasinghe (retired), who rose to position of Chief of Staff of Army, following the footsteps of his illustrious father. General Srilal Weerasooriya (retired) – an Artillery Crops officer like General Wanasinghe, former Army Commanders General Daya Rathnayake, General Mahesh Senananayake, General  Chrishantha de Silva, General Shavindra Silva were present.

Guns of the General’s own unit, 4th Battalion of Artillery Regiment, boomed against overcast skies. “Minute guns” (one gun shot in every passing minute) indicated that the funeral procession was progressing towards the crematorium.

Opening of General Hamilton Wanasinghe Mawatha

Army units at the funeral were led by the Artillery Regiment, followed by other regiments, including two units raised by General Wanasinghe himself as the Army Commander – Corps of Military Intelligence, which was placed under the late General Lionel Ballagalle, another Anandian, Artillery officer who was a Colonel at the time and the Special Forces, with Major General Gamini Hettiarachchi as its head in 1988. General Wanasinghe’s visionary thinking was aptly demonstrated during the fight against the LTTE when these two units worked in unison to bring LTTE to their knees by targeting their military leadership in greatly successful “behind-the-enemy-lines” operations.

Once the Casket was removed from the Gun Carriage podium by six regimental Sergeants Major of the Artillery Corps, of same height, smartly dressed in ceremonial uniform, the Commander of the Army’s Special Part 1 orders were read by Major General KVNP Premaratne, RSP, USP, nps the Adjutant General of the Sri Lanka Army.

With the drill “Parade Presenting Arms” the artillery guns from General’s own unit fired 17 gun-salutes with exactly five-second intervals. Witnessing this respectful and solemn funeral parade were senior politicians, Karu Jayasuriya and Nimal Siripala de Silva. Major General Aruna Jayasekara (retired) Deputy Defence Minister,  Attorney General Parinda Ranasinghe Jr, retired Secretaries of Defence, Chiefs of Defence Staff, Service Commanders like General Gerry Silva, General Shantha Kottegoda, General Jagath Jayasooriya, Admiral Daya Sadagiri, General Kamal Gunaratne, Admiral Priyantha Perera and Air Chief Marshal Udeni Rajapaksa.

General Wanasinghe lost three of his close relatives- two nephews (Major Panduka Wanasinghe and Captain Nalin Jayathilake) and his son-in-law, Brigadier Bathiya Jayathilake, during the country’s 30-year-long conflict. I always remember that when I talked to him about Bathiya, who was his aide when he was Commander and Secretary Defence, he used to say, “I lost my right hand.” He never prevented them from going to the battlefield simply because he was the Commander. What a great man!

General Wanasinghe was extremely fortunate to commission and present the commissioning sword to his own son Sanjaya. It was the first time in Sri Lanka’s military history an Army Commander commissioned his own son into the Army.

I can vividly remember that General Wanasinghe and his wife were extremely happy and proud on that day. Mrs Ira Wanasinghe ( née Jayathilake) married young Army officer Hamilton in 1960. They had five children (three daughters and two sons). Sadly, she passed away a few years ago.

Another close relative of General Wanasinghe had a narrow escape on the battlefield; he was critically injured. He was Major Atula Jayawardena from the Artillery Battalion. The incident occurred in 1985 on the Mannar – Medawachchiya Road due to multiple land mines blasts. Athula and his driver were extremely lucky, surviving with injuries, where five others in his vehicle died. I was in a vehicle behind him and it fell into the crater created by the blast. Those were the dangerous days on Mannar- Medawachchiya road! Athula rose to the rank of Major General before retiring.

When I was a school cadet at Royal College in 1978, I visited the Army Hospital with Bathiya and another friend, our Cadet Sergeant Naeem Mahamoor, to see then Colonel Hamilton Wanasinghe, who was injured due to an accident at the firing range. It was the first time I met him. He was extremely happy to see us youngsters and narrated stories of his school time as a Cadet and happy days at the Diyatalawa School Cadet camps. He was a Sergeant Major in 3rd Battalion of the Ceylon Cadet Corps in the early 1950s at Ananda College, Colombo and was an excellent marksman who represented Ceylon in Inter- Dominion Small Bore Rifle Shooting Competitions. He joined the Ceylon Army in 1954 as an Officer Cadet and was sent to the Royal Military Academy (RMA), Sandhurst in the UK for training. After successfully completing the training programme, he joined the Ceylon Army Artillery Corps.

General Wanasinghe’s love for firearms and knowledge of them encouraged him to introduce Sniper firing training to the Army and established a Sniper firing training school at Diyatalawa when he was the Commander of the Army. Later, his son Sanjaya became the Commandant of Marksmanship and Sniper Training School (MSTS).

Some of the best snipers of the Sri Lanka Navy, especially of the Special Boats Squadron were trained by Sanjaya. Thanks Sanjaya for your great work. Your beloved father was extremely proud of you.

General Wanasinghe, on his retirement, moved to his village, Malwana. While I was the Navy Commander, he used to call me whenever the Kelani river overflowed, causing floods. He always talked on behalf of the villagers who were affected and marooned by floods. He was very concerned about their welfare. One of his happiest moments was when the main road between Dompe and Malwana was named after him on 24 August 2019.

I met General Wanasinghe as the founding Commanding Officer of Special Boats Squadron ( SBS) – the Naval Commando Unit in December 1993, when he was the Secretary Defence. It was after the Pooneryn amphibious landing by SBS assist the besieged Army camp there.

I met him with a request letter from the then Commander of the Navy (Admiral DSMR Samarasekara) requesting for approval for paying “Commando Allowance ” to SBS personnel also. He listened to me and said: “Ravi, we require such a unit to fight the LTTE Sea Tigers. Develop it into a formidable unit. My blessings are with you.” He approved the request.

Thanks to his vision, the SBS played a pivotal role in sea battles with the enemy in lagoons and in littoral seas to free the country from the clutches of terrorism.

May he attain the supreme bliss of Nirvana!

 (Admiral Wijegunaratne WV, RWP and Bar, RSP, VSV, USP, NI (M) (Pakistan), ndc, psn, Bsc
(Hons) (War Studies) (Karachi) MPhil (Madras)

is former Navy Commander and former Chief of Defence Staff, former Chairman, Trincomalee Petroleum Terminals Ltd, former Managing Director Ceylon Petroleum Corporation, and former Lankan High Commissioner to Pakistan) 

Vraie Cally Balthazaar is the newly elected Mayor of Colombo. On June 16, almost a fortnight after MC elections were held, she was voted in by secret ballot as Mayor, winning 61 votes against the main opposition candidate Riza Zarook from the coalition of a mixed bag of Parties, who got 54 votes. Cass would add to the epithet ‘mixed’ – unholy and most unlikely of parties including the SJB, UNP and even the SLPP, banding themselves together to defeat the NPP. And once they were defeated, bringing in all sorts of allegations, against of all things – the secret ballot method of voting decided on. Sajith Premadasa who voiced the combined opposition’s protest is fast losing his clout and the little popularity he has, even in his party, as voiced by others.

Cassandra has seen her in many photographs and video clips and found her to be charming, lovely, and beneath those good looks, solid and committed. She emerged as a people’s champion and leader, hence Cass’ total approval of her. Cass is certain she will be a good Mayor concerned about the people of Colombo.

Born in 1985, educated at Methodist College, Colombo, and holding a degree in fashion design and postgraduate diploma in Gender and Women’s Studies, Vraie is higher educated, and promises to be totally competent to be Mayor of the Colombo Municipal Council. She has experience in media and was an activist for the good of the country and people’s rights. She was a TV presenter and active in civil society and research; also worked with NGOs on women’s and children’s issues.

Most significantly, a write-up about her states that she researched urban development and city planning with special relevance to low income communities in Colombo. “Her activism extended to gender equality and labour rights, aligning with her academic focus combined with media presence and grassroots work, helped shape her public identity as a feminist and community advocate.”

Invariably mentioned in present bios is the fact she is the second woman to serve as Mayor of Colombo. Less said and better thrust to the back is the first woman mayor of Colombo. Cass’ tongue is reluctant to name the name of that first mayor and her wrist reluctant to write it. What is she associated with that makes her repugnant, that ex-Mrs World of great beauty and charm?

Her self-serving nature, her alleged misdemeanors while mayor, refurbishing lavishly the mayoral residence and the inevitable association of her name with grandiose toilets! Out from being mayor, she got another plum sinecure: one of the very many advisors to Prez Ranil Wickremasinghe who took no advice, with the bequethment by pranksters of SL with a baila ditty: Rosyge veyo kaapu Porsche eka.

So, let’s not bracket Ms Balthazaar with Rosy Senanayake.

Gloom and doom

Is the world enshrouded in a gloom atmosphere forecasting trouble? Two parts of it are: not only in gloom but smoke, destruction and death. The situation in the Israel dominating mid-East and eastern Europe of Ukraine are worsening as of today – Wednesday 18 June. The Great Man of the World, as he believes he is, is not helping at all. He is aligned with Israel and considers Putin a friend. Three bloodthirsty dictators are keeping the world on edge: Netanyahu, Putin and Trump the accessory.

What about Sri Lanka? Thankfully peaceful with people being considered important and corruption detected, exposed and hopefully eradicated, or at least reduced. President Dissanayake’s talk to Sri Lankans living over there during his official visit to Germany was an eye opener. He spoke very strong about racism being encouraged by certain persons and parties to destabilize the government and the country. Was it a cry of wolf? Certainly not since the President is not given to unjustified fears and claims. Cunning foxes’ barks and howls emanate from the political periphery. For the first time in our history votes were cast by Tamils for Sinhalese NPP election candidates. There is considerable unity among the races. One example: Kandy Muslim religious heads opened their mosques for overflowing crowds who gathered in Kandy to venerate the Sacred Relic.

As Cassandra’s title indicated, there are bright spots in the gloom. One such she wishes to highlight, a YouTube video of which she watched recently, with mounting appreciation and hope for mankind and thus the world.

Great sportsman Nadal felicitated

At the very start of the French Open tennis tournament, also named Roland-Garros, Rafael Nadal was honoured with a felicitation ceremony at Court Philippe-Chatrier, on May 25. He had won 14 French titles, hence the honour.

A visibly moved Nadal who actually shed tears was conducted to the court by the two top officials of the tennis association, then his relatives were invited to line up opposite him, court persons from ball picker to umpires. He was presented with a plaque. The highlight of the ceremony, at least to Cass, was him being joined by the three greats he competed with and beat or lost to: Roger Federer, Novak Djokovic and Andy Murray. Later the earth was swept away on the side of the court beside the net revelaing a footprint of Nadal’s. “It will be here forever,” announced the commentator.

Rafael Nadal Parera, born June 3, 1986, was from a well-to-do family. He holds many sports records but one to be mentioned is that he was ranked as World No 1 in men’s singles by the Association of Tennis Professionals for 209 weeks and holds 22 major titles as well as Masters titles and an Olympic gold medal. His 81 consecutive wins on clay constitute the longest single-surface win streak in the Open Era.

What’s more interesting to Cass is that he married a childhood friend from Mallorca, the largest island in Spain’s Balearic Islands, which was home to both. After 14 years of dating he married Mery ‘Xisxa’ Perello in October 2019. In 2022 they had their first child, a son, and they are expecting a second soon. They avoid publicity and photographers. “I’m already exposed enough in my professional life. My loved ones and I like to live with a low profile.” But at the felicitation, he carried his son around for a little. He retired from professional tennis after playing for Spain in the Davis cup, 2024.

Watching from the stands at the felicitation, dressed in the maroon T-Shirt that most wore with Nadal’s name on it, was Carlos Alcaraz, co-Spaniard and this year’s French Open winner, second year running.

Why did Cass consider this felicitation a bright spot in the gloom of the world? It showed there was much more in our world than wars, greed, enmity, commercialism. Here was a manifestation of gratitude to a great sportsman. Here were tennis and sports celebrated; skills and endeavour high-lighted; a sincere display of camaraderie and sportsmanship and healthy competition plus friendship.