February 8, 2011, 8:57 pm
By Saman Indrajith
Opposition and UNP Leader Ranil Wickremesinghe yesterday asked the government how long it planned to keep Sarath Fonseka in jail at the expense of all democratic principles. Making a statement, during the debate on the extension of the state of emergency, in Parliament, Wickremesinghe said the recent judicial observations had sought to reintroduce the sovereignty of the British Monarch for the sake of keeping former Army commander Sarath Fonseka in jail under the Army Act introduced at that time. He said "fundamental rights are part of the sovereignty of the people and this House is the forum to insist on its implementation by the Government. We have to hold the government accountable. Today even the concept of the sovereignty of the people is under challenge. Recent judicial observations seek to reintroduce the sovereignty of the British Monarch. Therefore I am raising an issue of privilege on the need for Parliament to re-assert the sovereignty of the people, under Article 3, a right which is exercised under Article 4(c)." He asked Speaker Chamal Rajapaksa to give his observations on those judicial observations.
"Our Parliament is the master of its own powers. It is Parliament and only Parliament that can determine its own Powers. That includes the people’s sovereignty upon which its powers are founded. The Second Republican Constitution, to which all of us here have sworn allegiance, came about as a result of repealing the First Republican Constitution in terms provisions of Article 51 of the 1972 Constitution. The 1972 Constitution, which established the Republic, draws its powers from the Constituent Assembly which met on the 19th of July 1972 and empowered itself to enact a Constitution ‘to declare Sri Lanka to be a free, sovereign and independent Republic.’ A republic ‘which derives its authority from the people of Sri Lanka and not from the power and authority assumed and exercised by the British Crown and the Parliament of the United Kingdom in the grant of the Constitution to Ceylon and therefore to supersede the Ceylon (Constitution) Order in Council but also all other laws which may conflict with the new Republican constitution.’ With this resolution we cut the links to the British Crown as the source of sovereign power," he said.
"1. British sovereignty was established in Sri Lanka by the Treaty of Amiens of 1802, the Kandyan Convention of 1815 and the Declaration of 1818. Following upon which we were granted independence under the Ceylon (Constitution) Order in Council of 1946 which was amended in 1947 by the Ceylon Independence Act of 1947 and the Ceylon Independence Order in Council 1947. By these legislative measures the Parliament of the United Kingdom and the King in Council gave up their powers to legislate for Sri Lanka. The executive powers of the Crown together with its prerogatives were retained to be exercised by the Governor General as the representative of the King. Article 44 and 45 of the Ceylon (Constitution) Order in Council empowered the Governor General to exercise executive powers, similar to the powers and authority exercised in the United Kingdom by the Sovereign. The new 1972 Republican Constitution replaced both the legislative and executive powers of the Monarch. The National State Assembly exercised the legislative power of the people directly and the executive power of the people through the President and the cabinet under Articles 3, 4 and 5 of the 1972 Constitution. When this constitution was repealed, these powers were included in Articles 3 and 4 of the present Constitution. The Order in Council of 1946 did not refer to the judicial powers but in the case of Liyanage vs. Queen the Privy Council held that judicial power continued to be vested in the Courts as set out in the Charter of Justice and the Courts Ordinance. The same Republican Constitution made specific provision for the National State Assembly to exercise judicial power through Courts. Therefore neither the Courts nor Parliament can give legal recognition to the sovereign powers and prerogatives exercised by the Monarch. The recent judicial observations which have recognized the prerogatives of the Crown amounts to reversing our legal order based on peoples sovereignty.
"2. The judicial observations are based on two cases before 1972 regarding the Monarch’s prerogative powers. These two cases Gunaseela vs. Udugama and Edmund Hewavitharna have accepted the validity of the British Army Act of 1881. The British Army Act of 1881 is based on the prerogative power of the Monarch exercised since 1279 by Edward I to regulate and discipline the Army. The Army Act of 1881 recognised the prerogative of the Monarch in respect of all the offences which did not attract the death penalty, but combined this prerogative with the powers of Parliament in respect of mutiny as one single Act. The UK Parliament repealed these powers of the Monarch only in 2010. Since the Order in Council of 1946 recognised the prerogative executive powers of the Monarch in the United Kingdom it was natural for the Supreme Court under that Constitution to recognize the validity of the Army Act of 1881. But once we became a Republic the power to regulate and discipline the Army was derived from Article 5 of the 1972 Constitution which is repeated in Article 4 of the present Constitution. These articles state that the executive power of the people shall include the defence of Sri Lanka. Then we are in the same legal position as Australia and the United States where the powers of the defence forces are exercised under similar article.
"3. In the recent judicial observations the Courts, instead of proceeding under Article 4 of the present 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 in force at the time of its enactment in September 1978. This has become the basis of recognizing the Monarch’s prerogative through the decision of the Gunaseela vs. Udugama case. The Monarch’s prerogative was not part of the existing laws as at September 1978. Article 12 of 1972 Constitution read together with the letter convening the Constituent Assembly and the resolution passed therein abolished the prerogatives of the Monarch and replaced it with the sovereignty of the people. Since the 1978 Constitution flows from the 1972 Republican Constitution it cannot validate the prerogative powers of the Monarch invalidated in 1972. This is the intention of the legislation. Unfortunately the judicial observations have not gone into these aspects.
"4. We have now come to a crisis situation where Parliament recognizes the sovereignty drawn from the people while the Courts have now started to recognize the prerogative powers of the Monarch.
"This results in an absurdity in that when we do so we render our Constitution invalid since the Constituent Assembly was an act of the legislature and it is Parliament that has the power to decide on the fundamental decisions of the country under Article 4. 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.
"These can be done by you Honourable Speaker making a statement with the consent of all leaders of Parties. We have done this earlier in 1972 when the Speaker ruled that the National State Assembly had the right to proceed with the Bill appearing in the Order Paper of the day notwithstanding the fact that the Constitutional Courts had failed to deliver its judgment as required by Article 54 of the then (’72) Constitution and again on 20 June 2001 Speaker Anura Bandaranaike asserted the supremacy of Parliament over all other institutions. This is why I raised the point of Order.
"5. The judicial observations have also sought to resurrect the reasoning of Chief Justice Wood Renton in Edmond Hewawitharana’s case in 1915 where the latter sought writ of prohibition to be directed to the members of a Field General Court Martial. Edmond Hewawitharana was the brother of Anagarika Dharmapala who was also a member of the Defence Force. Together with his brothers he was detained when Martial law was declared in 1915. The British had Hewawitharana brought before Court Martial. Hewawitharana applied for a writ on the basis that he was not mobilized at the time of his arrest and therefore did not have to face the Court Martial. The Supreme Court dismissed the application by holding that the British Army Act of 1881 was valid and applicable. This was the same law that was used to execute Henry Pedris. Have we come to such a time which imprisoned and killed our patriots and even prepared to reintroduce the sovereignty of the British monarch for this purpose? Isn’t this what has happened in the case of Fonseka vs. Kithulegoda et al. Are we sacrificing all our principles and sovereignty to keep Sarath Fonseka in jail?" Ranil Wickremasinghe asked.
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