Democracy, judiciary and accountability

It is reported that Minister of Justice Wijeyadasa Rajapakshe has requested the Speaker of Parliament Mahinda Yapa Abeywardena to appoint a Special Select Committee in order to probe a statement made by Member of Parliament M.A. Sumanthiran at the recently held debate on the 22nd Amendment Bill on 20 October.

In his speech the Tamil National Alliance representative noted that the Supreme Court in determining the constitutionality of the proposed amendment has not taken into consideration its own precedents, especially at the time of the enactment of the 19th Amendment. He pointed out that the Supreme Court has determined the necessity of a referendum to enact exact provisions that were in place through the 19A. These were repealed through the draconian 20A enacted in October 2020. President’s Counsel Sumanthiran has every right to question the action of the Supreme Court which has been inconsistent at best in its determinations on the numerous constitutional amendments in recent years. It is but logical that provisions provided through the 19A which had previously obtained the sanction of the highest court should not need a referendum when being brought back through a new amendment. 

The judiciary in Sri Lanka has for a long time wielded its powers granted through the constitution to determine the offence of contempt of court. In the absence of an Act of Parliament that provides the parameters of the offence, the primary source of the law for contempt is the Constitution itself through article 105 [3]. It provides for a broad and subjective interpretation by the Superior Courts. According to this provision, the Supreme Court and the Court of Appeal have sole discretion to punish for the offence, whether the offence is committed in the court itself or elsewhere, with imprisonment and/or fine as the court may deem fit. At least two parliamentarians in Sri Lanka have been imprisoned for expressing their opinions using this clause. Most democracies, including those in our region, have evolved from these ridiculous constraints to ensure that the judiciary is also subject to robust democratic discourse.

Using these undefined, undemocratic and archaic laws to stifle discourse is a petty political move by Justice Minister Wijeyadasa who claims that the Jaffna district MP “has tried to create a dispute between the Court and Parliament.” He further adds that due to Sumanthiran’s statement in Parliament “the trust of the people on the Judiciary has been damaged.”

He is right to note that the trust in the judiciary has been damaged but couldn’t be more wrong in identifying the source. That trust has eroded for years due to the conduct of the Supreme Court. The calibre of some individuals who had occupied the highest positions in the judiciary, including a chief justice who once openly asked for public forgiveness for granting a judgement purely on political motive, has left much to be desired and the general public and their elected representatives should have the opportunity to hold these individuals accountable for their conduct and their judgements.

For far too long the threat of punitive action for the free expression of opinion has been used to silence legitimate criticism of the superior courts. The current Justice Minister resorting to such cheap theatrics is equally reprehensible. He should instead utilise his energies to introduce laws that would codify the offence of contempt, allowing free discourse including criticism of the judiciary rather than threaten to use these outdated notions as a weapon against political opponents.