South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

By Kelum Bandara and Yohan Perera

Opposition Leader Ranil Wickremesinghe yesterday in Parliament charged that the recent judicial observations seek 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 in colonial times and requested the Speaker to make a statement to reassert the sovereignty of the people.

Making a statement during the debate on the extension of the state of emergency, Mr. Wickremesinghe said that in this context even the concept of the sovereignty of the people was under challenge. “We have to hold the government accountable.  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,” he said.
“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 the Speaker by 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.

“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?”

Source: The Daily Mirror – 09.02.2011