Untitled - International Commission of Jurists

In the early 1970s, several judicial decisions validated executive actions restricting
liberty rights during emergency in what was to be a troublesome precursor of things to
come. 73
3.2. The First Republican Constitution of 1972
With the enactment of the First Republican Constitution in 1972, even the minimum
guarantees of judicial independence in the 1948 Independence Constitution were
swept away and the judiciary was openly subordinated to the political structures of the
day. The National State Assembly was declared to be the sole and supreme repository
of power. Article 3 stated that the judicial power of the people through courts and
other institutions created by law may be exercised directly by the National State
Assembly. The right of appeal to the Privy Council was done away and by Article
122, the appointment of judges of the higher courts was vested in a non-elected
President acting on the advice of the Prime Minister.
The earlier Judicial Service Commission was replaced by a politicized Judicial
Services Advisory Board (JSAB) and a weak Judicial Services Disciplinary Board
(JSDB). The JSAB was not mandated to appoint judges of the minor courts but could
merely recommend their names. The appointment was by the Cabinet of Ministers.
The JSDB meanwhile exercised disciplinary control and dismissal of judges of the
minor courts and state officers exercising judicial power but two members of this
five-member commission were the Secretary to the Ministry of Justice and the
Attorney General, thus effectively ensuring executive control over the judiciary.
Even more significantly, judicial review of enacted laws was abolished. Instead, a
Constitutional Court was established with the limited power to scrutinize bills within
twenty-four hours when the bill was certified as being urgent in the national interest.
The declaration of a state of emergency was allowed to be passed without a debate.
Though the protection of specified rights was constitutionally declared, these
provisions were rendered nugatory by the absence of an enforcement procedure. 74
Clashes between the judiciary and the executive became common. Illustratively the
judiciary and the Bar united to protest against “invitations” being sent out by the then
Justice Minister Felix Dias Bandaranaike on the inauguration of a subordinated
Supreme Court under the 1972 Constitution. The newly set up Constitutional Court
clashed head-on at the first sitting of the Court over the Press Council Bill when the
legislature decreed that the court had no discretion to give a liberal interpretation to a
specified time limit within which to determine the constitutionality of the Bill. The
entire court resigned and a fresh court had to be appointed.
3.3. The Second Republican Constitution of 1978
73 Hidramani v. Ratnavale, [1971] 75 NLR 67; Gunasekera v. Ratnavale, [1972] 76 NLR 316 - where
the disallowing of a habeas corpus application against the Secretary of Defence was made all the more
ironic by the fact that earlier, in Gunasekera v. De Fonseka ([1972] 75 NLR 246), a similar plea on
behalf of the same corpus (but this time with the important distinction that it was made against a lower
ranking Assistant Superintendent of Police) was judicially allowed on the basis that the police officer
was not personally aware of the actual offence of which the person arrested.
74 Only a single case alleging violation of fundamental rights was filed during this time in the District
Court, Ariyapala Guneratne v. The Peoples Bank, [1986] 1 Sri LR 338. This case was in fact decided
after the 1972 Constitution was replaced by the 1978 Constitution.
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