People’s sovereignty comes under siege

By Ranil Wickremesinghe

The Parliament of Sri Lanka has never questioned the existence of the military mechanism of Court Martial under the current Constitution or any of the earlier Constitutions. This is because it is a mechanism necessary to enforce discipline in the armed forces. This is also the reason why the validity of a Court Martial has not been questioned in the recent case of Fonseka vs. Kitulegoda. Instead, the legal arguments have revolved around the nature of the power exercised by the Court Martial. But some of the judicial observations on the case have raised key issues in respect to Parliament and the exercise of the people’s sovereignty.

Firstly, there is the question as to whether the Army Act of 1949 should be read alongside Articles 1 and 3 of the Constitution (which vests the sovereignty of the country in the people) or whether it should be read without any reference to Articles 1 and 3. In other words, does the sovereignty of the people have any bearing on this Act? In particular, to what extent are the legislative powers of the people exercised by Parliament under Article 4 (a)?

The Sri Lankan state accepts the sovereignty of the country as being derived from the power of its people. It does not recognize any other sovereign authority. Prior to the Republican Constitution of 1972 the source of our sovereign authority was the King/Queen of England. The British Monarch was vested with sovereign power by the Treaty of Amiens of 1802, which made the maritime provinces of Ceylon a Crown Colony. The Kandyan Convention of 1815 transferred the powers of the Kandyan King to King George III and this was consolidated through the Declaration of British Sovereignty in 1818.

King George VI, by virtue of the powers that were vested in him, granted us the Ceylon (Constitution) Order in Council of 1946. Article 4 of the Order in Council re-affirmed the powers, authorities and functions vested in the King. Article 44 explicitly states the executive power of the island shall be exercised by the King. Therefore the Order in Council recognized the prerogative powers of the King. Under the Ceylon Independence Act and Ceylon (Independence) Order in Council 1947, the UK Parliament and the King gave up all powers to legislate on behalf of the Island and vested it in our Parliament.

At the 1970 General Elections the United Front requested a mandate from the people for the Members of Parliament to form a Constituent Assembly to enact a new Republican Constitution. Having won the Parliamentary Elections the Government, with the consent of the UNP and the Federal Party, summoned a Constituent Assembly which enacted the Republican Constitution of 1972.

The mandate of the Constituent Assembly was to draft, adopt and operate a new constitution to declare Ceylon to be a free, sovereign and independent Republic. This constitution was to become the fundamental law of this country superseding both the existing Constitution of 1946 (in the drafting of which the people of Sri Lanka had no role), and also all other laws that may conflict with the new Republican Constitution. Therefore the mandate of the first Republican Constitution was undoubtedly derived directly from the people of Sri Lanka. Unlike the earlier Constitution of 1946 it did not gain its power and authority from the British Crown and the UK Parliament.

Article 3 of the first Republican Constitution of 1972 declared that sovereignty was vested in the people and that it was inalienable. Article 13 proclaimed all powers, privileges, immunities and rights which were hitherto exercised by Elizabeth II - Queen of Ceylon was vested in the Republic of Sri Lanka and thereby became a part and parcel of people’s sovereignty. Thereafter the Republican Constitution went on to state that the exercise of sovereign power was determined by Article 4 and 5. The sovereign power of the Queen and the manner in which sovereignty was exercised under the 1946 Constitution had no legal validity thereafter.

In 1978 the Second Republican Constitution was enacted under Article 51 of the 1972 Constitution. Therefore the present Constitution draws its legality from the 1972 Constitution, which in turn, was brought into operation by the Constituent Assembly established through a people’s mandate. All laws which were in operation at the commencement of the 1972 Constitution were validated by Article 12 of the 1972 Constitution.

In 1949, the Army Act established the Sri Lanka Army while repealing the Ceylon Defence Force Ordinance of 1910. The Army Act was one of the laws validated by Article 16 of the 1972 Constitution. The Defence Force Ordinance had made provision for the British Army Act of 1881 to apply with regard to the discipline of the officers and soldiers of the Defence Force. In fact, the British Monarch since the time of King Edward I (1279) had exercised the prerogative powers of raising and disciplining the Army. This prerogative power of the King is central to the existence of the British Army.

It was only since the 17th century that the Parliament of England began to legislate vis-à-vis the Army; in this particular instance, with regard to mutiny and desertion. The British Army Act of 1881 incorporated the offences hitherto established by the exercise of the Sovereign’s prerogative power as well as existing statutory offences into one Act. When a prerogative power and a statutory offence exist side by side in a single Act then the prerogative power can be used only to further the aims of the statute. The UK Ministry of Justice’s 2009 Review of the Exercise of the Royal Prerogative Powers states the prerogative powers of the sovereign in respect to the Armed Forces are interwoven with the statutory powers and cannot be separated.

In 1966, in Gunaseela vs. Udugama, the validity of a Court Martial was challenged under the Army Act. The Supreme Court of Ceylon then held that Article 29 of the 1946 Constitution (which gave Parliament the power to make laws for peace, order and good government) was sufficiently wide for the relevant provisions of the British Army Act 1881 to be re-enacted in our Army Act of 1949. Thus Article 29 together with Article 4 of the 1946 Constitution recognized the prerogative powers of the Monarch thereby enabling Parliament to enact provisions similar to the British Army Act 1881.

However, as noted earlier, once we became a Republic we ceased to recognize the prerogative powers of the British Monarch as a source of our law. Moreover, though the 1972 Constitution validated the Army Act of 1949, it invalidated the prerogative powers of the monarch as the sovereignty of the state was transferred to the people of the country. As a result, judicial observations can no longer apply the reasoning in Gunaseela’s case in respect of Article 29 of the 1946 Constitution in determining the legitimacy of a Court Martial. Consequently, the Courts must interpret the Army Act of 1949 with Article 4 of the present Constitution which states that “the legislative power of the people shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum.”

I was a member of the second National State Assembly which enacted the Second Republican Constitution. It was not our intention to validate the prerogative powers of the Queen or for that matter to bring back any unwritten laws. Our intentions at the time were to make provision for executive power to be exercised by the President directly elected by the people; introduce a Referendum and judicial remedies for instances where executive action infringed on the fundamental rights of people among other infringements. It was never our intention to restrict the people’s sovereignty referred to in the first Republican Constitution in any way.

The concept of the sovereignty of the people was expanded by including the franchise and fundamental rights as part of its definition. This is why I said in Parliament that the judicial observations in the case of Fonseka vs. Kitulegoda are in conflict with the legislative powers of the people as exercised by Parliament because they do not recognize the exclusive sovereignty of the people. It is not possible for the people or Parliament to accept the concept of a divided sovereignty wherein a part of our laws derives its legality from the Constitution and another part of our laws flows from the prerogative powers of the Queen. If we were to do so then we would have alienated our sovereignty.

In fact, it is worth noting that the Army Act of 1881 has an abhorrent history in our country which is worth repeating in this article – especially since the judicial observations pertaining to Fonseka vs. Kitulegoda refers to the Edmund Hewawitharana case of 1915. This case gave legal sanction to the law which
responsible for the death of some of our freedom fighters against British colonialism. Edmund Hewavitarne was a member of the Ceylon Defence Force and the brother of Anagarika Dharmapala.
When the 1915 riots took place the British Governor, Robert Chalmers panicked and gave orders to arrest Sinhala Buddhist leaders in the country. Since Anagarika Dharmapala was not in the island they arrested his brother Edmund Hewavitarne and brought him before a Court Martial.

In his defence, Edmund Hewavitarne brought a writ application before the Supreme Court stating that at the time of arrest he had not been mobilized by the Army. The Supreme Court of Ceylon turned down the writ application on the grounds that the British Army Act of 1881 empowered such a Court Martial to be held. Edmund Hewawitharana was taken to Jaffna and incarcerated. He died in jail due to a lack of medical attention. Subsequently, Sir John Anderson, the new Governor, gave him a posthumous pardon to make amends for the injustice.

Henry Pedris too was court martialled under the same law and sentenced to death. Sir Ponnambalam Ramanathan met Governor Robert Chalmers taking an offer from Henry Pedris’ father to give the colonial Government an amount of gold equal to Pedris’ weight if his life was spared. However, Pedris was executed. D S Senanayake who was also in prison during this time made it a point to repeal this repulsive Army Act of 1881 and replace it with the Army Act of 1949. Furthermore, the prerogative powers of the Monarch which were recognized in the British Army Act 1881 is today not a part of British law even in England having been in abeyance from 1955 and thereafter being repealed in 2010.

We cannot allow the people’s sovereignty to be disregarded or usurped. In the past, whenever the people’s sovereignty was at risk, the Parliament of this country always reasserted the power of the people. The Parliament of Sri Lanka today has a duty to the people of this country to ensure that our sovereignty is safeguarded.

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