A fight to re­set Sri Lanka’s con­sti­tu­tional clock

Sunday Times (Sri Lanka) - - COMMENT -

As the core of Sri Lanka’s Demo­cratic So­cial­ist Re­pub­lic im­plodes in mul­ti­ple crit­i­cal ways to­day, it can­not be said that we were not fore­warned. For not only Pres­i­dent Maithri­pala Sirisena but also each and every one of us must abide by a fun­da­men­tal truth un­der­ly­ing the le­gal or­der. The Con­sti­tu­tion can­not be se­lec­tively ap­plied be­cause we hap­pen to like some­one or dis­like an­other. If this is not recog­nised, we are con­demned to un­ceas­ingly wan­der in a weary cy­cle of con­sti­tu­tional at­tri­tion, much like the bewil­dered rat in the cage.

Se­lec­tive con­sti­tu­tional pro­pri­ety

There is a par­tic­u­lar con­text to that warn­ing. A bare eight months into of­fice in 2015, the Pres­i­dent ad­dressed the na­tion be­fore tele­vi­sion cam­eras stat­ing that even if for­mer Pres­i­dent Mahinda Ra­japaksa’s fac­tion of the Sri Lanka Free­dom Party was suc­cess­ful in ob­tain­ing a ma­jor­ity at the pend­ing par­lia­men­tary elec­tion, he would not ap­point him as Prime Min­is­ter. Voices of rea­son should have been aghast at this procla­ma­tion. It was an af­fir­ma­tion in no un­cer­tain terms that con­sti­tu­tional pro­pri­ety will yield to a vis­ceral re­ac­tion of whom the Pres­i­dent felt should be suit­able or not to ap­point as Prime

Min­is­ter.

But few raised their eye­brows. In fact, many ap­plauded. Why?

Be­cause a hated and feared Ra­japaksa was at the re­ceiv­ing end of that pres­i­den­tial di­a­tribe. It was on that same rea­son­ing that many clapped and cheered when ear­lier that same year, a Chief Jus­tice who should have been prop­erly im­peached for mis­be­haviour in of­fice was de­clared by a Pres­i­den­tial let­ter ‘never to have been in of­fice’. As pointed out in th­ese col­umn spaces, that was an as­sess­ment that should have been made by Court, not by ex­ec­u­tive fiat. Yet, this was jus­ti­fied, sup­ported and even urged by those who wax elo­quent (then and now) on con­sti­tu­tional pro­pri­ety.

Even as mem­bers of the black-coated fra­ter­nity strode up and down Hulfs­dorp’s streets bright-eyed and bushy-tailed, de­mand­ing the Chief Jus­tice’s sum­mary ouster, I re­mem­ber re­ceiv­ing a phone call from a col­league who asked me only half in jest, as to why I was not join­ing the ‘ya­ha­palanaya’ melee. My re­sponse was th­ese dis­as­trous prece­dents will be rued once tri­umphal­ism fol­low­ing Ra­japaksa’s de­feat sub­sided.

An ugly his­tory of sub­ver­sion

Now as 2018 draws to a close, it is cold com­fort to be proven right. Prodi­giously in­fan­tile if not ‘in­stru­men­tal’ con­sti­tu­tion-mak­ing has reaped its bit­ter har­vests. The re­moval of a UNP Prime Min­is­ter by a let­ter of the Pres­i­dent has been ef­fected in much the same man­ner. Putting the blame on an ec­cen­tri­cally ma­nip­u­la­tive Pres­i­dency is the easy way out. In­stead, the re­spon­si­bil­ity is much wider. It per­vades beyond the po­lit­i­cal sphere, as un­com­fort­able as that truth may be. This is some­thing that Sri Lanka’s young democ­racy fight­ers lin­ing Colombo’s streets and boule­vards must re­mem­ber.

That said, cyn­ics who grum­ble that this is merely the con­tin­u­a­tion of a long his­tory of con­sti­tu­tional sub­ver­sion are only half right. Both the 1972 and 1978 Con­sti­tu­tions were in­stru­men­tally en­gi­neered to suit po­lit­i­cal ends. In that ugly his­tory, the 17th Amend­ment stands as the one clear ex­cep­tion where con­sti­tu­tional ob­jects were true to their aim. The 19th Amend­ment was a pale shadow of that stead­fast­ness. For those who would jib at this cas­ti­ga­tion, a thor­ough read­ing of the con­sti­tu­tional doc­u­ments is rec­om­mended.

One ma­jor il­lus­tra­tion is the Con­sti­tu­tional Coun­cil de­vised to me­di­ate ap­point­ments to key pub­lic posts and in­de­pen­dent com­mis­sions. Its 17th Amend­ment ver­sion in­sisted on a ma­jor­ity of civil so­ci­ety mem­bers. This was re­vised in the 19th Amend­ment which tilted that bal­ance in favour of politi­cians. To be fair, the 19th Amend­ment did away with the au­thor­i­tar­ian over­reach of the Ra­japaksa backed 18th Amend­ment brazenly ap­proved by the Supreme Court of the day. But that does not ex­cuse this Amend­ment be­ing shot through with mul­ti­ple in­ter­nal con­tra­dic­tions and in­con­sis­ten­cies.

Ba­sic ques­tions in is­sue

An ex­cel­lent ex­am­ple con­cerns the dis­so­lu­tion of Par­lia­ment this Fri­day. This came four short days be­fore a sit­ting where a floor test to de­ter­mine the ma­jor­ity in the House would have been in­evitable. Pro­po­nents of the pres­i­den­tial move rely on Ar­ti­cle 33 (2) (c) which gives gen­eral power to the Pres­i­dent to ‘ summon, pro­rogue and dis­solve’ Par­lia­ment. Op­po­nents say that this is con­trary to Ar­ti­cle 70 (1) of the Con­sti­tu­tion which re­it­er­ates this power but specif­i­cally ‘pro­vides’ that Par­lia­ment can­not be dis­solved be­fore the pass­ing of four and a half years, ab­sent ap­proval of a twothirds ma­jor­ity in the House. On a plain and sim­ple read­ing, the con­sti­tu­tional text in­clines to­wards the pri­macy of Sec­tion 70 (1).

Even so, a ba­sic ques­tion arises. Ear­lier, the power of dis­solv­ing Par­lia­ment was sim­ply and un­am­bigu­ously con­tained in Ar­ti­cle 70 of the 1978 Con­sti­tu­tion (Sec­tion 70) with pro­vi­sos as to time pe­ri­ods that were there­after amended. But a ridicu­lously tau­tol­o­gous gen­eral power of the Pres­i­dent to dis­solve the House was brought also into Sec­tion 33( 2)( c) through the 19th Amend­ment, pil­ing one folly upon an­other and en­abling this rich con­fu­sion presently grip­ping the na­tion.

In the most pro­found of ironies, it is this Sec­tion that is cited by ad­mit­tedly de­vi­ous le­gal minds to jus­tify the Pres­i­dent’s act (‘Coun­try in an­ar­chy; Pres­i­dent can dis­solve Par­lia­ment, Sarath N. Silva, Sri Lanka Mir­ror, 08.11.2018). In­ter­est­ingly it is con­tended that Sec­tion 33(2)(c) had been in­serted fol­low­ing the De­ter­mi­na­tion of the Supreme Court on the 19th Amend­ment when a clear read­ing of that De­ter­mi­na­tion shows that very much not to be the case.

In the eye of a storm

But con­sti­tu­tional draft­ing er­rors aside, what is hap­pen­ing now is in­fin­itely worse than at any time in the past. Rash ac­tions by Pres­i­dent Sirisena which are en­tirely de­void of re­morse add to the sum to­tal of his­tor­i­cal abuses by the Of­fice. An elec­tion to bring in the same set of rogues in what­ever con­fig­u­ra­tion is point­less. In­deed, a wildly un­pre­dictable Pres­i­dent may well dis­miss the win­ner of that elec­tion as well if the out­come is not to his lik­ing. His ap­peal to pub­lic of­fi­cers to per­form their du­ties re­gard­less of po­lit­i­cal con­flict is quite non­sen­si­cal. Truly we are in the eye of a storm that has the po­ten­tial to stran­gle Rule of Law pro­tec­tions even as they are be­ing slowly and and hes­i­tantly rejuvenated.

The pop­u­lar struggle must be to re­set Sri Lanka’s con­sti­tu­tional checks and bal­ances and re­ject this joke of a mon­strous kind per­pet­u­ated by all three men, Pres­i­dent Sirisena, for­mer Pres­i­dent Mahinda Ra­japaksa and Prime Min­is­ter Ranil Wick­remesinghe. To safe­guard the cred­i­bil­ity of this move­ment, it must stud­iedly keep it­self aloof from the UNP and the SLFP. The dis­card­ing of the Ex­ec­u­tive Pres­i­dency must be a prime aim along with eschew­ing trans­fer­ral of those pow­ers to an equally au­thor­i­tar­ian Prime Min­is­ter.

For now, it will be up to the ju­di­ciary to ful­fill its role of pro­tec­tor of the Con­sti­tu­tion. It is the na­tion’s hope (against hope?) that this task will be taken to heart in the full and aw­ful solem­nity that it de­mands.

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