A Court that stood tall above the political frenzy

As the thunder and lightning of the past few weeks ended in an ignominous retreat for former President Mahinda Rajapaksa following the Supreme Court and the Court of Appeal delivering a richly deserved lesson on observing constitutional propriety to President Maithripala Sirisena, the nation faces sobering questions as a new year dawns.

A fragile democracy at the brink

Euphoria in having prevented the President (on the advice of conniving legal ‘experts’) attempting to toss the Constitution into the waters of the Indian Ocean in front of the Presidential Secretariat is understandable. But relapsing comfortably into complacency when the excitement subsides is not an option this time around. The absence of civic vigilance and a forthright critique of the failures of the ‘yahapalanaya’ was precisely the reason why the 2015 democratic gains were frittered away by the unity coalition, long before both partners turned on each other.

Lest we forget, it was this unhappy process that resulted in the attempted extra-constitutional capture of political power by former President Mahinda Rajapaksa on October 26th 2018. Despite rejoicing in that attempt being foiled, this has left us acutely conscious of just how fragile our democracy is. For that fateful day did not come upon us in a vacuum. Instead, it was a cause and consequence of specific failures in the electoral contract that both the United National Party ( UNP) and the Sri Lanka Freedom Party ( SLFP) had entered into with the citizens close to four years ago. This must be underscored and due responsibility borne by both parties.

Even so, it is particularly amusing that

Rajapaksa’s Sri Lanka

Podujana Party (SLPP) should position itself as the constitutional victim on an entirely disingenuous argument that, by precipitating this turn of events, it was only trying to enable an election to be held so that the people could vote for the party of its choice. Just as much as patriotism has been the clarion call of scoundrels, the call to the Court to respect ‘people’s sovereignty’ is the height of political depravity.

Sovereignty of the People

The context and meaning of that much abused term was put in proper perspective by the Supreme Court when, in writing for his colleagues on the Divisional Bench, Chief Justice HNJ Perera dismissed the objection to the Court entertaining the fundamental rights petitions challenging the dissolution of Parliament. Pointing out that it is the inalienable right of every citizen to invoke the fundamental rights jurisdiction of the Supreme Court, this was pronounced to be ‘a cornerstone of the sovereignty of the people’ and the Grundnorm of the Constitution. It was affirmed that, in honouring this duty to inquire into such fundamental rights challenges, the Supreme Court was only giving ‘tangible and effective life and meaning to the sovereignty of the people.’

Rejecting also the submission of the respondents that, by declaring the dissolution unconstitutional, the right to franchise will be affected, the Chief Justice stressed the fact that ‘the fundamental premise that any exercise of franchise, must be at an election which is duly and lawfully held and which satisfies the Rule of Law.’ He pointed quite rightly that, ‘a departure from that rule will result in the negation of the requirement of the Rule of Law that an election must be lawfully called and be lawfully held and, thereby, adversely affect the results of an ensuing election.’ It was stressed that the basic principle is that nothing valid can result from an illegality.

Meanwhile the argument relating to immunities of the President recieved commendably short shrift by the Court referencing the proviso to Article 35 (1) in the 19th Amendment affording the right of citizens to file fundamental rights petitions to the Court ‘in respect of anything done or omitted to be done by the President, in his official capacity.” Thus, the concept of ‘absolute immunity’ of the President, (which had anyway been jettisoned long before the 19th Amendment), was held emphatically not to be the case any longer. Interestingly it was asserted that judicial review would extend to several other executive powers given to the President in Article 33 (2) (c), apart from what has been expressly excluded and certain other ‘purely’ ceremonial functions.

Core of the constitutional dispute

Unsurprisingly, the Court declined to accept the argument of the Attorney General that the President, in his capacity as the Head of State, had ‘unrestricted omnipotent power which is akin to royal prerogative power held by a monarch.’ Indeed, the fact that such an argument had been made at all, given the cursus curiae of the Court from the nineties onwards which rejected such an approach testifies to the very bad brief in the hands of the chief law officer of the land. This was the same in regard to other arguments advanced by the Respondents, as for instance in regard to the long rejected classification bar for giving relief under Article 12 (1) of the Constitution.

Where the core of the constitutional dispute was concerned, it was observed that the Court has a sacred duty to uphold the integrity and supremacy of the Constitution and a harmonious reading of the constitutional text was essential. The Court opined that Article 33 (2) (c) only describes the manner in which the President is entitled to exercise the power of summoning, proroguing and dissolving Parliament while the specific manner of the lawful exercise of that power is set out in Article 70(1) through the issuance of a Proclamation.

Article 70(1) was held to prevail with the result that the dissolution of Parliament can only be within the scheme of that constitutional article. Thus, the President cannot dissolve Parliament during the first four and a half years of its term unless there is a resolution passed by not less than two thirds of the Members of Parliament, including those not present. Consequentially the presidential gazette was ruled as being in contravention of Article 70 (1) of the Constitution and a violation of the petitioners‘ rights guaranteed under Article 12 (1) of the Constitution have been violated.

The reinvention of the beast

The worth of a nation and its people is tested for its democratic strength not in prosperity but in times of great adversity. This nation has proved its resilience time and time again. But the choice for this country cannot be between those unholy characters who threw chillie water in the eyes of policemen guarding Speaker Karu Jayasuriya in the House or the multiple stupidities of a select few around Prime Minister Ranil Wickremesinghe taking bad decisions that enrage the populace during the past close to four years.

This time around, the country stepped back from the brink only by virtue of intrepid judges and an undaunted Speaker of Parliament whose judgment in the House facing down vulgar abuse thrown at him proved to be correct. But this is just one setback only for the xenophobic political beast that stalks the land. At each time it is thought that the beast has been fettered, it reinvents itself and returns with force. This we have learnt, time and time again.

Certainly it is best not to forget that lesson.