Kishali Pinto Jayawardene
As former President Mahinda Rajapaksa ignominiously retreated following the Supreme Court and the Court of Appeal delivering a richly deserved lesson on constitutional propriety to President Maithripala Sirisena, the nation faces sobering questions close to the dawn of a new year.
Betrayal of the electoral compact
Euphoria in preventing the President from tossing the Constitution into the waters of the Indian Ocean in front of his Secretariat on the advice of legal ‘experts’ who should be hanging their heads in shame, 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 ‘yahapalanaya’ failures was precisely the reason why the 2015 democratic gains were frittered away by the unity coalition, long before both partners ferociously turned on each other.
Lest we forget, the attempted extra-constitutional capture of political power by former President Mahinda Rajapaksa on October 26th 2018 did not come upon us in a vacuum. Instead, it was a consequence of betrayal of the 2015 electoral contract by both the United National Party (UNP) and the Sri Lanka Freedom Party (SLFP). This must be underscored. Due responsibility must be 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 their choice. Just as much as patriotism is the clarion call of scoundrels, the call to the Supreme Court by the SLPP to respect ‘people’s sovereignty’ is the height of political depravity.
‘Sovereignty of the People’
The context and meaning of that much abused term ‘sovereignty of the People’ was put in proper perspective by the Supreme Court this week. Writing for five of his colleagues on the Divisional Bench, Chief Justice HNJ Perera dismissed multiple objections to the Court entertaining the fundamental rights petitions challenging the dissolution of Parliament. He stated that, in honouring this duty to inquire into 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.’ The basic principle is that nothing valid can result from an illegality.
Meanwhile the argument relating to immunities of the President received commendably short shrift by the judicial referencing of the proviso to Article 35 (1) in the 19th Amendment affording the right of citizens to file fundamental rights petitions ‘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, it is astounding that such an argument had been made at all, given the established cursus curiae of the Court militating against this reasoning for decades.
This testifies to the very bad brief in the hands of the chief law officer. Another ludicrously outdated argument advanced by an intervenient that relief under Article 12 (1) only arises on ‘unequal treatment‘ among the equally circumstanced was dismissed with equal force as a long discarded notion. The Court reminded that an act that is ‘prohibited by the law receives no legitimacy merely because it does not discriminate between people.’
The core of the constitutional dispute was dealt with succinctly. Pronouncing on its ‘sacred duty to uphold the integrity and supremacy of the Constitution’, it was opined that Article 33 (2) (c) describes the manner in which the President is entitled to exercise the power of summoning, proroguing and dissolving Parliament but the specific manner of the lawful exercise of that power is set out in Article 70(1) through the issuance of a Proclamation.
On a harmonious reading of the constitutional text, Article 70(1) was held to prevail with the result that 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.
The reinvention of the beast
This week’ decision of the Court goes beyond a mere clinical discussion of relevant constitutional articles. In particular, its affirmation that the fundamental rights jurisdiction of the Supreme Court is ‘a cornerstone of the sovereignty of the people’ and the Grundnorm of the Constitution follows in line with the revered Kesavananda Bharati articulation of the basic structure of the Indian constitutional document (1973, Supreme Court) several decades ago. That by itself is an exemplar upholding of the Court’s constitutional role.
But the law can only do so much. True, a catastrophe was prevented by intrepid judges who declared that they ‘cannot be motivated by political considerations’ and an undaunted Speaker who faced down vulgar abuse thrown at him in the House. Next time around, the nation might not be that lucky.
Therefore it is the political culture that should be confronted head-on by citizens. Voters should not be asked to choose between unholy characters who threw chillie water in the eyes of policemen guarding Speaker Karu Jayasuriya in the House and multiple stupidities of a select few around Prime Minister Ranil Wickremesinghe taking bad decisions that enrage the populace. These are unenviable alternatives. And if the recent tumultuous happenings are not eminently teachable moments for Sri Lanka, then nothing will suffice.
For this is just one setback 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.
It is best not to forget just how close we came to the brink.