We desperately need a new Constitution to address the important questions that arise in a multi-ethnic, pluralistic society such as ours
by Kan Butani
( November 23, 2018, Colombo, Sri Lanka Guardian) The constitutional crisis in Sri Lanka began with the appointment of Mahinda Rajapaksa as Prime Minister on 26th October 2018 and the sacking of Prime Minister Ranil Wickremesinghe.
The President gave several reasons for the sacking of Wickremesinghe, one of them being that it was very difficult to work with Ranil, as the latter was extremely stubborn. He had even approached Sajith Premadasa and Karu Jayasuriya to take over as the PM, because the UNP as the party with the majority deserved recognition. Karu did not say a word about being approached, but Sajith had admitted that he was in fact approached, had taken it up with the UNP high command and discussed the matter seriously with Ranil, who could have approached the President and sorted matters peacefully. If Sajith had kept silent and not taken up the request with the UNP high command, he would have made a grave mistake and been partly responsible for the present crisis.
Being frustrated with his inability to communicate with the Prime Minister he had to find a way out to remove him. Mahinda Rajapaksa, being a former President, knew exactly the modus operandi of taking over the reins. He knew how to take over key institutions like the media, the defence forces, including the Police, and other controlling bodies without even batting an eyelid.
Having blundered already when he appointed Ranil as Prime Minister in January 2015 when the UNP had only 40 odd seats in Parliament, removing D. M. Jayaratne, who came from the majority party at the time, the President pondered over the situation because here he was at an advantage. The UNP which had tried to limit the powers of the President by virtue of the 19th Amendment, had actually enhanced his power because they are totally incapable of doing a job, or for that matter getting a job done properly. The President had tried to remove Ranil through a no confidence motion, but had failed, as latter had emerged victorious. The English version of Article 42(4) of the of the Constitution says: ‘The President shall appoint as Prime Minister the member of Parliament who, in the President’s opinion is most likely to command the confidence of Parliament’. The Sinhala version of the same article says: Janadhipathige mathaya anuva Parlimenthuve vishvasaya uparima vashayen athi parlaimenthu manthrivaraya Janadhipathi visin Agramathyavaraya lesa path karunu lebiya yuththe ya.
It’s merely a question of "vishvasaya’ which is belief and that also according to the Janadhipathige mathaya i.e. the ‘President’s opinion’. So in both versions it is the President’s opinion that matters most; there is no clear cut article to state that the Prime Minister can only be removed by a no confidence motion in Parliament, so the President has the power to sack the Prime Minister and appoint a member of his choice.
In order to resume parliamentary proceedings he had to summon Parliament, and for Mahinda Rajapaksa to continue as Prime Minister he had to have a majority in Parliament. This is when the horse trading began, with both sides engaged in buying members of parliament trying their level best to get a majority in the House. Here it is possible that the President realized that Mahinda Rajapaksa could not get a majority and, therefore, decided to dissolve parliament and call for a General Election.
The proclamation dissolving parliament states that it was done by virtue of the powers vested in the President by article 33(2)(c) of the Constitution and Article 70(5) which should be read with Article 62(2). What article 33(2) (c) which was a new provision introduced into the Constitution by the 19th Amendment – states is that the President will have the power to summon, prorogue and dissolve Parliament in addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law. Article 62(2) states that every Parliament shall continue for five years from the date appointed for its first meeting unless Parliament is sooner dissolved. Hence Article 62 (2) buttresses the power conferred on the President by article 33(2) (c) to dissolve Parliament. The President’s proclamation dissolving Parliament also quotes Article 70(5) having fixed a date for election of members of Parliament, and a date for summoning of Parliament.
On the other hand, it can be argued that the President cannot dissolve Parliament at this point of time because the 19th Amendment had amended Article 70 of the Constitution, so that the President cannot dissolve Parliament until the lapse of four years and six months from the date of its first meeting, unless Parliament requests the President to do so by a resolution passed by a two thirds majority.
Here there is a clear ambiguity but legal opinion has been expressed that the new Article 33 only declares some of the ‘general powers’ of the President and that the manner in which that power of dissolution can be exercised is given in Article 70. What brings that argument into doubt, however, is the fact that Article 33 (2) (c) has not in any way been made subject to the provisions of Article 70 by the Constitution and for all purposes and intents the provisions of Article 33 (2) (c) and Article 70 are independent of each other. Thus, we have in the same constitution two independent provisions, one giving the President unfettered power to dissolve Parliament, and the other imposing restrictions on the power of the President. This conundrum will have to be solved in the Supreme Court. The Court might also take into consideration that the Government has already delayed the holding of Provincial Elections and asking for a mandate from the people at this juncture may not be a bad idea.
The 19th Amendment is full of ambiguities and flaws, and it is shameful to think that this document would have changed hands among so many members of the Legal fraternity, but could not serve the purpose for which it was intended. There is no title or heading stating that by virtue of this amendment, whatever articles that have been amended supersede all previous such articles, which have been rendered null and void as a result. It is for this reason that whatever amended has to be done flawlessly leaving no ambiguity or loophole. The document has to be a watertight compartment, so that the powers are very clearly defined leaving no chance for the President to make an order against any article or section. The law is precise and only pinpoint evidence can change something that is considered legal and make it illegal.
It is a matter of regret that the Country has not produced any great legal luminaries in the past several decades. The reason for this maybe the "Sinhala Only" doctrine brought in by S.W. R. D. Bandaranaike in 1956. English is not only a language, it is a gateway to knowledge. One has to study English right from the lower kindergarten to the end of his career to enjoy wholesome benefits. It widens your outlook to life, mentally you are more alert, because most of the texts are in English and reading and digesting some of the stuff written by the great writers of that era goes to improve your personality to a great extent.
Just to digress a bit, I would like to enlighten you by reminding you of some of the great legal luminaries of the past. The Law faculty of the University of Ceylon had its first intake in 1947. Among others R.K.W. (Raja) Goonesekere, who after graduation stayed on in the faculty as a lecturer for two decades and later migrated to Nigeria to teach law. Ana Seneviratne, who later became Inspector General of Police. The second intake included H.L.De Silva P.C. Felix Dias (before he added Bandaranaike to his name) the well-known politician, and John De Saram, later Director of the UN Legal Division who succeeded HL as our Ambassador to the United Nations. H.W. Thambiah, later a Supreme Court Judge and author of the law of Thesawalamai, was a busy practitioner who lectured part time on the legal systems of Ceylon. His students used to say that he was loquacious his lectures tended to be rambling, but he covered a great deal of ground. He brought the hustle and bustle of Hulftsdorp into the classroom: He was always in a hurry to get to some Courtroom.
The third intake of 1949 included Kenneth Shinya (Who took a first class degree in Law, the only first class for many years, Abid Esufally, Mahen Vaithianathan and Gilbert Jayasuriya. The fourth intake included among others Ranjith Abeysuriya (later President’s Counsel and Chairman of the National Police Commission) Lakshman Kadirgamar P.C. M.P. former Minister of Foreign Affairs.
And, there was the redoubtable Sir Ivor Jennings, Vice Chancellor of the University, internationally renowned constitutional lawyer, author of a definitive on Cabinet Government, principal draftsman of the Soulbury Constitution, independent Ceylon’s first Constitution. He had high praise for Mr. D. S. Senanayake, for his common sense and understanding of democratic values of the British sort, and for the legal acumen of Mr. H.V. Pereira K. C., the pre-eminent Ceylonese lawyer of the time. But he stated his claim forthrightly, that the Constitution was his. He denigrated the Indian Constitution for being too rigid. The truth is that Sir Ivor was wholly unfamiliar with written constitutions since the United Kingdom has never had one. Although the Soulbury Constitution had stood for 25 years until it was repealed by the First Republican Constitution in 1972, it was really a failure because it did not address the important questions that arise in a multi-ethnic, pluralistic society such as ours. On the other hand the Indian Constitution has stood the test of time – over 50 turbulent years of post-independence history.
There was another huge lacuna in Sir Ivor’s exposition of the Soulbury Constitution. The concept of separation of powers was there but he did not know about it. That was because in British Constitutional Law, in the absence of a written constitution, there is no separation of powers between the Executive, the Legislature and the Judiciary. Some 15 years after the enactment of the Soulbury Constitution, Mr. H.V. Pereira Q.C. appeared in the Appeal Court. He had an appeal from the judgment of a Bribery Tribunal established by the Executive. He had nothing to say for his client on the facts. He was searching his mind for a reasonable legal argument – the only hope for his client. When his case was called he told Justice Sansoni that there was an important constitutional question in this bribery case and that he would like to have some time to consider and develop his argument. The case was postponed. If a lesser advocate had asked for time on that ground he would have been told to get on with his case. But Mr. Pereira was special. If he said there was an important constitutional question to be argued no judge would have disagreed.
He took up the question of Separation of Powers in the Constitution, when he appeared next. The great lawyer developed a fascinating argument. He said the Constitution had separate chapters dealing with the powers of the Executive, Legislature and the Judiciary. These were the "three pillars of the Constitution". When the bribery case was finally taken up for hearing it was upheld: the Bribery Tribunal was declared to be ultra vires the Constitution; the decision was followed in other cases and endorsed by the Privy Council in the famous "coup" case (Queen vs Liyanage) Judicial power – the power to try convict and punish - can be exercised only by the established judiciary in whom the judicial power of the State is vested by the Constitution. It cannot be exercised by the other organs of State- the Executive or the Legislature. Thus it appeared that Sir Ivor Jennings had not realized that the doctrine of the separation of powers was embedded in the very constitution of which he was the principal draftsman.
George Chitty was another great lawyer. After he had examined the first prosecution witness the case usually collapsed. He was a suave and deadly cross examiner, politely devastating. While arguing the appeal in the famous Kularatne Murder Case, the presiding Judge asked "You mean to say that the Judge could have made such an elementary mistake"? Pat came George’s superb reply: "My Lord, no one thinks less of a Judge because he made a mistake. Nor less of a mistake because it was made by a Judge"
Another Chitty gem was this, quoted by Justice A.R.B. Amerasinghe in his book on the Supreme Court of Sri Lanka. It was a rape case and Chitty suggested that village damsels were more sophisticated than some might wish to believe, and that here was no question of outrage of modesty in the case. The judge said that the girl was only fourteen and therefore Counsel’s suggestion was unacceptable. Chitty’s reply was: "While I respectfully bow to your Lordship’s superior knowledge of the ways of village damsels yet age per se is not the most important consideration. Have we forgotten that Juliet had a torrid affair with Romeo at twelve? There can be no hard and fast rules on the matter". A moment’s hush. Loud laughter from the bench. After trying hard to get a difficult opponent to accept a settlement, finally George succeeded when his opponent turned to the judge and said: "To that proposal, your Honour I cannot say nay". George turning to him scornfully said: "Certainly not, unless you are a horse".
On the criminal side there were two scintillating cross - examinations - one by G.G. Ponnambalam Q.C. the most sought after defence lawyer after the legendary R.L. Perera K. C. , of Scotland Yard’s Inspector Godsell in the famous Ranjani taxi cab murder case – the first finger print case in Ceylon. After thoroughly demolishing Godsell’s evidence, G.G. walked up to him as he was stepping down from the witness box, took out his solid gold cigarette case and grinning mischievously offered him a cigarette with the remark: "No hard feelings, Godsell?". The other was Dr. Colvin R. De Silva’s elaborate delicate but devastating cross-examination, in the famous Sathasivam murder case, of a highly respected witness, Professor Milroy Paul, who had to be handled with extreme sensitivity in view of his standing in the profession. Sathasivam the famous cricketer, was indicted for the murder of his wife. High society had hanged him from every lamppost in the city. Justice Gratiaen presided over the trial before a special jury. Dr. Colvin R. De Silva defended him. Satha began the case a villain. The West Indian Cricket team visited him in jail. Upon acquittal he was carried shoulder high out of court by his supporters – a hero once again. It is said that Colvin lost his Wellawatte Parliamentary seat because irate Tamil opinion punished him for securing Satha’s acquittal.
These cases may not be relevant to the flaws in the present Constitution but just look at the names mentioned. Each of them rode like a colossus during their legal career. The family background, upbringing, intellect and vocabulary, they had the ability to think on their feet and quote from the hip as and when required.
We desperately need a new Constitution to address the important questions that arise in a multi-ethnic, pluralistic society such as ours. Our society deserves it because of the supreme worth of the individual, his right to life, liberty and happiness. The law was made for man and not man for the law; that government is the servant of the people and not their master. These are some of the principles, however formulated, for which all good men and women throughout the world, irrespective of race or creed or education, social position or occupation are standing and for which many of them are suffering and dying.
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