Exterminating the Constitution, not upholding it – a sad approach to the absurdities of the 3rd Amendment

The ‘Sunday Island’ of February 7th contains three articles with regard to the term of office of the President. One of them refers to an article of mine that appeared in the ‘Island’ on February 1st, written hurriedly on the morning of the 31st since I wanted it to appear promptly. As I noted in my covering message then, I was worried about the article by Nihal Jayawickrama that had appeared that morning in the ‘Sunday Island’, ‘since the views of someone of his stature may be widely accepted – whereas he does not even cite the relevant provision’.

Mr Jayawickrama, in his new article, suggests that I thought both he and Mr H L de Silva did not have a "thorough knowledge of the English language". This is not the case, as a careful reading of the whole sentence would have made clear, though I apologize to the memory of the late Mr de Silva, the other lawyers he worked with on this case, and Mr Jayawickrama, if that impression was conveyed. What I should have said, in noting that ‘legal minds might have treated the matter as a complex one’, is that a thorough knowledge of, and concentration on, the English language would have made the picture clear, without necessitating recourse to abstruse legal arguments.

I say this because the Supreme Court judgment on the matter in 2005 referred to the fact that none of the lawyers had been able to explain a possible ambiguity. I should note that it is possible that Mr de Silva and his team had in fact explained the ambiguity, and the Court did not take cognizance of this. That possibility is enhanced by the point made by Ms Ruana Rajapakse in her article in your columns of February 7th, which notes that the Court claimed that the dates that are meant to be compared, by the potentially confusing ambiguous phrase ‘whichever date is earlier’, were the actual date of the election and the date corresponding to the date on which the first term commenced.

I have shown that concentration on the language, without taking predilections into account, makes it clear that the two dates to be compared are both dates corresponding to the date on which the first term commenced, the first in the year in which the election is held and the second in the succeeding year. The reason the confusing phrase is not redundant is that, without it, to cite the formula Ms Rajapakse employs, ‘the time gap between the date of re-election and the date of commencement of the second term could be anything from one day to 729 days’.

It is true that the whole paragraph is confusing. It is also true that it is not fair, since it gives two different dates for a victorious candidate to assume office, depending on whether this is the incumbent or a challenger. But this is what appears in the Constitution, as approved by the Supreme Court in 1982, and we would be in a sorry mess if the Courts or anyone else could flout the Constitution simply because they felt its provisions are unfair.

The extraordinary nature of the arguments to in effect flout the Constitution is apparent from the manner in which Mr Jayawickrama now brings to centre stage of his reasoning what was peripheral previously, namely that President Jayewardene took office for his second term well after the date of the election. Mr Jayawickrama now argues at some length that that was constitutional, and finally quotes the relevant paragraph, which as I noted previously is 31(3a)(d)(i). He then notes that the bill ‘proceeded to state that "for the purposes of this paragraph, the first term of office of the first President shall be deemed to have commenced on February 4, 1978’".

The impression his formulation gives is that ‘this paragraph’ is paragraph 31 (3a) (f). I am not sure whether this is intentional, but when Mr Jayawickrama goes on to that say ‘this paragraph had been ingeniously crafted’ to enable President Jayewardene to take his oath on 4th February 1978, the impression he creates is that it was for this purpose only. He then goes on to cite, as though it were evidence for this view, statements by Prime Minister Premadasa as he then was, and ‘Chief Justice Sharvananda" (which I believe he was not at the time, though it is possible Mr Jayawickrama’s memory is better than mine). These statements provide no evidence whatsoever for the view that Paragraph 31(3a)(d)(i) was supposed to apply only to the case of President Jayewardene.

I hesitate to say this is deliberate obfuscation, for I am aware that, when one holds opinions, one finds reasons for them, and good lawyers are better at this than most. I suspect this is one reason Felix Dias Bandaranaike tried to reform the legal system to limit adversarial approaches, and I believe that Mr Jayawickrama deserves credit for his support for this effort. Sadly, the reforms were stymied, and we have returned to oppositional relentlessness, in which appreciation of the other point of view is discouraged.

Thus, my efforts to understand the rationale for the Chief Justice ruling as he did in 2005, why the phrase ‘whichever date is earlier’ presented such difficulties, how President Kumaratunga failed in what should have been a cast iron case, are all useless in a context in which lawyers believe their duty is to assert what they want to assert, and use or ignore statutory provisions in accordance with their desires.

This may be understandable, but I still find it surprising, and sad, that Mr Jayawickrama now claims that paragraph 31(3a)(d)(i) was intended solely for President Jayewardene, even though nothing in that paragraph or in the whole amendment suggests this limitation. Mr Jayawickrama does not specify what exactly he means by the paragraph he says is ingeniously crafted, but it would be disingenuous to say it applies to 31(3a)(d)(i) since clearly ‘this paragraph’ is throughout intended to refer to 31(3a) as a whole, as indeed 31(3a)(e) reiterates.

It is then doubly strange when Mr Jayawickrama goes on to insist that 31(3a)(d)(i) should in effect be ignored, and we should instead engage in interpretation based on the provisions made for what happens if the person elected as President dies after the close of a poll held under 31(3a). It is correct that there is an anomaly here, in that if the incumbent President is elected again, and then dies, the unexpired portion of his existing term is not filled by a successor elected by Parliament, but by a fresh poll. But that is unavoidable since the alternative would be to elect a successor for a brief period and then have a fresh poll, which would convey an undue advantage on the successor elected by Parliament with regard to the fresh poll. Certainly there is absolutely no reason to suppose that this hypothetical situation supersedes the clear instructions of 31(3a)(d)(i).

Mr Jayawickrama’s Parthian shot is to claim that literal rules must be ‘exterminated’ if their application produces ‘absurdity’. This is an extraordinary declaration, especially since it ignores the possibility that one man’s absurdity may be another’s logical conclusion. When the Constitution is crystal clear, it is not up to us to second guess its provisions. We elect legislators to make laws and, however much many of us may despair of the manner in which President Jayewardene systematically subverted the original provisions of his 1978 Constitution through ‘absurd’ amendments, we have to accept what was passed at the time – especially given that the Courts had opportunity to review such legislation (if I am not mistaken, the Civil Rights Movement did in fact challenge this amendment and was not given relief).

In this respect I am in greater sympathy with the approach of Chief Justice Sarath Silva in 2005, whose rationale for a ruling (that I even then argued went against the clear provisions of the Constitution) was that there was an ambiguity in the law which the lawyers on either side had failed to resolve. When there was ambiguity, he argued, that could lead to civil unrest, the Courts were obliged to rule in the public interest. I should note that it is possible his judgment did not do justice to what Mr H L de Silva and his team presented, since it has been suggested that in fact they showed there was no ambiguity, but their arguments were not taken into account.

Both Mr Jayawickrama and Mr Philips note the deviousness of President Jayewardene with regard to his Constitution. Mr Jayawickrama makes much of the fact that President Jayewardene wanted a fixed term Presidency, and then suggests that this desire was enforced and must be respected even though the 3rd Amendment clearly made nonsense of such a principle. Mr Philips asserts that the 3rd Amendment is patently absurd (differing in this from Mr Jayawickrama who tries to suggest that it is acceptable if confined in effect to 1982), and then claims that the government’s effort to ensure its implementation will provide opportunities for the Opposition to challenge the election.

If such challenges are in the form of legal action to establish that there were irregularities in the poll, there is no problem. I hope however that all these efforts to insinuate that unconstitutional practices have occurred, which shades into practices that would be unconstitutional were our constitution not so absurd, which shades into insinuations about the utter wickedness of the present regime for doing precisely what President Jayewardene did, do not contribute further to the dangerous impression that extra-legal activities are perfectly all right for those possessed of higher sensibilities than the present Constitution and those entrusted by the nation with its enforcement. We need to ensure respect for the Rule of Law. Cavalier pronouncements about exterminating what one sees as unjust laws should not be encouraged, as opposed to reasoned argument that such laws should be amended.

(The writer is Secretary to the Ministry of Human Rights and Disaster Management)

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