Manipulating constitutional provisions!


By I. P.C. Mendis

UNP General -Swecretary, Tissa Attanayake, despite years of Parliamentary experience, seems to lack political finesse. I would like to credit him with perhaps some degree of unwitting intellectual honesty. Sometimes he gives it off the cuff that one would be compelled to believe that he is built in the mould of Sir John Kotelawela restrictively for the knack of voicing his thoughts candidly and thinking later. The "Simple Simon" whom he appears to emulate did not mind sometime back to unfold what many others would have preferred to maintain as a secret, that the UNP had formed a Committee headed by Mangala Samaraweera to commence a Goebels-like campaign to spread lies and false rumours against the government as Mangala S. did very successfully against President Premadasa (seven virgin baths et al ). He was honest to himself but did not realise that the Goebels campaign per se would be a non-starter ab initio, when it became public knowledge. Perhaps, he was banking on a fact that Prabhaklaran himself knew - that the Sinhala people have short memories and tend to forget everything in two weeks ! Great man this Tissa Attanayake - you can depend on him to spill the beans true to his conscience.

Sirisena's Entree

Tissa A has chosen to show his colours again true to form. Before the heat went out of the press briefing by Opposition common candidate Maithripala S (flanked by CBK and Rajitha S. ) Tissa tells the country loud and clear that the plan is for Maithri S ( when (not if ) he wins to hand over all powers of the President to Ranil W so that he will function as Executive Prime Minister - this to be done invoking the provisions os Article 37 (1) f the Constitution. Some in the government including Dallas Allahapperuma, see a contradiction in terms here when compared to the statement made by Maithri S. that the Constitution will be amended within 100 days to abolish the Ex. Presidency. There does not appear to be any muddled thinking here. One has to credit the conspirators with some intelligence and smartness to accommodate any situation. They may not love revolutionaries but they realise the validity of some of their slogans - " The end justifies the means " ! The 'modus operandi' would be first to utilise Article 37(1) to activate the Executive Prime Minister in Ranil W and Maithri S to function as a ceremonial President. The amendment of the Constitution will depend on their ability to harness a two-third majority in Parliament by, inter alia, playing on human weaknesses. Even if this fails, Article 37(1) can continue to operate. If the invocation of Article 37(1) is held to be constitutionally and legally permissible, This seems to a master strategy. The carrot is already offered to the UNP vote base - Ranil W to be Sirisena's Prime Minister. with executive powers. Other matters such as independent Commissions, scrapping of 18th Amendment, Right to Information etc can take a back seat for want of a two-third majority. Ranil W's proposed government would in its own mind be very comfortable maintaining the status quo.

This move brings into focus the real possibility of Ranil W assuming powers of the then President (CBK) to sign the so-called peace agreement with Prabhakaran in 2001. Could CBK have secretly acted under Article 37(1) then for Ranil W to boldly use powers exclusively with the President under Article 33 (e) " to declare war and peace" unless he was armed with authority. After all it was President Premadasa when he was Prime Minister complained he had only the powers of a peon ! Ranil W is no fool. On the other hand, why did CBK permit such situation if Ranil acted arbitrarily and unconstitutionally? Was it not an impeachable offence? No-one seriously examined this aspect then. I. But then CBK has proved herself to be capable of secret deals as in the instance of her secretly taking oaths as President before the then CJ Sarath Silva which the latter, I believe , made public subsequently. It was reported then that CBK was even frequently not found presiding at Cabinet meetings.


During President JRJ' s tenure, the Sri Lankan Constitution earned the dubious reputation of being a "periodical". Despite enjoying a huge 5/6th majority, a constitutioanl amendment was introduced to accommodate S. Rajadurai of the TULF in the government. Another amendment saw an opportunity for the President to call for a Presidential election after four years in office meant purely to shut out Mrs Sirimavo Bandaranaike from contesting within the period of her civic disability. The 13th Amendment was passed in a most undemocratic manner. Constitutional provisions were mis-used to send the then Auditor General Siriwardene on compulsory leave as he was becoming inconvenient. Then came the decision to hold a Referendum on a matter of purported "national importance" which Article 86 provides for. . The preservation and continuance of the then government was (mis) construed as of "national importance"i ! And now the great plan is to "mis-use" Article 37(1) which enables the Presudent to appoint the Prime Minister " to exercise, perform and discharge the functions of his office....." if "in the opinion of the President he will be unable to discharge such powers " by reason of illness, absence from Sri Lanka or any other cause.

"The term "any other cause" is to be misinterpreted to serve the ends of the common candidate plan by those who complain there is no democracy in the country now. The intentions of the then Constitutional Council and Parliament was definitely not to accommodate such dubious plans . And so it was with the infamous Referendum. Constituent parties which back the common candidate who see everything wrong in President MR seeking a third term apparently see no impediment in the proposed misuse of Article 37 (1).! Gerrymandering can take other forms such as when CBK vicariously made the 17th Amendment partly dysfunctional by rejecting a nominee to the Constitutional Council and the independent groups themselves being unable for a long time to come to an agreement under Section 41A (1) (f) of the 17th Amendment. ( Now, they cry hoarse about the 17th Amendment.)

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