People’s Power, The Constitution and Rulers’ Powerax



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Savitri Goonesekere   


The current situation in the country is being discussed in a vigorous debate in the print media. The adversarial and angry environment witnessed in parliament, and more recently in the incident involving some monks, is not replicated in these fora. It is rarely that a commentator makes a snide or personal comment about a contribution by another. This respect and tolerance for view point difference, and the environment of peaceful protest within the country is a tribute to the Sri Lankan People. It shames the politicians who claim to safeguard the sovereignty of the People, and desecrate the fora in which they are expected to discuss and debate critical issues of public concern.


In this spirit of continuing debate and discussion, I would like to respond to some comments made in the Island by Professor GH Pieris, Emeritus Professor in the Faculty of Arts University of Peradeniya, on individual contributions by me, and a joint statement, with other colleagues. In doing so, I would also like to reflect on some important concerns raised by others writing on these issues in the print media.


Some Current   Issues of Public 


Concern Sovereignty of the People


This has become a central issue. 


 A large number of professionals and academics including Prof GH Pieris, Dr Palitha Kohone, Ms Samantha Ratwatte and regular contributors like Mr Neville Laduwahetty and Mr Kusal Perera have argued that the regime change in the aftermath of October 26  represents a victory for the People. Reference is often made to Article 3 of our Constitution which states that "sovereignty is in the People, and..... includes the power of government, fundamental rights and the franchise." However the concept of sovereignty of the People is interpreted by the above commentators as a concept outside the framework of the Constitution.


Prof GH Pieris suggests that the focus on Constitutional issues in the current context is flawed. He refers to the President’s justification for "the reforms" he initiated on October 26, because of failures in governance, suggesting that this reflects a much more important commitment to safeguard the sovereignty of the People. Mr Kusal Perera seems to agree, arguing that we should ignore "redundant" or meaningless Constitutional imperatives. (Daily Mirror Nov. 16, 2018 p 12). These viewpoints reinforce the new regime’s public campaign on electronic and print media and in public billboards. They remind citizens that the regime change saved the nation,  empowered the People, and reclaimed the "janatha mahimaya".


The interpretation of a concept of the Peoples’ sovereignty outside the framework of the Constitution, the basic law of our country, needs to be examined further, by us as citizens of Sri Lanka. A Constitution is adopted by countries across the world, including in our region South Asia, because it is recognized that governance must be based on a framework of institutions that contain and limit the power of the State. This is the theory of Constitutionalism, reflecting the importance of limiting State power, preventing abuse of State power and arbitrary, authoritarian governance.   Constitutionalism recognizes that limiting the power of the State promotes accountability to a sovereign people - the citizens of the country.


Frameworks for governance in a Constitution may vary. Our Constitution is grounded in the model of what is described in the Preamble as "representative democracy" for "the preservation of a just and free society."(para 1 ).In adopting written Constitutions from the time of independence, we as a people, have accepted that government must be based on  the  the structures of governance  set out  in a written Constitution.


Distributing the functions and powers of governance between different institutions is the rationale of Art 4 of our Constitution of 1978.The article clarifies that the Peoples sovereignty recognized in Art 3 incorporates the model of governance in the Preamble.  This is why Art. 4 states that the Sovereignty of the People is exercised through the legislative power of a Parliament of elected representatives and a referendum. The executive power and defence are exercised by an elected President. Art 4 goes on to state that the judicial power will be exercised generally by courts and tribunals established and recognized by the Constitution, or by laws. Fundamental rights and the Franchise exercised at a Presidential election or a Parliamentary election, are also considered two fundamental pillars for the exercise of the Peoples’ sovereignty. Professor GH Pieris cites article 4, but does not consider the important implications of the Article for governance according to Constitutionalism, and institutions identified by the Constitution.


Article 4 makes it very clear that it is not possible to justify the President’s actions on October 26 and the days that followed, in regard to a change of government, by a concept of the Peoples’ sovereignty that is outside the Constitution and the institutions and principles so clearly set out in Article 4.


Failures in governance that the President referred to in his address to the nation, and the voice of the People expressed in local government elections, cannot justify disregarding the theory of Constitutionalism and institutions identified in the Constitutions. Governance has been based for 70 years in post independence Sri Lanka on a structure of governance that prescribes separate branches (legislative executive and judicial) which are also identified in Article 4.The balance between these different institutions is reflected in other important provisions of the Constitution. One of these refers to the accountability of the executive President to Parliament, in the exercise of powers and functions under the Constitution. This basic principle on the balance between legislative and executive power has been incorporated in both Article 42 of the 1978 Constitution and in Article 33 A of the 19th Amendment to the Constitution.


Prof GL Pieris, now Chairman of the political party PPP, in an interview with the Sunday Times in 1994 is said to have described this balance in our Constitution between Parliament the executive and the judiciary  as "a Parliamentary executive model" (editorial Sunday Times Nov. 20, 2018). The public knows how politicians including President Sirisena decried this model of governance as being too weighted towards the Executive Presidency. The 19th Amendment whose legitimacy is now decried by some, including the purported government established on October 26, was passed by a 2/3 majority in the current parliament in 2015. This consensus was because it was agreed on political party platforms and their agenda for many decades, including at the last general election in 2015, that the country did not want to retain the powerful executive presidency in the 1978 Constitution. Such executive power was considered to undermine the capacity to contain State power, an infringement of   sovereignty of the people, and the representative democracy that the Constitution promised.


 It is a poignant irony that despite this adherence to Constitutionalism, the exercise of Presidential powers outside the Constitution is justified by the President, the government he has purported to establish, and others. They are focusing on a concept of sovereignty of the People exercised outside the institutions of governance clearly identified in Article 4. This has plunged the country into an unprecedented crisis. The bitter and adversarial conflict between Parliament and the President reminds of the ancient conflict between King and Parliament in England centuries ago, that gave birth to core principles of democratic governance incorporate in many countries of the world.


President’s Powers and Changing Governments and Prime Ministers


The balance between the branches of government reflected in the Constitution indicates that when a coalition government headed by the President collapses, the President must go back to Parliament rather than try to form a government of his choice, with a Prime Minister of his choice. Art 43 (3) and 47 (a) of the 1978   Constitution gave the President the power to appoint and remove the Prime Minister at his discretion. These provisions were repealed by the 19th Amendment. The limitations on removal have been discussed in many contributions that analyze the changes.


The rejection  of the 19th Amendment provisions on the office of Prime Minister has led to the  the appointment of  Mahinda Rajapaksa as Prime Minister being challenged in parliament, as an illegal and void act. There is the serious issue of the President appointing a purported new government without ascertaining in parliament the person who can command the confidence of Parliament and form a government to succeed the collapsed coalition government. The phrase "likely to command the confidence of Parliament" that was used originally in reference to the appointment of the Prime Minister (Art 43 (3) is now incorporated by the 19th Amendment (Art42 (4). This power of appointment has to be interpreted by reference to parliament. Given the structures of governance in Article 4, this Article cannot be interpreted as giving the President an open ended discretion to appoint a Prime Minister and a government without reference to Parliament. This is the basis for the repeated call by the Speaker for the summoning of Parliament.  The formation of a majority government with new coalition partners, or a minority government with the committed support of   parties in parliament, cannot be determined outside Parliament.


 The comparison of the current situation on the sacking of a Prime Minister in office, and the appointment of  Mahinda Rajapaksa  as his successor,  with the appointment of Ranil Wickremesinghe as Prime Minister after the Presidential election in 2015 is weak. Ranil  Wickremesinghe had the support of  a very few members in Parliament. However, pre-19th Amendment, there was a Presidential power to remove a sitting Prime Minister.  The country had elected a new President with a different mandate. He was assured of support in parliament from members of parties that were willing to work with him and a new Prime Minister, who could therefore "command the confidence of Parliament". If this did not represent the political reality in Parliament at the time, there would have been an immediate no confidence vote against the new Prime Minister. This episode cannot be compared with the current situation, where a prime minister and government are running the country without proving their capacity to form a government in parliament after the collapse of the coalition.


The 19th Amendment introduces a concept of a National Government formed with the participation of the party with the highest number of seats in Parliament and other groups. (Art 46 (5). It is when such a government is formed, that Parliament determines the number of ministers that can hold office beyond the limit of 30 set by Art 46 (1) (a). Consequently any Presidential decision to appoint Ministers beyond that number, after a coalition collapses, must be taken to parliament. This article does not suggest that there will be an automatic collapse of the cabinet and termination of the term of office of the Prime Minister when a coalition collapses. The limitations on the President’s powers to sack the Prime Minister, and this provision on the limitation on the number of Ministers, must be read  together, requiring the President to go to parliament and ascertain who can form a government and the form  that government will take, as a National  coalition government or a minority government. The Constitution does not envisage the President picking and choosing a Prime Minister at his will and pleasure, either from parties that support him or any other party. This is not a gift he can bestow on his own.  To recognize such a power flies in the face of the concept of representative democracy on which the exercise of the Peoples sovereignty under Article 4 is based. 


Taking the Matter to the Courts immediately after the events of October 26, instead of appealing to Parliament, and the Stay Order A question being consistently raised is why the purportedly ousted government in office did not go to the courts immediately, and challenge the purported ouster. Art 129 of the Constitution gives the Supreme Court a Consultative jurisdiction if the President seeks an interpretation of the Constitution. President Sirisena used this procedure to obtain an opinion from the Supreme Court on his term of office. He could have obtained an opinion from the Court on the procedure he should follow when the coalition collapsed. He did not do so.  It is his failure to summon parliament, and also his order on the dissolution of Parliament that has led to the litigation for violation of fundamental rights before the Supreme Court. These procedures take time, as is evident from the date set in December, for the hearing of these fundamental rights case. If the President went before Parliament as the Constitution envisages, there would have been an opportunity to resolve the current crisis in governance, in the interests of the nation and without litigation, within a short time.  


Different views have been publicized in regard to the impact of the stay order issued in the cases currently before the Supreme Court. The phrase itself conveys its meaning - a prohibition on taking   action on the Presidents order, for dissolution of parliament that is under review by the Court. This inevitably means that Parliament does not stand dissolved as contemplated by the Presidential order already gazetted. This is why the Speaker was able to commence the proceeding in Parliament on November 14, the date when the Prorogation lapsed,  and  Parliament was summoned by the President. It is wrong to suggest that it was the Speaker who summoned Parliament, when there was an earlier  Presidential order on that subject


The President is required to respect the mandate given to him by the people who voted him in to office, and the government formed as a coalition with his partners elected to parliament. He was given a mandate for accountable governance that rejected the governance  of former President Mahinda Rajapaksa. When the President decided that he could not work with his coalition partner and its leader due to major differences, he was required to go before the Parliament of elected representatives and ascertain who had the capacity to form another majority coalition government, or a minority    government with committed support from identified members of parliament, including from a political party represented in parliament.


Voting in Parliament on a Motion of No confidence


Despite the disgusting scenes of personal violence and destruction to public property witnessed recently, it has not been possible to have a reasoned debate and a resolution of the issue as to who commands the confidence of parliament to form a new government. Public protests on the corruption inherent in buying crossovers to obtain the magic 113 votes to form a government have still not inhibited this obnoxious practice. A leading member of the cabinet is alleged to have stated, at a media conference,  that this number would be obtained soon, the purported government would not give up its "grip on power" and there would be a continued buying and selling of members in the days to come  (  Chief Whip S. B Dissanayake Daily Mirror Nov 16 p A6)      


Of even greater concern is the manner in which the President is making demands on changes to the content of the proposed motion of No Confidence in Parliament, and the repeated refusal to be satisfied on the credibility of the voting procedure. The Ven. Omalpe Sobitha has suggested a useful solution, requesting the President to go to parliament and witness the proceedings himself.(Daily Mirror Nov. 16 p A6) Such conduct would certainly conform with the President’s  responsibility under Art 33 A to exercise his powers and functions with accountability to Parliament. 


Despite the shock and anger expressed by many citizens regarding the scenes of violence at the meetings in parliament, spokesmen for the purported government and its supporters have faulted the Speaker and held him responsible for these ugly episodes .The Chairperson of the SLPP, one of the major parties in this arrangement for governance, Prof GL Pieris is reported to have even called for a vote of no confidence in the Speaker. (Daily Mirror Nov 20 p. A6) This with no comment on violence and disruption members of these parties caused to persons and public property within the assembly. This legitimization of the disruption, and failure to respect the office of Speaker with allegations of bias and sabotage, sets a dangerous precedent in regard to what is permissible conduct for holders of public office.


Many citizens are more objective. They condemn the unruly scenes and point to the consistent efforts made by the Speaker to uphold the dignity of his office, also interacting with the President regularly, to ensure a bipartisan solution to the crisis. The approach that he has taken, in responding to the continuing adversarial environment within parliament that he is unable to resolve, is clearly demonstrated in his last letter to the President on November 16.      Demonizing the Speaker and refusing to take responsibility for the conduct of members  from these parties, demonstrates a rejection of their responsibilities to their electorates and the nation. The time may have come to erect a wall of shame that identifies the members of parliament who perpetrated acts of violence and abuse in the Assembly, with a call to political parties not to nominate them again as contestants for parliamentary elections.    


Foreign Interference


Many commentators attribute the current crisis to the interference of Western governments. When retired ambassadors and former holders of office in the UN (in the Treaty Department no less) like Dr Palitha Kohona express these views the public become  apprehensive and begin to doubt the wisdom of disregarding conspiracy theories. These commentators on the present situation are persons with experience at the highest levels   in international fora in Geneva and or New York. They are well aware that we are a member state of the UN, and have obligations under international law to implement the commitments voluntarily undertaken by the State, by ratifying multi lateral treaties and instruments. I recall an excellent article written by Dr Kohona which he presented to me many years ago in New York. It was a fascinating account of how the treaty system had been transformed to give voice to representatives of civil society in UN fora. He thought this was an important and positive development. When any State takes on treaty commitments, they place themselves voluntarily in a situation where   scrutiny by other member states of their governance is legitimate, and within the scope of international law and norms and standards. Indeed our Supreme Court has referred to these commitments of international law in interpreting Sri Lankan domestic law. How can these persons, with international experience, place before the public, conspiracy theories on western interference with a sovereign nation?


The 19th Amendment


One of the great ironies of today is the manner in which the 19th amendment, passed by a 2/3 majority of parliament and certified as law on May 15, 2015 is vilified and trampled upon by the very members of parliament, President and Ministers who supported the amendment. Various theories have been placed before the public to reject or undermine this important amendment to the 1978 constitution. 


 Some say that provisions found in it were "smuggled in" at the Committee stage, and were not in the bill scrutinized by the Supreme Court for conformity with the Constitution. Others opine that the 19th Amendment limited the powers of parliament but not the executive. Some commentators have even argued that amendments to a Constitution are not really part of the Constitution and can be disregarded. 


It is important to recognize that amendments to Constitutions are substantive changes which modify or develop the Constitution, and then become part of the Constitution as the applicable basic law of a country. Such constitutional amendments are part of the Constitutions of many countries including India and the USA. The Act of Parliament certified on May 15, 2015 is called the "Nineteenth Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka.


This  19th Amendment was hailed at the time by the government including the President as a positive effort to adopt by consensus changes that would take away some of the worst features of executive powers of the President, incorporated  in the system of governance in the 1978 Constitution. It was recognized at the time that adopting a new constitution was not a realistic possibility. Hence the compromise solution to make amendments to the Constitution that would conform with the theory of Constitutionalism, and ensure a balance between the institutions of governance identified in Art 4 - the objective being to prevent authoritarianism and abuse of State power.


The changes introduced by the 19th amendment cannot therefore be considered ad hoc tinkering with the structures of governance. It was meant to be an initiative to introduce a set of changes that would achieve accountable exercise of executive power. The changes to the tenure of office of a president limiting terms in office, the establishment of independent commissions on a range of topics such a human rights and public administration, including the police service, the limitations placed on the President’s capacity to appoint members of the higher judiciary and specified high posts like that of the Attorney General and the Inspector General of Police, were part of the objective of limiting presidential powers. The Constitutional Council was placed in a position to check presidential powers.  No appointments could be made to certain high posts except on the recommendations of the Constitutional Council. Art. 35 (1)  introduced by the 19th Amendment for the first time changed the provisions governing Presidential immunity from prosecution or a civil suit while in  office, by permitting an action to be brought against the President for violation of Fundamental Rights guaranteed to persons under the Constitution. (Art 35 (1) proviso).


The provisions repealing the Presidents power under the 1978 Constitution to remove the Prime Minister at his discretion, and the limitations on the power to dissolve Parliament placed by Art 70 (1) of the 19th Amendment must be seen in light of all these changes that reflect a change in the value system on executive power of the President. The objectives of the 19th Amendment, and the change in values was adopted by strong consensus in parliament


The issue of the limitations on dissolution of Parliament were widely known and discussed at the time, and afterwards. The rationale was to prevent a capricious dissolution due to political imperatives, (as happened before under the 1978 Constitution prior to amendment) and prevent an election within a short time that would be expensive for the nation. Such an election was also seen as undermining the capacity of a government in office to complete plans and policies for national development. However the proviso to Art 70 (1) sets out the time limitation, but also provides for Parliament to dissolve itself by a 2/3 majority consensus.


The interpretation of the President’s power to dissolve Parliament after the 19th Amendment is now before the Supreme Court. Their lordships are asked to decide in the litigation for violation of fundamental rights before the Court whether the President’s power to summon, prorogue and dissolve Parliament (Art 33 (2( (c) set out as part of the Article 33 on his general duties and powers,) can be qualified by Art 70 (1).Their lordships’ decision is also relevant on the issue whether a Referendum can be called asking for a vote on the issue of a dissolution. If the dissolution is against the Constitution a referendum will not be possible.  


 When considering this important matter their lordships will undoubtedly hear arguments from Counsel and the Attorney General on the norms and principles of statutory interpretation.


The argument that the later provision must prevail has been supported by some who argue that there is a presumption which says that a general law cannot qualify a special law (generalia specialibus non derogant). Consequently it has been suggested that the general powers of the President in Art 33 (1) (c) cannot limit or exclude the restrictions placed on dissolution of parliament by Art 70 (1).  This particular principle applies in interpreting two statutes rather than provisions within a statute or Constitution. On the other hand the "purposive" or "contexual"approach to Constitutional and statutory interpretation seeks to find the intention of the legislature or a Constitution by reference to the language used, and its history, objectives and background. There is jurisprudence that indicates that the text and the language of the Constitution itself must be respected.  But this does not mean that the language is conclusive.  Courts interpreting the Constitution can and do go beyond that meaning, in light of factors that help to give a purposive meaning to the language. It is in this context that the background and the objectives of the 19th Amendment can give important insights on Constitutional interpretation .(S v Makwanyawe (1995 3 SA 391),   


There are also other provisions in the 19th amendment that indicate that the general powers of the President in Art 33 are qualified by provisions that appear later in the amendment. For example, the Article 35 (2) (g) gives the President the power to declare war and peace as an aspect of general powers. A later provision (Art 35 (1) on the immunity of the President, permits him to be sued for violation of fundamental rights in the Supreme Court for acts done while in office, but prevents the Supreme Court having jurisdiction to pronounce upon exercise of the power regarding declaration of war and peace in Art 35 (2) (g).This clarifies that the general powers can be expanded and or limited by other provisions in the Constitution.


The 19th Amendment may be criticised for poor drafting. However its importance was recognized by 2/3 of Members of Parliament and the President for seeking to achieve a balance between the different institutions of governance referred to in Art 4 on the exercise of the sovereignty of the People. Allegations that particular clauses were smuggled in at the Committee stage are incorrect as the 19th Amendment Bill, published in Part 2 of the gazette of March 13, 2015 issued on March 16, 2015 contains these provisions including Art 70. It is not possible to speculate as some commentators have done, on why the Court did not consider Art 70 (1) in its deliberations in the 19th Amendment Determination 2015. In any case our Supreme Court does not have powers of post enactment judicial review, due to limitations set out in Art 16 and Art 80 and Art 80 (3).These provisions have been critiqued over decades but remain in our Constitution as a reflection of Parliamentary supremacy, even though they  conflict with the concept of balance between the different institutions of governance that is envisaged in Art 4.


Constitutionalism and Peoples Power delinked from a Constitution


Those who advocate an interpretation of the peoples’ sovereignty outside the framework of our written Constitution by reference to the deficits in democratic governance that this country has experienced, should ask themselves whether an authoritarian system of executive governance that has no accountability to the various institutions mentioned in Article 4, is preferable, and in the national interest.


 In the last few weeks we have witnessed persons against whom criminal case are pending, being appointed to the cabinet to head the same ministries where they are alleged to have committed these offences. We have seen a person being investigated in a Presidential Commission of Inquiry for acts of corruption and mismanagement appointed as the Chairman of that organization, and a reversal of the decision after the story came to light in the media.


We have heard how a senior police officer handling important criminal cases was transferred out of his post at the direction of the President and how this decision was reversed because the Police Commission intervened. There have been strident calls by some Buddhist monks for the release of the monk Gnanasara. A media report( Daily Mirror  Nov 20  p 1) states  that some of these groups  claim to have received an assurance that the President is consulting the Attorney General with a view to releasing this convicted prisoner serving a sentence of imprisonment.


The nation was stunned to see the spectacle of a person claiming the second highest post in governance in the land as Prime Minister, watching silently as violence and destruction of public property by his own party members, including Ministers disrupted proceedings in the very seat of governance, the parliament. If all these acts are taking place soon after the President purported to appoint a new government, what will be the type of governance this country experiences when government continues to be in the hands of people who want to enthrone what they describe as "janatha mahimaya"or Peoples Power outside the framework of the basic law of our land, the Constitution of 1978 and the 19th Amendment?


We are living through a time that has trapped a nation in confusion due to a range of different factors. We can only hope that the lust for political power and the conflict it generates will be transient, and the country will understand the importance of Constitutionalism and governance that can limit abuse of State and executive power, and promote accountability to the People. The politicians vision of Peoples Power, enmeshed as it is in their own personal agenda, dis-empowers the People. The last chapter (xxiv) of our Constitution ends with the beautiful Buddhist stanza "Devo vassatu Kalena  ..... concluding with the line :Raja bhavthu dhammiko"- "may the ruler be righteous". The challenge for us Sri Lankans, is to find the leaders and rulers who  have the capacity and commitment to help realize that vision. Developing our "wall of shame " can be a beginning!


(The writer is former Professor of Law and Vice Chancellor of the University of Colombo)


 Savitri Goonesekere


The writer is a former Professor of Law and Vice Chancellor of the University of Colombo.   


 
 
 
 
 
 
 
 
 
 
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