A lawyer’s response to Medical Consultant



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It is extremely disheartening that the letter to the Editor of the Island newspaper titled "Mr. Lawyer, what is happening?" by a Medical Consultant, appearing on 10th November has gone without any response from, nor drawn any attention of any member of the legal fraternity to date.


It was evident from the tenor of the letter that the writer was completely compounded and confused by the unfolding constitutional imbroglio, and the resulting chaotic situation, which has brought the whole country to a gridlock and the administrative machinery to a standstill, causing unimaginable losses to the government coffers and untold hardships the general public.


In the first place, while appreciating his sincere interest to return to this country, leaving aside all comforts and advantages presently enjoyed by him and his family in greener pastures, it is my personal opinion and sincere advice that he should continue where he is at present, at least for the well-being of his children rather than jumping into a raging inferno with open eyes.


In fact, all the parents should think of taking their children out of this hell-hole - (I am reluctant to use the word 'shit-hole' used by the American President Donald Trump referring to countries as ours. But I am compelled to think that that term actually suits our country under the prevailing circumstances) - and settling down in some decent country, disregarding that they will not be treated as first-class citizens. What is the big idea of mentally enjoying the status of a first-class citizen in an inferno where you will ultimately be burnt to ashes?


This country is now, figuratively speaking burning, due to the self-seeking and rogue politicians and the so-called hallowed parliament has been reduced to a lunatic asylum owing to the disgraceful, undignified, demeaning and shameless behavior of these politicians, which this medical consultant must have amply witnessed on television almost every day when parliament met.


He has requested to explain the legal position of this constitutional conundrum. Certainly he would have by now had the opportunity to read in the print media and heard in electronic media, a plethora of legal opinions from both sides, some of which have been given by constitutional experts. But unfortunately most of them were partisan and myopic, depending on which side they belonged to. For example, when the 19th Amendment was discussed in Parliament, a highly learned Professor in Law explained the Article 70 as amended by the 19th Amendment in the following terms: 'Dan Janadhipaththumage ath avurudu hathara-hamarak bendala dala thiyenne' or something to that effect, the meaning of which in English is that, 'with this Amendment, the hands of the President are bound for four and half years’, which means the President cannot dissolve parliament under any circumstances until then, unless two-thirds of the members make a request to the President to dissolve parliament. But if I had correctly heard him recently speaking for the dissolution, he took a diametrically a different view - a complete U-turn. This reminds me of a pithy Sinhala saying which you too would have heard - 'kanna ona unahama kabaragoyath thalagoya venava.' This was the pattern of arguments of most of the so-called constitutional experts, not to mention of duplicitous politicians.


I am no constitutional expert and, therefore, without analyzing much the provisions of the Constitution, I will lay before you the relevant provisions as lucidly and briefly as possible; so that you may be able to analyze them and come to a conclusion if you have not been still able to resolve the conundrum.


First, with regard to the dismissal of Mr. Ranil Wickremesinghe (RW) and then the appointment of Mr. Mahinda Rajapaksa (MR) as the new Prime Minister (PM) in place of RW, so removed from that office, the relevant provisions of the Constitution before the enactment of the 19th Amendment are contained in Articles 47 and 43(3) respectively. Article 47 states that the PM shall continue to hold office ... unless he is removed by a writing under the hand of the President. Article 43(3) states that 'the President shall appoint as a PM the Member of Parliament who in his opinion is most likely to command the confidence of Parliament.' In the meantime Article 48(1), introduced by the 19th Amendment in place of Article 47, states that where the office of Prime Minister ceases to function by the removal …. Of the Prime Minister …’ In both the Articles 47 and 48(1) do not enumerate any grounds on which the Prime Minister could be so removed. Thus one could even argue sarcastically that the P.M. could be removed by the President if the President starts disliking PM's face or voice. My personal opinion is that for the President to remove the PM, there should be some valid grounds, about which he should be able to convince Parliament as valid and acceptable. He cannot be expected to act arbitrarily, capriciously and dictatorially in removing the PM under that Article.


Article 42(4) introduced by the 19th Amendment, contains almost the same phraseology as in Article 43 (3). But it is interesting to note that the words 'parlimenthuve vishwasaya uparima vasahyen ethi manthreevaraya' are used in the Sinhala version of the new Article. Some pundits argue vigorously that as the word 'majority' is not found in this Article, there need not be the 'confidence of the majority members in Parliament.' Then why is that word 'uparima' used in Article 42(4). In the English version you get the words 'most likely' to convey the meaning 'uparima'. Why did the framers qualify the word 'likely' with the word 'most'? There should be some valid reason for it. How anyone could decipher, construe or explain this Article intelligently in any other way is my problem. It has to be remembered that right throughout in the past, the decision to appoint P.Ms by the Presidents was taken based in the opinion that the appointees were most likely to command the maximum confidence of the House at that time. Incidentally, one single occasion comes to my mind where this requirement was flagrantly ignored, when Mr. Premadasa appointed Mr. D.B.Wijetunga as his PM, which decision was bitterly criticized. Another line of argument adduced by those in favor of appointing MR as PM, is that no sooner the SLFP broke away from the Unity Government, the Cabinet stood dissolved and the President was at liberty to appoint a new Cabinet and a new PM. Even then could there be any justifiable reasons for the President, in forming his opinion under that Article, to be unmindful of the fact that RW still commanded the majority confidence (uparima visvasaya) in Parliament?


Everyone knows that the President appointed MR expecting to muster the required number, which is at least 113 members, during the prorogation by luring opposition members with slush money. In this connection, I wish to quote a few lines from the Editorial of the 'Island' newspaper published a few weeks back. ‘Are they being as optimistic as the penniless soul who walked into a posh restaurant and ordered oysters for dinner, hoping to pay the bill with the pearls expected to be found in them'. This is exactly what the President did by proroguing Parliament after appointing MR as PM, knowing very certainly that he did not command the majority at that time. But unfortunately he did not find 'pearls' during prorogation to pay the cost of oysters, and that was why he bolted away from the restaurant, that is why he unceremoniously dissolved the Parliament. The Editor deserves a commendation for citing such a simile to describe vividly this scenario in a few words.


President goes on bragging that even if the UNP shows a majority he will not appoint RW as PM. The President must remember that Sri Lanka is not his coconut estate to which he can appoint his Superintendent at his whim and fancy. Thus, he is obliged to appoint RW as PM if he shows the majority, to abide by the Constitution, whatever the follies he has, the Central Bank Bond scam being the worst.


Now dear Medical Consultant, under the circumstances, I did my utmost to extricate you from the confusion in which you were embroiled, due to the despicable behavior of our so-called law makers.


To wrap up, I again thank you on behalf of the entire legal fraternity for seeking our assistance in this matter.


HEMANTHA PERERA


Attorney at Law, Nugegoda


 
 
 
 
 
 
 
 
 
 
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