Gerald H Peiris
Having collaborated with Professor S. W. R. DE A. Samarasinhe (Sam) in several research projects, I have had the occasions to admire his extraordinary analytical skills and his clarity of thought. I also recollect that he was one of the earliest in the intellectual firmament of Sri Lanka who applied his expertise in ‘Banking and Public Finance’ to expose procedural irregularities in the infamous issue of ‘Central Bank Bonds’ early in the tenure of the Yahapalana regime, disregarding his own leanings vis-à-vis the party configuration of Sri Lanka. However, I have to say that his article titled ‘Implications of the Supreme Court Verdict’ (The Island of 15 November) is a rare instance of his departure from scholarly understanding and impartiality.
In the first place, what the Supreme Court (SC) issued on the 13th of November was not a ‘verdict’. As explained to me by two of Sri Lanka’s most respected lawyers about 45 years ago, an ‘Interim Injunction’ is no more than a postponement of a verdict. Despite Sam being aware of that, it is disappointing to see him in the political mob (which includes representatives and lackeys of the global powers that contributed substantially towards the processes that installed the Yahapalana government) attempting to persuade the people that the Court issued a verdict against President Sirisena’s decision announced on 26 October to reformulate the Cabinet and, on 9 November, to dissolve the parliament which was prorogued at that time. Thus, what did happen was that, due perhaps to the legal intricacies concerning the presidential decision, the SC gave itself and the lawyers on both sides of the dispute 22 days until it could sit once again to arrive at a decision.
Ignored Complexity of Legal Issues: That the legal dispute on presidential powers referred to above is far from being resolved is made evident by several documents pertaining to our Constitution that could be easily accessed via Internet. Among these are:
(a) The Constitution of the Democratic Socialist Republic of Sri Lanka (May 2015 – i.e. after incorporation of all past Amendments including the Nineteenth (‘19th A’);
(b) The ‘19th A Bill’ of 2015 referred to by the Parliament to the SC;
(c) The SC ‘Determination’ on the ‘19th A Bill’ of 2015 by a Bench of 3 judges;
(d) The ‘Determination’ of a Bench consisting of all SC judges in 2002 on a Bill titled the ‘19th Amendment’ (the main thrust of which was curtailment of presidential powers, and enhancement of powers devolved to Provincial Councils) published in the Sri Lanka Law Reports; and
(e) several scholarly writings that are intended to serve as expert opinions.
A careful reading of these documents (which I have done encountering no difficulty in understanding their content) makes it abundantly clear that, regardless of the political motive that impelled the presidential decrees of 26 October and 9 November, they did have had constitutional legitimacy.
The essence of the propaganda outcry on behalf of the deposed Yahapalana government is that, while the changes in the composition of the Cabinet by President Sirisena constituted a violation of the Constitution, the president is empowered to dissolve parliament only after a lapse of 4½ years from the date formation of the Parliament elected at a General Election. One of the major errors promptly observable in these twin assertions is that, consequent upon the elevation by the ‘19th A’ of the concept of ‘National Government’ to constitutional status, the defection of the SLFP from the government on 26th October meant that a Cabinet of more than 30 members (and other ministerial posts exceeding an aggregate of 40) no longer has a statutory basis of existence. Thus, what the initial reform by President Sirisena entailed was no more than providing recognition to the fact that the ‘National Government’ had ceased to exist. With this fact continuing to remain ignored even at the plane of my friend Sam’s scholarly eminence, the commonly heard (by him) saying, “Janādhipathy kătha wădak kalā” causes no surprise.
On the decision to dissolve parliament, the statutory issues are also more complex than Sam would like us to believe. The contending legal claims need to be carefully weighed without political prejudice. Copied below is a passage from the SC ‘Determination’ on the ‘19th A Bill’ (Item c, above) intended to illustrate this assertion.
The people in whom sovereignty is reposed, having made the President as the Head of the Executive in terms of the Article 30 of the Constitution, entrusted in the President, the exercise of Executive power being the custodian of such power. If the people have conferred such power on the President, it must be either exercised by the President directly or by someone who derives authority from the President. There is no doubt that the Executive powers can be distributed to others via president. However, if there is no link between the President and the person exercising the Executive power, it may amount to a violation of mandate given by the people to the President. If the inalienable sovereignty of the people which they reposed in the President in trust is exercised by any other agency or instrument who do not have any authority from the President, then such exercise would necessarily affect the sovereignty of the People. It is in this backdrop that the Court in the Nineteenth Amendment Determination came to a conclusion that the transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of exercise of the sovereignty of the people, the ultimate act of decision of his executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remains supreme or sovereign in the executive field and others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President. The President must be in a position to monitor or to give direction to others who derive authority from the President in relation to the exercise of his Executive power. Failure to do so would lead to a prejudicial impact on the sovereignty of the People. The constitutionality of the following clauses (of the Bill) are examined, keeping in mind the observations referred to above.
NOTE: It has not been possible for me to ascertain whether the ‘Determination’ referred to has been published in the Sri Lanka Law Report. The extract has been copied from:https://www.colombotelegraph.com/wp-content/uploads/2015/04/SC-SD-4-to-19-of-2015.pdf which is identical with the published text of the ‘Determination’ found in several other websites. Note also that the Speaker Karu Jayasuriya does not care a damn about these judicial interpretations.
The Supreme Court ‘Determination’ referred to in Item (d) in the list of documents presented earlier is far more detailed in its analysis of the President’s executive powers than in the foregoing extract. It was issued by a SC Bench of 7 judged on the ‘Amendment to the Constitution Bill’ of 2002 which bore the name “19th Amendment”. The extract copied below pertains to the President’s powers vis-à-vis dissolution of parliament, furnishing a perspective somewhat different from that of the Bench of 3 judges in 2015. Yet we see that the SC in 2002 held that, if the Bill envisages an increase of the minimum time-span before which the President is debarred from dissolving the parliament to 4½ years, the Bill will have to be approved at a Referendum.
Although the proposed Amendment was shelved, The SC ‘Determination’ was published in the Sri Lanka Law Report. It could be accessed at:
<SLLR-2002-3-IN-RE-THE-NINETEENTH-AMENDMENT-TO-THE-CONSTITUTION> = “It is obvious that the proposed amendment has been conceived due to certain difficulties that are envisaged. Although, those who framed the Constitution are presumed to have looked to the future, it may be that they did not fully visualize the stress on the machinery of State that would build up, when there is a divergence in policies between the President who exercises executive power on a mandate of the People, and the majority in the Parliament exercising legislative power also on a mandate of the People. Article 70 (1) (a) is intended to provide for such a situation in terms of which during the first year after a General Election held pursuant to a dissolution of Parliament by the President, Parliament could be dissolved only if there is a resolution requesting such dissolution. Thus, in effect during this period the matter of deciding on the dissolution of Parliament becomes a responsibility shared by the President with Parliament. There is no alienation of the power of dissolution attributed to the President. Any extension of this period of one year may be seen as a reduction or, as contended by Mr. H. L. de Silva, an erosion of that power. However, we are of the view that on an examination of the relevant provisions in the different contexts in which they have to operate, that every extension of such period would not amount to an alienation, relinquishment or removal of that power. That would depend on the period for which it is extended. If the period is too long, it may be contended that thereby the power of dissolution attributed to the President to operate as a check to sustain the balance of power, as noted above, is by a side wind, as it were, denuded of its efficacy. But, if we strike middle ground, the balance of power itself being the overall objective would be strengthened especially in a situation of a divergence of policy, noted above. We are of the view that if Clauses 4 and 5 of the Bill, dealt with in the preceding portion of this determination are removed and replaced with a clear amendment to proviso (a) of Article 70 (1), whereby the period of one year referred to therein is extended to a period to be specified not exceeding three years (being one half of the period of Parliament as stated in Article 62 (2 ) that would not amount to an alienation, relinquishment or removal of the executive power attributed to the President. The inconsistency with Article 3 read with Article 4 (b) would thereby cease. The substituted clause should be passed by the special majority provided in Article 84 (2) and not require approval by the People at a Referendum”.
It is, perhaps, important to note that the SC ‘Determination’ of 2015 made no reference to that of 2002. In any case, what seems even more significant is that the Parliament, in passing the ‘19th A’ 2015 had not fulfilled the requirements implicit in the SC ‘Determination’ to which the Bill was referred. These are among the unresolved issues that need to be sorted out when the SC commences its sittings on 5 December.
Transformed Political Fortunes?
Professor Samarasinghe’s observations on the prevailing state of the two major parties on either side of Sri Lanka’s permanent political divide – the President Sirisena with his tarnished image, the beleaguered Rajapaksa camp, and the fired-up UNP with its defiant leader Wickremesinghe ready to make way for the tide of youthful talent in his party brimming with confidence – are no more than hallucinations often found in highly politicized public debate. They could hence be brushed aside with a few brief observations.
For instance, there has never been any doubt about the support which the UNP could mobilize from at least about 20% of the electorate even at nadir of popularity and to exhibit that support in large and boisterous gatherings. Indeed, the excessively high population density in Metropolitan Colombo is often made use of by other political parties as well in their displays of gigantic mass support and power. In the prevailing scenario the fact is that the UNP has more resources at its disposal than its rivals – the ill-gotten gains of almost four years of racketeering (including the massive ‘Bond Scam’) contributions to the party coffers by large firms that have received benefits in the form of state-sector contracts and/or thrived under the outdated “Friedmanite” economic policies to which Ranil Wikremesinghe and his buddies have been committed. Some of the main NATO powers have also been driven by the necessity they see for protecting the regime they had sponsored in 2015.
Placing Sajith Premadasa at the crest of a wave of hitherto suppressed youthful talent in the UNP also has a large element of wishful thinking. In the early years of the present century Sajith was able to establish a fairly formidable electoral base in Hambantota, inheriting his assassinated father’s legacy – mainly the image of ‘Pious President of the Poor’. Of the economic record of the Premadasa presidency, however, what we recollect is that, while he did accelerate the pace of Housing Development, his ill-conceived Janasaviya Programme flopped at least in its objective of promoting entrepreneurship among the rural poor. On his other “achievements”, what remains indelibly in memory is that he crushed the JVP insurrection (‘white van’ killer-squads, extra-judicial executions, torture chambers, murder of journalists etc. were common place occurrences of that time, just as much as Bodhi Pooja were); evicted the IPKF, but failed disastrously in his ‘Peace Negotiations’ with the LTTE leadership. We also cannot forget that, had it not been for the electoral terrorism instigated by the JVP in the ‘Deep South’, the likelihood is that Sirimvo Bandaranaike rather than Ranasingha Premadasa would have succeeded JRJ (Please look at the easily available record of the polls). More importantly, there is a truly baffling question of from where his son, still in an early stage of public life, inherited the financial resources to nurture a remote locality in the southeast lowlands adroitly shifting away from the father’s ‘Sucharitha’ base in Colombo North.
What exactly have these supposedly promising young bucks of the UNP achieved during the past four years other than propping up the Great Leader? Look at the mess at the port, petroleum industry and its assets, health services, agrarian affairs or education Remember this report on an emerging leader, entrusted with responsibilities of utmost importance, printing 4 million application forms (at a cost of 12 million rupees – are they like wedding invitations?) adorned with his mug (full-face only) intended to be distributed among our children so that they could obtain their annual quota of low quality Indian fabrics for school uniforms? Meanwhile, don’t forget the golden oldies who would not budge until death do us part. So, Sam, wait a while before lighting the crackeRS.
A PARTIAL BIBLIOGRAPHY
AGAINST PRESIDENTIAL ACTION
Samarasinghe, SWR de A 2018 “Sri Lanka’s democracy in Peril.” 10 November 2018, https://www.colombotelegraph.com/index.php/sri-lankas-democracy-in-peril/
Philips, Rajan 2018 “Continuing uncertainty, conflicting claims and counter-claims,” lsland, 3 November 2018
Hattotuwa, Sanjana 2018 “Rajapaksa rising,” Island, 3 November 2019
Asanga Welikala 2018 “The Maithrie-Mahinda Coup Stymied?” 16 November 2018, https://thuppahis.com/2018/11/16/the-maithri-mahinda-coup-stymied/
Asanga Welikala 2018 “Illegal Sirisena Coup Indefensible insists Welikala,” 1November 2018, https://thuppahis.com/2018/11/01/illegal-sirisenas-coup-indefensible-insists-welikala/#more-32283
Sasanka Perera Interview with NEWSCLICK, https://www.newsclick.in/sri-lankas-already-fragile-democracy-under-threat-after-sacking-pm 31 October 2018
Samaratne, Dinesha 2018 “Losing a paradise that we never had?” 3 November 2018, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=193795
FAVOURING PRESIDENTIAL MOVES
Seneviratne, Kalinga 2018 “Sri Lanka apparently target of Undeclared war,” 16 September 2018, https://kalingasen.wordpress.com/2018/09/16/sri-lanka-apparently-target-of-an-undeclared-war/
Jayatilleka, Dayan 2018 “The logic of the Republican Constitution and the relative autonomy of the Presidency: A political science perspective,” Island, 4 November 2018