Utter Constitutional darkness in Sri Lanka. A Sunday Times editorial falls prey

Darshanie Ratnawalli

+++ This article is in the line of interpretation within difficult terrain presented by Gerald Peiris in Thuppahi yesterday as well as Peiris’s earlier intervention on this front elsewhere. Early signs suggest that both Peiris and Ratnawalli may be censored by the Editors of the principal newspapers, but hopefully Colombo Telegraph will be more open to her submission. For the readers to get some sense of the  conflicting interpretations, I append a short list on both sides of the fence. A long list will demand a journey into the year 2019. Text highlighting is by the web editor.

The editorial of Sunday Times, arguably the most prestigious Sunday newspaper in Sri Lanka, stated on 11/11/2018 that “Article 33 (2) (c) which gives blanket powers to the President to dissolve Parliament at his wish” is a provision that “comes from the original 1978 Executive Presidency Constitution.” This is an error when you consider that in our present Constitution, every other provision under 33(2) – 33(2)(A), 33(2)(B), 33(2)(D), 33(2)(E), 33 (2)(F), 33(2)(G), and 33(2)(H) comes from the JR Constitution, while 33(2)(C) is the only provision that DOES NOT.

Such an error in such a reputed source shows in what darkness the public is fighting the battle to find the true Constitution of Sri Lanka. To give the proper context, the relevant paragraphs in the ST editorial must be quoted in full.

“Clearly, the President’s advice has been based on political expediency. There are two seemingly conflicting Constitutional provisions in the argument. One is fundamentally based on Article 33 (2) (c) which gives blanket powers to the President to dissolve Parliament at his wish. This provision comes from the original 1978 Executive Presidency Constitution. The other view is the proviso of Article 70 (1) introduced by way of the 19th Amendment by this very President’s Government that prohibits him from dissolving Parliament for four and half years.

“Apart from the irony of the President and the SLFP relying on the 1978 J.R. Jayewardene Constitutional provision to argue their case, the basic principle of law if there is a conflict is that any later amendment, and the later “intention of Parliament” must be given priority. That apart, whatever the ‘letter of the law’ maybe, has the President gone by the ‘spirit of the law’ in calling for a snap election? No one seems to care these days as long as the end justifies the means.”

Article 33(2) (C) does not come from the original 1978 Constitution. It’s a brand new provision introduced by the Yahapalana government in 2015. The real irony is not “the President and the SLFP relying on the 1978 J.R. Jayewardene Constitutional provision to argue their case”, but their relying on a 19^th Amendment provision to argue their case. If it’s a case of “any later amendment, and the later “intention of Parliament” being given priority”, then both provisions-33(2)(C) and 70(1)- have a claim to priority as they both reflect the intention of the 2015 Parliament which passed the 19^th amendment.

Let us call the original Article 33, JR’s 33, after our first executive President and the current Article 33, Jayampathy’s 33, after Dr. Jayampathy Wickramaratne President’s Counsel, widely acclaimed as the architect of the 19^th Amendment. Jayampathy’s 19^th replaced JR’s 33 with Jayampathy’s 33. Section 5 of Jayampathy’s 19^th states, “Article 33 of the Constitution is hereby repealed and the following Article [33] is substituted therefor”. Interestingly, Article 33 remained JR’s 33 from its birth in 1978 until its repeal in 2015. That is, neither Premadasa, Wijethunga, CBK or Mahinda Rajapaksa made any amendment to it. The only amendment to it, made in 1984, was under JR himself, making this article JR’s 33 through and through until Jayampathy made it his 33 in 2015.

Jayampathy’s 33 includes JR’s 33 in its entirety as 33(2). In other words, Jayampathiys 33(2) equals JR’s 33 plus the unique Jayampathy provision 33(2)(C). The current Article 33(2), under the same (plus and minus a few words, which affect the prose and not the intent) introduction as the JR 33, gives a list of powers which is identical to that under JR’s 33, except for the inclusion (unexpected some might say) of the power to summon, prorogue and dissolve Parliament.

Perhaps, there are compelling reasons for (erroneously) attributing 33(2)(C) and 70(1) to two agents, two different Parliaments, to two diametrically opposing agendas. Jayampathy’s 33(2)(C), declaring the Presidential power to summon, prorogue and dissolve Parliament without laying down any limits to that power seems at odds with Jayampathy’s 70(1), which lays down the same Presidential power together with the provisions that limit it- “The President may by Proclamation, summon, prorogue and dissolve Parliament: Provided that the President shall not dissolve Parliament until…….”

 Wickremaratne   Suri Ratnapala, an emeritus professor of Law who share the same misconception about the origin of 33(2)(C) as the ST editorial

Editorials are shapers as well as gauges of public opinion and we can adduce no better evidence than this Sunday Times editorial that the Sri Lankan Constitution has degenerated from the well-knit, cohesive, competent and un-ridiculous document it used to be right up to its post 17^th amendment incarnation. It has become akin to a corrupted computer program which activates a function only to sabotage it in the next step. The Constitution itself now hampers us, the people, in the performance of the duty that Article 28(a) lays upon every person in Sri Lanka, “to uphold and defend the Constitution and the law” by throwing up conflicting provisions and preventing us from identifying what we are supposed to uphold.

Another prestigious editorial, that of Sunday Island on 11/11/2018 advises us that “it is accepted practice that different sections of a constitution cannot be read in vacuo and it must be read in toto.”  A holistic, in toto reading of Jayampathy’s Article 33(2)(C), would go- “In addition to the powers and functions expressly conferred on or assigned to the President by the article 70(1)- that the President may by Proclamation, summon, prorogue and dissolve Parliament: Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour- the President shall have the power to summon, prorogue and dissolve Parliament.”

If we do some holistic copy editing to lower the absurdity quotient of this mouthful, we could end up with; “The president shall have the power to summon, prorogue and dissolve parliament. This is in addition to the power expressly conferred on him by Article 70(1) to summon and prorogue Parliament, to dissolve Parliament after four years and six months, and to dissolve Parliament sooner than four years and six months on the directive of Parliament with 2/3s voting in favour.” This sort of ‘holistic’ reading makes it seem as though, the Jayampathy Article 70(1) and Jayampathy Article 33(2)(C) were referring, not to a single Presidential power, but to two different aspects of the same Presidential power. In other words, Jayampathy’s amendment has re-created the Presidential power to summon, prorogue and dissolve as a (metaphorical) diphthong instead of the (metaphorical) monophthong it used to be in the pre-Jayampathy Constitution.

Do we have any notable previous tendencies in the legal ideology-sphere that refer to dual aspects of a crucial Presidential power? Yes we do. Speaker Joseph Michael Perera delivering his ruling on the prorogation of Parliament, by CBK on November 03, 2003, claimed it irrational and against the wishes of the Parliament. He was the first to articulate the concept of dual aspects of a Presidential power. He said, “The Executive power of the people is vested in the President and Article 70 of our Constitution confers on the President the power to summon prorogue and dissolve Parliament. An examination of the scheme of the Constitution shows that Article 70 appears in Chapter XI titled “The Legislative Procedure and Power”. This makes it clear that this aspect of the President’s power is not an attribute of his executive power set out in Article VII but rather an administrative function vis-a-vis Parliament.

“The exercise of the power to summon, dissolve and prorogue must therefore always be exercised in consultation with Parliament and this function must be accepted at all times as being subordinate to the legislative power of the people conferred on Parliament by Article 4(a).”

So, Speaker Perera recognized two possible manifestations of the power the President enjoyed over Parliament, depending on where the relevant Article appears within the scheme of the Constitution. If Chapter VII titled ‘The Executive The President Of The Republic’ contained the relevant Article, the Presidential power to summon, prorogue and dissolve becomes an attribute of his executive power. If that power was located in Chapter XI titled ‘The Legislative Procedure and Power’, it is to be an administrative function vis-a-vis Parliament, which was subordinate to the Legislative power of the people and had to be exercised in consultation with Parliament.

Speaker Perera’s argument that the location of an Article within the scheme of the Constitution had the power to qualify that Article is probably too simplistic. After all, the Presidential powers that are incontestably executive powers, appear all over the Constitution, not only under Chapter VII-‘Executive The President of the republic’. However, speaker Perera’s novel argument that a Presidential power may have dual versions or forms; a weak form subject to the legislative and judicial powers of the people and a strong form flowing from the executive power of the people may explain the simultaneous existence of Jayampathy Articles 70(1) and 33(2)(C). Perhaps, Jayampathy’s 70(1) enshrined the Presidents power to summon, dissolve and prorogue as an administrative function vis-a-vis Parliament, restrained by the legislative power. At the same time, Jayampathy’s 33(2)(C) enshrined the Presidential power to summon, prorogue and dissolve as an attribute of his executive power by placing it in Chapter – VII titled The Executive The President Of The Republic.

Fortunately for the general public, the option of judicial interpretation of the Constitution has now been activated and we can all look forward to a binding solution to this fascinating dichotomy, this intriguing duality in the Constitution introduced by the Jayampathy amendment.

While the Courts are divining the intent of the Legislature, a body whose bona fides and lack of absurdity is a basic presumption in constitutional interpretation, we are free to concentrate on Dr. Jayampathy Wickramaratne PC, the individual, especially as he has already offered us his interpretation (see  https://www.colombotelegraph.com/index.php/on-dissolution-of-parliament/) of Article 33(2)(C) .

“It is argued that Article 33 (2) (c) overrides Article 70. Article 33 only declares some of the general powers of the President. The manner in which and the conditions under which that power of dissolution can be used are given in Article 70. That Article states that dissolution shall be by Proclamation. Then it goes on set down the clear limitation that the President cannot dissolve for four and a half of years unless Parliament so requests by a two-thirds majority. Any power that the President claims under Article 33 (2) must not be in violation of express provisions of the Constitution. The words “In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law…” cannot be used to override expressly laid down constitutional limitations on the powers of the President.”

“Article 33 only declares some of the general powers of the President.” is not a true or honest descriptor of the Presidential powers listed in Jayampathy (33)- if we understand ‘general powers’ as powers that are declared in general terms, with the implication that their specific provisions will be mentioned elsewhere. Jayampathy’s 33 consists of 33(1), 33(2) and 33(A). 33(1) is a new Jayampathy addition, which starts with “It shall be the duty of the President to –“ and names the duties of the President in general terms, leaving no doubt that other Articles will contain specific provisions related to these duties. These duties are (a) ensure that the Constitution is respected and upheld; (b) promote national reconciliation and integration; (c) ensure and facilitate the proper functioning of the Constitutional Council and the institutions referred to in Chapter VIIA; and (d) on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda.

Jayampathy’s 33(2) is a different animal. It has a longer introduction and names eight Presidential powers. The introduction and seven out of the eight Presidential powers are a faithful reproduction of JR’s Article 33. According to the introduction, the Presidential powers in 33(2) are additions to, and not generalizations of the powers the Presidents already has. They are powers that the president has, in addition to those given to him by the Constitution and other written laws. At least, if the normal semantic values attributed to simple phrases in a language are not suspended especially for Article 33(2), that would be the meaning of the introduction; “In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power-”.

Jayampathy W is doing a bit of special pleading here when he says “The words ‘In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law…’ cannot be used to override expressly laid down constitutional limitations on the powers of the President”. The words ‘in addition’ are not supposed to override, only to supplement. In pleading that 33(2)(C) should be exempt from the normal meaning of the words- “In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law” Dr. Wickramaratna is guilty of very special pleading indeed, which is frowned upon in the best circles.

If 33(2)(A), 33(2)(B), 33(2)(D), 33(2)(E), 33 (2)(F), 33(2)(G), and 33(2)(H) are ‘also there’ powers given in addition to what is expressly conferred by the Constitution or written law, there’s no reason for 33(2)(C) to fall outside that definition.

 

Jayampathy W tries to show that 33(2)(F), a provision that has been there unchanged since 1978 also falls outside the definition; that even JR Articles used introductions that didn’t correctly describe the provisions listed under it. He says, “Take Article 33 (2) which provides in sub-paragraph (f) that the President has the power “to keep the Public Seal of the Republic, and to make and execute under the Public Seal, the acts of appointment of the Prime Minister and other Ministers of the Cabinet of Ministers, the Chief Justice and other judges of the Supreme Court, the President of the Court of Appeal and other judges of the Court of Appeal, and such grants and dispositions of lands and other immovable property vested in the Republic as the President is by law required or empowered to do, and to use the Public Seal for sealing all things whatsoever that shall pass that Seal…” Can the President take cover under this provision and appoint the Chief Justice and other judges of the Supreme Court on his own? Clearly not, because Article 41C requires the approval of the Constitutional Council for such appointments.”

This seems a clinching argument, until one realises, to one’s amazement, in what darkness, Dr. Jayampathy W has been fighting his private Constitutional battle.This is a classic instance, illustrating that when one is a constitutional expert with aspirations of extensive constitutional reform, one should first know what the existing Constitution is. One can’t really know the Constitution until one has read its authoritative version. This is in Sinhala. Even though the English Article 33(2)(F) talks about executing acts of appointments of PM, Cabinet and higher judiciary under the Republic’s seal, the Sinhala article is unambiguous that this power is about keeping the seal and affixing that seal and the Presidential signature to warrants appointing PM, Cabinet and higher judiciary and to grants of immovable property. Article 33(2)(F) is not about appointing the higher judiciary, the PM, the Cabinet. It merely enables the function of affixing the seal.

We await the Supreme Court interpretation with every bit as much eagerness as though we were ancient linguists awaiting the authoritative decipherment of the Indus Valley script. Until then, SL citizens who want to uphold their Constitution are in darkness, tripping over legions of interpretations. It’s a form of speaking in tongues.

DARSHANIE RATNAWALLI is a freelance writer

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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

Sanjana Hattotuwa, 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,” https://thuppahis.com/2018/11/01/illegal-sirisenas-coup-indefensible-insists-welikala/#more-32283

Suri Ratnapala 2018 “SAcking … unconstitutional,” Colombo Telegraph, November 2019, …https://www.colombotelegraph.com/index.php/sacking-rw-appointing-mr-dissolution-of-parliament-are-unconstitutional-prof-suri-ratnapala/

Sasanka Perera, Interview with NEWSCLICK, https://www.newsclick.in/sri-lankas-already-fragile-democracy-under-threat-after-sacking-pm 31 October 2018

Dinesha 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

Jayampathy Wickramaratne, On Dissolution Of Parliament https://www.colombotelegraph.com/index.php/on-dissolution-of-parliament/

Anura Gunasekera:  “The Return of a Spectre,” Island, 3 November 2018,

Nan “Betrayal,” Island, 3 Nov 2018, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=193791

FAVOURING PRESIDENTIAL MOVES

GL Peiris: GL explains how PM was removed and why Parliament was prorogued —http://www.adaderana.lk/news/51006/gl-explains-how-pm-was-removed-and-why-parliament-was-prorogued

Gerald H Peiris: “Peiris Confronts Samarasinghe and Other Pundits,” 19 November 2019,  https://thuppahis.com/2018/11/19/peiris-confronts-samarasinghe-and-other-pundits/

Jayatilleka, Dayan 2018  “The logic of the Republican Constitution and the relative autonomy of the Presidency: A political science perspective,” Island, 4 November 2018

Former Chief Justice in February this year, foreshadowing what’s to come … Cabinet illegal, Prez has power to appoint PM: Sarath  (http://www.dailymirror.lk/article/Cabinet-illegal-Prez-has-power-to-appoint-PM-Sarath-145898.html)

President’s dismissal of RW does not infringe on Constitutional provisions: GL (http://www.ft.lk/news/President-s-dismissal-of-RW-does-not-infringe-on-Constitutional-provisions–GL/56-665841)

Ruwan Rajapakse: “Was President right in removing Ranil?” Island, 8 November 2018

Tissa Vitharana “UNP flouting Constitution and democracy to pave way for foreign intervention – LSSP,’” Island, 10 November 2018

ASSORTED

• Prez can dissolve P’ment under 33 (2) C of 19 A: Fmr. CJ (http://www.dailymirror.lk/article/Prez-can-dissolve-P-ment-under-C-of-A-Fmr-CJ-158064.html
• 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
• Sovereignty resides in people By Samantha Ratwatte President’s Counsel(http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=194039
• Ranil Holding On To Power Is Unconstitutional & Undemocratic by Laksiri Fernando (https://www.colombotelegraph.com/index.php/ranil-holding-on-to-power-is-unconstitutional-undemocratic/)
• Evolving Disaster: Agree To Call For Election Might Be The Best by Laksiri Fernando,  https://www.colombotelegraph.com/index.php/evolving-disaster-agree-to-call-for-election-might-be-the-best/),
•  Ranil’s Flimsy, Strange & Untested Constitutional Theories?  By Laksiri Fernando( …. https://www.colombotelegraph.com/index.php/ranils-flimsy-strange-untested-constitutional-theories/
  * Constitutionality Of The Dissolution Of Parliament: An Interpretation?  By Laksiri Fernando (https://www.colombotelegraph.com/index.php/constitutionality-of-the-dissolution-of-parliament-an-interpretation/)