Rich Veins of Legal Insight in Social Media Readings of the Sri Lankan Constitution?

An Editorial Comment

While many of us are aware of the widespread interaction on social media, the degree of political insight embedded within the multitude of exchanges is both unknown and questionable..The political mess in Sri Lanka and the intriguing debate on the existing constitutional provisions has thrown up conflicting interpretations from legal experts and political scientists from every which way. From my sceptical stance on this set of issues, I have spotted some intelligent comments within my web site; but not collected them.  Ratnawalli, whose essay on the topic seems to have been exorcized and blocked  by a number of Editors of the  main-line press in Lanka as well as  the web-engines  Colombo Telegraph, has collected a number of pertinent comments -arising from the the interpretation ‘voiced’ by Suri Ratnapala — a Professor of Law whose credentials ensured publication — in Colombo Telegraph. I have over-ridden the title she suggested, viz: “Sri Lankans take to social media to interpret their Constitution as ‘experts’ trip over 19A” …….. Thuppahi-Man…. adding his own emphasis by colour as well as a different title … and cartoon!

By Darshanie Ratnawalli

Sometimes I sneak into fb pages of people who are not friends. These days I have been visiting people who mainly comment in Sinhala and who are feverishly posting about the constitutional crisis in SL. and I have been amazed.

The people who comment under those posts in Sinhala seem to have a better grasp of the issues involved and the relevant Constitutional provisions than some prominent legal professionals and Constitutional experts who write in English. I don’t know how this could be. Belonging to a profession should mean something. Shouldn’t it?

I had just stopped reeling after finding out that the Sunday Times editorial on 11/11/2018(I keep saying ‘editorial’, becoz in certain newspapers editorial is not always written by the editor in chief) does not know something vital to the issue, something the Facebook Sinhala commenters, (utter nobodies when compared to these legal luminaries) knew almost from day one; that the two main weapons wielded by the two combatants at the parliament dissolution battle [Sirisena- (33(2)(C) Vs Karu and co-70(1)] are drawn from the 19th amendment– a baby the warring parties brought forth out of their 2015 marriage.

The latest legal luminary to display his ignorance of this fact is Suri Ratnapala, Emeritus Professor of Law, University of Queensland. What is curious is that Professor Ratnapala has written a chapter titled “Failure of quasi-Gaullist presidentialism in Sri Lanka” in a collection of scholarly essays edited by Asanga Welikala- “Reforming Sri Lankan Presidentialism – Provenance, Problems and Prospects” and published by CPA. Professor Ratnapala displayed his curious ignorance (curious given his credentials) in https://www.colombotelegraph.com/…/sacking-rw-appointing-m…/ .

Some of the comments just highlight that in this issue at least, the public may be far ahead of the purported experts.

Critical Take / November 19, 2018
3 11
Er..I am sorry. Is Prof Suri supposed to be a constitutional expert? I think not. For example he doesn’t seem to know that 70(1) and 33(2)(C) both have the same chronology both come from the 19th. Just go to Sri Lanka Parliament website, download 19th amendment and read the new Article 33 (the 19th amendment article 33 replaced the previous Article 33). Then download the prior version of the constitution, upto and including the 17th amendment. In that read Article 33 prior to amendment by 19th. Compare the two and you will see that it was 19th Amendment which inserted 33(2)(C), a presidential power to summon prorogue and dissolve unfettered by any proviso assigned to prez in addition to the power in 70(1) which is a fettered power. Before trying to interpret a country’s constitution please do some background reading. Otherwise all foreign uni personnel might end up with egg on face.

wannihami / November 20, 2018
0 0
Thank you Critical Take, I worry why people cannot do this simple act of reading the ’78 vs the 19th, the other interesting thing is why the 33 (2) C was added. Any thoughts?

Chandra / November 19, 2018
2 0
Yes @ CriticalTake, that is correct. That was widely discussed here. Art 33 (2)(c) was brought in by the 19th Amendment and was redundant. Rajan Philips and Kishali Pinto Jayawardene have both flagged this in their columns in the Sunday Island and the Sunday Times.

There is no possibility of saying that the later (70 (1)) repealed the earlier (33 (2)(c).
Rotten drafting, putting the country in a mess.

Did’nt Prof Suri advise the Ranil Gvt on how to draft Constitutions in 2015? Was this not seen at that time? Stupid. These people destroyed a super duper chance to do away once and for all with the Medamulana thug. Our loss.

wannihami / November 20, 2018
1 0
Chandra, would you think someone partial to MR sneaked that 33 (2)C in when others were snoozing in their seats, why not check the Hansard or 2015 April, it reads like a Le Carre, no not really, but worth a read.

REPLY

Critical Take November 20, 2018
1 0
Now people are saying that it’s not rotten drafting at all. That 33(2)(C) was put there in the Chapter VII of Constitution titled ‘The Executive The President Of The Republic’ for a purpose- i.e. as a trojan horse. See, to the people and everyone else practically, it would be broadcast that the 19th really curtailed the presidential power to dissolve at his discretion. The unnoticed 33(2)(C) would lurk there surreptitiously for the sole purpose of satisfying SC that a referendum won’t be needed for 70(1), because 33(2)(c) is there. But to the public and to everyone except the inner inner circle it would be broadcast at full blast ‘See we have cut President’s power. See our 70(1)! Wonderful na?’. Only 70(1) would be highlighted like mad hoping no one outside the inner circle would even notice 33(2)(C) or if they noticed everyone would think “oh it has come from the JR constitution, it’s not important” This deception worked for the most part. Not only PRof. Suri but even The Sunday Times editor for example does not know that 33(2)(C) came from the 19A. See editorial on 11 November 2018. JAyampathy should be given a prize for Constitutional hoodwinking. Same for 33A. Tried to make out it was a new provision by him when it was the same old Article 42. I in fact think Kishali Pinto Jayawardene was one of the few yahapalana supporters to see through Jayampathy’s airs and graces to his mediocrity. But even she fell for Jayampathy’s “General Powers” lark- trying to wriggle out of 33(2)(c) saying 33(2) is a general powers list. It’s not. By retaining JR’s introduction in 33(2) describing it as a list of powers Prez has in addition to powers and functions assigned to him by constitution and other laws, Jayampathy made sure 33(2)(C) was in addition to 70(1).

REPLY

Chandra / November 20, 2018
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To a laymen’s mind, it seems that giving Jayampathy and that lot such cleverness in ‘sneaking’ in Art 33 (2)(c) in the belief that the Court would be happy with that and not question is too much credit, I think!

The UNPs legal frontmen have messed up big time, so why not this as well?

I asked a niece who is a law student and she said that the Supreme Court did not even touch on 33(2)(c) and 70 (1) in their decision on 19A. It did not feature at all. There were many lawyers appearing for and against. If this was deliberately put in, would this not have been brought out by someone? And if it was to satisfy the Court, would the judges themselves not have commented on that??

Confusing for us. But I am still more inclined to think that this was stupidity. Everything else is also like that!

Hope the Court clears this stinking mess up.

Critical Take / November 20, 2018
1 0
wannihami, plenty of thoughts. See below for my reply to Chandra. It is so Le carre as you say. I don’t think anyone was supposed to know about 33(2)(C). I think it was to satisfy SC and prevent a referendum being prescribed to pass 70(1). Only, after the SC hurdle had been passed everyone was supposed to just fixate on 70(1) and relegate 33(2)(c) to ‘TEN UNEXPLAINABLE THINGS ABOUT THE CONSTITUTION’. Not only le carre but Davinci code too I think. Wonder which of the Prez advisers cracked the Darvinci code? Have you found anything in the 2015 April Hansard? If so share.

soma / November 21, 2018
0 0
Dear Critical Take
Kindly spare a minute for me.
As I see it (being uneducated in law) out of this 70 and 33 one article specifies how the PM ceases to be WITHOUT the intervention of the President (death, voluntary resignation or 2/3 majority) and the other specifies how how it happens WITH the intervention of the President (. He simply is empowered to do it) So there is no contradiction or ambiguity. Am I right thinking this way?
–
Soma

REPLY

Critical Take / November 21, 2018
0 0
No Soma. 33(2)(c) and 70(1) talk about Presidential power to summon, prorogue and dissolve parliament. You are talking about Art.46(2), which indeed “specifies” how the PM ceases to hold office- (voluntary resignation as you say, ceasing to be a member of parliament, [death is not specified as a means of ceasing to hold office] and if the cabinet ceases to be as a result of the Parliamentary action). Other articles 47(2) and 48(1) merely mention removal of the Prime minister without mentioning any removing agent. Jayampathy is on record(and Suri and other lackeys are merely copying him) that this removal mentioned in 48(1) means removal through cabinet ceasing to be. They apparently do not realise that if this interpretation is accepted, relevant bit of 48(1) would read like nonsense;- “Except during an interim period(between dissolution and elections), when PM stops holding office by removal through dissolution of cabinet, the cabinet stands dissolved.” Heh, heh the excuses men come up with when they have goofed. Also if ‘removal from office’ is interpreted as ‘removal through cabinet dissolution as a result of parliamentary action’ in 48(1), how does Jayampathy hope to apply that interpretation to Article 47(2), which also talks about PM ceasing to hold office as a result of removal when the Parliament is no more. How can this removal happen then? Does he seriously hope people to believe that his interpretation of ‘removal from office’ – ‘through cabinet cessation via parliamentary action’ will only fit Art 48(1) and not to 47(2). Is it customary or sane for constitutions to have two interpretations for the same phrase occurring in adjacent articles? May be constitutions in Alice’s Wonderland behave this way.

 

AN INCOMPLETE 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

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/)