By W. Vishnu Gupta –
Sovereignty belongs to people
Sovereignty as defined is a political concept that refers to dominant power or supreme authority. In a monarchy, supreme power resides in the “sovereign”, or monarch or king. However in modern democracies, sovereign power rests with the people and is exercised through representative bodies such as Congress or Parliament. The Sovereign is the one who exercises power without limitation when there is no elected body such as congress or parliament. Under this context let’s review the prevailing situation in Sri Lankan political arena and the current government.
The third clause of the constitution of Sri Lanka clearly states that;
“In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”
The above legal definition has not deviated much from universally accepted definition of sovereignty which has been acknowledged by the legal scholars of the world and various official hierarchies of judiciary systems. It cannot be different in Sri Lanka, unless our local legal pundits have chosen to interpret the definition based on whims of corrupt politicians and the foibles of their less credible appointees.
It appears that whims of vile politicians have attempted to obscure the implications of sovereignty with the help of foibles of their appointees many times in our political history. They have sidelined the people effectively by portraying parliament as the superior agent that takes care of the sovereignty. Hence it has become a habit of seeking the refuge in the foibles of their appointees. What is hilarious is former MPs of a dead parliament are still acting as the legitimate custodians of sovereignty. For example; use of government residences and vehicles abusive behavior towards police personnel visit to parliament buildings confirms how badly this vile bunch think about our sovereignty.
The “Parliament” is analogous to what is known as “project”; In a project, there are project members, objective, roles and tasks are clearly established and assigned to the project members , there is a project leader and very importantly there is a start date and an end date. When the end date is declared, project does not exist any longer and the leader and the members go back to whatever they were doing before the “start date”. It is a very simple definition and the project members have no chance of going to the judicial hierarchy of that jurisdiction to complain about their loss privileges as project members.
The issue confronting our sovereignty is that the former members of the parliament of Sri Lanka think “Parliament” is a title or a privilege that they have earned. It is a concept and it is no different from “project”. Vile and corrupt politicians find it difficult to adjust to the life of average civilian. That is the reason behind seeking interpretation of the end date and their claims have no relevance to the government, democracy or sovereignty of people.
According to the Article 70 of the Constitution of the Democratic Socialist Republic of Sri Lanka to be read with Sub-paragraph (c) of Paragraph (2) of Article 33 of the Constitution of the Democratic Socialist Republic of Sri Lanka and in pursuance of the Provisions of Section 10 of the Parliamentary Elections Act, No. 1 of 1981, President of the Democratic Socialist Republic of Sri Lanka dissolved Parliament with effect from 2nd March 2020. Also the President, following the constitution fixed 14th May 2020 as the Start date of a New Parliament.
With the declaration of the “END DATE” of the 8th parliament (or the 8th Project of Peoples sovereignty) is defunct or DEAD. Obviously, the vile corrupt politicians and their cohorts will argue that start date of the next parliament is not valid and illegal. Yet it must be understood, that the start date is applicable only to a “NEW” parliament. Until a new parliament is elected by the people, “Start” date is hypothetical and people have better affairs to concentrate on and priority must be given to fight against the spread of Covid-19 virus.
Another misconception that the corrupt politicians thrive on is that they believe “parliament” is the government. Since the dissolution of parliament, many former MPs mostly consist of hoodlums; thugs, drug peddlers, illicit traders, and immoral cabal of hooligans have been challenging the viability of the present administration without their approval to use necessary financial instruments. Others of the same caliber argue that the country is in need of a strategy, bills or policy documents to fight covid-19 and build our economy.
Harsha De Silva, the chief spokesperson of the newly formed political party SJB headed by Sajith has said that “Opposition parties were working on several fronts to diffuse a constitutional crisis. From day one, we and others have stated categorically that we would support the government to fight this pandemic. There is no change in that. We are ready to support the government to amend or bring new legislation as necessary to deal with both health and economy related issues to help our people”.
This statement truly reflects the mindset of every former MPs of 8th parliament. The claim of gloom and doom is unfounded, the country has done very well compared to other countries struggling to combat covid-19 virus and not a single death is reported due to hunger or starvation due to timely actions and policies adopted by the existing GOVERNMENT of Sri Lanka. Contrary to the misinformation spread by the vile politicians, measures taken by responsible agencies confirm that the Parliament is not the Government. The nation can withstand the present crisis and wait for the new parliament to be installed at the most suitable time in the future. The status of local economy is a different subject as the situation is not unique to Sri Lanka. Many economies of rich and poor nations have been equally devastated by covid-19 and face uncertain future.
Sovereignty and Exercise of Supreme Power
The fourth clause Sri Lankan Constitution explains how sovereignty of people must be exercised as follows:
“The Sovereignty of the People shall be exercised and enjoyed in the following manner:– (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum ; (b) the executive power of the People, including the defense of Sri Lanka, shall be exercised by the President of the Republic elected by the People”
Accordingly legislative power of the people (not the power our politicians have assumed mistakenly to be their birth right or inherited from family patriarch) shall be exercised by “Parliament”. It is indisputable that power cannot be exercised by a DEAD parliament, as stated earlier 8th Parliament is not a living concept or entity as it was dead with the declaration of dissolution on the 2nd of March 2020 according to the constitution. Sovereignty of People has certified the death of 8th Parliament with the signature place by the elected President or (assigned by the people), therefore their legislative powers can be exercised only by next NEW Parliament. The new parliament will be established as the next project with a starting date and end date defined according to the constitution.
Demise of the parliament must not be construed as no government in existence and where the people will be lead to distress, lawlessness or hopelessness. It is far from the gloom and doom scenario that the former MPs have been preaching to the innocent people. The clause 3(b) of the constitution says that Executive Powers of the People are assigned to the president elected by the people. It is not a ceremonial role; the people consciously hand-over their executive powers through an election to the most coveted and prestigious position in national politics known as EXECUTIVE PRESIDENCY. In the absence of legislative body, sovereignty of people have not placed any restrictions on the government, for example the elected president will be able to take whatever the measures required for the defense of Sri Lankans. Covid-19 is no different from the ruthless terrorists who killed and maimed unsuspecting innocent civilians at unexpected times and places.
The Government is alive
Though the parliament is dead now, the government is alive and ticking well in Sri Lanka.
Clause 30 (1) of the constitution sates that;
“There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces.”
Accordingly the elected president is the head of the government, therefore it is indisputable that the government is intact and there is a leader or chief of executive to carry out the duties assigned by people of Sri Lanka. In the absence of parliament due to the death certified by the constitution, the people have to place their economic, social, security expectations on the president. Fortunately, he has the support of provincial governors, a well trained civil administration and defense and security forces. Furthermore, third, fourth, thirtieth clauses of the constitution and defunct or dead parliament has reinforced the powers of the Present President of Sri Lanka.
The men and women responsible for drafting and adopting the present constitution and the subsequent amendments unknowingly have failed to include any constitutional protection clauses to face any unexpected political and governance situation that may arise due to an pandemic, epidemic or global or local calamity. On the other-hand, knowing the caliber of Machiavellians responsible for drafting our constitution and its amendments, they may have deliberately left the loophole for reasons known only to them.
It is interesting to know the clause 33(a) says;
“The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security”
Under the present context the above is theoretical, because the President is responsible only to a living parliament not to a dead entity. Therefore, lets us hope for a new parliament as soon as possible after taking care of Covid-19 .
The Elected President is the only legitimate representative of the people and he is entrusted to exercise “Supreme” powers of sovereignty. Right now supreme power resides in the Elected President and especially under the dangers faced by the people, the president must understand the responsibility bestowed on him by the peoples sovereignty. Canny lawyers and vile politicians have expressed different interpretations about the parliamentary elections, but they willfully omitted to mention sovereignty of the people. In the absence of Parliament, King, or Monarch, the President elected by the people becomes the only person in a country to exercise the supreme power without any limitations.
Parens Patriae, is a legal doctrine that grants inherent power and authority of the state or government to protect persons who are legally unable to act on their own behalf. The governments may invoke this doctrine to protect the interests of its citizens in the areas such as health, welfare of the people and the general economy of the nation.
Hence under the Doctrine of ‘Parens Patriae’, only President Gotabaya Rajapaksa and his government have authority to protect every citizen of Sri Lanka right now. Legal scholars understand this noble principle. The first priority of the President must be to protect every citizen from Covid-19 pandemic. He must not hesitate to exercise the supreme power given to him by people. The people irrespective of their political affiliations must support the President as he represents the only hope for the country.
Finally, the presidency or the flawed constitution does not possess any “mantra” to resurrect a dead parliament, there are no constitutional justifications. If any covert attempt is made to convene the 8th parliament, it should be regarded as abuse of supreme power or violation of sovereignty belonging to the people.