By Austin I Pullé –
The collapse of the rule of law can be illustrated by three examples.
The first is the discriminatory and unequal application of the ICCPR statute. The horrendous abuse of the ICCRP to persecute marginal groups illustrates the absence of the rule of law and the equality of all persons under the law. The lunatic sputtering and blood curdling threats against religious and ethnic minorities of a robed nutter in Batticaloa and his assault of a Christian pastor in front of his samaneras go ignored while the claim by an evangelical pastor delivered to his own flock based on Jesus’s claim that “I am the way, the truth and the life” is enough to get him arrested. By that standards, the assertions of the mullahs, and audacious three-wheel drivers who proclaim on their canvasses, that there is no god but Allah, should subject them to immediate arrest because should not the Hindu faithful be up in arms that such statement belittles their magnificent pantheon of gods and goddesses? The late Pope John Paul notoriously proclaimed that Buddhism is a nihilistic religion. If Pope Francis repeats this assertion, would he, on his next visit to Sri Lanka, be arrested by the CID for violating the ICCPR law on landing and be denied bail by the Fort magistrate? In short, capacity deficit issues in the judiciary prevent the development of a doctrine of protected religious speech when delivered to a religious congregation. Absent a willingness or intelligence of law enforcement to apply the ICCPR for its intended purposes, the courts, relying on their inherent power, should sanction law enforcement for frivolous and mala fide application of this statute. Likewise, the EU should stop ignoring the multiple violations of the ICCPR in continuing to extend GSP+ status to the country. If the ICCPR statute is implemented as it is supposed to do, judges and law enforcement must undergo training in the correct application of this law.
Secondly, there exists a political culture of mutual cover up as claimed by a former politician wrongly incarcerated after a contempt of court conviction. The claim of the Northern minority party for more provincial council powers is implicitly based on the assertion that a Northern provincial council will adhere to standards of governance unlike the hopelessly corrupt Southern counterparts. Leaving aside the credible allegations of anti-Christian phobia and caste discrimination against the ruling elites in the North, there are signs that a Northern provincial council will be no better than the others. Take for example, the former head of the Northern minority party in Parliament. It is alleged that he still continues to occupy a government residence provided to him when he was the leader of the opposition and also the use of government vehicles provided to him in that capacity. This behaviour, also alleged against a former first son, is a classic instance of the misuse of public property. That neither the Speaker nor other official has ejected a squatter on government property is strong evidence of the “they are all in this together” charge of the film-actor politician.
Thirdly, there is a massive difference between a squatter occupying the once official residence of the Leader of the Opposition and a squatter in the office of the President of the Republic. The issue here is more than legitimacy, it involves legality. It also involves the distinction between the legal concepts of “void” and “voidable”.
It is said that you can’t hide an elephant in a mouse-hole. Except perhaps in Sri Lanka. The child in Hans Christian Anderson’s fairy tale blurted out that the emperor was naked, but both adults and children in Sri Lanka have drunk the Kool Aid on the legality of the local emperor’s claim to office.
The starting point of any constitutional discussion is the bedrock principle stated in Article 3 of the Constitution where sovereignty is inalienably vested in the People. The fundamental way the People manifest such sovereignty is through elections. Postponement of elections because of a lack of funds when the funds of a bankrupt country are squandered through trips to attend a monarch’s funeral, a monarch’s coronation, attending conferences with huge delegations where banal “profundities” are inflicted on hapless listeners and using naval power to fight Houthis in a fight that never was Sri Lanka’s should prompt the court to reject any excuse based on funds especially since the executive capriciously spends state funds, like a delirious lottery winner. The sheer vulgarity and shamelessness of the plunder of diminished coffers while large segments barely manage to feed their children is astonishing.
Elections, the principal means by which the People exercise their sovereignty, must not be postponed except in the case of natural disasters or widespread civil disturbance. It is unfortunate that the courts did not robustly reject the “no-funds” excuse. This failure has put the sovereignty of the People on the slippery slope to oblivion.
These actions become intolerable when initiated by someone who has no constitutional right to the office. The reasoning is simple although foreign scholars, consulted by the writer, are perplexed that such reasoning has proven inaccessible to the formidable and immensely talented legal community in Sri Lanka.
Before diving into examining the relevant part of the Constitution, some widely accepted rules must be stated. First, in interpreting the constitution, the courts are required to give its terms their ordinary and popular meanings. Second, where the language is clear and unambiguous, the courts must enforce it as written, as there is no need turn to other tools of construction. Third, the courts must construe the constitutional provision in light of the objective sought to be achieved and the mischief to be avoided. Finally, constitutional disqualifications are self-executing in the sense that they are enforceable without further action. For example, a foreigner cannot serve in Parliament. Litigation may be required to determine her status, but that does not change her ab initio disqualification. If the court finds that she is a foreigner, the courts have no discretion to decide whether or not to make that status voidable. It is void.
The starting point of the discussion is the Presidential Elections (Special Provisions) Act, No. 2 of 1981. When Gotabaya Rajapaksa resigned, Section 3(1) of this act came into play. In its pertinent part, Section 3(1) reads, “Parliament shall elect as President one of its members who is qualified to be elected to the office of the President.” Standing as he does as a giant among pigmies in the legislature and as a colossus who bestrides the narrow land, no one can suggest a better qualified person to hold the office. The only remaining question is whether at the time of election, the person was “one of its (Parliament’s) members.”
The answer depends on the proper interpretation of Article 99 of the Constitution.
Article 99 of the Constitution in pertinent part reads:
Where a recognized political party or independent group is entitled to a seat under the apportionment referred to above, the Commissioner of Elections shall by a notice, require the secretary of such recognized political party or group leader of such independent group to nominate within one week of such notice, persons qualified to be elected as Members of Parliament (being persons whose names are included in the list submitted to the Commissioner of Elections under this Article or in any nomination paper submitted in respect of any electoral district by such party of group at that election) to fill such seats and shall declare elected as Members of Parliament, the persons so nominated.
If the secretary of the political party, in this case the UNP, failed to nominate a person within the week of the notice being received, can the UNP validly nominate a person several months after the notice was received? Does the Commissioner of Elections lose the power to declare elected such persons after the one week period referred to in the section?
The opinion of two constitutional law scholars, one in the UK and the other in Australia, authors of multiple peer reviewed articles in top tier journals, was sought on these issues.
These scholars began their analysis with a fundamental rule that in interpreting a constitutional provision, the duty of the court is to prevent the evasion of the provision’s legitimate operation and to effectuate the drafter’s intent. They thought it beyond cavil that Article 99 required the secretary of a political party to nominate within one week of the notice the person who is qualified to be nominated as a national list member. After that week has elapsed, the Commissioner of Elections has no power to declare elected as a Member of Parliament anyone whose name was not submitted during that one week window. Likewise, the purported appointment of a person after that period is void. This means that the election purportedly under Section 3(1) of the Presidential Elections Act was invalid because it breached the requirement that the individual elected should be a member of parliament.
The rules of interpretation of constitutions supports this conclusion: First, if one is to give the terms of Article 99 their ordinary and popular meanings, it couldn’t be clearer that valid appointments may be made only within the one week period after receipt of communications by the Commissioner of Election. Second, the language of Article 99 is clear and unambiguous, and this requires the courts enforce it as written, as there is no need turn to other tools of construction. Third, the objective of Article 99 is to have a full complement of MPs right from the start so that legislation can be passed with the views of the National List MPs taken into account. Bear in mind that the original purpose of the National List was to populate the legislature with persons of eminent background. It was intended that a parliament began its tenure by having the benefit of a full complement of these eminent persons. Imagine, if all parties flouted the one week period and nominated appointees willy-nilly. That is certainly not the risible outcome envisaged by the drafters of Article 99. If the courts must construe Article 99 in light of the objective sought to be achieved and the mischief to be avoided, it must conclude that the purported election was void. Finally, constitutional disqualifications are self-executing in the sense that they are enforceable without further action. To use the language of lawyers, Article 99 is proprio vigore, and a judgment by a court or further legislation is not necessary to give it effect.
Like these scholars, the writer is also baffled that an interpretation that would be accessible to a seventh grader has proved elusive to the highly educated legal community, vibrant civil society organizations, representatives of the people, as well as society at large.
Given the reluctance of the courts to engage with this issue, it is incumbent on civil society to clarify this issue independently from reputable sources. Nothing less than Article 3 sovereignty, the grundnorm of the state, is at issue because an interloper heading one of the branches of government mocks the sovereignty of the People. At present the constitutional order is trashed. It is critical that the meaning of Article 99 be honoured. There is no point in civil society leaders fretting over the absence of the rule of law unless they are willing to stop the further shredding of the Constitution. This they can do if they seek the opinion of one of more constitutional law scholars or practitioners in the UK, Australia or New Zealand. If the opinion of such scholars is that the election of the current president is void by reason of his not being a legitimate member of parliament, then the issue should either be re-litigated in the courts, perhaps through a writ of quo warranto or civil society organizations must be true to their mandate and accordingly are duty bound to give the widest possible publicity to the electorate.
The constitutional law scholars thought that the election of a disqualified person to the office of the presidency would make the general public incandescent. That apathy reigns is a sure sign of the country’s evident fatalism that resigns itself to a remedy of a 2024 presidential election. The affirmation of the continuing vitality of Article 3 sovereignty of a badly wounded and suffering society cannot wait until then.
The movie Les enfants du paradis is loosely based in on the life of the famous French mime, Marcel Marceau. Does Sri Lanka currently have a president who mimes as a president to a transfixed country and an international community despite a void election to this position?