By Pujitha Sumanasekara –
On 20th Feb 2011 Ranil Wickremesinghe, then the opposition leader writing to the Sunday Times said, “We cannot allow the people’s sovereignty to be disregarded or usurped. In the past, whenever the people’s sovereignty was at risk, the Parliament of this country always reasserted the power of the people. The Parliament of Sri Lanka today has a duty to the people of this country to ensure that our sovereignty is safeguarded.”
Yet this was what exactly had happened in 1988 when the then President Jayawardena brought in the National List provision to Constitution through the 14th Amendment, usurping the sovereign rights of the people.
A Constitution is a set of laws that specifically apply to the government. A properly constructed constitution limits the power of a government by specifying which actions they are allowed to take, and disallowing all others.
In a modern democracies where immutable republican principles of RREPRESENTATIVE DEMOCARY is recognised, no government is empowered to takeaway the sovereign rights of the people by any means. The Constitution of the Republic of Sri Lanka, wholly accepts this principle and has enacted that the sovereignty is in the people, which include the Legislative power, Executive power, Judicial power, Franchise and inalienable fundamental rights (Article 3 and 4).
Having fully recognised this principal, the Constitution of Sri Lanka also imposes a blanket ban on the legislature against enacting laws that would affect people’s sovereign rights, unless a mandate for any such action is obtained from the people at a referendum (Article 83).
This prohibition is meant to respect the people’s inalienable sovereign rights entrenched in the Constitution, which shall not be changed like any other written law. On this point of constitution making, the Chief Justice of Israel Aharon Barak elaborates as follows.
“To maintain real democracy and to ensure a delicate balance between its elements -a formal constitution is preferable. To operate effectively, a constitution should enjoy normative supremacy, should not be as easily amendable as a normal statute, and should give judges the power to review the constitutionality of legislation. Without a formal constitution, there is no legal limitation on legislative supremacy, and the supremacy of human rights can exist only by the grace of the majority’s self-restraint. A constitution, however, imposes legal limitations on the legislature and guarantees that human rights are protected not only by the self-restraint of the majority, but also by constitutional control over the majority. Hence, the need for a formal constitution.”
Does the Constitution of Sri Lanka recognise this principal?
The Chapter XII of the Constitution provides the procedure to be followed in amending the Constitution. And the Article 82 of the Constitution requires that the people to be duly notified of any such intention, enabling the people to challenge any such move if they deem that any proposed amendment would violate their sovereign rights protected by the entrenched provisions. And the process provided therein clearly imposes stringent measures to be adhered to in the event any such amendment affecting the sovereign rights of the people or their fundamental rights. And the Constitution provides that no such amendment can be enacted without a mandate being obtained from the people at a referendum (Article 83).
Did the Govt of JRJ follow this process when enacting the 14 Amendment?
Evidence surfaced in the Supreme Court case filed by DEW Gunasekara now reveals that the President Jayawardana in 1988 had not followed this due process but had abused the office of the President to enact the provision of law (Article 99A) in the 14th amendment with no mandate obtained from the people. This has permitted the government to appoint defeated candidates as members of Parliament insulting the will of the people.
However, it appears that for almost three decades this abuse has gone unnoticed until it was openly exploited by the Maitripala Sirisena regime in an unprecedented scale to appoint a large number of defeated candidates through the National List of UPFA following the General Election – 2015, which was followed by the other political parties as well. None of the 12 defeated candidates who were so appointed as MPs had not been in the respective National Lists published in the Gazette during the nomination period.
Public outcry against the abuse
Since there was a public outcry against the abuse of their franchise by the party secretaries, the Election Commissioner Mahinda Deshapriya was forced to issue a statement to the media saying that ‘sending defeated candidates to the Parliament should be dealt with through an amendment to the Constitution’. The people from all walks of life expressed their disgust over this open abuse and protested against this undemocratic action that allowed the defeated politicians to enter the Parliament through the back door.
National List Hijacked
There was a consensus amongst the people that this was a big fraud but they were unaware that the people had been taken for a ride by the Jayawardena government in 1988.
On 24th Aug 2015, the Island reported as follows.
“… This Sri Lankan invention is the most undemocratic mechanism designed by any to subvert and rob the people’s mandate and install the dictatorship of the politician. It goes even further to the extent of a total negation of the people’s sovereignty, which is said to be inalienable at the beginning of the Constitution in article 3…”
The civil societies including the Buddhist monks led by Maduluwave Sobitha thera vehemently criticized this shameful action of the government as undemocratic, unethical, deceptive, dishonest, hypocritical and it was seen as a betrayal of the representative democracy. They claimed that such actions would leads to a complete erosion of the people’s right to franchise and democracy would become a joke. The media was questioning as to how such an undemocratic provision was mysteriously included in the Constitution in 1988 without angry protests from the people.
An acid test for the Supreme Court
It is obvious that there had been a serious abuse of power by JRJ regime in 1988, usurping the sovereign rights of the people without their knowledge. After almost 28 years now this issue is being challenged before the Supreme Court. The Petitioner DEW Gunasekara, the General Secretary of the Communist Party of Sri Lanka is seeking the Court to quash this undemocratic provision of law (Article 99A) enacted by fraudulent means.