Colombo Telegraph

Supreme Court: Freedom’s Last Defense

By Jayadeva Uyangoda

Prof. Jayadeve Uyangoda

The constitution is perhaps the most read official document in Sri Lanka today. Subjected to selective reading, a few of its words and sentences have been gaining some strange interpretations. 

Amidst an unprecedented political crisis, we Sri Lankans are caught up in a war of constitutional interpretations as well.

Since this war of constitutional interpretations has reached the Supreme Court, I was wondering what arguments  lawyers for the petitioners and the state would put forward before the learned judges. 

Arguments by the petitioners’ lawyers would be that the President disregarded constitutional provisions that explicitly lay down limits of his powers with regard to the dissolution of parliament. They will also argue that presidential actions violated both the explicit provisions of the constitution as well as the intentions and the constitutional scheme that guides the meanings and application of 19th Amendment.

It is not clear what arguments the Attorney General would put forward on behalf of the President. However, arguments already advanced by President Sirisena’s lawyers in the media give a clue to President’s legal defence, which may or may not be accepted by the state lawyers.  

These arguments represent two approaches to the interpretation of the constitution, which, I think, are both dubious and erroneous. The two approaches are as follows:

Sarath N Silva Approach: Sarath N Silva, a former Chief justice-turned-political entrepreneur, has advanced a very narrow and technical interpretation to argue that Presidential action of dissolving parliament was well within the meaning of the provisions of the 19th Amendment. In this approach to constitutional interpretation, words and parts of constitutional provisions are abstracted and isolated from both the totality of provisions and the intentions and conceptual framework of the constitutional scheme of the 19th Amendment. This method of constitutional interpretation enables the interpreter to produce strange and even absurd meanings to constitutional provisions. President Sirisena, with a political agenda to pursue, seems to have found Sarath Silva’s version of the constitutional provisions on president’s powers relating to the Prime Minister and  dissolution of parliament politically worth accepting. 

Wijeyadasa Rajapakshe Approach: While sharing Sarath Silva’s narrow interpretation of the constitution, Minister Wijeyadasa Rajapakshe, a leading lawyer-cum-politician with extensive private practice, has advanced an additional political argument. It holds the view that presidential act of dissolving parliament was a political necessity, created by a political deadlock arising out of the deficiencies of the 19th Amendment. In this argument, the 19th Amendment caused a political crisis. Yet it did not have provisions to resolve it. Thus, president was justified in taking a course of actions for which there are probably no explicit provisions. But such actions on implicit grounds are politically justified. 

Both these approaches are based on a dangerous moral (not so moral) doctrine: End justifies means.

One can refute, with relative ease, the validity of both arguments by pointing out the following: 

(a) Constitutional provisions should not be interpreted by applying narrow and technical standards and methods of interpretation when the meanings of constitutional provisions are explicit and unambiguous. 

(b) If there were any ambiguity about the meaning of constitutional provisions relating to presidential powers on any subject, any good lawyer with fidelity to professional ethics should have advised the president to do the correct thing, that is, to seek the advise of the Supreme Court, before taking action on a matter that has massive uncertain, unpredictable, and destabilizing political consequences. President himself, who is constitutionally mandated to defend the constitution, should have chosen the first option of seeking a determination from the Supreme Court, instead of going after self-seeking legal experts with dubious intentions.

(c) Was it the 19th Amendment that caused the political deadlock by sacking the Prime Minister and exacerbated it by proroguing parliament, outside the explicit meanings and spirit of the 19th Amendment? Not really. Instead of saying mea culpa, President Sirisena and his team are now blaming the victims of his own arbitrary action.

I do not know whether these points would be raised before the judges. It may perhaps be the case that the AG’s department will present more sophisticated and nuanced legal defences for President Sirisena. Being a non-lawyer, I am not familiar with the argumentative protocols of lawyers before a Supreme Court bench. But I assume that the judges too follow the news and get a sense of the most unsettling political consequences of what has been happening during the past two weeks. 

One such consequence, so obvious to any alert citizen with a minimum level of constitutional literacy, is that if presidential actions during the past two weeks are given legal legitimacy, by means of crude or sophisticated justifications, that would mark the beginning of the end of Sri Lanka’s democracy and citizens’ freedoms and rights.

Let me explain why I make this hugely worrying speculation.

The doctrine of the end justifies means to constitutional or legal interpretation is one that serves not democracy, but autocratic, dictatorial regimes. So is the doctrine of political necessity implied in the political deadlock argument.  These are doctrines that argue that the yardsticks of democratic constitutionalism, rule of law, constitutional morality, and democracy should be abandoned, or suspended, to suit political agendas of the leadership of the executive organ of the state. 

These are doctrines that seek legal legitimacy for unconstitutional acts ex post facto (that is, after the illegal fact, or event). The arguments to justify the dissolution of parliament fall into this category of ex-post facto justification of plainly unconstitutional executive action.  The strategy of the government is to present to the Court the fait accompli of dissolution of parliament and calling for election, and then secure the Court’s consent on the grounds that the matter is now before the sovereign people. 

Alert citizens have a right to pray that their Supreme Court would also be alert to these political machinations that are designed to subvert the constitution, rule of law, and rights and freedoms of fellow citizens.

If President Sirisena’s actions are given legitimacy, as anticipated by various schools of constitutional immorality, that would mark the end of constitutional democracy in Sri Lanka. After that, liberty and freedom of no citizen would be safe from arbitrary interpretation and application of law and the constitution by those individuals who hold political power. 

That is precisely why it has now fallen upon the shoulders of the judges of the Supreme Court to protect democratic constitutionalism which is under attack by those who know the law, and those who do not know the law, but exercise political power.

On this count, Sri Lanka’s Supreme Court has been called upon to perform a profoundly historic duty of being the final bastion in the frontier Sri Lanka’s democracy and the freedom of citizens. Of the three organs of the state, as defined in Article 4 of the Constitution, the executive, which is supposed to embody people’s sovereignty, has chosen the path of violating the constitution and paralyzing the functioning of the legislature, which is the second organ of the state that represent people’s sovereignty. 

The judiciary is the only remaining organ to which the citizens can pray for the protection of their democratic future, freedoms, and rights, in these troubled and uncertain times. 

And this is the historic moment of destiny for our Supreme Court not to fail the citizens of Sri Lanka and their prayers.

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