23 September, 2019

Blog

The Constitution, The Judiciary, And Citizens

By Jayadeva Uyangoda

Prof. Jayadeve Uyangoda

My wife, like many of her fellow citizens these days, has become very interested in learning about our Constitution and its 19th Amendment. She even borrowed from me a copy of the Constitution to read. The other day, she forwarded to me a social media post that carried a quote from Abraham Lincoln. It read as follows:  “We the people are the rightful masters of both Congress and the Courts, not to overthrow the Constitution, but to overthrow the men who would subvert the Constitution.”

Meanwhile, a friend, who is in regular touch with the Tamil and Muslim political parties, told me: “You know, they (the minority parties) are extremely worried about the way in which President Sirisena is treating the constitution. Minorities cannot fully trust politicians and their promises, whether they are in the UNP, SLFP or any other party. They can only trust the Constitution; therefore, for them it is the Supreme Law of the land. That is why they feel that the constitution should be held inviolable.” I agreed. “If the Constitution is abused so blatantly and interpreted so haphazardly by people in power, what is the state institution they can trust?” asked my friend to whom I answered: “Well, the Supreme Court is the last bastion of democracy for all citizens. If it fails, we all will fail, both the majority and the minorities”

Citizens as Third Party

Sri Lanka’s political crisis has now come before the courts –the Supreme Court and the Court of Appeal – for arbitration. Each side engaged in the ongoing power struggle obviously expects the judiciary to rule in its favour.  

Yet, there is a third party, a silent party, to this litigation that is not represented by counsel. That party are the citizens, ‘rightful masters’ of the executive, parliament and the judiciary, according to Articles 3 and 4 of the constitution, which will no doubt be cited in these cases quite fervently by the lawyers on behalf of their clients. Citizens can only expect that the judges are the counsel for the citizens and their rights, unsolicited defenders of their rights, freedom, democracy, and ultimately the democratic future of generations to come.

This unique role for Sri Lanka’s judiciary, as expected by citizens, has come into being under specific circumstances that have also provided the political context for the current constitutional controversy. The sudden removal of a sitting prime minister and appointment of a new one, and a week later, the dissolution of parliament by the head of the executive, by virtue of the authority given under general clauses of the constitution, and ignoring other substantive clauses that defined the ways in which the executive powers should really be exercised in concrete circumstances, created a massive constitutional confusion. 

From Confusion to Havoc

This confusion soon led to a situation of havoc when some leading lawyers and a retired chief justice explained and justified the three actions of the President by arguing that some ‘loopholes’ in the 19th Amendment had opened the doors for such unilateral action on technical grounds.

Now, citizens who have earlier been told by legal scholars, such as former law professors, to view the country’s Constitution as the ‘supreme law of the land’ and hold it as embodying  ‘a sacred covenant’ between the rulers and the ruled, were perplexed by this approach to the constitution. Is a constitution to be understood in relation to its linguistic or technical loopholes, or on the basis of its normative foundations and core conceptual assumptions? What is so supreme or sacred about a constitution, which we learn in the secondary school to write with capital ‘C’, if it is interpreted with reference to its so-called loopholes? Obviously, this is an issue that will come before the judges for contemplation and determination in the days ahead.

Core Values

Now, delineating the normative foundations and core values of Sri Lanka’s present constitution is also a task before the court given the conflicting approaches to the constitution pursued by different parties to the present controversy. Core values of a democratic constitution define not only powers of each organ of the state and individual who hold political power, but also limits of the scope as well as the exercise of constitutionally authorized power.

The absence of an intellectual tradition of constitutional values and constitutional morality in our country, unlike in the neighboring India, makes the task all the more difficult.  

This in a way offers a historical opportunity for our Supreme Court to make use of the current constitutional litigations to at least lay down the basic principles of constitutionalism and constitutional morality that should govern the rules and limits of the exercise of political power by those who hold it.

Two Approaches

There are two main approaches of constitutional interpretation in contention. The first, advanced on behalf of the head of the executive, is to interpret the clauses of the 19th Amendment as a minor tinkering the original 1978 Constitution as well as the 18th Amendment. This approach makes the argument that the 19th Amendment retains unaltered the basic framework of the executive presidential system, introduced by the 1978 original constitution and later enhanced by the 18th Amendment, and therefore the three actions by President Sirisena in late October and early November were well within the presidential powers entitled to him.

This approach, in effect, seeks to bring back, and revalidate, the 18th Amendment, through the backdoor. That, of course, is also the objective of those who vehemently opposed the constitutional reforms brought about by the 19th amendment in 2015.

The other approach proposes the view that the 19th Amendment (a) substantially reduced the powers of the President as defined by the original 1978 constitution and enhanced by the 18th Amendment, and (b) created a Cabinet and a Parliament, free from arbitrary and unilateral control by the head of the executive.  

In other words, the 19th Amendment is credited to having created a new balance of institutional power between the President, Prime Minister and Government, and Parliament, while retaining a limited range of transitional powers for the office of the President until his terms comes to an end. In this new balance of institutional power, presidential action in appointing a Prime Minister, removing a Prime Minister from office, and dissolving Parliament are not discretionary or absolute, but conditional to limits that are set out in the constitution itself.

Full Circle

As citizens, we do not know how the Court will respond to these two contending approaches to the present constitutional controversy. But citizens, as holders of sovereignty, have every right to expect that the Court’s determination will advance the interests of the country’s contemporary democratization process that began with a widely held political argument that Sri Lanka’s presidential system, introduced by the 1978 Constitution, should be either totally abolished, or substantially reformed.  

Meanwhile, the enhancement of Presidential powers through the 18th Amendment was not the outcome of a popular demand on grounds of democratization. On the contrary, it was a wish fulfillment of one leader who happened to be the country’s President at the time. And it damaged Sri Lanka’s democracy, and citizens’ rights and freedoms, and democratic institutions, including the judiciary, in a manner that citizens still struggle to forget. 

Now, Sri Lanka’s stakes for democratization has come full circle. Should the country see the dreaded 18th Amendment being brought back through the backdoor and watch how the gains of the democratic struggle, however limited they are, reversed once again because of the whims an fancies of another individual in power?

Citizens of Sri Lanka have a right to hope and pray that their judges, in this moment in which their democratic destiny is at the crossroads, will make the right decision. 

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Latest comments

  • 3
    25

    Shame shame. This man gave coverups for former VC’s all dirt works in the CMB University. Therefore do not listen to this fake preacher.

    • 16
      0

      Whether he is a fake preacher or not, he is telling the truth. There is nothing to listen or to be heard in this case. All the Supreme Court Judges have their knowledge in the Constitution and the amendments made in the constitution and the back ground on the 18Th and 19th amendment to the constituion. Whether it is seven judges or just one judge, the outcome should be only One. It is not about their personal opinion. You can’t have two different interpretation of the constitution. When we hear that the former Chief Justice said that he was wrong to give a verdict on the former President in a corrption case, that is the balck day of the judiciary in this country. Unfortunately, he is still considered as a former judge. What a shame?

      • 1
        8

        Uyangoda, Very poor and superficial analysis here. The Constitution is part of the problem and NOT a solution to the political-economic crisis, and geopolitical conflict, which is at the root of the constitutional coup!
        Let us hope that the courts focus on the SPIRIT rather than form of democracy and show us a way towards speedy general elections which is the only solution to the crisis in Lanka now.

        The 19th amendment was drafted to protect Bondscam Ranil and is the reason for the Constitutional gridlock. Bondscam Ranil must be held accountable for financial crimes at the Central Bank against the people of Lanka.

        • 8
          0

          “The 19th amendment was drafted to protect Bondscam Ranil and is the reason for the Constitutional gridlock.”

          Ha ha ha ha ………… Then why was the 19th amendment passed with all the legislators except one voting for it?

          Who is dumb? You for protesting now 3.5 years later or the 224 for voting for it then? Or is it Lankan version of Dumb and Dumber? :))

          You guys are the best entertainers! :)) We should move Hollywood over there!

        • 0
          6

          Quite right Dinuk. The 19th Amendment has effectively taken away people’s sovereignty through inclusion of an article in terms of which the president cannot dissolve parliament before a lapse of four and a half years. Such a stipulation makes it impossible for a malfunctioning, corrupt legislature like the one under the Yahapalanaya to be brought to an end, enabling the people to elect a new parliament as per their inalienable right. It has been queried by responsible citizens how a piece of legislation (i.e., that which obstructs the president’s power to dissolve parliament during the first four and a half years of its term if the need arises), which should have been passed by a 2/3rds majority in parliament and in addition to being approved by the people at a countrywide referendum, got into the statute book. Already there is a call for the annulment of 19A by a future government.

        • 0
          3

          Both the 18th and 19th amendments to the constitution should be struck down by the Supreme Court.

    • 8
      1

      Nadeesha,

      Shame on you
      Why are you trying to bring in your personal grudges during a discussion of national interest.
      You are despicably uncivilized.
      In the civilized world, people pay no heed to personal things when business matters are discussed or performed.
      In that world, nobody cares if they are “Butterflies” nor not.
      Only in uncivilized Sri Lanka, personal things are brought up to sling mud on the other person.
      You should be proud to have a world class academic like Prof Uyangoda to be around without leaving for a good life in a Developed country.
      Shame on you !!

      • 1
        5

        Nadeesha is right!
        This fake professor is a false prophet too who rips off the work of younger women scholars in particular!

  • 16
    0

    I’m somewhat optimistic because no judge would like to go down in history as having bolstered a psychopath’s efforts to destroy democracy just so he can get a second term.

    • 3
      0

      Ajay
      You are not wrong, but…

      What if she/he falls in love with the boss?

      Now 7 Judges in the case. 3 judges at the time of preliminary injunction time. Injunction was unanimous. That is three judges. If you get one more judge on your side out the new four, you win. Who Knows!

  • 1
    13

    “Citizens of Sri Lanka have a right to hope and pray that their judges, in this moment in which their democratic destiny is at the crossroads, will make the right decision. “

    The right decision? Have the people of Sri Lanka already decided? This is the Supreme Court, this means that we have to trust that whatever decision is made will be the right one, but not by democracy but by legal standards and precedents.

    The SC is not a political party that can be attacked, bought over, voted out of office or brought an NCM against. The petitioner will learn a bitter lesson that it is not a case that everyone who disagrees with them is wrong, and against democracy and against the country.

    For once it matters not about the 6.2 million votes or 5.8 million votes or the 13 million voting population.

    It has come down to 7 persons deciding the fate of the country, and political parties who in 2015 were used to badgering and hoodwinking the population into voting for them should be terrified out of their wits of a force that for once they cannot control, and worse still do not have the moral authority to criticize.

    How does it feel?

  • 3
    11

    This type of America worshiping being advocated by former Fulbright recipients is not going to help us develop this country. They have now forgotten all about 1971 and are making a living by helping the neocolonialists. Worshiping the American constitution is part of that.

    These Fulbright pundits should ask their American masters what the constitution did to help the Native Americans and slaves, other than talk about human dignity and other bullshit. I bet they will not.

    • 4
      0

      Rasudeva,
      famous” Bayya logic” in action! all one has to do is to cry foul of the other without providing any valid argument and substantiate it with facts.

  • 5
    0

    Some people will focus their attention purely on the nuances of the wording of the 19th Amendment, whereas others will also focus on the objective behind the passing of this amendment. What really matters is what was intended to be achieved by making this amendment to the constitution. Therefore, the constitution as a whole and the modifying effect of the 19th Amendment should be interpreted together and hopefully, in the correct spirit.

  • 9
    0

    Prof: Jayadeva in his usual sober style has highlighted the issue at stake.
    The Nation will watch our highest court- The Supreme Court,to give its interpretation of the Constitution -the foremost Law of the land.
    We have had an Ex:CJ who apparently has spotted a loophole in the 19th Amendment. Spotting loopholes and and other types of holes and even giving interpretations to commas and fullstops in a Constitution will defeat the spirit and overall intention of the Legislature and therefore of the citizenry
    Appointing the PM AND REMOVING THE PM is as different as chalk is from cheese!.

  • 0
    5

    As all these viyathuns thier NGO counterparts are saying that Constitution is wrong they should challenge it in the supreme courts. On the other hand, true sinhal PArtiots should ask the govt to rewrite the constitution begnning from 1978 until, all the 19 amendments. British govt had given more Rights to buddhists than what the JRJ’s constitution had given. Jayadeva Yuangoda Never talk the same talk infront of a TV Program, because you know you preach crap.

  • 3
    4

    Abraham Lincoln was speaking to Americans and to those in the civilized world. Our country is in the clutches of the tribal Sinhala modaya. The judges and SC is no better. “Citizens of Sri Lanka have a right to hope and pray that their judges, in this moment in which their democratic destiny is at the crossroads, will make the right decision”. STOP hallucinating Mr. Uyangod. Do our Sinhalese donkeys have any IQ than a chimpanzee or the brain of an ant as stated by JVP MP. Anura K Dissanayake. Over our dead bodies will our CORRUPT judges make any civilized decision in love of our country. They too are fallible and victims of the Sinhala modaya’s genes. Gone are the days we had the true SINHALEI intellectuals that could have taken a sword to the president or any king or queen like Sir John or in more recent times, those dare devils like General Ranjan Wijeratne ( former minister of defense) that are dearly missed.

  • 3
    0

    If you look at the comments up to now there is anti US, anti Prof, anti Sinhala and anti every thing and any thing but there is one anti constitution which should bother any one with sense. People, this article is about the constitution of your country, not a report card. Get your act together before it is too late. When there is no constitution why bother about election, results, government and DEMOCRAZY. Your so called Presidential Thathe just screwed that. There are people before him had screwed it too , to their convenience. Yes, the US and Australia ( to certain degree) did that with natives. But they did recognize and tried to make some corrections which may be not adequate.They do have a vibrant judiciary and civil activist movements to monitor and check the government.That is why we hear about it frequently. Where as in retards paradise called Lanka from day one it was written the politicians have been screwing around with no judiciary, media or public to question.(if at all they are enabling these crooks) For people who are always finding others at fault should stop whining and try growing up.

  • 8
    0

    Jayadeva Uyangoda is one of the few saner voices in this time of national crisis who has the nation’s interest at heart above all else.

    May the force be with him!

  • 1
    0

    I am not a lawyer but I have found that judges, when faced with ambiguities of language – inevitable in the written law – seek to ascertain what the actual intention of the authors was, to arrive at an interpretation of that section. Clearly, this can be quite problematic with a piece of legislation that originated many years before but with legislation recently enacted the position is not difficult to ascertain. And so it is with 19A. The clear intention of 19A – and this has been widely publicised throughout the land – was in part to take away the unfettered right of the President to appoint and dismiss a prime minister and to dissolve parliament. President Sirisena and his legal advisors have sought to justify his actions by references to ‘loopholes’ in the law rather than on clear authority under the constitution. They are clutching at straws. Aside of the strict legal considerations, at a very basic level, what is important to the average citizen, unconcerned with the subtleties of language and other such ‘distractions’ are fairness, justice and honourable and decent conduct – and if the law is not for the protection of the average citizen for whose benefit is it? Ranil is the properly elected PM whom the President sought to unconstitutionally dismiss. The President’s purported appointment of Mahinda Rajapakse was also unconstitutional, and his ineligibility for appointment as PM has been confirmed by two No Confidence motions that have been moved against him. Now, the President wants us to accept what he had done as being in order. But how could we, when it is patently obvious his actions have been ill advised and unconstitutional?

  • 0
    0

    Uyan. As usual you are presenting an analysis to get to the heart of the issues. Constitution drafters have tried since our first constitution which was intended for us to be free from having a Queen and a higher court than our Supreme Court. To break free they went outside the Parliament. Those involved made the First Mistake. Not only throwing the bath water, but with it the Baby – Section 29. The Architect and the masons did not write in the safeguards that Section 29 provided. They, unwittingly sowed the seed for the Tamil armed rebellion.

    The 18th A was for one government to be continuously in power. The Opposition in 2015 engineered a key figure and his supporters to breakaway with the promise of the post of President and Ministerial posts.
    The 19th A is to stop the Prime Minister being dethroned by the President who was encouraged to defect. Such devious process lead to internal conflicts and now the whole problem is left for the SC to sort out. There is a sociological principle; When there is external threat a community join together to get rid of the threat. Once the there are no threat, the community starts to break up. There is no hope of such a threat will manifest. It is the Sinhala Community that has to be cohesive together before the whole country splinters.

    TNA cannot be the Glue to hold one party or the other. They and the Tamil community will then be crushed by the other. They should not be the threat to one party or the other. There is nothing in the present constitution that will bring a political solution. The Draft constitution will never get a 2/3rd vote in parliament.

    TNA need to appeal to all the people, and the IC for a new constitution for All the people. Any Amendment to the new constitution SHOULD BE APPROVED AT A REFERENDUM. Adjusting an amendment to deny the people their right has brought us to the present situation. Whatever the ruling of the SC, other than a fresh election, will lead to civil unrest. Those community less in numbers will become the target once again.

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