By Austin I. Pullé –

Austin I Pullé

Had he not chosen that particular crossroad, he would not have murdered his father, married his mother, and having had children by her and discovering his relationship gouged out his eyes while his mother hanged herself after finding out who the father of her daughters really was. Oedipus Rex can be read as a play about fate but for others it can be read as a tale about the role that choices play in life. Never before in the history of modern Sri Lanka have the sovereign People been forced to choose a cross-road, which given their disastrous choices in the past, makes it even more important that the type of cross-road that Oedipus chose be avoided. 

The First Cross Road: Land of the Lotos Eaters.

In a series of events that only Kafka could have scripted, there was a transition of presidential power from one who won the most votes in the history of presidential voting to another who could not even get elected in what had always been a safe seat for his party. He entered parliament claiming that he was entitled to do so under Article 99A of the Constitution. None of the MPs, who had sworn to uphold the Constitution but presumably have never read it, challenged this claim. The middle class that took to the streets to challenge the unlawful sacking of the prime minister, is nowhere to be seen. Neither are the civic society groups who challenge the appointment of a casino mogul through the National List but are  silent when there is a clear violation of Article 99A of the Constitution. But if the country is to avoid a nightmare of dysfunction, with the Prevention of Terrorism Act and not the Constitution is the operative legal instrument, attempts must be made to shore up the legitimacy of what many in the country regard as a constitutional coup that has enshrined a Rosemary’s Baby as the President of the land.

Possibly, the Cheshire Cat was in Sri Lanka when he told Alice, “We’re all mad here”. How else can one explain the Kafkaesque situation where the sovereign people chased away the survivor of an internationally reviled and despised clan only to be replaced by someone, who after being rejected by his electorate, claimed to have entered parliament through the National List? 

At this time of national peril, the country needs to unify in order to surmount the existential challenges confronting it. Only if the vast majority of the People believe that the President is legitimately in office, that his election to the office was not the result of rampant bribery of parliamentarians, that their sovereign rights will not be mutilated, and that he offers a clean and inclusive administration shorn of corrupt politicians will this essential unity be possible. A so-called “National Government” will not fool the sovereign People. Unfortunately, the negative scorecard on all these matters promises no relief.

Can any reasonable person be satisfied with the people in the cabinet? The Prime Minister is someone who brought in his son through the National List to enjoy the perks of a MP. Who in their right mind can respect such a person with his foul sense of entitlement and rally around him? The cabinet of deplorables continues with inclusion of a convicted extortionist, yet another indicted from bribery, and yet another, cleared only by a committee consisting of fellow parliamentarians, of demanding a bribe from the Japanese. The newly minted Ph.D. who helmed the outfit involved in the Garlic Scam is back in this cabinet pontificating about the destruction of public property which excludes public property in the parliament chamber. The Cheshire Cat cannot match the gloating grins of cabinet worthies who luxuriate in the protection of the new dispensation where the outlandish perks and privileges will be theirs to enjoy. A busload of state ministers have also invited to feed at the trough. One can think of no other country where there is such a concentration of the convicted, indicted, and yet to be indicted individuals making up a ministerial cadre. Meanwhile the rest of the country unprepared for the Black Swan events engulfing their livelihoods and children groan in agony trying to make sense of what has befallen it. Yet, this cabinet is proposed as the best hope for the crisis that portends a cataclysm. Only a society of lotos eaters stoned out of their minds would swallow such nonsense. 

The international legitimacy of the new administration is doubtful. The more respected members of the international community have only provided guarded endorsement of the new administration emphasizing solidarity with the people, human rights, compliance with the human rights treaties required for access to EU GSP+, and willingness to help the Sri Lankan people. This may be because more fundamental and troubling issues relates to the legitimacy of the presidential transition. The post succession violence unleashed by brutal thugs in uniform raises the question whether these events portend a government of jackboots which will ruthlessly crush the people who dare to  remind it that it is they who are Sovereign and not some corrupt and despicable politicians. It was hardly auspicious that the rapturous good wishes for the new government poured from people like Alexander Lukashenko of Belarus while the circumspect Western ambassadors were warned about their tweets  on respecting basic human rights. A nationalist has applauded this re-enactment of the mouse that roared. Apparently, he believes that countries are not supposed to be held accountable for their violation of the International Civil and Political Rights Covenant which they have freely ratified and can demand access to GSP+ without keeping its bargain to abide with the human rights treaties that are a condition of GSP+. While this individual targets Ambassador Julie Chung and other Western envoys for raising concerns about human rights violations, in his fantasy world, he ignores the thousands of diasporic Sri Lankans who see these envoys, and certainly not the local courts or law enforcement, as the persons who can prevent a violent and out of control set of state agents from brutalizing or killing their friends and relations back in Sri Lanka.  

Commentators and protesters experiencing a loss of vitality as well as a sense of direction fatalistically bemoan the chasm that separates legitimacy from legality where a person rejected by the electorate can be installed in the highest office in the land  by members of parliament in an exercise where it is alleged bushels full  of money were given to MPs to secure the outcome. Social media is full of chapter and verse of this bribery.

In her well-received book, “Rules: A Short History of What We Live By”, Lorraine Daston draws a helpful distinction between “Thick” and “Thin” Rules. A “thick rule”, for example Articles 3 and 4 of the Constitution, is a rule packed with concepts and requires sophisticated interpretation techniques. A “thin rule”, by contrast, simply requires the ex facie application of plain language. Article 99A, for example, is one of the thinnest of the thin rules. What could be clearer than wording which states, “ 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 to fill such seats and shall declare elected as Members of Parliament, the persons so nominated.”?

Any reasonably competent first year law student will parse the language of Article 99A to mean that  the Constitution requires the secretary of a political party to nominate national list members within one week from the notice referred to in Article 99A. After one week, there is no longer a right to make the requested appointment. The obvious policy behind this rule is to ensure that the sovereign people are entitled to a full functioning legislature at the start of new parliamentary sessions. The penalty for preventing this is the loss of the right to make the nomination after the one week period has elapsed. Despite the pellucid language of Article 99A, the courts have rebuffed attempts to have the out-of-time nomination of the President under the National List quashed. 

As every law student should know, there is a clear distinction in the law between actions that are “void” and those that are “voidable”.  While the courts may decline to avoid actions for reasons such as delay and bad faith in actions deemed voidable, these can never be used to legitimize actions that are void, or, in oft repeated language, “void ab initio”. The election of the Swiss actress, for example, was void ab initio under the then prevailing constitutional restrictions. Nothing could have been done to legitimize her election. This distinction seems to have escaped the minds of the learned judges who have rejected challenges to an appointment  that manifestly violated Article 99A of the Constitution. It surely must be only in the “Alice Nona in the Wonderland of Asia” that the president owes his position because judges have a gingerly grasp of the distinction between “void” and “voidable” and the legal consequences between the two. The rebuffs to the challenges of the appointment could only have been sustained had Article 99A  read, “Notwithstanding anything contained in this article, the secretary of the party, who believes that the Constitution is but a useless piece of paper, can ignore the notice received by him and defer such appointment in his sole discretion thereby undermining the purpose of the Article that a full complement of MPs (elected and appointed) be assembled at the start of each new parliament in order to make laws for the People.”

Articles 3 and 4 of the Constitution can be considered “thick rules” that require an intelligent unpacking depending on the circumstances. When the courts have time and again refused to abridge untrammelled powers of the President, the main justification is that the presidency is the only office in the country where appointment has been endorsed by more than fifty percent of the electorate. Implicit in these holdings is that direct voter choice is a fundamental requirement for holding this office. If the thick rule of Article 4 is properly unpacked, it would mean that notwithstanding anything else in the Constitution, no one who has ever been rejected at the polls could occupy the office of the president. Carl Schmitt, the German jurist (unfortunately a Nazi one at that) said that the definition of sovereignty includes the power to decide on the exception. If the People are indeed sovereign, it could be argued that the thick rule of Article 3 excludes anyone rejected at the polls from replacing a popularly elected president whatever a thin rule about a replacement election might state. Whereas the Indian constitutional jurisprudence would have lead the Indian Supreme Court to such a result, it is most unlikely that such reasoning will find any purchase in the Sri Lankan courts given  the output of unimpressive constitutional jurisprudence. 

To get the majority of the People on board in view of these troubling circumstances, two essential procedures should be initiated. It should be shown beyond cavil that the President was duly nominated in compliance with the Constitution and that his election by parliament was not the result of corruption but a clean and honest exercise by parliamentarians diligently performing a solemn duty on behalf of the sovereign People. 

The legitimacy question can be put to rest if the President invokes the advisory jurisdiction of the Court under Article 129(1) of the Constitution.  This provision is tailor made for the situation that the country faces. 

The question that should be posed to the Court  under Article 129(1) should be: “Is any appointment of a person to Parliament pursuant to Article 99A valid when such appointment is made after the one week period mentioned in Article 99A?”

Simple question, no brainer answer! The optimum effects of this exercise will be secured if a well-known constitutional lawyer from the Commonwealth is permitted as amicus curiae on a pro hac vice to assist the court. A delegation appointed by the International Commission of Jurists must observe these proceedings. The opinion of the court must be published and publicized widely.  If the Supreme Court answers the question in the negative the President will have no option but to resign. It was a full bench the Supreme Court that affirmed his right to remain as prime minister when the 2015 president sacked him unconstitutionally. It should be a full bench that confirms that he was not an intruder into Parliament but a legitimate holder of the current office of President.

Credible allegations that favourable votes were obtained because of massive bribes requires urgent investigation. When a former president bemoaned that some parliamentarians had demanded bribes of over Rs. 500 million to support his appointment of a new prime minister, the CID, normally quick on the draw to summon Catholic priests for interviews, dozed away when allegations of an attempt to destroy democracy were made. Here was an allegation made by a sitting President but procedural defences such as no official complaint was made were used as excuses not to launch an investigation. Sri Lankans unfortunately are prone to be cynical about corrupt politicians accepting bribes to support and regard such doings with a shrug. But the young protesters are not so apathetic. Similar to the Easter Bombing that killed and mutilated hundreds, the bribery of parliamentarians to secure the election of a president amounts to a carpet bombing of the sovereignty of the People. Instead of doing their duty, the MP electors merely served as proxies for groups of violent and corrupt individuals, their puppeteers. The President had offered to obtain the services of New Scotland Yard to investigate the Easter Bombing. It would be more useful if he can obtain the Yard’s services, with its forensic experience in tracing illegal money flows, to investigate and prepare a report on the alleged bribery of parliamentarians. If money had changed hands, the parliamentarians who enriched themselves with fabulous bribes and betrayed their mandatory oath taken to uphold the constitution should be outed and prosecuted.

Only after the satisfactory completion of the two processes can legitimacy meet legality. Without these, no amount of visits to temples, no amounts of welcomes by gyrating Kandyan dancers, and no amounts of the hosannas of the usual boot-lickers will do anything to conceal the fact that dark outside schemers have put the sovereignty of the People is a chokehold. Until these processes are complete, in the words of the most brilliant cleric in Sri Lanka, the cardinal archbishop of Colombo, the occupant can only remain a “so-called president”. Instead of being greeted by the National Anthem, the welcoming anthem should be “The Great Pretender”, preferably the version by The Platters. 

In Tennyson’s poem, the Lotos Eaters, we read that “dark faces pale against that rosy flame, The mild-eyed melancholy Lotos-eaters came. Branches they bore of that enchanted stem, Laden with flower and fruit, whereof they gave,” to the visitors.

The cross-road where the gap between legitimacy and legality is infinite will lead to a destination where Sri Lanka’s answer to the Golden Calf of the Israelites described in the Book of Exodus dominates, the  massive gold coloured sculpture of a Lion in Kuragala. Apathy while official and ministers loot the treasury will continue while the inhabitants  eat the lotos pods and dream of an ethnically pure and mono-religious society when King Ravana built and piloted his A380.

*To be continued…