Confusion worse confounded
Posted on November 11th, 2018

By G. H. Peiris Courtesy The Island

The ‘Opinion’ co-authored by Professors Savitri Goonesekere and Camena Guneratne titled ‘Constitutional Governance in a Parliamentary Democracy’ (The Island of 7 November) is the third in a series of attacks by the ‘Friday Forum’ on President Sirisena’s alleged violation of the constitution. In the present onslaught, there is a shift of focus from their earlier advocacy of employing the ‘objective and intention’ of the framers for determining the impact of a disputed constitutional provision, to highlighting the preeminence of Article 33 A of the ‘19th Amendment’ which stipulates that the President “shall be responsible to parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution”. Claiming that “it is parliament that must decide whether he has acted lawfully from the 26th of October 2018”, the two professorsurge the immediate summoning of the prorogued parliament without waiting until the 14th of November (as notified by the President) so as to enable the parliament to decide whether the ‘regime change’ the president initiated and his prorogation of parliament constitute violations of the Constitution.

Parliamentary and Presidential Powers

A component of the Goonesekere-Guneratne submissions that lacks clarity relates to the interpretation accorded to the phrase “shall be responsible to parliament”. Does this phrase mean that the president requires prior or postfactum parliamentary approval for exercising his powers, duties and functions – in short, did the ‘19thA’ enforce a transfer of presidential powers to the parliament?If it is ex post facto approval that are referred to in the submissions, is there any constitutional stipulation on how soon the president must seek such approval?

Having carefully gone through the Constitution of Sri Lanka as it stands at present (with all its amendments) I do not find any departure from the stipulation that the powers of adjudication over constitutional disputes are vested exclusively in the Supreme Court and not in the parliament. Indeed an implicit acknowledgement of this fact in the somewhat ludicrous professorial ‘alternative’ suggested for avertingthe crisis is “for the President to go before the Supreme Court, the third agency that represents the sovereignty of the people under Article 4 of the Constitution, and seek a clarification on the lawfulness of his action in this time of crisis”– a pronouncement endorsed by the entire ‘Friday Forum’ galaxy! If they actually believe in what the professorial duo say about this ‘Crisis’, one wonders why they have refrained from submitting their grievance to the Supreme Court?

Misrepresentation of the relevant Constitutional Provisions

I am reluctantly compelled to state that there is an element of intellectual dishonesty in the attempt made in this ‘Opinion’ to sanctify the Article 33A and to elevate it to the status of an overarching provision, and to link it to the principle of ‘Rule of Law’ that has been universally recognised as a corner-stone of democratic governance (which I was taught in the HSC course on ‘Government’) even before my first year at the university.

The version of the Constitution that could be accessed through the ‘Parliament’ website indicated how that Article has been incorporated

Paragraph 6 of ‘19A’ reads as follows:

6. The following Article is hereby inserted immediately after Article 33, and shall have effect as Article 33A of the Constitution:-

33A. The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.”

THERE IS NO MENTION IN THIS PARAGRAPH THAT THE ENTIRE ARTICLE 33 IS REPEALED.This is confirmed by the fact that in the document published as The Constitution of the Democratic, Socialist Republic of Sri Lanka by the government after the insertion of the foregoing amendment, Article 33 in May 2015 reads as follows:

33. (1)It shall be the duty of the President to –

(a) ensure that the Constitution is respected and upheld;

(b) promote national reconciliation and integration;

(c) ensure and facilitate the proper functioning of the Constitutional Council and the institutions referred to in Chapter VIIA; and

(d) on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referenda.

(2) In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power –

(a) to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament;

(b) to preside at ceremonial sittings of Parliament;

(c)to summon, prorogue and dissolve Parliament; (my emphasis)

(d) to receive and recognize, and to appoint and accredit Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents…

Why is it that the two spokespersons made no comment on 33 (2) c?

If I have made an error here, I shall be most grateful for a well-informed correction.

Misunderstanding the Nature of the Crisis

I fully agree with what the ‘Friday Forum’ has said about the existence of a crisis. There is so obviously a crisis (stemming from geopolitical considerations) for those who installed the Yahapalana regime in 2015 – the more powerful members of the NATO, their allies and their lackeys (including those of the Colombo-based NGOs); the Modi government of India (referred to in an article authored by an Indian scholar which I have cited elsewhere); the pro-secessionist outfits in the “Diaspora”; and those whom the LTTE installed in the political mainstreams of Sri Lanka. There is also a crisis of sorts by those who secured prestigious posts in State-sector institutions as rewards from their political masters for loyalty and support. The seriousness of the crisis varies. Perhaps the most calamitous prospects are faced by several persons in the elite levels of the ousted regime who are likely to be called upon to answer for the damage they have caused to the nation, their abuse of power and their vindictiveness at a personal plane.

The irony I see in the Goonesekera-Guneratne ‘Opinion’ is their disregard of the fact that President Sirisena’s reforms were intended to avert an aggravating crisis. Even if the ‘Friday Forum’ does not care a damn about the alleged assassination plot, the unprecedented scale of the ‘Central Bank Scam’ and several other large-scale financial misdeeds such as those involving the airline and the Kerawalpitiya power plant, the imprisonment of members of the security forces who are regarded by the overwhelming majority of our people as “national heroes” who saved the country from peril,mainly for the appeasement of the western powers to whom the Wickremesinghe administration has made absurd commitments (while certain unrepentant collaborators with LTTE by word and deed have rewarded with all manner of favours), the bilateral economic agreements the former has entered into with the backing of only his close circle of cronies, the members of the ‘Forum’, if they wish to safeguard their self-respect, cannot ignore considerations such as the denial of the democratic rights of the people by the absurd delay of the Provincial Council elections, the evidence of the huge erosion of people’s support to the UNP indicated both by the Local Government polls of February this year, as well as the seething unrest at almost all levels of our society generated by the maladministration of the ousted regime.

One Response to “Confusion worse confounded”

  1. Christie Says:

    I am no fan of Sirisena the puppet of India and Indian Parasites here.

    I hope an wish his recent actions are not directed by India and Indian Parasites.

    My question is is he trying to nip the bud I mean the “Nelum Pohottuwa” befpre it blooms and produce seeds.

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