A Judgement that Ensures  a ‘Way Forward’
Posted on December 10th, 2018

By Palitha Senanayake

As responsible citizens of this country, I am sure all of us are waiting with bated breath to hear the judgment that is due on the constitutional crisis the country currently faces. The issue before the judiciary is how best to pronounce the way forward for the country when its Executive and the Legislator have locked horns, or in other words when they are not compatible to each other. The purpose of this analysis is not to judge whether the executive is right or the Legislature is right but to envisage the way forward for the country.

The people of this country had been wise enough to understand this anomalist position of governance and hence they have been consistently voting at elections since 1978 to bring either the legislator that suited the executive that came to power or to bring the executive that suited the legislator that won power. The issue this time is that the UNP brought in a candidate, who had practically been the second in command of the other political camp(SLFP) as the nominee for Executive. This was a politically strategic move by the UNP on the one hand as they had little chance of coming to power with a candidate of their own and of the second in command of the SLFP on the other, as he too, had no ‘hope in hell’ of becoming the President of this country. Thus, it appeared a brilliant move of soring a positive in capturing political power out of two political negatives. Yes, it proved to be a brilliant move to capture political power, but the question is, how brilliant a move it is in governing this country? Thus, the ‘brilliant’ strategist who once claimed credit for Yahapalanaya’ should take the blame for the perilous and unstable situation the country is in today.

That apart, let us analyze the issue before the Supreme court today. On the face of it ( Prima facie) it appears as if the issue is between the Legislator and Executive and therefore warrants analysis only on those clauses of the constitution that details the duties and powers of those two. However, if the Supreme Court, buried in legal technicalities, adopts this prima facie positions, it would be a case of ‘missing the jungle for its trees’.  This is because there is a third party in this case, though not represented, that is omnipresent in this case. That is ‘People’ and whoever who interprets the clauses of the constitution cannot do so without taking the interest of the people, whom the constitution says are the owners of the country, into account.

Therefore, leaving out all the legal technicalities aside, let us take a simple situation of an estate who has an owner but runs it by appointing managers with power to manage the estate. In that situation the owner appoints the managers with clear powers in their appointment letters that may constitute a constitution in the context of a country. This arrangement is arrived at because the owner cannot be bothered with the details of management but only in seeing that the estate prospers and bring profits. However if the management starts fighting with each other and the land is being threatened in every way with regard to its wellbeing, security and day to day running, could the managers fall back on their letters appointment and say that I am the manager for 5 years as per this letter of appointment and therefore you cannot seek the views of the owner on this situation until my period expires.

It is not a question of sacking one manager of the other but a question of seeking the views of the owner and giving him a chance to decide on the way out of this crisis. If that is not done the inevitable will be doom and gloom and no democracy will survive under such situations.

When Roman’s invented democracy the idea was to get the people’s consent on each and every issue of governance. Yet, later they found that it is too difficult in practice and therefore settled for a representative democracy in compromise. Thus, the representatives are obliged to act in accordance with the peoples wishes and to act otherwise would to kill the very spirit of democracy and an act of default.  The period of representation is for practical reasons and it is not to take advantage of.

Therefore, a decision by the Supreme Court that says that the ‘Dissolution of the Parliament by the President is legal’ has a way forward. It does not mean that the present legislators are sacked but only that they have been asked to seek a mandate of the people (the owners of the country). On the other hand, if the Supreme Court maintains that the ‘Dissolution is illegal’ that verdict may push the country into anarchy inviting a revolutionary type of situation. The people of a country cannon act like an owner of an estate and that is why we have a constitution to avoid chores.  Therefore, the purpose of the Constitution is to prevent chores and not to create chores. It is not a question of restoring the fundamental rights of few who stand to gain by the continuation of the Parliament in its present form but in restoring law and order in a country and saving the fundamental rights of a population.

To be impartial, the writer does not claim to know whether it is the executive or the Legislator that is right on this matter. But what is before the Supreme Court is the dissolution of the Parliament and not the impeachment of the President. Therefore, if the impeachment of the President also comes before the Supreme Court eventually the Courts have the right to pass judgment considering the way forward and the purpose for which a constitution is enacted by a country. The basic law is that the rulers are elected by the people for a temporary period and they could come and go, but the country and its people should go on forever!

7 Responses to “A Judgement that Ensures  a ‘Way Forward’”

  1. dingiri bandara Says:

    A constitution is a document like any other law that can be interpreted in many depending as who are interpreters.Lot of times it depends on the feelings, affiliations and the opinions of those who interpret it. But there is something called the law of natural justice. It is upto the interpreters to do what is good for the country and majority of is people.

  2. Cerberus Says:

    You are very right. I saw this article which puts things in perspective. See http://www.lankaweb.com/news/items/2018/12/09/ranil-became-pm-by-trickery-and-now-wants-to-remain-as-pm-by-trickery/.
    Here is a para from this article which in my opinion puts things in a nutshell.
    “The 19 a was hurriedly put together by Jayampathy Wickramaratne, a man who was supposed to have been thrown out of the University for cheating, and it is obvious the main objective was to keep the coalition party in power till June 2019. But since the coalition broke up I believe that the President had every right to dissolve the Parliament and appoint a new PM acceptable to the majority in the Parliament which was the UPFA and the SLFP. Furthermore, Ranil tried to bring a bill to sell state land to foreigners which “was stopped by the President. It is also stated by the President that Ranil, Sarath Fonseka, and Pujith were involved in a plot to assassinate the President. Ranil had the motive since he would have automatically have become the President if that happened. The TNA would have then got their objective of having a separate state. I am not a lawyer but just an ordinary citizen. Since the coalition broke up I think the best way to resolve the issue is to go before the people by having an election. It is very obvious that Ranil Wickremesinghe has no love for the country or the people. He has been a stooge of the powerful countries right from the beginning.”

  3. Ratanapala Says:

    The nation cannot allow the destruction of the Goyama to protect the Niyara and Weta. This is the basic truth behind Constitutions, Legislators and the Executive. The Executive by way of the people’s mandate has a right to step in when things are not going in the right direction. Whether it is written in the Constitution or not that is natural justice and basic law.

    Everyone knows by now that the 19th Amendment to the Constitution has two sides. One to reduce the excessive powers of the Executive and the other which happened in the penultimate hours of the day this infamous piece of legislation was passed while the majority of the legislators were half asleep – which was to grab power from the Executive to the Prime Minister who is only an MP from the Colombo district. It is up to the honorable justices to take all these factors into consideration when arriving at a decision which in the ultimate should not be just relegated to the mere wording in the Constitution.

    By now it is quite apparent that the Constitution is by no means a sacrosanct piece of legislation. It is full of legal holes, illogicalities and seriously in need of revision. One has to take into consideration in no small measure that it is there for the protection of the people’s right and not the supposed to be representatives who are driven also other considerations such as their pensions and other emoluments they receive.

  4. Dilrook Says:

    I disagree although this may be the verdict which is illegal.

    The court must uphold the constitution to the letter. If only there is silence or a serious dispute in interpretation of a matter, can the court give the most constructive verdict. The Constitution is clear on this issue and there is no need to deviate from the law.

    Otherwise politicians will hold people as human shields and demand the court to toe their illegal way of doing things.

  5. nilwala Says:

    Will the Judiciary do Justice by the Country, its Civilisational History and its Independence? Will they act without attempt at Judicial Activism which has thus far shown some evidence?
    With the major parties following 2 different paths, one in Appeasement of the Minority communities, which might very well, as past experience as shown serve only temporarily (as revealed in the “a little now, more later” statement of a Minority leader), and the other towards a more practical and workable solution taking into account that a major segment of the Minority communities are already established in the rest of the island, i.e., in the South, with no intention of their moving back to areas that they had migrated from, but demanding that a return to them be ensured while they retain legal rights to their new homes in the South (using “international” pressure perceiving Justice in these demands being used on SL???). A District based system of governance that ditches the Provincial Council system may provide the answers to the conundrum of a workable Constitution.

    The situation can also only be resolved by the Minorities understanding what Democracy and Justice with, above all, Honesty of Purpose and NOT Machiavellian gimmickry, can work successfully in this small country wherein splits and factions are being used to tempt short-term solutions, while the large majority wishes to retain it as a Unitary State within a confused, contemporary world brought today to a breakdown point by the greed for power.

  6. Dilrook Says:

    Just as I said many times, the Supreme Court has decided on a textbook case. Dissolution of parliament is unconstitutional.

  7. Ananda-USA Says:

    This ENTIRE FIASCO of Mis-Governance shows only ONE THING: That Sri Lanka’s Constitution, AMENDED many times to suit political convenience of unprincipled leaders is NOW UNABLE TO DEFEND & PROTECT Sri Lanka’s National Interests which go ABOVE & BEYOND “Democracy” considerations! The CURRENT CONSTITUTION is now an EXISTENTIAL THREAT to Sri Lanka’s VERY SURVIVAL as a Sovereign Nation

    The CONSTITUTIONAL SAFEGUARDS for Sri Lanka’s National INTEGRITY and the SECURITY of its People has been TRADED IN for a watered-down Western Style Democracy that the West DICTATES to preserve their interests while the INALIENABLE RIGHTS of Sri Lankans are FLOUTED by their PAID STOOGES in all 3 branches of Government!

    We, the PATRIOTIC CITIZENS of Sri Lanka must TAKE CONTROL of our Motherland before it is LOST FOREVER! We MUST STRENGTTHEN the National Government, and the EXECUTIVE PRESIDENCY FURTHER, while ELIMINATING ALL Sub-National Governments except city, town and village local governments, We must REPEAL both the 19th and 13th Amendments to the Constitution!

    We must ELIMINATE the PM’s post as UNNECESSARY and DUPLICATIVE; the Speaker’s post is sufficient to conduct the LEGISLATIVE BUSINESS of the Parliament. The Parliament MUST NOT HAVE ANY EXECUTIVE ADMINISTRATION ROLE; its business should be SOLELY to LEGISLATE and to Aend as needed ad Approve the BUDGET as presented to it by the EXECUTIVE PRESIDENT in charge of a CABINET of MINISTERS who report SOLELY to him.

    If the CURRENT FIASCOO has SHOWN ANYTHING, it is that it is a FATAL MISTAKE to DIVIDE the powers of the EXECUTIVE PRESIDENT between a WEAKEEED PRESIDENT and an EXECUTIVE Prime Minister! That experiment HAS NOW BEEN demonstrably proved to be UNWORKABLE, FLAWED from the VERY START and a NEAR-FATAL DISASTER!

    We must HALT the ECTA and Singapore Agreements NOW! We must IMMEDIATELY MOVE to take back ALL STRATEGIC National Assets . like our Ports, Airports, Banks, Hospitals, Teaching Institutions, Highways, Refineries, Factories, Petroleum Tank Farms, Construction Companies, Real Estate, etc. As far as possible, we must award our National Development Contracts to Companies that are owned at least 60% by Sri Lankan citizens.

    Sri Lanka’s ENEMIES, both WITHIN and WITHOUT, will be within a STONE’s THROW of achieving their MACHIAVELIAN DESIGNS should Hitapu PARA-GATHI AGA-MATHI Ranil Wikunanasighe, and his SEPARATIST Alies in the TNA and the SLMC cimb back into the SEAT of Power, with the EVER-OPPORTUNISTIC and SUPREMELY UNPATRIOTIC JVP enthusiastically pushing the 20th Amendment to strike the FINAL NAILS into NOW SUPINE Mother Lanka’s heaving BREAST!

    I havew said it before, and I will say it again: President Sirisea shhould not back down ONE-INCH; he should SUSPEND the Parliament and SHUT IT DOWN under armed forces protection, DECLARE an EMERGENCY and IMPOSE Martia Law; EXPEL Ranil from the Temple Trees, charge him with Trespassing on Government Property and seek DAMAGES both Real and Punitive; and MOST IMPORTANTLY MOVE to HOLD a GEERAL Parliamentary ELECTION to DETERMINE the WILL of the PEOPLE!

    NEVER HAND the Government back to the ACCOMPLISHED CROOKS and TRAITORS of Ranil Baba ad his 40-Thieves without the SUPPORT of the VOTERS of Sri Lanka!

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