by Rajan Philips Courtesy Island

More by accident than by design, Mr. DEW Gunasekara has kicked open Sri Lanka’s constitutional can of worms. All he may have wanted to do was to make a political statement by grieving before the Supreme Court that the new UPFA leadership under President Sirisena wrongfully deprived him of a national list seat in parliament in favour of a defeated SLFP candidate. Then his intrepid lawyer, Nagananda Kodituwakku, appears to have made a startling discovery that the wording of the provision in the 14th Amendment, relating to the appointment of national list MPs, is different from the wording that was presented to and was passed by parliament in 1988. The parliamentary version apparently excluded candidates running in the general election from being considered for national list appointment as MPs. The current constitutional version includes them. The alleged switch in wording is a terminological fraud. If what we are hearing is true, all three branches of state power would seem to have colluded in this fraud at the highest levels. Again, if true, one cannot imagine a more unbecoming and more embarrassing fraud in constitutional politics in Sri Lanka or elsewhere.

Quite rightly, Mr. Gunasekara and his lawyer persisted in their search for an ‘official confirmation’ of what already appears to be true, but they have been denied the full disclosure of information apparently on the grounds of privilege and confidentiality of executive-judicial communication. Mr. Gunasekara has indicated that he would take the matter to the UNHRC in Geneva, presumably for help from Geneva for forcing disclosure in Colombo. Even if he doesn’t go to Geneva, the constitutional situation created by the revelation about the 14th Amendment needs to be addressed by the current legislature and the chief executive. President Sirisena, as well as the government and the opposition in parliament – both the official TNA opposition and the restive UPFA opposition, owe it to the public to declare where they stand on this matter and how they propose it to be addressed. They cannot afford to remain silent and they should not be allowed to remain silent. The judiciary could afford to remain silent if no one goes asking for its opinion. But now even the Court cannot remain silent as Mr. Kodituwakku has already filed another petition requesting a full bench hearing to address this matter and to suspend all National List MPs until the Court rules on the matter. And before anything of consequence happens, there is nothing to stop the unseemly spectacle of a retired Chief Justice offering public debriefing on past and present cases. Any such debriefing on the 14th Amendment will as always be unamusing and unenlightening.

According to Mr. Kodituwakku’s court submissions, there were “two Bills” at play in the 1988 enactment of the 14 the Amendment to the constitution – to change country’s electoral system from the first-past-the-post system to the current proportional representation system including the provision for national list MPs. The first Bill, as presented to parliament on 4 May 1988, by Prime Minister Premadasa was the outcome of nearly five years (1983-1988) of deliberations by an all-party Parliamentary Select Committee. And it excluded candidates contesting the national election from being eligible for appointment as national list MPs. The second Bill was the one that was allegedly referred to the Supreme Court by President Jayewardene, and it permitted candidates in the national election being considered for appointment as national list MPs. This second Bill apparently was not made public, either through parliament or by publication in the government gazette. The second ‘Bill’ is apparently a known fact, but DEW Gunasekara and his lawyer are having a hard time getting official confirmation of it. Mr. Koditwakku is trying the Supreme Court again, while Mr. Gunasekara is studying the UNHRC option.

Sirisena-Wickremasinghe Responsibility

It is indeed surprising that the fraud apparently committed in enacting the 14th Amendment has gone on for so long without anybody noticing it. Or, it may be that people – in the know, knew about it but chose to do nothing because every chicanery had become par for the constitutional course under the 1978 Constitution. The legislature that enacted the 14th Amendment in 1978 was the same parliament that was elected in 1977. Four-Fifth of the members were UNPers who had their term extended over ten years through the undemocratic referendum of 1982. The following year all hell broke loose in July and the official TULF opposition was sent packing to India by the enactment of the Sixth Amendment. The Old Left was still shut out, and Bernard Soysa as well as A. Amirthalingam would become MPs again only after the 14th Amendment and that too through the national list. So anything could have been legislated in that parliament of 1988, without serious scrutiny. But that does not excuse what seems to have happened in the enactment of the 14th Amendment.

The not so funny situation now is that there is nobody around to take to task for what they allegedly did 27 years ago. Almost all the actors in the fraudulent enactment are dead and gone and there is no point in piling dirt over people who are dead. At least some of the UNPers now in parliament may have known about the fraud, but even they can claim the benefit of statutory limitation against punishment for past crimes. But politically from the standpoint of good governance, the current UNP leader and Prime Minister, Ranil Wickremesinghe, owes it to the country to provide full disclosure of the two alleged ‘Bills’ that were in play in 1988, and to indicate which ‘Bill’ would prevail in the future, even after 27 years of constitutional fraud. Without question, President Sirisena shares the responsibility with his Prime Minister to put an end to the fraud that appears to have been the 14th Amendment from the time it was signed and stamped as part of the constitution.

The first part of fulfilling their shared responsibility is for the President and the Prime Minister to put in the public domain all there was to the enactment of the 14th Amendment 27 years ago in 1988. By so doing they can spare the Supreme Court the dilemma of either directing the Executive to open up the records and creating an unnecessary precedent for bossing the executive, or dismissing the petition through some arcane interpretation of the constitution and creating doubts about its own independence in the public’s mind. The current Supreme Court doesn’t have to go through this dilemma for something that was done 27 years, and the only two people who can save the Court from this dilemma are Mr. Sirisena and Mr. Wickremasinghe. The second part of fulfilling their responsibility is to categorically say that the current constitutional provision allowing defeated candidates to be appointed as national list MPs will be definitely rescinded as part of the enactment of the 19thAmendment. The anticipated 19th is the ideal formal opportunity to terminate 14th Amendment fraud, but the commitment to do so must be made immediately.

So what happens to the defeated candidates who have been appointed as national list MPs displacing the original national list MPs including Mr. DEW Gunasekara? And what happens to Mr. Gunasekara himself and others like him who have been consigned to political purgatory as result of internal SLFP struggle for control of the Party? Nothing much can happen to either group as there is no point in trying unscramble badly scrambled egg. Defeated candidates who have become MPs will remain as MPs until the next election and a new parliament under the 19th Amendment. Their punishment till then be could be public ridicule and loathing that may make the less thick skinned among them to quit their posts as MPs. As for Mr. Gunasekara and his ilk, it is too bad that they will not be able to benefit from his judicial voyages to expose the 14th Amendment fraud. While he is to be entirely commended for single-handedly bringing a 27 year old fraud into public spotlight, Mr. Gunasekara’s current situation of being denied a seat in parliament is not a direct result of the 14th Amendment fraud, but a direct result of his persistent and prolonged association with the corrupt Rajapaksa regime. He too was guilty by association and is now suffering the political comeuppance.

Will DEW go to Geneva?

There is an additional reason why President Sirisena and Prime Minister Wickremesinghe must address this matter as soon as possible. Otherwise, they may have to deal with an intervention by UNHRC, if DEW Gunasekara were to take his complaint all the way to Geneva. In fact, if the President and the Prime Minister were to dither and dillydally as has been their wont on a number of other matters, Mr. Gunasekara will be perfectly justified in taking his case to the UNHRC in Geneva. The political fallout of DEW going to Geneva will be an interesting twister of ironies. Even if Mr. Gunasekara’s real intention is embarrassing the government, his trip to Geneva will invariably embarrass the government’s critics as well. On the one hand, after co-sponsoring a binding UNHRC resolution on itself, the government cannot turn around and find fault with Mr. Gunasekara going to Geneva to complain to the UNHRC. On the other hand, the government’s critics who are now damning the government for what they see as kowtowing in Geneva, cannot afford to cheer Mr. Gunasekara flying with his complaint to Geneva.

Mr. Gunasekara taking flight to Geneva will trigger a new debate about Sri Lanka’s sovereignty and its commitments as a result of Sri Lanka’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).This time the proponents and opponents may have to change sides. Regardless of who is on which side, the constitutional position about Sri Lanka’s accession to the Optional Protocol was well articulated by the late RKW Goonesekere. He wrote a brief opinion piece in the journal Polity (Vol 3; No. 5 & 6; October-December 2005) to provide a counter-viewpoint in the wake of the wayward ruling in the infamous Singarasa case. The last paragraph of that opinion peace is worth being repeatedly reminded of:

“Nowhere in our Constitution is it said that the Supreme Court is Supreme; it is but another court exercising the judicial power of the People who are sovereign. It is the People’s right to say that the Supreme Court’s pronouncement taking away a valuable right conferred on the people was per incuriam and in excess of the Court’s jurisdiction. A treaty solemnly entered into by the State in the exercise of the executive power and in terms of international law as reflected in the Vienna Convention on Treaties is not, it is submitted with respect, subject to judicial review. There is a procedure in the Protocol for a State Party to denounce the Protocol, but until this is done, the Protocol is in force in this country. It must not be forgotten that Sri Lanka’s accession to the Optional Protocol of the International Covenant on Civil and Political Rights was one of the major accomplishments of the late Lakshman Kadirgamar during his distinguished career as Foreign Minister.”