N. A. DE S. AMARATUNGA

If the Constitution is to be sacrosanct, in the first place, it has to be totally free of ambiguity and confusion. The 19th Amendment to the Sri Lankan Constitution appears to be a product of political expedience, rather than something that makes the government more democratic in the service of the people. It has been constructed in haste and mainly to serve a particular agenda. In trying to bring in amendments that need a referendum, through the back door as it were, in order to avoid a referendum, it has produced a document that could be interpreted in different ways, and it is being interpreted so by constitutional experts.

For instance, the reason why there are two articles dealing with the subject of the president’s powers to dissolve parliament is not clear. Some say when there are two articles the later one prevails over the earlier. These people, however, would not explain why there are two articles, why there has to be an earlier clause, so that lesser beings like us would understand the Constitution. Others say the article that carries the specific provisions would override the one that is more general. Again they don’t explain why there has to be an article that deals with the general situation, which seems to be superfluous and confusing.

The two articles that deal with the above matter are 33 (2) (c) and 70 (1). The latter gives the specific requirements that need to be met before the President could dissolve the parliament. It says the President could dissolve parliament only after 4 ½ years of its tenure. In the 1978 Constitution, the President had powers to dissolve the parliament after one year. Clearly the question arises whether this drastic curtailment of presidential powers needs a referendum. The Supreme Court which looked at the 19th A, had ruled that such changes may need a mandate from the people. It appears that in order to get over this problem the authors of the 19th A had introduced Article 33 (2) (c) which is a copy of Article 42 of the 1978 Constitution verbatim. Was the Parliament duped by the presence of this article into voting in favour of the 19th A almost unanimously? Now that the 19th A has gone into the Statute Book it is the law, but a very confusing one at that and everybody has extreme difficulty in interpreting it without causing injustice to the people of the country.

In all probability the intention of the designers of 19th A, who in all probability have designs on the country, was to cause such confusion so that they have the freedom to interpret it the way they want.

However, the incongruity between the ruling of the Supreme Court and the interpretation of the Constitution by its authors remains, and is of vital significance. The point at issue is the fact that the sovereignty of the people is reposed on the President as stated in the Constitution, and curtailment of some of his powers which may impact on the sovereignty of the people without asking them, would amount to a breach of sovereignty. Article 70 (1) is one such clause, and when interpreting it the constitutional experts must take special care not to cause further damage to the sovereignty of the people, which is already much eroded by the misdeeds of the “Yahapalanaya”.