3rd May 1998
By Viruddha Paakshikaya
Paakshikaya, writing last week, tries to as sume the role of a story teller. He tells the story of a train station, a US Senator and Russian guide, trying to ridicule the UNP. Well, Paakshikaya we too can tell stories, and train stories at that. For instance your government's promises about the abolition of the Executive Presidency by July 15, 1995 and later linking that to the devolution package reminds me of this story.
Three professors walk to a train station (one let us say, must be the Hon. G. L. Peiris). They are so absorbed in their conversation that they didn't hear the train arrive, but they did notice the noise of that train as it started to leave. They run after it and two professors get on the train. The third (G.L?) watches sadly as the train pulls away. "Don't feel bad," says an onlooker, "two out of the three of you made it"
"True" sighs the professor "but those two came to see me off.
That, Paakshikaya is precisely how professors in your government operate. They don't know which train to catch, whether it is the abolition of the presidency or the adoption of the devolution package. In fact they don't' seem to know that they have to catch a train. In the end, they end up missing both trains.
But, enough of trains. Paakshikaya says we should 'lift' our debate from "pedestrian" levels. I'm prepared to raise it from pedestrian levels right upto Presidential levels, if you like.
But before that I will not allow you, Paakshikaya, to make allegations — pedestrian or not — about the UNP and get away. And now, for the second time, Paakshikaya had tried hard to get away from the subject of corruption, for obvious reasons.
First, when I made a clinical assessment of corruption under the PA government he (or she) switched on to the Anura-Ronnie battle which we have proved was a storm in a tea-cup. Now he says, let's lift this debate from pedestrian levels.
He even says some readers have wanted us to do that and not be like politicians. Well, most readers have told us that, Paakshikaya, the voice of the PA is always caught flat-footed with my arguments.
He (or she) made a big deal about the recent locomotive tender where trains with ship engines were ordered and how four 'honest' Cabinet Ministers approved it. My information is that the ministers merely rubber-stamped the President's wishes and went on the basis of a technical point on the specification-they did not study whether Sri Lanka was getting the best locomotives for the price we were paying.
Then he talks of the AirLanka Airbuses and says the UNP joined hands with Royal Jordanian Airlines. He asks who the agent was. Yes, it was a Maha Rajah alright. But didn't you do business with the Maha Rajahs? Didn't they loan a Mercedes Benz for your party leaders to canvass at election time? Were not their namesakes made into social secretaries and their children given entre´ to official bungalows of your top leaders to make presentations of the products they were trying to sell?
Now, you have fallen out because you have your own Maha Rajahs — in London and Paris — to cater to. People who are invited to dine with the future King of England. What would you say to that, Paakshikaya?
Even if somebody got a massive commission for the Airbuses, your own government appointed a respected ex-Supreme Court Judge to study it and found there was nothing wrong. Your vociferous loud mouthed politicians who howled in holy horror at the Airbus "Scandal' have now strangely lost their tongues.
There will be a big debate in Parliament on AirLanka, Airbuses and Airpockets which may have been filled with French francs, US Dollars or even UAE Dirhams as the case may be. We shall see whether those who howled then will be there for that debate! (Already your Aviation Minister has 'taken-off" resulting in a postponement of the debate. Remember Paakshikaya, you can run but you cannot hide for ever.)
Our party, the UNP, discussed the issue of corruption when we were governing the country. We discussed corruption within our own party, and identified ways and means of arresting the problem.
The minutes of the meeting of the Working Committee of our party held on 26 April 1982 presided over by our then leader J.R Jayewardene show that a resolution moved by our present leader, Ranil Wickremesinghe had been unanimously accepted after a detailed discussion on it.
The resolution reads as follows:-
"Whereas any democratic system of Government requires honest leaders and whereas the rampant corruption under the Sirima Bandaranaike administration resulted in the Government forfeiting the moral strength vital for honest leadership and good Government, and whereas the UNP at the 1977 General Election pledged that those holding elected public office shall set an example of moral behaviour by adhering to high standards of conduct free from suspicion of corruption and that those who violate such standards will suffer the consequences, and whereas the present Government has in furtherance of this pledge formulated a Code of Conduct and expanded the terms of reference of the Special Presidential Commission, and whereas further measures are necessary to purify public life to ensure that those holding elected public office are above suspicion of corruption,
Therefore, the Working Committee of the United National Party resolves that the Party takes the initiative to enforce the high standard of conduct among elected and selected public officials who are members of the Party and thereby set an example to other political organizations.
The Working Committee further resolves,
(i) That the Leader of the Party inquires into the conduct of party members who have been elected or selected to public office i.e. Members of Parliament including those holding ministerial office, Members of District Development Councils, Members of Local Authorities, Chairmen and Members of the Boards of Corporations and similar officers.
(ii) Where after any inquiry under para (i), the leader of the Party is of the view that any such member has failed to adhere to the high standard of conduct expected of those holding elected and selected public office to be free from suspicion of corruption, the Leader of the Party shall request the member of the party to resign from such elected public office.
(iii) The Leader of the Party shall report to the Working Committee in regard to inquiries held and action taken under paragraph (i) and (ii)
(iv) Every member shall co-operate in any inquiry under paragraph (i) by answering all questions put to him at the inquiry and by producing all documents including Income Tax Returns, Bank Statements, Declarations of Assets and Liabilities made under laws in force for the time being, Declarations under the Customs Ordinance and the Exchange Control Act etc., which in the opinion of the Leader of the Party is necessary for such inquiry.
(v) The Leader of the Party may formulate such rules as are necessary for the conduct of inquiries under paragraph (i).
(vi) Any member who,
(a) On being called upon to resign elected public office in accordance with paragraph (ii) fails to do so, or
(b) Fails to co-operate in any inquiry in accordance with paragraph (iv) and (v) shall be "expelled from membership of the party."
So, Paakshikaya, if you want to discuss "issues" rather than go down to "pedestrian" levels, we can do that on the subject of corruption as well.
For starters let's take the "permanent" Commission on Bribery and Corruption which you promised and which we, while being in the Opposition, supported whole-heartedly in Parliament. What is its fate now?
You may call it as a Commission that has been castrated. Its Director - despite being the daughter of your Prime Minister's confidante - is in hibernation. All the Commission's police officers - its investigating arm - and the Attorney General's Department lawyers - the prosecuting arm - have been withdrawn. Only two Commissioners remain, a third has not been appointed even though the Law stipulates that the Commission SHALL consist of three Commissioners.
All this began when those in the Commission began investigating each other. There was a Rasputin in the Commission. The UNP will reveal who he is at the right time though we know that Rasputin had been sneaking up to some of our Ministers at that time!
Then if we are to "elevate" this debate, let us talk of the platform on which the PA came to power: "Dooshanaya, Beeshanaya and Vidhaayake Janadhipathi Padaviya.... "Dooshanaya is rampant despite the absence of JVP terror. Beeshanaya continues from terrorist bombs, journalists being threatened in their homes and their houses being burnt and criminals being given VIP treatment under the patronage of ministers. Even star athletes are not spared. As for Vidhayake Janadhipathi Padaviya, the less said the better!.
We in the UNP, in contrast, did not have Commissions appointed to probe the SLFP rule from 1970 to 1977 but as I have stated earlier, we did penalise the likes of E.L Senanayake, Ranjan Wijeratne, Anura Daniel and M .Jalaldeen, all of them our party men. Paakshikaya, name a single SLFPer ( or PA politician) who has been punished by a SLFP or PA government. No, surely not. Does that mean that you are all pure and incorruptible? Again no, surely not. So who's trying to fool whom, Paakshikaya?
Then to the promise of eradicating 'Beeshanaya". Today we in the UNP are hounded about the so-called terror we unleashed but you forget that the JVP instigated most of it. When the JVP killed your Kalutara SLFP Organiser, Indrapala Abeyweera (and we didn't do that, even you will agree). Your MPs begged us to provide protection. And today because we gave you that protection you (and not the JVP) are in and Indrapala's daughter is a Deputy Minister all because of the "terror" we unleashed!
Don't forget, Paakshikaya, that it was a time when your leaders - or at least some of them - fled the country and lived in exile with friends and family friends who are cashing IOUs now at the expense of this country from what we hear.
You crushed a similar insurgency with equal thrust in 1971, remember? The difference was that we were in the Opposition then and we supported you because we believed in democracy, the Rule of Law and Parliament. We wanted those pillars of cultured society not to crumble on our collective heads. And remember, Paakshikaya, when we came to power in 1977 we didn't appoint Commissions to probe what you did in 1971 but what do we see today? You are probing our anti-JVP activities and Mr. Balapatabendi is shown on the front page of the Daily News having tea with Mrs. Wijeweera, the wife of the man who ordered the killing of his boss' husband! How can we "elevate" this debate when you stoop to such depths, Paakshikaya?
Remember, Paakshikaya, if you don't watch out you might have to deal with another 1971 or 1989. I sincerely hope not, for the sake of our country.
Then your hypocrisy is exposed even in the Executive Presidency issue. We have offered you our co-operation for a two-thirds majority if you want to abolish it. but you don't want that to happen, do you, Paakshikaya?
These are the issues, Paakshikaya. These are the issues on which your government was elected. These are the issues I admit on which our government was ousted. And if the conduct of your government is any yardstick, Paakshikaya, I dare say that those will be the issues on which your government will also fall at the next election. What do you say to that, Paakshikaya?
On the beat
By RPC (Reserve Police Constable)
When Lee Kuan Yew became the Prime Minister of Singapore, he was con fronted with another Government which was as powerful as his own elected Government. Mr. Lee Kuan Yew's Government, or Mr. Lee Kuan Yew, did not have the power of life and death over its citizens. The other Government had this power vested in its leadership. Singapore was a crumbling British colony when Le Kuan Yew took over. It was the gateway to the Chinese mainland and its quota of opium. The sailors and tourists feasted on exclusive Chinese dishes like snake, dog and monkey meat. They also had prostitutes, drugs and opium to be indulged in without any restriction. The fledgling Police force was corrupt to the core. Opium had become the virtual staple diet of the young and old. Trade in opium, drugs, brothels and gambling dens was controlled by the shadow Government of the mafia gangs, akin to the warlords in China.
It was a common sight to see 20 or 30 bodies shot, mutilated and laid across the streets in the city of Singapore. The investigations consisted of recording statements of relatives identifying the dead bodies. No one ever gave evidence, about the manner in which these gruesome murders were committed. But everyone knew from the uniform or the dress the corpses were covered with to which one of the two underworld gangs the deceased belonged to. The mafia controlled Singapore during dark and the writ of the Government did not operate after sunset.
Lee Kuan Yew was a Barrister educated in England. He was taught and groomed in the importance of adhering to natural justice, equity and more so the Rule of Law. In fact his election platform was a platform of revolution to install a righteous Government to take Singapore away from the abysmal depths it had fallen into after it became independent. He was the champion of justice and fair play. He was opposed to oppressive, inhuman and degrading methods used by the previous regime. In office he found that his much precious principles did not suit or were impractical to control the mafia of Singapore. He could not permit his government to be a Government of impotent eunuchs, unable to control the mafia which was the pseudo shadow Government of the dark, the Government that ruled the country, the Government that controlled the trade, the Government that was feared by the people, the Government that ordered the people to obey its rules.
At that time there was with him a young Tamil politician of Jaffna descent called Rajaratnam who was Lee Kuan Yew's advisor. They found going through old enactments which had been used by the British, an Act called the Internal Security Act. (ISA). Former colonial masters used the Internal Security Act to arrest Communists and their agents engaged in a war to liberate Malaya from the clutches of the Britishers. This enactment provided the Executive to keep persons in custody and incommunicado without producing them in Court. Only the Executive had the power to release them. The writ of habeas corpus did not operate against such Executive action. Within a short time, Lee Kuan Yew, a lawyer and a Barrister and a champion of human freedom used these laws which would be termed by the purists and human rights activist as draconian, to arrest all sections and factions of the mafia in Singapore. Hundreds were taken away in the night to unknown detention camps, other fled to nearby Indonesia and Borneo and Sarawak. It is said that even after thirty years, some leaders of the mafia are still in jail awaiting their trial, and others have perished in jail. Singapore became the safest city in the world. Even today any young girl can get a taxi and frequent any night spot without any fear of being harassed by anyone.
I would say the position in Sri Lanka today is only a bit better than Singapore when Lee Kuan Yew became the Prime Minister in 1956. The gangs of the underworld a few years ago concentrated mainly in distilling unlawfully manufactured liquor. Every village had a temple, a school and a Kasippu den and a thug who sold Kasippu and arrack. But today to become an important member of the underworld you ought to have close connections with the politicians. It is the politicians who helped, nurtured and protected the underworld gangs in order to achieve their mean political objectives. The kingpins of the underworld are millionaires; they possess modern vehicles, cell phones and the most modern and sophisticated weapons. It was only a few months ago a person known as the Godfather was arrested with a weapon not imported to Sri Lanka and not used even by the Army. He is called The Godfather as he was protected by an important official of the present Government.
The tragedy was that these underworld elements were headed by a person known as Thel Bala now in custody, and had the active support of the LTTE. The LTTE used the underworld to sell its drugs imported to Sri Lanka by its own channel, specially with a view to cripple the Sri Lankan youth and make them drug addicts, in the process making millions of money for their anti-Government operations. The security situation of the country due to the patronage given by the politicians to the underworld has created such an impasse that the LTTE is able to smuggle large quantities of explosives in to the city through these underworld elements.
The President has been informed of this serious situation that the security establishments are facing, due to the patronage the underworld receives not only from Ministers, Deputy Ministers and super officials, but also from some powerful sections of the Police and the Armed services. It is only a minority in the Police force that are determined to carry out the orders of the President to curb the underworld, arrest the leaders and charge them in Courts of Law as their position is unsafe not only from the underworld itself but from the politicians who continue to harass and prevent them from taking action within the framework of the law.
Mr. G.S. Abeysekera, Police Inspector and Officer in Charge of the Crimes Detective Bureau of the Grandpass Police was the other officer who was transferred out of the Station to Vavuniya on the instructions of the IGP after he was able to solve a murder committed by one of the most fearsome gangs now operating in the underworld. This happened after he took into custody one of the leaders of this gang called Bernard Christopher Barry and one Udayakumara for their involvements with the heroin trade and a number of murders they have committed on contracts and as members of the most fearsome gang headed by one Dhammika Perera. Dhammika Perera cannot be arrested by the Police as he, as the leader of this underworld gang, is said to be protected by a powerful Minister of the Government. It was one of his members who is now identified as Paul who is in custody at the CDB and was arrested by a Police officer attached to the Giriiulla Police Station, who was also transferred after this arrest was made.
Bernard Christopher Barry was in custody till the 19th of December, 1997 and was released by the High Court on strict conditions imposed on him restricting his movements. On the 24th of March, 1998 whilst on bail he is suspected to have shot and gravely wounded one Nimal Ranjith Perera at Orugodawatta. Mr. Abeysekera as the OIC of the Crimes Detective Bureau got into action and recorded a statement of the injured who clearly identified Barry as the assailant.
The story that unfolds from now is unbelievable as it is like fiction written by a master of detective fiction like James Hadley Chase. When Abeysekera was at his desk he received a telephone call and the person who called him was the much wanted underworld gang leader Barry. He suggested through the phone that he would send one of his acolytes to the Police Station with a 7.65 pistol and wanted the Police Officer to produce him in Court as the assailant. Mr. Abeysekera refused to do so and told him that the investigating officers have recovered two spent cartridges from a 9 mm pistol and therefore when he surrenders to the police he must bring the 9 mm pistol which was used in the shooting. Then Barry said that he would get instructions from Dhammika, wanted in connection with more than twenty murders, and at large, as it is rumored that he is being protected by powerful politicians of the Government.
On the 25th of March, 1998 a Police Sergeant who is now attached to the MSD (Ministerial Security Division) and is the personal body guard assigned to a very powerful Deputy Minister appeared at the Police Station. The Deputy Minister is distantly related to President Chandrika Bandaranaike Kumaratunga. The Sergeant met the Inspector and asked him whether there was any evidence to connect Barry with the shooting incident at Orugodawatta. When the Inspector answered in the affirmative and showed the statement made by the injured person, the Sergeant told the Inspector that Barry and Dhammika are two people who fully support the Government and Dhammika has met the Deputy Minister, and the Deputy Minister had given an undertaking that he would 'shape' this matter with the Police. ''The Deputy Minister told me to come personally to the Police station and talk to you and 'shape' this matter'' he said.
Mr. Abeysekera was aghast with shock at the revelation made by the Sergeant. He did not want to believe the Sergeant, as he thought that the Deputy Minister being a member of the Government should be fully aware of the instructions that had been given to the Police by the President to crush the underworld. Then he asked the Sergeant whether he was certain that the people who came to see the Deputy Minister were Barry and Dhammika, the most wanted criminals for murder, extortion, robbery and who had been identified as kingpins of the underworld. They are wanted by many Police Stations around the country. Mr. Abeysekera thought two other persons would have met the Deputy Minister and conveyed the message of some politician. Then the Inspector took some photographs and showed it to the Sergeant and wanted him to identify Dhammika and Barry from the photographs. Then the Sergeant told the Inspector that he does not have to identify anyone from photographs, as Dhammika and Barry were frequent visitors of the Deputy Minister. He insisted that Abeysekera should implicate the acolyte of Barry with the murder and not file information that Barry is wanted in the case.
If Mr. Abeysekera were to do it, he would have to re-record the statement of the victim, and carefully omit the name of Barry and get him to sign the statement and paste it over the information in the Information Book. This is not an uncommon practice of the Police. There are Police Officers who are specialists in this regard. They would be in a position to remove a statement if it is pasted on the Information Book without a trace unless detected by the Government Analyst. When Abeysekera refused to be one of those corrupt officers who would sell his soul for money or position and refused to fabricate evidence, the Sergeant warned him and stated that if he did not do this for the Deputy Minister he would fall into serious trouble, as the Deputy Minister was very concerned about protecting Barry and Dhammika who had been supporters of this government. The Sergeant did not stop his visits to meet Abeysekera after the first encounter. The Sergeant came and told him that other Police Officers whatever rank and position they belong to are willing to help the Deputy Minister. Yet when everything failed to impress Abeysekera, the Sergeant used the last resort and said ''though you are unable to follow the instructions of other Police officers including some OICs of Police Stations in Colombo, you may have to do the needful if you get an order from Madam Chandrika''.
Mr. Abeysekera knew that the President would never give him orders to fabricate evidence which is a grave offence under the present penal laws of the country. He politely told the Sergeant:
"I will not do something unlawful even if I get orders from the highest in the land'' When all these efforts of the Sergeant, the bodyguard of the Deputy Minister, to save Barry, failed, Abeysekera got another call through the phone. It was from Barry himself. He pleaded with Abeysekera and asked why he could not follow what was being done by other Police officers.
They have often changed the suspects and arrested the wrong person who surrenders at the Police Station at the instance of the person behind the crime. Abeysekera told him that if this is true, then they may have done it for money and must be having enough money in their bank accounts, and in the event of their being interdicted or sacked they will have sufficient money to look after their families, but if I loose my job I will not be in a position to feed my family even for a month. Barry immediately changed his tone and said Sir, don't worry I will send ten lakhs with Saman and when you produce Saman as the accused with the 7.65 pistol I will send you another ten lakhs.
Abeysekera who had an impeccable career as an honest Police Officer could not stomach this anymore. He told Barry in no uncertain terms that he would not sacrifice his principles and that he should report to the Police Station with the correct weapon.
Then Barry replied and warned the Inspector that he must be careful and that there are a number of people who would ensure that "you will not arrest me and if necessary take some other action to prevent you from arresting me." Later some members of the Colombo Municipality supporting the Government started telephoning Abeysekera and threatened him and told him that they must take orders from politicians and not take any action against their supporters.
On the 1st of April, 1998 the High Court of Colombo issued a warrant for the arrest of Barry against whom a charge of murder is pending. Barry did not want to take the risk of coming to Court as he knew that all the efforts he took to influence Inspector Abeysekera failed and the Police would arrest him when he returns from the Court.
But on the 2nd of April, 1998 something very strange happened. The IGP made an order transferring Inspector Abeysekera to Vavuniya to be in charge of the main route to Jaffna. The stand taken by Mr. Abeysekera against the underworld and against this particular gang and the influence that was brought on him to stultify the investigations was known to his superior officers as he had made a record of these events. The transfer orders naturally shook the conscience of all honest and law abiding Police officers who were ready to take action against the underworld whatever political party they belonged to and fulfil the goal set by the President to curb the underworld. It was believed that both transfer orders of Gunathilake and Abeysekera came as a result of powerful politicians in the Government extending their arms to protect these criminal elements to achieve their narrow political objectives.
But unlike in the case of Mr. Gunathilake, the entire information of the action taken by Abeysekera and the political manoeuvres by politicians to protect the underworld elements was brought to the notice of the President by a person who had direct access to her. The President immediately gave orders to the IGP nullifying the order transferring Abeysekera to Vavuniya.
The Police officers of this country are often maligned by the Public and the press for actions they take at the behest of politicians. The Police officers are not in a position to inform the public why they had to take certain actions which were palpably wrong and against the spirit of the law. The Public and the press wrongly construe these actions as actions taken by Police due to bribery and corrupt activities. It is not the purpose of the column to give a clean slate to the Police Department and say that they are paragons of virtue.
Like in any profession there are crooks, tricksters and persons corrupt to the core, but in other professions there is no external influence to do some illegal activity and they do so for their own benefit. But the Police Department is different, only a Police Officer will know the number of calls and instructions he receives from superior officers, politicians and other VVIPs who influence them to act illegally in the exercise of their duty. If they do not follow these instructions, they are punished or transferred or not promoted. This incident is a clear example of how politicians use their power to influence police officers to carry out illegal instructions. Only a very few Police officers could resist such instructions and face the consequences such as being transferred without any reasons to the operational areas and to guard a trunk road infested with Tigers leaving his family and children shattered in Colombo for purely doing his duty.
If not for the intervention of the President herself this Police officer would have been in Vavuniya and Barry and Dhammika would continue to lead the underworld which would be a warning to the other Police officers not to interfere with the mafia which is running a parallel government to the government of the President.
By H.L.De Silva
The current Administra tion, engaged in for mulating proposals for the restructuring of the Constitution and the adoption of another in its place, in the expectation that a political settlement would help a speedy resolution of the armed conflict, finds itself stymied in this undertaking . This has arisen by reason of the perceived improbability of securing the requisite two-thirds majority of votes in the Legislature, which is an essential first step for its implementation, prescribed by the Constitution, although there appears to be greater optimism in being able to secure the approval of the People at a Referendum which is also part of the mandatory procedure. Ironically, the position was reversed in 1987 when the previous Administration, engaged in a comparable exercise was confident of an adequate majority in Parliament, mainly due to the constitutional contrivance of the Referendum of 1982, yet uncertain of securing a simple majority, signifying the approval of the People at a Referendum, an essential prerequisite for far-reaching changes in the constitutional structure.
Against this backdrop of developments, two distinguished academics, resident in Canada, have recently given expression to views on the problem that seem to offer tantalizing hopes of cutting the Gordian knot that impedes a solution, basing themselves on certain theories in Jurisprudence, of a controversial kind. The object of this paper is to advert to serious objections to the acceptance of these theories in the current context, demonstrate certain flaws in the arguments advanced and their non-viability as a strategy for political action in a functioning democracy like Sri Lanka. One of the writers is A.J.Wilson , Professor of Political Science in the University of New Brunswick and the other is M.L. Marasinghe, Professor of Law, at Windsor University.
Wilson's views on this matter have appeared in an article entitled "Amending the Constitution", in the Sunday Island (March 98) and are described as observations grouped under three heads. The following are verbatim extracts from this article:
"Jennings et al have argued that the acts of one Parliament cannot bind any succeeding Parliament. This is precisely what Section 82(2) seeks to do. To put the question at its extreme could the 1977-89 Parliament have inserted a clause in the Constitution stating: "This Act cannot be amended under any circumstances " - that is to say, that the Constitution enacted cannot forever be changed. Such a provision cannot bind any succeeding Parliament "……(my emphasis).
"There is Kelsen's theory of efficacy propounded in 1925 and accepted now by courts seeking reasons for upholding a new legal order which had replaced an existing order. Kelsen in brief noted : If they succeed, the old order ceases and the new order begins to be efficacious, because the individuals whose behaviour the new order regulates, actually behave by and large, in conformity with the new order, then this order is considered as a valid order."
He cites two cases decided in the Commonwealth in which the Kelsenian theory was accepted as valid. They are State of Uganda and Commissioner of Prisons ex parte Matovu (1966) and State of Pakistan v.Dosso (1958)
"Then there is the doctrine of necessity which partly meshes in with the first proposition we propounded. Here the problem arose because among other provisions of the Constitution of Cyprus, the one dealing with the Supreme Constitutional Court could not be amended even if it had one hundred per cent support in Parliament for its restructuring." The case of Attorney-General of Cyprus v. Mustapha Ibrahim is cited in support.
The gist of Wilson's argument appears to be that Article 82(2) enacted in 1978 which imposes the requirement of a two-thirds majority is not an insuperable obstacle because it is not binding on a later Parliament, and the doctrine of necessity can be invoked to support a law which has been passed without complying with section 82(2) and if the succeeding legal order is efficacious then Kelsen's theory will recognize it as valid. Having said this however, Wilson seems to have certain reservations about the country having to "face the spectre of changes in constitution with every change in government" and pleads for consensus. He says :"But if this cannot be achieved the old adage will apply, namely, that "when there is a will, there is a way", which of course means that there is no need for compliance with Article 82(2) and Parliament may proceed to enact the new law disregarding the provisions requiring the two-thirds majority.. It is a prescription that is simple enough and it appears that he is confident that, if challenged, the courts will uphold the validity of the change on the authority of these cases.
Marasinghe in a paper entitled "Ethnicity and Constitutional Reform in Sri Lanka" says :
"What is pointed out here is that the Sri Lankan Government could utilize this (Kelsen's)(brackets supplied) doctrine of constitutional validity if it finds that a new Constitution cannot be legitimized according to the provisions of the existing Constitution. This was done once before in Sri Lanka by a previous government"
Ethnicity and Constitutional Reform in South Asia edited by Iftekharuzzaman 1998
He cites in addition to the cases referred to by Wilson, the Nigerian case of Lakanmi & Ola v. Attorney General for Western State and the Privy Council case of Madzimabamuto v. Lardner-Burke. In brief, he too thinks that Article 82(2) is not a barrier and that Hans Kelsen is the answer. ( His paper covers a wider canvas, suggesting possible amendments which are breath-taking innovations - such as a kind of confederacy of states - which presumably can also be accomplished through Kelsen's theory.)
Considerations of space preclude a detailed response to the arguments that have been advanced. But the following comments appear to be adequate to indicate why these approaches are deeply flawed.
(1) Sovereignty of Parliament.
To begin with, it was Dicey who argued that sovereignty was the very keystone of British constitutional law. It is not correct to say as 'Wilson does that Jennings argued that Acts of Parliament cannot bind any succeeding Parliament. In fact he contended the contrary as seen from the following:
"Legal sovereignty is merely a name indicating that the legislature has for the time being power to make laws of any kind in the manner required by the law.(my emphasis) That is, a rule expressed to be made by the Queen "with the advice and consent of the Lords spiritual and temporal, and commons in this present Parliament assembled, and by the authority of the same" will be recognized by the courts, including a rule which alters this law itself. If this is so, the "legal sovereign" may impose legal limitations upon itself, because its power to change the law includes the power to change the law affecting itself."
(Law and the Constitution 5th Ed pgs 152-3)
"Suppose that there is an incipient republican movement ( as there was a century ago) and Parliament passes an "Act for the protection of Her Majesty's Throne" providing in effect that (1) Her Majesty shall not be deposed by Act of Parliament unless the Bill for that purpose, after receiving the assent of both Houses, is approved by the electors in a referendum, and (2) this Act shall not be repealed except by an Act similarly approved. What is now the law? Clearly, that some Acts can receive the Royal Assent with the consent of the House of Commons alone, provided that the manner and form provided by the Parliament Acts is observed; that most Acts can receive the royal assent by consent of Lords and Commons in parliament assembled; but that an Act for the deposition of Her Majesty, or an Act which repeals the Act for the protection of Her Majesty's Throne, requires the consent of the House of Commons, the House of Lords, and the electors." (Ibid pg 161)
Jennings cites the cases of Attorney General for New South Wales v. Trethowan and the South African case of Harris v. The Minister of the Interior. In both cases it was held that the legislature was bound by provisions imposing restrictions and prescribing the manner and form of law making.
In fact the Privy Council took the same view in Bribery Commissioner v. Ranasinghe (1965) as far as Sri Lanka was concerned, holding that the two thirds majority rule for constitutional amendment was mandatory and the law was consequently invalid. In fact as far as the U.K. Parliament is concerned the weight of opinion is against the traditional view of sovereignty expounded by Dicey. They are such well-known authorities as R.F.V. Heuston, Geoffrey Marshall, J.D.B.Mitchell and S.A.de Smith while H.W.R.Wade is a dissentient.
As far as the Commonwealth is concerned, the cases cited above point to a distinction between those rules which govern the composition of the Legislature and the procedure relating to the making of the laws on the one hand and those which may demarcate the area of power of the sovereign legislature.
According to the sovereignty doctrine the courts can determine any alleged violation which touches the first category of those rules viz. those relating to composition and procedure, but are inhibited from determining the question whether a sovereign legislature has exceeded the area of power. Article 82(2) is a provision which clearly relates to the first category i.e. "manner and form" of legislation and is binding on successive Parliaments as well, until altered in the manner provided for and does not offend against the doctrine of Parliamentary sovereignty in so far as it applies to Sri Lanka. No case can therefore be made out that the requirement of a two-thirds majority for constitutional amendment contradicts the sovereignty of the legislature and may be dispensed with on this ground. If constitutional guarantees are not to prove ephemeral promises they need to be secured against alteration by simple majorities of the legislature.
With the devolution of legislative powers to the Regional Councils, to be enjoyed on an exclusive basis in the proposed scheme ( vide Article 137(1) in the Draft of October 1997), Parliament will cease to enjoy the traditional plenitude of power and be confined to an area of authority provided for in the Reserved List ( Article 93(1) of the Draft) and accordingly cease to be a sovereign legislature in the traditional sense. Draft Article 164(1) read with Article 167(1) confers on the Supreme Court special jurisdiction to determine whether any Bill or any provision thereof is inconsistent with the Constitution. These provisions show that the traditional doctrine of Parliamentary Sovereignty which is a common law doctrine, would be inapplicable in Sri Lanka. (There are corresponding provisions even in the present Constitution)
If Wilson's argument in regard to sovereignty is to be taken at its face value, the proposed scheme of restructuring to convert the present unitary model to a federal or quasi-federal one would prove illusory or at any rate a short lived experiment, subject to the vagaries of populist opinion. If as impliedly argued by him, the sovereignty of Parliament is so sacrosanct a doctrine then federalism would remain for ever a distant dream as any entrenchment of provisions curtailing Parliament 's powers would not be possible - a prospect that would surely have startled the founder of the Federal Party. The answer to Wilson's question whether the Parliament of 1977-78 could have inserted a clause in the Constitution: "This Act cannot be amended under any circumstances" is that such a provision is not simply a restriction or regulation of the amending power but a total deprivation or denudation of the power and therefore not binding on Parliament which is vested with the sovereign power of the People to make laws. Article 4(a) and is contradictory of it, unlike Article 82(2) which merely regulates it.
It seems logical at this point to consider the doctrine of necessity and thereafter Kelsen's theory.
Doctrine of Necessity
The facts and circumstances of the Cyprus Supreme Court decision in Attorney-General v. Mustapha Ibrahim cited by him under this rubric reveal the contrast in the fact-situation prevailing in the two States , which makes it impossible to invoke the doctrine in Sri Lanka to-day as the facts do not warrant such action in order to by-pass the prescribed amending procedure. The highest court in Cyprus could not legally function at all because the stipulation as to its composition could not be complied with by reason of the deliberate withdrawal of the Turkish Judges, creating a situation of emergency precluding the exercise of judicial power, which was irremediable through any constitutional mechanism.
The limits of this doctrine as expounded in the relevant cases may be conveniently summarised. It may be applied under the following conditions as stated by Josephides J in that case:
an imperative necessity arising from an imminent and extreme danger affecting the safety of the State or society.
The deviation from the law must be proportionate to the need for action i.e. it must be reasonably warranted by the danger which is was intended to avert.
It must be of a temporary character limited to the duration of the exceptional circumstances.
There must be no alternative mode of meeting the exigency.
The incapacity of the authority empowered to act must be of a temporary nature.
Applying these criteria how can anyone plausibly argue that the situation in Sri Lanka has reached such a critical point of constitutional breakdown as to warrant dispensing with the requirement of a two-thirds majority? The opinion of Jennings as to the scope of this doctrine with reference to the constitutional problems in Pakistan, in his book by that title,is quoted in the Madzimabamuto case:-
"The principle clearly emerging from this address of Lord Mansfield is that subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the constitution, the state or the society and to prevent it from dissolution, and affirms Chitty's statement that necessity knows no law and the maxim cited by Bracton that necessity makes lawful (that) which otherwise is not lawful"
The conclusion finally reached by him is at p.307 in these terms:
"The manner in which such power is exercised, whether in individual cases or by positive directions or restraint orders of a general character, is essentially a question of method and detail, not affecting the main principle. The emergency legislative power, however, cannot extend to matters which are not the product of the necessity, as for instance, changes in the constitution which are not directly referable to the emergency"
What then is the rationale for embarking on an extra-constitutional path of amendment? From the absence of a reasoned case for this extra ordinary step one is left wondering whether the mere inability to realise the fulfillment of what Marasinghe calls " the most noble of intentions" alone would suffice to subvert the Constitution of a functioning democracy, hoping that the change would be efficacious through the voluntary adoption of the new legal order or ensuring its effectiveness through some form of benevolent coercion of a degree that is not entirely incompatible with " the most noble of intentions". In the current state of affairs, this theoretical ground is only of academic interest and has no practical bearing as far as Sri Lanka is concerned and is a mere fig leaf to cover a naked illegality.
Kelsen's Theory stands on a different footing altogether from either of the two factors considered above. In certain circumstances the doctrine of necessity may furnish a rationale for establishing a Constitution that does not come into existence through modalities that are expressly provided for this purpose in fulfillment of a laudable purpose in an emergency. On the other hand what is held out as the new Constitution and a revolutionary change in the legal order may be simply a naked usurpation of power by an avowed dictator through a coupd'etat which in the absence of opposition acquires efficacy and to which obedience is owed not voluntarily but in consequence of a policy of coercion and repression of opposition with no pretensions to claim the high moral ground as in the former. Even in such a case Kelsen's theory of law which is ethically neutral clothes it with the mantle of legality. The benefits of Kelsen's theory like the rain from the heavens falls on the just and the unjust in equal measure. Once the essential change has acquired a " minimal degree of efficacy", whatever that means according to Kelsen, the change of rule represents the basic norm on which the new legal order rests and his theory of law merely gives the juristic explanation as to why it has the characteristic of legality, despite its extra legal or illegal origin.
If the legality of the change in the new basic norm is challenged, then it is the court and the judges who preside over it, not learned academics, who must determine whether there was reason for the change and whether it has acquired the requisite degree of efficacy before it is given the stamp of legality and validity. The cases in which the issue came up for decision reveal the unenviable task of the Judge and the moral dilemma he is confronted with in the face of ambiguities often involving the safety of the State and its People and in other cases his own personal security, not to speak of his continuing tenure as a judge.
It is incorrect to designate Kelsen's theory of law as his theory of efficacy because efficacy was only a condition postulated for the creation of the basic norm and he did not himself enunciate a theory of efficacy, meaning an exposition of the criteria, according to which, a legal order became efficacious. Hence the division of opinion on this very issue between the South African Appellate Division and the Privy Council in Madzimabamuto v. Larder Burke.
It is significant that Kelsen's theory of law is morally neutral, called by him the "Pure Theory of Law," being a system that was autonomous and self-contained and conceived in purely legal terms and postulated in terms free from moral and social values. As Marasinghe himself observes Kelsen's concepts could be appropriated both by "miscreants" (meaning according to the dictionary vile wretches and the depraved) as well as those with "the most noble motives" Kelsen did not explain what kind of "efficacy" was envisaged for the new regime to acquire legality. The system could be efficacious through authoritarianism and coercion or through free submission or voluntary compliance. Since differing opinions were possible as to when the legal order is efficacious, depending on one's appreciation of the facts, it was not a pure or abstract theory unrelated to empirical facts. As Wolfgang Friedmann points out:
"How can the minimum of effectiveness be proved except by an inquiry into political and social facts ? And this implies the necessity of a further political choice. Does the obedience of the majority or of an enlightened minority or sheer physical force decide? Whatever the answer, purity here ceases " (Legal Theory - 5th Ed pg 285)
Assuming an extra-constitutional method is adopted, given the vigorous public debate that has gone on for months in Sri Lanka , not merely on the technical aspects of the scheme but on its political desirability as well, and the resultant polarisation of views ever since the proposals were made public, if an extra constitutional approach to its implementation were to be adopted, how is the question of efficacy to be decided? Neither of the two proponents of Kelsen's theory gives any indication as to this, if a state of chaos were to ensue.
Both writers seem to embrace the case of State of Pakistan v. Dosso but seem to overlook the fact that the case has been overruled by the Supreme Court of Pakistan in Asma Jilani v. Government of Punjab in 1972. To refer to some of the critical comments on Dosso by the Judges in the later case seems appropriate considering the unstinted admiration apparently evinced for Kelsen by these two writers. It seems to me that the cardinal error made by these two writers was to think that Kelsens' theory enunciated a proposition of law and not a proposition about law.
Thus Hamudoor Rahuman CJ pointed out in Asma Jilani:
"Kelsen was only trying to lay down a pure theory of law as a normative science consisting of "an aggregate or system of norms". He was propounding a theory of law as a "mere proposition about law". He was not attempting to lay down any legal norm or legal norms which are the daily concerns of judges, legal practitioners or administrators……… In his early works this distinction was not made clear but in 1960 he attempted in his book "Rechtslehre"to clarify the confusion by pointing out, as Julius Stone observes, "that the proposition of the pure theory of law are mere jurist's propositions about law and they do not bind the Judge, in the way in which legal norms bind him" Kelsen himself conceded this when he replied to Stone in an article in the Stanford Law Review.
(Vol XXIV All Pakistan Legal Decisions 139, at 179.)
...Yakub Ali J in the same case regretfully observed:
"The judgement in State v. Dosso set the seal of legitimacy on the Government of Iskander Mirza though he himself was deposed from office by Muhammad Ayub Khan a day after the judgement was delivered on the 23rd Oct 58 and he assumed to himself the office of the President ………
As a commentator has remarked, a perfectly good country was made into a laughing stock. A country which came into being with a written Constitution providing for a parliamentary form of government with distribution of State power between the Executive, Legislative and the Judiciary, was soon converted into an autocracy and eventually degenerated into military dictatorship"
(ibid at pg 219)
The judge cites Laski who pointed to the limitations in Kelsen's theory.
"The jurist here is engaged in a purely formalistic analysis. He excludes from his field of discourse all considerations of what is ethically right or socially expedient and considers only as law what emanates from a well whose sources may be traced to the sovereign"
(The State in Theory and Practice)
Later on in the judgement Yakub Ali J is even more forthright in his denunciation of Kelsen's theory:
"Kelsen as a legal philosopher excluded from his theory of Pure Law psychological, historical, sociological and ethical considerations. He is not mindful as to how many revolutions take place in a country or into how many bits it falls apart as a result of his theory of victorious revolution and successful coup d'tat as law making falls. Society however, will not countenance such a phenomenon with equanimity. My own view is that a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law making. May be that on account of his holding the coercive apparatus of the State, the People and the Courts are silenced temporarily, but let it be laid down firmly, that the order which the usurper imposes will remain illegal and the Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone serves as a deterrent to would be adventurers. (ibid 242-43) Perhaps, it did not occur to those who commend to those in authority the adage, "where there is a will there is a way", that among the perils on "the way" advocated could be a trial on a charge of treason, if the expected efficaciousness of the new order does not materialise. Needless to say that all this is alien to the spirit of the imprecation with which both the 1972 and 1978 Constitutions end: raja bhavatu dhammiko. Considering the political turbulence often prevalent in the countries in which the judgements cited were rendered and from which the writers seem to draw inspiration - Nigeria, Ghana, Uganda and Pakistan - in its dark era - few would think that they serve as role models for emulation in Sri Lanka.
If legitimacy can be so easily acquired, there being no dearth of ambitious regional leaders,ere long, we may see in the Island a congeries of States and a multiplicity of grundnorms vying for recognition with conflicting claims of efficacy, guaranteed to bring about "the break up of Sri Lanka."
A word may be said about "autochthony" (though it is not separately discussed) since both writers seem to draw support from the example of the 1972 Constitution which made Sri Lanka a Republic for the first time after centuries of monarchical rule. It was not a law enacted by the Legislature functioning under the Constitution Order-in-Council of 1946 ( as amended) and the Independence Act of 1947, but adopted by a body, styled a Constituent Assembly, following a mandate received at the general election of 1970, designedly refraining from following the amending procedure in the Order-in-Council. In adopting this course Sri Lanka was following earlier examples of changes made in Ireland in 1937 India in 1950 and Pakistan in 1958, which through the legal device of severing the legal nexus established themselves as Republics, avoiding any semblance of legal authority traceable to or derivable from the U.K. Parliament and requiring no assent to the constitutional texts from the Queen or her representative to become law .
Through this break in the legal order in the procedure adopted in 1972 not only was Sri Lanka satisfying nationalistic sentiment by showing that the new Constitution was a homegrown product, rooted in our own native soil, it also sought to negate the consequences of a suggested legal incapacity on the part of the existing Legislature to repeal or amend the Constitution Order-in-Council, flowing from certain obiter dicta of Lord Pearce in the Privy Council in Bribery Commissioner v. Ranasinghe ,which the then Minister of Constitutional Affairs treated far more seriously than was warranted in law. Once an autochthonous Constitution comes into existence, unless that country loses its Independence and once again becomes subject to alien rule, there is no room to fall back on this precedent, being a unique and unrepeatable event and affords no parallel for the adoption of a similar course of conduct in a different context altogether.
Finally, it must be said that it is a matter for surprise when those who blithely suggest an extra-constitutional procedure as a way out of a difficulty, which after all is not a unique phenomenon in a democracy, do not pause to consider the implications and the inescapable consequences of a disregard of a vital mechanism that guarantees a sense of security and affords protection for important interests and values which are safeguarded by the Constitution.
Any disregard of the imperative requirement of the two-thirds rule would undermine for ever the credibility of even future guarantees solemnly assured by the Constitution after laborious negotiations.
The disregard of mandatory provisions of the Constitution for reasons of political expediency in the short term will render nugatory the fulcrum of the whole constitutional machine and strike at the very root of all constitutionalism in Sri Lanka and would in the long run endanger the future of democracy in this country. It is unlikely however that those who are entrusted with the responsibility of decision on this vital question despite a degree of impatience that is natural in the circumstances , would be charmed by this siren song and plunge headlong into the abyss.
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