The political impasse created by the Constitutional crisis in the country has cast a great responsibility on civil society in general and professionals in particular. While the political actors fight it out, it is civil society, by virtue of its independent character, and the professionals, by virtue of their professionalism, who can guide the public [...]


Civil society has vital role to resolve Constitutional crisis


The political impasse created by the Constitutional crisis in the country has cast a great responsibility on civil society in general and professionals in particular. While the political actors fight it out, it is civil society, by virtue of its independent character, and the professionals, by virtue of their professionalism, who can guide the public with regard to the implications of the events of October 26, and the impact on the Rule of Law.

While political parties pursue their respective political agendas, it behoves on civil society and the professionals to influence the Constitutional discourse in the correct direction, in the larger interests of the country. They are well positioned to do so, through an objective and non partisan approach devoid of political agendas and therefore, help the public make informed judgements on recent events.

If the whole matter is looked at as a Constitutional issue, rather than a political one, it will be clearer to understand and therefore, resolve. The first question to ask is whether President Maithripala Sirisena’s removal of incumbent Prime Minister (PM) Ranil Wickremesinghe (RW) is in accordance with Constitutional provisions, and second, whether the appointment of Mahinda Rajapaksa (MR) as PM, Constitutionally valid.

The conclusion that both, civil society and the professionals, come to, must not only reflect the letter, but also the spirit of the Constitution. For this, one cannot look at the individual provisions in isolation, but view the Constitution as a whole, with special emphasis on the 19th Amendment which changed the Constitutional architecture in a fundamental manner, by transferring some of the powers of the President to Parliament and the PM.

The letter purporting to remove RW from the office of PM, stated that the President is doing so in the exercise of his powers as the appointing authority, in terms of Article 42 (2) of the Constitution. The power of removal is based on the provisions of the Interpretation Ordinance which states that an appointing authority will also have the power to dismiss the appointed person.

However, Constitutional experts point out it is settled Law (as determined by several Supreme Court decisions) that the provisions of the Interpretation Ordinance do not apply to Constitutional provisions. For a clearer discussion of the issues involved, one may read Dr. Jayampathy Wickremeratne’s article on the subject, in the Island newspaper of November 2, 2018.

One can safely assume it was the inability of the President’s Legal advisers to identify a Constitutional provision enabling him to remove the PM, that they advised him to do so in terms of the Interpretation Ordinance. Subsequently, other reasons have been adduced, such as the withdrawal of the UPFA from the National Government as well as the discrepancy between the Sinhala and the English versions of the Constitution. These reasons are, however, afterthoughts and, in any case, not supported by the provisions of the Constitution.

It is therefore, crystal clear that, when the President purported to remove RW from his position as PM, he was seeking to do so in accordance with the provisions of the Interpretation Ordinance which, as stated earlier, do not empower the President to do so.

What if MR was the incumbent PM and had been ‘removed’ in a similar manner by the President, and under the same provisions of Law, would the situation have been different. Such a purported removal by the President would most certainly have been wrong and civil society and the professionals, in their capacity as independent and non partisan actors, would have objected with equal vehemence to such actions of the President.

The other aspect of the process that has to be examined is the purported appointment of MR as PM, by the President acting under Article 42(4) of the Constitution. The President’s power to appoint the PM is not absolute and is limited by his opinion that the latter individual “is most likely to command the confidence of Parliament.”

If one assumes for the purpose of argument, that the purported removal of RW is Constitutional, the President could still not have formed the opinion that MR was “most likely to command the confidence of Parliament”, because there is no evidence, in fact, not even a slight indication, that the numerical equation in Parliament had changed in favour of the former President.

This conclusion is further confirmed by the fact that, despite over a week having passed since the “appointment” of MR as PM, the complete Cabinet has not yet been appointed, with the positions being filled in ones and twos, giving credence to the belief that MR does not command the confidence of Parliamen

The Bar Association of Sri Lanka (BASL), in its capacity as the professional body of Lawyers, has a national duty to intervene and shed light and guide both, the Government and the people, in this crisis situation. Unfortunately, it has not been showing any inclination to do so. A BASL statement published in Friday’s issue of the Island newspaper merely calls upon all parties to “to take all required steps to uphold the Constitution and the Rule of Law”, without enumerating what such steps are.

The country would have benefited from a much clearer stand from the BASL. The BASL could well draw on the expert knowledge of its senior Lawyers, to pool their wisdom and issue a statement embodying the collective interpretation of recent events in the light of the Constitution. It is even now not too late to do so.

In the past too, the BASL has failed in its duties to give leadership to the fight to ensure the Rule of Law. At the time of the passage of the 18th Amendment to the Constitution, the Constitutional subcommittee of the BASL merely stated that such an Amendment should not be passed as an urgent Bill, but refrained from taking a stand on the provisions of the Amendment.

This is not to say that the BASL has not taken strong positions in the past with regard to Governmental action relating to the Rule of Law. When the 1978 Constitution was adopted and several judges of the superior courts demoted and others promoted out of order, the process was described by the late Dr. Colvin R. de Silva as “monkeying with the Judiciary”, the BASL adopted a resolution condemning such action as impinging on the independence of the Judiciary.

One of the tests of a mature democracy is the manner in which power is transferred from one group to another. Sri Lanka has, over the years, passed this test successfully, by accepted and credible processes. Pulling a fast one over one’s political opponents, in contravention of the Constitution, has never been one of them.

Sri Lanka’s proud reputation as a vibrant democracy should not be sullied in any way. There are too many challenges facing the country, without dissipating its energies in self destructive pursuits of political power. It is hoped that Sri Lanka will be able to overcome the current challenge in a manner befitting our image as a respected member of the international community.


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