This week’s ruling handed down by the Supreme Court of Sri Lanka on the main Opposition Samagi Jana Balavegaya’s (SJB) confoundingly optimistic 21st Amendment Bill seeking to wholesale consign the Executive Presidency to the dustbin was predictable, some would mutter even blindingly so. Monumentally unsurprising judicial thinking The SJB Bill sought to replace the ‘Executive [...]


Constitutional hell or high water?


This week’s ruling handed down by the Supreme Court of Sri Lanka on the main Opposition Samagi Jana Balavegaya’s (SJB) confoundingly optimistic 21st Amendment Bill seeking to wholesale consign the Executive Presidency to the dustbin was predictable, some would mutter even blindingly so.

Monumentally unsurprising judicial thinking

The SJB Bill sought to replace the ‘Executive Presidential’ system with a parliamentary democracy sans a Referendum in terms of Article 83 of the Constitution. A firm judicial ‘No’ transpired to that ambitious plea. The Court responded with a familiarly conservative restatement of an old position, namely, that under the 1978 Constitution, the executive power of the People is vested in and exercised by a President elected by the People.

The Bill’s attempted subordination of the President to the Prime Minister was categorically struck down in all its various manifestations. These included clauses relating to the election and removal of the President by the Parliament as well as the stipulation that the President shall ‘always, except as provided by the Constitution, act on the advice of the Prime Minister.’ The President’s ‘loss of status’ as Head of the Cabinet and Head of the Government was ruled to require approval by the People at a Referendum along with a two thirds majority in the House.

The President was also ruled to have his nominee represented on the proposed Constitutional Council. Other aspects of the Bill decided to be violative of Article 3 read with Article 4 of the Constitution require analysis in a different space. But all this is monumentally unsurprising. In fact, I am constrained to ask if the SJB was not aware of repeated constitutional positions articulated by the Court in this regard before the party exuberantly presented its proposals to the people? The one liner witticism attributed to Einstein, ‘insanity is doing the same thing over and over and expecting different results,’ somewhat unkindly springs to mind.

A grotesque seesaw of constitutional amendments

Of course, the manner in which the vesting of executive powers in the President is ‘balanced’ and ‘controlled’ has been at the centre of Sri Lanka’s decades old constitutional crisis, the 17th, 19th, the 20th and now the 21st. At times, the Court has gone so far as to employ the odious term ‘pervasive control’ of the President in the context of the exercise of plenary executive power, including in regard to defence. Thus, it has been warned that any Minister appointed to handle defence must function within those ‘plenary powers.’

Examining the 19th Amendment Bill (2015), a three judge Bench conceded a constitutional concession in that the President is not the sole repositary of executive power. Rather, those powers are exercised along with the Cabinet. The President is answerable to Parliament in that regard. ‘Clearly the Constitution did not intend the President to function as an unfettered repository of executive power unconstrained by other organs of government,’ the judges said. Even so, permitting the Prime Minister to exercise ‘executive power’ was ruled to violate peoples’ sovereignty.

The distinction drawn was between executive powers distributed to others via the President (judicially assessed as constitutionally proper)and the absence of a link between the President and others exercising that power (which is not). In short, on that crucial distinction turns the entire constitutional wheel which has the people of Sri Lanka in a summary chokehold. The Court’s Determination on the 21st Amendment Bill (unsurprisingly) echoed much of this.

Constitutional games and real-life dilemmas

Regardless, there is a larger problem here. If Sri Lankans are generally asked to differentiate between these various versions of amendments, they would be at a loss. But what they do understand is the rude and raw fact that all powers cannot be reposed in one man or in one woman with chosen acolytes who function bereft of checks and balances. We have seen the practical cost of this, whether in relation to running the nation’s reserves to the ground or implementing a disastrous ban on chemical fertiliser even as experts ferociously opposed.

This is the bitter ‘realpolitik’ of ordinary Sri Lankans and also the reason why analysis of these Determinations has become distasteful. The cry ‘Gota must Go’ is not necessarily personalised, though there is no doubt that this President exemplifies the evils of rash, ignorant and arrogant decision-making. Indeed, the Court itself, as much as the populace, is trapped within this constitutional devil’s wheel. In fact and imaginatively so, the argument that plenary executive power, including the defence of Sri Lanka is reposed in the President has also included some wild contentions.

That includes the absurd logic that the ‘Executive Presidential’ system forms the ‘Basic Structure of the Constitution and that, therefore, it could not become law even if the special procedure laid down in Article 83 of the Constitution (viz; submission to a Referendum) was followed. This time around as well (2022), enthusiastic proponents of that logic in challenging the SJB Bill, urged the Court to rule likewise. That argument was rejected, with the Bench reminding that the procedure for constitutional amendments was clearly stipulated in the text.

Tinkering around with the constitutional text

Reliance on Indian constitutional texts in that regard, were said quite correctly not to be relevant. In passing, it is a sober thought that the Basic Structure doctrine has been famously used in India to secure and advance the fundamental rights of subjects as constitutional law students are well aware. On this side of the Palk Straits however, this thinking has been warped in arguments to entrench an Executive Presidential system which has been the veritable curse of this country. Even in 2022, it beggars belief that this argument continues to be publicly advanced.

All this goes to show that tinkering around with the text of the apex law, whether this concerns oversight commissions or restoring a far from perfect Constitutional Council (CC) does not matter a tinker’s cuss. The Government’s 21st (or 22nd) Amendment is a good example of ‘tinkering’, even as Ministers condescendingly referred to the SJB amendment as a ‘mirage.’ Even so, it is sheer lunacy to think that legal challenges referenced by the existing Constitution will yield positive results. For that, the mandate of the People must be obtained, by constitutional hook or by crook.

President Gotabaya Rajapaksa says that he will not leave, pointing back to the ‘mandate’ that he got in 2019 in total disregard of how that ‘mandate’ has now dissolved into thin air. Obtaining a contra mandate that convincingly demolishes that logic, either through an election or a Referendum is the only salvation. Meanwhile his brother, the former Prime Minister whose goons attacked peaceful protestors at Galle Face Green, his sons and hangers-on creep back to public prominence.

Is forgiveness possible for grievous sins?

In addition, his replacement Prime Minister and good friend, Mr Ranil Wickremesinghe appears to be fulfilling his part of a political  quid pro quo. The marked lack of action in regard to, inter alia, allegations leveled against him in ‘yahapalanaya’ times about which the Pohottuwa Parliament screeched to high heaven not so long ago stands as testimony. In other words, all is hunky dory in the political establishment except that ordinary Sri Lankans die or starve in an extraordinary collapse of financial systems, law and order becomes non-existent and generations of the yet unborn are condemned to perdition. 

That is of no concern to politicians begging from pillar to post for more money, much of which will go into their own pockets, I daresay. As Sri Lanka’s Foreign Affairs Minister asks for understanding on the world stage, his Government must first plead for forgiveness from the people whom they have so grievously offended. At some point, the tide will turn and violently so. People dying in hospitals, in fuel and gas queues today are not politicians, judges or lawyers.

Perhaps we would do well to remember that warning.

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