24 November 2018

The Supreme Court and Constitutional Clarity


Sooner or later, one way or another, the political crisis will be resolved. It is interesting but ultimately of less importance to speculate on how and when it happens, who wins out and who the losers would be. It would be beneficial if resolution arrives along with clarity on important aspects of the constitution, in particular the contentious articles embedded int eh 19th Amendment, clearly authored, perused and approved by people hampered by lack of expertise, integrity and foresight.

But first, let’s address a couple of issues that are being debated right now: the issue of ‘majority’ and that of a possible Presidential Election.

The Constitution is clear on the second matter. It is only if the incumbent seeks a second term that he or she can go for an election at the completion of four years. With regard to the first, the question is one of legitimacy, i.e. who has the confidence of a parliamentary majority. A quick perusal of the results of parliamentary elections since 1994 would show that except in 2010, when the United People’s Freedom Alliance (UPFA) won 144 seats (127 on district basis and 17 from the national list), the ‘winners’ always had to seek the support of smaller parties to cobble together a majority in Parliament.

In 1994, the People’s Alliance (PA) won 105 seats whereas the United National Party (UNP) got 94. In 2000 the PA had 107 seats while the UNP secured 89. In 2001, the UNP had 109 and the PA just 77. In 2004, the UPFA had 105 and the UNP 82. In 2015, the UNP had 106 and the UPFA 95. Today, following shifting political loyalties, the UNP and UPFA have roughly the same numbers. A majority, therefore, would require the particular party to obtain the support of some of the 24 MPs belonging to the other parties represented in Parliament.

The Janatha Vimukthi Peramuna (JVP), which has 6 MPs, voted for the motion of no-confidence brought against Ranil Wickremesinghe earlier this year. While the JVP has expressed strong objection to the appointment of Mahinda Rajapaksa as Prime Minister, the party has not changed its stance on Ranil Wickremesinghe. The Tamil National Alliance (TNA), with 16 MPs, has stated that it will not be part of any Government led by either the UPFA or the UNP. As such, neither the UNP nor the UPFA can claim to have the numbers to form a majority government. Needless to say, it is easy to gather signatures exceeding 112 voicing objection, but extremely difficult to do so in affirmation of any particular individual. A better method of finding out who is best suited to be Prime Minister would be to compare the ‘ayes’ instead of the ‘nays’.

Another important factor that needs to be kept in mind is that minority governments are not necessarily disasters although they do indicate a certain lack of political stability. They are vulnerable on account of defection that may give the second largest group in Parliament an opportunity to defeat a budget and orchestrate dissolution leading to a with-momentum election. This happened in 2001 to the PA.

The point is that the ‘majority-issue’ is not an extraordinary one. It has asserted itself as such solely on account of the so-called national government falling apart and President Sirisena sacking Wickremesinghe. The shenanigans in Parliament following the Supreme Court deciding to grand an application against dissolution leave to proceed are disgusting and every single MP including the Speaker have been party to that ungainly spectacle, either on account of rank rowdyism, blatant thuggery and (in the case of the Speaker) a deplorable departure from accepted procedure on motions and this, quite in contrast to the decorum with which similar motions brought against Wickremesinghe and Ravi Karunanayake.

Regardless of how all this resolved, what it important is to obtain constitutional clarity on two matters: the appointment and removal of the Prime Minister, and dissolution of Parliament. It is now apparent that the constitution is ambiguous on this. It is clear that the 19th was a document fraught with error. Political expedience pertaining to the tenuous nature of cohabitation seems to have framed the thinking of the authors of the document. The plight of a UNP Prime Minister in a situation where a non-UNP President reneges has clearly been the concern ‘addressed’ in articles pertaining to the appointment and removal of the Prime Minister, concerns which were also informed in all likelihood by the memory of President Kumaratunga taking over key ministries on November 4, 2003, leading to the overthrow of that Ranil Wickremesinghe led Government.

Constitutional provisions should be more robust. They should not be about putting in mechanisms to safeguard parochial interests. Those who drafted needed to have seen beyond party interest and the needs of the particular political moment. In other words, they should have anticipated situations such as the one we have right now or else situations where governability is seriously compromised on account of a gross mismatch between parliamentary composition and popular will (or, put another way, loss of mandate).

Dissolution. Here the ambiguity is obvious. The 19th, in the end, went around the Supreme Court’s objection by inserting a dissolution clause. Article 70(1) in the 19th Amendment violates the third observation of a determination delivered by a 7-member bench of the Supreme Court in 2002 on the ‘dissolution-powers’ of the President. It would be useful to revisit all three observations which President’s Counsel Samantha Ratwatte has detailed in an article titled ‘Avoiding repugnancy the need of the hour to protect sovereignty’:
1. The dissolution of Parliament is part of the exercise of executive power vested in the President.
2. Such power cannot be alienated, in that, it cannot removed from the President and be vested in the Parliament.
3. The restriction of that power can be done up to a maximum of half the period of Parliament and if a restriction is placed beyond half , it would amount to alienation and therefore, such a restriction would violate the inalienable sovereign executive power of the people set out in Articles 3 read with 4(b).

Ratwatte argues that this binds the Supreme Court and that any interpretation of the Constitution has to be done necessarily in line with this judgment.

The Supreme Court has, on occasion, observing ambiguity, delivered rulings which, in effect, override constitutional wording and are treated as constitutional and legal. The stipulation in the Second Republican Constitution that anyone can be appointed a judge was ‘amended’ in that manner, when the Supreme Court interjected a minimum standard, that of the candidate being at least an attorney-at-law.
Similarly, this is a moment when the Supreme Court needs to heed the overwhelming concern of the general public on these two matters. In short, it needs to respond to the question, ‘where is the clarity?’ and proceed to delivery clarity.

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Malinda Seneviratne is a political analyst and a freelance writer. malindasenevi@gmail.com.
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