Archives

by I. P. C. Mendis

I refer to Dr. Nihal Jayawickreme's article which appeared in the issue of the Daily News of 30th December 2003 commenting on mine published on 23rd December 2003. As for some of his deductions, suffice it to say that if the cap suits him, he can put it on.

The sum total of his arguments in favour of a liberal interpretation to accommodate new social, political and historical factors, leads one to the inevitable conclusion that the existing constitution can be transformed into a Westminster type or any other type through liberal interpretation by the Supreme Court encompassing 'issues of legitimacy and morality', obviously without the need to go through the laborious process of a two-third majority or such majority plus a referendum, as the case may be.

The reference to the Supreme Court by the President is not per se mandatory although President CBK was discreet and democratic enough to do it. No-one could find fault if a President acts on his own without recourse to Article 129 (1). Such reference is necessary if a question of law or fact has arisen or is likely to arise that it is expedient to obtain the opinion of the Supreme Court.

The sole arbiter on that score is the President. Whatever decision the President takes, he enjoys immunity from suit under Article 35 (1). It therefore follows from Dr. J's logic that a President himself is entitled to give life through his own liberal interpretation without making the constitution a "museum piece".

In-so-far as his theory is discernible, a President can play a Jekyll and Hyde role - one as an Executive President and the other as a Ceremonial President depending on which party is in power. Indeed, a "thattu maru" system, and the Supreme Court needs to play ball if and when an issue is referred to it. Assuming that the Supreme Court had ruled in favour of the government position in the recent case, could there be different decision in case the President's party comes to power and the incumbent President would wish to exercise the relevant executive powers enshrined in the constitution? The entire process would make a mockery of the judicial system and the constitution itself!

One factor on which he bases his reasoning is an utterance by former President JRJ on which he seems to have total confidence. Whether the people would be willing to bank on such 'obiter dicta', particularly in the context of JRJ's infamous referendum and the resignations he had in his pocket, is another matter. In any case, such arguments have no value in a serious debate.

He also relies on Article 43 to prove that it is not the President but the Cabinet of Ministers drawn from Parliament that is charged with the direction and control of the government and collectively responsible and answerable to parliament.

Indeed, he knowns too well that interpretation of constitutional or other legal provisions cannot be made in isolation, in-as-much-as he says that interpretations go beyond the letter of the law. Article 43 has to be read in conjunction with Article 4 dealing with separation of powers. If not, the need to deal with the President and the Cabinet of Ministers separately through Article 42 and 43 (1) would not have arisen.

There is no mandatory provision for the President to hold the defence portfolio, he argues. He compares Article 4 (b) which states that the executive power of the people, including defence of Sri Lanka, shall be exercised by the President to similar provision in the 1972 constitution ignoring the fact that Article 33 (e) empowers him/her to declare war and peace.

The present crisis came to a head when Minister Marapone published the particular gazette notification under his hand without consulting the President, which the Supreme Court opined to be illegal, invalid and of no force and which Dr. J. contends to be a mis-interpretation by the SC.

His attempt to draw comparisons with President Gopallawa's functions under the 1972 constitution or even the Soulbury Constitution, is a puerile attempt to make these constitutions "living instruments" and not relegate them as "museum pieces" where they rightly belong. An important and salient factor which he chooses to ignore and the public should not fail to recognize is that President CBK was made virtually 'impotent' in regard to her constitutional powers by the government when it permitted goons to surround the Government Press, intimidate the Government Printer and his staff and prevented the gazette notice relating to the Development Lotteries Board from being published.

That actually was a clear signal that her constitutional powers, including those of prorogation and dissolution (requiring gazette notifications), can be curbed through extra-constitutional means. The President could have been reduced to much less than a ceremonial President - just a figure-head of no import! This situation alone justifies the taking over of the mass communication functions, where the government press came under the Media Ministry, if the President is to discharge her duties and responsibilities in terms of the constitution and the oath she had taken.

Dr. Jayawickreme joins issue with me that I have not answered as to why the SC judgment in regard to the 19th amendment held that a referendum also would be necessary. I would not be so presumptuous as to give answers on behalf of the Supreme Court. One should not attempt to cast doubts in the minds of the people of this country about the highest rung of the judiciary with discipline in the country now at its lowest ebb.

Here was a 07 Bench unanimous judgement by the Supreme Court which possibly over-ruled an earlier 05 Bench majority decision, which is acceptable in the judicial system. The decision should be accepted with grace. Sadly, it was mis-conceptions of the new social and political will that some misguided persons sought to enter the Parliament assembly hall and occupy the Speaker's chair in 1956. Indeed, one swallow in the constitutional field does not make a summer!

www.ceylincoproperties.com

www.ppilk.com

www.crescat.com

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries

Produced by Lake House
Copyright © 2003 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager