The Constitution, the Judiciary, and Citizens

PROF. JAYADEVA UYANGODA- 11/27/2018

My wife, like many of her fellow citizens these days, has become very interested in learning about our Constitution and its 19th Amendment. She even borrowed from me a copy of the Constitution to read. The other day, she forwarded to me a social media post that carried a quote from Abraham Lincoln. It read as follows:  “We the people are the rightful masters of both Congress and the Courts, not to overthrow the Constitution, but to overthrow the men who would subvert the Constitution.”

Meanwhile, a friend, who is in regular touch with the Tamil and Muslim political parties, told me: “ You know, they (the minority parties) are extremely worried about the way in which President Sirisena is treating the constitution.  Minorities cannot fully trust politicians and their promises, whether they are in the UNP, SLFP or any other party. They can only trust the Constitution; therefore, for them it is the Supreme Law of the land. That is why they feel that the constitution should be held inviolable. “ I agreed. “If the Constitution is abused so blatantly and interpreted so haphazardly by people in power, what is the state institution they can trust?” asked my friend to whom I answered: “Well, the Supreme Court is the last bastion of democracy for all citizens. If it fails, we all will fail, both the majority and the minorities ”

Citizens as Third Party

Sri Lanka’s political crisis has now come before the courts –the Supreme Court and the Court of Appeal – for arbitration. Each side engaged in the ongoing power struggle obviously expects the judiciary to rule in its favour.

Yet, there is a third party, a silent party, to this litigation that is not represented by counsel. That party are the citizens, ‘rightful masters’ of the executive, parliament and the judiciary, according to Articles 3 and 4 of the constitution, which will no doubt be cited in these cases quite fervently by the lawyers on behalf of their clients. Citizens can only expect that the judges are the counsel for the citizens and their rights, unsolicited defenders of their rights, freedom, democracy, and ultimately the democratic future of generations to come.

This unique role for Sri Lanka’s judiciary, as expected by citizens, has come into being under specific circumstances that have also provided the political context for the current constitutional controversy. The sudden removal of a sitting prime minister and appointment of a new one, and a week later, the dissolution of parliament by the head of the executive, by virtue of the authority given under general clauses of the constitution, and ignoring other substantive clauses that defined the ways in which the executive powers should really be exercised in concrete circumstances, created a massive constitutional confusion.

 From Confusion to Havoc

This confusion soon led to a situation of havoc when some leading lawyers and a retired chief justice explained and justified the three actions of the President by arguing that some ‘loopholes’ in the 19th Amendment had opened the doors for such unilateral action on technical grounds.

Now, citizens who have earlier been told by legal scholars, such as former law professors, to view the country’s Constitution as the ‘supreme law of the land’ and hold it as embodying  ‘a sacred covenant’ between the rulers and the ruled, were perplexed by this approach to the constitution. Is a constitution to be understood in relation to its linguistic or technical loopholes, or on the basis of its normative foundations and core conceptual assumptions? What is so supreme or sacred about a constitution, which we learn in the secondary school to right with capital ‘C’, if it is interpreted with reference to its so-called loopholes? Obviously, this is an issue that will come before the judges for contemplation and determination in the days ahead.

Core Values

Now, delineating the normative foundations and core values of Sri Lanka’s present constitution is also a task before the court given the conflicting approaches to the constitution pursued by different parties to the present controversy.  Core values of a democratic constitution define not only powers of each organ of the state and individual who hold political power, but also limits of the scope as well as the exercise of constitutionally authorized power.

The absence of an intellectual tradition of constitutional values and constitutional morality in our country, unlike in the neighboring India, makes the task all the more difficult.

This in a way offers a historical opportunity for our Supreme Court to make use of the current constitutional litigations to at least lay down the basic principles of constitutionalism and constitutional morality that should govern the rues and limits of the exercise of political power by those who hold it.

Two Approaches

There are two main approaches of constitutional interpretation in contention. The first, advanced on behalf of the head of the executive, is to interpret the clauses of the 19thAmendment as a minor tinkering the original 1978 Constitution as well as the 18th Amendment. This approach makes the argument that the 19th Amendment retains unaltered the basic framework of the executive presidential system, introduced by the 1978 original constitution and later enhanced by the 18th Amendment, and therefore the three actions by President Sirisena in late October and early November were well within the presidential powers entitled to him.

This approach, in effect, seeks to bring back, and revalidate, the 18th Amendment, through the backdoor. That, of course, is also the objective of those who vehemently opposed the constitutional reforms brought about by the 19th amendment in 2015. The other approach proposes the view that the 19th Amendment (a) substantially reduced the powers of the President as defined by the original 1978 constitution and enhanced by the 18th Amendment, and (b) created a Cabinet and a Parliament, free from arbitrary and unilateral control by the head of the executive.

In other words, the 19th Amendment is credited to having created a new balance of institutional power between the President, Prime Minister and Government, and Parliament, while retaining a limited range of transitional powers for the office of the President until his terms comes to an end. In this new balance of institutional power, presidential action in appointing a Prime Minister, removing a Prime Minister from office, and dissolving Parliament are not discretionary or absolute, but conditional to limits that are set out in the constitution itself.

Full Circle

As citizens, we do not know how the Court will respond to these two contending approaches to the present constitutional controversy. But citizens, as holders of sovereignty, have every right to expect that the Court’s determination will advance the interests of the country’s contemporary democratization process that began with a widely held political argument that Sri Lanka’s presidential system, introduced by the 1978 Constitution, should be either totally abolished, or substantially reformed.

Meanwhile, the enhancement of Presidential powers through the 18th Amendment was not the outcome of a popular demand on grounds of democratization. On the contrary, it was a wish fulfillment of one leader who happened to be the country’s President at the time. And it damaged Sri Lanka’s democracy, and citizens’ rights and freedoms, and democratic institutions, including the judiciary, in a manner that citizens still struggle to forget.

Now, Sri Lanka’s stakes for democratization has come full circle. Should the country see the dreaded 18th Amendment being brought back through the backdoor and watch how the gains of the democratic struggle, however limited they are, reversed once again because of the whims an fancies of another individual in power?

Citizens of Sri Lanka have a right to hope and pray that their judges, in this moment in which their democratic destiny is at the crossroads, will make the right decision.