REFLECTIONS ON CURRENT CONSTITUTIONAL DEBATE | Daily News

REFLECTIONS ON CURRENT CONSTITUTIONAL DEBATE

 

 

 

 

 

 

There is apparently a multitude of views particularly among lawyers as regards the action of the President of Sri Lanka to sack the Prime Minister and dissolve Parliament. There are broadly two schools of thought one strongly opposing the presidential course of action, while the other maintaining that the President has acted within his limits of power.

The bane of contention among the opposing faction of the Presidential action is that notwithstanding the inherent flaws and serious errors of inconsistency the procedure set forth in the 19th Amendment to the constitution should be upheld. Further the appointment of a new prime minister, the sacking of the former prime minister and the dissolution of Parliament are contended to be a breach of the fundamental provisions of the constitution.

The other group who approves Presidential action maintains that the Presidential action is well within the provisions of the 19th Amendment to the Constitution despite the ridiculously flawed, erroneous and utterly inconsistent procedures engulfed in the clauses of the 19th Amendment to the constitution. These two rival camps could well argue the legality or otherwise of the Presidential action for the next one and a half years at least.

Political convictions

However what seems to be abundantly clear in the debate is that the majority of the divide is biased one way or the other based on their political convictions. There are leading lawyers and academics representing the divide. They write lucidly on their convictions with perhaps a stint of bias. The UNP parliamentarians and their diehards are opposing the Presidential action not necessarily on legal grounds but merely because they have to protest the sacking of their prime minister and ensure maintenance of the existed status quo. It was revealed in newspapers and over the air that at least two of the ardent supporters of the opposing camp had been on the pay list of the UNP, one a vociferous Buddhist monk and the other a leading academic who was connected with the drafting of the good governance policy.

The TNA with only 14 members comprised the main opposition and held the post of the leader of the Opposition in the previous government. Although one would expect them to be watchdogs in parliament they appear to be “pussy cats” agreeing with all what the previous government says. It is apparent that they have a hidden agenda to work on. The JVP on the other hand has turned out to be a set of jokers contradicting their own statements and providing light entertainment by shouting from the top of their voices. It is hoped that the voters will respond appropriately on their tom foolery at a future election.

Presidential action

On the other hand it is evident that quite a large number of the clergy and the general public have endorsed the Presidential action. Further people who have been economically adversely affected by the economic policies of the previous government are up in arms against that government which has caused them undue suffering. It would be seen that the previous government spent lavishly on enhanced allowances for their parliamentary colleagues in addition to their normal dues while even the children’s savings accounts were subject to tax. It is indeed a shame that the previous government should advise foreign funding sources to suspend foreign aid to the country very well knowing that these funds were meant to benefit the people of this country and not their political rivals.

As a student of Political Science and Public Administration I wish to present a view with due regard to the legal implications of the Presidential action. The President according to the Constitution is the head of State and head of government. He has been elected by majority vote with the participation of all the voters of the country on a national basis to serve as an impartial agent of society for making the society’s conception of justice prevail in the justifiable sphere of social life depicting the sovereignty of the people.

Further the President is endowed with supreme legal authority on conditions of exercising it in strict conformity to the moral standards of society which has to be ensured by satisfactory consultation of public opinion. In this context it is important to realize that a mechanical legal order cannot explain the moral validity of justification of such an order. As Charles Dickens has observed “the law is an ass as many innocent victims have found to their horror”.

It would be rather interesting to critically examine the conduct of the organs of the government, namely the President, Prime Minister and Cabinet of Ministers prior to October 26, 2018. It is on record that the Prime Minister (PM) not only exercised his powers but increasingly made inroads to Presidential powers without discretion. It was also revealed that Cabinet decisions were made by a few and the Cabinet in general was unaware of most decisions.

The case in point is the Singapore Sri Lanka trade agreement where a majority of the ministers were at sea. This agreement was in line with the Laissez faire theory of 1776 Britain which was abandoned within a few years of its functioning. Going by these outdated economic policies the sustainability of locally produced goods was completely neglected. The lack of transparency in policy matters even within the Cabinet has been a regular feature. In terms of the socio-political and juridical norms Article 70(1) is a pious wish hanging on its own boot straps and has no influence on Article 33 (2).

In conclusion, given all the circumstances it would seem appropriate that the most sensible option is to go for a general election irrespective of all other considerations which will establish the will of the people and ensure social justice.

 


 

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