THE CONSTITUTIONAL CRISIS
It is clear that Sri Lanka is in the middle of another constitutional crisis. The eighteenth amendment and the nineteenth amendment to the constitution will not see the light of the day. They have been eclipsed or swallowed by Rahu. Mr. W. J. M. Lokubandara was forced to present the nineteenth amendment to the parliament during the Rahu period of the day and it appears that the Rahu period of the government has begun. Mr. Lokubandara who was in the dark about the MOU, even after the MOU had been signed he made a statement in the Parliament to the effect that there was no MOU, is now in the dark on a possible general election. He has been eclipsed by Milindas and Lakshmans though he continues to hold the position of the leader of the house. Whom should be blamed for the debacle of the government? Mr. Lokubandara, Rahu or the three golden brains behind the nineteenth amendment, namely, Mr. Choksy an eminent lawyer, Mr. Marapona former Attorney General and Dr. Pieris the former Professor of Law at his and my former university. The three architects of the nineteenth amendment were described in the above manner by Dr. G. L. Pieris himself and not by Mr. Lokubandara who, I believe, is more at home with Rahu than with the law. Incidentally Rahu and Ketu are more real than the eighteenth and the nineteenth amendments, the former being the points of intersection of the paths of the sun and the moon relative to the earth and not some imaginary planets as some golden and not so golden brains seem to believe.
Will there be another general election? Will the Parliament be dissolved? If the Parliament resolves to dissolve itself has the President no other alternative but to dissolve the parliament. Finally it is going to depend on the interpretation given by the President, meaning the interpretation given to her by her legal advisors. Even if the Parliament resolves to dissolve itself it is the President who has the power either to dissolve the Parliament or to request somebody else to form a government as the resolution of the parliament, on its own, does not dissolve the parliament. Once she makes up her mind is there a way to challenge her decision in the Supreme Court?
Under article 33(f) of the constitution the President has the power to do all such acts and things, not being inconsistent with the provisions of the Constitution or written law, as by international laws, custom or usage she is required or authorised to do so. Article 70 (1) (a) that deals with the procedure on dissolution of the Parliament is as follows. "The President may, from time to time, by Proclamation summon, prorogue and dissolve Parliament, provided that subject to the provisions of the sub paragraph (d), when a General Election has been held consequent upon dissolution of Parliament by the President, the President shall not thereafter dissolve Parliament until the expiration of a period of one year from the date of such General Election, unless Parliament by resolution requests the President to dissolve Parliament." Sub paragraph (d), dealing with rejection of appropriation bills is inconsequential in the present case.
The legal pundits have at least two opinions on Article 70 (1) (a). Though English language that functions generally within the yes or no two valued logic of Aristotle, is in general more precise than Sinhala that is associated with the four fold logic or catuskoti, this particular sentence known as Article 70 (1) (a) is not very clear. I have not had an opportunity to look in to the Sinhala version of Article 70 (1) (a) and it should be interesting to find out what interpretation(s) could be given in Sinhala, as it is the Sinhala version that matters finally. I often wonder whether there is a way of drafting all these bills using "Mathematical" (Legal) symbols to minimise as much as possible the number of interpretations that could be given to any particular section or article. As Mathematics has its own "language" can Law be expressed in its own "language"?
The relevant core content of Article 70(1) (a) can be expressed in the following manner with lesser number of clauses. The President may dissolve Parliament, provided that she shall not dissolve the Parliament within one year of the General Election that elected the Parliament, unless the Parliament by resolution requests the President to dissolve Parliament. The key words in this sentence are may, shall not and unless. By this article the President has the power to dissolve the parliament. However, she cannot dissolve the Parliament at any time she pleases. After one year of the relevant general election she can dissolve at any time if she pleases (meaning that she is not pleased with parliament) to do so, but in the first year after the general election she may dissolve the Parliament if the Parliament by resolution requests her to do so. If the Parliament does not resolve to request the President to dissolve the Parliament within the first year of the general election then she shall not dissolve the parliament. On the other hand if the Parliament requests her to dissolve the Parliament in the first year the words "shall not" in the sentence become inoperative without being replaced by the word "shall" and without affecting the word "may". A resolution by the Parliament requesting the President to dissolve the Parliament does not change the word may to shall in the sentence. Languages, being "natural" creations, however precise they may be, do not always conform to the two valued logic. If the symbol ~ stands for non or not, in ordinary languages ~(~A) does not always imply A. Mathematical language has been constructed arbitrarily to follow the two valued logic more efficiently than the ordinary languages.
The article 70(1) (a) is on the dissolution, summoning and prorogation of the Parliament by the President and not by the Parliament itself. The President can dissolve the parliament at any time one year after the general election. But she does not have to do so. In the first year there is a fetter on the President. The Parliament by requesting the President to dissolve the Parliament in the first year, in effect, removes this fetter. The first year is, now, not different from any other period, and the Article 70(1) (a) now becomes redundant. The President can now dissolve the Parliament if she wishes but is not compelled to do so. There may be principles of law, I am unaware of, that would nullify the above conclusion and it is possible that according to "law" the President has to dissolve the Parliament in the event of the Parliament requesting her to do so by a resolution.
Now what is the "correct" interpretation of the Article 70 (1) (a)? If there are more than one interpretation the general practice is to consider the interpretation of the majority of the Supreme Court Judges as the "correct" interpretation. Until the Supreme Court gives a ruling there is no correct interpretation as such. All interpretations are valid, or not valid, depending on one's world view. We can only talk of a probability that the Supreme Court interpretation would be such and such. This is not entirely different from measurement in Quantum Physics. Until a measurement is made there is no value attached to a particular parameter. In my view the Quantum Physical system exists in all possible states at the same time. If the President were to act according to her interpretation and if it is not in agreement with the interpretation of the UNF then what could the Prime Ministerial wing of the government do? They cannot challenge the action of the President in the Supreme Court as she has immunity under Article 35 (1) of the Constitution. However, as provided in the Article 35 (3) she could be impeached under the Article 38 (2) according to the Article 129 (2). As it is unlikely that the UNF could muster two thirds of the vote this is possible only if the President is found guilty of intentional violation of the Constitution, abuse of powers of her office etc. The UNF could say that under the Article 129(1) the President should have referred the matter to the Supreme Court before she acted but it is not mandatory for her to consult the Judiciary.
The Constitutional Crisis is mainly due to the attempt by the UNF to change the Constitution in order to implement its political agenda. The UNF wants to satisfy the LTTE and the aspirations of Tamil racism. The UNF initially wanted to continue in power after the expiration of one year from the General Elections held in December 2001. The UNF probably thought of coming to some kind of agreement with the LTTE in Thailand, and then bring legislation to accommodate Tamil racism. However, the President has the power to dissolve the Parliament after 5th of December and the UNF did not want such an outcome. The UNF decided to move before the President and tabled the nineteenth amendment before the commencement of the Thailand talks, to curtail the powers of the President and to get the two third majority in the House, and thus to give an assurance to the LTTE that their demands would be met. At that stage the UNF did not want elections and they were worried that the President would dissolve the Parliament forcing a general election. When they realised that the nineteenth amendment would not become law they had to rethink. In the meantime, the LTTE having realised that a confederation could not be established through the parliament, has resorted to its usual tactics. They had always wanted to chase the army, the Sinhalas and the Muslims from the northern and the eastern provinces and they are now using "civilians" to achieve that objective.
A section of the UNF now wants an election. Probably they think that the UNF would be returned with a comfortable majority and with the support of the TNA, the SLMC, and the CWC, they could get the necessary two third majority to amend the constitution. There may be still others who think that it is better to go for an election now than later when the UNF would be in a worse situation. However, the decision would be taken by the leadership not on personal considerations of the individual MPs but on instructions given by the so-called international community that is behind the LTTE and Tamil racism. The "international community" would favour a national government and are unlikely to support a general election at present. They would not like the idea of a PA - JVP "parivasa" (probationary) government either, as it goes against their wish. Predictably the LSSP chief has already fired the first salvo against the suggestion of PA forming a government at this stage. The most important question as far as the "international community" is concerned, is not the "peoplisation" of the statutory bodies controlled by the government, but the Tamil racist problem. The protests by the LSSP and the others left out of the left movement, against "peoplisation" are not important for the "international community". The cultural component of western colonialism has now taken the upper hand over the political and economic components and the LSSP and the others are now on the same wave length as the "international community". After all the LSSP belonged to the fourth international and the CP to the third international!
The constitutional crisis reflects the crisis in our society. Piecemeal amendments to the constitution are sought to capitulate to the LTTE and Tamil racism. The Sinhalas and the Muslims in the eastern province are to be betrayed in order to satisfy Tamil racism and western powers. However, the problem that the non national forces want to solve is an imaginary one. As I have argued on many occasions if there are injustices to the Tamils (According to Sambandan MP, the "civilians" in the eastern province have finally risen against these injustices and he wants Tamil home guards to be armed. This would amount to giving a license to the LTTE terrorists, who would be masquerading as home guards, to carry arms in the Army controlled areas.) then they should be common to all the Tamils in the country and not only to those in the northern and the eastern provinces and devolution of legislative power to the north and the east would not solve the so-called problems of the Tamils living outside those two provinces. The Tamil racists and the non national forces are after depriving Sinhalathva its rightful place in the country and they, especially the western powers want to use the constitution for that purpose. Throughout the last century the Tamil racists and the non national forces tried by various means to turn the Sinhala majority to a "minority" in terms of legislative powers. The present exercise is not different from those attempts and the constitution is stubbornly resisting all these efforts.
Professor Nalin de Silva
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