11 September 2006
THE MOST WORRYING FEATURE OF OUR CONSTITUTION
President Jayewardene, towards the close of his political life, confessed, inter alia, to having lacked foresight. This may be considered to be an understatement of colossal proportions if one studies certain aspects of the 1978 Constitution of which he was the master architect. Had he had the humility and the imagination to consider the possibility that the UNP might one day lose control of Parliament notwithstanding all the UNP-biased provisions he insisted on introducing into the Constitution, he would certainly not have framed it the way he did. In particular, his concept of a super-powerful Presidency, which he thought would always be in UNP hands, would instead have been made subject to numerous basic checks and balances, which are indispensable features of democratic government.
To us, the majority of Sri Lankans who are not lawyers, the most pernicious of all the provisions in the Constitution is the impact of the wording which his supposedly brilliant constitutional experts included with regard to the powers of a President of Sri Lanka. That this wording goes against all common sense, natural justice and even elementary levels of prudence is demonstrated by the manner in which it is now held that a President’s acts of omission and commission cannot be challenged in the courts, even if such acts represent gross violations of the Constitution or other laws or result in patently obvious injustice. There is no legal remedy available at present to counter any wrong he does, however dreadful. The fact that a President either swears or affirms that he will uphold the Constitution is of no legal value at all because he has the powers to override it and need not abide by his oath or affirmation. Indeed, whenever a doubt should arise about the ability of his government to get something done which requires a two-thirds majority in Parliament, it would seem that there would be nothing to prevent the President from taking unilaterally whatever decision he wants, and no one would be able to challenge it.
If the entirety of the Constitution and all subsidiary laws can be breached by a President to suit whatever purposes he may have in mind, disregarding any injustice or damage caused, can we consider our Constitution to be anything but a tragic joke? What kind of absurd logic lies behind this self-contradictory Constitution is beyond our capacity to fathom. What if we get a President who, before he is elected, shows himself to be a Areally nice guy until his true Stalinesque personality emerges under the influence of absolute power?
We are told that the only remedy against a defaulting President would be impeachment. We are, of course, aware that this very same Constitution makes it virtually impossible to impeach anyone who has the support of one of the major parties in view of the fact that the people’s representatives are elected to Parliament by proportional representation, which cannot be expected to yield the two-thirds majority required for such an exercise. So this provision turns out to be mere eyewash.
In the light of the tremendous dangers we face, we cannot help referring to one particular example of the contempt in which the Constitution is held by at least one appointee to high office. This person, who has sworn allegiance to the Constitution on more than one occasion, is reported recently to have opined that it does not matter whether his appointment was made Aby Donald Duck or Mickey Mouse! What does one make of him and those many others who are plainly quite happy to enjoy high office, originally reserved for those of eminence and integrity, solely on the basis that their unconstitutional appointments cannot be challenged because such acts are protected by presidential immunity?
Those who so conscientiously sponsored the 17th Amendment in Parliament in October 2001 have uttered hardly a whimper to protest at the manner in which it has been flouted under cover of so-called presidential immunity from the time that President Kumaratunge declined to appoint the Elections Commission forthwith, as stipulated in the said amendment. These very same people are ever so ready to object vociferously to so many other alleged unconstitutional governmental actions but are quite willing to abet passively in the blatant violation of the Constitution in respect of those issues which suit their political objectives. Can we not hope for some principled politics at least when it comes to the fundamentals of the Constitution?
An extremely serious aspect of the current interpretations of the Constitution is that, for all practical purposes, any legitimate agreement, convention or treaty entered into by any legally authorised body in Sri Lanka can be abrogated, revoked, ignored or modified at the will and pleasure of whoever is President, with no room left for any legal challenge within Sri Lanka. Can a country function credibly in this manner, whether it is in respect of internal matters or international trade or foreign affairs? What sanctity could be attached to any written or oral undertaking given on behalf of the government if a President could just brush it aside to suit his own agenda? What reliance can one place on any state commitment?
How these supra-constitutional powers of the President could affect what the media investigate and report is best known to the media. The more perspicacious readers and audiences would have little difficulty in reading between the lines of anything reported under the present Avoluntary self-censorship which the media practises as a means of averting any dangers that they anticipate may adversely impact on the future of their organisations.
This is a matter which needs urgent and anxious deliberation by our legislators. They must take steps forthwith to amend the Constitution so as to limit presidential immunity only to the extent that a President cannot be prosecuted while in office. All his acts of commission and omission must, however, be made justiciable and he must be obliged to comply strictly with the provisions of the Constitution and the laws of the land. We most urgently urge all Parliamentarians to go about this task meaningfully and expeditiously because, if they do nothing, it is not only the ordinary citizen and the media who will be adversely affected but these Parliamentarians themselves will not have any refuge if and when the Presidential guns should perchance be turned on them one day when there is a less than benevolent person at the helm.