The Constitutional circus Part II and Part III: here we go again, and then again!

By Kassapa

We wrote in these columns about the circus enacted by an individual identifying himself as C.D. Lenawa who emerged from virtually nowhere and challenged the validity of the 19^th Amendment of the Constitution, pleading in the Supreme Court that the conduct of the presidential election should be stayed until this anomaly is rectified. The Supreme Court consigned that petition to where it belonged, in the wastepaper basket, and asked Lenawa to pay Rs.100,000 as costs.

If one thought that the drama ended there, they would be wrong. That was only Act 1. Barely a week later, Act 2 has already been staged. That is not all, Act 3 is still in production, rehearsals are being held and will be played out soon.

Act 2 was when late last week, a lawyer by the name of Aruna Laksiri Unawatuna lodged yet another Fundamental Rights (FR) application claiming that the 19^th Amendment was not properly passed by Parliament. He argued this was because the amendment removing the President’s power to dissolve Parliament after one year should be approved at a referendum, as indicated by a Supreme Court determination.

The fate of this FR application was a replay of the first, thrown out at the outset. Unawatuna was asked to pay Rs.500,000 as costs, a five-fold increase on the costs imposed on Lenawa. What is interesting though was the argument that was put forward by the ‘learned’ lawyer.

The ‘19^th Amendment’ referred to by Unawatuna was not the amendment of the same name that was implemented. It was, in fact an amendment presented in 2002 by the then government led by (surprise, surprise!) then Prime Minister Ranil Wickremesinghe.

This was when Chandrika Kumaratunga was President and Wickremesinghe, having just become Prime Minister, was apprehensive that Kumaratunga would dissolve Parliament early. Among other matters, this amendment sought to curtail the President’s ability to dissolve Parliament before the end of its term.

When that amendment went before the Supreme Court then headed by Sarath N. Silva the bench ruled that, since this would amount to a dilution of the President’s executive powers vested in him by the people, it would require approval at a referendum. That referendum was never held, that 19th Amendment was never proceeded with, and Kumaratunga dissolved Parliament prematurely anyway. The 19^th amendment which was subsequently adopted was an entirely different piece of legislation.    

So, last Friday’s drama was about a lawyer harking back to a piece of dead, unenacted proposed legislation that was before the Supreme Court twenty-two years ago and citing that as a reason to stifle the presidential election. The Supreme Court bench last week reportedly questioned the lawyer’s fitness to practise, given this turn of events.

Is it a massive co-incidence then that Sri Lankan citizens are suddenly waking up to find the tiniest legal loophole in the Constitution to try and stymie the presidential poll and running to the Supreme Court week after week- or is there more to this than meets the eye?

Perhaps the answer to that comes from Act 3, the drama that is now in the process of being rehearsed, snippets of which were leaked this week. It came in the form of an announcement from Cabinet Spokesman Bandula Gunawardena who said Cabinet approved an amendment to the Constitution to resolve the discrepancies between Articles 30(2), 62(2), and 83(b) of the Constitution.

It is Article 83(b) which states that any extension of the President’s term beyond six years requires approval at a referendum although the other articles emphatically limit the President’s term to five years. Recent Supreme Court verdicts have also re-iterated that the President’s term of office remains at five years.

A Bill prepared by the Legal Draftsman for the purpose of enacting the proposed change received the clearance of the Attorney General and will be gazetted shortly, Gunawardena announced. 

This indecent hurry to rush through this legislation with less than a hundred days to go for the presidential poll, when a presidential election has already been conducted without any issues in the absence of such legislation and when the Supreme Court has repeatedly made it clear that the President’s term of office is five years is, at best, baffling. At worst, viewed in the context of two FR petitions in two weeks on the same issue on brazenly frivolous grounds, it leads to the suspicion that something sinister is afoot.    

Such an amendment, if it is brought before Parliament will need a two-thirds majority to proceed and the government does not appear to have those numbers. However, that does not diminish the threat in anyway because, with such a Bill gazetted, the floodgates will open for ‘concerned citizens’ to petition the Supreme Court- and there doesn’t seem to be any shortage of them right now.

The objective would be to delay this process as much as possible, thereby disrupting the timetable for the presidential election which is now in the phase where the dates for the poll can be announced at any time. Then, and only then, will the curtain come down on Act 3.

The sad reality that underlies these machinations is the fact that Ranil Wickremesinghe is so lacking in confidence about his prospects at the presidential poll. If he were indeed confident, he would have preferred to go to the poll as soon as possible without endangering his popularity further with his ‘incumbent’ status.

Perhaps Wickremesinghe’s anxiety is understandable. His record at presidential elections is pathetic. He contested twice and lost twice. On three other occasions, as the leader of the United National Party (UNP), he ‘outsourced’ the candidacy first to Sarath Fonseka, then to Maithripala Sirisena and lastly to Sajith Premadasa, obviously because he believed he couldn’t win and also thought they couldn’t win either- though Sirisena proved to be the exception. Worse still, the UNP has not won a presidential election since 1989- and ever since he assumed its leadership.

These then are Wickremesinghe’s last gasp attempts at clinging on to power, even if it is for a few days more. What remains to be seen is how the masses will react to such a scenario- because the consequences of a repeat of the ‘aragalaya’ is too frightful to even contemplate.