In defence of Constitution and the rule of law

By Neville Ladduwahetty

The BASL is reported to have stated: “Respect for the Rule of Law and to Constitutionalism is essential to protect the rights of the people of Sri Lanka and their livelihoods…. The BASL unequivocally states that at this decisive time, in our country, it is absolutely necessary that all citizens respect the Rule of Law and Constitutional Governance. It is not in the interest of the country, or its people, to ignore provisions of the Constitution, which is the framework under which Sri Lanka is governed” (Daily FT, July 13, 2022).

Prime Minister Ranil Wickremesinghe has been unequivocal in his commitment to defending the Constitution.The question that follows is whether the Constitution and the rule of law were violated during the events of the last few months, and if so, by whom and to what extent.

ABSENCE of RULE of LAW

For instance, the public space of Galle Face and surroundings was occupied by the protesters, thus violating the rights of others the access to such spaces. Others who engaged in protest marches also seriously compromised the rights of the rest. Such arbitrary and unilateral action contradicts the very principles for a just society, aspired to by the protesters. What the government should have done was to find alternative space for the protesters to carry out their activities in a manner that does not violate the rights of others. It is, therefore, evident that the government was complicit in not enforcing the Rule of Law and protecting the fundamental rights of the silent majority for equal protection, under the law.

During the early stages, the BASL, and other defenders, that included representatives of foreign governments, collectively defended the rights of the protesters for peaceful protests. Throughout this period, the BASL has acted as the guardians of the Law. However, the defenders of the right of peaceful protest failed to question what the protests were about. Had they done so, they would have realized that although the protesters initially claimed that they were for a system change, their main and very vocal demand was “GotaGoHome”. This amounts to a group pf people, regardless of their strength, demanding the resignation of a Democratically elected President who is also the Head of State, elected to exercise the executive power of the People as an integral part of their sovereignty, resorting to demands and engaging in activities in violation of the Rule of Law, when constitutional provisions exist to achieve their objectives. Having failed to bring to the attention of the protesters the imperative need to adopt constitutional means to achieve their goals, the defenders are now reminding all concerned the “need for Constitutionalism and the Rule of Law”, after several aspects of the Rule of Law were violated by the very protesters they earlier defended.

With time, the protesters were portrayed as representing the popular wishes of the people. No attempt was made by the government to ascertain their true strength in relation to the silent majority. This perception resulted in the protesters being taken seriously enough to be part of a potential political force that could be exploited politically to serve the narrow ends of minor political formations. The attention the protesters received emboldened them to the point that they ceased to be peaceful protesters and ended up storming public buildings and vandalizing the assets, claiming that they belonged to them, not realizing that these assets belonged to the whole nation. Therefore, vandalizing them amounted to destroying national assets for which there has to be accountability. Who is accountable for such actions? Should not those who initially defended the protesters and now say that the wishes of the protesters should be entertained share responsibility for their failure to have publicly withdrawn their support for not only resorting to unconstitutional measures but also for vandalizing national assets that belong to the present and future generations?

ASSAULT on CONSTITUTIONAL GOVERNANCE

The formal appointment of former Prime Minister Wickrrmrsinghe to carry out the functions of President Gotabaya Rajapaksa, while he was absent from the country, as the Acting President, is in keeping with Article 37 (1) of the Constitution. This Article specifically states: “If the President is of the opinion” that for whatever reason, he is unable to perform his constitutionally assigned tasks “he may appoint the Prime Minister to “discharge the powers, duties and functions of the office of President during such period”. Since “during such period” is not limited to a specific period, it would be wrong to interpret that he, or any President, has vacated his post during the period he was physically absent from office. Also, in keeping with the Constitution is his formal appointment as Acting President, following the formal resignation of former President Gotabaya Rajapaksa. However, until Parliament elects a President and he appoints a Prime Minister, Hon. Ranil Wickremesinghe would have to perform the functions of Acting President and that of a Prime Minister, if the administration of the country is to continue unimpeded. If, on the other hand, he caves in to the demands of the protesters and others and resign, the entire country would be engulfed in an administrative chaos. Maybe this is what the protesters, and others, who condone such demands want, because out of chaos emerges opportunities.

A matter of serious concern was the call by party leaders, as well as by former President Sirisena, for the resignation of the now Acting President Ranil Wickremesinghe. If he complied with the “request” Sri Lanka would be without an Acting President and in the absence of an appointed Prime Minister, the Cabinet and Secretaries to Ministries would cease to exist, resulting in a complete breakdown of the administration. Is this what the party leaders want?

If the party leaders were disillusioned with the President to the extent to call for him to step down, they could have instituted an impeachment motion, with the backing of the protester’s support, in Parliament, under Article 38 (2) and succeeded in getting rid of the President, constitutionally, in keeping with the oath they had taken to abide by the Constitution. On the other hand, if the party leaders called for the President’s resignation because they hold him, and only him, responsible for the dire economic situation in the country, they are forgetting that, since most of the party leaders, are or were, Members of the Cabinet, that they are collectively responsible “for the direction and control of the Government” (Article 43 (1). Therefore, it is not in keeping with the sentiments of the Constitution to hold only the President, whoever he may be, responsible for the current economic crisis. Taking a lesson from the UK, it was the collective action of the UK Cabinet that forced Boris Johnson to quit his position as Head of the Conservative Party. Therefore, the hope of the nation is that future Cabinets take collective responsibility for their actions, and NOT allow its Head to take the sole rap for their collective misadventures.

ESTABLISHING FACTS

No attempt has been made to establish the true strength of the protesters (Aragalaya). The common perception is that they represent the people and their aspirations to the point that they represent the aspirations of ALL Sri Lankans. Another assumption is that the SLPP has lost the mandate that was secured at the Parliamentary elections of August 2020. While this maybe so, the question is whether it lost the mandate to the extent of transferring it all to the Aragalaya. Therefore, it is imperative that assumptions are verified before basing policies on unverified assumptions.

In the absence of such determinations, the prevailing tendency is to cater to whatever demands the protesters make. For instance, was the refrain “GotaGoHome” that made him leave the country a demand of the majority in Sri Lanka, or that of the protesters who claim to be the majority. Therefore, before proceeding too far to accommodate the demands of the Aragalaya, it is imperative that a survey be made by a recognized institution to ascertain the reality of the two assumptions cited above.

The most credible option would be to await the outcome of a general election where the numbers returned would reflect the true strength of the Aragalaya and the SLPP. It is only after establishing the relative strengths and weaknesses of political formations that the future direction of Sri Lanka should be established.To make determinations as to the future direction of Sri Lanka based on assumptions prior to a general election would be a mistake of a colossal order. The focus of an interim government should therefore be to await introducing any new legislation and any new executive policies until a reformulated Parliament is established.

There cannot be anything more important than yielding to the demands of some for the resignation of a democratically elected President who, according to Article 4 (b) is expected to exercise the “executive power of the People, including the defence of Sri Lanka…” as part of their sovereignty based on the assumed strength of such a demand. If such a President is incapable of fulfilling his functions there are sufficient Constitutional provisions to replace him, but not to give into demands by some who claim legitimacy on unproven grounds that they represent the voice of the people. To do so is to set in place a precedent that could lead to political instability, because it encourages violent dissent to bring about political change without exercising constitutional provisions whenever possible, to change systems.

CONCLUSION

The issues presented herein are not in the defence of Gotabaya Rajapaksa. Instead, it is in the defence of ANY democratically elected President or any other member based on the “immutable republican principle of representative democracy”, as stated in the Preamble of the Sri Lankan Constitution. That principle states that there are constitutional procedures that need to be followed if the people who elected them find sufficient grounds to remove them from the offices to which they were elected. To resort to violence or to demands when lawful measures exist, is unacceptable and should be condemned in the name of the rights of the lawful majority. Also unacceptable is to resort to violence on grounds that constitutional provisions are too daunting or are not expedient enough.

Had the protesters adopted constitutional means to bring about political change, they would have had grounds to distance themselves from those who wanted to bring about change through violence. However, that position is today denied to them. Furthermore, resorting to violence to bring about system change sets in place a precedent that precipitates instability. This is where the guardians and condoners of the Aragalaya have failed. They failed to direct and guide the energies of the Aragalaya to adopt lawful strategies to achieve their objectives. It is only when lawful measures do not exist, that other options could be considered such as in the Russian and French Revolutions.