Elections or pedantry?

One way or the other, General Elections will be held in a matter of weeks. Do we immerse ourselves in endless legal pedantry or exercise our foremost right to elect a government? – Pic by Shehan Gunasekara

 Tuesday, 19 May 2020

“When I use a word,” Humpty Dumpty said, in a rather scornful tone,

“It means just what I choose it to mean – neither more nor less”

“The question is,” said Alice, “whether you can make words mean so many different things”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

– Through the looking Glass-Lewis Carroll
With the first Republican Constitution of 1972 we began our foray into the untrodden world of constitution making.

If I remember correctly, the ceremonial adoption of the Constitution, on which our then legal luminaries had laboured for long months, took place not in the Parliament House but at a gathering hall of a Colombo school (there was no BMICH then). They argued that the new autochthonous constitution was a complete break with the order in council, Soulbury Constitution, hence even the venue ought not be the British-built Parliament.

One of the consequences of the departure from the British-made Constitution was the jettisoning of clause 29(2) thereof, which was considered a restriction on the “legislative powers of the people”. The Section read:

Section 29 – Power of Parliament to make laws

(2) No such law shall-

(a) prohibit or restrict the free exercise of any religion ; or

(b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable ; or

(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions ; or

(d) alter the constitution of any religious body except with the consent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body

Provided, however, that the preceding provisions of this subsection shall not apply to any law making provision for, relating to, or connected with, the election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian and Pakistani Residents (Citizenship) Act.

The 1972 Constitution had a short life, the “people” spoke at the next immediate General Elections of 1977, decimating the constitution makers. On the heels of the electoral sweep of 1977, the victor, the UNP, doing one better, came up with its own Constitution (1978), with a decisive departure from the parliamentary model to an unknown territory, in the form of an elected Executive presidency.

If constitutions are considered the primary guiding law, our efforts at formulating them, seem to have only left a sense of uncertainty or apprehension among various communities; open to endless legal quibbles, a muddle of forms and ideas; copied from dissimilar jurisdictions, but not fully understood; constitutions further confounding the pervasive disorder.Certainly, our constitution makers have not come down an imposing mountain with a tablet of   edicts edified by divine approval. They operate in a much more mundane world, lacking the requisite objectivity and stature. It may be rightly said that the sorry state of the country is largely attributable to the inadequacies of our law makers, but this evident lack of foresight is only in matters of public interest; when it came to seizing opportunities for personal or political advantage that law making provides its makers, they have shown a remarkable aptitude.

An absolute fundamental of a democratic system is the concept of a mandate, the people’s approval to rule for a given time, for a given purpose. In 1970, the Coalition Government led by Sirima Bandaranaike was elected for a term of five years, which should have ended in 1975. Using the two-thirds majority she commanded, Bandaranaike’s Government introduced the 1972 Constitution, which decided that her Government would run for five years starting from 1972 (until 1977), enjoying two extra years for which she had no mandate! Talk about a constitution (fundamental law) starting off on the wrong foot!

The UNP Government which followed introduced the 1978 Constitution (with the concept of an elected president), as events were to prove, with several worrying aspects, real as well as potential. All the same, the 1978 Constitution carried certain commendable features, such as justiciable fundamental rights and the instrument of a referendum, an accepted mode of obtaining public opinion on a vital issue for the country. But the constitution makers first (and only) use of the referendum (in 1982), gave it a bad odour.

In 1982, the UNP Government went for a referendum to extend the life of the then Parliament (in which they enjoyed something like a four-fifths majority) for another term so as to complete their “development” work. By a simple majority of votes in the country, the Government retained its four-fifths stranglehold in Parliament. That was a blatant abuse of a democratic idea. History’s retribution was telling. From 1983 for nearly 30 years, the country was engulfed in insurrection, meaningful development was the last thing we could think of.

Both constitution makers, denied their own highfalutin rhetoric by using the very constitutions they made for immediate political advantage. A document which ought to guide and unite the nation on an objective basis, becomes only an instrument for petty advantage in the hands of its creators, thus diminishing its lustre. Several analysts have drawn our attention to the constitutional crisis that the unexpected COVID-19 pandemic has brought upon us. In an emergency of the direst nature, an ill-thought-out Constitution has, it seems, created an impasse of the knottiest proportions. In brief, the President dissolved parliament and fixed a date for an election to a new Parliament.

There cannot be anything more democratic than an election. But meanwhile, the pandemic hit the country, it becoming impossible to hold the elections on schedule. Apparently, Article 170 (interpretation section) of the Constitution interprets the meaning of ‘conclusion of the General Election’ based on the date specified in the President’s proclamation (70 (5) – dissolving Parliament). They argue that only the President can alter the date of elections and by implication, the way to break this deadlock is by recalling Parliament.

Whether such an interpretation can be supported in a situation where the Parliament has served out its mandated five years is arguable. Even the President cannot give life to a dead Parliament.

Any interpretation must be consistent. It is a relevant fact that the dissolved Parliament (which had another six months to go) had a majority which was politically opposed to the President. Perhaps it is also relevant, going by recent elections, that the majority party of the dissolved Parliament, commands only a drastically-reduced vote base today.

Let us take a reversed situation, on a hypothetical basis. If the President commanded two-third support in the dissolved Parliament, in the given situation would it be right for the President to recall a Parliament (which has been dissolved and an election announced) in which he enjoys overwhelming support? Can he then, using that majority in the recalled Parliament, go about amending the Constitution itself?

Our so-called constitution makers have only led the nation to crisis and peril. The way forward calls for foresight, purposive and dynamic interpretation, with the nation’s welfare as primary concern. Almost universally, courts today do not interpret the question of mandatory versus directory provisions based on language alone; context, subject matter and object, now considered foremost. By necessity, courts are compelled to consider the nature of the issue, the overall design and the consequences which would follow from its construing one way or the other. There are no universally applicable rules, each country deciding in their best interest. One way or the other, General Elections will be held in a matter of weeks. Do we immerse ourselves in endless legal pedantry or exercise our foremost right to elect a government?