Where from here the ‘constitutional freeze’?

By N Sathiya Moorthy

Until at least the Supreme Court Judge gives a discernible and enforceable verdict in the ‘Parliament dissolution case’, the twin political crises initiated by President Maithirpala Sirisena has taken the form of a ‘constitutional freeze’, instead. Whether the court verdict could de-freeze it all at one go remains to be seen – and there are reasons.

First and foremost, media and political speculation seems to have concluded that the seven-Judge Bench would hand down a clear-cut, enforceable and near-unanimous order. Legal minds would not be surprised if it was a split-verdict, say, a 4-3 division on the Bench being a possibility though need not be a probability. If you want to call it the ‘worst case scenario’, it’s another matter.

Despite Sri Lanka being the region’s oldest electoral democracy, dating back to the Donoughmore Constitution of 1931, deal with constitutional crisis of the kind judiciously and then judicially has not been the nation’s forte. Rather, until now, the political class has spared the nation of the inevitable agony that accompanies every such scenario – good, bad or worse.

Given the infancy of the nation’s constitutional crises where the Judiciary had been sought to be involved as the final arbiter and watch-dog, practitioners too seem to have shut their minds to the possibility of a split-verdict that says a lot and says nothing at the same time. This has happened in other democracies, where a ‘majority judgment’ did not trickle down to a majority.

A famous, for instance, relates to neighbouring India, the world’s largest democracy. In what is ubiquitously called the ‘Fundamental Rights case’ (Kesavananda Bharti vs State of Kerala, 1973), 1 Fuller, 13-Judge Bench of the Indian Supreme Court gave what tantamount to 6-6-1 verdict, when it came to details. That position remains unaltered even 45 years later, and the counsel across the nation continue to cite favourable parts of preferred verdicts to argue their points in cases on hand.

The current Sri Lankan situation is much more – and possibly much worse – than the constitutional questions that the Indian Supreme Court was tackling in the ‘Kesavananda Bharti case’. In a way, it is a life-and-death situation as for as the nation’s Constitution as also the constitutionality and enforceability of the Supreme Court verdict in the ‘Parliament dissolution case’ are concerned.

Innocence or arrogance?

No one would want to attribute ‘innocence’ as a political or personal trait of the late President J R Jayawardene, who founded the Second Republican Constitution, now in force. Even then the ‘Founding Fathers’ the Second RC, in their relative innocence, did not provide for the current situation, in which the incumbent President’s decision(s) would be challenged by the courts, and his office and also he personally might be asked to enforce a court verdict that may be unpalatable to them, both.

The same cannot be said of 18-A, which was mischievous in form and content, and the subsequent 19-A, which aimed at ‘correcting the wrongs’ of and in the former. What instead 19-A has brought about is virtual ambiguity, which actually is at the centre of the ‘Parliament dissolution case’. In this case, ‘innocence’ was not an excuse of then Prime Minister Ranil Wickremesinghe & Team. ‘Arrogance’, instead, was.

Ranil & Co, which included legal brains in the TNA, SLMC, ACMC and all other alliance partners and civil society supporters of the ‘Yahapalana’ reforms experiment of 2015 operated on the preconceived notion that President-elect Maithripala Sirisena was after all a weak leader with no real electoral base to call his own – and hence could be pushed around. If the UNP did it all, almost single-handedly in the months and years after 19-A, others who now talk Democracy from within the group, were looking the other way, some of them enjoying the ‘constitutional predicament’ that Sirisena faced as the Head of State, Head of Government even after 19-A and Head of the Cabinet, all still rolled into one.

Sirisena is now on record that he had talked about his problems with Prime Minister Wickremesinghe to the latter’s senior party colleagues, namely, Speaker Karu Jayasuriya and UNP Assistant Leader, Sajith Premadasa. It is another matter that Sirisena’s talks with the two, separately, was not about ‘reforming’ Wickremesinghe but about ‘replacing’, putting both in an unenviable position, to carry forward the message convincingly back to the party – where not many would have trusted their instant response of not wanting to become Prime Minister the way the President intended.

Unfinished work

Unacknowledged by most, if not all counsel, in the ‘Parliament case’, when it was being argued before the Supreme Court, even a clear verdict may not be the end of the case in the larger context. There is the petition from the ‘failed, replacement’ Prime Minister Mahinda Rajapaksa, whose camp has moved the Supreme Court against the Court of Appeals’ (CA) interim injunction against his continuing in office.

It is one thing that the nation has been without a Prime Minister – another of the constitutional requirements, especially post-19-A to ensure that the President does not have all the powers vested in him anymore. But it is another thing entirely that until a finality is reached in the ‘Prime Minister case’, which again the UNP and allies had taken to the CA, the twin-crises would not and could not end.

The question also arises if after the SC verdict in the ‘dissolution case’, the CA petitioners in the ‘PM case’ could be allowed to withdraw their pleas, or if the SC would have in to take the Rajapaksa camp cases to their logical conclusion. Lest it should be said that the UNP-UNF petitioners committed a ‘constitutional fraud’ in the matter by playing around with the CA’s interim order at will, but for which the nation would not have to do without a Prime Minister for the intervening period, the SC may have to take the matter to its finality, if only to avoid a repeat of similar situations from arising in the future — near or distant, near and distant.

Belling the cat

There is an even more serious (or, less serious, as the case may be) aspect to the ‘Parliament dissolution’ case verdict, as and when it comes. Who will be the appropriate authority to enforce the court verdict? In the normal case, it’s the Executive, represented by the President, both at the constitutional and political levels, the Prime Minister, the Cabinet and the civil services, acting under the President’s direction.

Now that the situation has come this far, what if the verdict is not favourable to Sirisena, and the President’s Office takes a different view in the matter? Who will then bell the cat, in terms of enforcing the court’s majority verdict, if it were to restore Parliament, pre-dissolution? These are hopefully not possibilities but in seeking to enforce orders against the person and office of the nation’s President, the Judiciary cannot be blind to such situations – at least, not any more.

The court, or the Judges who vote out the ‘dissolution decision’ and are also in a majority on the seven-Judge Bench, should think about the possibilities, even if they need not have to spell out their concerns and consequences, in the primary verdict, whenever pronounced. In doing so, the court should also be alive to the possibilities of new petitions flowing out of its verdict being moved, for a fresh look or a ‘review’ of their own verdict(s), in this case – and possibly also the other!

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@nsathiyamoorthy.com)