Decoding constitutional amendments

By N Sathiya Moorthy

The Supreme Court is likely to hear a petition on the boundaries for political parties to name names for the National List MPs, going by media reports. If upheld, the petition may lead to ruling SLPP’s Finance Minister Basil Rajapaksa, UNP’s former Prime Minister Ranil Wickremesinghe and Ape Jana Bala Pakshaya Ven Athureliye Rathana Thero losing their membership of Parliament.  

The petition, initiated by activist-lawyer Nagananda Kodituwakku is unlike anything submitted to any Supreme Court in any democracy in the world at any point in time. It says that Article 14-A, as it stands now in the Constitution, is not what was originally approved. Worse still, he charges then Speaker E L Senanayake of committing a fraud on Parliament, Constitution and the nation as a whole, facilitating scores of ‘unqualified’ persons becoming National List MPs, since 1988.

Kodituwakku does not name Minister Basil in his plaint. He has stopped instead with Wickremesinghe and Rathana Thero. But if upheld, the court verdict could be cited against the former, too. But there is a long way off for all that, from here. 

The crux of the matter is this. Kodituwakku alleges that Speaker Senanayake swapped the papers while attesting his sign and seal to the final document as cleared by Parliament – and it is the ‘fraudulent document’ that is enjoying the honour and status of the 14th Amendment to the Constitution. In doing so, he quotes then Prime Minister Ranasinghe Premadasa, who piloted the papers in Parliament, as if to clarify and support his own petition now.

The petition claims that the original 14-A provided for secretaries of registered political parties and leaders of independent groups to submit their list for ‘National List’ MPs within a week of notification – and that there shall be no scope for altering the names on a later day. It further states that the Senanayake-cleared Amendment is what is in operation now, and it facilitates the party leadership to name National List MPs outside of the original list submitted to the Election Commission.

Different strokes

This is not the first time in recent years that the Supreme Court has interpreted the Election-related Articles of the Constitution. Not very long ago, it ruled that those holding ‘dual citizenship’ cannot become or remain as MPs (or members of Provincial Councils). That happened decades after the Constitution had come into force.

Should the court accept Kodituwakku’s plea and constitute a special Bench to hear his new plea – and also pass favourable orders – that should not be mistaken as wrong for want of a precedent. Yet, it may be the first one where the court adjudges that a Speaker of Parliament had committed a fraud on Parliament, parliamentary procedures and thus the Constitution. That’s not on. 

It is the job of the Supreme Court to interpret the Constitution and uphold the constitutionality of various Articles therein, and also laws and rules framed under such Constitution. It is different strokes between the ‘dual membership case’ and the Article 14-A, if admitted first and allowed in due course, after arguments. No such question will arise or remain if the court in its wisdom holds that there was no (new) merit in the petition, to begin with.

There is a reason. According to news reports, the Supreme Court had already thrown out a near-similar petition by the same petitioner, on the same clause – and also cause of action, or the main plea therein. New reports have also spoken about how petitioner Kodituwakku has sought to make a difference between the earlier one and the present one.

According to him, the two cases are based on different provisions of the Constitution and stand on independent merits. This, he has to first convince the court about, if it took up his petition for initial hearing.  Then could come the main petition and arguments for and against the plea contained in it. 

De-merger, re-merger

It is in this context that the Tamils’ demand for the re-merger of the North and the East needs to be considered in constitutional terms. The TNA especially has been putting forth the demand ever since the government of then President Mahinda Rajapaksa, now Prime Minister, acted in a jiffy, to effect de-merger, when the Supreme Court ordered so.

Leave aside the political aspects thereof, the TNA, the Tamils and the international community to which they have been appealing on re-merger since the 2006 court order, have to think ahead, and think differently. They need to ask themselves if a new Constitution or even a constitutional amendment could effect re-merger if it were to violate the 2006 verdict of the Supreme Court. 

The court verdict at the time rendered a certain provision of 13-A unconstitutional. It had earlier cleared 13-A for passage before being presented to Parliament. In this context, the TNA and other Tamil leaders should be looking at ways to circumvent the same under the existing Constitution. And the Tamils have a former Justice of the Supreme Court in ex-Northern Province chief minister, C V Wigneswaran, as a leading-light from among them. 

Needless to point out thus, any parliamentary initiative on re-merger would have to first obtain judicial approval. The TNA, a party with top lawyers among its members and MPs, should be asking itself related questions and also work on possible ways to be able to circumvent the existing judicial hurdle, one way or the other. 

Else, these Tamil leaders would themselves be pouring cold water on the proposal after raising the hopes of their people. Then, together they could well blame the higher Judiciary in the country as being anti-Tamil or pro-Sinhala to the point of being chauvinistic. 

It need not be the case in the context that is envisaged if and if only the Tamils look at the larger picture and see how best to arrive there. But then, making the Sinhala polity and society accept the re-merger demand – and so is even more so with the Muslims in the East – to be on the Tamils’ side is another side of the story – and no constitutional process will become necessary until they cross the political hurdles in the way to re-merger!

(The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@nsathiyamoorthy.com)

Disclaimer: Views expressed by writers in this section are their own and do not necessarily reflect Colombo Gazette’s point-of-view

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