Gajalakshmi Paramasivam

20 August 2018

Double Standards

The Doctrine of Separation of Powers requires the Judiciary to be Independent of the Executive and the Legislature.  While the functions could overlap as per habits, the separation is important in maintaining good governance through democracy. Consistency in process and interpretation is an essential criterion needed to make governance reliable. One of the major criticisms of the immediately preceding Government of Sri Lanka, under the leadership of Mr Mahinda Rajapaksa was its treatment of the Judiciary as if it were the Executive’s junior. Eventually this resulted in the dismissal of the Chief Justice when the lady refused to ‘obey’ orders at a certain point.

The higher our thought structures – the more ‘inclusive’ we are of different cultures. The more ‘attached’ we are to our own cultural structures – the less accommodating we become of other cultures. To overcome this problem – we have Separation of Powers between sovereign/independent  bodies. The Legislature (Makers), the Executive (Administrators) and the Judiciary (the Maintainers) are like different cultures and there are  separated to facilitate maintenance of and contribution to Sovereign powers of the whole. Likewise, Equal Opportunity Laws.

The interpretation of the  law pertaining to Presidential candidacy through the 19^th  Amendment to the Constitution is currently being interpreted differently by diverse investors in the Sri Lankan system of Governance, especially due to speculations that the immediate past President Mr Mahinda Rajapaksa may also try to regain his status through that position:

[It has been the talking point among some ‘JO’ stalwarts for more than two weeks. This was when they consulted legal opinion and spoke informally to those at the National Elections Commission. A former Foreign Minister and one-time Colombo University Vice Chancellor and Professor of Law, Dr. G.L. Peiris opined that the 19th Amendment to the Constitution does not impose a bar on former Presidents who have completed two terms.

In laymen’s language, he explained, that the 19th Amendment was prospective (not retrospective) and the restrictions applied only to the current President and those to be elected thereafter. That meant, he argued, that the two term limit would only apply on the incumbent President and not on those who held office before.] Sunday Times article ‘Possibility of Mahinda Rajapaksa contesting next presidential election’

Dr Peiris, as Professor of Law has the responsibility to interpret the law as if the law is the subject. As a Politician, he is the subject and the law if the instrument used to escalate his personal value to the national level – in support of the ‘side’ he takes – in this instance Mr Mahinda Rajapaksa’s side. The two roles when mixed indiscriminately,  confirm disorder unless they are merged through provisions in the constitution to promote ‘commonness above diversity’.

In Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan the High Court of Australia held that a strict division between these two levels was not practical and re-affirmed the Constitution to outline this

The question here is whether the exemption is based on the basis of Common good or for particular outcome desired by particular individuals and  or groups. When it is political – it taken to be not for the good of  the whole, unless it passes through the Parliamentary process.

As per the above article, Mr John Seneviratne, an SLFP Politician also has endorsed this political interpretation.

Article 31 (2) of the Sri Lankan Constitution states as follows:

 [No person who has been twice elected to the office of President by the People, shall be qualified thereafter to be elected to such office by the People.]

As an observer interpreting at global level – I conclude that this rules out any person who has held that position twice. If it applied to the current occupier – I would expect the wording to be ‘No person who shall hold the office of the President twice……..’

A Legal expert’s interpretation was expressed as follows:

[President’s Counsel Dr Jayatissa de Costa, a Constitutional lawyer, held a different view though he underscored the existence of a lacunae. He told the Sunday Times, “This is a matter which will need an interpretation from the Supreme Court. This is particularly since the 19 A does not specify whether a person who has been elected as the President twice cannot stand as a presidential candidate from the date on which the amendment became effective or with retrospective effect. Therefore, an interpretation from the Supreme Court is required.”]

The level at which a voter would interpret the above provision is lower than that of the Judiciary. Hence lacuna is no excuse to seek judicial interpretation – unless done so by the citizen who has the pain.

This ‘retrospective  construction’ was strongly indicated by the Sri Lankan Attorney General in the case of Mrs  Vijayakala Maheshwaran :

[The Attorney General has advised Speaker Karu Jayasuirya to examine whether under the current Standing Orders action can be taken against former State Minister, Jaffna District Parliamentarian Vijayakala Maheshwaran over a controversial statement she made recently. If this was not possible, the AG has asked whether the Standing Orders could be amended or let the House decide the procedure to be followed to pursue action against her.] – Sunday Times report ‘Action against Vijayakala: AG advises Speaker’

The Parliament as a Sovereign body needs to balance its internal structures and processes to maintain that Sovereignty. Law making is not a delegated power of the Parliament. It is natural power that confirms the sovereignty of Belief. The internal processes need to support this causal force – to discipline or to reward as per Administrative powers and processes. As indicated in the case of Australian Police who were attempting to charge the former Governor General Dr Hollingworth – on the basis of obsolete Administrative failures – the system needs to be current – as if the pain happened to that system. Where the system has been restructured – there are no moral grounds on which to take action for Administrative failures.

When the law is changed – the old system dies and hence there is no more pain for the Parliamentary Administrative system. Mrs Maheswaran could be disciplined  only if the lady acts in breach of a new rule – after it comes into existence.