Friday 14 December 2018

Gajalakshmi Paramasivam

14 December 2018

Law is the President of Executive Power

The Law helps us feel good or bad about ourselves as independent persons. Those of  us who believe in the path of law, already delivered our judgments about who was right and who was wrong as per the Constitution of Sri Lanka, in the recent manifestations by the President and the Parliament. All of the Judges who delivered yesterday’s verdict regarding dissolution of Parliament would have studied and practiced English Law. To the extent they believe in those laws – they become global. But in the mind of non-believers and non-practitioners – they would be ‘foreigners’.

The level of Executive power that would lead us to self-governance needs to be sealed as per the Consolidated Actual level of contribution to the laws governing that position. To my mind, it was Mr Mahinda Rajapaksa who was giving the orders through the body of Mr Sirisena. The mind of Mr Sirisena was lacking in self-confidence in that position, and for this we need to blame Mr Wickremesinghe and Madam Kumaratunga for being driven by their desires to topple Mr Rajapaksa for which Mr Sirisena without mind of his own at that level, became  the medium. They – especially Madam Kumaratunga, failed to groom him into that position to the level of her own contribution.
President Sirisena obviously is not a deep  believer in law as stated. He did not have to be, to become President. But to use the provisions of law to justify his actions – as he did when terminating the services of Mr Ranil Wickremesinghe as Prime Minister – was abuse of executive power. Law is the President of Executive power. Belief in law would have prevented Mr Sirisena from bypassing Parliament and dismissing Mr Wickremesinghe  and appointing Mr Rajapaksa – whatever the technical wording of the law. Believers correct the technical errors in the law.
‘Appointing’  is when merit is used. Article 42(4) states as follows:

[The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.]
Once the order ‘shall appoint’ is used, ‘opinion’ should not be used in a provision of law. To appoint, there has to be merit based reasoning. To state ‘shall’ – the law’s representative  - in this instance the president, ought to have already weighed the pros and cons and therefore the outcome that such process leads to – is upheld.

If the president were to use his opinion it has to be belief based. Otherwise his decision is frivolous and has the effect of being vexatious.
Both - the process of law and the expression of belief  of the individual cannot be applied to a particular aspect of the matter, unless such a person is believer of the law that is being used. If the belief is culture based, then there has to be separation in the mind between the two pathways. The decision maker must have the confidence of his own belief to declare that decision – as happened in 1976 through the Vaddukoddai Declaration by Tamils.

One is top down ownership through intellectual derivation and the other is bottom up through belief. The latter suits local environment and the former suits investors laterally in wider world. If snap elections was the motivation – then it confirms lack of belief. The mind of the believer changes only with truth. A leader needs to share her/his truth discovered at the highest level but without damaging the belief of other investors in the institution / nation. If election call was driven by benefits – that would destabilize the foundation of democracy.

Where a nation is driven more by belief of voters and less by belief of the leaders it is a democratic nation. Where it is the other way around – it is an autocratic nation. Both are ok so long as they are not mixed indiscriminately for the purposes of immediate pleasures.

Many questioned as to why Mr Rajapaksa did not wait for Parliamentary elections at the natural completion of the current term. To my mind, it was because he was distracted by the possibility of becoming president again and used the local government election victory. The current crisis manifested outcomes that confirmed that when law and order is reliable – the voters would need less and less handouts in return for votes. The Sri Lankan Parliamentarians have undergone treatment to know that where belief is weak and therefore such quid pro quo transactions are on the rise – their own existence is threatened.

Much of the treatment came from the Public who shared their own truth freely. Our expressions of belief cover the whole that we believe we are part of. In the case of Mr Sirisena that whole is a fraction of Sri Lanka. Minority in belief is wrong in law and v.v. So why worry? – just stay in our own worlds – however small they may be and enjoy the freedom of expression without fear of defeat or desire for victory.

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