First as Tragedy, then as Farse!

First as Tragedy, then as Farse!

I appeared for two journalists and a public servant in the Supreme Court Special Determination case (No.SC SD32/2020) against the totality of the Twentieth Amendment to the Constitution Bill. My 17 paged Petition (available in scribd) explained how the proposed changes are contrary to the Constitution, its specific provisions and how the changes are contravening the fundamental principles of Constitution Making. 

There should be sufficient time to make arguments in oral Submissions. Otherwise it's a futile attempt. Only half an hour was allocated to every Counsel appearing for Petitioners. There were 39 Petitions filed against the Bill and Court commenced hearing to Counsel on the 29 September. I made submissions on the 02nd October 2020. I took only about 15-20 minutes to highlight the salient features of my argument. Counsel for the Petitioners were asked to file written submissions before the end of Friday(02). The Attorney General started his submissions in the evening of 02 October. Counter Replies could only be filed by Petitioners on 05th Monday, that is the Counsel would get only a couple of hours to draft and finalize the reply to AG's arguments. In contrast, the AG is about to get about a half a day to make his submissions. Court heard from Counsel till about 5.30pm on Tuesday, 7.30pm on Wednesday and 6.30pm on Friday. Constitutionally, as it stands, the Supreme Court has three week time to deliver its determination. 

I began my submissions by characterizing the 20A Bill as a retrogression to the original 1978 Constitution prior to 17A that concentrated all powers on an Executive President. I then referred to Marx's often quoted statement: "History repeats itself, first as a tragedy and then as a farce", which was said in relation to the Dictators, Napoleon and his nephew Chales Napoleon. Then I quoted Dudley Senanayeke and Colvin R. de Silva on their characterization of Executive Presidentialism as leading to dictatorship. Executive Presidentialism. I then pointed out that the 20A Bill is so abhorrent, disqualified, anti-democratic that it is not suitable to be put to people for approval at a referendum and should be declared as such, so that it cannot be passed in any manner. In support, I was referring to the doctrine of Basic Structure, the essential features of which is described in the Preamble to the Constitution as in Indian Constitution, liberal Constitutionalism, Sovereignty, Democracy as against majoritarianism, Republicanism, Referendum and Value-Based approach to Constitutional interpretation. I pleaded that the Court determine that Sri Lanka's Constitutional Basic Structure consists of those characteristics of quality democracy. 

My submissions supported my arguments that the Constitutional changes/amendments proposed by the Twentieth Amendment Bill severally and/or cumulatively are unconstitutional, and the Bill as a whole is unconstitutional, in as much as the said changes/amendments,

(a)    undermine and dismantle the rule of law;

(b)    undermine the separation of powers and dismantle liberal democracy's institutional checks and balances;

(c)    Undermine the independence of the Judiciary;

(d)    Undermine fundamental rights, liberties and freedoms, and the franchise (by limiting the lifespan and role of the legislature) of the People, and Republicanism, thereby, infringing upon the sovereignty of the People;

(e)    Cumulatively, such changes undermine the basic features of liberal constitutionalism;

(f)    Being primarily anti-democratic, render the legitimacy of democratic governance in abeyance;

(g)    The changes alienate the sovereignty of the People in the exercise of their powers of Government, fundamental rights and the franchise by concentrating all powers with an authoritarian Executive Presidency, which is unconstitutional;

(h)    The proposed Bill is a tool of de-democratization, a reversal of and undermines democratic gains of the People of this State and therefore is retrogressive. A constitutional change is not expected to be backsliding and retrogressive by its People; 

(i)    Significant changes proposed, which had been earlier included in the Eighteenth Amendment, were once rejected by the People of this State as unconstitutional, and therefore cannot ascend as constitutional once again;

(j)    The proposed Executive structure will be in breach of international human rights obligations;

(k)    Lack legitimacy and the quality of democracy. Undermine People's long acquired right to democracy, which is part of the basic structure of the Constitution based on liberal values and democratic constitutionalism;

(l)    Lead To authoritarianism and impunity, and not to the stability of a participatory, pluralist and inclusive democracy;

(m)    The changes proposed demonstrate bad faith, as they are intended to consolidate the power of an all powerful Executive against the interests  of the People;

(n)    The proposed changes to the Constitution are tainted with mala fides that are designed to promote the political vision and ideology of the political party in power;

(o)    Is aimed at facilitating the convenience of the Executive, rather than the empowerment of the People, as their primary motivation or rationale.

(p)    The Bill represents a comprehensive rejection of the principle of de-politicization of institutional accountability.

(q)    Will render the Prime Minister and the Cabinet subordinate to the President rather than as coeval Executive actors, switch Sri Lanka’s constitutional regime-type from a premier-Presidential one back to a President-Parliamentary model, where the Prime Minister and Cabinet will no longer be responsible solely to the Parliament, but jointly to both the President and the Parliament. This is a structural overhaul of the Constitution of this democratic Republic, detrimental to the merits of constitutional democracy guaranteeing limited Government.

(r)    The Bill is an attempt to exploit a popular majoritarian vote to advance an anti-democratic Constitution, without People's consensus.

(s)    The Bill is an attempt to exploit popular majoritarian vote to advance an authoritarian regime with dictatorial powers.

(t)    Goes against the principle of the supremacy of the Constitution, which implies the supremacy of the basic structure of the Constitution that guarantees limited Government, human dignity and the rights of the People;

(u)    Envisages no responsive, accountable and transparent governance, which are basic features  of a quality democracy. 

(v)    Whereas the Constitution is meant to protect the People from the class which exercises political power and empower the People vis-a-vis the rulers and therefore the Constitution is  conceived as the guarantee of protection of the People against all arbitrary action on the part of the Executive as well as the other branches of Government, the proposed Constitutional changes fail to meet these demands of constitutional democracy;

(w)    The raison d’être for a Constitution is to act as a check on and guard against majoritarianism, which is another word for mob rule and the sanctification of the rule by the majority. The concentration of power on the President in order to function as a ruler of the majority in detriment to the interests of minority communities, could easily decelerate into a tyranny of the majority leaving no room for the very foundations of liberal constitutionalism. The Bill thus entrenches majoritarianism and fails to be counter-majoritarian. 

An incomplete, working draft written submissions was filed in Courts on the 02 October in support of the above arguments.

The whole purpose in fighting in Courts is to empower the People, who will exercise their Sovereign Power.

03.10.2020.