By Charles S.Perera
I studied Constitutional law for my Barristers Exam in UK,and I have never read a judgment as shocking as the one recently made by an Appeal Court of Justice in Sri Lanka. I have listened to many learned Constitutional lawyers and Academics. The Law is for the people not to please some higher authority.
The Constitutional Law is special, as there could be several interpretations on the same issue.
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The recent interim order given by an Appeal Court in Sri Lanka is in my opinion flawed. The judges had gone on the assumption that the no confidence motion with 122 digital votes against the Prime Minister and his cabinet of Ministers is legally acceptable.
The judges are after all human beings, they must have listened to the Television and read the papers and learnt about the much talked about bahutharaya in the parliament”, and after a light study of the no confidence motion with 122 digital votes and no opposing votes, accepted it on its face value as legal, and the Prime Minister and his Cabinet of Ministers sworn in by the President of Sri Lanka as illegal as it did not have the much talked, Bahutharaya in Parliament”.
But I argue that the no confidence motion against the Prime Minister and his Cabinet of Ministers is not legally acceptable.
The judges of the appeal Court had failed in the first instance to examine the legal value of the No Confidence motion. A parliamentary session cannot function even without a quorum. If there is no quorum no serious matters such as legislation or even a No Confidence Motion can be moved.
Now in this particular case in Sri Lanka a no confidence motion had been passed with 122 digital votes of the parliamentarians present at the parliamentary session. But the judges did not apparently examine the background to the No Confidence Motion.
If they did they would have observed that the Parliamentary Session at which the No Confidence Motion had been passed was not legally constituted, as the benches of the Government parliamentarians at the time of taking the vote on the No Confidence Motion were empty, and therefore the Speaker of the House had no legal right to have accepted a No Confidence Motion at that session.
I argue that the No Confidence Motion said to have been passed with 122 digital votes was illegal and not acceptable.
Firstly, because at that session the benches of the government side of the Parliament was empty, and the Speaker of the house should have ruled out the passing of an important No Confidence Motion in the absence of the parliamentarians of the Government.
Secondly at that Session in question the No Confidence Motion was not presented following the normal parliamentary procedure. A No Confidence Motion against a government is a serious matter even though the Appeal Court seems to have ignored it.
Thirdly several no confidence motion in a not legally constituted parliamentary session had been passed in the absence of the parliamentarians of the Government, which is also not acceptable as there should be a sufficiently long time between two no confidence motions passed on the same issue.
The above highlights the aberration of the law by the Appeal Court hastily taking a decision to issue an interim order stopping the Government from functioning , which is anti democratic being a decision that affects the welfare of the people. (A people who had gone through financial and economic suffering due to financial mismanagement of the previous government of Ranil Wickramasinghe and his UNP and allied Ministers).
An Appeal Court in my opinion has no right to even temporarily stop the legal and democratic function of a government, which is trying to put order into disorder created by the Previous government and give the people their much desired economic relief.
The Government of Mahinda Rajapakse legally sworn in by the President is neither a dictatorship, nor a military government , but a legally constituted democratic government with a Prime Minister and Ministers popular amoung the majority of the people of the country.
Therefore can the Apeal Court Justify the legal correctness of their decision to issue an interim order stopping the functioning of the Government ?.
In view of my observations expressed above the judgement of the Appeal Court and its arguments to justify their judgement that,
This Court is mindful that wide powers of governance of the Country are vested with the Prime Minister, Cabinet of Ministers and the other Ministers by virtue of various provisions of the Constitution as well as other laws. Thus, whoever holding such office is required to make important decisions which will affect the whole country at large both locally and internationally. Most of such decisions may not be reversible. This Court is also mindful of the damage that would be caused if this Court having granted interim relief to restrain the Respondents from functioning in their public offices and then proceed to subsequently dismiss this application refusing to issue the remedies prayed for by the Petitioners.”,
-are not valid acceptable arguments to stop a democratically and constitutionally constituted government functioning for the welfare of the people.
These are arguments one may expect to hear from rabid Marxist politicians, and not from learned judges. Therefore the judgment of the Appeal Court in my opinion is flawed and not acceptable in law.
Hence the Apeal Court should revise their decision and at least allow the legally constituted Government of Prime Minister Mahinda Rajapakse to function normally, until it takes a more wise decision on the 12th December,2018.
Can we trust President ?
By Sarath Obeysekera
Admittedly,professional experience in politics is no guarantee of presidentialperformance, but lack of it should not be such a desirable criterion. So what,then, does professionalism in politics require? Arguably, here are a fewcomponents of competence for would-be presidents from now on.
A president must understand the Constitution, its history, and the values at its core. This requires not just picking passages to buttress arguments, but knowing for example, how the communal and anti-communal tensions that nearly prevented unification continue today. It demands understanding that the farmers /working class are worried a lot about the tyranny of the majority.
As Jefferson of the USA put it in his First Inaugural, “though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”
A new President who thinks that the mandate to govern includes the ability to ignore the concerns of those who lost, misses the meaning of a rightful government.
A president should be able to think and act strategically, both domestically and internationally. This demands the capability to understand social, economic, and political systems and their inter-relationships. It requires a deep thirst for knowledge of the world as well as our history, the ability to handle cognitive complexity, the capacity to think long-term, and the skill to take short-term actions that move toward strategic goals.
A president must know how to use power to assemble governing coalitions. Promises to “work across the aisle” are useless without the ability to listen, compromise, devise political strategy, and marshal support of all the partners. Our disdain for the “political class” notwithstanding, a president has to be a political animal.
A president should be able to lead a complex bureaucracy. This requires understanding how large organizations work, what leads to failure, and how to select those leaders who will do the daily work of running government. It requires ensuring that communication and dissent flow upward. When they do not, a president — and a nation — get blindsided. It demands the ability to turn campaign sound bites into realistic ideas, ideas into policies, policies into programmes, and to execute those programmes well. Ideology may propel a campaign, but runs out of steam quickly in the real world.
Such capabilities seem seldom examined or demanded during election campaigns. This may come from two misconceptions. The first is that people who are political novices can fix the very political system they condemn. That is like expecting a plumber to redesign a highway interchange. The second is that good campaigners will make good presidents, though the skills required to win are a small subset of those required to govern.
Our political system has serious problems, but it is not broken. The inability to get things done is a direct result of the design of our Constitution, crafted to make acting without widespread popular and political support next to impossible. If we cannot move forward, it is because there are systemic problems that need to be addressed and, in part, because presidents have lacked both the understanding and the political skills to do so. Putting political neophytes in the President’s House may be appealing, but the results can be appalling. We don’t hand over the controls of jetliners or fighter planes to just anyone, nor should we hand over the controls of the presidency to political beginners. Hence, we should seriously think when we try to find an alternative President, from those who are novices like Cricket Captains or a Business Magnate or even an ambitious monk. People need to carry the manifesto of an incumbent president with them when they go to vote next time and decide. “Can we trust him “?
Courtesy-slguardian.org
