Clinically Yours By Dr. Who

Who's playing pandu?

That is why a statement last week by the head of the Interim Committee of the Cricket Board, Vijaya Malalasekera must be considered more than a little surprising: The 'match fixing' probe against Arjuna Ranatunge and Aravinda de Silva is not yet conclusive, said he, despite the report of investigator and top lawyer Desmond Fernando having cleared the grand old men of local cricket. 

No, we are not holding a brief for either Ranatunge or de Silva; of course not. No one is perfect and both these men have had their ups and downs with the law in their personal lives which we will not care to dwell upon here. 

But this attitude of Malalasekera, himself a lawyer, provokes interest. When the match fixing scandal first erupted, the South Africans were livid. It was all a conspiracy, they said and suggested a sinister Asian plot that was aimed at ending 'white' dominance of world cricket. 

To the credit of the Indians they stuck to their guns, pursued the matter at a government-to-government level, and corroborated their claims with hard evidence. Hansie Cronje was stumped for life- but he was considered innocent until he was proven guilty without an iota of doubt. 

Huh, didn't we see Cronje's pastor on TV telling us that he was such a nice man who just happened to sin in a moment of indiscretion? Now, how different this is from the fate of our own Muttiah Muralitharan, whose only crime was being unable to bend his elbow. 

Murali was branded a cheat, chucked out of the game for a while all because two men in Australia thought his action was illegal. There was no benefit of the doubt for him- he had to prove his innocence until which he was presumed guilty. And these are not isolated incidents. If any other cricketer behaved the way Shane Warne had, he would not be playing the game now. But Warne has only been warned and discharged, time and again. 

When English umpires make glaring mistakes, it is only human to err. When their Sri Lankan counterparts do so, they are hopelessly biased. And so, this cricketing apartheid continues. And this is why Malalasekera's point is thought provoking. Is cricket still the whiteman's game where colonial undertones hold sway, despite the obvious dominance of Asian countries in the playing field? Is that why our men are presumed guilty even if inquiries conclude that they are innocent? Come, Come, Mr.M, let's see the lawyer in you. Let's say, hypothetically of course, that smoking causes lung cancer. Now, would you go out on a limb and say it does, even if an inquiry concludes that it doesn't?

The danger of playing JR in political game

By Susantha Goonatilake

But power of the rulers on the ruled is based on a compact, a social contract that gives legitimacy. The legitimacy in the parliamentary game (and there are other political games as we shall see) comes only if it is played according to the rules under which the voters elected the rulers. Once elected one does not change the rules. That was the essence of "Yuthukama" of our tradition and the "Not Done"ness of the British upper classes.

But this is not the first time the rules had been bent to breaking point.

They were bent in 1964 when the then ruling coalition between the SLFP and then (old) left was defeated. Sirima Bandaranaike refused to vacate for a few days. The left demonstrated for her not to resign. Logical, if you accept the game of revolution. And all Marxist-Leninist parties whether they are the CP, LSSP or the JVP laid claim to this game. Parliament was considered rigged to support the owning classes, the bourgeoisie. 

In such a view voting is only a shadow play, only a seeming democracy but no real democracy. So real democracy was in overthrowing this whole charade by a group committed professionally to the promise and dangers (including death) of revolution. This is why Marxist-Leninist parties have a politburo and a vanguard. (This formal logic though, has now changed.) The rules were also bent immensely when in l975 the then government extended its life till 1977. It was done legally and constitutionally. But it was a broken contract with the population who had no idea when they voted in 1970 that they would be denied their voice in 1975.

And of course the worst bending was in 1982 where under the phony referendum the peoples' will was perversely stolen; rigged by forcibly putting the words that they did not wish to vote into the people's mouth.

JR had rigged the system in 1978 and later, in search of seeming stability, to prevent the seesaw of huge majorities in elections, he introduced proportional representation. To keep the left at bay, he put the minimum cut off point to get elected at 12.5%. He wanted to lock in forever his 1977 victory. He talked of folding up the electoral map, of the constitution being capable of anything other than turning a woman into a man.

But just a few years later, JR's dream was in tatters. Separatists spawned by India was now engaged in a proxy invasion which soon threatened to become a real invasion unless he agreed to India's demeaning terms. Though he himself was privately against the Accord, he caved into Indian gun ships. The public took to the streets. Hundreds of thousands marched down Galle Road and several of them were gunned down. 

The JVP now engaged in its second revolution, this time a "national liberation" one based on Chinese-Vietnamese templates. As in these revolutions, those termed traitors were considered legitimate targets. It was no dinner party. The blood-letting that followed led perhaps to nearly 60,000 dead, the bulk by government death squads. This was the highest death squad fatalities in Asia since Indonesia of the mid-1960s.

During all this turmoil the country was becoming increasingly ungovernable. The authoritarianism that had been installed a decade earlier, and institutionalized in a draconian constitution was falling apart. The President wanted to run for a third term. But things were no longer under President JR's dictates. He dilly-dallied on the third term eventually giving up the idea, symptoms of a country increasingly beyond his will.

In the meantime, virtually the entire university and high school population in the South had become politicised and were on the streets. To bring in the JVP, the cut off point was reduced to 5%. Unable to contain the rapid worsening of the situation and the active animosity of significant sections of society, including actions of radicalised students and monks, as well as JVP induced work stoppages, and perhaps Premadasa's manoeuvres, the government caved in and allowed Presidential elections.

The present UNP politicians now forget that they were all undemocratic sheep once. Their anger now is largely because they are not allowed to step into PA's shoes. Perhaps allowing some of them to loot and rob as admittedly some PA MPs are now doing, according to Chandrika herself.

History is perhaps about to repeat itself now.

The opposition to the prorogation and referendum comes from a variety of groups. They have competing goals. There are the different parties with communal - racial or religious - agendas. This includes all the Tamil parties, the SLMC and the SU - all with agendas opposed to each other. The UNP and the JVP, like the SLFP, both have multi-ethnic and multi-cultural agendas. Chandrika has united all these disparate non-PA political forces and also sown dissent in her own camp. What superb leadership!

But there are other forces. The joint Business Forum has come out against the government and seems to have had cordial discussions with the JVP, the rising force among trade unions. High-level monks have spoken against the PA moves, as have universities student bodies. The entire real civil society — as opposed to the phony foreign funded appendages — seems to line up against the government.

Chandrika wants to play JR's authoritarianism without his huge majority or his abilities. To regain such a majority she wants to scrap the PR system. A few months ago, before she postponed local government elections she wanted to return to the higher cut off point, presumably to keep the rising JVP inroads into the PA voter base. This is silly; such moves can cut both ways. If there is a strong swing to the JVP, the PA will be left with much less representation.

Single handedly, ably helped by her MPs' silence allegedly bought through bribes in the form of MPs' privileges, she has dismantled the two ideological bases on which the SLFP, the core of the PA — had rested, namely strong patriotism and a search for social justice. It is this turf they are losing to the JVP. The JVP perhaps because of its massive losses in revolutions is now more cautious than the UNP in following strict parliamentary rules. It did not join in the UNP-led defiance of the speaker's ruling that the PA actions were within the law.

Trade unions, employers, the Sangha, students, the UNP, the JVP, Tamil parties, Sinhala parties, Muslim parties, and elements of the PA, all seem to be arraigned against Chandrika's PA. It is a line-up reminiscent of 1988 when many civil society bodies wanted to have a level playing field before the election. Premadasa though still had his flawed election without these conditions. And later his crack down. But times may be different now.

The present PA attempts are not from Asian genteelness with the background of Mahasammata or from the social-compact of British gentlemen. Only rank opportunism remains. True democracy in the electoral game is to allow for oneself to be thrown out of office under the rules. Democracy rests on grace as does any system, even a feudal one. But these are not real feudals. These are lumpen feudals, fighting a rear guard action. Off with their crowns.

An act of dubious constitutional propriety

The Speaker's reasoning proceeds on a direct reading of the constitutional provisions that confer upon the President the power to prorogue Parliament, which, as pointed out by the Speaker, "…is not expressly qualified by any precondition for its proper exercise. Nor is there any indication of the requirements that need to be fulfilled or as to the nature of the reasons which may prompt the exercise of the power."

One can feel some sympathy for the Speaker in his predicament, particularly in the light of his carefully worded reminder to the people that "Though my personal opinion may be at variance with what has been done on this occasion in the matter of prorogation, I am myself bound by the Constitution and cannot therefore overstep the limits of my powers."

The Speaker remained unpersuaded by the legal submissions of the UNP put forward by opposition parties, which rested on two main premises. Firstly, even though the constitutional provisions allowing the President to prorogue appear to be untrammeled (Article 70(1) and (3), the power of the State, held by the President is held in trust for the people and can be validly used only in the right and proper way which Parliament, when conferring it, is presumed to have intended. That no public figure, however powerful, had unfettered discretion in the exercise of public power, had been established time and time again, in the decisions of the courts of this country and elsewhere. Accordingly the President cannot claim an arbitrary power to prorogue Parliament and in this particular instance, by proroguing Parliament when the Government was in a minority in order to prevent a vote of no confidence, acted clearly in breach of this fundamental principle.

Secondly, the opposition parties argued that the President, as Head of State and Government, is made responsible to Parliament under Article 42 for 'due exercise' of his or her powers and functions under the Constitution, which further supports the legal and constitutional fact that the President does not exercise absolute and arbitrary power. Instead, she is subject to the basic principle of the sovereignty of the people, the supremacy of Parliament and the duty to act fairly and bona fide in the exercise of her powers. This provision was therefore the jurisdictional gateway through which Parliament and the Speaker could enter and examine the validity of the Presidential proclamation in issue, as a matter of right.

Such an ingenuously purposive construction of the relevant constitutional provisions did not find favour with the Speaker who preferred to state that while the motives for issuing the proclamation may be open to objection or criticism as a misuse of power, he could not claim for himself an implied power flowing from Article 42 to overrule the proclamation.

It is interesting however that while he examines and dismisses the legal submissions relating to the manner in which Article 42 may be used by Parliament, his order does not discuss the basic principle, supported by extensive case law, that statutory power, however high, can only be used in a way, which Parliament, when conferring it, is presumed to have intended. In the Speaker's view, the only way in which a proclamation of this nature could be challenged is if it is invalid on the face of the document itself and is therefore legally inoperative. Once this requirement is satisfied, the reasons prompting its issuance cannot be put in debate.

In our Constitution, prorogations are thus arguably legal but morally wrong, a precarious position indeed for any country to be in and as this column remarked at the outset, illustrates precisely what is so wrong with our constitutional structures.

Legal debate on Presidential strategies of proroguing Parliament when confronted with a hostile House, has occurred notably before in the history of this country. In 1991, then Speaker M.H. Mohamed was presented with a motion to impeach President Premadasa signed by more than half the members of Parliament, including 47 members of the ruling United National Party, consequent to which President Premadasa prorogued Parliament from September 3 to September 24. Analysing the situation in the Wall Street Journal at that time, constitutional lawyer and parliamentarian Dr Neelan Thiruchelvam in reasoning even more pertinent now than it was then, referred to the act of prorogation as an "act of dubious constitutional propriety" which hardly solves the country's crisis. Dr Thiruchelvam's argument was posited on the balance of power between the executive and the legislature in the 1978 Constitution, as a consequence of which he stressed that that the judicial immunity of the President should be removed forthwith along with Presidential powers relating to proroguing and dissolving Parliament. His warning that in the context of a disastrous style of governance, Sri Lanka faces two rebellions, one constitutional and one military and that it can resolve neither until it re thinks how the country is governed, are words that President Kumaratunga would do well to contemplate at this infinitely more disastrous moment in time.

From another perspective, Parliament confronting the President in 1991 and 2001 yield further interesting comparisons. In 1991, a strategic opposition struck directly at the Executive Presidency in bringing a motion of impeachment, thereby preventing President Premadasa from dissolving Parliament. A motion of no confidence in the government based on the opposition contention that the Premadasa government supplied arms in 1989 to the LTTE was secondary on its list of priorities.

It was around these more astute political strategies that legal debates took place as to whether a resolution to impeach the President becomes invalid if the President prorogues Parliament after the motion is entertained by the Speaker but before it has been placed on the Order Book. President Premadasa, advised by a sympathetic Attorney General, took the position that the motion was, in fact, rendered invalid as the motion had not been 'duly brought before Parliament' (Article 70(4)), and that there was consequently nothing to prevent him from dissolving Parliament thereafter. The opposition headed by the Sri Lanka Freedom Party (SLFP) however argued strongly that dissolution of Parliament in these circumstances would be illegal and a deliberate and intentional violation of the Constitution.

In fact, the comparison drawn by the SLFP at that time was that in such an instance, the President is in the same position as an accused in a criminal case against whom an indictment or plaint has been filed. Just as much as such an accused cannot give orders to the Court to determine that the indictment is invalid and thereby prevent court from proceeding with the trial, the President has not even the semblance of any power or authority to prevent Parliament from 'proceeding to trial' on the charges against him, by debating and voting upon the resolution. The proposed impeachment was ultimately defused by President Premadasa following consummate political manoeuvring.

In 2001, we have President Kumaratunga asserting the full plethora of her Executive Presidency rights vis-a-vis Parliament far more hamhandedly but then again, against a far clumsier opposition, while her administration maintains an impossibly gymnastic position that the Executive Presidency should be done away with, and this too by extra constitutional means, irrespective of the shamed denials of some of its ministers. The struggle against the prorogation and the proposed referendum is now increasingly being transferred from the Constitution to the streets. We await the playing out of this final stage of our march towards chaos. 

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