This lack of sympathy is due however, to reasons that transcend fundamental issues relating to the integrity and independence of this country's Supreme Court, which ruled on the constitutionality of the amendments. Thus, the process by which the UNF brought about a reversal of its fortunes, at least with regard to its ability to morally differentiate itself from its predecessor, encompasses far more than its ditherings on the judiciary.

As far as the determinations themselves are concerned, little remains to be said or indeed, analysed. One is only reminded of what J.A.G. Griffiths said, (in the seventies admittedly but in words that remain peculiarly apt through the years)

" ……..it is usual for judges in political cases to be able to rely on the rule of law for the legitimacy of their decisions. As we have seen, there are innumerable ways- through the development of the common law, the interpretation of statutes, the refusal to use discretionary powers, the claims to residual jurisdiction and the rest - in which the judges can fulfil their political function and do so in the name of the law."

The Politics of the Judiciary (1977, Fontana) Griffiths' classic caution, of course, assumes a more sinister meaning in legal systems that are subverted beyond the usual. Necessarily, these are also the systems in which players are more than willing from the Bar as well as from the Bench, to indulge in learned arguments in order to carry on the charade that the rule of law is being protected, this country being a prime example.

It is in this context that the use of the basic structures argument, (in ruling as unconstitutional, those clauses of the 19th Amendment relating both to the power of the President to dissolve Parliament upon the expiry of one year and the freedom to vote on one's conscience for this particular amendment only is interesting. The consequent compromise suggested by Court in this week's determinations, that the unconstitutional nature of the clauses could be removed in so far as the requirement for a referendum is concerned, if the period for dissolution of Parliament is extended to three years and if the right of conscience vote applies to all clauses, should be viewed in that same spirit.
But, for the moment, this column is concerned more with the justifications put forward by the UNF as to the process relating to the presenting of these amendments. A reference to process was in fact, made by Premier Ranil Wickremesinghe this week, when asked by journalists for his comments on the Supreme Court determinations, shortly after they were communicated to Parliament by Speaker Joseph Michael Perera.

The explanations given were that, as far as the 18th Amendment was concerned, it was drafted on the request of the Constitutional Council. Thereafter, it was tabled at the party leaders' meeting, submitted to Cabinet for their approval and subsequently tabled in Parliament.

Likewise, the 19th Amendment was drafted by a group of Cabinet Ministers and submitted to Parliament after Cabinet approval. And it is here, in the explanations given by the Prime Minister, that the obvious rub lies. In short, if the decision making outlined by him with regard to the constitutional amendments had ventured beyond the mechanics of party consensus and taken into account the views of civil society in the process, perhaps the end result might have been happier as far as their constitutionality was concerned.

This is evident with regard to both the Amendments. The 18th Amendment may have been requested by the Constitutional Council but this did not necessarily mean that the request should have been automatically obeyed. At the very least, there should have been some element of proportionality in the manner in which the request was responded to.

Thus, the 18th Amendment could have merely retained the proposed Article 41J which prescribes that no suit or proceedings shall lie against the Council, the Chairman, a member, the Secretary or an officer of the Council in respect of anything done or omitted to be done by the same in the performance or discharge or purported performance or discharge of any duty or function conferred or assigned in terms of the Constitution or any other law. That would have been entirely in accordance with the need to give protection to the Council in the exercise of its functions while keeping open the door of access to judicial protection against arbitrary or ill informed decisions.

What we had however, was not a pruning of the proposed amendment but unnamed ministers indulging in ridiculous reasoning that the amendment was necessitated by fears that the Supreme Court will go berserk in entertaining petitions by busybodies with regard to appointments made by the Council to the independent Commissions. The 18th Amendment was ruled by the Supreme Court not to be valid in its present form, requiring approval by the people at a referendum in addition to a two thirds majority.

Similarly, the primary criticism of the 19th Amendment was its imposition of a stranglehold on political parties in dealing with its members in respect of voting for or against the 19th Amendment and its heavy handed provisions in coping with the fear that President Kumaratunga will dissolve Parliament after the completion of one year. At that time, ongoing initiatives by some sections of the PA to "constitutionalise" President Chandrika Kumaratunga's letter to the Speaker, pledging not to dissolve Parliament, offered a reasonable alternative to going ahead with the 19th Amendment as it then stood. A little bit more proportionality and reasoned thought might have worked wonders in this case as well.

However, calling to account the legal minds responsible for the 18th and 19th Amendments becomes a farcical exercise in the post 18th Amendment and 19th Amendment determinations scenario. That this is currently being indulged in by the PA and the JVP is even more laughable, given the fact that it was the PA which presented a Constitution Bill in 2000, the precise clauses of which had not been put before the people for scrutiny before.

It must not be forgotten moreover that this was the same Bill, containing problematic provisions in relation to the Executive Presidency in the transitional provisions, which was ruled by the Supreme Court not to need a referendum at that time. This is again so with regard to the provisions of a highly flawed 17th Amendment to the Constitution, in which process, the JVP played a critical role.

What we need right now, is to see the UNF bringing back a measure of moral authority for its processes of governance, with or without these legal minds that have been responsible for the successive debacles of the past months. If this needs the personal intervention of the Prime Minister, so be it. In the absence of a fundamental change in strategies, there would be little to choose between this government and its predecessor and the people of this country may well resign their fates unto the hands of their gods.

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