Focus on Rights

When Constitutions become a mere lottery
It says much for the sanity of our politicians (and their legal advisors) that the uneasy 'cohabitation process' over the past fifteen months should be teetering on the verge of a constitutional breakdown over an issue as unbelievably pedestrian as the management of the Development Lotteries Board.

There is a simple irony secreted in this somewhere; politics and 'managing' the constitution in this country has become, in fact, very much like a lottery in itself, engaged in by individuals who have no conception of constitutional governance.

Ergo, what we have is not a constitutional crisis but a lottery crisis, aggravated by the knee jerk reactions of some Government Ministers, (including reportedly the Minister of the Interior who holds, in another profound irony, the additional portfolio of Minister of Christian Affairs), taking upon themselves to supervise the storming of the Government Press by thugs. This was in order to prevent the printing of the Gazette Notification issued by President Chandrika Kumaratunge, taking over the Board.

If, however, President Kumaratunga is genuine when she complains of reduced allocations from the Board to the President's Fund, could not there have been a civilised dialogue between the parties before the Constitution was resorted to for a takeover? Instead, the almost-but-not-quite fait accompli nature of the Presidential action points to a motive deeper than that purportedly held out.

Statements from the President's Office this week, put the matter very well when they pointed out that "it is odd for a government who fails to consult the President on such vital national issues as the ceasefire agreement, reducing High Security Zones and conceding territorial waters to a second naval force to insist on prior consultation on a lottery."

This is exactly the point. The country would have taken it much better if the office of the Presidency, having a legitimate grievance as it thinks it does with regard to substantive issues arising in the context of the spluttering peace process, acted appropriately in pursuance of its electoral mandate, provided that it did so with due regard for the consequences.

Instead, the hamhanded actions that it indulged in reference to the Development Board Lottery begs the question as to whether we are condemned forever to pursue trivialities induced by populist party politics rather than issues of substance that will shape this country's future.

The office of the President has justified the attempt to take over the Board in reasoning that is breathtaking in its innocence. According to the President, Article 44 of the Constitution gives her an essentially subjective and 'exclusive' discretion in how she treats Cabinet Ministers, Ministries and the assignment of subjects under those Ministries.

This is a constitutional interpretation that sits at odds with the opinion of the Attorney General, whose considered view has apparently been that consultations with the Prime Minister by the President should have been sought before the impugned decision was made by the latter.

In further ill advised statements that have important ramifications beyond the present political crisis, spokespersons of the office of the President as well as key political figures of the People's Alliance, have thought it fit to belittle the Attorney General, for these views. The Attorney General remains the principal state law officer of the land and public belittling of this office, subject as it has been to invidious political pressure for the past several decades, is highly unfortunate.

As far as Article 44 of the Constitution is concerned, it is important to note that subsection (1) by using the word 'shall', first stipulates a mandatory consultation by the President with the Prime Minister 'where he considers such consultation to be necessary' with regard to two instances.

These are firstly, where the President determines the number of Ministers of the Cabinet, the Ministries and the assignment of subjects and functions to such Ministers and secondly, where the President appoints from among the MPs, Ministers to be charge of the Ministries so determined.

Article 44 (3) meanwhile specifies that the President may, at any time, change the assignment of subjects and functions and the composition of the Cabinet of Ministers. It is expressly provided that such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament.

This sub section, which does not stipulate consultation of any kind unlike in the case of Article 44(1) is specifically referred to by President Kumaratunga in her letter. Further, the President has taken the view that, in any event, what is envisaged in Article 44(1) is only consultation and not concurrence or in other words, a mere obtaining of the views of the Prime Minister, "when the President considers it expedient to do so". Therein lies the case for the Presidential take over of the Board.

This bare bones reading of the constitutional provisions ignores in its entirety, the doctrine of responsible government, which stipulate a particular working of the constitution that has its origins in basic constitutional principles.

A Constitution, in its most severe sense, is but a "set of rules that authoritatively establishes both the structure and the fundamental principles of the political regime" (Malcolmson and Myers, 1996, p. 31). These rules "constitute" or establish the regime. The intermeshing of these rules and adherence to practices shaped by the context within which those provisions work, owe its logic to a simple rationale.

Constitutions, when written, are documents limited by the times during which they were reduced to writing. As living documents, they cannot be circumscribed by those limitations but are supplemented by particular practices which are, as famously pointed out once by Sir Ivor Jennings; "the flesh which clothe the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas….."

These are not mere exhortations but have tremendous political validity. A case in point was in 1975 when Australia underwent what has been referred to as its greatest constitutional crisis, following the dismissal of the Whitlam Government by the Governor-General using his Reserve Powers under Section 64 of the Constitution.
Critiqued as a grave subversion of the democratic parliamentary traditions in Australia, this was one notable instance when constitutional analysts warned against 'literal' readings of constitutional documents, pointing out that the doctrine of "responsible government" is an essential part of any country's constitution.

It necessarily followed therefore that the constitutional provisions, (which vested powers of sovereignty exclusively in the head of state), must be qualified by the obtaining of the "advice and consent" of the government in the actual exercise of these powers, even though there was no express limitation to that effect. Fundamentally, the breaching of constitutional principles or conventions as they are commonly called, cannot be resorted to unless there can be exceptional reasons for so doing.

From this viewpoint, no stretch of the imagination can justify the alleged non-allocation of funds from the Development Lotteries Board to the President's' Fund as an acceptable or justifiably grave breach of faith for this departure from the principles of 'co-habitation' that the December 2001 electoral mandate imposed on our rulers. For its own part and with regard to crucial issues impacting on the peace process, the Government needs to acknowledge the duty of consultation with the office of the President in a more forceful manner than has been hitherto evident.

In the alternative, the distasteful strong-arm tactics displayed at the Government Press may be a foretaste of what is to come if an open conflict is provoked between the Presidency and the Government. It is imperative therefore that critical interventions by this country's public be made, (some of which have already been evident by the clergy and the business community), calling upon our rulers to act according not only to the letter of the Constitution but also its spirit.

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