“Facts do not cease to exist because they are ignored” – Aldous Huxley

While the Supreme Court of this country continues to establish as to what constitutes fact amidst the sea of confusion that is being meticulously created over the interpretation of the Constitution in general and Articles 30(2), 62(2), and 83(b) in particular on the eve of a defining Presidential Election, it appears that the powers that be have chosen to ignore those interpretations, possibly in the puerile hope that those established facts will cease to exist if they are ignored, as observed by the British writer and author of ‘Brave New World,’ Aldous Huxley.

There is no other explanation or rationale for the continuing consultations of the apex court when it has already – on multiple occasions – not only established the correct tenure of the presidency in accordance with the 19th Amendment, but in doing so, has, by default, ratified the constitutionality of the 19th Amendment; meaning due process having being followed – to its satisfaction – in its adoption.

In dismissing the last petition filed two weeks ago by a ‘businessman’-cum-Attorney-at-Law seeking clarification on the tenure of the presidency, the court did not hide its displeasure on repeatedly being asked the same question and admonished the Petitioner to read up on prior determinations of the court. Court also ordered the petitioner to pay Rs. 100,000 as costs.

Despite this taking place on Monday (8), by Friday (12) of the same week, yet another petition had been filed in the Supreme Court on the same lines, seeking an order to withhold the upcoming Presidential Election, claiming that the 19th Amendment to the Constitution is flawed. This time the contention was that due process had not been followed in its passage in Parliament. 

The Petitioner, the second random Attorney-at-Law praying for court intervention to halt the Presidential Election, reeks of both political desperation as well as manipulation despite assurances to the contrary, interestingly enough from the current holder of that office, when no one had even asked for such assurances. Following the President’s denial of a hand in the first petition, stating the Petitioner had no dealings with him, questions were raised as to the bona fides of that statement and why one was warranted in the first place.

However, what cannot be disregarded or dismissed as mere politicking is the seemingly systematic attempt to undermine judicial authority. It was just last month that the President, seeking refuge behind parliamentary privilege, accused the Judiciary of cannibalising its own judgments. In a country where the Judiciary is yet held in the highest esteem, the Presidential attack not only raised eyebrows but also provided an indication of the Executive’s thinking and mindset. 

It will be recalled that prior to the President’s parliamentary outburst, the Minister of Justice took exception to the Judicial Service Association (JSA), which represents magistrates and district judges, condemning a statement he made, in which he levelled serious allegations against several serving judicial officers. The Minister angrily called on the Speaker to summon key officials of the JSA before Parliament. However, not anticipating the storm of protest from both civil society and the parliamentary Opposition, as well as calls to keep his hands off the Judiciary, the Minister was forced to backtrack on the request, which he eventually withdrew.

Probably having felt the pulse of the people for the first time following this ill-fated call to the Speaker, the Minister appeared to have done an about-turn judging by his comments in Parliament last week, where he called on both the public as well as the legal community not to make a mockery of the Judiciary. 

Referring to the latest petition seeking the postponement of the Presidential Election, the Minister is reported to have stated: “A situation has arisen where people file cases based on their whims and fancies. Even lawyers who are aware of the law shamelessly file cases, making a mockery of the Judiciary. We as politicians should not overstay our welcome even by a day.” Dramatic words no doubt, but whether he’s willing to walk the talk, only time will tell.

During this outburst on Thursday, the Minister also went on to make an interesting observation. He said the 19th Amendment had been introduced in keeping with the mandate of the ‘Yahapalana’ regime in 2015 to restrict both the presidential and parliamentary terms to five years. The Minister, who served in the same capacity back then and therefore had a ringside view of developments, noted that the amendments had been introduced in accordance with observations of the Supreme Court and that amendments that needed to be passed by a referendum were therefore not included in the 19A, which explains the omission of Article 83(b), which has now become the primary bone of contention.

Be that as it may, as we predicted in this space last week about another gambit in the making, the President is reported to have obtained Cabinet approval to amend Article 83(b), nine years after the introduction of the 19th Amendment, during which time he served five years as Prime Minister and now two years as President. Therefore, having seen no necessity to do so for seven of the nine years during which he has held powerful office, the sudden urgency to make the change one week before the Election Commission is empowered to proclaim the Presidential Election has understandably led to an explosion of conspiracy theories.

What would be interesting to find out is whether the then Prime Minister and current President, who has been considered as the godfather of the 19th Amendment, was in fact aware of the willful omission of Article 83(b) referred to by the Justice Minister and, if so, whether in fact this had been done with ulterior motives. The President’s Cabinet proposal states that “there is an inconsistency in Articles 30(2), 62(2), and 83(b) of the Constitution regarding the tenure of the President and tenure of Parliament. For avoidance of doubt and to remove any inconsistency, it is hereby proposed to substitute the words ‘exceeding six years’ with the words ‘exceeding five years’.” However, the crunch is that any dabbling with Article 83(b) would necessitate a referendum by default in terms of the existing provisions of the Constitution, which interestingly the apex court has already ruled as redundant given the clarity of Article 30(2).

Meanwhile, a group of Opposition MPs who appear to have smelled a rat, personally visited the Elections Secretariat on Friday (12) and requested the Election Commission to announce the Presidential Election in the first instance it is constitutionally empowered to do so, in order to prevent conspirators from taking the upper hand.

It is a well-known axiom that desperate situations call for desperate measures. When it comes to the incumbent President who ascended to power through a constitutional manoeuvre, having being completely wiped off the electoral map at the last election, it is understandable that giving up power after two short years may not be that easy – especially when an entire party is subsisting off that office, not to mention the exploitation of State resources to further electoral ambitions.

It is in this context that both the collective Opposition as well as the people who have consistently demanded change since 2022 are making it known in no uncertain terms that, notwithstanding the controversies being created, the election must be held on the due date. Besides, what is unforgivable is the attempt being made to rope in the Judiciary to these conspiracies. Therefore, all eyes will be on the Election Commission of Sri Lanka, which will be statutorily obligated to proclaim the Presidential Poll after midnight on Wednesday (17).