Go set a watchman – Part I

By Austin I Pullé

Lady Hale and Lord Reed, in delivering the unanimous opinion of the UK Supreme Court in the latest Brexit case (after noting that it was a “one-off case”) observed that “our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.”

Judges and lawyers the world over do attempt to meet new challenges by using legal tools to reach a solution, but with varying degrees of success. Sri Lanka likewise has access to a rich hinterland of decisional law that can be applied to arrive at well-reasoned solutions without resorting to palm tree justice. Despite these similarities on the use of precedent between English and Sri Lankan, the record of the Sri Lankan courts on treating past decisions is uneven, if not unsatisfactory. Such inconsistency has arguably contributed to the widespread dissatisfaction with what many perceive as the ineffectiveness of both the law and the courts in controlling the rampant abuse of power by a chumocracy, that is seen as being impervious to constitutional provisions and legitimate public concerns over accountability. Segments of the public, used to looking to the courts as the only institution with integrity, are alarmed at the prospect of them being made impotent to stop egregious and widespread illegality and the impunity of officials who violate the Constitution and other laws.  

In India, the Supreme Court has adopted a robust interpretation of the Indian Constitution to curb some of the Indian officials’ wild acts of misgovernance. In comparison, the Sri Lankan courts have been diffident when they could have legitimately played a more active role in curbing bad governance without in any way being accused of overstepping their role. This diffidence could and should change if Sri Lanka is to realise the potential of its citizens. Article 3 of the Constitution read with other provisions provides both normative justification and mandate for an enlarged role of the courts in protecting the citizens. Article 3, it is here argued, provides the foundation for the development of a set of dynamic norms that are necessary to protect a hapless population from lawless and arbitrary actions that make a mockery of the grand enumeration of Fundamental Rights in the Constitution. Judicial activism could also arrest Sri Lanka’s rapid slide into failed state status.

Article 3 of the Sri Lanka Constitution

Article 3 reads: “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” 

The Courts and commentators invoke Article 3 more often as an incantation rather than a reliable touchstone capable of developing specific and applicable norms in different contexts. Accordingly, the Courts and the general public have tended to view the content of Article 3 not as a constitutional provision of the utmost importance, but one, instead of generating important normative content, must nevertheless be cited to garnish a judgment. It is suggested that if Article 3 is perceived as an unbreachable guardrail for the rights and privileges of the citizen against the predatory behaviours of the executive, the quality of governance can be alleviated without the need for even more constitutions enumerating parchment rights that few believe can be invoked successfully. An unwillingness to examine the substantive content of the text has unfortunately led to misunderstandings in evaluating constitutional questions, leading to conclusions that do not comport with Article 3. 

This essay attempts to explore the richness of Article 3 by examining its application to some topical and controversial issues. These are:

a) The recent Court of Appeal decision on the status of Gotabaya Rajapaksa (GR) as a double national; this essay concludes that the Court should have held, relying on Articles 3, 4.1 and 12(2) of the Constitution, that the declaration of the resumption of sovereignty awarded to GR by his brother, former President Mahinda Rajapaksa, was invalid and therefore is of no force and effect.

b) The constitutionality of the proposed status of forces agreement between the Government of Sri Lanka (GOSL) and the US (SOFA). Relying on Articles 3, 4(1) of the Constitution and the Diplomatic Privileges Act, this essay concludes that a SOFA, on the lines disclosed in a newspaper, can never be constitutional.

c) Whether the Singapore-Sri Lanka Free Trade Agreement (“SLSGFTA) violates Article 3 and other provisions of the Constitution. Relying on Articles 3, 14(2) and 157 of the Constitution, this essay argues that the SLSGFTA is of no force or effect in Sri Lanka.

d) The proposed amendment to the law allowing foreign-owned companies to buy freehold landed property. The essay argues that based on Articles 3 and 157, legislation on the proposed lines as set out in the newspapers will be unconstitutional.

e) The judicial power of people who are sovereign under Article 3 is required by Article 4 to be exercised by the Courts. This power includes the power to punish by contempt. Could the Courts, under their inherent contempt of Court powers, prevent riots by injuncting proposed gatherings that amount to unlawful assembly, and punish not only the rioters but also police who do nothing to quell them?

Court of Appeal’s decision on the citizenship status of Gotabaya Rajapaksa

Like the Brexit case, the Court of Appeal had to decide a “one-off” case involving the awarding of double nationality declaration to GR by his brother shortly after the latter was elected President of Sri Lanka. The decision failed to explore the ramifications of Article 3. Article 3 must be interpreted to mean that the law, being the expression of sovereignty, has to be respected. Instead of preferring the simple analysis to the complex, the Court may have in effect breached Article 125 of the Constitution, which reserves the exclusive jurisdiction of interpreting the Constitution to the Supreme Court. (Technically not so perhaps because the provisions interpreted are no longer part of the present Constitution.) Leaving aside the question as to why the action was not stayed “in limine” and referred to the Supreme Court, and assuming that the Court had the jurisdiction to do what it did, the reasoning of the Court can be criticised for many reasons. 

What lawyers call the “ratio decedendi” of the case was stated by the Court as follows: “The Constitution provides ample textual support for the proposition that, following the assumption of office, the newly elected President could have exercised powers conferred on a Minister by any written law until the Cabinet of Ministers was appointed’”. 

If the Court had followed the logical conclusions of this unexceptionable statement of the law, the result would have been different. 

It is arguable that an unarticulated ratio was in play. If one has to inductively derive this unarticulated ratio, it would go as follows: “In the interim period between the assumption of the presidency and the appointment of a Cabinet of Ministers, the President being the repository of all executive powers can exercise ministerial powers in the manner as he/she deems fit.” 

Such a brittle ratio does not even survive the mildest of stress tests. For example, during this interim period, can the President bypass all procurement laws and regulations and award a sole source contract to a Chinese contractor to build a theme park in the Yala Game Sanctuary? If the obvious answer to this in the negative, the corollary in the GR case should have been as follows: Did the President by awarding the double nationality to GR do something, which if it had been done by a minister or a bureaucrat, would have been illegal? If the answer to that is yes, and the answer to that is indeed a yes, then the action of the President in purporting to confer the double nationality status on his brother, GR, was a sham, an illegal act and therefore of no force or effect. 

Before developing this argument, a few preliminary matters should be addressed:

First, GR was disqualified under a provision of the 19th Amendment that was green-lit by the Supreme Court. The disability sought to have been imposed on GR and other double nationals, including his brother, by the 19th Amendment should never have been enacted unless the people approved it in a referendum. The Supreme Court bench, considering the constitutionality of the proposed 19th Amendment, did not even cite nor engage with the earlier decision of a five-judge bench that delivered its opinion regarding the 18th Amendment. If the Supreme Court shows such scant regard for a recent decision by a larger bench, unlike the UK Supreme Court that uses previous cases as “legal tools” to enable it “to reason to a solution”, the confidence of the public in the integrity of the judiciary could be undermined.

In the 18th Amendment case, a bench of five judges presided over by the then-Chief Justice unanimously held that the franchise was enlarged because there was one more person, the sitting President, who could be a candidate. The Court held that this enlarged the choice of the people and did not affect the franchise. If one engaged with the implications of this ratio, it would have addressed the converse proposition: If the electorate was deprived of the chance of electing a person widely perceived as a war hero who delivered the country from the scourge of terrorism not only as its President but even as a member of Parliament, the franchise was surely affected. 

The disability proposed in the draft 19th Amendment should have been referred to the people in a referendum. A survey of public opinion would very probably confirm that the electors of the country would overwhelmingly have preferred to retain the right to elect double nationals, many of whom have achieved eminence abroad, instead of being restricted by being allowed to vote only for the usual class of candidates on offer, their children, and grandchildren who are genetically driven to serve the people regardless of the tremendous costs and impoverishment that this sacrifice entails (to be noted however, was that this disability was at most a tangential issue. The only issue was whether GR had “resumed” his Sri Lanka citizenship in 2005).

Second, the declaration of “resumption” of citizenship is not to be granted lightly. It is ironic that GR himself, when he was Defence Secretary, showed that he understood the importance of the act of re-admitting a foreigner to the group who owns the country’s sovereignty. It was reported that he once suspended the grant of double nationality to applicants, and after the suspension was lifted, personally interview applicants to determine not only their eligibility but also suitability for re-admission to a class from which they voluntarily repatriated themselves. This is a standard of a conscientious civil servant examining an application for double nationality.

Third, there is the case of the missing files. No Poirot is required to observe that this is a typical instance of skullduggery undertaken by Government officials in Sri Lanka. The mysterious disappearance of relevant files is the bane of citizens dependent on them to vindicate their rights. The Courts could aid citizens by fashioning a presumption that the contents of the file would have been detrimental to the party who benefitted most from its disappearance. As Poirot’s more famous predecessor from Baker Street stated “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” Of course, given the highly charged political features of the GR case, both sides could have benefitted from the disappearance of these files, and therefore in such circumstances no presumption can be legitimately applied. 

Fourth, the Court’s observation, identified by the Court itself as obiter, that the Plaintiffs did not come to Court with clean hands. The Court’s discussion of these issues shows a lamentable failure of not seeing the woods for the trees. The principal or even the sole question before the Court should have been: “As the country’s sovereignty is vested in the people of Sri Lanka, was GR, as an American citizen, lawfully admitted to its ranks?” Framed in such precise terms, the Court could have engaged in a more focused analysis. 

However, the Court was distracted by extraneous issues, such as the upcoming Presidential Election with GR being the nominee of a highly popular political party that were not germane. If the SLPP wanted to risk nominating a candidate whose eligibility was questioned by certain sections of the Sri Lankan community, then it took the risk of having its candidate disqualified. This was not the concern of the Court. If the Court had held that the declaration of resumption of citizenship was of no force or effect, of what use would have been its statement of principles on clean hands? 

The doctrine of clean hands does not require that the Plaintiff be disinterested. It only states that when a Plaintiff who have themselves engaged in egregious conduct seeks an equitable remedy, the Courts will deny such remedy on common sense principles such as the proverb about those living in glass houses. In fact, as subsequent reports of death threats to the plaintiffs show, it takes exceptional courage for a citizen in a case so charged with political violence to bring the action that they did. In Brexit Britain, MP Jo Cox was murdered by a man who accused her of being a traitor. Gina Miller, an anti-Brexit campaigner, has also been the subject of death threats. The UK Court did not stoke this fevered sentiment but emphasised the respect and protection that persons like Miller were entitled to. The Sri Lankan Court admits that these observations were obiter, i.e. unnecessary to determine the outcome of the case. It then would have been desirable if the Court refrained from indirectly impugning the character of the Plaintiffs in ill-advised obiter dicta, instead warning the public that attacks or threats to the Plaintiffs would be deemed to be an obstruction of justice which would attract the full force of its contempt. 

Finally, although the Court denied the existence of ‘plenary powers’ of the President and the holder of privileges akin to a royal prerogative, it in effect accorded to the President a set of rights which centuries earlier had been denied to the British king. The first article of the Bill of Rights (1689) declared that: “the pretended power of suspending the laws and dispensing with laws by regal authority without consent of Parliament is illegal.” However, in effect, this is what MR did, and what the Court in effect allowed him to do, with Section 19(2) of the Citizenship Act. 

The application of Occam’s razor to the dispute would have made unnecessary the lengthy discussion of the doctrine of plenary powers and repository powers. Rather than decoding enigmatic provisions in the Constitution, the Court could have examined the simpler question of whether the President, in the exercise of Section 19(2) of the Citizenship Act duly awarded GR the citizenship certificate pursuant to that provision or under some residuary power that was untrammelled. The Court had already held that the President must act pursuant to the written law that would bind a minister in the same position. Several cases had established the public trust doctrine as a cornerstone of constitutional law jurisprudence. The Court made a mistake when it confined the President’s duty to follow only “written” law because Article 16(1) confirms that the unwritten law continues to be in force, and this unwritten law, of course, binds the President. 

Section 19(2) states the two requirements for the “resumption” of Sri Lankan citizenship:

First the person in question must “make an application to the Minister for a declaration”; and 

The Minister may make a declaration “if he is satisfied that the making of such declaration would, in all the circumstances of the case be of benefit to Sri Lanka.”

The assumption of the presidency in November 2005 took place over a weekend. The declaration of SL citizenship to GR was issued on the following Monday. 

This timeline creates problems for the Respondents, problems that did not get the attention of the Court. There is no averment that GR did make an application for the declaration. Government offices are closed on the weekend, and it is unlikely that the double nationality applications forms that ordinary mortals have to complete were made available. No one will seriously argue that a verbal application would satisfy the requirement of Section 19(2) of the Citizenship Act. Given the importance of the outcome of a double nationality application, it would be risible to suggest that an informed decision about such an application can be made on the basis of a verbal application. As thousands of double nationals would attest, the application for double nationality is a convoluted process requiring the filling of forms, the tendering of birth certificates and other documents, and the payment of a fee. (Disclosure: The writer is a double national. Authorities reviewing his application for double nationality required him to provide, among other documents, translations of the Latin – by a certified translator of Latin no less – used in the certificates issued to him by an American university.) A payment of a fee by the applicant is required. Surely, any fee that should have been paid by GR would have been credited to the relevant bank account, and whether he did pay such fee could be ascertained by an examination of such accounts, unless of course an official Houdini had made the required data vanish. 

Second, there is a well-established body of jurisprudence dealing with the impact of bias on decision-making by officials and the discharge of the public trust doctrine that is a hallmark of constitutional law judgments. 

While most of the cases deal with the ‘negative bias’ where the presence of bias leads to an unfair, albeit positive, outcome, the same principles apply. For instance, if a Government official reviewed and approved the double nationality application of his sister, it is beyond cavil that such approval would be invalid. MR, when President, was no less bound by this rule, as would have been this official. There was not only a real likelihood of bias but the probability of bias was also high. The principles of bias foreclosed him from making the determination on GR’s “application”. 

The only issue is whether the declaration was void or voidable. In view of the difficulties of surfacing such abuses of power, the course open to the Court in order to enforce the principle of natural justice is to declare such declarations void ab initio. 

Scholars such as Dr. Dinesha Samararatne have discussed the public trust doctrine in Sri Lanka and derived certain bedrock principles from the Supreme Court decisions. A typical statement of this doctrine is found in the case of Prachanda vs. Major Montague Jayawickrema, where G. P. S. De Silva, C.J. held as follows:

“There are no absolute or unfettered discretions in public law; discretions are conferred on public functionaries in trust for the public, to be used for the public good, and the propriety of the exercise of such discretions is to be judged by reference to the purposes for which they were so entrusted.”

It is improbable that the mandatory requirements of Section 19(2) of the Citizenship Act and the fetters imposed by the public trust doctrine would have been uppermost in the mind of the then-President during the exuberant celebrations that follow a presidential victory, or that the application process would have been diligently complied with by a presidential sibling. Moreover, in view of the mysterious disappearance of important files, it would be totally inappropriate for a Court to invoke a presumption that official acts were properly carried out and require the person challenging the order to prove otherwise. 

Had Mahinda Rajapaksa, flush from his victory in the 2005 election, been walking on Galle Face Green on Sunday after he was declared the winner and encountered an old high school friend on his walk who asked him to make him a double national, and had MR, whose secretary was following him with a sheaf of papers, produced a declaration of citizenship form which MR signed, it cannot be seriously argued that the “resumption” of citizenship so concluded was valid. The process by which GR “resumed” his citizenship is not materially different, and the declaration obtained by GR was no less invalid, being of no force or effect. 

In the days when a Governor represented the British monarch, the Bracegirdle Case was decided. In that case, Sir Sydney Abrahams, arguably the best Chief Justice of the country, held that despite the extensive range of powers of the Governor, there were constraints imposed by law, and that the action of the Governor breached those constraints. He memorably stated: “I should have nevertheless held that we are entitled, and indeed we have a duty to inquire as to whether the conditions which must be satisfied before power granted to an executive ‘officer can be exercised have been fulfilled.”

Had the Court of Appeal borne this in mind and correctly focused its efforts on the interpretation of Section 19(2) of the Citizenship Act, the public trust doctrine and the rule against bias would have prevented them from the conclusion that made Mahinda Rajapaksa, the Sun King of Sri Lanka, effectively declare, “l’etat ce moi”.

(To be continued.)