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Sunday, 3 February 2013

Defending the constitution

I had the opportunity of watching the entire second inauguration of Barack Obama on Sunday and Monday on television. On Sunday it was a private ceremony and on Monday which happened to be the Martin Luther King day it was a public ceremony with all pomp and pageant attended by nearly a million of people. On Sunday, Obama placed his hand on a Bible used for years by Michelle Obama's family. On Monday, he took the oath using two Bibles, one owned by Martin Luther King and one by Abraham Lincoln. On both occasions he said “I Barack Hussein Obama do solemnly swear that I will faithfully execute the office of President of the United States. And will, to the best of my ability, preserve, protect and defend the Constitution of the United States, so help me God,” his hand on Bibles. I did not see any African culture during the ceremony and whatever the origin of Obama may be it was a hundred percent Anglo Saxon Protestant Christian affair with Obama asking the help of the God (definitely not Allah) to defend the Christian constitution of the USA with hand on Bibles. No civic rights movement people were there to ask Obama to speak in Spanish or to respect the other religions by at least inviting the clergy of those religions. The Sarva Agamika concept is not in the vocabulary of the Americans and I propose that we send some Sarva agamika Clergy to USA to teach a lesson or two on that concept to the white house people. I could not see Navanitham Pillai or even Ban Ki Moon among the distinguished gathering inside, perhaps they were mingling with the people, whom Obama referred to as We the People more than ten times during his brief speech. The public ceremony came to an end with a rendering of the National Anthem of USA sung in English only. Though there are a substantial number of Spanish speaking people even if we go by the nomenclature of Sambandhan, no Spanish was spoken and no translations of the speeches into Spanish were given during the entire ceremony. I thought there would be at least a sprinkle of Aboriginal culture but during the entire ceremony no mention was made of the aboriginals. Barack Obama is only dark in colour but in all the other aspects he is a white Anglo Saxon Protestant upholding the Christian constitution of the USA. This is something that a former envoy of Sri Lanka in a western Christian country could not understand by claiming that the Americans had elected a black American as the President. If any Tamil leader is prepared to respect the Sinhala culture and consider it as the significant culture I am sure that he would be considered for the President of Sri Lanka.

I do not mention these facts in order for our civil rights Gandhians and Lutherians to take the next plane to Washington to begin a civil rights movement so that at least by the next inauguration the ceremony would be conducted in Spanish as well and that the National Anthem would be sung in Spanish and an aboriginal language in addition to English. Anglo Saxon white Protestant Christian culture is the dominant culture not only in USA but in the whole world. All that I want to emphasize is that due recognition should be given to the Sinhala Buddhist culture without demeaning that culture by invalid arguments brought out by a hatred that the westerners and the Tamil racists have for the same. In the meantime I am worried by Obama’s statement to the effect that the Americans are committed to defend democracy in Asia and Africa. The problem with that concept is that the democracy is of the American people, by the American people for the American people. It is this democracy that Obama wants to defend in Asia and Africa and not the democracy that the Asian and African people would like to protect. Just as much Obama has taken an oath to defend the American constitution Mahinda Rajapakse has taken an oath to defend the constitution of Sri Lanka whether it is bahubutha or not. The other countries including USA should recognize the sovereignty of Sri Lanka by allowing Mahinda Rajapakse to defend the constitution.

The impeachment of the CJ is purely an internal matter of Sri Lanka and no foreigner however powerful he or she may be, should interfere with the procedure or the judgment given by the President. When the Appeal Court granted leave to proceed with the petitions filed praying for a writ to issue on the Parliamentary Select Committee (PSC) the Appeals court was in error to say the least. I have argued that the Appeals Court has no jurisdiction on this aspect in these columns and elsewhere and I do not want to repeat those arguments. I am not a lawyer by training but I am confident of my reasoning and arguments. The Appeals Court, meaning the three judges who sat on the bench referred a certain question to the Supreme Court on the grounds that they were requesting an interpretation of the constitution. The way the question was drafted and also the answer that the three judges who sat on the Supreme Court leave doubts on the minds of the average people such as me as to the genuineness. It is true that the Supreme Court is the sole authority on interpretation of the constitution but there are few questions that have to be asked with respect to this matter. It is a case involving the punishment of a judge and not an ordinary case. The disciplinary actions of judges are no ordinary matters and the constitution lays down a separate procedure when it comes to disciplinary matters of the judges. There is no provision in the constitution or elsewhere for an accused judge to appeal against the judgments of the President in such cases and the President cannot give arbitrary judgments as he is guided by the Article 107 (2) of the constitution. The Appeals court in their hurry quashed a decision of the PSC, which was only a finding and not a sentence or a judgment, depending on a so called interpretation of the constitution the Supreme Court. The appeals court is not empowered by Article 139 or 140 or any other article to quash a judgment that had not been given and also to interfere with deliberations of the parliament according to Article 80. There was no judgment to be quashed as at that stage the President had not removed the CJ. The Appeals Court had only a finding by the PSC which was an instrument of the Parliament that had judiciary powers together with the President in the case of disciplinary actions against the judges.

The Supreme Court amended the Article 107 (3) in the guise of an interpretation thus encroaching on the powers of the Parliament. In any event under 107(3) the Parliament could either by law or by standing orders provide the forum with the procedures etc., to “impeach” a judge. The standing orders are no law in the sense that they are not acts of Parliament but 107 (3) is law and abiding by that Article is not against the law nor illegal. The Supreme Court amended 107(3) and removed the words “or by standing orders” in that Article. In any event the parliament had acted in accordance with 107 (3) which is law in appointing the PSC as provided by standing orders 78 (A). Does the Supreme Court say that acting according to 107 (3) is illegal? The Supreme Court and the Appeals Court appear to have given unlawful judgments and have failed to uphold the constitution. The parliament on the other hand upheld the constitution and acted within the powers that have been invested in it by the constitution. The President has defended the constitution and not acted violating the constitution. However, the President and the Parliament are accused by the Brahmins and Navaneetham Pillais, the Canadian Prime Minister, commonwealth stalwarts and others for not upholding the constitution. They on the other hand praise the Appeals Court and the Supreme Court that have failed to uphold the constitution encroaching on the powers of the Parliament, and quashing judgments that had not been given.

President Obama is supposed to defend the American constitution in USA and not in other countries. Unfortunately it is the American democracy that is being defended everywhere in the world and when our courts act in a way so as to defend the American democracy they are praised condemning the President and the Parliament that have defended our constitution even if it is a bahubhutha constitution. The government that could not be influenced by the western powers, India and Brahmins during the humanitarian operations would not bow down to these powers and would only laugh at the claim by the impeached lady who still claims to be the CJ. On the other hand though the government should consider the possibility of impeaching the judges who have not upheld and defended the constitution it is unlikely that the government would do so and pardon them.

Copyright Prof. Nalin De Silva