The Two Constitutions Of Sri Lanka

| by Gamini Weerakoon

( April 29, 2012, Colombo, Sri Lanka Guardian) Is the 13th Amendment: coming, going or gone? It is the question about which Sri Lankans are beating out their brains out and so are the Indians. Has Mahinda Rajapaksa accepted the 13th Amendment and will he implement it or he has decided—as we Sri Lankans say— to ‘quietly forget about it’?

Who is lying?

Did he tell Indian Foreign Minister S. M. Krishna when he visited Sri Lanka in January that the 13th Amendment Plus would be implemented or did Krishna make it all up when he said at press Conference that Rajapaksa agreed to implement the 13th Amendment? Or did Rajapaksa play and Indian rope- trick on the Indian Foreign Minister? Did Rajapaksa tell Sushima Swaraj the Leader of the Lok Sabha (Lower House) who led a delegation of Indian MPs to Lanka that the 13th Amendment Plus would be implemented or was the honourable Leader of the Opposition of the Lok Sabha lying? Or was our leader lying? But whether the 13th Amendment is implemented or not it has been enacted into the Sri Lanka Constitution for a near 25 years and been there all the while. So what happens to the 13th Amendment?

No constitutional expert could provide u s with an answer and we sought the wisdom of a veteran of Law College who had long years.

‘My dear Serendipitous you appear to be clueless. Little wonder, you can’t even get to a ‘hoo’ distance close to Temple Trees. Only the Law College veterans who were there for many years know what is happening in the kitchen cabinet, he said.

On paying his ‘fee’ of a few generous Scotch and soda at the Water Hole he unbuttoned the secret.

The two constitutions

It is true that the 13th Amendment has been enacted; it is in the constitution and HE, his brothers, sons, family members, first cousins, distance cousins and all who are in government positions have all sworn to abide by the constitution. Therefore the 13th Amendment is accepted.

But it is also true that the 13th Amendment is not a accepted the Expert decalred with the triumphant smile of a genius revealing a hidden truth and went on.

Under the Rajapaksa rule the constitution has evolved not only visibly but invisibly. You see that an Unwritten Constitution has been in operation for sometime.

How could it be?

This is unheard of, we declared. Come, come Serendipitous. Haven’t you heard of the British Constitution which is unwritten. Now if the British can have one why can’t we have two—one written and the other unwritten? We are not going to follow the beaten track of those Western imperialist tutors, Jennings, Erskine May and all that.

So what happens to the 13th Amendment?

The veteran continued: It is there and not there. The written constitution has it and when Rajapaksa swears to Indians about the 13th Amendment he is telling the truth. When he denies or stays silent with the local media he is also telling the truth because the unwritten constitution does not have it.

The expert continued: It is a difficult concept for pre Rajapaksa era constitutionalists to understand. If you know the Quantum Theory of Matter you may be able to grasp the Rajapaksa principle. The behaviour of an electron can be explained considering it to be a form of matter. It can also be explained as a wave of energy but the exact position of and electron cannot be determined.

An analogy would be like that of the Greek philosopher Heraclitus’s theory of constant flux: You can’t step into the same river twice because the water keeps flowing.

Adey, Adey this is real Mahinda Chintanaya. Like Einstein’s E= MC2 (M=Mahinda; C=Chintanaya), we chipped in. But what is the legal basis for having two constitutions?

Dual Constitutions

The Sovereignty of the People. The 13th Amendment is there in the written constitution of J. R. Jayawardene which he claimed was enacted on a mandate given by a stupendous majority in 1977.Never mind if Rajiv Gandhi forced the amendment down his throat but let’s admit that it is in the written constitution.

The Rajapaksa Mandate is different. He too got a massive majority. And if he accepts the 13th Amendment he will lose that massive majority. Therefore under the Unwritten Constitution he can’t accept that amendment.

So why can’t he say that the 13th Amendment won’t be implemented? My dear Serendipitous, as Kautilya and his counterpart the Italian Machiavelli said: Politics is the art of the possible. Remember what happened recently at Geneva?

So by what constitution will Rajapaksa govern or the rest of his term or for ever?

Most of the time by the Unwritten Constitution. But that will not be with the consent of the masses.

My dear fellow for the past two years the Unwritten Constitution has been in operation and you think the masses knew it? The hard reality is that the masses are asses.