Supreme Court: Freedom’s Last Defense

Featured image by SCC Online 

PROF. JAYADEVA UYANGODA- 11/13/2018

The constitution is perhaps the most read official document in Sri Lanka today. Subjected to selective reading, a few of its words and sentences have been gaining some strange interpretations.
Amidst an unprecedented political crisis, we Sri Lankans are caught up in a war of constitutional interpretations as well.

Since this war of constitutional interpretations has reached the Supreme Court, I was wondering what arguments lawyers for the petitioners and the state would put forward before the learned judges.
Arguments by the petitioners’ lawyers would be that the President disregarded constitutional provisions that explicitly lay down limits of his powers with regard to the dissolution of parliament. They will also argue that presidential actions violated both the explicit provisions of the constitution as well as the intentions and the constitutional scheme that guides the meanings and application of 19^th Amendment.

It is not clear what arguments the Attorney General would put forward on behalf of the President. However, arguments already advanced by President Sirisena’s lawyers in the media give a clue to President’s legal defence, which may or may not be accepted by the state lawyers.

These arguments represent two approaches to the interpretation of the constitution, which, I think, are both dubious and erroneous. The two approaches are as follows:

Sarath Silva Approach: Sarath Silva, a former Chief justice-turned-political entrepreneur, has advanced a very narrow and technical interpretation to argue that Presidential action of dissolving parliament was well within the meaning of the provisions of the 19^th Amendment. In this approach to constitutional interpretation, words and parts of constitutional provisions are abstracted and isolated from both the totality of provisions and the intentions and conceptual framework of the constitutional scheme of the 19^th Amendment. This method of constitutional interpretation enables the interpreter to produce strange and even absurd meanings to constitutional provisions. President Sirisena, with a political agenda to pursue, seems to have found Sarath Silva’s version of the constitutional provisions on president’s powers relating to the Prime Minister and dissolution of parliament politically worth accepting.

Wijedasa Rajapaksa Approach: While sharing Sarath Silva’s narrow interpretation of the constitution, Minister Wijedasa Rajapaksa, a leading lawyer-cum-politician with extensive private practice, has advanced an additional political argument. It holds the view that presidential act of dissolving parliament was a political necessity, created by a political deadlock arising out of the deficiencies of the 19^th Amendment. In this argument, the 19^thAmendment caused a political crisis. Yet it did not have provisions to resolve it. Thus, president was justified in taking a course of actions for which there are probably no explicit provisions. But such actions on implicit grounds are politically justified.

Both these approaches are based on a dangerous moral (not so moral) doctrine: End justifies means.
One can refute, with relative ease, the validity of both arguments by pointing out the following:
(a) Constitutional provisions should not be interpreted by applying narrow and technical standards and methods of interpretation when the meanings of constitutional provisions are explicit and unambiguous.

(b) If there were any ambiguity about the meaning of constitutional provisions relating to presidential powers on any subject, any good lawyer with fidelity to professional ethics should have advised the president to do the correct thing, that is, to seek the advise of the Supreme Court, before taking action on a matter that has massive uncertain, unpredictable, and destabilizing political consequences. President himself, who is constitutionally mandated to defend the constitution, should have chosen the first option of seeking a determination from the Supreme Court, instead of going after self-seeking legal experts with dubious intentions.

(c) Was it the 19^th Amendment that caused the political deadlock by sacking the Prime Minister and exacerbated it by proroguing parliament, outside the explicit meanings and spirit of the 19^th Amendment? Not really. Instead of saying mea culpa, President Sirisena and his team are now blaming the victims of his own arbitrary action.

I do not know whether these points would be raised before the judges. It may perhaps be the case that the AG’s department will present more sophisticated and nuanced legal defences for President Sirisena. Being a non-lawyer, I am not familiar with the argumentative protocols of lawyers before a Supreme Court bench. But I assume that the judges too follow the news and get a sense of the most unsettling political consequences of what has been happening during the past two weeks.

One such consequence, so obvious to any alert citizen with a minimum level of constitutional literacy, is that if presidential actions during the past two weeks are given legal legitimacy, by means of crude or sophisticated justifications, that would mark the beginning of the end of Sri Lanka’s democracy and citizens’ freedoms and rights.

Let me explain why I make this hugely worrying speculation.

The doctrine of the end justifies means to constitutional or legal interpretation is one that serves not democracy, but autocratic, dictatorial regimes. So is the doctrine of political necessity implied in the political deadlock argument. These are doctrines that argue that the yardsticks of democratic constitutionalism, rule of law, constitutional morality, and democracy should be abandoned, or suspended, to suit political agendas of the leadership of the executive organ of the state.

These are doctrines that seek legal legitimacy for unconstitutional acts ex post facto (that is, after the illegal fact, or event). The arguments to justify the dissolution of parliament fall into this category of ex-post facto justification of plainly unconstitutional executive action. The strategy of the government is to present to the Court the fait accompli of dissolution of parliament and calling for election, and then secure the Court’s consent on the grounds that the matter is now before the sovereign people.

Alert citizens have a right to pray that their Supreme Court would also be alert to these political machinations that are designed to subvert the constitution, rule of law, and rights and freedoms of fellow citizens.

If President Sirisena’s actions are given legitimacy, as anticipated by various schools of constitutional immorality, that would mark the end of constitutional democracy in Sri Lanka. After that, liberty and freedom of no citizen would be safe from arbitrary interpretation and application of law and the constitution by those individuals who hold political power.

That is precisely why it has now fallen upon the shoulders of the judges of the Supreme Court to protect democratic constitutionalism which is under attack by those who know the law, and those who do not know the law, but exercise political power.

On this count, Sri Lanka’s Supreme Court has been called upon to perform a profoundly historic duty of being the final bastion in the frontier Sri Lanka’s democracy and the freedom of citizens. Of the three organs of the state, as defined in Article 4 of the Constitution, the executive, which is supposed to embody people’s sovereignty, has chosen the path of violating the constitution and paralyzing the functioning of the legislature, which is the second organ of the state that represent people’s sovereignty.

The judiciary is the only remaining organ to which the citizens can pray for the protection of their democratic future, freedoms, and rights, in these troubled and uncertain times.

And this is the historic moment of destiny for our Supreme Court not to fail the citizens of Sri Lanka and their prayers.

Editor’s Note: Read more about the current political situation here. 

Sri Lanka is being set up for a Balance of Payments Crisis

(Lanka e News - 12.Nov.2018, 9.00PM)  The illegal regime has created political turmoil by changing a government without an election, and compounded matters by announcing unsustainable, populist policy measures at a time of global economic turbulence. As a result, there has been a rapid outflow of US$ 84 billion from our debt and equity markets in just one week. This illegal regime is setting the country up for a Balance of Payments crisis by selling down reserves to defend the value of the Rupee. It would be instructive to remind ourselves how they tackled previous experiences of such crises.

The first balance of payments crisis they faced started in the second half of 2011. In fact in the budget of November 2011, it was probably the first time in modern history anywhere in the world, that a budget speech announced a forced depreciation of the rupee – an issue that ought to be the realm of the Central Bank’s monetary policy. The Central Bank continued to stubbornly defend the rupee by selling down valuable foreign reserves to the tune of US$ 4.1 billion. They also imposed a credit ceiling of 18% on all banks in 2012. Interest rates (PLR) shot up from 10.7% to 14.4% between end 2011 and end 2012. What was the net result? The currency crashed from Rs. 113.90 in end 2011 to Rs. 132.55 by end April 2012 along with higher interest rates and a permanent loss of valuable reserves.

But this was not the only measure taken by the government at that time. Let us refresh our memories.

• 01 January 2011 - Average electricity tariff was increased by 8 per cent.
• 01 March 2011 - The minimum purchase price of fresh milk at farmgate was increased to Rs.50 per litre from Rs.35 per litre.
• 02 April 2011 - The retail price of petroleum products were increased as follows: -

Petrol by Rs.10 to Rs.125 per litre

Diesel by Rs.3 to Rs.76 per litre

Kerosene by Rs.10 to Rs.61 per litre

• The price of a 12.5 kg cylinder of LP gas was increased by Rs.238 to Rs. 1,890
• 03 May 2011 - The maximum retail price of a 400 gram full cream milk powder packet was increased by Rs.20 to Rs.264 and the maximum retail price of a 1 kg full cream milk powder packet was increased by Rs.49 to Rs.647.
• 20 August 2011 - The price of a 12.5 kg cylinder of LP gas was increased by Rs.156 to Rs.2,046.
• 30 October 2011 - The retail price of petroleum products were increased as follows: -

Petrol by Rs.12 to Rs.137 per litre

Diesel by Rs.8 to Rs.84 per litre

Kerosene by Rs.10 to Rs.71 per litre

The fun continued in 2012.

• 12 February 2012 - The retail price of petroleum products were increased as follows: -

Petrol by Rs.12 to Rs.149 per litre

Diesel by Rs.31 to Rs.115 per litre

Kerosene by Rs.35 to Rs.106 per litre

• 14 February 2012 - Passenger bus fares were increased by an overall average of 20 per cent.
• 16 February 2012 - A Fuel Adjustment Charge (FAC) was imposed on the monthly electricity bill at the following rates:

Domestic Consumers 0 - 30 (units/month) 25%

31- 60 (units/month) 35%

Above 60 (units/month) 40%

Industries 15% Hotels 15% General Purpose 25%

• 04 May 2012 - The maximum retail price of a 400 g full cream milk powder packet was increased by Rs. 61 to Rs. 325 and the maximum retail price of a 1 kg full cream milk powder packet was increased by Rs. 163 to Rs. 810.
• The price of a 12.5 kg cylinder of LP gas was increased by Rs. 350 to Rs. 2,396.
• 01 October 2012 - Water tariffs of domestic consumers were revised upward by an average of 60 per cent.
• 15 December 2012 - The retail price of petrol was increased by Rs.10 to Rs. 159 per litre.
• 13 January 2012 - Special Commodity Levy (SCL) on the importation of the following food items was increased /imposed for a period of four months.

Item	Existing Rate	Revised Rate
Sugar	Rs. 5/kg	Rs. 10/kg
Masoor dhal - whole	Rs. 10/kg	Rs. 18/kg
Masoor dhal - split	Rs. 15/kg	Rs. 22/kg
Garlic	Rs. 25/kg	Rs. 40/kg
Peas – whole	Rs. 10/kg	Rs. 15/kg
Peas – split	Rs. 15/kg	Rs. 20/kg
Fresh/chilled/frozen fish	0	30% or Rs. 35/kg
Palm oil, soya bean oil, coconut oil	0	Rs. 75/kg

• 22 March 2012 - SCL on the importation of the following food items was increased for a period of nine months.

Item	Existing Rate	Revised Rate
Potatoes	Rs. 20/kg	Rs. 30/kg
Green gram	Rs. 50/kg	Rs. 75/kg
Kurakkan	Rs. 75/kg	Rs. 100/kg
Mandarin	Rs. 35/kg	Rs. 50/kg

• 12 May 2012 - SCL on the importation of the following food items was increased for a period of nine months.

Item	Existing Rate	Revised Rate
Sugar	Rs. 10/kg	Rs. 20/kg
B’ Onion	Rs. 25/kg	Rs. 35/kg
Green gram	Rs. 75/kg	Rs. 100/kg
Chillies	Rs. 20/kg	Rs. 25/kg
Peas – whole	Rs. 15/kg	Rs. 20/kg
Peas – split	Rs. 20/kg	Rs. 25/kg
Millet	Rs. 75/kg	Rs. 100/kg
Palm oil, soya bean oil, coconut oil	Rs. 75/kg	Rs. 90/kg

All of the above data is from the Central Bank Annual Reports of 2011 and 2012.

In spite of all of these burdens imposed by the government of 2012 on our citizens – the rupee depreciated by 14% in a period of 4 months in early 2012. All of this also took place when global interest rates were low – LIBOR was around 0.5%. Today it has increased by 6 fold – emerging and frontier markets are facing tremendous volatility.

Don’t be fooled by the cheap, myopic, populist pronouncements on taxes and prices – let us remind ourselves of what is in store for us if this illegal regime continues in power – it will be infinitely worse than what they imposed in 2012.

Mangala Samaraweera

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by     (2018-11-12 15:36:19)

Debacle of the UNP and the duty of the voter

Anil Pagoda Arachchi-Tuesday, November 13, 2018

President Maithripala Sirisena’s decision to dissolve the parliament sounds fairly prudent and timely since the country had plunged into anarchy and political wilderness due to the undemocratic statements flung by the Speaker in an attempt to harness ‘majority will’ in it to help Ranil Wickremesinghe to hold power of the Temple Trees. It is evident that Ranil Wikremesinghe does not seem to believe his own voters, and that’s why he wanted to convince the ambassadors from the West to impose their well-practised manoeuvres to manipulate the rein of internal political affairs of the country.

For the past three and half years, despite the flamboyant outbursts of the politicians, the economic policy of the country crippled its growth and hit the bottom of the economic stagnation. It was brought under tight international controls to such an extent that the country had to kneel down in front of the so-called international monetary bodies. This situation intensified the pressure on the already battered economy; and the currency, the real, collapsed to recorded low standards.
The prices soared for everything from the people’s daily provisions to the imported vehicles. Under these circumstances, President took the initiative to steer the country from the economic degradation it was heading for by appointing Mahinda Rajapaksa, the Prime Minister.

International community

Ranil Wikremesinghe was shrewdly aiming to focus the attention of the international community including the European Union to sanction the Mahinda Rajapaksa’s administration using the diplomatic and economic clout around the West. What these institutions were looking for was not to help resolve the situation but to topple the administration. The goal of their instruction was nothing else but regime change. If not for the wise decision taken by the President, the country would have easily be taken by the tentacles of economic hegemony of the West whose ultimate aim is to coerce the country to move on its banking and financial policies. With Mahinda Rajapaksa taking the responsibility of putting the country back on the track, there appeared a steady climb of the country’s currency, but it came to a halt because of the adverse situation created by the Speaker.

What happened to the national pride with Ranil Wikremesinghe’s administration? The country was brought under regional ambitions, and as a result, the economically viable ventures which were started by the Mahinda Rajapaksa’s regime were sold. This, in turn, raised fears among the general public of foreign influence because the harbours are directly related to the internal security of any country.

What is ludicrous in its foreign policy were the attempts taken to hand over the rest of the ports of the country to our neighbour in order to pacify them and to douse their dislike towards us for handing over the Hambanthota harbour to China. If this is the nature of the foreign policy of a regime, it, no doubt, raises the question of threat to the country’s sovereignty.

The real economic pain was felt by the poor when a more rigorous set of sanctions on the essential goods and the transactions was introduced. The measures taken by the government under the pretext of dealing with the foreign debt problem caused by the previous regime burdened the people and reduced their purchases nearly 50 % towards the end of the three and half years’ period. People found it very difficult to make their ends meet. The fact of the matter is the strategies adopted by the government such a fuel pricing formula forced the people to tighten their belts further and to watch how friendly alliances of the government empty the coffer through the frauds such as Bond Issue controversy.

It was right for the leadership of the country to worry and to do what was expected from him, that is, to think of the country before his political affiliations. His moves already appear to have an effect. Political analysts project that holding general elections will definitely pave the way for establishing political stability that will help the economy grow pulling it out from its present dilapidating state.

Fresh elections

With the politicians from the green hot on their heels seeking redress from the Supreme Court for what they term as unconstitutional moves by the President, and trying to cover their failure to improve the economy, the President’s sudden decision to call for fresh elections will strengthen democracy allowing people to decide what they can do to safeguard their country from political and economic chaotic situation.

What is the sublime duty of the voter at this juncture? Should they let those politicians who took them on a ride trick them again? It is the supreme duty of the people of the country to elect those who are truly congruent and genuine in their thoughts and deeds to serve the country. The development gained by pawning the country to the international community or institutions must be understood as a political hara-kiri. We all must lobby for an independent state devoid of the visible or invisible strings of the West with which they trap us either covertly or overtly.

Though we are torn apart by political colours, we must be intelligent and modest enough to understand with our social consciousness who have displayed over the years their immaculate love for the country, its environs and its people.

The lessons learnt in the recent past of the country when it was gripped in a civil war can guide the people to realize who the real leaders are to take the country into the future in order to turn it into the miracle of Asia in all its splendour and glory. 

All eyes on SC

 2018-11-13

President Maithripala Sirisena has dug himself into a hole. Each desperate move he made to pull himself up, has further entrapped him, and dragged the country into the worst- ever political crisis in recent times. His last exploit was the capricious dissolution of Parliament, of which constitutionality was challenged in the Court by 12 Fundamental Rights petitions yesterday.The Supreme Court began hearing yesterday afternoon, despite objections by the government parties that they had not been served notice. The President did not seek the opinion of the Supreme Court when he arbitrarily dissolved Parliament in his second Friday night shocker within a fortnight- first being the sacking of Prime Minister Ranil Wickremesinghe. Now the courts that he overlooked have to clear up this mess.   

President Sirisena’s is an extreme case of naivety. Not every politician is an authority on the Constitution. But, many do know instinctively as to how to avoid being duped and taken for a ride by quacks. That is just commonsense. Whereas the President is said to be relying on the services of Sarath N. Silva, one-time Chief Justice, whose appointment to the pinnacle of judiciary preceded an alleged politicization of courts. Mr. Silva has argued that the President had been vested with powers to dissolve Parliament under 33 (2) C of the 19th Amendment to the Constitution, which states , “In addition to the powers, duties and functions expressly conferred or imposed on,or assigned to the President by the Constitution or other written law, the President shall have the power …(c) to summon, prorogue and dissolve Parliament.”  The proclamation on the controversial dissolution of Parliament on Friday cited, that it was being carried out with powers vested in the President by “paragraph (5) of Article 70” of the Constitution to be read with paragraph (2) ( c ) of Article 33 and paragraph (2) of Article 62 and “in pursuance of the provisions of Section 10 of the Parliamentary Elections Act No 1 of 1981.  

However, in doing so, the President overlooked a Constitutional provision incorporated under the 19A to rein in him from arbitrarily exercising such power vested in his office. It effectively deterred the President from dissolving parliament before it completes four and-a-half years into its term.  

 Under the 19A, Article 70 of the Constitution was amended by the repeal of paragraph (1) of that Article, and the substitution therefore of the following paragraph:-  “(1) The President may by Proclamation,summon, prorogue and dissolve Parliament:  

 Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present),voting in its favour .”  The President and his stooges, allegedly told by Sarath N. Silva have argued the Article 70 of Constitution was smuggled in after the 19A passed the judicial review. That could have been clarified had he sought the Supreme Court opinion. Instead, he clandestinely issued the proclamation on the dissolution of Parliament in the dead of Friday night. The Supreme Court verdict would resolve the constitutional basis of the President’s decision.   

Yet the looming danger is that given the manifest tendency as witnessed during the past two weeks of the President to dig deeper in the hole he put himself in, he could spring up another surprise should the Court decide the dissolution of Parliament as unconstitutional. Another prospect is that the government would attempt to mobilize the Attorney General department to procrastinate the Supreme court deliberations, and make time to capture institutions and to intimidate political opposition and probably of the Judges themselves.   

The 19A which empowered the Constitutional Council and Independent commissions of Public service, Police, Judiciary and Human Rights helped enhance the independence of Sri Lanka’s independent institutions. However,gauging the actual impact of the measures introduced by the 19A on the integrity of these institutions had been elusive. While the appointments to these institutions were streamlined and depoliticized, given the rot in Sri Lanka’s political and institutional crisis it does not come as a shock that those who were duly appointed to high positions had lost no time to wag the tail to their political masters. IGP Pujitha Jayasundara, who was defended by the UNP when he was facing the wrath of the President has since then switched side and is seen accompanying MR.  

The current political crisis presents an acid test to two independent institutions: Judiciary and Commissioner of Elections. Their behaviour would set a precedent in redefining the role of independent institutions in a country that is exceedingly politicized - Or they would prove themselves as part of the same rot. Effectively this one is the real test of the 19A . 

President Sirisena’s justification on the dissolution of Parliament, as he rationalized in an address to the nation is no less lame than his previous effort to justify the arbitrary sacking of Ranil and subsequent prorogation of Parliament. On Sunday, he claimed he decided to dissolve the House , after the going rate of a cross- over MP reached as high as ‘Rs. 100 million to Rs. 150 million,’ and in one instance as high as Rs. 500 million,’ and the ‘peculiar’ stance of the Speaker to announce a floor vote to gauge the strength of the new MR government.   After several expensive crossovers to the Rajapaksa ranks, MR and Sirisena ran out of willing pole-vaulters. Faced with a vote in the House and imminent defeat, the President opted to dissolve Parliament. He also claims he decided to do so to avoid a bloodbath in the House and in every village and town. It was he who created conditions to this potentially violent upheaval. Violence has so far been averted not so much due to his resolve, but due to the over- cautious approach of the UNP. If President Sirisena played the same gimmick with MR, push back would have been a lot more violent.  
The President is destined to lose irrespective of the outcome of the Supreme Court ruling. 40 SLFP Parliamentarians led by MR himself defected to the Sri Lanka Podujana Peramuna (SLPP),MR’s new political entity during the weekend. They ditched the SLFP, of which President Sirisena is the leader, in en masse. MR sees no more reasons to pay second fiddle to President Sirisena in their brief sojourn. If the latter prevails in his constitutional coup, it would not be long before, MR checkmates him. If the court rules the dissolution of Parliament as unconstitutional, then there is a different problem. Maithripala Sirisena may try to pull off another nasty surprise just to hang on to power. Either way, constitutional crisis he created is far from being resolved.  

Follow @RangaJayasuriya on Twitter  

Sri Lanka is at a crossroads

Dissolution of Sri Lanka’s Parliament negates the letter and spirit of constitutional reforms

The Hindu Editorial-Nov 12, 2018

( November 12, 2018, Chennai, Sri Lanka Guardian) Sri Lankan President Maithripala Sirisena has dissolved Parliament after it became evident that Mahinda Rajapaksa, who he had appointed Prime Minister two weeks ago, did not enjoy a legislative majority. It is an act of desperation to prevent a likely loss of face for both leaders after Mr. Sirisena’s controversial dismissal of Ranil Wickremesinghe as Prime Minister on October 26. Sri Lanka has been roiled by political uncertainty ever since lawmakers of Mr. Sirisena’s party withdrew support from the ‘national unity government’ to facilitate Mr. Wickremesinghe’s removal and the swearing-in of Mr. Rajapaksa in his place.

With many parties questioning the legality of the dismissal, the President suspended Parliament. This was a move to buy Mr. Rajapaksa time to garner support through defections. With around 100 MPs each in the 225-member House, both rival camps claimed they had the majority. But a 15-member alliance of Tamil MPs and six Janatha Vimukthi Peramuna lawmakers refused to support the newly installed regime, and Mr. Rajapaksa’s continuance became untenable. The President had to ask him to face possible defeat in a floor test or call elections as a way out. He has chosen the latter. However, a provision in the Constitution, introduced through the 19th Amendment by the Sirisena-Wickremesinghe administration in 2015, stipulates that the House cannot be dissolved for four and a half years after a parliamentary election, unless two-thirds of its total membership seeks dissolution through a resolution. Mr. Sirisena’s action has come in the face of this restriction

A fig leaf of constitutionality has been made up, citing Article 33(2)(c), which says the President has the power to summon, prorogue and dissolve Parliament. However, it is difficult to see how a general provision enumerating some powers can override a specific provision elsewhere in the Constitution that expressly limits those powers. It is only a little over three years since the last election, and there is no request from MPs seeking the dissolution of Parliament. The promise held out by the 2015 reforms seems to have vanished with Mr. Sirisena’s actions. Given the manner in which recent constitutional reforms have been undermined, the process of writing a new, inclusive Constitution for the country may no longer inspire much confidence.

The Sirisena-Rajapaksa camp has, expectedly, welcomed fresh elections, claiming it would reflect the true will of the people. Free and fair elections are, no doubt, central to a democracy; but when conducted in the wake of the questionable sacking of Parliament, they may be anything but. The Opposition parties are now set to challenge the President’s action. Sri Lanka is at a crossroads where it has to make a crucial choice between democratic consolidation or a retreat to authoritarianism. The judiciary has a crucial task at hand.

featured cartoon by Awantha Artigala

EC Mahinda Deshapriya Makes Shocking Move To Duck Controversy Over Unconstitutional Dissolution: Attempts To Transfer Commission’s Power To ‘Commissioner General’

NOVEMBER 11, 2018

In a shocking development, Elections Commission Chairman Mahinda Deshapriya has made a suspicious attempt to “duck” the growing controversy surrounding the unconstitutional dissolution of Parliament and transfer powers and functions of the independent commission to a “Commissioner General”.

A letter signed by two members of the commission, Deshapriya and Nalin Abeysekera, seeking to transfer the statutory and administrative powers of the commission to Elections Commissioner General M.A. P.C. Perera. The letter says the members of the commission, met on November 10, arrived at an agreement in this regard.

However, Prof. S. Ratnajeevan H. Hoole , the third member of the has vehemently refused to sign the document.

Colombo Telegraph learns that Deshapriya has exerted pressure on Abeysekera to resign from the commission. Hoole is also contemplating resignation owing to the disagreement over the document signed by the other two members. The resignation of Abeysekera and Perera will paralyse the Elections Commission as it will have no quorum to appoint a replacement, with the concurrence of the Constitutional Council.

This gridlock will revert the electoral process to the old system where one individual, the Commissioner General, held sway over the proceedings. Strong suspicions have arisen if the document and the ‘architected’ resignations of the members of the Elections Commission was an attempt by Deshapriya to subvert the independent commission and revive the old corrupt system.

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President rushes in where angels fear to tread

FILE PHOTO: President Maithripala Sirisena with newly elected Prime Minister Mahinda Rajapaksa – REUTERS

Monday, 12 November 2018

Maithripala Sirisena is trying to settle his personal political rivalry with Ranil Wickremesinghe in an unconstitutional way and has plunged the whole country into chaos in the process. He has virtually taken over the Government by force. This is nothing but a coup d’état.

His removal of the incumbent Prime Minister and appointment of the new Prime Minister was against the provisions of the Constitution. It is evident that at the time of the appointment, the new Prime Minister did not command the confidence of the Parliament. The President himself was in the process of getting the support of the Members of Parliament for the new Prime Minister. In order to make time for this process, he prorogued the Parliament. Then it was reported that he will advance the date of commencement of the Parliament to 7 November. It was advanced by two days to 14 November. It was revealed that there was a plan to postpone the Parliament sessions after his speech without allowing the Parliament to show its confidence or otherwise to the new Prime Minister. By dissolving the Parliament, it is evident that the new Prime Minister did not command the confidence of the Parliament. This means Wickremesinghe, the de jure Prime Minister, has the confidence of the Parliament. Therefore, the process is unconstitutional altogether. Moreover, we know the malpractices and the practices under which the last Presidential election and the last General election were respectively held.

There are arguments against as well as in favour of the dissolution. Under Article 33(2) (c), the President has the power to dissolve the Parliament. “In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power to summon, prorogue and dissolve Parliament”. In elaborating this power, in Article 70 (1) it was stated that he can do so only after four-and-a-half years of commencement of the Parliament or that the Parliament itself should approve the dissolution by a two-thirds majority.

“The President may by proclamation summon, prorogue and dissolve Parliament, provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.”

The question is whether the country should allow this unconstitutional process to proceed. It should be stopped, and the process should be reversed. Otherwise, in the future, any President, if he has a dislike towards the appointed Prime Minister, can remove him at any time. If the new Prime Minister cannot get the confidence of the Parliament, the President will dissolve the Parliament even within a period of one year of its commencement. This may even repeat at the very next Parliament. There are rules, regulations and the Constitution for us to follow and not to break based on one’s whims and fancies.

The unfortunate situation we are facing today is that so-called learned persons such as former Chief Justice Sarath Silva, former President of Bar Association Wijedasa Rajapaksa and former Professor of Law at Colombo University G. L. Peiris are justifying the dissolution of Parliament. Their arguments are all subjective and not objective. If those arguments are correct, by introducing the 19th Amendment to the Constitution, the country has gone back beyond the original Constitution of 1978 since now the President can dissolve the Parliament even before the expiration of the period of one year.

People tend to think that since we are going to get the mandate from the people who have sovereignty, dissolution is fine and that is the only way out. It is not. We have a representative democracy. We have a Constitution where it was demarcated when to have the elections. In the US, the Presidential election has certain dates. Elections cannot be called based on one’s personal views. We cannot have elections violating the provisions of the Constitution.

It was reported in the print media that there was an attempted coup in order to retain power illegally soon after it was evident that the incumbent President was losing. It was further reported that the attempt was abandoned after the expressed reluctance of the senior Government officers. The truth was not revealed since an investigation was not carried out. The present situation was also created by the arbitrary and illegal acts of the President, who rushes in where angels fear to tread. Others who are responsible should act. Therefore, it is the duty of the Chairman of the Elections Commission to seek the opinion of the Supreme Court whether the dissolution of the Parliament was legal. The Supreme Court, as the third pillar of the State, should intervene in this act against the legislature by the Executive.

In order to resolve the existing impasse, there should be a political consensus since legally, it may be a deadlock.

This is an appropriate time to investigate the value system of our society. Since we are dealing with the Constitution, we should see the preamble of our Constitution, as follows.

“...whilst ratifying the immutable republican principles of representative democracy and assuring to all peoples freedom, equality, justice, fundamental human rights and the independence of the judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People of Sri Lanka and of all the people of the world, who come to share with those generations the effort of working for the creation and preservation of a just and free society…”

In the preamble of the US Constitution, it is stated as follows.

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Quote of the French Constitution’s preamble is as follows.

“By virtue of these principles and that of the self-determination of peoples, the Republic offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived for the purpose of their democratic development.”

The preamble of the Indian Constitution is as follows.

“We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the nation.”

The main value lacking in our Constitution compared to other Constitutions is liberty. What is liberty? “Liberty entails the responsible use of freedom under the rule of law without depriving anyone else of their freedom. Freedom is broader in that it represents a total lack of restraint or the unrestrained ability to fulfil one’s desires. For example, a person can have the freedom to murder, but not have the liberty to murder, as the latter example deprives others of their right not to be harmed.”

We do not have a Sinhala word for liberty; the concept is alien to us. That is why we tend to ignore the rule of law. We tend to take the rule of law into our hands even in day-to-day activities. When the President of the country takes the rule of law of the whole country into his hands and violates the supreme law of the country, we tend to say that it is fine. We think that even if one of us were there, that person would also do the same thing. We decide on our political affiliations and not on the principles.

During the time of the Buddha in 6th century BC, Ajasath, the king of Magadha and a devotee of Buddha, wanted to invade the Vajji territory. Buddha advised Vassakara, the Chief Minister of Ajasath, not to go ahead. The Buddha further said that the Lichchavis, rulers of Vajji, could not be suppressed and defeated until they had adhered to the seven Dhammas, which were not conducive to defeat (Sapta Aparihaniya Dhamma). The first three points of those seven points were as follows.

They held regular meetings to discuss matters pertaining to the day-to-day administration.

They met, worked and dispersed as a team.

They strictly followed the law of the country.

We have to learn democracy and the related values either from the west or from the east. Hence, we have a long way to go in the path of the democracy which was bestowed upon us.

Statement attributable to the Spokesman for the Secretary-General on developments in Sri Lanka

10 November 2018

The Secretary-General learned with concern of President Maithripala Sirisena's decision to dissolve Sri Lanka's parliament and move to new parliamentary elections on 5 January 2019.

The Secretary-General underlines the utmost importance of respecting democratic processes and institutions and resolving differences in accordance with the rule of law and due process. He renews his call on the Government to ensure peace and safety for all Sri Lankans and uphold its commitments to human rights, justice and reconciliation.

Farhan Haq, Deputy Spokesman for the Secretary-General

Professor Ratnajeevan Hoole: The Election Commission Believes the President Violated the Constitution

LISA FULLER- 11/12/2018

All three members of Sri Lanka’s Election Commission (EC) believe that President Maithripala Sirisena violated the constitution when he issued a Proclamation to dissolve Parliament and called for elections, according to Professor Ratnajeevan Hoole, who is one of the Commission members.
Prof. Hoole, however, is the only member of the EC who is taking action. He filed a Fundamental Rights Petition in the Supreme Court today challenging the President’s Proclamation.

According to Prof. Hoole, the other two members of the Commission, Chairman Mahinda Deshapriya and Mr. N.J. Abeysekara, have not publicly voiced their objections because they believe that it is inappropriate for them to challenge the President in their role as civil servants. They instead decided to sign over responsibility for initial election preparations to the Commissioner General of Elections, M.A.P.C. Perera, so that they would not have to participate in any illegal processes. Hoole also said that Abeysekara is considering resigning from the Commission.

A spokesman for Deshapriya said that he could not comment on Hoole’s claims. other than to say that Deshapriya “has not made any statements to the media that would indicate he believes the president has acted unconstitutionally.” Deshpariya previously told The Hindu that “the President has the powers to fix the date for elections in his proclamation.”

Independent legal experts have consistently argued that that the constitution only allows the president to unilaterally dissolve parliament within the last six months of Parliament’s five-year term, meaning that Sirisena would not have the sole authority to dissolve Parliament until March 2020. Dissolving Parliament any earlier would require the President to obtain the support of a two-thirds majority in Parliament.

Hoole’s petition points out that if the President was able to dissolve Parliament “at his whims and fancies” it would “result in a series of Parliamentary elections until his desire is achieved.”

Hoole was one of several parties to challenge the dissolution of Parliament at the Supreme court on Monday. The Center for Policy Alternatives also filed a Fundamental Rights petition, as did several political parties, including the United National Party (UNP), Janatha Vimukthi Peramuna (JVP), the Tamil National Alliance (TNA) and the Tamil Progressive Alliance.

Constitutional Law expert Luwie Niranjan Ganeshathasan says that it is important that all three Election Commission members retain their posts in case the Supreme Court rules that Parliamentary elections are constitutional.

“If the Supreme Court rules that president can dissolve parliament, the Election Commission can’t do much to delay elections. But the Election Commissioners can do a lot to ensure fair elections,” he said.

Editor’s Note: To read more about the current political situation, click here. 

13 petitioners challenge dissolution of parliament in Supreme Court

(Lanka e News - 12.Nov.2018, 11.00PM) Summary of submissions and hearing which took place today in the Supreme Court of Sri Lanka with regard to the alleged dissolving of the Parliament.

FR Petitions on dissolution just being taken up by court. AGs dept saying that notice has not yet been served on all parties. Presidents Counsel K. Kanag-Isvaran asking court to take this matter up today due to grave urgency.

Bench consisting of CJ, Priyantha Jayawardena J and Prasanna Jaywardena J will take the matter up at 2pm. Several senior counsel expected to make submissions. Many seeking to intervene in the application as well.

Presidents Counsel K. Kanag-Isvaran commences his submissions in SCFR 351/18 for Leader of Opp @R_Sampanthan. States that a proclamation cannot be made under Art. 70(5). It is only a consequential provision. Has to be under 70(1) which President has not done. He further explains that Article 33(2)(c) is only an empowerment and not a stand alone provision. There are other provisions in the Constitution that legitimately influence its meaning and ambit and they need to be followed.

Counsel Hejaz Hizbullah for 4th Respondent in same case (Prof. S.R.H Hoole - member of election commission) says that it is his duty as a member of the EC to uphold the law. Legal precedent requires him to seek legal recourse. Says the proclamation is ex facie bad in law.

Former AG Tilak Marapana commences submissions in SCFR 352/18. Says that EVEN IF 33(2) was a stand alone provision, the act of dissolution has to be done reasonably and NOT for a collateral purpose as @MaithripalaS has done since the 26th October.

Counsel @ViranCorea commences submissions in SCFR 353/18 for Centre of Policy Alternatives and @PSaravanamuttu. Says that the Right to Franchise of Voters of Sri Lanka are affected by this act, and asks for a stay order against the proclamation.

Dr. Jayampathy Wickremaratne PC in SCFR 354/18 explains the rules of Constitutional Interpretation. Must look at the intention of the framers of the law, and interpret the law harmoniously. Should not interpret 33(2)(c) in a way that conflicts with 70(1).

Counsel @MASumanthiran in SCFR 355/18 explains the separation of power; under our Constitution each organ of government is supreme in its own sphere. There are checks and balances between them, but one cannot extinguish the other in this manner. He says that the act of Dissolution is void ab initio. Therefore anything that arises out of it, such as the General Election in the Proclamation are illegal.

Mr Sumanthiran PC also points out that if 33(2)(c) was a stand alone provision the President could prorogue parliament indefinitely without abiding by the limitations in Article 70. He explains how reading 33(2)(c) this way could lead to major abuse of power.

After short adjournment court takes up SCFR 356/18. Mr. JC Weliamuna PC states that 19th Amendment increased the powers of Parliament, which has a direct mandate of the people. Reminds us that Lawyers take an oath to defend the Constitution at a time when sun is setting on it. Mr Weliamua also says that the position isn't that Parliament cannot be dissolved before its term. It can, but the procedure needs to be followed, i.e. reconvening Parliament and getting the approval of 2/3 of members.

Presidents Counsel G. Alagaratnam in SCFR 358/18 says an Article of the Constitution cannot be read in isolation or in a manner that creates an absurdity. This would be the case if the President can dissolve Parliament the day after it is elected. He also points out the impact that this act of the President has had on the economy and the country as a whole.

Mr. Suren Fernando in SCFR 359/18 explains that Article 70(7) re calling a dissolved Parliament in an emergency only applies if there is a valid dissolution. Without such dissolution, Parliament can reconvene.

Presidents Counsel Ikram Mohamed appearing for @Rauff_Hakeem and others in SCFR 360/18 reminds court of Article 33(1)(a) which says the President is duty bound to ensure that the Constitution is respected and upheld.

Much awaited Petition (SCFR 361/18) of Memeber of Elections Commission Prof. Hoole taken up.

Counsel Hejaaz Hizbullah asks how Article 70(5) mentioned in Proclamation can stand alone in disregard of 70(1). He also says that the right to Franchise isn't only about holding elections but also respecting the choices of the people made in elections. He asks for a stay order pending the final determination of this case because of the large cost of Elections.

Court adjourned till 10 AM tomorrow following AG's request for more time to make his submission.

Credits to PublicLaw 

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by     (2018-11-12 18:31:42)

Illegal Govt Mounts Diplomatic Offensive To Blame Speaker For Dissolution Of Parliament

NOVEMBER 12, 2018

The illegal Government of President Sirisena, is tying itself into knots as it tries to justify the illegal and unconstitutional sacking of Parliament last Friday night is readying to inform foreign governments that the dissolution of Parliament was a result of Speaker Karu Jayasuriya’s actions.

Dr. Sarath Amunugama

The Ministry of Foreign Affairs has circulated a memo to all Sri Lanka’s embassies overseas about how to ‘spin’ the dissolution – pinning the entire blame on the Speaker’s actions – after President Sirisena reneged on his word to dozens of foreign diplomats based in Colombo about reconvening parliament.

The Ministry of Foreign Affairs now run by de facto Minister Sarath Amunugama issued a “most urgent” memo from the Minister and signed by the Foreign Secretary Ravinatha Aryasinha to all its diplomatic outposts across the world. The memo sent the gazette notification about the dissolution and the relevant constitutional provisions empowering the President to dissolve Parliament had already been sent to the Sri Lankan embassies.

It then goes on to direct diplomats based in Sri Lankan embassies around the world about how to relay the information to all state and non state actors in foreign countries. An excerpt of the memo follows (see full text below):

“The reason for the President’s decision was the state of uncertainty that prevailed regarding the anticipation of the behaviour of the Speaker of Parliament.

The Attention of the President was drawn to the information that contrary to the constitution and standing orders of parliament the Speaker without due authority was attempting to change parliamentary procedures and not proceeding with the statement of Government policy that was to be delivered by his Excellency the President on 14th November 2018 on which date Parliament was to be reconvened by Gazette Notification.

Jayasuriya

There have been several requests to call for a General Election so that the wishes of the people who are ultimately the repositories of the sovereignty of the country could be addressed.

Please make it absolutely clear to all concerned, that this is a democratic act so that the people’s wishes regarding the composition of the Government could be given effect to.

In the coming days, we will follow up with further information regarding the procedure which will be set in motion by the National Elections Commission, through the Elections Commissioner.

Public opinion in Sri Lanka is very much in favour of an election which will resolve the political crisis which hampered activities of the country in the past few months.

Please ensure that this information is conveyed to all state and non state actors in your countries of accreditation.

It is requested that you personally undertake this task and report back to the Secretary/Foreign Affairs on a daily basis, on any statements made in capitals and reportage of events in Sri Lanka in your country/countries of accreditation, along the lines laid out last week.” [ENDS]

The memo from the Ministry also refers to an “Elections Commissioner” even though no such position exists any longer – all functions of the Elections Department and Commissioner of Elections now being vested with a three –member independent Election Commission through the 19th Amendment, which only has a chairman who presides at meetings of the Commission, but does not hold any more power than any of the other two commissioners.

“It is expected that he will now proceed to act accordingly,” the Ministry memo states – although it is not clear who the Ministry refers to as the “Elections Commissioner”. Observers fear this may be further indication that Chairman of the Election Commission Mahinda Deshapriya – a long time Government bureaucrat – has capitulated before the Government Gazette notification dissolving Parliament, in spite of strong protests by the other two members of the Commission who insist the dissolution is illegal and there are therefore no vacant seats of Parliament for the Commission to hold an election to fill.

Speaker Karu Jayasuriya has hit back strongly against Government moves to blame him for the illegal sacking of Parliament, saying that at no point did any member of Parliament call on him to disallow the President’s throne speech, or statement of Government policy. The assertion in the MFA statement, based on which Lankan diplomats overseas will brief foreign governments is therefore a falsehood.

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