Monday, November 12, 2018

Sri Lankans must stand firm against abuses of power by President

The Nineteenth Amendment to the Constitution was enacted in 2015 on the basis of key promises made by President Sirisena and his coalition government to curb the powers of the Executive

Following statement issued by the Centre for Policy Alternatives in Colombo

( November 12, 2018, Colombo, Sri Lanka Guardian) The Centre for Policy Alternatives (CPA) is alarmed by the continuous and gratuitous undermining of the Constitution of Sri Lanka by President Maithripala Sirisena which has resulted in an unprecedented constitutional crisis since October 26. The most recent development occurred on November 9 when President Sirisena issued a Proclamation (Gazette Extraordinary 2096/70) purportedly dissolving the Eighth Parliament and fixing for a General Election on January 5, 2019.

CPA categorically opposes this move as it is unconstitutional and ultra vires and accordingly filed papers today, November 12, 2018, on behalf of itself and its Executive Director, Dr. Paikiasothy Saravanamuttu, seeking the annulment of this Proclamation.

CPA’s position is firm. Article 70(1) of the Constitution of Sri Lanka read with Articles 33(2)(c) make it crystal clear that the President only has the power to dissolve Parliament once four years and six months have elapsed since the first sitting of the current Parliament, or if two thirds of Members of Parliament pass a resolution requesting dissolution. Since neither of these two conditions have been met, the President’s Proclamation is invalid.

The Nineteenth Amendment to the Constitution was enacted in 2015 on the basis of key promises made by President Sirisena and his coalition government to curb the powers of the Executive. Article 70 was one such provision and removed the President’s power to unilaterally dissolve Parliament. The Nineteenth Amendment was enacted to restore and introduce checks, balances and safeguards to prevent one arm of government from being able to halt or stifle the functioning of another. This is a fundamental feature of our democracy and President Sirisena’s actions represent a flagrant attempt by the Executive to suppress the functioning of Parliament. The legal position, together with the political impetus behind the Nineteenth Amendment, leaves no room for doubt that his present actions are legally, politically and morally invalid.

The unilateral dissolution of Parliament and calling for elections in an unconstitutional manner only exacerbates the uncertainty of recent weeks when a myriad of issues, including the legality of the new Government President Sirisena has appointed, remain unresolved. In the immediate context, this has unnecessarily caused great uncertainty to Sri Lankans and put them at risk of potential political violence amid escalating turmoil. In broader context, it has been a reprehensible violation of the very principles of democratic accountability President Sirisena campaigned for and was elected on. On both these accounts, CPA calls on all Sri Lankans to stand firm against these blatant and dangerous abuses of power, and to demand and insist on their democratic rights and upholding of the Constitution of Sri Lanka.

The Implosion Of Liberal Democracy: Charting Our Action For The Future

By Mahendran Thiruvarangan –NOVEMBER 12, 2018

Mahendran Thiruvarangan

The changes that have happened in a dramatic manner at the helm of the state within the past two weeks or so have shaken our faith in the Constitution drastically. When I say “our,” I include all of us, those who occupy both the centers and the various peripheries of our polity. What we today describe as the constitutional crisis is an implosion of liberal democracy, one that is created by liberal democracy itself at the convergence of executive presidency, neoliberal policies and majoritarian nationalism. The implosion, without a progressive political, economic or reform agenda or alternative in place, reduces to an authoritarian order and may turn into fascism. If we do not act prudently by mobilizing ourselves to fight against this authoritarian turn, a right wing populism on the road to fascist take-over of the country may be the end game.

I take this moment of political crisis as an opportunity to ask a few questions about what aspects of our lives and experiences as citizen-subjects that have been threatened by the dastardly decisions made by the President over the past two weeks. Why has this issue drawn so much of local and international opprobrium in contrast to everyday poverty, unemployment, the widening income gap, the dispossession faced by communities on the margins, and the grievances of the women in the North who are searching for their loved ones made to disappear during the civil war, have been experiencing for countless number of decades? How has this event become an extra-ordinary development overshadowing the mundane trials and tribulations of the vast majority of the people?

Even as we feel the need to highlight why parliamentary democracy and constitutionalism are precious to us at this moment, I am pricked by the feeling that we have for long taken refuge in a comfortable shell that it created ignoring issues that undermine the everyday existence of thousands of this country’s citizens. Why has liberal democracy been a comfortable shell for some of us all these decades is a question that I want to ask today.

This is not the first time we are facing an assault on the constitution. The constitution of our post-colonial state has been violated in various ways starting from the disenfranchisement of the Malaiyaha Tamils immediately after Independence. On the other hand, parliamentary democracy and liberal constitutionalism in post-colonial Sri Lanka has done little to alleviate the structural discrimination and dispossession that the working class populations, the poor, the ethnic and sexual minorities and women have been facing for decades. The freedoms it guaranteed, while having broadened the space for political action on some occasions as in after the regime change in January 2015, have simultaneously allowed the rich to become richer and the poor poorer and the expansion of capitalist agendas. With the entry of neoliberalism in the form of micro-finance companies, uneven development, increased financialization and privatization and land grab, even the minimal safeguards of liberal democracy that had ensured at least a semblance of dignity and stability in the lives of the peripheral populations started to wither away.

Likewise, the freedoms that liberal democracy claims to guarantee have not as yet led to a just solution to the national question. The constitution even criminalizes discourses of resistance and self-determination that challenge the territoriality and sovereignty of Sri Lanka. Liberal democracy has placed the marginalized and the minorities in a trap where choosing the lesser evil is the only option available to them. During elections, it has forced those who inhabit the peripheries to forego their urgent and cherished aspirations and limit the use value of their political strength to, at the maximum, enabling what they perceive as transitions. Its parliamentary version has been an enabling factor in propagating bigotry, feeding racism, and as the recent speech made by the President indicates, homophobia among Sri Lanka’s voting polity. At the conjuncture of neoliberalism, majoritarian nationalism and a political system where executive powers are concentrated in the hands of a single person, liberal democracy is no longer able hold itself together, giving way to the rise of populist and authoritarian forces.

Today some of our political leaders have chosen to flout the Constitution and parliamentary democracy not because they are buoyed by some new-found arrogance but they are confident that parliamentary democracy and its majoritarian logic will save them, as it has done on several occasions previously. President Sirisena appears to be banking on the assumption that the deep-rooted majoritarianism in our state and society, which Mahinda Rajapaksa represents and promotes, will keep him in power however much local activists and international press rebuke him for his failure to uphold the pledges he made in January 2015. The anti-West xenophobia garbed in theories of economic sovereignty may help raise the political fortunes of the more nationalistic segments of our self-serving political class.

The economic dispossession on the periphery and lack of organic development under the present regime have made it deeply unpopular in the rural South. The kind of image-building that Mahinda Rajapaksa carried out masterfully during his 9-year rule and afterwards as the savior of the rural Sinhala-Buddhist community and its ancient culture seems to override the neoliberal face of his previous regime at a time when the good governance regime is seen as a failure on the economic front by the population on the margins. The JVP’s inability to come up with an alternative economic program for the marginalized and the TNA’s exclusive focus on a political solution to the ethnic question also create the conditions for the rise of right-wing populism in the country. Whatever we do today as a way of challenging those who occupy positions of power constitutionally and unconstitutionally should be informed by a class-based, ethnicity-based and gender-based critique of liberal democracy. How liberal democracy has stratified our geography and the people into centers and peripheries and privileged and oppressed even as it granted some of us a few freedoms.

On the 4th of November, some women from the North who came to the Liberty Circle in Kollupitiya and joined the protestors demanding the restoration of democracy talked about the ways in which the freedoms that the regime change in 2015 brought about enabled them to continue their activism without fear and intimidation. They also spoke about white vans that might soon visit them. Yes, these freedoms matter to the people, not just the privileged but also many on the peripheries, including the North and East, who are trying to make the system work in a fair and just manner or dismantle it from within in their own inconspicuous ways. Yet we cannot limit our rallying cries to these freedoms alone. The current implosion of liberal democracy behooves us to bring to the front and center the various struggles taking place in different parts of this island.

Judicial sovereignty needed to safeguard national sovereignty

by Jehan Perera-November 12, 2018

Several political parties and civic groups are to file appeals to the Supreme Court against the dissolution of parliament by President Maithripala Sirisena. Their common position is likely to be that the president has acted in violation of the 19th Amendment to the constitution. This amendment meant to restrict presidential power was passed virtually unanimously by parliament with only one dissenting vote in April 2015 shortly after the change of government that was occasioned by President Sirisena’s victory at the presidential elections earlier that year. At that time, and subsequently on innumerable occasions, the president referred to the unprecedented sacrifice he has made in curbing the powers of the presidency through the 19th Amendment. The president also received praise locally and internationally for his statesmanlike attitude towards power.

The case regarding the dissolution of parliament that is coming up before the Supreme Court is an especially important, and challenging, one for several reasons. On a layperson’s reading of the constitution, it appears that President Sirisena has been advised, or misadvised, that notwithstanding the 19th Amendment his presidential powers are so omnipotent that he can do virtually everything. Indeed, this was also the vision of the architect of the present constitution, former president J R Jayewardene, who in 1978 proudly said that it gave him all power except the power to turn a man into a woman. The resort to the Supreme Court is to seek the court’s verdict on the limits of presidential power as set out by the constitution. This will be an important decision as it will impact not only on the present issue but on the manner in which presidential power is used in the future.

There is also a second reason why the answer that the Supreme Court gives to the present set of issues brought before it by the political parties and civic groups will be important. This is whether the Sri Lankan judicial system can pass the test of international standards and will have consequences for the economy and not only for the polity. Foreign investment will only come into the country if foreign investors feel confident that the national legal system will protect them from arbitrary actions. The failure of the Rajapaksa government to show that it could reach international standards in matters of dealing with human rights violations and war crimes, led to efforts to bring in international experts and investigatory bodies into the country. There was also an imminent threat of international investigations into those allegations. These were forestalled by the Wickremesinghe government’s pledges to reach international standards though Sri Lankan institutions themselves.

19th AMENDMENT

The 19th Amendment restricted the president’s ability to make arbitrary appointments to high offices of state. It also prevented the president from acting to change the prime minister in the absence of one of three conditions being satisfied. These were in the event of a voluntary resignation, loss of vote of confidence in parliament and failure to pass the budget. In addition, the 19th Amendment restricted the president’s power to dissolve parliament until four and a half years had elapsed since the term of parliament had begun. This would be the plain reading of relevant sections of the constitution and would be a layperson’s interpretation. However, those on the president’s side claim that the president was within his constitutional powers to sack both Prime Minister Ranil Wickremesinghe and to sack parliament before it had crossed the four and half year threshold.

Underlying the various arguments put forward by supporters of the president’s actions is the notion that the sovereignty of the people is uppermost in a democracy. Such arguments are based on the notion that democracy is about the rule of majority. Accordingly, what the majority wants is what the government should stand for and do. The thesis that they put forward is that the people want a change of government and that was seen at the local government elections held in February this year in which the parties of the government alliance did not fare too well. According to them, the sovereignty of the people justifies the drastic actions that the president has taken in sacking first the prime minister and then the parliament.

The sovereignty of the people is undoubtedly an important aspect of democracy. But democracy is also more than doing what the majority at a certain point of time want to do. It is true that in February 2018, the government alliance performed poorly at the local government election in comparison to the opposition. But in August 2015 when general elections were held, they fared better and were able to garner a majority with a mandate to govern for five years. That mandate stands for five years. Only a little more than three years of that five year mandate has yet elapsed. In mature democracies, it is not only the wishes of the majority that are heeded, the rights of minorities are protected, the rule of law is enforced and corruption is outlawed. And in order to ensure that these happen, there is a separation of powers between institutions so that the best interests of the people are safeguarded.

SAFEGUARDING SOVEREIGNTY

What is happening at present in Sri Lanka is the opposite of protecting the sovereignty of the people or their best interests. This can be seen in the reappointment of ministers accused of high levels of corruption to the very ministries they are accused of having looted when in power during a previous period, and for which wrongdoing they have had cases filed against them by the Attorney General’s Department in the courts of law. The violation of the sovereignty of the people can also be seen in the shutdown of parliament for over 10 days without permitting the elected representatives of the people to choose who should be their prime minister. And now it can be seen in the sacking of the entire parliament due to the fact that parliament stood firm and its members did not break ranks and cross over to the other side in the face of the allure of money and position.

It is in these dire circumstances that the courts of law are now going to be tested. It has been said down the ages that the courts are the last refuge of those who are weak, victimized and unjustly treated. But the judiciary does not exist in a vacuum. It exists in a politically determined time and space. In general, in democracies that are still relatively fragile or volatile, the judicial branch of government is deferential to the executive branch when it is called on to decide between the rights and wrongs of the executive branch in relation to others. The executive branch which is backed by the coercive apparatus of the state can intimidate or punish those who oppose them. This was the fate of former chief justice of the Supreme Court, Shirani Bandaranayake, when she started to give rulings that were adverse to the government of the day.

Now with the sacking of the Wickremesinghe government there is a possibility of international scrutiny of the country’s human rights practices increasing. The International Commission of Jurists (ICJ) has recently stated that the removal of the Prime Minister in violation of the law or constitutional provisions would constitute a violation of Sri Lanka’s commitments to the international community. The ICJ statement goes on to say that "The Human Rights Council will be watching closely to assess whether Sri Lanka is in breach of its commitments. Any serious threat to progress on human rights accountability will compel the establishment of an independent accountability mechanism." Such an external intervention will not be in Sri Lanka’s best interests and can be forestalled by a demonstration that Sri Lankan institutions remain strong. The independence of the Supreme Court that is manifested in both deeds and appearance will be the best safeguard of national sovereignty.

SL where ‘Democracy’ needs no ‘People’s Sovereignty’

2018-11-13

Colombo’s “yahapalana”civil society activists became hysterical when Parliament was dissolved by President Sirisena again on a Friday. The gazette notification was out midnight Friday November 9, 2018. I too agree, it was definitely a frustrated reaction to the combine failure of Sirisena-Rajapaksa attempts to regain a majority in parliament after removing Ranil Wickremesinghe from premiership and appointing Mahinda Rajapaksa.

Travelling to Elpitiya and back on Saturday, Colombo’s desperate protests against the dissolution of parliament was not there to be heard or seen among those ordinary folk in the hinterlands. MR was smiling and waving from billboards of different sizes with affectionate slogans. One said “You are our Appachchi (father)”. Back in Colombo, it was confirmed the UNP the TNA and the JVP would seek Supreme Court rulings declaring the dissolution illegal and to have an order refraining the National Election Commission (NEC) in holding parliamentary elections on January 5, 2019. How DEMOCRATIC is this demand against the dissolution of parliament to hold elections for people to elect a government of their choice?

When sovereignty remains “inalienable” at all times and includes “powers of Govt, fundamental rights and franchise”, the hurriedly adopted 19A clearly violates the “sovereignty of the people”

A few Colombo-based “Experts” on Constitutional Law with funded civil society agents argue it is “illegal”. They are the same Colombo’s“people’s power”group who campaigned against MR, with Sirisena as their “Common Candidate” at the January 8, 2015 presidential election and promised “democracy and good governance”. What those promises meant to the larger majority of the people during the past three years and ten months, and what the “good governance” coalition between Sirisena and Wickremesinghe as a “Unity Government” delivered to the people, remain as unmistakably the most“ miserable failure” in post independent Sri Lanka.
That being the most obvious reason for the re-emergence of MR, arguments against the dissolution of parliament and against holding parliamentary elections with him heading a caretaker government are based solely on the 19 Amendment. It is said, while the President can dissolve parliament under Article 33(2)(c), it cannot be read without Article 70 of 19A that defines powers of the parliament and its procedure. It is thus said, Article 70 very explicitly says, “(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.”

Yes, not only the Constitution, but most legal enactments cannot be read with their ‘clauses’ extracted out, to be interpreted in isolation,when other clauses and related laws provide teeth and muscle to it. So is the 19A that is taken in isolation by these Colombo-based “experts”. The 19 Amendment should be read along with Article 3 of Chapter I of the Constitution.The only exception being, this Article of the Constitution can be read by itself and needs no other Article in the Constitution or any clause in any other law for its interpretation. It simply says, “In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and franchise.” How would the Colombo “experts” read this with the 19 Amendment and its provision, “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” ?
When sovereignty remains “inalienable” at all times and includes “powers of government, fundamental rights and franchise”, the hurriedly adopted 19 Amendment clearly violates the “sovereignty of the people”. Therefore, 19A itself is “unconstitutional”. written into the Constitution in a mighty hurry by the “yahapalana” rulers who shouted down MPs when asked for their right to have Tamil translations of clauses pushed in at the last minute. Chamal Rajapaksa as Speaker then, went dumb on it and the JVP that now talks about “democracy” did not demand “Sinhala” translations either. The 19A for all those reasons too, remain “unconstitutional” though blindly and selfishly backed by urban civil society cheer leaders. It had no social discourse and far worse, it had no serious discussion and debate in parliament as well.
Ushering in of the “Yahapalanaya” ushered in a spate of defacing and distorting the “will of the people” by very undemocratic means using presidential powers under President Sirisena. The first was when the President appointed the Leader of the Opposition as PM with only 43 MPs to support him. The Colombo “FB Activists” who question the “mental status” of a President who believes a MP without a majority in parliament could be appointed as PM, never said a President who appoints a PM with only 43 MPs in a parliament of 225, could be “loony”. The President used his newly won heavy authority to completely change the people’s representation, the will of the people in parliament elected in April 2010, to provide his prime ministerial appointee with a majority. President Maithripala Sirisena became the “darling” of the funded Colombo Civil Society, for breaching the people’s will in parliament in their favour, calling it “legal” then as 19A wasn’t in place. What these “honourable” gentlemen and ladies essentially say is, constitutional provisions can be used to undermine democracy for “their own benefit”.

This was replayed once again after the August 2015 parliamentary elections. The President was applauded when he played all the “trumps” in his hand to scuttle and derail the UPFA campaign against the UNP, led by MR. Those horribly indecent public manoeuvrings were made by Sirisena as President of the country and also as President of the SLFP. He was vilified by 4.2 million SLFP supporters who voted with MR and against the UNP. The UPFA won 95 seats as against 106 of the UNP. Again, President Sirisena defaced the parliamentary representation that was decided by the people. He moved 37 UPFA MPs into the UNP fold with ministerial portfolios.

And now the latest effort since proroguing parliament on October 26 is also about shifting MPs to create a parliamentary representation the Sirisena-Rajapaksa duo could control. Immediately, the UNP decided on a “Temple Trees Take-over” defying Sirisena’s decision. Over a week ago, the prorogued parliament was convened for November 14 by President Sirisena. As the date came closer, I had few calls that asked me what the “outcome” could be on November 14, when parliament meets. This was one such conversation.

Asked what the outcome could be, I said, “Going by the culture of political party leaders and MPs in their parties, 7 or 8 may end up in hospital….I doubt the President and the Speaker would be allowed even to take their seats” But I also said, I wish sanity would prevail and that would not happen.“Oh yes. They may even throw chairs” the caller agreed.“Isn’t this the parliament you all wanted reconvened in the name of democracy and held placards?” I asked in jest and the phone got disconnected at the other end. Another old chum, I lost with that. The Colombo middle class wouldn’t want answers that disagree with their own beliefs.

One may accept or not, but almost 3 years and 10 months with this overwhelmingly stupid formula of tying up two unholy and unprincipled political entities with a “Yahapalana” (good governance) label has only brought back MR. He is unavoidable and perhaps unstoppable too. It is this reality that drives the urban middle class to hide behind Constitutional clauses in the name of “democracy”, once again for their selfish needs.

Now the latest effort since proroguing parliament on October 26 is also about shifting MPs to create a parliamentary representation the Sirisena-Rajapaksa duo could control

The chaos and instability they helped create with their loony brand of “good governance” now demands a new mandate from the people, if they wish to have it. That right of the people to elect a government of their choice, the sovereignty of the people enshrined in the Constitution under Article 3 of Chapter I is inalienable and is non negotiable. It needs to be safeguarded at any cost, to avoid this crisis that can never be placated with this rowdy parliament sitting once again, even with a Supreme Court ruling. It bewilders one when these Colombo men and women who enjoy holding placards that read “Our vote is not for sale” and “We want Democracy” run to the Supreme Court, instead to the People.

Sovereignty of the people cannot be suspended for four years and six months for these MPs to trade themselves on the floor of the House. It is not me but, Eran Wickramaratne of the UNP who said a few days ago as a MP, “politicians will never change the destiny of this country….and a politician, a minister told me, this system works for us. Why should we change this?” (check here - https://www.facebook.com/1398478163/posts/10213631340963346/).

This parliament therefore should stand dissolved for people to elect a new government,with one single Amendment to the Constitution included within two weeks from the first day of sittings, as pre condition for elections. An amendment to “Recall” an MP, who 1,000 voters in the district with their signatures inform the NEC their trust and representation has been breached by that MP and therefore they need to elect a new representative. That’s what sovereignty should mean for people. Not SC rulings, however enlightening they could be on technicalities of law.

Reigning in the Executive President

Featured image by Buddhika Weerasinghe/Getty images

DR. RADHIKA COOMARASWAMY- 11/11/2018

For the most part of the last few weeks we have been in a suspended state of disbelief. Yes, the 2015 government had not lived up to its expectations, some people were plotting for the next election to teach them a lesson, and then lightening struck. The Prime Minister was removed in the stealth of the night replaced by the arch-rival that the President was elected to depose, Parliament was prorogued and then dissolved and a huge cabinet appointed. Neither the Prime Minister nor the cabinet have shown that they have the majority of Parliament behind them and this autocratic rule will continue until January 5th unless the Supreme Court decides otherwise.

Every day my friends and I text each other with information on who is crossing, what is happening here, what is happening there, so much so that we get lost in the weeds and miss the big picture. What is the big picture? We are today witnessing the gross abuse of executive power in ways that have been quite unimaginable even to the best of our cynics. It is power being wielded not only against the traditions and customs of a parliamentary tradition but in brazen disregard of the words and terms of the Constitution. When I meet people socially due to spin and confusion they say, “Who cares- one set of crooks vs. another set of crooks”. This is not about the crooks; it is about institutions, democracy and the system of government you would like in place for your children.

The first institution under attack by this runaway executive is the institution of Parliament. It is true the public image of Parliament and parliamentarians is not very good but they do pass laws and do many other things that allow us to govern ourselves according to a set process. The procedure set for the removal of the Prime Minister is quite clear, Sinhala technicalities notwithstanding. But the most important point in a parliamentary democracy is that the prime minister must enjoy the confidence of a parliamentary majority. So even if the removal and appointment were legal, the next step would have been to go to Parliament and take a floor test as soon as possible to see who enjoys the confidence of the house. Instead Parliament was prorogued and dissolved leaving behind a Prime Minister and Cabinet that do not have the approval of Parliament. That is what is meant by autocratic rule. The fact that the SLPP is a willing partner in this even though it has a great deal of popularity in the country and would have probably won the next election is also disturbing.

What was equally as disturbing as the attack on Parliament was the pressure and intimidation aimed at the Speaker. Parliament is supposed to be a co-equal arm of government, a check to a willful executive. Parliamentary staff are expected to take their instructions from the Speaker who heads this co-equal arm. Instead officials of Parliament defied the Speaker and decided to follow the President, an institution they were supposed to check and balance. Such behavior is a serious threat to Parliamentary democracy and one can only congratulate the Speaker for standing his ground. Protecting the powers, privileges and immunities of the Speaker is a must if we are to remain a parliamentary democracy.

The second tradition that is being attacked by the runaway executive are long settled rules of legal interpretation. The arguments for dissolution that the government presented and will be tested in the Supreme Court are a case in point. The Constitution gives the President a general power to dissolve, as one of his many powers. Then in a specific provision it states that the President can only dissolve Parliament after 4 ½ years. It is one of the longest settled rules of legal interpretation that the specific trumps the general; specific provisions qualify the general power. This perversion of legal interpretation in this case will perplex any lawyer and leads us to seriously question the motives of those who make such a crude, instrumental use of the law.

Another strange development is the President using his powers to change the leadership of a party other than his own. Whether the UNP needs a change of leadership is something to be discussed by the members of the party and the public. But removing, proroguing, dissolving Parliament all because you do not like the leader of another party is quite extraordinary. The President in his first speech on the subject equated his relationship with the prime minister as a bad marriage. Surely the answer to a bad marriage is to seek the advice of a counselor and not to burn the house down with the children in it. In politics and in life one has to work with people one does not like. One can manoeuvre, discuss or position oneself in this situation but protecting institutions and their integrity must surely be more important than personality differences.

When the President prorogued Parliament to try and get a parliamentary majority I was astounded but found that most people were equivocal. I was interested by the comments average people made. It was along the lines of “It is a done deal they will buy them over”. There was very little moral outrage in this reaction but a cynical acceptance of what politics was like in this day and age. The fact that my Member of Parliament can be bought over for any amount of money without any reaction made me realize the depth of despair in this country with regard to our politics. Interestingly the people who received the least respect were the minority parties. Many people assured me that they would be bought over first. As a minority I found this a stunning rebuke to our self-respect. Is that what people think of minority political leaders that they can be bought and sold in an auction?

Speaking of minorities, the scenes at Rupavahini, the Ceylon Petroleum Corporation, the release of the man supposedly responsible for the Digana anti Muslim riots instead of re-remanding him as they did in the past, began to raise the threshold of fear- the fear of unruly mobs let loose by politicians. The fear has not gone away. One must commend the Army Commander and the armed services for staying away from this very political contest and one must acknowledge that whatever else he did the President did not call out the military. Nevertheless there are ominous signs, pockets of violence, pockets of thuggery and an uneasy peace.

In recent years we had become accustomed to a diversity of media voices. Today, even though pockets of diversity remain there seems to be a concerted effort to convey only one voice, one truth. Much of it is sheer spin. Foreign envoys, local political parties and other individuals would recount how they would meet the President on his request and they would speak their mind but the discussions were used as a photo opportunity to make out to the public that everyone was extending their support. There is so much spin that one does not know what is truth and what is reality. One young person told me that she watches the news but her instincts tell her it is all wrong. As a result everyone goes back to their social media bubble and perhaps the international press to discern what is happening. A country that loses touch with reality and the truth, especially a small country such as ours, is on a spiral towards disaster nationally and internationally

The international repercussions of what has happened will have huge implications especially in the near future. For the moment we are an internationally “suspect” country. Except for Burundi I do not think anyone has recognized the new government and probably will not until January. I worked on the issue of the Rohingyas and Myanmar and understood the terrible consequences of being a cast out nation. Yes they survive but at what cost? Beating tribal drums, at war with the west while desiring their investment, and their people portrayed to the world as ugly and prejudiced. We became the number one destination of Lonely Planet, the most respected travel magazine, and like “evil eye”, within the week the constitutional crisis occurred. Now we are nowhere in the listings. When one was fighting a war it must have been exhilarating to some to be fighting the imperialist west but in peacetime, the west, India and China are equally important as tourists, as buyers of our exports and as investors. Being a castaway nation even for a few months is just not worth the heated rhetoric.

We are now experiencing a runaway executive, autocratic rule and promise of free elections under the rubric of that autocratic rule. One can hope the Supreme Court will stop the direction of this flow and that perhaps we can have general elections under a caretaker government. The first thing that any new government should do is to do away with or severely limit the powers of the executive president. Time and time again this institution has destroyed the fabric of Sri Lankan life. The Venerable Sobitha gave his life in struggling for its abolition. In his memory we must keep up the effort to ensure that any executive under our Constitution cannot act on whims and fancies, only according to democratic traditions and the rule of law.

Editor’s Note: For more on the current political situation in Sri Lanka, click here.

Litro Gas misappropriation case: Spl HC rejects preliminary objections

K. S. UDAYA KUMAR

-NOV 12 2018

The Permanent High Court-at-Bar today (12) rejected the preliminary objections filed by President’s Chief of Staff Gamini Senarath and three others, who had sought to suspend the hearing of indictment papers filed by the Attorney General.

The Special High Court Bench comprising Justices Sampath Abeykoon, Sampath Wijeratne and Champa Janaki Rajaratne granted permission for the case, filed against foursome by the Attorney General, to be heard.

When the case was taken up on 7 November, President’s Counsel Ali Sabry, representing the defendant Senarath, said that he would file preliminary objections, prior to the submission of the defendents’ responses. He claimed that the indictment paper submitted by the AG, related to this investigation by an alleged politicized institution, such as the Financial Crimes Investigation Division (FCID), was illegal. He then requested the Court to dismiss the indictment papers without even conducting a hearing.

Agreeing with Sabry’s claims, the other defense counsels also made submissions in this connection.
Making submissions on behalf of the prosecution, Deputy Solicitor General Thusith Mudalige said that the authority of the Special High Court to probe the legality of FCID is doubtful. He further said that the investigations with regard to the case have been conducted lawfully and in accordance with the provisions of the Criminal Procedure Code.

When the case was taken up yesterday, the Judges said that the preliminary objections filed by the defendants have not challenged the judicial powers of the Special High Court. The case was ordered to be taken up again on Wednesday (14).

The AG has indicted the defendants under the Offences against Public Property Act for allegedly misappropriating Rs 500 million in funds belonging to the Litro Gas Lanka by investing in ventures including the Helanka Hotels and Spa hotel project, from 1 February of 2014 to 20 January of 2015.
Piyadasa Kudabalage, Neil Bandara Hapuhinna and Lasantha Bandara have been named as the other three defendants in the case.

INTERNATIONAL DECLARATION ON INFORMATION AND DEMOCRACY: PRINCIPLES FOR THE GLOBAL INFORMATION AND COMMUNICATION SPACE

Image ©SLB

Seventy years after the Universal Declaration of Human Rights was adopted in Paris, the READ THE DECLARATION HERE“International Declaration on Information and Democracy” is establishing basic principles for the global information and communication space, which its preamble defines as a “common good of humankind.” The management of this space “is the responsibility of humankind in its entirety, through democratic institutions,” the preamble adds. Published today, this six-page document sets out democratic guarantees for the freedom, independence, pluralism and reliability of information at a time when the public space has been globalized, digitalized and destabilized.
This Declaration was adopted unanimously by the members of the Information and Democracy Commission chaired by Christophe Deloire, the secretary-general of Reporters Without Borders (RSF), and by Nobel peace laureate Shirin Ebadi. After meeting for the first time in Paris on 11 and 12 September, the commission worked for nearly two months,regularly communicating by means of videoconferencing and email. The commission’s mission statement, written by its two co-chairs, said the Declaration must “constitute a point of reference that will mobilize all those who are committed to defending a free and pluralistic public space, which is essential for democracy.”

The commission consists of 25 prominent figures of 18 nationalities, including Nobel laureates Amartya Sen, Joseph Stiglitz and Mario Vargas Llosa and the Sakharov Prize laureate Hauwa Ibrahim. It also includes new technology specialists, lawyers, journalists and former heads of international organizations. The other members are (listed alphabetically): Emily Bell, Yochaï Benkler, Teng Biao, Nighat Dad, Can Dündar, Primavera de Filippi, Mireille Delmas-Marty, Abdou Diouf, Francis Fukuyama, Ulrik Haagerup, Ann Marie Lipinski,Adam Michnik, Eli Pariser, Antoine Petit, Navi Pillay, Maria Ressa, Marina Walker, Aidan White and Mihaïl Zygar.

What does this Declaration bring to the body of law and deontology codes already in effect? Recognizing that the global information and communication space is a common good of humankind provides the grounds for establishing democratic guarantees. Enshrining a “right to information,” understood as reliable information, is an innovation that establishes that human beings have a fundamental right to receive information that is freely gathered, processed and disseminated, according to the principles of commitment to truth, plurality of viewpoints and rational methods of establish facts.

While the concept of “freedom of expression” has been used to justify the lack of accountability for entities including platforms that create the technical mean, the architectures shaping choices and the norms for the information and communication space, the Declaration points out that freedom of expression is a right of individuals, with limited exceptions. Entities that contribute to the structure of the information and communication space must respect basic principles. Their activities must, for example, respect political, ideological and religious neutrality. They must guarantee pluralism by favouring serendipity among other means, and they must establish mechanisms for promoting trustworthy information. These entities must be predictable for those over whom they have influence. And they must be resistant to any manipulation and open to inspection.

The Declaration affirms journalism’s social function, a function that justifies special efforts to ensure its financial viability. The role of journalism is to be a “trusted third party” for societies. The task of journalists is to give an account of reality, revealing it in the broadest, deepest and most relevant manner possible, not only portraying events but also explaining complex situations and changes, reflecting both the positive and negative aspects of human activities and allowing the public to distinguish the important from the trivial. The freedom and safety of journalists, the independence of news and information and respect for journalistic ethics are all essential conditions for the practice of journalism, regardless of the status of those who practise it.

How should the Declaration’s principles be put into practice? The Commission calls for the creation of an international group of experts whose mandate and funding should ensure its independence from both companies and governments. It should have the power to investigate practices in the information and communication space and their impact on its means, architectures and norms. “Democratic accountability will require continuous expert participation that adequately balances global representation with rigorous evidence-based assessment of practices and conditions of knowledge production in the global information an communication space,” the Declaration says.

In an appeal published today in the international media, the Information and Democracy Commission’s members say: “We urge leaders of good will on all continents to take action to promote democratic models and an open public debate in which citizens can take decisions on the basis of facts. The global information and communication space, which is a common good of humankind, must be protected in order to facilitate the exercise of freedom of expression and opinion while respecting the principles of pluralism, freedom, dignity and tolerance, and the ideal of reason and knowledge. To this end, we ask for strong commitment to be expressed as early as 11 November, during the Peace Forum, when dozens of political leaders will gather in Paris.”

Flimsy theories and 19A created the crisis: Dissolution best option

FILE PHOTO: Ousted Prime Minister Ranil Wickremesinghe reacts during a press conference in Colombo, 27 October – REUTERS

Monday, 12 November 2018

Have you heard about the Orange Book Liberal, Nick Clegg? He is in our Constitution, rather distortedly, stealthily crept in through the 19th Amendment in Article 70. Luckily, most strange (or orange) theories are still in Ranil Wickremesinghe’s (Ranil Wickremesinghe) head, not in the Constitution.

Can you remember he (Ranil Wickremesinghe) touted the idea of an Executive Prime Minister system in the late 1990’s? He did that based on the system in Israel at that time (1992-2003), but then Israel themselves changed the idea, after disastrous results. Nevertheless, he continued with the idea and tried his best to implant some of the elements through the 19th Amendment.

Ranil Wickremesinghe says that the “Constitution doesn’t make provisions for personal prejudices”, an insinuation aimed at Maithripala Sirisena. He only wants the Constitution to work for his personal interests.

Ranil Wickremesinghe’s Hindu interview

The recent evidence of these strange orange theories is in the interview Ranil Wickremesinghe gave The Hindu correspondent, Meera Srinivasan on 8 November. Following is the key paragraph from the report.

“Wickremesinghe, who has pegged his chances entirely to a floor test, has ruled out a court appeal on the matter, citing the Parliament’s ‘supreme judicial powers’. Reiterating the position, he said: “Even if you go to court, they will send you back to Parliament on this matter. We are different from yours [Indian context]”.”

According to Ranil Wickremesinghe, “we are different to the Indian democracy”, not because of Sri Lanka’s Presidential system, but because of his imaginary ‘Parliamentary supremacy’ and subordination of the Judiciary to it. Parliamentary supremacy was there in the 1972 Constitution, yet subordinated to the sovereignty of the people, but not in the 1978 Constitution, even after the 19th Amendment.

There is nothing particularly wrong in pegging his or any other’s political chances entirely on the floor test, but if he wanted to question or challenge the constitutionality of his dismissal, he should have appeared before the Supreme Court.

Ranil Wickremesinghe and his supporters, also in the ‘civil society’ sector, are obviously expressing an understandable political disappointment or despair on the Prime Minister’s dismissal by the President. But, that is not a constitutional argument. According to Articles 125 of the Constitution, “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution…” That is the right place to go without creating instability and chaos.

This is the matter that Ranil Wickremesinghe shied away from during his ‘The Hindu’ interview, lamely saying “we are different from yours”. That is not true. In respect to the interpretation of the Constitution, the role of the Judiciary, and the importance and independence of the Judiciary, we are the same as India. Ranil Wickremesinghe or his supporters cannot snatch the judicial powers from the Supreme Court saying “we are different”.

He has taken matters onto himself (a lawyer, of course), also saying “Even if you go to court, they will send you back to Parliament”. How does he know? Why does he hesitate? Why not test? Why create instability, chaos, and violence in the country instead?

Role of the Speaker

There are other strange and untested constitutional theories that have been put forward by several sections of society regarding the ‘role of the Speaker’ and related matters. First, they objected to the President’s dismissal of Ranil Wickremesinghe. Then they started lamenting about his prorogation of Parliament as unconstitutional, the accusation which had no basis at all, although one could claim it is not ideally democratic.

But, what was most strange and even purely unconstitutional was to ask the Speaker to ‘convene Parliament forthwith’, although the President was also asked to revoke the prorogation forthwith. This was there in the so-called statement by ‘Professionals on Constitutional and Political Crisis’ (CT, 2 November). These people are apparently not independent. Some of them are paid employees and legal advisors to Ranil Wickremesinghe. Some others have financial stakes in the former Government’s projects.

The origin of the idea that the Speaker has power (over President) in respect to convening Parliament is basically Ranil Wickremesinghe’s orange theory. This is what ‘The Hindu’ reported: “‘The Parliament’s power is supreme and that is what the Speaker has upheld,’ he [Ranil Wickremesinghe] said, referring to Speaker Karu Jayasuriya’s statement on Monday.”

It is on this theory that the Speaker attempted to convene Parliament on 7 November, but failed. Testing this possibility, he also issued a strong statement on 5 November, the main unconstitutional or controversial elements of the statement are as follows.

“It is my duty as Speaker to summon Parliament by 7 November and restore stability in the country. I consider it as the duty of the President, too, to extend his support to me towards this end.”

It is very clear that he was trying to take over the powers of convening Parliament from the President, based on Ranil Wickremesinghe’s theory that Parliament is supreme. This is what the so-called professionals, also quite unprofessionally, asked the Speaker to do. In his statement, the Speaker also tried to assert the power ‘to restore stability in the country’, which is clearly the President’s task. He also asked the President to extend support to him, quite arrogantly.

Arab Spring?

It appears that these people were or are attempting an ‘Arab Spring’ in Sri Lanka. They failed once on 7 November because the Secretary-General of Parliament or other public servants did not want to heed the unconstitutional orders of the Speaker. They also didn’t have the people’s support. The proposers or the instigators themselves were hesitant.

They might attempt it again. It is well known that Arab Spring was a disastrous process of regime change through violence and extra-constitutional means supported by certain sections of the ‘international community’. Various statements and activities by some western countries are quite suspicious under these circumstances. The ultimate aim of Arab Springs appeared to be to destabilise the developing countries in the Middle East and North Africa, but also attempted elsewhere to achieve the same objectives.

The Speaker’s statement on 5 November has major constitutional implications. Other than trying to convene Parliament on his own, he was also trying to determine who the Prime Minister is on his own. This, again, is Ranil Wickremesinghe’s orange theory that he had picked from several neoliberals in Britain (Nick Clegg, David Laws, Edward Davey, etc.). They are almost non-existent in British politics today. The Speaker’s following statement is quite unwarranted and in defiance of the President.

“I wish to emphasise that I am compelled to accept the status that existed previously (Ranil Wickremesinghe as PM) until such time that they (UNP) and the new political alliance (Sirisena and Rajapaksa) prove their majority in Parliament,” he said.

Nick Clegg and Article 70

Given the uncertain political situation in Parliament after the collapse of the National (Unity) Government, and the subsequent volatile situation in the country, the advisability of going directly before the people has been proposed and discussed by many people. I myself suggested that it might be the best option available (‘Evolving Disaster: Agreeing to call for election might be the best option’, Daily FT, 6 November). Because people are the supreme and sovereign, and an election could defuse the uncertain situation.

Again, the dissolution of Parliament is a matter for the President under our Constitution. However, then you confront Article 70, which says the following.

“(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.”

What is the connection between this Article 70 and Nick Clegg? With due respect to him, he was the person, when he was Deputy Prime Minister of the UK, who proposed and got through the ‘Fixed-term Parliaments Act 2011’, same as Article 70. Of course, he is not responsible for the Sri Lankan folly, unless someone in the UK advised Ranil Wickremesinghe to include it in the 19th Amendment.

What is wrong with this article, or the fixed term? In my opinion, it is not suitable for a country like Sri Lanka, which should have more flexibility given the country’s still evolving democracy. In the case of UK, it was introduced after some discussion and study. In the case of Sri Lanka, it was done arbitrarily and stealthily. The Fixed Term Act in the UK attempted to prevent a PM trying to arbitrarily dissolve Parliament, by advising the Queen to do so. But in the case of Sri Lanka, Ranil Wickremesinghe tried to prevent the President dissolving Parliament, without his or party’s advice. Or perhaps it was just an imitation of whatever our former Colonial masters were doing!

There is a clear flimsy character for the way the 19th Amendment was formulated and the way the economic policies and other policy matters were handled by Ranil Wickremesinghe and his clique. It is completely wrong for the President to talk about ‘butterflies’ if he meant the LGBT community. However, there was definitely a flimsy character for whatever Ranil Wickremesinghe and his clique were doing. The correct word would have been not ‘Samanala’ but ‘Sarwapithala’ to mean flimsy or bogus.

Conclusion

The 19th Amendment is one of the clearest root causes of the present crisis. Many aspects (not all) were based on some flimsy theories and premises. Although Ranil Wickremesinghe has argued that personal prejudices have no place in the Constitution, his personal interests have been built into the system. The attempts to install Presidential powers to the Prime Minister has failed.

Even in respect of independent commissions, while there is some progress from the 18th Amendment, the attempt was made to keep a political hegemony of the ruling party in the Constitutional Council. The Constitutional Council is not the appropriate title and it is not at all about the Constitution.

Most alarming are the contractions, ‘cut and paste’, the failures in doing so, and disparities created between the Sinhala, the Tamil and the English versions. The current controversies or different interpretations about the President’s powers to dismiss a Prime Minister are also largely due to these fundamental weaknesses of the 19th Amendment, apart from political biases. Let me conclude this article by highlighting the contradictions on the matter of the dissolution of Parliament. Whatever is said in Article 70 in respect to the fixed term of the Parliament, Article 33 (2) unequivocally says:

“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, (a) to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament; (b) to preside at ceremonial sittings of Parliament; (c) to summon, prorogue and dissolve Parliament; …”

What a contradiction between the two! The power “to summon, prorogue and dissolve Parliament” here is quite unequivocal, whatever the views, opinions or ‘despair’ you and I have on the situation. One may argue that while Article 70 is applicable under normal circumstances, Article 33 (2) is imperative under special circumstances or crisis situations.

Lessons From Sirisena’s Narcissist Tantrums – Calls For Urgent Public Activism!

By Mohamed Harees –NOVEMBER 12, 2018

Lukman Harees

Taking a leaf from US, many psychologists have now confirmed Trump is “temperamentally unfit” to be President, and in recent times,many people the world over have reached the same conclusion. Most recently, US psychologist John D. Gartner said Trump “is dangerously mentally ill and temperamentally incapable of being president.” He believes Trump shows signs of “malignant narcissism, which impairs his ability to see reality so you can’t use logic to persuade someone like that.”

Well! Narcissist Trump now has now close competition in our own ‘Joker in the Card pack’ Sirisena (MS) or has he out-beaten Trump? MS’s apparent inability to distinguish between fantasy and reality and preoccupation with fantasies of unlimited power at his disposal; yet with no idea of how to use judiciously as well as some traits of pathological lying- the act of both knowingly and intentionally or willfully making a false statement on a regular basis; leads us to question his fitness for the immense responsibilities of the office of President. Thus another poster boy for narcissism!

Those who spearheaded the campaign in 2015 to bring in a common candidate to fight the strongman MR who was steeped in corruption, are today severely regretting their collective decision to field this local narcissist emerging from the back yards of Pollonnaruwa. Ever since his election in January 2015, he has proved himself to be thoroughly inefficient and inept, blaming those below him to cover his inefficiencies. When he was in MR’s cabinet, he blamed the one above- MR for not allowing him to do what he was supposed to do. Judging by the comments on social media, many believe Sri Lanka made a terrible mistake electing him. Therefore, it was the destiny of this Island Nation to be saddled with MS with a pathetic (pathola) leadership style at this challenging time in Post-war history which calls for strong traits to steer through rough seas successfully. What MS recently did by appointing MR as his PM and later dissolving Parliament throwing all legal and ethical norms to be winds, to the surprise of an entire nation can only qualify him to an absolute joker, a self-serving debased narcissist leader or a political crackpot .Therefore, daughter of MS Chathurika should re-write her father’s biography ‘President Father’ to read as ‘Crackpot Father’.

It was Ven Sobitha Thero who spearheaded the campaign to defeat the racist and corrupt MR regime, to install a corruption free, clean ‘Yahapalana’ government. Unfortunately, the weight of office was too much for him and thus cut a sorry figure as a weak leader in comparison with MR and failed miserably in becoming an impartial president to all. MS after his election, did the first mistake in trying to take over presidency of his former party SLFP, which split his time to sort out internal party squabbles. He also failed to bring to book those corrupt sharks in the MR government and even got few of them into his cabinet and/or to Parliament through the national list. The two-party coalition became a farce with both parties working to their own party agenda, with SLFP Ministers siding more with the JO. His frequent ‘blaming others’ game for his own inefficiencies annoyed the nation. Both the mainstream media (with bit of more breathing space compared with MR times) and the social media severely criticised his passive and laissez faire approach regularly.

He lacked the ability to control a two-party cabinet effectively and to use his presidential powers for the betterment of the nation, which led to Mega scams like Central Bank Scandal. In his own words, he abdicated his role to RW in many instances. He also shamelessly told the nation in his recent TV address that his instructions to inquire into the so-called conspiracy to assassinate him were not heeded, which reflected the type of leader he was and is. Instead, he focussed on minor issues like sugar content in Milo packets, poor quality cashew nuts on Sri Lankan airlines, and officials of a Sri Lankan embassy in a foreign country not answering his calls, which made him a joker. Then he lied in style about the reason for sacking RW and appointing MR as PM. Initially he said that RW did not show any interest to inquire into the assassination attempt( forgetting that he was the Executive Head of State) and later he said that he spoke to both Karu J. And Sajith about taking over the mantle of Premiership from RW, few months earlier , a conflicting versions indeed. Then, it was reported that MR apparently scolded MS (in filth) for failing to find the 113 required to prove his majority in Parliament, thereby making him the only PM to have not been to the Parliament after his election. Then, in the last few days, he has been appointing Ministers of all sorts, while SB has been negotiating corrupt deals offering massive pots of money to make up the magical 113 in Parliament. Finally, against the specific provisions of the Constitution, MS drove the death nail into the coffin by dissolving the Parliament. He has become so unpopular that even Malwatte Mahanayake Thero refused to meet him. In the whole melee, racist culprit Amitha however got the release.