Sri Lanka: Living in a stagnated anarchy with a dictator

How can we call this situation? This is a “junta”, a political group that rules a country after taking power by force. The President has become the cruel dictator of such junta against the democratic freedom to attack the people who have elected him

by Dr Indi Akurugoda-Nov 19, 2018

( November 19, 2018, Colombo, Sri Lanka Guardian) Three weeks have been passed over the President’s undemocratic and unconstitutional arbitrary action against the citizens’ will of this country. Unfortunately, there are many Sri Lankans that happily and sarcastically enjoy the unstable anarchic political situation in the country without knowing or intentionally ignoring its dangerous consequences. These people have started labeling the democracy loving citizens in Sri Lanka as opportunistic party supporters. This is the easiest way for them to neglect their responsibilities as citizens and to protect their favourite political dictators.

The President Maithripala Sirisena has betrayed the public opinion as never done by any ruler of this country. He is continuing with his rigid decisions to suppress the good governance policies, and not listening to any democratic movement. It is really hard to understand how a person could betray a huge public opinion of 62 lakhs of citizens who trusted him and had great expectations on living in a free democratic society. Within one night, the people have been put under a greater security risk and the country has gone through an unsolvable financial crisis. Later on, the international community has started rejecting their political and economic relations with Sri Lanka.

Maithripala Sirisena the man behind the constitutional crisis in Sri Lanka

As an academic and a respectable citizen of the country, watching and experiencing this ironic situation is very much shocking and painful. Although we all know how unjust and unpleasant the series of incidents happened were, we are unable to reverse it. The President has dropped the whole country into danger to fulfill his selfish and opportunistic political desires. For this purpose, his political enemies have suddenly become his companions by fooling all the citizens who brought him into the position of the Executive Presidency.

Within a few moments, all democratic and constitutional principles that we teach students have become false statements. The Parliament, where the public opinion needs to be represented has been dismantled. Against a background of stagnated public policy processes, the bureaucracy has been confused by emerging administrative malfunctions. The annual budget has not been presented to Parliament and thus, the development activities cannot be planned or continued. Tourism, investments, stock market, international aid and financial agreements are crippled. The supreme law of the country, the constitution, has been breached by the first citizen of the country, the President. The MPs who support the President and his new favourite Mahinda Rajapaksa, behaved as idiotic thugs in the Parliament interrupting the smooth functioning of the legislature.

So how can we call this situation? This is a “junta”, a political group that rules a country after taking power by force. The President has become the cruel dictator of such junta against the democratic freedom to attack the people who have elected him. Sadly, a group of slaves in this country blindly supports every illegal act of this junta.

Without providing any political solution to settle the anarchic situation in the country, it is unsuitable for a democratically elected ruler behaving as an enemy of the citizens against their public opinion. If this situation develops further without any solution, the intolerable stress of citizens will result in a major uprising against the President towards expelling his political junta. Does the President wait for this? Do the citizens ready? Realistically, the citizens will not tolerate the President’s dictatorial activities and the created anarchic situation by his new favourites forever.

Dr Indi Akurugoda did a PhD in Political Science and Public Policy at the University of Waikato, New Zealand and later obtained a post-doctoral writing scholarship awarded by the Faculty of Arts and Social Sciences, University of Waikato. She is a lecturer in Political Science attached to the Department of Public Policy, University of Ruhuna, Sri Lanka, working in the areas of decentralisation, local government, community development, conservation ecology and NGO politics.

Re-reading National Security from Human Security Perspective:

Constitutionality, Democracy and National Security

By Prof. Gamini Keerawella-November 18, 2018, 10:04 pm 

National security is a critically important, constantly evolving and characteristically amorphous concept. It is a handy rhetoric phrase for politicians, the ultimate policy objective for military and a key analytical concept and a field of study for Social Scientists.

From the very conception of the state, security remains one of its main functions. It has been argued that the state, the supreme political institution that claims the exclusive right to sovereignty, came into existence mainly to fulfill security needs of the society. To Thomas Hobbs, security is the raisons d'être of the state. Accordingly, the state is the principal security provider. At the same time, the security of the state is a critical precondition to discharge its security functions. Then, what is really meant by national security? Broadly speaking, national security denotes the ability of a nation to protect its internal values and assets from external threats. It is an axiom that military is the tool of national security. In line with the evolution of the state, the concept of security and the role of military have also changed.

In order to place the present discourse on national security in an analytical context, it is helpful to trace its conceptual genealogy. The origins of the present concept of security can be traced back to the formation of modern sovereign states, known as ‘nation state system’. However, the present discourse on ‘national security’ took its shape after 1945 in the Cold War Context at the research and policy corridors of the United States. Accordingly, the security of the state in an anarchic international environment was the focal concern of the national security. The only object of reference of national security is the state. Security was defined as the protection of mainly territorial integrity and sovereignty vis-à-vis threats originated from external sources. Hence, security of the state depends on its power. Power was defined only in terms of military power. Hence, national security was nothing but the politico-military security of the state.

Some profound developments that took place in international and national spaces in the last quarter of the last century have compelled to revisit the traditional concept of national security. The disintegration of the Soviet Union has marked the end of the post-War phase in international politics. The theoretical and analytical categories of national security developed in the Cold War context lost their earlier validity and their inadequacy to understand security problematic of non-western countries became more and more evident with the passage of time. The resurgence of ethnicity in many parts of the world and the spread of ethnic conflicts linked with secessionist state projects practically questioned the very basis of the ‘modern state system’. The issue of how to reconfigure the concept of national security not only to incorporate nonmilitary security threats but also to bring other references of security such as society and individual came to forefront in the changed global context.

The challenges to conventional national security emerged from three directions simultaneously. Firstly, by presenting a report on ‘Common Security’, the Palme Commission ignited a new discourse on security. The Commission, having been firmly rooted in the Social Democratic tradition in Europe, first questioned the basics of the prevailing national security analyses, especially its emphasis on military-strategic superiority. Secondly, the Peace Research School developed an alternative paradigm by bringing the social groups and the individual as units of analysis. The analytical frames developed by scholars such as Johan Galtung and Kenneth Boulding has widened the disciplinary confines of security studies. The concept of structural violence and the categorization of negative and positive peace questioned the narrow military-strategic perception of security. Thirdly, the human security discourse that evolved in the UN framework placed the concept of security on a different plane by reconfiguring security from a human-centered perspective and bringing in a number of references of security and its various dimensions.

Human security is not an alternative to national security. They are mutually re-imposing. The rejection of statist-bias in the traditional concept of national security does not mean that security of the state is not important. Security of the state is considered a very important prerequisite for the other references of security. When the state is insecure the entire society becomes insecure. The security of the state can be reconfigured from a human security perspective to capture the totality of the security paradigm.

The real issue here is how to define the security of the state. Security of the state denotes something more than the physical security of territory and its ruling class. On the one hand, the state is a legal abstraction. On the other, it has a territorial basis and institutional framework of its own. Furthermore, the idea of the state based on its organization ideology constitutes an important element of the state. State is more an idea held in common by a group, than it is a physical mechanism. Therefore, Barry Buzan identifies three elements of security of the state: the idea of the state (ideological base), the territory (physical base) and the institutions and people (institutional and human base). The idea of the state is the critical factor that establishes the legitimacy in the minds of its people. It binds the territory with the human and institutional base along with the state. The state operates not only in the phys cal/geographical sphere but also on a socio-political plane.

The idea of the state is the basis for ideology of the state. The security of the state must be achieved first of all in the politico-ideological plane. It is the ideology of the state that decides the way in which the human base is organized and the orientation of the institutional frames of the state is decided. The ideology of the state must cut across ethic boundaries and political loyalties. It should not be changed in line with the entry and exit of governments and political leaders. The weak ideological basis of the state and its failure to unite all the people that reside within the boundaries of the country are the clear indicators of a weak and insecure state. A key factor of legitimacy of the state domestically is its ability to present an ideology acceptable to all the people in the country, cutting across political and ethnic lines. As Barry Buzan vividly explains if the ideas themselves are weak; or they are weakly held within society; or if strongly held, but challenged within society; then the state stands on fragile foundations. The fundamental issue in national insecurity is the lack of firmly held organizing ideologies attached to the state. In a multi-ethnic country, the ideas of inclusive democracy and good governance are capable of providing a strong organizational ideology for the state. When the ideology of the state comes and goes with political leaderships, national security remains without a direction, akin to a ship sans a compass.

When the weak ruling bloc fails to present a healthy ideology for the state that would unite all the citizens cutting across ethnic divisions, they need ‘enemies’ of the motherland to rally people. Weak regimes see enemies of the state everywhere, conspiracies against the state in every nook and corner. To them, the main task of the state is to identify and counter internal and external enemies who are waiting to destroy the country. Therefore, any means used to destroy or control these enemies is justified. Accordingly, there are only two types of citizens: patriotic and unpatriotic. This creates fear and suspicion and thereby narrows the range of public debate and democratic discourse. Then, it in itself becomes a national security issue.

The other dimension of national security is the security of the institutional frames of the State. No State can survive solely with its ideological foundation. To be functional, any state needs a set of complex formal and informal institutions. In a democratic setup, the most important element of the institutional arrangement of the state is the constitution. The constitution is the reflection of the ideology of the state. The security of institutions of the state, including the constitution, constitutes a key aspect of political security of the state. Political security does not necessarily mean the security of the regime in power; it is based on credible and strong institutional network. For that, the dignity of the bureaucracy needs to be respected. The legitimacy of institutions of the state is destroyed mainly by direct political interference to established administrative procedures, not by external threats. The politicization of the institutions makes the entire mechanism of the state insecure and it ultimately becomes an integral element of the national insecurity. A strong state needs independent and strong institutions, which would not be manipulated by those in power. In this backdrop, the principles of good governance and rule of law occupy the center of the new discourse on national security. The violation or manipulation of constitution for narrow political gains is definitely a national security threat. In that sense, the judiciary can play a critical role as a guardian of national security.

In rereading national security in line with the new security discourse, we need to give due consideration to the human base as a unit of reference of security. When the human base of the state is insecure, the state cannot be secure. It is necessary to bring other references of security such as the individual and the collective identities along with the state to grasp national security in a broader analytical plane. The security of the individual cannot be overlooked at the expense of the security of the state as insecurity of the individual ultimately undermines security of the state itself. The recognition of the individual as a reference object of security has brought human rights into the national security agenda. Suppression of human rights in the name of national security leads to further breakdown of national security.

The constitution is the supreme law of the country. The entire institutional apparatus of the state and their procedures receive their legitimacy and credibility through the constitution. The judiciary is mandated to safeguard the constitution. The constitutionality, enlightened political leaders and the informed public with robust press are essential elements of national security from human security perspective.

(Based on the Presentation made at the International Research Conference of the General Sir John Kotelawala Defence University (KDU) in September 2018)

MPs agitate against the Speaker

Ugly scenes mar sittings for third day

Disna Mudalige-Camelia Nathaniel and Amali Mallawaarachchi-Saturday, November 17, 2018

Parliament marked the lowest point in its entire history yesterday with a series of violent assaults, bloodshed, and rancorous behaviour of some MPs which led to mayhem in the House.

The MPs were conducting a mock sitting with MP Arundika Fernando in the Speaker’s Chair flanked by fellow MPs when the quorum bell rang at 1.30 pm to commence sittings.

Ministers Pavithra Wanniarachchi and Dilan Perera were leading slogans which demanded the immediate arrest of UNP MP Palitha Thewarapperuma for sneaking in a knife and UNP MP Ranjan Ramanayake for grabbing it and keeping it with him.

MP Susantha Punchinilame was seen seated on the Secretary General’s chair and video recording the scene. The MPs, who flocked near the Speaker’s Chair, shouted slogans which said “Palithaya pihi genawa”,

“Gon-Ranja pihi genawa”, “Pihikaraya remand karau”, “Karuwalayata enna kiyapiya, mewata uttara denna kiyapiya, berinam daala yanna kiyapiya” and “Oka tamai api kiwwe-mehema karala be kiwwe”.

Several representatives of the diplomatic missions were present in the gallery witnessing the entire episode while many electronic media channels brought in cameras to the gallery to provide live coverage. Instead of water bottles, the MPs were only provided with plastic cups of water yesterday. All individuals entering the Parliament complex were thoroughly scanned by the STF.

As the quorum bell went off at 1.30pm, the UNF, TNA and JVP MPs filed into the Chamber and took their seats in the Opposition. Secretary-General Dhammika Dasanayake, his Deputy and Assistant also took their seats. UNP MPs Palitha Thewarapperuma and Ranjan Ramanayake were also seen seated.

The quorum bell rang for the second time at 1.40 pm and again at 1.50pm for the third time, but the mock sitting continued. The MPs then started making speeches near the Speaker’s Chair. Minister Vasudeva Nanayakkara, who spoke first, said arresting the criminal who brought in a knife to the Chamber was a pre-condition of theirs to let the sittings commence.

Minister Wimal Weerawansa, making a speech near the Speaker’s Chair, said they do not accept Karu Jayasuriya as the Speaker. He said the MPs security inside the Chamber must be assured. He called on the people to wage a “battle for democracy” in the streets. “The Governments are elected by the people of this country and not by foreign countries. Let the people decide at a General Election. I urge the Supreme Court to take the correct decision thinking of the future stability of the country,” he said.

Ministers Pavithra Wanniarachchi, Bandula Gunawardena and Mahindananda Aluthgamage also made speeches. Aluthgamage spoke in Tamil. Fernando, who was presiding the mock sitting, also called on the names of MPs Lakshman Kiriella and Anura Kumara stating that they could be given the floor for 10 minutes. MP Prasanna Ranaweera was seen guarding the closed door near the Speaker’s Chair which the Speaker usually uses to enter the Chamber.

The quorum bell sounded for the fourth time at 2.05pm. At 2.20pm, a side door to the Chamber opened and a large number of unarmed Parliament police personnel entered in a human chain guarding Speaker Karu Jayasuriya and Serjeant-at-Arms Narendra Fernando who carried the Mace.

MPs had removed the Speaker’s Chair by then.

The first police officer who entered carried an extra chair for the Speaker and tried to move in the direction of the Speaker’s Chair. The furious MPs started reacting violently at this point.

Minister Wimal Weerawansa grabbed the Chair from the Police officer and Minister Johnston Fernando broke it into pieces. Fernando then threw the pieces back in the direction of the Speaker.
The pieces hit Parliament Police.

Parliament staff assistants and police held cushion covers of the chairs to protect the Speaker. The Speaker took a seat usually allocated for Parliamentary staff assistants near the Opposition benches with a hand-held microphone. The MPs then hurled bound books at the direction of the Speaker and Police. Later they threw more such books and water mixed with chillie powder to the direction of Opposition MPs and police.

The Speaker then commenced the sittings officially and Standing Orders were suspended by majority vote. Since the Speaker spoke to the microphone, the Hansard could record what he said. All opposition MPs, who were in their seats, supported the Speaker to carry on the proceedings. The No-Confidence Motion against Prime Minister Mahinda Rajapaksa was placed before the House again after deleting the first Clause as agreed at the meeting with President Maithripala Sirisena on Thursday night.

The Speaker asked all MPs to support to go for a vote by name, but since the MPs did not heed him, he took a voice vote. All Opposition MPs sat from their seats, raised their hands and said “aye”. The Speaker then announced the House that “the Ayes have it” and that the motion was carried while the UNF MPs cheered and applauded. The Speaker then adjourned the session till November 19.

While the MPs hurled books, shoes and any other item that they could reach, the political party supporters in the public gallery began shouting at the MPs. JVP MP Vijitha Herath and several Parliament police personnel sustained injuries. MPs Vijitha Herath and Gamini Jayawickrema Perera also came under the attack of water mixed with chillie powder. The thick bound book hit several Opposition MPs including Malik Samarawickrema. UNP MP Harin Fernando and several UNP MPs hurled the same big books thrown at them back in the direction of the UPFA MPs. The podium, on which the Mace is kept, fell on the floor due to the roar of the MPs.

PM Mahinda Rajapaksa, who made a brief presence in the House, walked out of the chamber. Former Prime Minister Ranil Wickremesinghe also made a brief presence.

Kill Not Be Killed

By Jagath Asoka –NOVEMBER 18, 2018

Dr. Jagath Asoka

How you interpret the title of this article depends on where you put a comma. So, given the current situation in Sri Lanka, where would you put a comma; where would you pause? Would you say, “kill, not be killed,” or “kill not, be killed.” I am not trying to promote violence. When the lawmakers of a country commit violence openly in their parliament, attack their own members, attack policemen, and commit crime with impunity, while the entire world is aghast, what would the citizens do? What would the lawmakers do to stop it happening again? How can you attack your own colleagues?  

I am going to borrow the words from several historical quotes, and most of you will recognize them when you read this article.  

If you are a member of the Sri Lankan current parliament—the supreme legislative body—what would you do when you see the asinine, beastly, belligerent behavior of your colleagues? Would you remain calm when someone pulls a knife or throws a chair at you? What is your breaking point? If you are physically attacked, what would you do? If your life is threatened, what would you do? Sri Lankan Parliament is in shambles. When I say it is in shambles, so far, it is just a mess; soon, it will be a place of mass slaughter and bloodshed; perhaps the entire country cannot escape its destiny. What would be the denouement of this lawlessness and vulgarity? 

Does violence beget violence? Are you going to put your sword back in its place…for all who draw the sword will die by the sword?

Would you say, we must meet the forces of hate and violence with the power of love? Would you say our aim must never be to defeat or humiliate the thugs and murderers of our society, but to win their hearts, friendship, and understanding? 

What would you say to those who believe that of all that is written, love only what a person hath written with his blood. Write with blood, and thou wilt find that blood is spirit.

Does natural justice or natural injustice exist? Do you really believe that the the arc of the moral universe is long, but it bends towards justice? 

Do you think that the criminal type is the type of the strong human being under unfavourable circumstances: a strong human being made sick?

Cain killed his own brother Abel, which concretized that our human nature is gratuitously cruel. Sri Lankan lawmakers have become thugs, murderers, and executioners. Cruel societies are cruel in every single layer: individually, within the family, within a village, and it is the same everywhere; it is not the leaders, it is the individuals who elect the leaders. Whatever the pathologies that each individual carry in his or her destructive little soul, whatever the element of Cain deeply imbedded in you, will manifest at every waking moment of your miserable existence. Each one is the archetypal manifestation of Cain; for destructive people, Cain is their Savior. If violence is a weed that should not be watered, what would you do, when you are physically attacked by your own colleagues? How are you going to protect yourself from the trap they have set for you? They will keep provoking you, until you reach your breaking point. How are you going to fight against the tyranny of the minority and mob rule and majority’s timidity?

Are you individually guilty, or guilty collectively? It seems like most of Sri Lankans are not involved in the real crisis; it seems like most intellectuals are fiddling with themselves and their stupid theories while Sri Lanka is beginning to burn. If you are ambivalent of tyranny, just talk to a Sri Lankan for five minutes, and it will be evident how a charismatic demagogue can easily and successfully make Sri Lankans support a benevolent dictator.  

When a book was thrown at you, you picked it up, kissed it, and left it on your desk. When chili powder was thrown into your eyes, you washed it off. What are you trying to prove by these responses? Are you are better than them? What is next? If a person pulls a knife, what would you do? Is there a procedure to punish these perpetrators, or as always, a crime can be committed in Sri Lanka with impunity, especially in the parliament?

If you cannot figure out what your leaders are doing, look at the outcome and infer the motivation. If the outcome is violence and bloodshed, then the leaders were aiming at violence and bloodshed. If the leaders are aiming at bloodshed, where would you pause: Kill not be killed?

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Avoiding Repugnancy the need of the hour to protect Sovereignty

2018-11-19 

overeignty in broad terms means supreme power or authority. National sovereignty accordingly, is the autonomy or the independence of a State based on this supreme power or authority. In history wars were fought to preserve sovereignty of nations and sometimes to make sovereign nations subservient or to break them up. When sovereignty is lost, as has been our experience, it often takes several centuries to recover such lost sovereignty.
When force of arms was used against the sovereignty our Country we have exercised the sovereign right to defend ourselves. 
In our recent history, such an attempt to violate our sovereignty by means of terrorism was defeated at a tremendous human and material cost to our nation. In a situation where some individuals in society seem to have forgotten the miserable circumstances we were placed in during a time where our Sovereignty was under the constant threat of terrorism,  it is pertinent to examine how our Constitution has put in place mechanisms to protect our sovereignty and to see whether we understand the value of preserving it.

"If the proviso to Article to 70(1) remains a mere proviso, the effect of which can  be limited to situations where Parliament requests its dissolution from the President, this repugnancy is cured. Does the law permit such interpretations? It does for very practical reasons such as the present situation faced by our Country"

A Judgment of 7 Judges reported in (2002) 3 SLR at page 85 settles the Law in respect of 3 matters.
1.The dissolution of Parliament is part of the exercise of executive power vested in the President.( at page 104 )
2.Such power cannot be alienated, in that, it cannot be removed from the President and be vested in the Parliament.
3.The restriction of that power can be done up to a maximum of half the period of Parliament and if a restriction is placed beyond half, it would amount to alienation and therefore, such a restriction would violate the inalienable sovereign executive power of the people set out in Articles 3 read with 4(b).( page106) 
This Judgment binds the Supreme Court and any interpretation of the Constitution has to be done necessarily in line with this Judgment. Some claim erroneously the present provision to Article 70(1) introduced by the 19th amendment, restricts the power of dissolution of Parliament vested in the President beyond half the term of Parliament’s elected time. If so interpreted it would be a clear violation of Article 3 as interpreted in the Judgment. In that light, how does one interpret the effect of proviso of Article 70(1)?

In fact the 19th Amendment accepts the position that the power of the President to dissolve Parliament is with the President since Article 33(2)(c), Article 62(2), Article 70(1) and Article 70(3) all refer to the Parliament being dissolved by the President. It is the proviso to Article 70(1) that seems to seek to place a restriction on this power. There will be a repugnancy between this proviso and the power of the President given in the other Articles including Article 70(1), when read with Articles 3 and  4(b), if interpreted in this manner. The only method sovereign executive power vested in the President on trust can be alienated and be vested in Parliament is by following provisions of the Constitution and having a referendum. This is because Article 3 is an entrenched Article in terms of Article 83 and such can be removed only by the consent given by the people at a referendum. We all know such a referendum was never held.

"If the President attempts to violate the will of the people after an election, which again would be a violation of their franchise by exercising a power given to him arbitrarily, such can be restrained by the method of a fundamental rights application which is now provided  in the 19th Amendment"

The question that arises then is this. As a literal reading of the proviso to Article 70(1) is clearly repugnant to all Articles relating to dissolution,  including Article 71 when read with Article 3 and 4(b) , as interpreted by the Supreme Court, what should be done about it? As mentioned earlier, the right of dissolution of Parliament is clearly accepted by all to be a part of the executive power of the people vested in the President in trust and is not alienable. 
Therefore, all the Articles related to dissolution of Parliament found in the Constitution, including the presently amended Article 70(1), refers to the President dissolving Parliament.  Legislation cannot by implication repeal an entrenched Clause, particularly when that entrenched Clause is the very heart of the Constitution. 
Therefore, since a mere proviso in Article 70(1) is being attempted to be interpreted in a manner repugnant to Article 3, a method must be found to prevent this proviso, overwhelming the heart of the Constitution which is Article 3. 
If the proviso to Article to 70(1) remains a mere proviso, the effect of which can  be limited to situations where Parliament requests its dissolution from the President, this repugnancy is cured. Does the law permit such interpretations? It does for very practical reasons such as the present situation faced by our Country. Maxwell, suggests some simple legal means of avoiding repugnancy.

One way given in the 1976 Edition of Maxwell – Interpretation of Statutes page 187 paragraph 2 is as follows;
 “one way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations”
If this Rule is applied, the matter can be resolved. If Parliament wishes to have itself dissolved within 4 ½ years,  it can make a request to the President in terms of the proviso to Article 70(1) and the President may, since it is his prerogative, at his discretion, allow such dissolution.
The provisions of the Constitution, which gives the President the power of Dissolution -namely, Article 33(2)(c), which was introduced for the 1st time by the 19th Amendment itself , Article 62(2) , Article 70(3) and even Article 70(1) without the proviso could be considered as giving ample authority to the President to dissolve Parliament irrespective of a request by Parliament.  This interpretation would avoid the repugnant nature  of the proviso to Article 70(1).
If one reads Maxwell further, the Construction of provisos is also explained in a very simple way at page 189 last paragraph of the same book as follows;
 “It will, however, generally be found that inconsistencies can be avoided by applying the general Rule that the words of a proviso are not to be taken “absolutely in their strict literal sense”, but that a proviso is “of necessity…. limited in its operation to the ambit of the section which it qualifies”
The said paragraph in Maxwell continues as follows;  “so far as that section itself is concerned, the proviso again receives a restricted construction: where the section confers power, it would be contrary to “ordinary operation of a proviso to give it an effect which would cut down those powers beyond what compliance with the proviso renders necessary”

"The provisions of the Constitution, which gives the President the power of Dissolution -namely, Article 33(2)(c), which was introduced for the 1st time by the 19th Amendment itself , Article 62(2) , Article 70(3) and even Article 70(1) without the proviso could be considered as giving ample authority to the President to dissolve Parliament irrespective of a request by Parliament.  This interpretation would avoid the repugnant nature  of the proviso to Article 70(1). "

Therefore, applying these rules of construction the proviso to Article 70(1) will be contained and  it will be prevented from being repugnant to Article 3 of the Constitution, which is the heart of the Constitution.This can be done until Parliament removes  the repugnancy with an intelligent approach in the future.
The present act of dissolution can be easily justified legally since the 19th Amendment has been drawn in such an inept manner that it leaves room for perfectly legal and imaginative interpretations. 
The entire Constitution should be read subject to the over - arching principles set out in Article 3 read with Article 4. This is because the people have vested their sovereign power  in trust on the President and Parliament separately as explained in Article 4(a) and (b).   
Article 70(3) after the 19th amendment stands separated from the present proviso to Article 70(1) regarding the right of dissolution vested with the President and cannot be read together with that  proviso introduced by the 19th amendment as far as the new restrictions imposed by the same are concerned.  This is because Section 5(2) of the interpretation Ordinance only talks of every amending enactment “having to be read as one with the “principal enactment””. The part of the Principal enactment that was not touched by the amendment need not therefore be read with the amendment as far as the reduced powers are concerned.
The effect of Article 3 is clearly that alienation of Executive power vested in the President is not possible without the sanction of the people at a referendum in terms of Article 83.

 Whatever amendment that has been brought has not removed Article 3 of the Constitution which is the inalienable sovereign power of the people as settled by Law which says once the executive power of dissolution is reposed in the President, it cannot be removed and handed over to another arm of Government without the sanction of the people at a referendum.  
Of course the question then remains what would a President do and what could a President do under these circumstances if the law is interpreted to mean that he can dissolve Parliament at any time.
The remedy fortunately is available under the present 19th Amendment itself in terms of Article 35 read with Article 126 as an arbitrary or unreasonable exercise of Executive action of the President is subject to the fundamental rights Jurisdiction of the Supreme Court. 

"If one reads Maxwell further, the Construction of provisos is also explained in a very simple way at page 189 last paragraph of the same book"

If the President attempts to violate the will of the people after an election, which again would be a violation of their franchise by exercising a power given to him arbitrarily, such can be restrained by the method of a fundamental rights application which is now provided  in the 19th Amendment.
That is a question that can be looked at if and when such a situation arises. However, for the present, the essential necessity is to ensure that the inalienable sovereignty of the people preserved for very good reasons by able men of the past  is not alienated by implication due to the absence of such ability in those responsible for legislation in the present era.

Mahinda Rajapaksa loses trust vote again

Mahinda Rajapaksa   | Photo Credit: Getty Images

Pro-Rajapaksa MPs again try to assault Jayasuriya; JVP leader accuses them of behaving ‘like beasts’

Meera Srinivasan
-, NOVEMBER 17, 2018

Amidst furore and violence caused by his MPs in Parliament, Mahinda Rajapaksa on Friday lost a trust vote for the third time this week.

The no-confidence motions were taken up in the wake of Mr. Rajapaksa’s controversial appointment as Prime Minister, replacing Ranil Wickremesinghe who was abruptly sacked by President Maithripala Sirisena three weeks ago. Former strongman Mr. Rajapaksa has however refused to accept the outcome of the first two motions — on his appointment and his address to Parliament — after failing to prove a majority in the House.

President Sirisena, who has now realigned with Mr. Rajapksa, did not endorse the earlier votes, but had promised to accept Friday’s vote. He is yet to acknowledge it or state his decision on future course, in the absence of a PM or cabinet.

Dramatic sitting

The dramatic proceedings on Friday began with the lawmakers occupying the Speaker’s chair for nearly an hour from 1.30 p.m., the time the session was scheduled to commence. The MPs ripped out the microphones and telephone chords at the Speaker’s desk, and continued chanting slogans until about 30 policemen, locking arms in a chain, unexpectedly entered the chamber through the side door.

Behind them, Parliament staff moved cautiously ahead, escorting the sergeant-at-arms who was holding up the mace — the ceremonial staff required to hold proceedings — that shone brightly in the muted yellow lights above.

Standing firm

Right beside was Speaker Karu Jayasuriya, 78, clad in his black robe. Unable to occupy his seat, he stood firmly on the aisle and commenced proceedings through a microphone, in the face of heightening aggression from Mahinda Rajapaksa’s MPs. The lawmakers flung wooden chairs, copies of the Constitution and water mixed with chilli powder towards the Speaker and the MPs seated across.

Despite the attacks that came their way, the MPs who moved the confidence vote against Mr. Rajapaksa remained calm and chose not to retaliate. In rapid sequence, Tamil National Alliance (TNA) parliamentarian M.A. Sumanthiran moved a motion to suspend the day’s business, and it was passed by a voice vote.

Immediately, Janatha Vimukthi Peramuna (JVP) leader Anura Kumara Dissanayake moved a motion of no confidence against Mr. Rajapaksa — controversially installed as Prime Minister PM on October 26 — and his purported government. After JVP MP Vijitha Herath seconded it, the Speaker called for a vote. A loud chorus instantly emerged from the ‘Opposition wing’. “The Ayes will have it,” the Speaker declared.

Addressing Colombo-based foreign correspondents later in the evening, Mr. Wickremesinghe said the “anarchy and instability in the country” had to end. “We have proved yet again that we have the numbers, and our side is willing to show a way out.” Observing that he had never seen a day like this in the House, in his four decades as lawmaker, he said Friday’s chaos was a “black chapter” in the country’s long parliamentary tradition.

“It was a deliberate breaking up of the Parliament by a group of people claiming to be the government… it was thuggery,” he said, adding in jest: “I hope this won’t be a precedent for the Lok Sabha.”

Though Mr. Jayasuriya declared the motion passed, aides of Mr. Rajapaksa claimed it was invalid, and accused the Speaker of bias.

‘Won’t prorogue House’

On Thursday, following a similar assault on the Speaker, Mr. Sirisena assured the Speaker that he would ask the MPs to respect parliamentary proceedings and act responsibly.

As violence escalated in the House on Friday, Mr. Sirisena tweeted at 2.13 p.m.: “I urge all parliamentarians to uphold principles of democracy parliamentary traditions at all times. I will not prorogue the Parliament under any circumstances.”

However, little changed on the floor. At least 11 policeman, and three lawmakers seated in front row suffered wounds in the attacks. JVP’s Vijitha Herath suffered a cut on his forehead.

“The President and his group violated their promise. Their parliamentarians behaved like beasts, not like human beings,” Mr. Herath told The Hindu, minutes after the sitting ended, with an adjournment until November 19.

It’s Time for a Compromise

By Arjuna Ranawana- NOV 18 2018

The political crisis gripping this country continues into its fourth week with very little hope of an early resolution. It is now a stand-off with Parliament dominated by Members staunchly opposed to Mahinda Rajapaksa, who was appointed Prime Minister by President Maithripala Sirisena on 26 October and the Executive which is not recognizing that fact.

It’s Time for a Compromise.... by on Scribd

Country paying for Sirisena’s childlike behaviour

Saturday, 17 November 2018 

Many were surprised on 26 October to see former President Rajapaksa being appointed Prime Minister by the very man who defeated him a couple years ago, at a considerable risk to himself and to those who helped him win the election.

Then events became even more confusing to many when the Parliament, which had about two years left, was suddenly dissolved by Sirisena. Parliament that was dissolved then resumed after a Stay Order by the topmost Court. However, unfortunately for Rajapaksa, the honeymoon ended very fast. The very first day he entered the House, he was rejected as Prime Minister by the House.  Rajapaksa, to save himself from the embarrassment, disrupted the House and the next day, called for general elections. The ill-advised decision of the President to appoint Rajapaksa was orchestrated by the President’s brother Dudley Sirisena, a controversial businessman, allegedly to secure his brother’s future and his business contracts, little knowing what his brother was walking into blindly. He had even persuaded the President not to accept the Speaker‘s ruling. Later, however, the President, due to pressure from civil society, had subsequently informed the United National Party (UNP) that if they can show a majority in Parliament, he would accept the decision of the majority of the Parliament on the condition that they nominate someone other than Ranil Wickremesinghe for the position of Prime Minister. Responding to President Maithripala Sirisena’s remarks at a rally in Colombo, UNP leader Ranil Wickremesinghe said whatever the President’s personal issues with him may be, the President should not plunge the country into constitutional chaos through his illegal and immoral actions.

Wickremesinghe said in a twitter message that the President should not hold the people he has been elected to serve ransom by plunging the country into constitutional chaos. However, the President has informed the UNP that he cannot and will not cooperate with Ranil Wickremesinghe any further, and to nominate someone else. The representatives of Wickremesinghe who met Sirisena last evening were again told that President Sirisena has guaranteed the UNP that if someone other than Ranil Wickremesinghe can be nominated, Mahinda Rajapaksa would be dismissed from the post of Prime Minister. The President has further requested the party to support him in solving the issue without carrying it any further. The President has recommended Sajith Premadasa for the post of Premier. On the other hand, Sajith Premadasa, who does not want to go against the party or the party leader, has emphasised that given the circumstances, it is only possible to cope with such a huge crisis if the position is filled by a senior person like Ranil Wickremesinghe himself.

 Never learns

Ranil Wickremesinghe, according to UNP insiders, never learns from his past mistakes. Many expected him to change course after the acrimonious no confidence motion that was brought against him by the SLFP. However, he continued to isolate the party and work with his sidekicks Malik Samarawickrama, Akila Kariyawasam and Sagala Rathnayake. President Sirisena publicly called them the ‘samanala group’. Sirisena has told many people he does not want to see any one of them in his Government. Many UNP MPs don’t like them either, according to insiders. The faster they move away from Wickremesinghe, the better it will be for the UNP and for Wickremesinghe.

Sirisena

On the other hand, President Sirisena’s personal disputes with Wickremesinghe are many, but the country cannot suffer because two adults don’t have the courage to deal with their problems face to face. He must now clean up the mess he created given that Speaker Karu Jayasuriya has fulfilled his request and had informed President Maithripala Sirisena in writing yesterday that the no confidence motion moved by Chief Opposition Whip Anura Kumara Dissanayake was duly passed in line with the Standing Orders that govern parliamentary business. He had also sent the list of 122 MPs who supported the motion. Mahinda Rajapaksa, who got caught up in a personal feud and attempted to exploit it to his political advantage to protect his family from the 100 plus cases that are being examined by various courts, must at least now, after losing the no confidence motion for the second time, listen to the most senior SLFP MP in the Joint Opposition, Kumar Welgamege, and take a backseat and stand down without losing the enormous goodwill he has earned among the rural masses over the years.

No One Can Achieve Anything By Discussing With Creator And Instigator Of Current Political Crisis: JVP Responds Strongly To Sirisena’s Invitation

NOVEMBER 18, 2018

In a strongly-worded letter to President Maithripala Sirisena, the JVP has said the party does not wish to ‘discuss’ the current political crisis with the President, as the latter has to demonstrate his resolve to address the issue by action.

JVP leader Anura Kumara Dissanayake

The JVP leader Anura Kumara Dissanayake, in his letter, has explained why it decided to boycott the all-party meeting convened by President Sirisena this evening.

The party, describing Sirisena as the ‘creator’ of the political crisis, says Sirisena instigated the turmoil by appointing a Parliamentarian who did not command the majority support in the House as the Prime Minister. The JVP also said the President then triggered a culture where Parliamentarians were traded off to prove an artificial majority for a chosen Prime Minister.

The JVP also criticized the President’s moves to prorogue and dissolve Parliament exacerbating the political crisis, when his attempts to purchase MPs proved to be futile.

The party then blamed President Sirisena for offering ‘cheap excuses’ for accepting two no-confidence motions against purported Prime Minister Mahinda Rajapaksa adopted in Parliament. The party maintains that the two no-confidence motions were adopted by the House following the correct Parliamentary procedure, with the contest of a majority.

The JVP believes, the latter says, that nothing can be achieved by holding discussions with the creator of an unprecedented crisis. The party points out that the President must now resort to action, and fulfil his part, to resolve the political crisis.

Read More

Sri Lanka: Taking Sides — on the side of the law

We need to be biased – always for the law. There can be no neutrality

by S. Ratnajeevan H. Hoole-Nov 19, 2018

Nov 19, 2018

( November 19, 2018, Colombo, Sri Lanka Guardian) I am under criticism for “taking sides” in the ongoing dispute between the UNF and UPFA. Former President Mahinda Rajapaksa has accused me thus:

“Yesterday a commissioner from the Elections Commission went to the Supreme Court saying that the President’s decision to dissolve Parliament is against the law. He has gone before the Supreme Court although more than 10 others have also filed cases and his actions will contribute to the promotion or the demotion of a party. It is unethical for a member of the elections commission to do so. So why did he do it? Ratnajeevan Hoole is the Tamil National Alliance (TNA) nomination for the Elections Commission and he has shown his political bias,” Rajapaksa said (The Island, 13 Nov. 2018).”

I do not wish a point-by-point rebuttal of this statement’s numerous errors of fact and judgment, starting with the fact that we have no election commissioners. I objected not to elections per se, but to illegal elections and being forced to conduct them in violation of my rights.

Today (15 Nov.) there were two more missives against me. One was in the Divaina Editorial. I cannot read it but the person who read it and told me of it said that the communalist newspaper had only two accurate facts – my father’s name and my brother’s.

The other missive was by my friend C.A. Chandraprema who carefully weaves facts with calculated untruths (The Island, 15 Nov.). He says I never challenged the postponement of local government election. Yes, true. What is untrue is the claim that in going to court I joined
“the very same political parties the UNP, the TNA, the JVP and two Muslim political parties that colluded with one another to change the local government elections …”

The fact that Chandraprema left out the SLFP shows his bias and attempt at mind-manipulation. He would do well to remember that the Minister responsible for Local Government Elections and their postponement was Faiszer Muthapha of the SLFP. If he had read what I have written (for example, “Are we a Democracy? May be?”, The Island, June 7, 2018) he would have known that I have raised many of these points in favor of the law. I did not go to court on the postponement of elections because there was already a judgment. Importantly, in postponing elections as described by Chandraprema, there was brazen manipulation but nothing unlawful to challenge.

Spin

There is a reason why I do not go into a detailed criticism. I was awarded India’s IETE Gowri Gold Medal for my work showing that ethics is rarely implemented as an absolute standard. I have shown that many spin good principles for narrow purposes (vide my recent book Ethics for Professionals: An Internationalist, Human Rights Perspective, Cognella Press, San Diego, Ca, 2018). Besides my main subject of electrical engineering, I also teach professional ethics, a compulsory subject for accredited engineers.

We know from established research that people decide and vote by identity. So whatever a politician says, it will be swallowed whole by loyal supporters who share his ethnic and party. We therefore really cannot learn anything from the pontifications of politicians and their mouthpieces. We must cultivate reading laws for ourselves and deciding for ourselves.

Weerawansa MP in action. Photo from Parliament which gives us our Laws (16 Nov. 2018)

We have seen a lot of spinning in a cafeteria reading of the constitution rather than as a whole document. We have seen the high principle of neutrality being misused for narrow ends, spinning (as in Mahinda Rajapaksa’s piece in the Island) that the Elections Commission to be neutral must not have an opinion on the law and not go to court. How can we not have an opinion when we are charged by the Constitution in Article 104B (2) “to secure the enforcement of all laws relating to the holding of any such election or the conduct of referenda”? Without an opinion on the law, how is it possible to secure the enforcement of laws?

Indeed, the Supreme Court gave an interim order on the dissolution of Parliament that went against the President’s position. Does it mean that the Supreme Court is biased and “politically motivated.” Of course that opinion contributed to the promotion of one party and the demotion of another. However, in rendering that judgment, the Supreme Court did its work.

More spin is coming that a referendum must decide who the Prime Minister is. Law and tradition are clear that an elected government has a mandate for a period. Without that security, no government will implement bold policy even when such policy is unpopular in the short term but has long term dividends. Besides, after an expensive referendum, there is no law to change governments based on the result. It would lead only to more conflict and no resolution – another spin for the faithul. Not to be victims of spin, we need sound civic education in our schools.

We are an independent Commission and nobody’s mouthpiece. When we rule on matters, we necessarily promote the right side. It is called doing our work.

The Law

Public confidence in the law is at a low point today. In the North, the police can be easily bought – in two instances when the Election Commission filed complaints, the police filed the unrelated charge of campaigning at a polling both instead of the far more serious and correct charge that the election campaign was launched from a temple. The judge revealed his political bias openly acting against a person on whom notice was not served. Complaints to the Judicial Services Commission went unheeded despite several reminders. However, with the new CJ the complaint has moved to inquiry.

In Jaffna where the Commission complained against a lawyer threatening an Election Commission Member, the system showed open bias. Again a reduced charge was filed and it took several letters to the IGP and the AG to get the charge corrected. Nonetheless, the bias for a fellow lawyer was evident. The magistrate sent the matter for mediation when the law did not allow it for such a serious matter against society. The Acting Magistrate, Mr. V.T. Sivalingam showed open bias for the accused by letting him wear his cloak and stand outside the cage for the accused, and got very angry when asked if the accused had special privileges.

Photo from Parliament which gives us our Laws (15 Nov. 2018)

Indeed, from the time of a) the disfranchisement of hill-country Tamils, b) to the Kodeeswaran case, c) to the Bindunuwewa Massacre where the Supreme Court berated a 12-year old murdered Tamil boy as a terrorist, d) to Chief Justice Sarath Silva boasting of his special favours in the Hambantota judgment, e) to CJ Mohan Peiris’ stooging, the reputation of our highest judges has been taking a beating – until now that is. The new Chief Justice and his two colleagues have redeemed our judiciary at a time when the Election Commission felt the judgment would go against us if we challenged the dissolution of Parliament. I have seen colleagues fearing to go to court expecting – nay being sure of – a judgment favoring those in authority. Now we can do the right thing with decent hope of correct judgments.

However, there will be bumps on the road like today (15 Nov.) Can the thugs and hooligans who rioted in parliament (and some say urinated on the Speaker’ Chair) ever be capable of reading and understanding laws? Writing good laws? Will parliamentary privilege be used to shield them from prosecution – just like some judges hide behind contempt to be tyrants in court?

The Maldivian Comparison

A Foreign Affairs Secretary demanded that I not go as an observer for the Maldivian elections saying “We are 5-star democracy. We cannot be associated with the Maldives.” Are we truly a 5-star democracy? The Maldives looks better after the recent democratic change of governments. I cry for my country.

We need to be biased – always for the law. There can be no neutrality.

featured image:  Minister Johnston Fernando of the UPFA and Kurunagala Liquor Dealer with corruption and other criminal cases pending, denies he threw the Bible at UNP MPs in Parliament on 15 Nov. 2018 despite the movies appearing to show him to be doing just that

( The writer is the member of the Sri Lanka Election Commission)