Monday, December 3, 2018

Constitutional crisis heading to a solution:But on whose terms ?

2018-12-04

The constitutional crisis that had plagued the country for over six weeks appeared to be heading to a closure. That prospect however is subject to the next earthy temptation in an unruly mind of the executive president, and chaos he sowed by his arbitrary sacking of the government of Ranil Wickremesinghe. However, as of the weekend, it appeared, President Sirisena has finally decided to call it a day.

Last week, at a meeting with a delegation of Tamil National Alliance (TNA) Parliamentarians, he acknowledged that his purported Prime Minister Mahinda Rajapaksa does not command the majority in Parliament. He asked the TNA and the political Opposition to resubmit a fresh No Confidence Motion, and follow electronic voting to count votes in contrast to the voice vote with which the previous resolutions were passed.

If submitted, this would be the fourth No Confidence Motion, President Sirisena has ignored the verdict of three consecutive NCMs passed by Parliament so far.
Earlier last week, 14 MPs of TNA informed the President that TNA “will support the restoration of a Government headed by the UNF (United National Front)” and asked the President to revert to the government that existed before October 26th.

With the support of the 14 TNA MPs, the UNP (with 103 MPs of its own) is in a position to muster 117 MPs, four more than the simple majority of Parliament. In addition, there are six JVP MPs who have opposed the MR ‘government’, but have chosen to remain neutral vis-a-vis the UNP.

However, the President’s change of heart is not so much about Parliamentary arithmetic, which he has ignored all along. The explanation may lie in two forthcoming rulings by the Supreme Court and Appeal Court. The first is a series of Fundamental rights Petitions challenging the constitutional basis of the dissolution of Parliament by President Sirisena. The Supreme Court earlier issued a staying order against dissolution. Now a seven member bench is expected to hear the case this week, and the ruling is scheduled to be announced as early as December 7th. The second is the Quo Warranto Writ petition filed by 122 MPs questioning the legitimacy of PM Rajapaksa and his government. The Court of Appeal yesterday issued notice on Respondents and directed them to show by what authority they hold office.

The two forthcoming court rulings have tested the President’s resolve. He previously admitted that he did not consult the opinion of the Supreme Court before making his controversial decisions on arbitrarily sacking of Ranil Wickremesinghe, appointment of MR in his place, and finally his desperate dissolution of Parliament.
President Sirisena, had so far treated the majority will of Parliament with partisan contempt. However, two potentially unfavourable rulings by the Supreme Court, which also functions as the Constitutional Court and the Court of Appeal could probably provide the context for his impeachment on the grounds of violating the constitution.

This eventuality has also prompted the President to consider rescinding the previous gazette notification on dissolution of Parliament. Appointing a new PM who reflects the will of the House of Parliament would be the first step.

Interestingly, the TNA held an olive branch to the President when it assured that it would not support the impeachment of the President. Similarly, the political grouping of Mano Ganeshan has also extended a similar undertaking to the President. Muslim political parties may follow suit. That coupled with UNP’s inability to garner the required two-thirds majority and the extreme polarization in Sri Lankan politics may throw a lifeline to President Sirisena. However, there are other challenges to the President as he tries to pull himself up from current political impasse.

There, it is not meek Ranil Wickremesinghe, who lacks ingenuity to run rings around his political opponents that the President should be worried. It is canny MR who may play the devil. Sirisena unleashed the gene when he appointed, (or even coaxed in to the office) MR. Now he wants to sack the same man. But the latter is not going to take that lying down.

President Sirisena, had so far treated the majority will of Parliament with partisan contempt. However, two potentially unfavourable rulings by the Supreme Court, which also functions as the Constitutional Court and the CoA could probably provide the context for his impeachment on the grounds of violating the constitution

President Sirisena’s dignified exit and restoration of the status quo of Parliament prior to October 26 is a slap on MR’s face. He has made it clear that he has no intention to leave the office. He has challenged the President to sack him. Sirisena feels he lost the bargain. If he could oust Ranil, it would be a bonus, but the operative word now is to control the damage of his folly, and salvage whatever possible of his legacy.

Whereas MR tends to believe that the full scale of power grab, the duo hatched, would materialize sooner or later. Staying the course is the key, irrespective of international condemnation and the crumbling economy. All of which are subordinate to his personal ambitions.

In the process, MR and his goons have made an ass of their purported government. Last week, they boycotted parliament for a whole week, in order to avoid further humiliation. Parliament which previously passed three No Confidence Motions, last week passed a motion, cutting off funds to the new government.

There are regular instances where aggrieved opposition parties have boycotted Parliament. (That had been a common sight in Bangladesh, where the two feuding ladies, Sheik Hasina and Begum Kalida Zia took it as a national past time, until the latter chose to boycott the election itself, and landed in wilderness, and later in jail)
But, MR and his acolytes have brought this to a new level of chicanery That is a first in the world, where a sitting government had boycotted Parliament. Whether the joke is on MR or President Sirisena is yet to be seen. The widening gulf between the two individuals is palpable.

The President seems to be trying to pull himself up from the hole he dug himself into. MR keeps digging. He is neither a liberal democrat, nor a believer of constitutionalism. Those like MR are propelled by the grassroots ignorance of our societies and prey on their ugliness, racism and retrograde populism. MR is exploiting the current political crisis to exploit the ethnic polarization, while Sirisena wants a break from the crisis. Whatever the immediate outcome, the President may regret for creating this mess.

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Court bars Rajapakse from acting as premier

Sri Lankan Member of Parliament Ajeeth P Perera, second right, speaks to the media outside the Supreme Court in Colombo yesterday.

AFP/Colombo-December 03 2018

A court in Sri Lanka yesterday suspended Mahinda Rajapakse’s powers as prime minister and ruled his disputed cabinet could not govern the strife-torn island until it proved its legitimacy.

The decision casts further legal doubt over Rajapakse’s claim to lead Sri Lanka, which has been in turmoil since his controversial appointment a
month ago.

Rajapakse, who was installed after the country’s president sacked Ranil Wickremesinghe as prime minister on October 26, has twice been voted out by parliament but has refused to step down.
There was no immediate comment from Rajapakse or his supporters.

President Maithripala Sirisena has been under pressure to prove his appointee Rajapakse - a divisive but charismatic strongman who twice ruled Sri Lanka - commands support.

Rajapakse has ignored parliament and doubled down, naming a cabinet and assuming duties at the helm of a disputed government even as his rivals frustrate his attempt to govern.

A majority of legislators asked the Court of Appeal last week to intervene, saying Rajapakse should not have remained in office after parliament passed motions against him.

Their position “was that Rajapakse had no legitimacy after losing two no-confidence motions,” lawyer and legislator M A Sumanthiran told reporters after the decision.

The court gave Rajapakse until December 12 to prove to its judges his legitimacy to lead and the authority of his cabinet.

Until then, it agreed that “irreparable or irremediable damage” could be done to Sri Lanka if Rajapakse was allowed to remain as head of government, said court chairman Padman Surasena.
Wickremesinghe - who was unceremoniously dumped by his former ally Sirisena in a late-night power swap - says his sacking was illegal, and parliament supports his stake to lead the country.

The ousted prime minister last week gained the backing of a powerful group of Tamil lawmakers who hold the balance of power - cementing his parliament majority.

The two rivals had been neck and neck trying to cobble together enough backing, negotiating with key legislators and trying to lure across defectors.

The contest spilled over into outright brawling on the floor of parliament last month when Rajapakse loyalists broke furniture and attacked rivals with chilli powder.

Rajapakse loyalists have since boycotted the legislature, accusing the speaker of bias.

After Rajapakse lost his first no-trust vote on November 14, the speaker declared that the country was left without a government. Wickremesinghe’s party described Rajapakse as an usurper.

The latest court ruling is yet another setback for Rajapakse, who ruled with an iron fist for a decade before being defeated by none other than Sirisena in a 2015 election.

Parliament last week voted to block Rajapakse’s “rogue government” from spending any money, meaning he cannot finance his administration or present a budget for 2019.

The Supreme Court this week is also expected to rule on whether Sirisena’s decision to dissolve parliament in November was constitutional.

The court intervened and restored parliament in November when Sirisena - seeking to stave off a challenge to his new appointee - suspended the
legislature.

Sri Lanka’s “Chief Servant”- He Has To Go!

By Sharmini Serasinghe –DECEMBER 3, 2018

Sharmini Serasinghe

When Maithripala Sirisena addressed the nation in 2015 after being sworn in as the Executive President of Sri Lanka with 6.25 million of us having voted for the man – a political nonentity – we did so with the sole purpose of getting rid of his megalomaniacal predecessor, Mahinda Rajapaksa and his corrupt-to-the-core regime, he said, “This country needs a Chief Servant (himself) and not a King (his predecessor)”.

Well, look what our “Chief Servant”, Sirisena has done!

He did a volte-face on his fancy utterances, donned the crown, elevated himself to the status of a dictatorial king, forgot all about being our “Chief Servant”, stabbed us all in our backs and continues to call the shots.

What a disastrous “Chief Servant” he has proved to be! The man should be reminded that he is STILL an ’employee/servant’ of ours – the citizens of Sri Lanka – his ’employers’, who pay his salary and foot the bills for all the perks and luxuries he and his family enjoy.

Instead of keeping our ‘house’ in order, he has crapped on it, and on our Constitution and stabbed us in our backs – his employers – who gave him the job by voting for him, by stealthily bringing through the backdoor the enemy, the very lowlifes we wanted to be rid of – the treacherous Rajapaksas and their cohorts – kicked aside the legitimate Prime Minster and government and installed the hijackers of our Parliament as our Prime Minister and Cabinet of Ministers. Who the hell gave him the authority to do that!

How does one respect this traitor and continue to regard him as the President of our country? I definitely do not!

‘Breach of Trust’ is a criminal offence and our self-proclaimed “Chief Servant”, Maithripala Sirisena is guilty of it! It is sine qua non that we be rid of him without further ado, before he causes further irreparable damage. The time has come for us to join hands and request him to quit with dignity or else, we have no option but twist his arm into doing so before he burns our ‘house’ down to cinders. Period!

The cost of damage he has caused by his political drama must eventually be borne by the 21 million of us Sri Lankans and our future generations, not just the 6.25 million who voted him in.

Besides the economic hardships we the citizens of Sri Lanka will eventually be forced to endure, he has also brought shame upon our country which was once regarded as the epitome of a Democratic country – a country which upheld all what Democracy stood for – but not anymore. We have today become the laughing stock of the world, thanks to our “Chief Servants” unforgivable treachery!

Sri Lanka is said to have the highest literacy rate in the South Asian region at 92% and overall, one of the highest in Asia. Literacy is not confined merely to the ability to read and write. Any fool can do that. Literacy also means integrity, courtesy, the ability to use one’s common sense and sound judgement to determine right from wrong, the lack of which has been proven over and over again by the gullible voting masses of this country. Literacy also means not allowing others with personal agendas viz. politicians to brainwash us into believing what they want us to believe for their own selfish ends, the lack of which, once again, has been proven over and over again by the gullible voting masses of this country.

Sri Lanka Court suspends de facto Prime Minister and Cabinet

The petition will be heard before the Court of Appeal on December 12 and 13

Rajapaksa and Cabinet have been notified to appear before the Court

Read Full Text of the Order

( December 3, 2018, Colombo, Sri Lanka Guardian) The Court of Appeal in Sri Lanka issuing a verdict this afternoon has decided to issue an interim injunction on the quo warranto petition filed against the de facto Prime Minister Mahinda Rajapaksa and his cabinet installed by President Maithripala Sirisena in a constitutional coup.

Former President Mahinda Rajapaksa appointed as the de-facto Prime Minister by President Sirisena by sacking Siting Prime Minister Ranil Wickremesinghe on October 26, 2018. Subsequently, the new cabinet of ministers sworn in before the President.

The interim relief was granted after the court had considered submissions presented by both parties in the case. While issuing the verdict, the court had said that irreversible damage could be caused if unentitled individuals occupy the positions of Prime Minister and cabinet ministers.

The interim order would mean that Rajapaksa and his cabinet of ministers will not be entitled to serve in their positions of Prime Minister and cabinet ministers until a final order is issued by the courts.

Accordingly, the petition will be heard before the Court of Appeal on December 12 and 13.

During the hearing today, the President’s counsel’s Kushan D’Alwis & Ali Sabry appearing on behalf of the respondents had continued to raise technical objections regarding the validity of the Hansard.

The petition was filed by United National Party leader Ranil Wickremesinghe including 122 MPs of the UNP, JVP, TNA and SLMC while former President Rajapaksa and 48 others were cited as respondents in the case.

The case is being heard before a two-member trial-at bar comprising Appellate court President Justice Preethi Padman Surasena and Justice Arjuna Obeysekara.

Here is the full text of the order;

Download (PDF, Unknown)

LAWYERS FOR DEMOCRACY RESPONSES TO MAHINDA RAJAPAKSE’S MISLEADING STATEMENT

3RD DECEMBER 2018.

Lawyers for Democracy Response to Mahinda Rajapakse’s Misleading Statement made in the wake of the Supreme Court case.

03/12/2018

Lawyers for Democracy expresses its serious concern on the attempt by Mahinda Rajapakse, MP for Kurunegala District, to mislead the country by issuing an unusual statement on the matter of the dissolution of Parliament, while it is pending before the Supreme Court. While we are confident that the judiciary of this country, whose independence has been strengthened by the Nineteenth Amendment, will not be influenced by misleading statements of politicians, we nevertheless wish to respond to a number of factual inaccuracies in the said statement that may mislead ordinary citizens not well-versed in matters of the Constitution, especially events abroad.

Rajapakse cites the British constitutional authority A.V. Dicey as having said that if the Crown is of the view that the opinion of the public is different to that of the majority in Parliament, the Crown has the discretion to dissolve Parliament and call a general election. Dicey who wrote Law of the Constitution as far back as in 1885, refers to the dissolution of the House of Commons in 1784 and 1834. But unknown to Rajapakse and his advisors, and this is not surprising, the United Kingdom has since seen many changes regarding the Monarch’s power of dissolution. No British Monarch has in modern times dissolved the House of Commons without the advice of the Prime Minister. In 2011, Westminster passed the Fixed-term Parliaments Act, which lays down that an early General Election shall not be called unless the Commons requests a General Election by a two-thirds majority. An early election will also take place when a vote of no-confidence is passed against the Government unless a vote of confidence is passed within 14 days of the vote of no-confidence, that is unless a new Government is formed and is to able prove its majority in the Commons within 14 days. But unlike the United Kingdom where there is no written constitution, Sri Lanka has a written constitution which has clear provisions relating o dissolution.

Rajapakse also states that in 1975, the Governor General of Australia sacked Prime Minister Gough Whitlam and called a general election entirely at his own discretion. This is furthest from the truth. Unlike in Sri Lanka, Australia has two Houses of Parliament. Section 57 of the Australian Constitution, if the Senate rejects or fails to pass a Bill that has been passed by the House of Representatives twice the Governor-General may dissolve both House simultaneously. But by convention, he would do so only on the advice of the Prime Minister. In 1975, the Senate had deferred two Appropriation Bills which had already been passed by the Lower House. Prime Minister Whitlam refused to advice a dissolution and the Governor-General dismissed Whitlam and appointed Malcolm Fraser as Prime Minister as caretaker Prime Minister upon the latter undertaking to have the Bills passed in the Senate and that he would advise the Governor-General to dissolve both Houses. Before doing so, the Governor-General consulted the Chief Justice who advised him that the Prime Minister could be replaced in the given circumstances. The Governor-General then dismissed Whitlam, appointed Fraser as Caretaker Prime Minister and dissolved both Houses on the advice of Fraser.

Rajapakse’s says that the Indian President dissolved the Lok Sabha in 1970 and 1979 on his own. This again is utterly misleading. In December 1970 President Giri dissolved the Lok Sabha upon the advice of Prime Minister Indira Gandhi and a request by the Cabinet of Ministers after the Congress Party had broken up. Although it was a minority government, it had not been defeated in Parliament on any question. In 1979, dissolution was on the advice of Prime Minister Charan Singh while the Lok Sabha was in prorogation, again on the advice of the Prime Minister.

What needs to be emphasized is that the constitutional provisions relating to dissolution in Sri Lanka are quite different. Ours is not a Westminster form of government but still a hybrid. The President has no prerogative powers that he may use at will. His powers are limited by express provisions of the Constitution which he has affirmed to uphold.
Lal Wijenayaka
K.S. Ratnavale
Lakshan Dias,
Sudath Neththasinghe
Harishka Naeeshan
Praboda Ratnayaka
On behalf of Lawyers for Democracy

Betrayal of a nation

President Maithripala Sirisena’s repeated acts of serious violations of the provisions of the Constitution and his ridicule for the laws of the land have become not only the talk in Sri Lanka but world over

Tuesday, 4 December 2018

Was there a betrayal? If is the answer is in the affirmative, then who betrayed whom? Who are the victims of the betrayal? Who is the offender? The victims have sought the intervention of Court.

The offender has tried to justify the betrayal. The offender’s reasons are not acceptable due to the series of betrayals and acts of tyranny. Whether he was justified or not is not an issue. The fact is the offender as the Guardian of the Nation betrayed the trust that was thrust by the people to him.

Does the offender have a moral or legal right to request the victims to withdraw their course of action in the fear that the law may pronounce that he has violated the basic norms of the Constitution at the expense of a nation, to the detriment of the economy, in violation of the norms of the Constitution?

Repeated acts of serious violations of the provisions of the Constitution and his ridicule for the laws of the land have become not only the talk in Sri Lanka but world over.

It is trite learning that the devil himself knows not the thought of man.

The ultimate decision to determine the acts of the offender is in the Court. Realising that he has acted illegally, the offender is suspicious that he may face defeat for his deceit.This man obviously has his advisor who doesn’t know the basic norms of the Constitution; perhaps he deliberately ill-advised his Master and is contemplating another crossover.

Sedition

Sedition is overt conduct, such as speech and organisation, that tends toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent towards, or resistance against established authority.

Treason

Treason is the crime of betraying one’s country, especially by attempting to kill or overthrow the sovereign or government.

Never in the history of world politics has any leader behaved so savagely and uttering indecent uncouth words to the very government and political party which elevated his status from an ordinary citizen to that office which he shamelessly clings on. This offender should read on world politics and world history and most of all read the Constitution of his own country.The people have spoken. There is no redemption. So many demonstrations and public speeches have been made.

It’s a curse on Sri Lanka. Who is responsible for the present situation? A handful of unscrupulous persons masked with democracy desecrating and defying the very norms of democracy.

On the Comparison of Sri Lanka’s Present Constitutional Question with the Dismissal of the Whitlam Government in Australia

Editors Note: In a statement made on December 2nd, MP Mahinda Rajapaksa noted the following;

“Most countries with a Parliamentary form of government have ceremonial heads of state. Even in such countries, the head of state can exercise his discretion in dissolving Parliament. The British constitutional authority A.V. Dicey has said that if the Crown is of the view that the opinion of the public is different to that of the majority in Parliament, the Crown has the discretion to dissolve Parliament and summon a general election. In 1975, the Governor General of Australia sacked Prime Minister Gough Whitlam and called a general election entirely at his own discretion.”

In this article, the author – Attorney-at-Law and Emeritus Professor of Law, University of Queensland – points out that citing the 1975 dissolution of the Australian Parliament as a precedent involves serious misunderstandings of the facts and the relevant provisions of the Australian Constitution.

TPROF. SURI RATNAPALA-12/03/2018

There seems to be a serious misunderstanding about Sri Lanka’s Constitution with respect to the President’s power to dissolve the Parliament. It is claimed that under the parliamentary system, the President may dissolve the Parliament at his or her discretion at any time during its term. This is the central question before the Supreme Court in the proceeding challenging the President’s proclamation purporting to dissolve the current Parliament. I have expressed my opinion on this question elsewhere.

The purpose of this note is to clear up another confusion. Hon Mr Mahinda Rajapaksa, among others, have cited as a precedent the dismissal of the Australian Prime Minister Gough Whitlam and the dissolution of both Houses of Parliament by the Governor-General in 1975. This involves serious misunderstandings of the facts concerning the dismissal and the relevant provisions of the Australian Constitution.

The political events surrounding the dismissal of Whitlam were both acrimonious and controversial. They are too complex to document here. The immediate cause of the dismissal and dissolution was the Senate’s denial of supply to the government by deferring decisions on two Appropriation Bills which had already received Lower House approval. The protracted deadlock breaking process set out in s 57 (that can involve a double-dissolution and a General Election) could not be used as supply would have run out by then. G-G John Kerr tried but failed to persuade Mr Whitlam to advise dissolution on the principle that a government that cannot secure supply through Parliament should either resign or advise a new election.

The G-G then sought the following guarantees from the Leader of the Opposition Mr Malcolm Fraser, namely, that if appointed Caretaker PM, he would:

Ensure that the Appropriation Bills will be passed by the Senate to secure supply,
Advise the G-G to dissolve both House and hold a general election, and
Maintain the status quo on policy, appointments etc during the caretaker period.

The G-G, armed with these assurances, dismissed Whitlam, appointed Fraser as Caretaker PM and dissolved both Houses. The two Houses can only be simultaneously dissolved under s 57 to break deadlocks. There were several other bills of the Whitlam government that were deadlocked and served as triggers for a double dissolution.

It is important to note a few salient constitutional rules and principles and points of difference between the Whitlam saga and the present impasse in Sri Lanka.

The claim that in the classic Westminster parliamentary democracy, the monarch has untrammelled power to dissolve the Parliament is fallacious. Since the early 19th Century at least, the monarch was constrained by convention to follow the PM’s advice and the PM was likewise restrained by convention. Whatever discretion the monarch had in the UK was removed by the Fixed-term Parliaments Act 2011 (c. 14). The Act, which fixes the term of the House of Commons as 5 years, allows earlier dissolution only if:

A vote of no confidence in the government is carried in the House of Commons, or
The House of Commons requests a dissolution by a vote of two thirds of the House.

The Nineteenth Amendment incorporated these two conditions in limiting the President’s power to dissolve Parliament.

According to s 64 of the Australian Constitution, the Ministers, including the Prime Minister, serve at the pleasure of the Governor-General. The President of Sri Lanka has no such power. He or she must choose as PM a member likely to command the confidence of the House who can then be dismissed only by Parliament.
Unlike the Whitlam Government, PM Wickremesinghe and the Cabinet have obtained supply and have shown the ability to secure future funding for the government’s recurring expenditure.
Sri Lanka is not a classic parliamentary system in the Westminster model. The President’s has no prerogative powers. His powers are limited by the express words of the Constitution which he has undertaken by affirmation to observe.

Note: Read more content on the coup here.

JVP, TNA, SLMC & ACMC: Tryst With Destiny

By Ameer Ali –DECEMBER 3, 2018

Dr. Ameer Ali

Never before in the history of democracy in Sri Lanka, destiny has placed the common good of the nation on the shoulders of four minor political parties, JVP, TNA, SLMC and ACMC, of which the first is progressive and national in vision and the other three are ethnic in composition and regional or sectarian in outlook. With the two major parties, UNP and SLFP/SLPP that are equally corrupt and opportunistic but locked in a do or die power struggle, while an impulsive President is utterly clueless about conducting his office within the parameters set by the constitution, and while the judiciary is yet to pass its verdict on charges and counter charges filed by the two main contenders, the country’s economy is tottering to remain steady and facing a dangerous precipice. The ultimate victims of this power struggle are the people left in a quandary as to who is governing over them and whom to approach for assistance for their economic ills. The fact that they have not come to the streets like in France is a testimony for their forbearance.

Whether there is going to be a general election sooner or later or whether the President is arbitrarily going to nominate an interim government until the time is legally right for dissolution of parliament, the issue facing the nation is the future of democracy under the current Republican Constitution. The minority communities and their leaders should realise that an alliance between an ethno-nationalistic majoritarian government and a president elected with the same mindset will be detrimental for the good of their communities, and in the long run, the nation. Therefore their choice is not between UNP and SLFP/SLPP, both of which speak with forked tongue and pass different messages to different constituencies, but between these two and a third but one that is progressive with a solid base in the majority community. It is only such an alternative that will have the guts to carry the same message through every part of the country.

The common good of the nation lies in the rule of a grand coalition between the majority and minority communities cemented by an agenda that treats every citizen a Sri Lankan irrespective of that citizen’s religious and ethnic belonging. That coalition needs to re-write the JR constitution or seriously amend it to prevent the recurrence of more Sirisenas in future hijacking it and paving the way for a dictatorship. So far JVP has shown its readiness for such an alliance with the minorities and willingness to do away with the executive presidency. With moneyed interests in the country backing one or the other of the two major parties, this coalition may not win a majority of seats to form a government on its own. However, it will have sufficient number of seats to influence the policies and direction of whichever party that wants to form a government.

It was disappointing to note that TNA, in its last meeting with President Sirisena, engaging in a cheap bargain for not supporting a possible impeachment motion against him in return for the quick release of Tamil prisoners and lands held by the army. Without denying the legitimacy of the prisoner and land issues however, it should be stressed that those issues will find easy solution under a progressive coalition with a common agenda for the common good of the nation and not for a particular community.

There is no hiding the fact that SLMC and ACMC are parties driven not by any grand principles or policies but by personal and regional differences and aspirations. Given the current turmoil in the country this is a luxury that they can ill afford. Gone are the days when Muslim leaders could engage in opportunistic politics to win favours from ruling parties. It is time these parties join hands with progressive forces within the majority community and work for the common good.

‘Majority in House should be respected’

RAJA WAIDASEKERA Tissamahrama Special Corr.-Monday, December 3, 2018

JVP leader Anura Kumara Dissanyake speaking at a meeting in Tangalle said that the Tri-Forces should come forward because the Constitution is not upheld. The Tri-Forces must support the parties that protect the Constitution and not the parties that cause its desecration.

At the moment, there exists in the country a pseudo prime minister and a pseudo cabinet. The ministers of this pseudo cabinet do not attend Parliamentary sessions. As such, rules and regulations cannot be passed. The present pseudo regime has not been recognised by international leaders around the globe, the JVP leader said.

If any party shows a majority of 113, that majority has been obtained by offering bribes. The JVP will put an end to the present conspiracy and urge for dissolution of the present regime and holding of a general election to obtain the people’s mandate, he said.

Dissanayake said there is no necessity for the JVP to make either Ranil Wickremesinghe or Mahinda Rajapaksa the prime minister of the country. He said that if they allow President Maithripala Sirisena to destroy or curtail the provisions of the Constitution, future presidents will also do the same thing.

The JVP leader said the sole aim of Mahinda Rajapaksa was to crown Namal Rajapaksa and make him ether the prime minister or president of the country when the time is ripe. He said Mahinda Rajapaks’s wife also dreams of such an eventuality.

If leaders genuinely care for the nation

Who can legally accept the Speaker’s ruling? (Photo AFP)

The Chief Justice reached this place of eminence with his judicial experience in the minor judiciary-is an ornament for career judges who-take to long to reach high office

See. ...see..do you see.. a glint of light with a silver lining amidst the dark clouds that overhang the public domain ? I do. Peer degrees penetratively to see the glimmer of hope during these hopeless days; when ‘hope’ itself has flown away.

2018-12-04

While those wretched parliamentarians talk of sovereignty, picked in the chambers of ‘dodgy lawyers’ they consulted to find a comfort zone to laze in the sun for just a few more days, ( legal giants of the past- H.L de Silva, E.D Wickremanayake S.L.Gunasekera would think of the black-coated minions of today?) Fortunately the President’s orders were struck down by an interim judicial pronouncement that made judges heroes of the last resort (possessing a judicial outfit that we can be proud of after carrying whims of the executive for too long) restored a semblance of confidence. Knowing those worthy robed judges from a distance, the final order, maybe with an enlarged bench - will first extend the stay order until the court gives its final order. Sure will bring sunshine, in these days of gloom and doom, overcoming the present impasse. Is the judiciary the last saviors to guide us on to a proper path?

Look to the judiciary with Colombo’s legal fraternity sadly being mere nodding dodos- not advisors - but listeners/followers of their political masters. Chief Justice being newly appointed makes his task more onerous, alongside Priyantha and Prassana Jayewardane restored a fighting spirit that spilled over limits of tolerance in the near past made the three member judicial team rooted firmly in my book of heroes. The Chief Justice reached this place of eminence with his judicial experience in the minor judiciary-is an ornament for career judges who-take to long to reach high office while the former’s CJs husband avoided incarceration by a whisker.
Rather doubt if she was sitting as the prime judge in court. Any such reduced punishment for the heinous wrongdoing while where do you hear of those great men of the Bar Association who danced a jig and dropped her like a hot potato when she returned home.She got too big for her boots-now deservingly a forgotten character.
Searching for a light at the end of a long tunnel that appears to be never ending. Justice should not be rushed nor hurried instead be parried to its rightful place. Let me take you to that light we yearn which is within seeing distance.

Parliamentarians showed their true self at a session where Speaker lost his bearings.

His credibility, being deemed partisan. Crazy to state, when an ominous decision is awaited, amidst the pandemonium, that he relies on the sound effects rather than on a count made electronically or physically.Who can legally accept the Speakers ruling? Recount is called for, if so. Why does a honest man make such a diabolical ruling in favour of the party that elected him? He is partisan, full stop. A night of many mistakes in surroundings where no heroes emerged where most were dubbed as pulp.

Genuine parliamentary way of life

If you truly believe in a genuine parliamentary way of life, rise up and be a man, and vote wisely which is the prime function, to cleanse out the existing crap of parliamentarians-that dance to any tune that suits them at our expense. Who is Wasantha Senanayake hop step and jump specialist-a disgrace to the Senanayake clan - such are the lads today.

Parliamentary democracy, sick with the sad performance of the men in parliament, it is time to usher a new set of parliamentarians for the better or for worse ridding off the unruly present mob. The assignment is in your hands alone. Would you do it in 2020 or rather live with the motley crowd as at present to represent you? If we look at the past, Sri Lankan voters are often taken for a ride with many promises that materialize little as we have short memories of the past. Most UNP/SLFP supporters vote for the official party nominee and cry what can we do, as we are committed to the party of out forefathers. Suffer in silence if you are stupid for another 5 years from 2020 by failing to cast your vote sensibly

Now is the time to oust both MR and RW because those two champions watched the carnage in parliament without ordering their disorderly members to behave with decorum.Why don’t you vote to usher in a newer set of parliamentarians of any party of your choice with fresh thinking ? Have you the guts to mark the ballot paper or will you forget the events of last week in parliament when you can vote in 2020 to rid of the rubbish that you have continuously been voted for by you-elected and derided most vocally thereon? The ball is in the court of the voter. Legitimately, unless; parliamentarians give a 2/3 majority - voting sensibly is the need awaiting till 2020 belatedly when the people exercise their right to vote. Please do not be too harsh on Jayampathy as he did as well as he could with his mint size brain; what H.W Jayawardane and Mark Fernando did with ability and ease. What more can you expect from the likes of Jayampathy, a protege of Sarah Siva. Naturally confusion is round the corner. Let me labour no more on a worthless issue.

Parliamentary democracy, sick with the sad performance of the men in parliament, it is time to usher a new set of parliamentarians for the better or for worse ridding off the unruly present mob

Need to ask MR just a single question, and await an answer. “Why did you scuttle the aspirations of the people by not voting against the 19th and talk big now against the 19th Amendment or tell your blind and sick-minions to vote in haste in favour of such legislation after you knew CJ Siravan failed to provide an answer to counsel Gomin Dayasri and to the issues raised by him in the case of Gomin Dayasri vs Attorney General - the consolidated case on the19th amendment.

Did you in the opposition seek legal advise before you voted on 19A or can you please tell the public at least what your legal pundits suggested you to do ?

A counter to MR

Appearing for myself - Here are the synopsis of the written submissions I propose to make orally if required offer any elucidation. I shall express my opinion as a legal watchdog on the constitution and find a practical solution to end the current crisis tell which I shall place before you before court.

As a counter to MR holding elections at the most favourable time for himself; the good governance kids made it impossible to hold elections at any time; but only after 4 1/2 years time unless 2/3 of the members voted in favour of a resolution to hold elections earlier. Would these worldly parliamentarians that behaved to discredit themselves give away their privileges which are beyond the means of the ordinary people?

(B ) President Sirisena, a resident from Pollonnaruwa, did well to beat Rajapaksa the resident from Hambantota, but that is history. Things have changed incredibly fast, whereas Sirisena acts according to his fancy in nominating PMs contrary to the Constitution. In most democratic societies impeachment against a President would have been under way for flagrant violation of the constitution, but here he continues to indulge in more mischief making swinging between the UNP and its rivals for his benefit. Both are men with not high as learned and with no inclination to read and learn. Both men react instinctively without any respect for the prime law set out in the constitution. Are we also a nation with a short memory?

In this sad episode who behaved worst?That is easy! Its Sirisena acting without any respect for the constitution; he did it in his own stupid way to cross bridges for his political wellbeing. Each day he does a thing that attracts material for his impeachment.Yet, the biggest loser is Mahinda as he was the comfortable winner on a popular vote from the electorates. Why did he not bide time and await a comfortable win on a popular vote from any combine of parties? Did Sirisena fix him for all times....No his trusted legal advisor should be pasted,

People are fed up as they need the economy improved and they well realise that the persons that suffocate Parliament are the losers. Don’t ever be too harsh on a man who wiped out terrorism, but take to the cleaners his advisors and lawyers who make a fool of him, by allowing him to do what he is presently doing!

Ranil is so unpopular he cannot expect to return as PM and Sirisena realises this fact and takes advantage of it. If Ranil resigns UNP can be revitalized and give a lead to an SLFP and its companion parties to reject Mahinda. That will open the field to a new leader.

It is in the the interest of Ranil and Mahinda to retire gracefully and become senior statesmen so as to come out and guide the nation from their armchairs. They can give their valued opinions without any political coloration.We still need both in different offices for their experiences in security concerns and handling foreigners reinvestments. Let it be the President or Prime Minister or Chief Justice they are all beneath the law including the Constitution. Once the Constitution is deemed passed by the parliament it becomes the supreme law of the land. None in the opposition voted against it.

THE REMOVAL OF THE PRIME MINISTER AND THE DISSOLUTION OF PARLIAMENT: A LEGAL OPINION

mage: From Vikalpa.

This legal opinion was prepared by Gehan Gunatilleke, Dinesha Samararatne, Kalana Senaratne and Asanga Welikala in response to a request made by Dr Jayampathy Wickramaratne, P.C, Member of Parliament.

03/12/2018

Since 26th October 2018, Sri Lanka has been in an unprecedented political, economic, and constitutional crisis. The crisis was triggered by a series of decisions taken by President Maithripala Sirisena, each of which, in our view, is in violation of the Sri Lankan Constitution. This opinion aims to offer responses to several constitutional questions that have arisen with regard to the developments since 26th October. These questions relate to the consequences of a party withdrawing from a National Government, the appointment and removal of a Prime Minister, discrepancies between the Sinhala and English versions of the Constitution, and the dissolution of Parliament.

1. Did the withdrawal of the United People’s Freedom Alliance (UPFA) from the National Government result in the vacation of the post of Prime Minister?

There is no constitutional provision that stipulates that the withdrawal of one party in a coalition forming a National Government has the effect of dissolving the Government or the Cabinet of Ministers, or the office of Prime Minister becoming vacant. Article 46 (4) and (5) of the Constitution, which deals with a National Government, makes no reference whatsoever to such consequences.

The only legal consequence of the formation of a National Government is that the ordinary cap on the number of Cabinet Ministers at 30 and non-Cabinet Ministers at 40 is suspended, with Parliament determining the number of Ministers, which may be higher than the ordinary limit. Conversely, if a National Government ceases to exist, then the only legal consequence is that the number of Cabinet Ministers must be reduced to 30 and the number of non-Cabinet Ministers to 40. The President can do this only on the advice of the Prime Minister, as all ministerial appointments and dismissals legally require the President to act on the advice of the Prime Minister (see articles 45(1) and 46 (3)).

2. Is the President empowered by the Constitution to appoint any Member of Parliament as Prime Minister, who, in his opinion, is most likely to command the confidence of Parliament?

The Constitution does not authorise the President to unilaterally dismiss the Prime Minister, based on a subjective opinion of the President, as to which Member of Parliament commands the confidence of Parliament. Other than for death, resignation, or on ceasing to be a Member of Parliament, the Prime Minister vacates office only when Parliament has signified its loss of confidence in the Government as a whole, according to the circumstances and procedures specifically established by the Constitution.

Article 42(4) provides that the President shall appoint the person ‘who, in the President’s opinion, is most likely to command the confidence of Parliament’. The literal meaning of this text has to be given meaning in light of the purpose for which this power has been vested in the President. The power of the President of the Republic is a constitutional power to be exercised in the public interest and in light of relevant facts. It is not something that is personal to him that can be used in any way that he pleases.

The first task of interpreting a democratic constitution is to promote the values of democracy, constitutionalism, good governance, and the public interest. It is not to facilitate executive convenience and unilateralism, or to enable secret plots to subvert the Constitution and change governments precipitately to serve partisan political interests. Consequently, the reference in article 42(4) to the opinion of the President is not a reference to a private and subjective opinion, but an opinion that can be formed only by reference to the will of Parliament.

Moreover, article 42(4) deals with the appointment of a Prime Minister only where the office of Prime Minister is vacant. But the situation that arose on 26th October 2018 was totally different, as there was a Prime Minister in office enjoying the confidence of Parliament. The Constitution does not contain any explicit provisions that empower the President to dismiss the Prime Minister.

After the Nineteenth Amendment was enacted in 2015, the Prime Minister can only cease to hold office by death, resignation, by ceasing to be a Member of Parliament, or if the Government as a whole has lost the confidence of Parliament by a defeat on the Statement of Government Policy, the Appropriations Bill, or a vote of no-confidence (see articles 46(2) and 48). Since the Constitution specifies these ways in which the Prime Minister ceases to hold office, and has removed the previous power of the President to remove the Prime Minister at will, it follows that there are no other ways through which the office of Prime Minister can become vacant. In particular, the President can only appoint another Prime Minister where the serving Prime Minister has lost office in any one of these ways.

It should be added that as a consequence of the presidential two-term limit being reintroduced by the Nineteenth Amendment, the President should not appoint a Member of Parliament to the post of Prime Minister who is constitutionally disqualified from assuming the presidency in a situation where that office becomes vacant before the expiry of the incumbent’s term of office.

One of the critical – but much ignored – aspects of the purported appointment of Mahinda Rajapaksa MP as the Prime Minister is the fact that he is disqualified from holding the office of President, since no person who has been elected twice to the office of President is qualified to be elected to such office (see article 31(2) and article 92(c)). Where the office of President becomes vacant, Parliament elects as President one of its Members who is qualified to be elected to the office of President for the unexpired period of the term (article 40(1)(a)). This clearly disqualifies any person who has been twice elected from assuming the office of President in this particular situation.

We highlight this issue, simply to make it clear that the decision to appoint a new Prime Minister on the 26th of October failed to consider the broader legal and political factors that deserved the serious attention of the President.

3. Does the discrepancy between the English and Sinhala text of the Constitution, mean that the Sinhala version grants the President the power to remove a sitting Prime Minister and reappoint another unilaterally?

It is true that there is a discrepancy between the Sinhala and English versions of article 48(1). The relevant portions of article 48(1) in English states: ‘On the Prime Minister ceasing to hold office by death, resignation or otherwise…the Cabinet of Ministers shall…stand dissolved and the President shall appoint a Prime Minister…’ (italics added). The ‘or otherwise’ here is a clear reference to what follows in article 48(2), which sets out the ways in which the Cabinet stands dissolved – and the Prime Minister ceases to function in office – by the loss of confidence of Parliament.

The import of the Sinhala version is the same, except that instead of saying ‘by death, resignation or otherwise’ it states ‘by the removal from office or resignation or otherwise’ (dhoorayen ivath karanu labeemen ho illaa as veemen ho anyaakaarayakin). But the defenders of President Sirisena’s actions claim that the words ‘by the removal from office’ in the Sinhala text conclusively prove that the President continues to hold the power to dismiss the Prime Minister even after the Nineteenth Amendment.

This discrepancy is regrettable, and is evidently the result of an oversight during the legislative process by which the Nineteenth Amendment was enacted in April 2015. However, this discrepancy makes no material difference to the process through which a Prime Minister may be removed from office. Neither the Sinhala nor English versions of article 48(1) refer to the President’s power to remove a Prime Minister. Thus, treating this apparent discrepancy as a reference to such a power of removal is incongruent in terms of the Constitution read as a whole.

Nowhere else in the Sinhala text is it contemplated that a presidential power of dismissal has been retained in the Constitution after the Nineteenth Amendment; everywhere else, and especially in article 46, which is the most relevant provision to this question, the text in both Sinhala and English is entirely consistent to the effect that this power has been removed from the President and conferred solely on Parliament. In any case, it is not only possible but also the more reasonable, logical, and harmonious approach to interpret ‘removal from office’ in the Sinhala text as referring to removal from office as set down in article 48(2), rather than the incongruous and implausible argument that its effect is to retain a presidential power that Parliament clearly intended to abolish when it enacted the Nineteenth Amendment.

Any fair-minded and informed observer would more readily accept the explanation that the discrepancy was the result of an oversight, which, while regrettable, is not fatal to the integrity of the Nineteenth Amendment framework.

4. Did the President have the power to dissolve Parliament?

The President has no power to dissolve Parliament in the first four and a half years of its five-year term. Article 70(1) clearly provides that the President’s power to dissolve Parliament does not come alive ‘until the expiration of a period of not less than four years and six months from the date appointed for its first meeting’, except if Parliament requests the President to dissolve Parliament by a resolution passed by a two-thirds majority of its Members, including those not present. It has been argued that article 70(1) has to be read subject to the general and empowering clause found in article 33(2)(c). Article 33 describes several powers that are vested with the President including the power to ‘summon, prorogue and dissolve Parliament.’ However, this general power has to be reconciled with article 70(1), which restricts the power of the President to dissolve Parliament. Any other interpretation would subvert the meaning and purpose of article 70(1), which is clear.

The Parliament that was elected in August 2015 had its first sitting on the 1st of September 2015. Accordingly, the President’s power to dissolve Parliament will come alive only in March 2020.
5. Did the Supreme Court have the authority to stay the operation of the Gazette Extraordinary (No 2096/70) of 9th November 2018 that purported to dissolve Parliament?

The Supreme Court has the jurisdiction to determine the legality and the procedural propriety of the exercise of the President’s power to dissolve Parliament according to the Constitution. Prior to the enactment of the Nineteenth Amendment, the President enjoyed immunity from any kind of legal proceedings before a Court of Law. Article 35(1) of the Constitution, as amended by the Nineteenth Amendment, permits ‘any person’ to file a petition under article 126 against the Attorney-General ‘in respect of anything done or omitted to be done by the President, in his official capacity.’ Article 126 provides that a petition alleging the violation or imminent violation of a fundamental right can be filed before the Supreme Court within one month. If the Court grants leave to proceed, it will make a determination on the petition. In doing so the Court has the power to grant ‘relief’ or ‘make such directions’ that it would consider to be ‘just and equitable’.

In current proceedings, several petitioners have alleged that their right to equality, recognised by article 12(1), was violated by the President when he issued a Gazette notification purporting to dissolve Parliament. The Supreme Court has consistently interpreted the right to equality to include the right to be free from the arbitrary use of executive or administrative power. The petitioners requested the Court to grant interim relief in the form of suspending the Gazette notification until the conclusion of the case. Having heard all parties, the Court decided on the 13th of November to grant interim relief, and suspended the operation of the Gazette purporting to dissolve Parliament.
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