Constitution not clay in hands of contesting parties: Counsel

2018-12-05

President’s Counsel K. Kanag Iswaran said yesterday the Constitution was not clay in the hands of contesting parties to be moulded as he or she sees fit while the constitutional language sets the limits of interpretation which aspires to give constitutional unity and harmony.

Appearing for MP R.Sampanthan, he made this submission to the 7-judge bench of the Supreme Court at the hearing of the fundamental rights petition against the dissolution of parliament by the President.

Ten FR petitions had been filed against the dissolution of parliament. The SC bench comprised Chief Justice Nalin Perera, Justices Buwaneka Aluwihare, Sisira J de Abrew, Priyantha Jayawardena, Prasanna S. Jayawardena, Vijith K. Malalgoda and Murdu Fernando.

Kanag Iswaran PC said the President may by proclamation, summon, prorogue and dissolve parliament provided the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date of its first meeting unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of members (including those not present) voting in favour together with the other consequential provisions.

He said this argument was in no manner or form supportive of any contention seeking to give the purported proclamation of dissolution of Parliament constitutional or legal efficacy or validity.
Counsel said Article 70 and the Act of 1981, whether taken individually, collectively or in any other manner whatsoever, did not confer any right, authority or power upon the President to dissolve parliament by proclamation and therefore was a nullity.

He said the parliament consisting of 225 members once elected shall continue for five years from the date of its first meeting and no longer and at the end of the fixed term of five years, parliament stands dissolved automatically without any proclamation being made.

The Counsel said parliament can be dissolved before the expiry of the fixed period of five years as mandated in Article 62(1) by the President by way of a proclamation that too only after the expiration of a period of not less than four years and six months from the date of its first meeting.

He said the Constitution does not permit or countenance any other way in which parliament may be dissolved by the President and as such the purported proclamation of dissolution of Parliament by the President is unconstitutional and is null and void and of no force or effect in law. The petitioners ask Court for a declaration that the decisions and directions in the proclamation is null and void and of no force or effect in law.

The petitions were filed by Kabir Hashim and Akila Viraj Kariyawasam of UNP, Lal Wijenayeke of United Left Front, CPA, Member of the Election Commission Prof. Ratnajeevan. H. Hoole, Attorney-at-Law G.C.T. Perera, Sri Lanka Muslim Congress, All Ceylon Makkal Congress, Mano Ganesan MP.

K.Kanag Iswaran PC, Thilak Marapana PC, Dr Jayampathi Wickremaratne PC, M.A. Sumanthiran PC. Viran Corea, Ikram Mohamed PC, J.C.Weliamuna PC, Ronald Perera PC, Hisbullah Hijaz and Suren Fernando appeared for the petitioners while Gamini Marapane PC with Nalin Marapane, Sanjeeva Jayawardane PC and Ali Sabry PC appeared for the intervenient petitioners opposing the main petitions. (S.S.Selvanayagam)

SRI LANKA’S COUP WITHOUT THE GUNS AND THE IMPLICATIONS ON RULE OF LAW, DEMOCRACY AND RECONCILIATION.- SUNANDA DESHAPRIYA

Image: A civil society initiative, Rise Up has mobilized citizens against the #CoupLK.

04/12/2018

Sri Lanka’s President Maithripala Sirisena was hailed as Sri Lanka’s Mandela by his supporters in January 2015. He is now being called Sri Lanka’s Mugabe after his recent actions plunged the country into a chaotic constitutional crisis of unprecedented gravity.

On Friday the 26^th October, President Sirisena appointed as Prime Minister, the former President Rajapaksa whose authoritarian rule was ended by the people at 2015 elections. Soon afterwards President Sirisena removed from office Prime Minister Wickremesinghe, who continues to enjoy the support of the majority of the Parliament, in violation of the Constitution.

On 27^th October, the President prorogued the Parliament for three weeks. In the days that followed several MPs crossed over to the ‘new governing coalition’ led by Rajapaksa while reports that this coalition is attempting to bribe MPs with hundreds of millions of rupees to crossover surfaced¹. Hundred and sixteen MPs of the Parliament wrote to the Speaker urging him to convene the Parliament² and amid the growing pressure, on 04^th November President Sirisena issued a Gazette notification convening the Parliament on 14^th November. On the same day, 4 new appointments were made to the Cabinet³.

On 5^th November- Speaker of the Parliament Karu jayasuriya issued a statement noting that the majority of the Parliament is of the opinion that all changes made in the Parliament are undemocratic and inconsistent with traditions of Parliament. ‘I am compelled to accept the status that existed previously until such time that they and the new political alliance prove their majority in Parliament’, he stated. Following this, one of the MPs who had defected to the ‘new ruling party’ did a backflip claiming that he accepted the Speaker’s position⁴.

The Rajapaksa supporters contended that the new PM will show support of the majority in the Parliament once convened. However, when it became clear to President Sirisena that Rajapaksa cannot show favour of majority as he had failed to change the balance of forces in the Parliament as intended, in another act that violated the Constitution, the President dissolved the Parliament on 9^th November, but not before appointing another two new Cabinet Ministers and five State Ministers⁵.

When the President dissolved the Parliament calling for a General Election, 13 parties filed petitions in the Supreme Court against this move. Upon the initial hearing of these cases on 13^th November, the Supreme Court issued an interim order staying the proclamation issued by President Sirisena to dissolve the Parliament till 7^th December and granted leave to proceed for the petitions.

The Parliament was convened on 14^th November and since then the majority of the 225 member Parliament have voted against Rajapaksa in 4 occasions. Two no-confidence motions have been passed with 122 votes. On 23^rd November, the 122 MPs who supported the no-confidence motions filed a Writ Quo Warranto in the Court of Appeal challenging the new government’s continuation in office. According to Article 48 (2) of the Constitution, with the passage of a no-confidence motion the Government stands dissolved. A motion to curtail expenditure of the Office of the Prime Minister was passed by the majority of the Parliament with123 votes on 29^th November.

The Speaker of the Parliament called these events ‘a coup without guns’ against the lawful government. Under the patronage of President Sirisena, Rajapaksa and his Cabinet continue their official functions under the guise of lawfulness. The Military and the Police have so far refrained from intervening in the political turmoil. However, being the commander of the armed forces, the President enjoys control over the Police and the armed forces. In this political chaos, institutional changes that would have resulted in continued impunity, could have gone unnoticed if not for timely interventions. On 18^th November IP Nishantha Silva who is in-charge of the CID’s Organised Crime Investigation Unit was served notice of transfer. Silva and his team are currently investigating several cases involving attacks against journalists perpetrated during the Rajapaksa regime including the murder of Lasantha Wickremetunga and the assault on Keith Noyahr and Upali Tennakoon. The transfer was cancelled on 20^th November⁶.

Within a month following these unacceptable events, Sri Lankan Rupee depreciated severely and the tourist industry, one of the major foreign exchange earner of the country, took a downhill turn. The entire country came to a standstill.

Sirisena would have assumed that removing the sitting PM and appointing another would be a political cake walk. But unprecedented levels of resistance to this constitutional violation drew from all quarters of the society in the days that followed. Three countries including China congratulated Rajapaksa on his ‘appointment’ while Western democracies including Japan, Canada, and USA repeatedly called for a legitimate parliamentary process to solve the crisis.

First push for the resistance came from the legally elected PM Wickremasinghe himself when he refused to leave his official residence- Temple Trees, and barricaded himself in. His supporters spurred to action and the attempts and threats to dislodge the PM failed.

Tamil National Alliance- with 14 MPs, and two Muslim parties- with 12 members, have stood by the lawful PM Wickremasinghe throughout the crisis. The leftist JVP with their 6 MPs has opposed Sirisena’s unconstitutional move, despite having distanced themselves from the UNP. UNP and JVP have both mobilised large crowds to protest against Sirisena’s action, with the UNP surpassing the efforts of JVP in terms of numbersand continuity.

The central political factor that has influenced the current situation is that PM Wickremesinghe clearly enjoys the support of the majority in the Parliament. Other factors that can affect the situation include the independence of judiciary, the strength of civil society, and the response of the international community.

Since 2015 Sri Lankan judiciary has shown remarkable independence. In January 2018 Supreme Court shattered President Sirisena’s hope of staying six years in presidency. Though the Attorney General argued on behalf of the President that his team extends to six years, the five judge bench of the Supreme Court unanimously rejected this plea⁷.

Colombo based diplomatic community made it clear to the Government that due process needs to be adheredto in appointing the Prime Minister and that the Parliament should be allowed to function without any hindrance. Because of the current political uncertainty, IMF, US Millennium Development Fund, and Japan have put on hold their assistance to Sri Lanka. A number of Western diplomats have openly expressed their concerns over Sri Lanka’s constitutional crisis on Twitter.

The most heartening factor in this turbulent time is the revival of independent civil society activism. Civil society groups that played a leading role during the 2015 election campaigns were not able to mobilise people independently as their reputation had come to be tarnished due to the association with Wickremasinghe led government. However, numerous independent civil society groups came in to fill this vacuum. These groups organised daily protests in the Capital and engaged the participants. Participants drew their own placards. Young middle-classed men and women rejected affiliations to political parties at these protests and stressed that they have taken to the street not to protect the privileges of the political class, but the democratic rights of the people.

Independent civil society activism was also visible on social media, especially on Facebook and Twitter . A number of new Sinhala language website emerged to complement existing web media. Twitter has become a real time news source on the crisis. The discourse on Twitter remains predominantly in English white Facebook has become the space for Sinahla language news and views as well as fake news and hate. This points to a clear class difference between the users of the two social media platforms in Sri Lanka. Twitter has become the platform for elite discourse, cross-cutting gender and ethnicity. But the discussions in local languages take place on Facebook.

The struggle for re-establishing rule of law in the country has pointed to some serious discrepancies of the democratic movement in Sri Lanka. Although women activists have been at the forefront of public campaigns, almost all political stages are being filled only by men. Even a seminar by Left Centre had only male speakers. The need to ensure gender equality at all levels is completely forgotten in this struggle. It appears that in Sri Lanka, democracy is by men-for men.

Ethnic dimensions cannot be ignored. A closer look at the struggle shows that democracy in Sri Lanka is in fact by Sinhalese men-for Sinhalese men. Muslim and Tamil communities have not been mobilised to protest against the constitutional crisis. Tamil people in the country still struggle to regain their land, get justice for the disappeared, and achieve political autonomy. However, the principles of human rights, justice, and accountability too appear to be absent in the current discourse.

Sooner or later, this crisis will come to an end. Most probably, Rajapaksa will voluntarily or involuntarily, give up his claim to the premiership. The worst case scenario will be the Supreme Court justifying the unconstitutional dissolution of the Parliament by President Sirisena. In any event, this crisis cannot go on any longer. Its life is coming to an end.

On 3^rd December, considering the writ Quo Warranto filed by 122 MPs challenging the authority of Mahinda Rajapaksa to hold office as Prime Minister, the Court of Appeal issued an interim order prohibiting the disputed ‘PM’ and his ‘Ministers’ from carrying out government duties until the case is taken up again⁸. Despite this development, at this point in time, it is difficult to predict the turn these events will take. While it can be seen that the Supreme Court’s decision will determine the direction of developments, it is possible that Sirisena will simply make a turn-around. Whichever happens the struggle for democracy and justice will remain. The independent civil society groups that came forward to protect the Constitution and democracy will have to charter new paths of advocacy and keep a close watch on the Government.

Sri Lanka now enters a very volatile period politically as well as socially. Provincial Council elections are overdue and a general election may be fast approaching. Parties and Candidates will fight bitterly at the elections. Under these conditions it is difficult to foresee the transitional justice agenda and the constitutional reform agenda moving forward. On both sides of the divide, nationalism is on the rise. Whether the ‘democratic spring’ we are experiencing at the moment can maintain its momentum and resist the growing pressure is yet to be found out.

1 http://www.ft.lk/news/CIABOC-starts-investigation-into-attempted-bribery-of-MPs/56-667826https://www.newsfirst.lk/2018/11/29/tisl-provides-a-statement-on-mp-bribery/

2 https://www.colombotelegraph.com/index.php/speaker-recognises-ranil-wickremesinghe-as-pm-full-text-of-karu-jayasuriyas-statement/

3 https://www.newsfirst.lk/2018/11/04/new-ministers-sworn-in-2/

4 https://economynext.com/Sri_Lanka_president_suffers_first_major_setback_in_‘coup’-3-12493-10.html

5 http://www.president.gov.lk/two-cabinet-ministers-and-five-state-ministers-take-oaths-before-president/

6 http://www.dailymirror.lk/article/Transfer-of-CID-s-IP-Nishantha-Silva-cancelled-158630.html

7 http://www.asianmirror.lk/news/item/26671-supreme-court-shatters-six-year-presidential-term-dream-says-president-sirisena-s-term-ends-in-2020

8 https://www.nytimes.com/2018/12/03/world/asia/sri-lanka-mahinda-rajapaksa.html

President’s Office directed to disclose ousted PM’s assets and liabilities

Asoka Obeysekere addressing the media. Sankhitha Gunaratne, RTI Manager, TISL (left) and Priyadarshini Paulraj, RTI Project Officer, TISL (right) pic by Kamal Bogoda

By Shamindra Ferdinando-December 6, 2018, 12:00 pm 

The Right to Information Commission has directed Presidential Secretariat to disclose assets and liabilities of ousted Prime Minister Ranil Wickremesinghe in 2015 and 2016.

 Asoka Obeyesekere, Executive Director, Transparency International Sri Lanka, yesterday, revealed the circumstances under which his organization had received a favourable ruling from the RTI Commission.

 Addressing the media at the Hotel Nippon, Obeyesekere said that the TISL had sought the intervention of the RTI Commission on Feb 3, 2017 as both the Presidential Secretariat and the PM’s Office had turned down TISL requests.

 Sankhitha Gunaratne, RTI Manager, TISL and Priyadarshini Paulraj, RTI Project Officer, TISL explained the pivotal importance of making people’s representatives disclose their assets. TISL spokespersons said that the Presidential Secretariat and the PM’s Office had rejected their requests twice.

The TISL emphasized that the RTI Commission had ruled that the person holding the Office of the President couldn’t be asked to disclose his or her assets. TISL spokespersons said so when The Island asked why Wickremesinghe was singled out. The Island sought an explanation as to why TISL failed to seek disclosure of President Sirisena’s assets.

 Obeyesekere said that the TISL requested for President’s Sirisena’s asset declaration. At the onset of the briefing, the TISL said that assets and liabilities declaration of the Prime Minister was kept with the Presidential Secretariat. 

Asked by The Island whether treasury bond scams involving the Central Bank and the disgraced primary dealer Perpetual Treasuries perpetrated in 2015 and 2015 influenced the TISL to go after the Prime Minister, Gunaratne stressed it was not so. The TISL felt both President and the Prime Minister would positively respond to the TISL request as they threw their weight behind high profile project to enact RTI law.

 The TISL acknowledged that the Presidential Secretariat had the right to appeal against the RTI Commission ruling. Obeyesekere said that such a challenge would certainly undermine President Maithripala Sirisena often repeated commitment to transparency, accountability and the public’s right to access asset declarations.

In responding to another The Island query as regards the failure to secure declaration of assets and liabilities of the President, Obyesekere acknowledged the lacuna in existing law and the need to take remedial measures as recommended by the RTI Commission.

 Obeysekere explained that thanks to the RTI Law, the public could now seek information hitherto deprived to them in terms of 1975 Asset and Liabilities Law amended in 1988.

 The TISL alleged that in spite of publicly supporting much publicized RTI initiative, both President and PM resisted them being scrutinized.

 Pointing out that NGOs received massive funding from overseas sources, including governments, The Island sought an explanation as to how foreign funding made available to political parties and connected elements could be investigated in terms of the RTI Law. The US funding amounting to USD 585 mn for political projects in Nigeria, Myanmar and Sri Lanka in 2014-2015 period was raised with the TISL, one of the local recipients of foreign funds.

 Obeysekere, while reiterating TISL’s commitment to transparency and its periodic disclosure of assets, said that political funding at every level needed to be monitored and examined. He pointed out the need to ensure tracking of support provided by way of television commercials, printing and other related services.

Tourism Industry Leaders Decide To Boycott Tourism Awards Ceremony Tomorrow In Protest Of Sirisena’s Participation As Chief Guest

DECEMBER 5, 2018

Many tourism industry leaders have decided to boycott Sri Lanka Tourism Awards ceremony this year, as President Maithripala Sirisena has been invited as the Chief Guest.

Sirisena

They have expressed disgust at the Sri Lanka Tourism Development Authority (SLTDA) has invited Sirisena, the man who is responsible for ruining the tourism industry this year by engineering a constitutional coup and a political crisis, as the Chief Guest of the event.

Sri Lanka Tourism Awards ceremony is scheduled to take place tomorrow (06) at Shangri-La Hotel, Colombo.

Multiple hotel chains have decided to not stand up if and when their names are announced as award winners in the event Sirisena attends the ceremony as the chief guest.

When the event was first planed in October the SLTDA decided to invite ousted Prime Minister Ranil Wickremesinghe as the Chief Guest. In the aftermath of the constitutional crisis on October 26, the SLTDA changed its decision opted to invite British High Commissioner James Dauris as the Chief Guest of the event. Colombo Telegraph learns that SLTDA Director General Upali Ratnayake has then decided to invite Sirisena, the man who drove the tourism industry to the ground this year by triggering a political turmoil, as the Chief Guest of the event.

As a result of the downfall of the tourism industry last month, over 300,000 jobs have been affected and all tourism related industries have experienced a steep drop in their revenue.

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President should beg pardon from country for political crime he committed

December 3, 2018 by

The President should apologize to the whole Nation for the political crime he committed says the Leader of the JVP Anura Dissanayaka. He said this at a press conference held at the head office of the JVP at Pelawatta to express the view of the JVP regarding the interim injunction order given by the Court of Appeal restraining Prime Minister Mahinda Rajapaksa and his Cabinet from functioning until the hearing is concluded.

Mr Dissanayaka said, “At the very moment the political conspiracy was committed with the mediation of President Maithripala Sirisena, the JVP resolved that the political conspiracy would be defeated and all moves that would be taken to consolidate democracy in the country.

When Parliament met on 14th November the JVP presented a no-confidence motion against the illegal, unconstitutional government that was set up. Rajapaksa faction obstructed debating the NCM. Amidst the obstructions, the NCM was passed. A document with signatures of 122 MPs was handed over to the President. Accordingly, the Speaker announced on the 15th that there was no longer a prime minister or a government. As the President was not prepared to accept this another NCM was presented to parliament on the 16th. On this day too Rajapaksa clique did not allow a debate to be held. They attacked with chili powder, broke equipment in parliament, toppled the Speaker’s chair and the table where the maze is placed and behaved like idiots. However, despite the obstructions, the Speaker entered the chamber and formerly got the NCM passed in Parliament.

In a situation where the President doesn’t act according to the Constitution the only action, we had was to seek redress from the Court of Appeal. With the mediation of 122 MPs, we stated that the NCM presented in Parliament had been passed and requested the Court of Appeal to declare that Mr Mahinda Rajapaksa has no power to act as the Prime Minister and his cabinet cannot act as ministers.
 Accordingly, the Court of Appeal has given a very important decision. The setup government has been barred from functioning until the hearing is concluded. Functioning according to arbitrary, distorted thoughts of President Maithripala Sirisena has been halted. Despite a NCM had been passed in Parliament and the Speaker had announced that there was no prime minister or a cabinet, the President convened the cabinet. Various decisions were taken. The ‘token’ ministers commenced giving employment so that they would have cadres for their future political projects. Do people have to accept the administration of such a ‘token’ cabinet? Do we, as citizens of this country, have to accept an illegal, unconstitutional clique that doesn’t have a majority in Parliament administer our country? Can the President rule the country with whichever group he fancies?

The NCM passed on the 14th and the Speakers’ special announcement on the 15th have been corroborated by the Court of Appeal. We would like to tell Maithripala Sirisena that his decisions have been proved wrong many a time. The gazette dissolving Parliament, the gazette appointing the prime minister, the gazette appointing ministers have been stayed by the Judiciary. This is the worst that could happen to decisions by a President. Hence, we ask the President to withdraw those gazette notifications. His moves have been defeated in Parliament and in Courts twice. The President should not come out of his distorted thoughts. The majority group should be allowed to govern.

What has taken place is a treasonable conspiracy. It is a political conspiracy by Maithripala Sirisena and Mahinda Rajapaksa to grab power. This treasonable conspiracy should not be taken lightly. We would not allow the issue to be closed even if Ranil and Mahinda become pals and have their hands on each other’s shoulders. These treasonable conspiracies should be countered. As such, we emphasize that the Parliament should pass a bill to appoint a commission to punish all those who were involved in the political conspiracy. The commission should also investigate the moves of the media institutions that functioned supporting the conspirators. The media has a massive task of making the people aware when such political conspiracies are being hatched. However, most of the media institutions in our country stood on the side of the conspirators.

Also, the importance of the proposal to abolish executive presidency is further established with what is happening in the country now. We, of the JVP, have presented in Parliament the proposal to abolish the executive presidency. We would like to emphasize now that this amendment should be soon debated and passed in parliament. We propose that subsequently the Parliament should be dissolved and a new Parliament should be elected according to the wishes of the people. This Parliament is not suitable to carry out any other programmes. Hereafter, no government, whoever makes it and if it is made with perks, privileges and bribes, it should not be allowed to carry on for a long time. We again emphasize that the political conspiracy should be totally defeated, a commission should be appointed to punish the conspirators and then the bill to abolish executive presidency should be passed before this Parliament is dissolved.

It was the President who made this country a ludicrous, clownish anarchic state. It was the President who broke down the economy, destroyed democracy and belittled our country before the world. As such, if he has a conscience he should beg pardon from the whole Nation regarding the political conspiracy he committed. We demand that the President, without continuing with his political conspiracy, should carry out his functions honouring the Constitution. We would like to emphasize that there would be inconceivable uprisings if he continues to carry out his arbitrary moves. In such a situation the President would have to confront a political fate that he would never imagine. We also would like to emphasize that the President has no right to instruct the people to act lawfully if he doesn’t act according to the constitution and the law of the country.”

The General Secretary of the JVP Tilvin Silva and its National Organizer Bimal Rathnayaka also participated.

Don’t act like Hitler, Ranil Wickremesinghe tells Sri Lankan President Sirisena

Sri Lanka’s ousted Prime Minister Ranil Wickremesinghe at a news conference in Colombo on Tuesday.   | Photo Credit: DINUKA LIYANAWATTE

All we are saying is follow the Constitution, says the ousted Prime Minister

Meera Srinivasan
-DECEMBER 04, 2018

Observing that President Maithripala Sirisena must not take “subjective decisions” pertaining to the Constitution, Sri Lanka’s deposed Prime Minister Ranil Wickremesinghe on Tuesday said: “Don’t be like Hitler and other dictators.”

“The Prime Minister is decided by parliamentary majority. The President cannot say this is what I want. All we are saying is follow the Constitution,” Mr. Wickremesinghe said, addressing media persons at Temple Trees, the official residence of the Prime Minister, which he continues to occupy since Mr. Sirisena controversially sacked him six weeks ago.

The ousted Premier’s comment seemed a counter to Mr. Sirisena’s repeated assertions that he will not work with Mr. Wickremesinghe “ever”. On Monday evening, the President told lawmakers from Mr. Wickremesinghe’s front that he would not restore him in the office of the PM “even if all 225 members of Parliament” backed him.

On Tuesday, he reiterated the stance at his Sri Lanka Freedom Party (SLFP) convention, claiming that Mr. Wickremesinghe was “not suitable” for the country.

Deteriorating dynamic

The dynamic between the two leaders, who formed Sri Lanka’s first national unity government in 2015, has been deteriorating over the last three years. Their power struggle culminated in Mr. Sirisena’s dramatic move on October 26, appointing former President Mahinda Rajapaksa as Premier, in place of incumbent Mr. Wickremesinghe.

Mr. Sirisena’s snap decision, compounded by his lawmakers’ questionable actions in Parliament since, has prolonged the political turmoil for weeks. However, vowing to resolve the crisis in “seven days”, Mr. Sirisena told his supporters on Tuesday: “I have always taken decisions in the best interest of the country and the people.”

Mr. Sirisena’s remarks come a day after he assured Tamil National Alliance MPs that he would take “necessary action” to end the crisis in “24 hours”, in the wake of an interim order at the appeal court, denying Mr. Rajapaksa and his “Ministers” the authority to continue in office.

The Sirisena-Rajapaksa combine has boycotted six motions in the legislature since the unrest began. Unable to muster the required numbers in the House, their MPs have refused to accept the outcome — of a majority voting against Mr. Rajapaksa and his purported government. The camp has also suffered two setbacks in the courts, with the Supreme Court staying Mr. Sirisena’s dissolution of Parliament and the appeal court restraining Mr. Rajapaksa.

Mr. Rajapaksa’s lawyers on Tuesday filed an appeal in the Supreme Court, against Monday’s ruling barring him from serving in the office of the Prime Minister.

Meanwhile, the Supreme Court on Tuesday resumed hearing the case challenging Mr. Sirisena’s decision to sack Parliament and hold snap polls, which petitioners argued were not within his rights before the current legislature completed four and a half years.

The respondents, who have maintained that his executive powers allowed him to do so, will make their submissions on Wednesday. The apex court is expected to deliver its verdict on Friday or the following week.

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

(Lanka e News - 04 Dec 2018, 11.00AM) 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
J.C. Weliamuna
Lakshan Dias
Sheath Nethsinhe 

On behalf of
Lawyers for Democracy

---------------------------
by     (2018-12-04 06:13:37)

UNP, JVP mull over impeaching Prez Any compromise on current crisis is a question of pride for UNP, Pre

The UNP along with the parties backing it is mulling over the possibility of moving an impeachment motion against President Sirisena (Pic AFP) 

2018-12-06

The United National Party (UNP) along with the like-minded parties such as the Janatha Vimukthi Peramuna (JVP), was upbeat when the Court of Appeal issued an order restraining the Cabinet and Prime Minister Mahinda Rajapaksa from functioning.   However, it flew out of the window as President Maithripala Sirisena even discarded its appeal, for the second time, to reappoint UNP Leader Ranil Wickremesinghe as the Prime Minister.

Hot on the heels of the Appeal Court ruling, the UNP representatives hurried to the Presidential Secretariat to engage the President with much hope. They believed the President would be flexible enough to reinstall the UNP-led Government under Wickremesinghe as the Prime Minister.  It proved otherwise as the President, at the very onset, expressed his unwillingness to reappoint Wickremesinghe.


“Don’t you have any other nominee for premiership other than Mr. Wickremesinghe?  I cannot talk about his reappointment at all,” the President    said as he sat down at the negotiation table. It was a shock for the UNP which expected the President to show some flexibility under the present compelling circumstances.

UNP MP for the Hambantota district Sajith Premadasa was the first to speak out.  He appealed to the President to allow his party to form the Government under Wickremesinghe. “We have not thought of anyone other than Mr. Wickremesinghe to be our Prime Minister,” he told the President.

MP Premadasa’s assertion has to be weighed in a context where some MPs of his party try to promote him as the Prime Minister in place of Wickremesinghe.  Probably, the UNP would have requested him to respond to the President in the manner to quell the effect of such rumours circulated in political circles.  According to inside sources, some UNPers such as Ranjith Madduma Bandara and Ashok Abeysinghe openly advocated the premiership for Premadasa.  Be that as it may, Premadasa is not ready for it at this juncture as indicative of his stoic silence on that matter. For him to stake over such responsibilities, he insists that the party leadership   be given to him first.

The two higher courts of the country gave rulings against your decisions. It means your actions were unconstitutional. Now, you have to appoint the MP commanding the majority support in Parliament as the Prime Minister

On the other hand, he seems to be having second thoughts on becoming the Prime Minister during this trying time. The country is riddled with issues, and it may be difficult for him to   address them by becoming the Prime Minister. Any failure on the part of him would reflect badly on him, and as such he wants to stay away for the time being.  Failure will also spell political doom for him in the long-run.  So, Premadasa’s hands off attitude could be understood.

Kiriella confronts President

After Premadasa, UNP MP Lakshman Kiriella somewhat confronted the President at Monday’s meeting. “The two higher courts of the country gave rulings against your decisions. It means your actions were unconstitutional. Now, you have to appoint the MP commanding the majority support in Parliament as the Prime Minister. It has to be the person commanding the majority support.
Otherwise, it cannot be done at your whims,” he told the President.

The President turned furious a bit    over these harsh remarks by Kiriella. In an equally harsh tone, he responded to Kiriella saying he would not give the premiership to Wickremesinghe even if 225 MPs signed affidavits pledging support to him. Also, All Ceylon Makkal Congress (ACMC) Leader MP Rishad Bathiudeen made a veiled threat to the President. “Some lawyers say you may end up in jail unless you address this now,” he said.

As the President refused to budge even an inch from his stance, the UNPers realised that it would be futile to prolong the discussion. As such, they wound up the meeting and walked out of the Presidential Secretariat to be mobbed by the media personnel for comments.

Question of pride 

Afterwards, on Tuesday evening, the President lashed out  Wickremesinghe publicly at his party’s Convention and reaffirmed his position   of not awarding the premiership to him no matter what.  However, the UNP, as a party, is not ready to relent in the face of the President’s tirade.  In fact, it has now turned out to be a question of pride for both the President and the UNP alike.

If the President takes a step back, it would amount to a victory for the UNP. Likewise, it would be a gain for the President if the UNP makes way for the appointment of a new Prime Minister other than Wickremesinghe.  In this manner, it is a tug-of-war which both sides cannot afford to lose at any cost.

As an affront to the President’s toughened position, the UNP is now contemplating the adoption of a motion in Parliament expressing confidence to Wickremesinghe next week.  Also, the UNP, along with the parties backing it, is mulling over the possibility of moving an impeachment motion against the President.

Alongside, one would be able to predict how the crisis will end only after the Supreme Court rules on the dissolution of Parliament. If dissolution is affirmed by court, dates will be fixed for the General Elections. In case, dissolution is ruled out, the tussle for power will be intensified with each side trying to rope in members to secure the required majority.  In such an eventuality, an impeachment motion against the President is highly likely.

TNA in dilemma 

In the midst of such interesting and dramatic political developments in the country, the Tamil National Alliance (TNA) gained influence in Parliament because its numerical strength holds sway in an otherwise hung Parliament.  Alongside, it pledged to support the UNP to form a Government.

TELO, an ally of the TNA, is irked by the TNA’s decision to extend unconditional support to the UNP.    It insists that the TNA should get a written commitment from the UNP to address some of the issues confronting Tamil people in the north and the east.

The representatives of the political parties aligned with the TNA met at the Opposition Leader’s office on Tuesday evening to discuss the situation further.

On behalf of TELO, five members attended it. They are N.Srikantha, M.K. Sivajilingam, K.Karunakaran, Selvam Adaikkalanathan and Vino Noharathalingam. ITAK was represented by its leader Mavai Senathirajah, R. Sampanthan and M.A. Sumanthiran. MP Dharmalingam Sidaththan and S. Ragavan represented PLOTE at the meeting.

TELO put forth five demands to be negotiated with the UNP for a written understanding.   They are the release of military-held lands in the north, the repealing of the Prevention of Terrorism Act, the release of LTTE suspects commonly referred to as political prisoners, the implementation of the 13th Amendment in full along with land and police powers and the merger of the north and the east. TELO representatives argued that   the TNA should get a commitment from the UNP to implement these five demands. They opined that the successive Sinhala leaders deceived the Tamils right throughout, and therefore no room should be left for it to happen once again.

If the President takes a step back, it would amount to a victory for the UNP. Likewise, it would be a gain for the President if the UNP makes way for the appointment of a new Prime Minister other than Wickremesinghe.  

However, Sampanthan, as the TNA Leader, was averse to the idea of signing a written agreement. Instead, he said the UNP leadership could be trusted to address these concerns, and therefore a chance should be provided.

Srikantha, a politburo   member of the TELO, said it would be unwise for the TNA to antagonise Mahinda Rajapaksa unnecessarily.

“We should not take sides on this. If we want a political solution, it has to be approved by two-thirds in Parliament. How can we get it without Mahinda’s support? We should not antagonise him too much,” he said. The meeting had ended inconclusively.

EPRLF breaks ranks with TNA

The current   political crisis is taking its toll in this way on the TNA. Already, the TNA is challenged by former Northern Province    Chief Minister C.V. Wigneswaran who has formed a new party. He has now initiated talks with like-minded political parties in the north to form a new alliance as an alternative to the TNA.

Already, EPRLF, a long- time ally, has abandoned the TNA and joined hands with the Chief Minister’s party. As a result, the TNA is now an amalgam of three parties only.  So, it won’t be a clean sweep for the TNA next time. 

RTI Commission Orders President’s Office To Disclose Ranil Wickremesinghe’s Assets Declaration

DECEMBER 4, 2018

Politicians are subjected to higher levels of public scrutiny and the public interest mandates the disclosure of the asset declaration of a high ranking elected official such as the Prime Minister, said the Right to Information (RTI) Commission today in ordering the Office of the President to submit the Assets Declaration of Prime Minister Ranil Wickremesinghe for the years 2015 and 2016.    

Ranil

If Parliament had intended to keep asset declarations of politicians out of the RTI regime, it could have explicitly mentioned it in the RTI Act. That was not so and accordingly, the Commission stated that it is duty bound to take into due account the legislative intention in that regard. 

The Commission also refused to accept the argument put forward by law officers of the Attorney General justifying the decision of the President’s Office that a 1970’s Declaration of Assets and Liabilities Law would be enough to curb corruption and that the RTI Act need not be used for this purpose. 

It was stated that existing laws, such as the old Assets Law would only come into play only upon complaints being received on corrupt acts of individuals or when the same is discovered inadvertently. As practice indicates, this occurs only in selected instances. On the other hand, use of the RTI Act enables a powerful check to be exercised on even potential corruption as this would deter those otherwise enticed to amass public wealth for themselves. It was concluded that the regime of transparency in the RTI Act prevails over the secrecy clause in the Assets Law requiring those who obtain declarations of assets, not to make them publicly available.      

The Commission ruled that a 27th February decision of the Speaker last year that information pertaining to asset declarations of parliamentarians can only be released through the Declaration of Assets and Liabilities Law was not applicable to the factual situation before the Commission. That decision had been referred to by the President’s Office in refusing the information to the appellant, Transparency Internatoinal, Sri Lanka who then came before the RTI Commission in appeal.

The argument that the Secretary to the President stands in a fiduciary relationship to the President and therefore must hold information such as assets declarations confidentially was also dismissed. The Commission emphasized that, if so, then the RTI Act would be rendered a dead letter in the public service as this ground could be, for example, pleaded by a Secretary to a line Ministry vis a vis the relevant Minister.

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First tentative step towards thundering final judgment?

COURT IN THE ACT: In time not yet out of mind, to go against the executive arm of government spelled all kinds of trouble – impeachment at best, death at worst – for courageous individuals in the judiciary. And the eviction and extinction of such faithful servants of justice is still fresh in the minds of the Bench. Fond hopes that justice will prevail must be fortified by judicial review of the cases concerned as much as civil society’s endorsement of an independent judiciary, one of the last bastions of democracy in our republic of late… – Pic by Shehan Gunasekara 

Wednesday, 5 December 2018

In a palpable blow felt around the body politic, three courts have delivered a trifecta of punches to the coup’s solar plexus. It is not a full, final or binding ruling. But it is a first step towards something solid, stable, and altogether salutary – or so it seems. And there is enough to go on to give at least half the republic a new hope.

First, the Supreme Court granted interim relief to plaintiffs challenging the suspect prorogation of parliament. It was a direct rap on the executive’s knuckles, privileging inter alia the constitution and cabinet responsibility for parliamentary affairs over one powerful person’s prerogative. Or whims and fancies with no legal or moral basis. That showed those who contend that Sri Lanka is a purely presidential democracy rather than a mixed system the error of their interpretation. And it also showcased how checks and balances work well in a liberal constitutional democracy, where the three arms of government are divided and separated in the best national interest.

Then, a Magistrate’s Court had the temerity to remand the highest-ranking military officer in the land, in a volatile case involving the alleged abduction and murder of youth in a time of war. This, despite the official’s ostensible protection at the hands of the head of state with a mind to play to the nationalist gallery, which once led to a cavalier absconding on the part of the second accused in the case. That, and the full regalia of a strutting chief of defence staff not serving to intimidate a sitting judge speaks volumes for the testicular fortitude of at least one magistracy in the country today. Thus, as some would say, the Fort Magistrate has, well, balls.

And last but not least, the fresh news day before yesterday that a Court of Appeal had interpreted a quo warranto case to determine that an ostensible prime minister had shown no sufficient cause to continue as a premier together with his cabinet. Be it a stay order still, not a conclusive ruling, this seems a salutary first step for a long hamstrung justice system.
A New Hope! 
It is a development that is both organic and organised as such. A twin helix of natural development and non-interventionist determination.

On the one hand, we might credit the reforms agenda of the coalition government that started off well enough after the so-called ‘January Revolution’ of that now distant dawn in 2015. It was an unlikely alliance against the excesses of the ‘evil empire’ it succeeded and replaced. Can it be that even those stalwart democratic-republicans had no idea what their good intentions would generate in terms of an independent judiciary in the relatively short space of a little under four years?

On the other, one would do well to credit the emergence of just and fair judges moved more by the merits of an argument than might or main. It must also redound to the good offices of the Constitutional Council, which left to its own devices post judicious appointments, permitted the natural hierarchy of things to assert itself in courts long dogged by blatant politicking. Can it be that the free and fair ethos that has ensued is a twin-helix hybrid between the courage of the council in disregarding seniority alone to appoint the most suitable judges and chief justice to boot… and the natural resolve of a court with the sterling likes of a Sripavan or Dep, et al.?
The Empire Strikes Back? 
Be that as it may, let us not break out the bubbly! Not champagne for the courage of the court and council. But cheers to the independent spirit of the 19th Amendment vis-à-vis duly constituted commissions. And the free, frank and fragile opinions of their learned lordships. For to celebrate any sort of victory for the democratic imprimatur over the courts may well be premature and precipitate a fresh crisis.

Not because the sterling ethos of the courts are suspect. But because the defendants in the three hallmark cases mentioned above are still at large in terms of realpolitik in a world where one man now holds the sceptre over our realm. And even if a coup based cabinet has had its wings clipped for now, it isn’t over till the interim orders are signed, sealed, and delivered with finality.
Return of the Jedi… 
The judiciary at three levels of its being has asserted its mettle against unconstitutional political ambition and unbridled militarism. But if anyone is thinking ‘strike three, and you’re out’, it’s perhaps a tad premature to celebrate the courage, independence, and fortitude of Sri Lanka’s judges.

For while on the one hand we’re well aware that these are interim orders, on the other, the track record of the defendants with respect to court orders – they have no respect for court orders – must give us pause. And give us shivers, as we wait in the fresh hope, that possibly the empire won’t strike back this time too. I’m not holding my breath; nor should you.

But there is a new hope. Sorry for Sri Lankans as yet unborn if pragmatism, endemic corruption/systematic bribery, or any other threat to the integrity of the judiciary were to dash those hopes against the rock of realpolitik.
(Journalist | Editor-at-large of LMD | Writer #SpeakingTruthToPower)

The Politics of Bedlam and Imperfect Constitutional Provisions

VITHANAWASAM NANAYAKKARA-12/04/2018

Editor’s Note: The author is a former Secretary to the Prime Minister, Government of Sri Lanka, now retired after a career spanning 37 years in Sri Lanka’s Administrative Service.

The recent politico-constitutional crisis marks a resurgence of interest in interpretation of imperfect constitutional provisions. Translating this interest into a meaningful dialogue may not be an easy task as Sri Lanka’s Constitution is riddled with indeterminate text.  These imperfections result in a dysfunctional political system, a signal that it is time to rewrite the Constitution.  Despite the imperfections, our respect for the Constitution compels us to examine the proper meaning to be gleaned from the text.  Let us address two questions.

First let us address the question, “Is the purported dissolution of Parliament by the President unconstitutional?”  We are faced with two competing provisions.

• Article 33 states: “It shall be the duty of the President to …   summon, prorogue and dissolve Parliament” [Article 33 (2) (c)]
• Article 70 (1) states: “ The President may by Proclamation, summon, prorogue and dissolve Parliament:  Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for  its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present) voting in its favour”

To resolve the apparent clash between the two provisions in article 33 (2) (c) and article 70 (1), can we turn to any accepted norms of interpretation of constitutional provisions? There are several maxims for our guidance.

One maxim says that the express mention of one thing excludes all others (expressio unius est exclusio alterius). Another maxim states that general things do not derogate from special things(generalia specialibus non derogant). One more maxim says that special words derogate from general ones (specialia generalibus derogant).

A maxim of universal law further relevant to the issue states: Later laws abrogate prior contrary laws (leges posteriores priores contrarias abrogant).  Where words are manifestly inconsistent and clearly repugnant in two laws, the later law prevails. Article 70 (1) introduced more determinate clauses that override the earlier provision in article 33 (2) (c). Where the subsequent provisions later in a document are contrary, the earlier must be considered as repealed.

In the light of the above, can the constitutional amendment to article 70 (1) be unconstitutional vis-à-vis the broad principles set forth in article 33? The question arises whether the more determinate and specific clauses override the general provision. The answer is yes; when the language of a clause makes plain a specific concept – the process of interpretation is straightforward. A particular provision is the building block of the general provision.  Further, the text must be understood as a whole: various provisions qualify, modify, or shed light on the proper understanding and application of other parts of the text. In constitutional interpretation, we must honour the aspirational principles which provide the best justification or which answer better the principles to which we as a people subscribe.  Clearly, the current dissolution of Parliament is unconstitutional.

Secondly, let us address the question whether the President can unilaterally remove the Prime Minister. If a Prime Minister does not serve the political interests of the President, can the President remove the PM for political reasons? After the 19th Amendment, the Prime Minister does not hold office at the pleasure of the President. Article 46 (2) clearly sets forth the PM’s tenure status. The PM continues to hold office throughout the period during which the cabinet of ministers continues to function unless the PM resigns or ceases to be an MP.  Accordingly, the Nineteenth Amendment limits the President’s unrestrained powers of appointment and dismissal.

The powers, functions and duties of the Executive President, and his relation with the Prime Minister and Cabinet, have over time differed with the various amendments to the constitution since 1978. The President’s greatest power is his ability to choose the Prime Minister. However, after the 19th Amendment, the Parliament has the sole power to dismiss the government under article 48 (2), namely, in the following three instances:

• Where Parliament rejects the statement of government policy,
• Where Parliament rejects the Appropriation Bill, and
• Where Parliament passes a vote of no confidence

Therefore, the President is forced to name a Prime Minister who can command the support of a majority in the legislature. The President names but cannot dismiss the Prime Minister. Power to remove the PM is vested exclusively in the legislature.  Also, the President names and dismisses the other ministers with the agreement of the Prime Minister. That in essence is the constitutional position.

It is time for a new era of principled constitutionalism.

Editor’s Note: Read more content on the coup here.