How to Dissolve the Parliament..? -Vajira Abeywardana (MP)

(Lanka e News- 08.Dec.2018, 10.30PM)
As per Article 33 (2) of the Constitution:

In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power–

(c) to summon, prorogue and dissolve Parliament;

The words ‘In addition’ in the above Article should not be interpreted as ‘Notwithstanding anything to the contrary in the Constitution’. Therefore, the provisions in the above Article do not give the President additional power to disregard any other Article in the Constitution related to dissolution of the Parliament. In fact, the words ‘In Addition’ in this instance have the same meaning as the words ‘As well or Also’. Therefore, all the Articles in the Constitution on the subject (i.e. dissolution of the Parliament) should be considered together by the President in exercising his powers.

Article 70 (1) is related to this issue and it imposes limits or constraints on the President when exercising his powers under Article 33 (2) to dissolve the Parliament in the following manner:

“The President may by Proclamation, summon, prorogue and dissolve Parliament:

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

The limits or constraints stipulated in the above Article are as follows:

Dissolution can only be done by Proclamation;

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;

During other times, dissolution of the Parliament needs a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.

Further, according to Article 33(1) of the Constitution:
It shall be the duty of the President to –

(a) ensure that the Constitution is respected and upheld;

Accordingly, the President cannot uphold one Article of the Constitution and at the same time disrespect another in exercising his powers with respect to any given matter under his purview, unless the Constitution itself specifically allows for it. (But the words ‘In addition’ in Article 33(1) do not warrant such provision.)

As such, the President may exercise his powers under Article 33. (2) (c) to dissolve Parliament AND in doing so, shall not disrespect the limits or constraints stipulated in Article 70 (1).

This condition is very similar to the case in Shakespeare’s Merchant of Venice and when Shylock demanded nothing but the ‘Pound of Flesh’, the judge responded in the following manner:

“And you have to cut this flesh from his chest. The law allows it, and the court awards it.

This contract [however,] doesn’t give you any blood at all. So, take your penalty of a pound of flesh, but if you shed one drop of Christian blood when you cut it, the state of Venice will confiscate your land and property under Venetian law.”

Another limit related to dissolution of Parliament is given in Article 62 (2) as follows:

Unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as a dissolution of Parliament.

The above limit states that on expiration of five years ‘from the date appointed for its first meeting’, the Parliament would be automatically dissolved. The words ‘Unless Parliament is sooner dissolved’ is only meant to be a condition, which should not read and construed as an exclusive power given [to the President] to dissolve the Parliament notwithstanding the provisions given under Article 70(1).

Further, there is a notion that Article 33 (2) (c) has been included in the 19th Amendment to the Constitution in order to give the President the exclusive right to dissolve the Parliament at his discretion notwithstanding the provisions given under any of the other Articles of the Constitution. This view is totally wrong. The real reason for adding the said Article has been to include the power to dissolve the Parliament in ‘Article 33: Duties, powers and functions of the President’ and thereby to bring it under the purview of Article 35 (1) so that any person, whose fundamental rights in respect of dissolution of Parliament have been infringed through anything done or omitted to be done by the President in his official capacity, can apply to the Supreme Court by way of a petition in terms of the provisions given under Article 126.

The following section extracted from Article 35 (1) verifies this:
Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity:

Provided further that the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President under Article 33(2)(g).

Therefore, it is very clear that the Supreme Court does not have sole and exclusive jurisdiction only to hear and determine any question relating to:
33(2) (g) to declare war and peace;

All other matters under Article 33: ‘Duties, powers and functions of the President’ essentially come under the jurisdiction of the Supreme Court.

Further, both Articles 48 (1) and (2) confirm that the power given to the President under Article 33(2) (c) to dissolve Parliament can only be exercised under Article 70. The above Articles are presented below.

48. (1) On the Prime Minister ceasing to hold office by death, resignation or otherwise, except during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70, dissolved Parliament, stand dissolved and the President shall appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in terms of Articles 42, 43, 44 and 45:

(2) If Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved, and the President shall, unless he has in the exercise of his powers under Article 70, dissolved Parliament, appoint a Prime Minister, Ministers of the Cabinet of Ministers, Ministers who are not members of the Cabinet of Ministers and Deputy Ministers in terms of Articles 42, 43, 44 and 45.

However, if the Supreme Court decides to reject the petitions on the basis that the President had dissolved Parliament under Article 33(2) (c) and not under Article 70(1), then a contradiction will be created by that decision between Article 47 (1) and Article 48 of the Constitution.

It is also a known fact that the President dissolved the Parliament while Parliament stood prorogued. According to Article 70 (3) of the Constitution:

A Proclamation proroguing Parliament shall fix a date for the next session, not being more than two months after the date of the Proclamation:

Provided that at any time while Parliament stands prorogued the President may by Proclamation –

(i) summon Parliament for an earlier date, not being less than three days from the date of such Proclamation, or
(ii) subject to the provisions of this Article, dissolve Parliament.

This is the only provision in the Constitution to dissolve the Parliament while Parliament stands prorogued. Therefore, the President can dissolve Parliament only in accordance with Article 70 while Parliament stands prorogued.

By 

Vajira Abeywardana (MP)

---------------------------
by     (2018-12-08 20:52:38)

Role of JVP & the current political crisis in Sri Lanka

Throughout this crisis, JVP members behaved with the sense of humour, and with the sense of responsibility wisely in and outside of parliament. They debated with wisdom, substance and logic.

by a Patriotic Lankan-Dec 8, 2018

Dec 8, 2018

( December 8, 2018, London, Sri Lanka Guardian) The main objective of this brief article is to gauge the performance of JVP in handling the political crisis in Sri Lanka? How did they handle the political crisis so far? How do they differ from main political parties in their approach to this political crisis? I will try to answer to these questions in this writing.

                It has been more than 5 weeks now since this political crisis was created in Sri Lanka.  Yet, Sri Lankan political parties have failed to come to term with any meaningful political settlement. In 70 years of Sri Lankan political history, we have not seen any political crisis like this. This is a manmade political disaster. This is created by political miscalculation of Maithri. For his good luck or bad luck, it has gone out of control now. Neither parliament nor president could come up with any solution yet. As result of this indecisiveness, Sri Lankan economy and good will suffered dramatically. I have been following all these political debates since this crisis started. I strongly believe that among all Sri Lankan political parties, JVP excelled in their debates and arguments. Neither UNP nor SLFP could produce any constructive argument on this crisis. As bankrupt political parties UNP and SLFP began to engage in blame games. Often both engaged in character assassination one another. Many MPs behaved in an uncultured and uncivilized manners. They threw chairs and chilli powders in parliament. Yet, look how did JVP members behave? How did they react? How did they engage?

        Throughout this crisis, JVP members behaved with the sense of humour, and with the sense of responsibility wisely in and outside of parliament. They debated with wisdom, substance and logic. They behaved politely in a civilised and cultured manner. They argued withpoints and they challenged their opponents with logical and rational questions.It is very much clear for public that UNP, SLFP and SLPP are engaged in a powerstruggle. It is a three-way struggle between UNP, SLFP and SLPP. It is verymuch clear this crisis is nothing but a power struggle between the presidentand PM and eventually it ended up in a political gridlock.

        Many attempts have been made to resolve this problem through parliament voting and judiciary. Still we are waiting to hear court verdict about the actions of the president. I do not know if both parities will obey by court verdicts. Yet, I find that JVP’s approach to resolve this problem is more convincing to point out here. Under this critical political chaos, they have proposed 4 steps to resolve this problem.

1. Maithri must be defeated in a democratic way to save Sri Lanka. JVP see that this problem is created by Maithri by misusing his executive power. They strongly believe that Maithri has acted against the constitution. So, he must be defeated.
2. JVP strongly believe that all whose people who collaborated with this political coup must be brought into court of law. They claim that there must be a public enquiry to investigate all those who collaborated in this political coup. A free and independent public inquiry commission must be set up to investigate this broad light political coup. Otherwise, this coup will be a bad political precedent for all politicians to play around with Sri Lankan constitution. Sri Lankan constitution will be come like toilet paper for politicians to use it as and when they like in a way they like.
3. They strongly believe that this executive president system is no viable to Sri Lanka. We may remove Maithri but someone else will come in his place. Sometimes, he will act in the same way Maithri acted against the constitution. So, this, we must change this executive system.
4. Finally, they propose that we should run a referendum to decide to decide if people like this system or not. If people decide to have this system or any other political, they could decide it.

Unlike most selfish and crook politicians of SLFP, SLPP and UNP, JVP stand with its policy. They do not change their policy to get any personal gains or benefit. They live by their words and actions. They strict to their words and their actions. They are dedicated to this nation and for its people .so, I think that people should forget what happened in the past and vote for JVP in coming elections to see some changes in Sri Lanka. We have had enough. We gave 70 years of Sri Lankan politics in the hands of UNP and SLEF, they have done nothing to Sri Lankan except they have damaged the image of Sri Lanka.

              Consider all countries around us. Most of the country in Asia are rapidly developing. If we do not wake up, SriLanka will be left out. If we do not act now wisely Sri Lankan people will haveto suffer. So, wake up Sri Lankans against this corrupt political system. Ourimage has been badly tarnished by this action of Maithri. It will take years torepair that damage. So, do not let Maithri to ruin Sri Lanka.

The Sirisena Syndrome

By Ameer Ali –DECEMBER 9, 2018

Dr. Ameer Ali

What is happening in Sri Lanka since October 26th is something unique in the country’s democracy. At no time before, the nation had been deprived of an elected government. At no time before, since the introduction of the presidential constitution, had the country seen a president whose only consistency has been his inconsistency. At no time before, had minority parties like TNA, SLMC, and JVP been compelled by destiny to unite to save democracy in the interest of generations to come, and at no time before, Sri Lankans are waking up every morning with some consternation looking literally at the DAY OF JUDGEMENT from the judiciary to know the fate of the country, its democracy, economy and most importantly its president. This is a syndrome that President Sirisena, the memorable gamarala from Polonnaruwa, will bestow to the nation as his permanent legacy when leaving the office for good, perhaps “unwept, unhonoured and unsung”.     

Because of President Maithripala Sirisena’s personal hatred of Ranil Wickremesinghe, the elected prime minister and a leader chosen by his party members – whose ineffectiveness and incompetency has been judged by voters already at the local council elections – the president is holding the entire nation for a ransom. He either wants a prime minister to his own liking or no one else. This is why he has declared rather arrogantly, “I am the government”, like King Louis XIV declared “I am the state”. The king of course brought forth a revolution. What will the president bring forth is anybody’s guess. 

In the meantime the open economy of Sri Lanka is left virtually stranded without knowing what to do next. The tourist industry, which is a critical component in the open economy, and private investment on which employment growth largely depends have been hit hard because of presidential negative political stimulus. Rising cost of living, which the RW government callously disregarded to bring under control, continues sky rocketing. It is time President Sirisena takes a few hours to ponder over what is happening in France right at this moment. It is the rising cost of living that has made workers, students and ordinary folks of that country come to the streets and they are now demanding President Macron to quit.  Will President Sirisena who is claiming to be the government do something to avert this fate? People do not eat constitutions Mr. President, but food. It is un-Buddhist to watch Sri Lankan children going to a police station to complain that they are starving. 

Read More

Executive Presidency: Blessing or curse?

 

By Dr Upul Wijayawardhana-December 9, 2018, 8:22 pm 

When JRJ, utilising the massive mandate the voters gave him in 1977, created the executive presidency, not everyone was happy but there seemed some sense to his arguments. He wanted to be a powerful president who could use the executive powers to develop the country fast: he wanted the country to leap-frog to the future. It is fair to state that he made some achievements to this end. Had he not got intoxicated with power, may be the presidential system of government would have taken an unshakable foothold in Sri Lanka. However, from JRJ onwards, every elected president followed in his footsteps of being intoxicated with unfettered powers, leading to an outcry for curtailing the powers of the president. Many got elected with the promise of abolishing the executive presidency which was quickly forgotten. Afterall, we cannot expect turkeys to vote for Christmas!

Meanwhile, the UNP leader who realised he could never get elected to that coveted post had other plans. He wanted his nominee elected and the concept of ‘the common candidate’ was born. This was his grand plan to seize absolute power. He wanted to be ‘executive prime minister’ with voluntary transfer of power by his chosen puppet. He made this abundantly clear in an interview he did with a European Tamil TV channel, just before the 2010 presidential election, one of the most disturbing political interviews I have ever watched. When the presenter told him that most Tamils believed he had allowed the LTTE split, Ranil Wickremesinghe’s reply was "I did my best to prevent the split. In fact, the moment I heard Karuna was going to split, I contacted Norway and told them to take action". I was aghast with that reply. After a lengthy discussion when the compere asked him how he would fulfil the undertakings given to Tamil people, his reply was "The day after General Fonseka gets elected, he will transfer all executive powers to me as the prime minister and I will fulfil my undertakings". I do not think voters were made aware of those undertakings.

The conclusion of that interview was the most repulsive. When the interviewer asked whether things could not have been settled sooner Ranil W’s reply was: "Had Mr Jayewardene sat down with Mr Prabhakaran, things could have been settled."

He did not have the courtesy to call his uncle President Jayawardena was seen to give Prabhakaran parity of status. In spite of all this General Fonseka could not win. Had he won, would he have willingly transferred power? I doubt. Considering what ‘timid’ Sirisena did, hard to imagine what ‘iron-man’ Fonseka would have done!

Should an executive Prime Minister replace the executive President?

This is the million-dollar question. Westminster type of Prime Minister, heading a Cabinet government is a totally different entity, but what Ranil wants is a back-door dictatorship.

Those who praised Sirisena to high-heaven are using the most undiplomatic words to describe him now. They maintain that he should continue to show gratitude to Ranil irrespective of what he does. It is only the foreign powers that engineered the regime change, and blind supporters, who are prepared to close their eyes to Ranil’s misdeeds. The President’s fault is that he did not act fast enough. When the bond-scam occurred, he should have demanded the resignation of the minister in charge, which happened to be the Prime Minister. He should not have connived with the UNP to dissolve parliament, in August 2015, to prevent the presentation of the COPE report. Had the COPE report been presented, the second bond-scam would not have occurred. Therefore, both of them are equally guilty of the present economic mess.

The President is also guilty of not having intervened while the UNP was twisting democracy to postpone elections and pass various legislations slaying democratic norms. He had shown his gratitude more than enough. Gratitude does not mean turning a blind-eye to misdeeds. In fact, I look upon the present political situation as ‘democracy in action’. It shows that we need a balanced system than an all-powerful president or a prime minister. Not that it has not happened in other countries, but what our elected representatives did, deserves outright condemnation. The responsibility for that rests largely with the speaker. May be, as he harbours presidential ambitions, Karu Jayasuriya demonstrated what a partial and ineffective speaker he was. He changes his statements at the speed a chameleon changes colour. He did not know how a vote of no-confidence should be passed!

Whether the President exceeded his powers is best left for courts to decide but, unfortunately, what has been referred to the learned judges is not the fundamental question. Whether the dismissal of the Prime Minister was unconstitutional is the fundamental question which will remain unanswered, as it had not been challenged, for no good reason. Perhaps, Ranil preferred ‘Pirith’ to justice!

What can we do?

One option is to go for a full Westminster type of democracy, where the voters elect members to represent electorates and the party with the majority forming a government comprising a cabinet of ministers. The president is not elected by the people but by the parliament. This system has worked well in many countries.

As there are merits of a presidential system, where voters can repose their trust in one individual, the other option is to continue the presidential system with well-defined powers of the president.

The worst option would be to elect a president but have an executive prime minister, where the voter is forced to vote for the ghost of the dictator!

The presidential system has neither been a blessing nor a curse but an evolving institution in our political set-up. We have to make a choice. Rather than abolishing the executive presidency, it is best for the country to continue with the system with a degree of power-sharing, which is well defined, with the prime minister. By this we may be able to utilise the talent of two political leaders.

‘League of Nations’, the UN and the world’s longest running conflict - EDITORIAL

2018-12-10

n the aftermath First World War (1914 - 1918) in which 15 - 19 million lives were lost, the League of Nations (LN), an intergovernmental organisation wasfounded on January 10, 1920.
The League’s goals included disarmament, preventing war through collective security, settling disputes among nations through negotiation and improving global welfare. The goal of the LN was to prevent wars through disarmament, collective security and negotiation. Unfortunately despite the lofty benchmarks it set for itself, the League fell badly short of its goals. Barely two decades after the formation of the LN, World War II broke out in 1939 when Germany invaded Poland.  

The loss of life in the second World War (1939-1945) was on a much larger scale, when compared to World War I. Between 60 - 85 million lives both military and civilian were lost. The largest number WWII casualties came from China and the Soviet Union,. 26 million are estimated to have died in the Soviet Union, while China estimates its losses at approximately 20,000,000 deaths.  

On October 24, 1945, at the end of World War II, the United Nations Organization was founded, committed to maintaining international peace and security, developing friendly relations among nations and promoting social progress, better living standards and human rights. But within a space of three years the newly formed United Nations created the world’s longest running war (the Israel-Palestine conflict) when on May 14, 1948, it created the state of Israel in the land of Palestine. A concept of British Foreign secretary Arthur Balfour known as the ‘Balfour Declaration’. The declaration, contained in a letter to Lord Walter Rothschild, a leader of the British Jewish community, was vaguely worded. Mr. Balfour had offered a “national home for the Jewish people”, NOT a state.  

Hungarian-Jewish writer Arthur Koestler described the setting up of the state of Israel in accordance with the Balfour Declaration in the memorable words “one nation solemnly promised to a second nation the country of a third...”. 
The Balfour Declaration promised a ‘national home’ not a state to the Jewish people. This was to be achieved without prejudicing the “civil and religious rights” of Palestine’s “existing non-Jewish communities”, which at that time accounted for 90% of the population.

But May 15, 1948, the day after the UN recognised the State of Israel is remembered by Palestinians as the beginning of the mass exodus of Palestinians from their lands and homes... and every year on May 15, Palestinians the world over, approximately 12.4 million, refer to this day as ‘Nakba’, or “catastrophe”, it refers to the ethnic cleansing of Palestinians from their lands and homes by Israeli Zionist gangs on May 15, 1948. By the first half of 1949, at least 750,000 Palestinians had been forcibly expelled or fled their homeland in the face of armed Israeli attacks.

Today more than 1.5 millionPalestinians, live in 58 recognized Palestine refugee camps in Jordan, Lebanon, the Syrian Arab Republic, the Gaza Strip and the West Bank, including East Jerusalem.  Statistics revealed by the ‘Guardian’show, that almost 5 million Palestinians today live under a military occupation. This has lasted for over five decades. Another 1.7 million are Palestinian citizens of Israel and are a minority under pressure not to antagonise the Jewish majority. 

Some political parties from their community were banned until the supreme court overturned the ban. National security is invoked to justify often racist citizenship laws. They are poorer than their Jewish neighbours and endure terrible discrimination. However, they live better lives than Palestinians in Gaza and the West Bank, where politically the community is divided between Hamas’s radicalism and Fatah’s ineffectiveness. 

Continuing the illegal settlements and a combination of legal and administrative controls mean that the Palestinians, supposedly promised a fifth of the land as part of the Oslo Accords, control a little more than a tenth of historic Palestine. That the Israeli military operates freely in many Palestinian-controlled areas undermines the idea that Palestinians really run them. 

2018 marks the 70th year since the the UN created the conflict in Palestine. It is the duty of the UN to make both parties realise that peace can be achieved only through sharing fairly, the land both claim to love   

With hope in our hearts, we will walk on

When you walk through a storm

Hold your head up high

And don’t be afraid of the dark

At the end of a storm

There’s a golden sky

And the sweet silver song of a lark

Walk on through the wind

Walk on through the rain

Though your dreams be tossed and blown

Walk on, walk on

With hope in your heart

And you’ll never walk alone.

‘You will never walk alone’ by Oscar Hammerstein II

Monday, 10 December 2018

Sri Lanka awaits the determination of the Supreme Court on the authority and sustainability of the President’s gazette notification dissolving Parliament and scheduling fresh elections to elect a new Parliament.

Holding elections is not democracy. Holding elections under the rule of law is democracy. Now, the President has told us how he expected our democracy to work.

In an interview he had explained why Mahinda Rajapaksa, his pick to replace Ranil Wickremesinghe, failed to garner the required 113 Members of Parliament.

The expected crossovers demanded more than Rs. 500 million to defect. He has in the same interview confessed that his nominee now did not command a majority in the 225-member Parliament despite claims that were made immediately after his surprise move on 26 October.


Democracy

Derived from the ancient Greek ‘demokratia’, democracy literally means power derived from the people. So let us get straight to the point. Democracy is too much Greek to our Gamarala.

But that should not lull us into complacency. Democracy also seems to be too much “Greek” to Gotabaya, Gamampila, Godahewa and a gargantuan gobbledygook galore disenchanted with the 19th Amendment. 

Why did we enact the 19th Amendment? Gotabaya says that it was aimed at the Rajapakse family. Not quite accurate. The 19th Amendment repealed the obnoxious 18th Amendment that emasculated the independent commissions and perpetuated Rajapaksa family hegemony permitting dual citizens the luxury of discretionary patriotism.

The Sinhala Sunday Broadsheet ‘Sathi Aga Aruna’ published by the preeminent oligarch spawned during the decade of the Rajapaksa monolith has an interesting Editorial this Sunday. It is captioned ‘Bahu Bootha Yugayak’ – literal translation – An Age of Hocus Pocus.

The Editorial claims that the 19th Amendment has created the current crisis. In the three years since its enactment, the country has known nothing but chaos.

Newspapers are entitled to their opinions. But they are not entitled to their facts. The Editorial pleads for a national consensus to repeal the 19th Amendment which it claims, was enacted to serve a narrow political purpose.

Now we reach a critical point in the current brouhaha. This same oligarch was the preferred choice of Malik Samarawickrama to handle the UNP’s advertising and PR campaign during the last local government elections.

Ranil Wickremesinghe during a debate in Parliament accused the same oligarch of pump and dump activities in the stock market.

It is a strange world. Our liberties are in peril. Oligarchs are taking liberties with our gains of 8 January 2015 and they have patented liberty as a brand name and own plazas of liberty, courtesy of the urban remodelling czar.

Aristotle warned that the greed of oligarchs and resultant inequality would bring instability and make the republic into an oligarchy and an empire.

Plato feared that demagogues would misuse ‘free speech’ and install themselves as tyrants.     

Making history or retooling democracy are never easy. The process of achieving both objectives is rarely pretty. That is an understatement. The process is ugly.

Creating a democracy without dismantling the oligarchy that sustained the earlier autocracy cum kleptocracy was an exercise of futility wrapped in fantasy.

Primary dealership of Perpetual Treasuries was authorised by a friendly governor of the Central Bank.  That was oligarchy operating in the shadows. Under the good governance regime, the father-in-law was made governor of the Central Bank and it was now a great groovy gravy train.  This essay is not about right and wrong or good, bad or ugly. This is an essay exploring the oligarchic grip of our democracy.


Oligarchic influence

Who are oligarchs? Oligarchs are a set of elites with enormous material resources to spend on securing and fortifying their privileged financial statuses, political interests and societal privileges.

Political scientist Jeffrey Winters defines their principal vocation as “wealth defence” and divides them into two categories. “Property defence” and “income defence”.

Our challenge in protecting the democratic gains of the 19th Amendment is to properly comprehend the linkage between the two realms occupied by the oligarchs - economic and the political.

A president lost in the no-man’s-land between the two realms openly speculates on the high cost of purchasing Members of Parliament. The poor man is totally out of his depth.

At its core occupation, an oligarchy involves concentrating economic power and using it for political purposes.

Wijeyadasa Rajapakshe, a principal mover and shaker of the project, is the mouthy piece on record for another Rajapaksa era oligarch – the avant-garde buccaneers of oceans unlimited.

We in pursuit of democratic ideals are vulnerable to the intrigues, machinations and mind manipulation of oligarchy because we are focused totally and unequivocally only on political equality. We overlook the indirect threat that emerges from economic inequality.

Under Rajapaksa rule oligarchs were embedded in the regime. Under the crony rule of the post 19th Amendment democracy, there emerged warring oligarchies. What was collective under Mahinda turned competitive under the Sirisena-Wickremesinghe duumvirate. No wonder it has incensed Maharajahs who were used to the kind of Sultanic oligarchies under President Premadasa as in Suharto’s Indonesia.

Such dog-in-the-manger oligarchies are rare but they do appear like rare comets. Now the poor ‘Gamarala’ is gazing into the sky in total wonderment at how the comet of such great promise vanished into nothingness with such terrible haste.

Oligarchs do not approve of the 19th Amendment because it makes for a level playing field. Oligarchs need a legal system that is skewed to work in their favour, so that their illegal behaviour rarely gets punished. And they sustain all of this by financing elections. Under the Rajapaksa regime and the 18th Amendment they had the best of two worlds - rule of law and word of one man. Under the 19th Amendment it is the rule of law pure and simple.

Oligarchy works because its leaders institutionalise their power through law, media, and political rituals. How can we change this terrible system? There is only one way out. We must create a more economically equal society.

The problem arises here and it explains the editorial demand in the ‘Sathi Aga Aruna’. Why should the oligarchs allow such policies that reduce their wealth and make society more equal. If they can keep the people divided, they have little to fear from the occasional protest or even a fast unto death.

There is hope. Oligarchic institutions are subject to rot and collapse, as all are human institutions. With our solidarity as we have demonstrated since 26 October, we can use this opportunity to bring government back to the people.

At such a point in time, the people will unite for long enough that their protests will lead to such power, that we may compel Parliament to adopt the 20th Amendment and abolish the abomination of the executive presidency by a referendum and a general election. The question before us is whether democracy will emerge from such an oligarchic breakdown – or whether the oligarchs will just strengthen their grasp on the levers of government.

These are strange times. Maharajah type oligarchs are hobnobbing with extreme patriotic demagogues.

WHY DIDN’T THEY TELL SIRISENA THAT? – DR NIHAL JAYAWICKRAMA

09/12/2018

The President appears to believe that he still possesses the full executive powers he derived from the Constitution when he was elected to his office in January 2015. Three months later, he sat during a tumultuous session in Parliament and witnessed the passage of the 19th Amendment to the Constitution, introduced by the Government of which he was the Head.That Amendment removed all his executive powers except three which he still enjoys: the power to appoint ambassadors, the power to appoint ministry secretaries, and the power to appoint provincial governors. Even these cannot be exercised by him unilaterally. For example, the Foreign Minister has to seek the “agrement” of the receiving state before he could name an ambassador. Why didn’t they tell him that?
The President believes that he has the power to remove the Prime Minister. Yes, he had that power, but once upon a time. The 19th Amendment explicitly repealed that power. Why didn’t they tell him that?

The President believes that he can decline to appoint as Prime Minister the Member of Parliament who “is most likely to command the confidence of Parliament” even after an absolute parliamentary majority has identified such a Member. Why? Because he does not like him and thinks he cannot work with him. The Constitution does not state that the President must like, love or adore such Member. The Prime Minister is not the President’s employee. Why didn’t they tell him that?
The President is required to determine the number of Ministers, but the 19th Amendment says that the total number of Ministers shall not exceed thirty. The number that the President determined in August 2015 was well in excess of that. He could have exceeded that number only if the party that secured the highest number of seats in Parliament formed a “National Government”. A National Government is defined in the 19th Amendment as a Government formed by such party “together with the other recognized political parties”. A UNF- UPFA Government (leaving out the TNA, JVP, etc) is a coalition government, not a National Government. Why didn’t they tell him that?

The President believes that he can change the composition of the Cabinet. There was a time when he could have done that. However, the 19th Amendment states that a Minister or Deputy Minister may be removed from office “under the hand of the President on the advice of the Prime Minister”. Therefore, the process of removing a Minister or Deputy Minister now must be initiated by the Prime Minister, and it is only on the Prime Minister’s advice that the President can make a removal order or change the composition of the Cabinet. Why didn’t they tell him that?

The President believes that he can dissolve Parliament at any time. Once upon a time, he could have done that. Today, the 19th Amendment states that he can do so only in the last six months of Parliament’s five-year term. If he wishes to do so earlier, he needs to obtain the consent of two-thirds the membership of Parliament expressed in a resolution to that effect. He believes that the general power to dissolve Parliament included among his powers and functions enables him to exercise that power at any time. He is obviously unaware of the rule of law that a general power is circumscribed by a later provision that specifies how (by proclamation) and when (after four and a half years) that power may be exercised. Why didn’t they tell him that?

The President believes that he can refuse to accept a resolution of Parliament because, in his view, it had not been properly passed. The President has no control over parliamentary proceedings. That is entirely a matter for the Speaker. It is only the Speaker who can determine whether or not parliamentary proceedings have been properly conducted. Neither the Executive (of which the President is head), nor the Judiciary can pronounce upon the propriety or legality of parliamentary proceedings. Several years ago, when the Judiciary under Chief Justice Sarath Silva attempted to prevent the acceptance by the Speaker of a parliamentary resolution, Speaker Anura Bandaranaike, acting on expert legal advice, rejected that move and defined where the boundary lies. Why didn’t they tell him that?

The President appears to believe that, in the absence of a Prime Minister and Ministers, he can administer the government through the ministry secretaries. The 19th Amendment specifies the proper sequence: (i) The President appoints the Prime Minister; (ii) The President determines the number of Ministers and the Ministries, and the assignment of subjects and functions to such Ministers; (iii) On the advice of the Prime Minister, the President appoints the Ministers to be in charge of the Ministries so determined; (iv) The President appoints a Secretary for every Ministry of a Minister; (v) The Secretary, subject to the direction and control of his Minister, exercises supervision over the departments of government and other institutions in charge of the Minister; (vi) The Secretary to a Ministry ceases to hold office upon the dissolution of the Cabinet of Ministers.
Apart from the fact that a Secretary functions under the direction of his Minister, and not of the President, the Constitution states that, if and when the Cabinet stands dissolved, every Ministry Secretary ceases to hold office. Why didn’t they tell him that?

The President believes that he can ignore three repeated resolutions of Parliament expressing a lack of confidence in the “Government” of Mahinda Rajapaksa. Article 48(2) of the Constitution states that if Parliament passes a vote of no-confidence in the Government, “the Cabinet of Ministers shall stand dissolved”, and the President “shall appoint a Prime Minister, Cabinet Ministers, and Deputy Ministers”. He has not done so for several weeks and, acting utterly irresponsibly, has thereby introduced an anarchic situation into the country. This country belongs to all of us who live in it, and not to a single individual who appears to believe that he can act according to his own whims and fancies. Has no one told him that?

-The Island (original Caption: Why didn’t they tell the President? )

THE JUSTICIABILITY OF PRESIDENTIAL ACTS

ASANGA WELIKALA- 12/09/2018

In a week of high-stakes litigation in the two highest courts in the land, a key question in the public discussion over the continuing constitutional crisis in Sri Lanka has focused on whether the presidential act of dissolving Parliament on 9th November is justiciable. That is, whether this presidential decision – second only in significance to the question whether the President can dismiss a Prime Minister and appoint another at his sole discretion – can be judicially reviewed in the courts.

I have discussed the overarching constitutional framework for the dissolution of Parliament following the changes made by the Nineteenth Amendment elsewhere. However, more specifically at the heart of the current constitutional litigation is this question: what is the scope and nature of the legal immunity granted to the President under the Constitution when his actions are challenged? It is important to unpack the competing arguments in order for us to form a view about whether or not the Supreme Court can determine if the President has acted in violation of the Constitution, and if so, quash the presidential act of dissolution.

The defence of the President’s course of action can be summarised in the following terms:

1. The Supreme Court has no jurisdiction to entertain a legal challenge to the President’s act of dissolving Parliament, because any allegation that the President is acting in violation of the Constitution or abusing his powers in doing so, is not for the courts but for Parliament to deal with according to the procedure for the impeachment of the President (Article 38). That procedure has not been invoked by Parliament.
2. While, after the Nineteenth Amendment, the Supreme Court has jurisdiction to entertain fundamental rights applications in respect of presidential actions, this can only be invoked if the impugned act falls within the scope of ‘executive and administrative action’ as contemplated by Article 126 (Article 35). The dissolution of Parliament is not such an executive and administrative action, because it is a power exercised by the President as the Head of State under Articles 33(2)(c) and 70(1) read with Article 62(2). If the Supreme Court holds that the power of dissolution is an executive and administrative action so as to activate the court’s jurisdiction over fundamental rights under Article 126, then that would be a usurpation by the court of a presidential power over which the Constitution grants the President legal immunity from suit.
3. In any case, a dissolution of Parliament cannot be a violation of fundamental rights, because a dissolution leads to a general election in which the people exercise their franchise, and as such it is an enhancement of their fundamental rights.
4. The President’s power of dissolution is a ‘prerogative’ power, and prerogative powers are not subject to judicial review.
5. The President’s power to dissolve Parliament is a ‘political question’ and as such a category of political decision-making which it is inappropriate for courts to interfere in.

While points (1) and (2) are based on the interpretation of the text of the Constitution, (3) to (4) go much further in making propositions about more general matters in constitutional law and politics. Let us consider each in turn.

1. Is legislative impeachment rather than judicial review the proper constitutional procedure for addressing allegations of presidential misconduct?

Like many democratic semi-presidential systems, the Constitution contemplates both legal and political forms of accountability for the President. The President is politically accountable both to the people and to Parliament. Political accountability is ensured through a number of devices and procedures, with general principles and routine procedures governing day-to-day conduct, and more specific and consequential mechanisms to deal with serious abuses. These include his election by the people, the two-term limit, his responsibility to Parliament, his attendance in Parliament, the answerability of the Cabinet (of which he is the head) to Parliament, the explicit statement of his duties and responsibilities, the general principles of democracy and constitutionalism underpinning the Constitution (which envisage a functioning democracy including through the freedom of the media), through to the exceptional procedure informally known as ‘impeachment’ which can be invoked by Parliament for the removal of the President from office in cases of serious misconduct or incapacity.

The Constitution also contemplates the President’s legal accountability, subject to certain limits defined by the extent of legal immunity that the President is granted. The entire Constitution is based on the Rule of Law, and therefore there is the strong presumption that the President will generally act in good faith in compliance with the law and the Constitution (Visuvalingam v Liyanage (No.1)[1983] 1 SLR 203). However, for reasons of efficient government and in keeping with the norms of other presidential and semi-presidential systems, the Constitution also protects the President from legal proceedings while in office. This framework of presidential legal immunity is governed by Article 35, which establishes the general immunity subject to specific exceptions. As they relate to the present discussion, the following are the applicable rules:

1. The person holding the office of President is immune from civil or criminal proceedings for anything done or omitted to be done by him in either his official private capacity.
2. A declaration of war or peace by the President is covered by absolute immunity.
3. The President enjoys no immunity against a judicial enquiry by the Supreme Court as part of impeachment proceedings.
4. The President enjoys no immunity against legal proceedings challenging his election to office, or the validity of a referendum.
5. Legal immunity applies only so long as the person holds the office of President.
6. The immunity only shields the doer and not the act (Karunatilake v. Dayananda Dissanayake (No.1)[1991] 1 SLR 157). The courts can declare a presidential act unconstitutional, and while immunity shields the person of the President from any punitive consequences of such unconstitutional act, no other person may rely on the unconstitutional presidential act.
7. The immunity only extends to civil and criminal proceedings. While Article 35 prior to the Nineteenth Amendment covered all forms of legal proceedings, the Nineteenth Amendment restricted this to ‘civil and criminal proceedings’, and necessarily so, because it introduced a public law limitation on presidential immunity by subjecting anything done or omitted to be done by the President, to the fundamental rights jurisdiction of the Supreme Court. Accordingly, any presidential action can be challenged by any citizen under Article 126 if it violates or imminently violates a fundamental right, by filing action against the Attorney General.

From this it is clear that the Constitution subjects the President to legal accountability as well as to political accountability. There is therefore no substance in the argument that impeachment is the only way in which the President can be held accountable. The question is not either/or. Like in any other democratic constitution, both forms of executive accountability are envisaged by our Constitution and the two methods are complementary to each other.

2. Is the presidential act of dissolving Parliament within the scope of Article 126?

There is no sustainable distinction to be made between presidential acts that constitute ‘executive and administrative action’ within the scope of Article 126, and those that are beyond it as executive acts of the Head of State. Article 126 establishes the jurisdiction of the Supreme Court to determine applications concerning violations of fundamental rights. It was a significant innovation of the 1978 Constitution to enable individual petitions to be made to the highest court to vindicate the fundamental rights recognised by the Constitution, against actions of the government. There is nothing in Article 126 that makes a distinction between high acts of the Head of State such as the dissolution of Parliament, and subordinate administrative actions. To do so would have been to weaken the protection for fundamental rights offered by Article 126, and even to raise the President above the law. There is nothing anywhere in the Constitution to suggest that the framers intended the President to have the freedom to act in violation of constitutionally entrenched fundamental rights. And even if such a distinction was tenable prior to the Nineteenth Amendment, it is no longer possible to do so, because the Nineteenth Amendment specifically extended the reach of Article 126 to presidential acts (albeit maintainable against the Attorney General rather than the President himself). This was part and parcel of the whole raft of reforms made by the Nineteenth Amendment, the clear and unambiguous purpose of which – and the mandate of the President elected in January 2015 – was to cut back the powers of the executive presidency.

The assertion of the Supreme Court’s jurisdiction to hear and determine the pleading that the purported dissolution of Parliament on 9th November – prima facieagainst the provisions of the Constitution – violates citizens’ fundamental rights therefore is no usurpation of a presidential discretion. It is simply the courts carrying out their constitutional duty to uphold the Constitution and the Rule of Law to determine if the President has acted validly within his constitutional powers, and in doing so, whether or not any fundamental rights protected by the Constitution have been violated.

3. Is the dissolution of Parliament leading to a general election an enhancement rather than a violation of fundamental rights?

This is an unworthy argument. It is trite that the franchise is one of the most important of rights of the citizen in a democracy. It does not, however, follow that elections can be called in violation of established legal and constitutional procedures, at the whim of an individual called the President, for reasons that are manifestly mala fideand partisan. Appealing to the people in contravention of established procedures is populism, not constitutional democracy. As historical experience shows, populism leads to the destruction of democracy, constitutional rights, and possibly even the franchise itself, not to their enhancement.

It also begs this question. When the people voted in a Parliament in August 2015, they did so in the knowledge of the Nineteenth Amendment that it would be a Parliament elected for five years, which could only be dissolved in the first four and a half years of its term by a resolution passed by two-thirds majority. Even more widely known was the fact that the Nineteenth Amendment had curtailed presidential powers, including the power to dissolve Parliament at will. In August 2015, the people of Sri Lanka were approving and renewing the mandate in January 2015 for further constitutional reforms to democratise the state and to finish the unfinished business of abolishing the executive presidency. To uphold an unconstitutional and illegal presidential act to dissolve a Parliament that was vested with such an important mandate therefore is a rejection of the people’s will. A President that engages in such an unconscionable repudiation of his own mandate and that of his governing coalition cannot be defended by arguments based on the franchise.

4. Is the President’s power of dissolution a prerogative power immune to judicial review?

That the President of Sri Lanka enjoys (pre-constitutional, meta-constitutional, or extra-constitutional) prerogative powers is an argument without any foundation whatsoever. Stemming from a poor understanding of both constitutional history as well as the British constitutional concept of prerogative powers, this argument seems to be to the effect that the President continues to enjoy certain residual powers not expressly mentioned in the written constitution that are derived from the royal prerogatives of his British predecessors as Head of State.

The royal prerogative remains a source of governmental power and thus a source of constitutional rules in the United Kingdom. They are surviving relics of the ancient constitution, from pre-democratic times when the monarch took an active part in executive government. As the Supreme Court of the United Kingdom stated in R (Miller) v. Secretary of State for Exiting the European Union[2017] UKSC 5 at [47]:“The Royal prerogative encompasses the residue of powers which remain vested in the Crown, and they are exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation.”Or as Colin Munro defines it, “The royal prerogative may be defined as comprising those attributes belonging to the Crown which are derived from the common law, not statute, and which still survive.”

As remnants of the medieval constitution, they exist as long as Parliament allows them to exist. Like any other part of the common law, Parliament can by statute abolish or change the prerogative.A good example directly relevant to the present discussion is where the Queen’s prerogative to dissolve Parliament on the advice of the Prime Minister was abolished and a new statutory framework for this purpose put in place by the Fixed-term Parliaments Act 2011. A prerogative power can be reduced or abolished, but no new prerogatives can be created and they cannot be extended. The Crown cannot claim a new prerogative has come into existence, or that an existing one has been enlarged; it is “…three hundred and fifty years and a civil war too late” for that, as Lord Diplock put it in BBC v. Johns [1964] All ER 923 at 941. Of course, Parliament can and does create new powers for the executive (the Crown) all the time. But these are statutory, not prerogative, powers.

Prerogative powers could no doubt be relevant where the written constitution was silent or unclear in the period between 1948 and 1972 when Ceylon was a Dominion (videCeylon (Constitution) Order in Council 1946: s.4(2)). However, when Sri Lanka became a republic in 1972, the constitutional links through which the prerogatives of the British Crown applied in Ceylon were completely severed. While the 1972 Constitution emulated the Westminster model, its terms were self-contained within the text of the new written constitution. The same is true for its successor, the semi-presidential 1978 Constitution. Thus, the royal prerogative as a source of executive power did not survive the constitutional revolution of 1972 and the formation of the republic. To the extent that these two republican constitutions contain provisions that resemble the Soulbury Constitution, they are mere replicas and not continuations of a constitutional source of power.

Moreover, the royal prerogative is unique to the peculiarities of British constitutional history and its uncodified constitution. It may apply in other Commonwealth constitutional monarchies through specific retention, but it ceases to exist when a written constitution is made for a republic. It does not survive other than as an inspiration for an extra-legal assertion of latent authoritarian power by republican executives. There is therefore no concept of prerogative power recognised by the 1978 Constitution. All the powers that are granted to the President are those enumerated in the Constitution and what might be inferred from them through the interpretation of the text. In this context, to assert that the President enjoys prerogatives unmentioned in and unregulated by the written Constitution is to question the very character of the Sri Lankan state as an independent and democratic republic.

5. Does the ‘political questions doctrine’ apply to the dissolution of Parliament under the Sri Lankan Constitution?

The ‘political questions doctrine’ is a judicially developed doctrine in American constitutional law (although there are appearances of it in many other common law countries as well as in the jurisprudence of the Court of Justice of the European Union and of the European Court of Human Rights through the ‘margin of appreciation’) that affords judicial deference to the political branches in matters that are inherently political rather than legal. The rationale of the doctrine derives from notions of the separation of powers, whereby the courts are or ought to be concerned exclusively with legal questions. In countries where courts have the jurisdiction to interpret a written constitution and police the legality of the actions of the political branches, the purpose of the doctrine is to act as a safeguard against judicial overreach, although not as a self-denying ordinance to denude the courts of their essential constitutional role in upholding the constitution and the Rule of Law against especially executive abuses.

A question of judicial overreach is not the situation we are confronted with in Sri Lanka. The role of both political branches in relation to the dissolution of Parliament is stated in the Constitution. Even though the provisions are clear, President and Parliament have reached a seemingly insurmountable deadlock. An unprecedented constitutional crisis has ensued, with major implications for the political stability and economic well-being of the country. Under the Constitution, the Supreme Court is the final arbiter and interpreter of its meaning. It would be difficult to imagine a worse case in which to apply the political questions doctrine and take the courts out of the equation than the current Sri Lankan constitutional crisis. The crisis insofar as the legal disputes are concerned can only be resolved by the courts. Their task is simply to determine with independence, impartiality, clarity, and finality, the disputed meaning of the relevant constitutional provisions. In such a situation, there is no scope whatsoever for the political questions doctrine to apply.

Conclusion    

For all the reasons canvassed above, it is clear that presidential acts under the Sri Lankan constitution are justiciable, and that the President’s purported act of unilaterally dissolving Parliament on 9th November 2018 is subject to the fundamental rights jurisdiction of the Supreme Court. There have been no plausible arguments presented that serve to oust the jurisdiction of the Court, or other constitutional or policy considerations that preclude the Court from hearing and determining the legality of this disputed action with finality.