Tuesday, December 11, 2018

From JR to MS: Executive presidency and abuse of power They ought to be held accountable even after retirement

2018-12-12

In 1978, when the all-powerful executive presidency was introduced, LSSP stalwart N.M. Perera asked what would happen “if the presidency goes to a mad man”? The manifest limits of due process and absence of checks and balances against the behaviour of the incumbent has raised that pertinent question once again. Sri Lanka has never addressed this constitutional lacuna in full. Tinkering of the Constitution has not helped either.

J.R. Jayawardene, the first executive was not insane, but he was destructively opportunist. He drafted the 1978 Constitution to serve his personal and political ambitions and then tinkered it for 13 times. He was also an arrogant old man, full of ego (who was finally put in his place by young Rajiv Gandhi), a false god among a dozen other so-called national leaders.

The executive presidential system was introduced as means to address urgent and unique problems of economic development that the third world countries are faced with. However, its track record as an enabler of economic development and JR’s oversized stature ought to be gauged in comparison to the latter’s contemporaries of the same ideological vein: Lee Kuan Yee, Mahathir Mohammed, Suharto, and even Augusto Pinochet, some were bloodier than others, but they all uplifted their countries through right leaning authoritarian model. JR is a none-entity in this equation.

executive presidency introduced as means to address urgent/unique problems of economic development that third world countries are faced with
JR did not clean up the mess he created, instead he handed over a burning nation to his successor, Premadasa
MS a victim of his own prejudices against Ranil. Also, he seems to be a hostage of his self-interested political/legal advisers, the quality of whose advises beg the question of their true motives vis a vis the preZ

But he proved to be extra calamitous. His arrogant handling of State affairs created far- reaching political instability, and gave rise to two insurgencies in the North and the South. Effectively, mayhem he sawed killed more people per capita, than any of the right-wing leaders of his time. Pinochet looked like a convent nun.

JR did not clean up the mess he created, instead he handed over a burning nation to his successor, R. Premadasa. Nor did he create prosperity. Economic growth was dismal 4 per cent, despite the low GDP base of the country at the time (Whereas Mr. Premadasa, during his short tenure, defeated a moronic insurgency and doubled down on economic development).

The executive presidency easily fit into the political, electoral and social conditions of some countries, French model being often cited as a perfect constitutional arrangement. However, it did not work for Sri Lanka. Here and in a good part of the third world countries, it created all-powerful, nepotistic, tyrants and despots.

There are two main reasons for that. One is the institutional explanation; Sri Lanka, say for instance, unlike France or America, lacked independent institutions that can moderate the behaviour of an all-powerful president. Conversely, powers of executive presidency have weakened the mandate of these institutions.

The second is (a politically incorrect) an orientalist explanation: Leaders and people of this part of the world are inherently less principled, among other things, in constitutional governance. This is a product of their civilisational exercise. In these societies, electoral democracy did not necessarily promote rational choice. Rather, it emboldened the grassroots ugliness and provided it with a representation at the highest level of political offices. For instance, in India, 34 per cent of the MPs in Lower House are either convicted or facing criminal charges in courts, according to a study by Milan Vaishnav of Carnegie Endowment for Peace. Interestingly, according to the same study, politicians who are facing serious charges have more chance (18%) of winning his or her race, compared with a less rowdy rival (6%).

Such grassroots conditions also foster contempt for constitutionalism. Politicians are betting on the grassroots’ ignorance when they brazenly violate the Constitution and justify their action in a bout of populism. However, the current political crisis in Sri Lankais different from the past. Old habits of political class die hard. The retrograde electorate that tolerated such old antics had not withered away. However, new laws have been enacted to lessen the absolutism of the executive presidency. That task was achieved, to a great degree, first by the 17th Amendment (much of which was annulled by the 18th Amendment) and then by the 19th Amendment, which set limits on the president’s power to dissolve Parliament, until the completion of fourand a half years of the House, and also set up independent commissions, depoliticising key organs of the government.

Therefore, the current behaviour of the president is no longer supported by the Constitution. In contrast, it is unconstitutional. Mr. Sirisena, by repeatedly refusing to accept the verdict of three consecutive no-confidence motions, has violated the Constitution. His bragging that he would not appoint Ranil Wickremesinghe as prime minister, even if the latter is ‘supported by 220 Members of Parliament’ smacks of contempt towards Constitution and constitutionalism. His open admission to , in an interview with Kelum Bandara, that Mahinda Rajapaksa could have won the support of 113 MPs, if he had enough money to cough up as bribes, borders a confession of complicity in bribery.
Unlike J.R. Jayawardene, whose abuse of power of his office was justified in the text of the Constitution, Mr. Sirisena has no such constitutional grounds to find refugee. In that sense, the president has made himself liable for an impeachment.

Under Article 38 of the Constitution, any Member of Parliament by a writing addressed to the Speaker, can give notice of a resolution alleging that the president is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the president has been guilty of—
(i) Intentional violation of the Constitution;
(ii) Treason;
(iii) Bribery;
(iv) Misconduct or corruption involving the abuse of the powers of his office; or
(v) Any offence under any law, involving moral turpitude and setting out full particulars of the allegation or allegations made and seeking an inquiry and report thereon by the Supreme Court.
Such a resolution should be signed by a two-thirds majority or signed by more than half of the Members of Parliament and the Speaker be satisfied that such an allegation warrant inquiry and report by the Supreme Court.

Impeachment of the president should then be passed by no less than a two-thirds majority in Parliament voting favour. Then, allegations contained in such a resolution are reported to the Supreme Court by the Speaker. After which the Supreme Court conducts a due inquiry into the allegations and informs its determination to the Speaker. Should the Supreme Court determine that the president is incapable of discharging the duties of his office or guilty of allegations outlined in the resolution, Parliament may, by a resolution passed by a two-thirds majority voting in favour, remove the president.

However, exhaustive procedure aside, the practical question is about the numbers. The UNP is well short of a two-thirds majority to impeach the president. However, there is another school of thought that it is only the president in person, and not his actions, that are immune from prosecution. In that sense, once he cease to be the president, Mr. Sirisena can be charged before the court of law for violating the Constitution.

According to Article 35 of Constitution, (1) While any “person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the president in respect of anything done or omitted to be done by the president, either in his official or private capacity: 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”.

Article 126 states that the Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognised by Chapter III or IV of the Constitution.

The president’s earlier incline to rescind the gazette notification on dissolution of Parliament was attributed to these concerns. However, talks with the UNP broke down last week after the UNP insisted on Ranil Wickremesinghe as prime minister.

Subsequently, the UNP withdrew a fourth no-confidence motion, which it had earlier agreed to table in Parliament, on the advice of the president. It expressed for the forth time, no confidence in the government of Mahinda Rajapaksa, and requested the president to appoint a new government. The UNP withdrew the motion after the collapse of the talks with Mr. Sirisena.

Sirisena is a victim of his own prejudices against Ranil Wickremesinghe. Also, he seems to be a hostage of his self-interested political and legal advisers, the quality of whose advises beg the question of their true motives vis a vis the president.

A good deal of Mr. Sirisena’s fate hangs on the two court rulings; the Supreme Court ruling on the dissolution of Parliament and Quo Warrento before the Appeal Court questioning the constitutional basis under which the purported government of Mahinda Rajapaksa and his Cabinet were appointed. Both courts have issued restraining orders against the dissolution of Parliament and the exercise of powers of the government by Mr. Rajapaksa and his ‘Ministers.’

Both rulings are expected to be issued this week, before the court vacation begins on December 14.
The president had said he would respect the court rulings. However, he has repeatedly gone back on his word since he himself triggered the current constitutional crisis five weeks ago. The question of 20 million people is what would happen if the president ignores the court ruling. At the root of the current stalemate is his refusal to appoint Mr. Wickremesinghe as prime minister, despite the UNP and TNA, which collectively command 120 votes, have in writing expressed their support to the latter. Unless the Appeal Court that hears the Quo Warranto restores Parliament that existed before October 26 -- whether it has a mandate to do so is open to legal interpretation -- it is unlikely that the current crisis would end, even if both court rulings are issued in favour of the petitioners.

Maithripala Sirisena is exploiting this lacuna. He knows he is unlikely to be impeached immediately. He also knows that Constitution is bereft of means to hold a serving president accountable.

However, if the Sri Lankan democracy is to set a deterrent against the abuse of power by the holders of high offices, the long-arm of justice should reach them even after retirement.
Follow @RangaJayasuriya on Twitter

Protest against land-grab for relocation of police dept notorious for abuses

181210 Chunnakam police (1).jpeg

10 December 2018

A demonstration was held in Jaffna against a planned land-grab to relocate a police department notorious for human rights violations.

The protest outside Uduvil district secretariat on Monday condemned attempts to relocate Chunnakam police station to privately-owned land in a residential neighbourhood.

Locals said they did not want Chunnakam police, who have a record of torture and murder, in their midst.

With the police department required to vacate its current premises on private land on the Chunnakam – Punnalaikattuvan road, the Sri Lankan government has been seeking a replacement property for the station.

It had initially been decided that the police department would relocate to a state-owned land on the same road, opposite the local veterinary surgery.

However Chunnakam police refused the suggestion, claiming that the land was incompatible with the department’s needs, identifying instead a property close to the KKS road, belonging to a member of the Tamil diaspora.

Action was then commenced to seize the land and hand it over to Chunnakam police.

Protesters against the move condemned the land-grab of private land and stressed that the Chunnakam police station should not be built in their neighbourhood.

A petition outlining their concerns was also handed over to the Uduvil divisional secretariat.

Capital crisis, as seen from Sri Lanka’s countryside

K.P. Somalatha, left, a farmerâ€™s organisation leader; and Chandrani Mendis, a farmer, in Monaragala.

K.P. Somalatha, left, a farmer’s organisation leader; and Chandrani Mendis, a farmer, in Monaragala.

Monaragala, among the poorer districts, has been hit badly

Meera Srinivasan
-DECEMBER 10, 2018 22:10 IST

For Chandrani Mendis, the political crisis gripping Sri Lanka since October 26 has had a specific cost — her pension for November.

“After my husband died, I had been receiving 250 rupees (roughly ₹100) a month as an allowance, but they stopped it last month,” said the 60-year-old, seated in her modest home in Wellawaya, Monaragala district, located in the Uva Province.

As the country’s political unrest persists amid battles in Parliament and the courts, governance has taken a severe beating, with no legitimate administration in place for weeks. About 250 km away from Colombo, people feel the crisis intimately, in the abrupt halt to financial assistance, subsidies and children’s free school uniforms.

A Rajapaksa stronghold

Home to some 4.5 lakh people, Monaragala is among Sri Lanka’s poorest districts and part of former President Mahinda Rajapaksa’s stronghold in the island’s Sinhala-majority south. His new party made huge gains here when it swept the country’s local polls in February. “Even after this crisis, my friend says that he [Rajapaksa] ought to be worshipped. I told her ‘fine, light a lamp and worship him then’,” Ms. Mendis said, laughing.

For supporters, Mr. Rajapaksa is the “strong leader” who ended the country’s civil war. More so in places like Monaragala, where scores of young men joined the Army during the war to combat poverty. However, despite his appeal, some like Ms. Mendis are sceptical of Mr. Rajapaksa’s recent bid to come back to power, after President Maithripala Sirisena appointed him Prime Minister in place of incumbent Ranil Wickremesinghe seven weeks ago. “You can’t suddenly make someone the PM like that.”

Not that the Sirisena-Wickremesinghe administration gave them much to look forward to. “They did very little to bring down costs of essentials. There is a lot of talk about the [2015 Central Bank] bond scam, I don’t know what exactly happened. But the fact is they did not do anything for the people,” said Ms. Mendis, who grows vegetables for a living.

While the district may have welcomed a “change” in the next poll, not all are convinced that “change” entails “difference”. “Everybody is after power. Even in Parliament, they are talking about who should form government, not what all this means to ordinary people like us,” said Ms. Mendis.
I.H. Ratnaseeli, also a farmer, expressed a similar view. “Whether the government changes legally or illegally, high costs of living don’t change. Everything from medicines to essentials are so costly,” she said.

Decades-long neglect

Their emphasis on living costs and commodity prices is not incidental. The lush-green surroundings, gleaming after a recent spell of rain, belie Monaragala’s story of decades-long marginalisation and neglect.

Beginning in the 1980s, several thousand farmers lost huge plots of land to multinational companies that set up operations here in a recently liberalised economy. That is how the resource-rich area was dragged to the bottom and became one of the country’s poorest districts, according to K.P. Somalatha, president of the Uva Wellassa Farmer Women’s Organisation.

“From the 1980s, farmers lost their lands and ended up working in these big farms as labourers. Except that what they grew was not for them to eat. It was mainly for the export market,” she said. Even the Uma Oya irrigation and hydropower project, which Mr. Rajapaksa initiated, services his home district Hambantota more than it does Monaragala, she pointed out. People’s poverty, in her view, had political value for leaders. “If we stop being dependent on them, then how will they build patronage networks for votes?” she asked.

“As long as people are poor and helpless, they will be forced to worship leaders for the crumbs they throw. Leaders will thrive on this culture of dependence,” according to Ajith Agalakada, local politician from the Janatha Vimukthi Peramuna (JVP).

For the district to get out of the poverty trap, factories that add value to local production, for local consumption, are key. “Otherwise people will be left at the mercy of leaders like Rajapaksa, who wants to be king and the people to be subjects, not citizens.”

We don’t want an executive presidency

Wednesday, 12 December 2018

The executive presidency was established in 1978. Since then there has never been as much hope for its abolishment as there is right now. It however still requires many actors to come together to work towards its abolishment.

To assume President Maithripala Sirisena is completely oblivious to the unpopularity of his actions is naïve. His relative calm manner can be attributed to a lack of consequence to his actions

The 20th as brought to the house by the JVP is agreeable to all stakeholders. It will require a bipartisan movement within Parliament to pass. Civil society must now press for its legislative passing. If brought to the current parliament it should pass. Both prime ministerial hopefuls will support it.

Why Parliament supports the 20th
Put in other words: Why would Members of Parliament support it? It would increase the powers of Parliament. Such legislative movement is also made possible by the lack of MPs within Parliament that are loyal to the President. Most public support is split between the UNP and thereby its Leader Ranil Wickremesinghe and Mahinda Rajapaksa.

The proposed Amendment1 reads in a certain section;

“Provided that, notwithstanding anything to the contrary in the Constitution, the person so elected as President shall, unless he ceases to hold office in accordance with the provisions of the Constitution, continue to hold office until a President is elected by the next Parliament.”

To assume Sirisena is completely oblivious to the unpopularity of his actions is naïve. His relative calm manner can be attributed to a lack of consequence to his actions. He is hoping to run a smear campaign of his own against any who politically stand against him. Even if he fails at the Supreme Court it will still be very difficult to remove him. He remains in control of the SLFP.

Abolishing the executive presidency is popular. Further Mahinda and Ranil seemed to be acting in some form of agreement towards more parliamentary power. Since the current President has signalled that he is against holding a presidential poll2 and that his party has gone so far as to snub CBK3 it is likely that he will use his command of the SLFP and its MPs to negotiate a scenario whereby he retains the presidency. He is already working on positioning himself as a statesman amongst his voter base4. Also, by contesting under a common symbol he has prevented any direct comparison of popularity to the former strongman. He further has the backing of a powerful shadowy media network.

Why the executive presidency is bad

Public resentment against the post of an executive president is both widespread and longstanding. Every single elected president since its establishment would have been charged in courts for criminal activity. The holding of absolute power has resulted in political killings and widespread corruption. It has used this absolute power to greatly weaken democratic institutions. The SLFP has campaigned on multiple occasions for its abolishment. The Yahapalanaya Government also received its mandate on the promise of its abolishment but later pulled back5 with many blaming the SLFP leadership.

The executive presidency, much like British colonial rule, divides the country ethnically in a bid to remain in control. It is majoritarian and benefits from ethnic divides. It takes economics out of politics. Rich and poor within ethnic minorities vote the same way. It was designed by a sociopath (JRJ) to maintain UNP power. This did not work as planned. The civil war prevented ethnic minority participation in politics and further galvanised the ethnic majority to band together.
In terms of defence
Almost all executive presidents have poked into the black box of defence spending in their own monetary interests. Further many have used the army against its own citizenry6. The crimes of the military forces against the people of this country is longstanding and cuts through all ethnicities and socio-economic groups. Both major political parties are responsible.

Releasing land in the north is in the interests of national security as it allows people to have economic opportunity which prevents them from pursuing an agenda against the State. Land release is prevented by a President who lends his unaccountability to the defence forces.
In terms of development
To suggest that the executive presidency is required to push development projects is not based on any self-respecting perspective of the Sri Lankan people. Sri Lankans can support development projects through a parliamentary system. Stakeholder participation and compromise are good for development projects as they ensure that the development is as inclusive as possible. Parliament provides a means for transparency in terms of procurement.

Major projects have been completed in Sri Lanka under presidents. Critiques argue whether the economic benefits outweigh the costs. Most would agree, doing so in the 2015 election, that though major construction was undertaken during the Rajapaksa regime there was little actual value. Value to the nation was delivered by the subsequent government. Renegotiation of contracts resulted in; changes of land rights from freehold to leasehold, repurchase of Hambantota Port at contracted values by China, and the right to information over any future negotiations. This was through parliamentary actions.

A parliamentary system is bad for white elephants. This is where the complexity and scale of operations allows for major theft of public funds. To develop we do not need such mega projects. Sri Lankans want HDI instead of just GDP.
In terms of sovereignty
The concept of sovereignty is defined as the full right and power of a governing body over itself. Sovereignty lies on a spectrum. For instance, European Union countries have foregone certain powers to the European Court of Justice. We must ask ourselves if a presidential system gives increased sovereignty over a parliamentary system. Does an ordinary Sri Lankan have more power in a presidential or parliamentary system?
Footnotes
1. https://parliament.lk/uploads/bills/pbills/gazette/english/1326.pdf

2. https://timesofindia.indiatimes.com/world/south-asia/no-early-lanka-presidential-poll-maithripala-sirisena/articleshow/65733104.cms

3. http://www.dailymirror.lk/article/I-was-not-invited-to-SLFP-special-convention-Chandrika-159444.html

4. http://www.dailynews.lk/2018/12/08/local/170711/president-opens-iranamadu-tank-fulfilling-promises-farming-community

5. https://www.colombotelegraph.com/index.php/exclusive-abolition-of-executive-presidency-comes-a-cropper-powers-to-be-pruned/

6. http://www.lankaweb.com/news/items/2016/07/18/black-july-33-years-ago/

Sri Lanka at Human Rights Day

by Thyagi Ruwanpathirana-Dec 10, 2018

( December 10, 2018, Colombo, Sri Lanka Guardian)

Until the political crisis that began on 26 October, when the sitting Prime Minister was removed and a new Prime Minister appointed by the President, Sri Lanka had been on a trajectory to deliver on several human rights commitments it had undertaken in 2015. When one considers the progress so far, it is inevitable to wonder whether the slow pace at which these reforms were implemented, contributed to the present crisis, especially the lack of accountability for serious human rights violations and crimes.

The international community welcomed Sri Lanka’s cooperation at the Human Rights Council to embark on a comprehensive transitional justice agenda. It is unfortunate that the government showed limited will to urgently address serious human rights violations such as enforced disappearances, extra-judicial killings and torture.

The gains made so far on the human rights front have attracted specific criticism from civil society and survivors, but they are significant steps in the right direction. On the other hand, throughout the year, incidents did take place which marred the human rights track record that Sri Lanka was touting internationally.

The much-awaited Office on Missing Persons (OMP) publicly released its interim report which made important recommendations.

Whether the cabinet subcommittee that was appointed to implement OMP’s recommendations will be reconstituted will be a legitimate concern following the political tug of war. Meanwhile, mothers of the disappeared have, for over 500 days, continuously protesting. They have yet to receive any answers from the government or the OMP.

The Act establishing the Office on Reparations was gazetted in October, despite civil society’s concerns around key decision-making powers over the Office’s work being concentrated within the cabinet. Whether this Office will come to fruition will depend on which government retains, or gains, power.

Victim groups of the war-affected in the North have been protesting continuously for release of their land from the military. Pockets ofprivate and State land remain under military control in conflict areas despiteassurances by the government that more land has been earmarked for release bythe end of 2018.

Sri Lanka committed to repealing its draconian Prevention of Terrorism Act (PTA), both before the Human Rights Council in 2015, and before UN treaty bodies. The Counter Terrorism Bill, attempts to provide better protection against torture and other ill-treatment, and to deter the admission of “confessions” elicited under torture, however it is far from perfect. Problematic aspects of the bill include permitting detention without charge for up to one year and ambiguity on critical definitions of what constitutes an offence of terrorism. The bill is far from being compliant with international human rights law, and has the potential to be used, as in the past, to target peaceful dissent against government.

March witnessed renewed ethnic violence against the minority Muslim community in both Digana and Ampara. In Digana, as mob violence increased and spread to neighbouring towns, the government responded by proclaiming an island-wide state of emergency, and restricting access to select instant messaging applications and social media platforms. These incidents speak to the communal tensions that continue simmering.

A magistrate’s court in June handed down a sentence to Secretary General of the Bodu Bala Sena (BBS), a hardline Buddhist group, for threatening human rights defender Sandhya Eknaligoda who has been pursuing justice for the enforced disappearance of her husband, Prageeth Eknaligoda. This was a rare case of victory for human rights defenders and also against Buddhist leaders rarely held to account for their actions. Soon after the verdict this year, Sandhya was smeared as a supporter of the LTTE and was taunted with threats of disappearance, death and violence against her children in a series of menacing social media posts.

2018 witnessed attacks on many more human rights defenders. In July, Srishobana Yogalimgam, an anti-enforced disappearances activist, was assaulted in Jaffna.

In July, unidentified motorists assaulted human rights defender Amitha Priyanthi and snatched the court documents of the case of her murdered brother which she is vigorously pursuing.

Shalin Uthayasara, a journalist at the Tamil Guardian, an online news portal, has faced continuous harassment from the military. He was threatened and interrogated about his work in the north of the country, through the year.

The possible return of the very people who are accused of committing frequent attacks on human rights defenders when they were in power, pre-2105 does not portend well. Jeyakumari Balendran, Lasantha Wickrematunge, Keith Noyahr, Prageeth Ekneligoda are a few victims of intimidation and attacks that were frequent pre-2015. The political crisis has brought back legitimate fears of returning to a past of rampant human rights violations.

Trade unionists loyal to the Rajapaksas threatened and took over key state media houses to control how reports of the former President’s controversial appointment was delivered to the public. If any evidence was needed at all of what might follow in the coming year, this was it. The weeks that have followed since have seen egregious violations including attempted transfers of key criminal investigators and intimidation of witnesses in cases involving the top brass of the defence establishment. They were indicators of the culture of impunity and practices Sri Lanka could return to.

A further cause for wariness is that there has been no accountability for members of the former government, accused of committing serious human rights violations, war crimes and crimes against humanity during the last stages of the war. This could lead to a reversal and potentially even stall the progress made so far on all four pillars of transitional justice: truth, justice, reparations and non-recurrence.

Sri Lanka is far from the success story many want it to be. Key commitments, and gains on the human rights front since 2015, however limited, may now be at risk of being reversed if Sri Lanka returns to the past. On Human Rights Day, while celebrating the twin anniversaries of 70 years of the Universal Declaration on Human Rights and Sri Lankan independence, perhaps these are sobering reflections of the year past. A past we must never return to.

Thyagi Ruwanpathirana is a Regional Researcher at Amnesty International

Slap In Sirisena’s Face: Sajith Will Present Confidence Motion On Ranil Tomorrow: UPFA Will Boycott Sessions

DECEMBER 11, 2018

Deputy Leader Sajith Premadasa will present the confidence motion in support of ousted Prime Minister Ranil Wickremesinghe in Parliament tomorrow.

Premadasa’s decision to present the motion is a strong indication that the UNP is squarely behind Wickremesinghe. Sirisena, on several occasions, attempted to appoint Premadasa as the Prime Minister through the back door, replacing Wickremesinghe.

Even last week, Sirisena made a desperate attempt to drive a wedge between Wickremesinghe and Premadasa by planting a fabricated story in the Mawbima and Ceylon Today newspaper, owned by controversial Parliamentarian Tiran Alles, saying the UNP leader had promised the Finance Ministry and the UNP Deputy Leader post to Ravi Karunanayake.

The UNP expects that 117 MPs – 103 from the UNP and 14 from the TNA – will vote in favour of the confidence motion on Wickremesinghe. The motion will position Wickremesinghe as the Member of Parliament commanding the support of a majority of Parliamentarians in the House.

The JVP parliamentary group, led by Anura Kumara Dissanayake, is expected to abstain from voting.

Human Rights Day protest in Colombo in solidarity with Tamil struggles

181210 Colombo human rights day 4.jpeg

Sinhalese and Tamil residents of Colombo protested at Fort on Monday, to mark International Human Rights Day and demonstrate solidarity with ongoing protests around the North-East and by up-country Tamils.

11 December 2018

Protesters called for the release of Tamil political prisoners and the release of military occupied land in the North-East, as well as for answers for enforced disappearances and the repeal of the Prevention of Terrorism Act (PTA) and the immediate halt of Sinhala colonisation schemes, particularly the Mahaweli scheme.

The protest also called for a minimum wage for tea estate workers, in line with the ongoing struggle by up-country Tamils to secure a minimum wage of 1000 Rs for a day's labour.

Motion against President's request to rush SC verdict on dissolution of parliament

Tue, Dec 11, 2018, 01:09 pm SL Time, ColomboPage News Desk, Sri Lanka.

Dec 11, Colombo: A motion has been filed before the Supreme Court against the President Maithripala Sirisena's request to expedite the verdict of the petitions on the dissolution of the parliament.

Attorney-at-law Aruna Laksiri has filed the motion.

Through his motion the petitioner says that the President's request to the Chief Justice Nalin Perera through the Attorney General to expedite the verdict on the petitions filed against the dissolution of parliament was publicized in the news media.

Attorney-at-law Aruna Laksiri said that such requests would lead to an impediment in examining the case.

The President can make such a request only through inquiries on a specific interpretation under clause 126 of the Constitution, he pointed out.

Accordingly, Attorney Laksiri has requested the Supreme Court to issue an independent judgment by holding a proper hearing of the case.

Addressing the Multiple Facets of Presidential Power

By Neville Ladduwahetty-December 10, 2018, 9:56 pm

This is in response to Dr. Nihal Jayawickrama’s (NJ) article in The Sunday Island of December 9, 2018 titled "Why didn’t they tell the President"?

Referring to the President’s powers under the 19th Amendment (19A), NJ states: "That amendment removed his executive powers except three which he still enjoys: the power to appoint ambassadors, the power to appoint secretaries, and the power to appoint provincial governors".

Although NJ’s comment cited above is limited only to the "executive powers of the President", the fact that the President wears many hats, requires the multiple facets of his powers as defined under the 19A and the 1978 Constitution to be explored.

Article 30 (1) states: "There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces". Furthermore, as part of the inalienable sovereignty of the People, "the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People" (Article 4 (b) of 1978 Constitution.

My comments are from the perspective of fundamental concepts which are, that as the Head of State elected by the People, the President has certain powers that no Prime Minister would ever have, and as the single person to whom the sovereign People of Sri Lanka have reposed their executive powers, all others who exercise executive powers do so as powers derived from the President and no one else.

PRESIDENT as HEAD of STATE

Article 33 (1) of 19A states: It shall be the duty of the President to – and cites four duties that include; respecting and upholding the Constitution; promote national reconciliation; ensure functioning of Constitutional Council and ensure free and fair elections and referenda.

Article 33 (2) of 19A states: "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"—and cites eight duties among which is 33(2)(c). Accordingly, the President SHALL HAVE THE POWER "to summon prorogue and dissolve Parliament". This is NOT a "general power" as stated by NJ, but a very specific power similar to the power "to declare war and peace", that are universally accepted as powers exercised by the Head of a State.

Even under the amended Article 70 (1), "a resolution passed by not less than two-thirds of the whole number of Members" of Parliament has to "request" the President to "dissolve Parliament". Since all that Parliament can do is to "request" the President, it means that the discretionary powers to oblige the request or not lies entirely with the President. And if the President decides not to honour the request there is nothing that Parliament can do. This underscores why the power "to summon, prorogue and dissolve Parliament" in Article 33 (2) (c) was included as part of additional powers, duties and functions that are exercised by the President as Head of State. Consequently, Article 33(2)(c) exists because of amended Article 70(1) in 19A.

EXERCISE of EXECUTIVE POWER

NJ had on an earlier occasion stated that the UNF/UPFA coalition was not a National Government. My stand on this was no different. Several articles were presented on this issue one of which was "CB bond Scam and scams of another kind" (The Island January 8, 2018). A Fundamental Rights Petition was filed in the Supreme Court (S.C. FR. No. 116/2016) challenging the formation of the so called National Government that enabled the government to increase the Cabinet of Ministers, non-Cabinet Ministers and Deputy Ministers to ninety three. Despite the legitimacy of the case the Court, instead of interpreting the constitution, determined that it had no jurisdiction to hear the case since the issue had already been debated in Parliament.

The claim made by NJ is that although the President had the powers to appoint the Cabinet of Ministers, non Cabinet Ministers and Deputy Ministers, he does not have such powers following the 19A. However, what NJ fails to realize is that whatever powers they have are not powers granted by the People, but derived powers that flow from a President elected by the People.

The ruling by the Supreme Court on the "Nineteenth Amendment to the Constitution" (S.D. No. 04/2015 to 19/23015) states clearly that:

"It is in this backdrop the Court in the Nineteenth Amendment Determination came to the conclusion that the transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of exercise of the sovereignty of the people, the ultimate act or decision of the executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain (sic) supreme or sovereign in the executive field and others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President".

Therefore, the pomp and pageantry of Prime Ministers and Ministers are all reflected glories because they all derive their power from the President and function as delegates of the President. Therefore, whatever the language in Article 42, 43 etc. in 19A such as "shall" "may" or "on the advice" has little or no meaning because they do not represent erosion of the executive power of the President. In fact, there would be little difference between an assertive President who is aware of his powers under 19A, and his former colleagues.

According to Article 43 (1) it is the President who determines the number of Ministers, the Ministries, the assignment of subjects and the functions to such Ministers. However, according to Article 43 (2) the President appoints the Ministers according to the advice of the Prime Minster. This provision is interpreted by NJ et al. to mean that the President is supposed to carry out the bidding of the Prime Minister, thus implying that the Prime Minster has more executive power than the President.

Not so, judging from the very next provision in Article 43 (3). This states: "The President may at anytime change the assignments of subjects and functions and the composition of the Cabinet of Ministers…". Therefore, if the President has the authority to change the composition of the Cabinet, assignments and functions without the "advice" of the Prime Minister or any reference to him, how could it be claimed that the President under 19A is NOT a reflection of the President that existed under the 1978 Constitution?

CONCLUSION

A commonly held notion that is seriously flawed is that the 19A transformed a Presidential system that had existed under the 1978 Constitution into a Parliamentary system, thereby seriously eroding the powers of the President. While the intention was there and an attempt was made to realize such an objective, it failed because such a transformation would have required the approval of the people at a Referendum; a risk the framers were not prepared to take. What ended up was to tinker with what existed, but no dent of the proportion claimed was made. Even the transfer of key appointments from the President to a Constitutional Council should have required a referendum since it amounts to transfer or removal of executive power from the President to another body – the Constitutional Council. Perhaps the Court did not do so because it was influenced by an earlier Supreme Court ruling (S.C. Determination 6/2001) as admitted in its determination.

Even if the President was aware that his powers were not curtailed to the extent intended, he did not assert his authority because of obligations associated with his appointment as President and his place as the President of a constitutionally flawed "National Government". Now that he is free of such encumbrances, his assertiveness is seen as a violation of Presidential powers, instead of them being seen for what they truly are. Such assertiveness should be seen as being within the bounds of any President of Sri Lanka as long as the current Constitutional provisions including 19A remain intact.

‘Butterflies’ continue their fight for democracy

2018-12-12

The Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) community has been frowned upon by the Asian culture as opposed to the West. Against such a backdrop, their fight for acceptance continues in Sri Lanka. While they represent a considerable portion of the Sri Lankan population, they are still being subject to harassment, ridicule and ostracism with blessings from the patriarchal mindset instilled in its culture. But their never-give-up attitude has given them the courage to come out of the closet.

Attempts to decriminalise homosexuality have miserably failed and it was at a time when the community was becoming active that the head of State decided to call the ousted prime minister a ‘butterfly.’ As it is a homophobic slur used to describe this community, the entire community took to the streets a few days after the president made this remark. Last Friday, a faction of this community once again took to the streets and protested the undemocratic moves taken by the president since October 26.

Butterflies for democracy Going by the derogatory term used by the president to describe the community, the recently concluded protest attracted a crowd that supported the rights of LGBTIQ. The protesters held rainbow flags and boards with slogans such as “My vote is not for sale” and “Butterflies are voters too.” During the protest, a few participants spoke to us and here is what they had to say:

Ethical political culture need of the hour – Kumudini Samuel

I think it is important that we stand for democracy. Within that context, we see it as embedding equality and non-discrimination. Today’s protest is by the LGBTIQ community and we want to say very clearly that this unconstitutional process of superseding Parliament and the executive’s actions have thrown the country into disarray. It is something we totally reject and we need to work towards an ethical political culture. We also condemn the kind of ridicule the president himself subjected the LGBTIQ community to. In the context of calling for an ethical political culture, we are also saying that those efforts must respect, project and fulfil the rights of the LGBTIQ community. In this political crisis, we stand with all those who call for the due process of democracy, for the reinstatement of democracy and for the constitutionality of all actions whether in Parliament, executive or judiciary. We are also calling for the separation of powers between the judiciary, executive and legislature. This is the only way we can ensure checks and balances

Vital to protect democratic freedom– Sonali Gunasekara

I participated in the protest because I wanted to support the LGBTIQ community and I think it’s very important to ensure that we have our democracy in place. If not, we will not be able to stand for the rights of the LGBTIQ community because once democracy has been curtailed, every part would be curtailed. We therefore need to protect the democratic freedom we already have

Our votes shouldn’t be sold – Francis Rajiv

Our votes shouldn’t be sold and we need democracy to live in this country. There is a way the president could have appointed the prime minister, but what he did was totally unacceptable. That is why we are here today, to let our voices be heard and stand up for democracy

LGBTIQ community represents large chunk of voter base – Rozanna Flamer Caldera

This protest underscores the fact that democracy has been hijacked and the fact that it has been used to foster hate, homophobia and racism. It’s not simply about the president calling us butterflies in a derogatory manner, but the joint opposition too has been expressing similar sentiments in the past. But it is the head of State who made this remark, completely wiping out the right of democracy of every citizen to be treated equally in this country. So we are protesting the decline in democracy and the unavailability of equality throughout the history for the LGBTIQ community. We also want to show the president that we represent a large chunk of the voter base in Sri Lanka. Try 20%, if you want us to vote for a just, democratic government you need to come to us and decriminalise homosexuality and bring us into the society as equal citizens

LGBTIQ community deprived of fundamental rights – Adil Suraj

I came here to fight for democracy. Democracy is very important to this community because we have been deprived of our fundamental rights. The LGBTIQ community has been ridiculed by the president himself, but this is a community that needs to be treated equally, similar to every other citizen in the country. Today, we witness that they have become stronger in voicing out their rights and calling for democracy, showing they are stronger together

Pics by Damith Wickramasinghe

REFLECTIONS ON CURRENT CONSTITUTIONAL DEBATE

Prof. Ashley L. S. Perera-Tuesday, December 11, 2018

There is apparently a multitude of views particularly among lawyers as regards the action of the President of Sri Lanka to sack the Prime Minister and dissolve Parliament. There are broadly two schools of thought one strongly opposing the presidential course of action, while the other maintaining that the President has acted within his limits of power.

The bane of contention among the opposing faction of the Presidential action is that notwithstanding the inherent flaws and serious errors of inconsistency the procedure set forth in the 19th Amendment to the constitution should be upheld. Further the appointment of a new prime minister, the sacking of the former prime minister and the dissolution of Parliament are contended to be a breach of the fundamental provisions of the constitution.

The other group who approves Presidential action maintains that the Presidential action is well within the provisions of the 19th Amendment to the Constitution despite the ridiculously flawed, erroneous and utterly inconsistent procedures engulfed in the clauses of the 19th Amendment to the constitution. These two rival camps could well argue the legality or otherwise of the Presidential action for the next one and a half years at least.

Political convictions

However what seems to be abundantly clear in the debate is that the majority of the divide is biased one way or the other based on their political convictions. There are leading lawyers and academics representing the divide. They write lucidly on their convictions with perhaps a stint of bias. The UNP parliamentarians and their diehards are opposing the Presidential action not necessarily on legal grounds but merely because they have to protest the sacking of their prime minister and ensure maintenance of the existed status quo. It was revealed in newspapers and over the air that at least two of the ardent supporters of the opposing camp had been on the pay list of the UNP, one a vociferous Buddhist monk and the other a leading academic who was connected with the drafting of the good governance policy.

The TNA with only 14 members comprised the main opposition and held the post of the leader of the Opposition in the previous government. Although one would expect them to be watchdogs in parliament they appear to be “pussy cats” agreeing with all what the previous government says. It is apparent that they have a hidden agenda to work on. The JVP on the other hand has turned out to be a set of jokers contradicting their own statements and providing light entertainment by shouting from the top of their voices. It is hoped that the voters will respond appropriately on their tom foolery at a future election.

Presidential action

On the other hand it is evident that quite a large number of the clergy and the general public have endorsed the Presidential action. Further people who have been economically adversely affected by the economic policies of the previous government are up in arms against that government which has caused them undue suffering. It would be seen that the previous government spent lavishly on enhanced allowances for their parliamentary colleagues in addition to their normal dues while even the children’s savings accounts were subject to tax. It is indeed a shame that the previous government should advise foreign funding sources to suspend foreign aid to the country very well knowing that these funds were meant to benefit the people of this country and not their political rivals.

As a student of Political Science and Public Administration I wish to present a view with due regard to the legal implications of the Presidential action. The President according to the Constitution is the head of State and head of government. He has been elected by majority vote with the participation of all the voters of the country on a national basis to serve as an impartial agent of society for making the society’s conception of justice prevail in the justifiable sphere of social life depicting the sovereignty of the people.

Further the President is endowed with supreme legal authority on conditions of exercising it in strict conformity to the moral standards of society which has to be ensured by satisfactory consultation of public opinion. In this context it is important to realize that a mechanical legal order cannot explain the moral validity of justification of such an order. As Charles Dickens has observed “the law is an ass as many innocent victims have found to their horror”.

It would be rather interesting to critically examine the conduct of the organs of the government, namely the President, Prime Minister and Cabinet of Ministers prior to October 26, 2018. It is on record that the Prime Minister (PM) not only exercised his powers but increasingly made inroads to Presidential powers without discretion. It was also revealed that Cabinet decisions were made by a few and the Cabinet in general was unaware of most decisions.

The case in point is the Singapore Sri Lanka trade agreement where a majority of the ministers were at sea. This agreement was in line with the Laissez faire theory of 1776 Britain which was abandoned within a few years of its functioning. Going by these outdated economic policies the sustainability of locally produced goods was completely neglected. The lack of transparency in policy matters even within the Cabinet has been a regular feature. In terms of the socio-political and juridical norms Article 70(1) is a pious wish hanging on its own boot straps and has no influence on Article 33 (2).

In conclusion, given all the circumstances it would seem appropriate that the most sensible option is to go for a general election irrespective of all other considerations which will establish the will of the people and ensure social justice.