TGTE calls on states to take Sri Lanka to ICJ over genocide

27 December 2018

The Transnational Government of Tamil Eelam (TGTE) this month urged states party to the UN Genocide Convention to take legal action against Sri Lanka at the International Court of Justice (ICJ). 

Addressing an event in UK's Houses of Parliament on December 10, marking the 70th Anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide, the TGTE's prime minister, Visuvanathan Rudrakumaran said, 

"To give meaning to the Convention as it relates to Sri Lanka, we call upon one of the States party to the Genocide Convention to bring legal action against Sri Lanka in the International Court of Justice. In many instances, as is the case with Sri Lanka, it is not just individuals but the whole state apparatus that is used to commit this heinous crime."

“We also call upon States to amend their Foreign Sovereign Immunity Act by removing immunity for States and to bring legal action against States for genocide in their domestic tribunals.”

UK MPs, Siobhain McDonagh and Gareth Thomas, human rights legal experts Peter Haynes QC, Richard Rogers, Human Rights Lawyers Alex Prezanti, and Kim Renfrew also addressed the event. 

Rogers, who assisted in drafting the second international judgement for genocide, said "we really need is greater determination from states to act fast when early signs of genocide become apparent. If the dream of Lemkin is to be realized, and we are to avoid more genocides, powerful states must put self-interest to the side and work together to prevent the genocide, considered the “crime of crimes". 

Prezanti, who represented victims of international crimes in Ukraine, Cambodia and Georgia, and currently representing an accused charged with genocide at the Khmer Rouge Tribunal, said,

“There is one positive takeaway from the Khmer Rouge Tribunal for Sri Lankan victims. It is that even if it takes years, justice may eventually come.” 

Prezanti added, robust documentation and preservation of evidence of international crimes is essential and must continue. 

Outlining the TGTE's call for justice for genocide against the Tamil people, Rudrakumaran further said: 

"There is no word other than genocide which can capture the magnitude and atrociousness of the crime committed against the Tamil people. The political reason for not recognizing the Mullivaaikaal atrocity as genocide is that under the traditional justice paradigm, as demonstrated by the opinions of African human rights tribunals and the Canadian Supreme Court with respect to Quebec, an entity that was subjected to genocide has a right to establish an independent state under the principles of self-defense and self-preservation The transitional justice paradigm also states that establishing an independent state can be justified under its fourth pillar of reparations and nonrecurrence,” Prime Minister Rudrakumaran said. “Presently, many States prefer to keep Sri Lanka as one entity than to devise a political arrangement that will ensure the physical security of the Tamils."

Related Articles: 

04 October 2018 : British politicians discuss justice for Tamil genocide at Conservative Party conference

15 December 2018 : PEARL demands justice for genocide against Tamils

08 September 2018 : Sri Lanka’s disappearances and Tamil genocide discussed in UK parliament

20 December 2018 : UK responds to petition calling for Sri Lanka to be referred to ICC

Sri Lanka heads for an uncertain future

 2018-12-25

As a year of political upheaval and economic stagnation is winding down, Sri Lanka is entering into an uncertain 2019. Politics is as toxic as it has ever been in recent times. The illwill between President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, expressed in the most overt gesticulations, is bound to overshadow government policy. The public euphoria over the rollback of the Constitutional coup evaporated in no time. Most tellingly, the appointment of corruption-tainted Ravi Karunanayake to the Cabinet effectively gave the middle figer to the saner people, civil society and democracy activists.  

The UNP has so far restrained its temptation to form a farcical ‘national government’ so as to avoid a restriction set by the Constitution, which under the 19th Amendment set a limit of a 30-member Cabinet of Ministers, unless when there is a national government. An earlier plan to form a national government between the sole member of the SLMC and the UNP was abandoned, fearing a predictable public outrage.  

The UNP is also expected to seek legal opinion over whether the government is entitled to have a 32-member Cabinet (30 plus the president and prime minister) instead of 30. All this is to reward its members in order to keep them satiated, so that they would not be tempted to pole vault to the Opposition. Thus, after the much hype about democracy and the will of the people, Sri Lankan politics is back to its usual ugliness.  

The UNP is also expected to seek legal opinion over whether the government is entitled to have a 32-member Cabinet instead of 30

Both main political parties, UNP and SLFP have regularly found themselves at the receiving end of the devastating consequences of J.R Jayawardene’s Machiavellian machinations of Sri Lanka’s political fabric. Jayawardene went to an extreme and shameful length hitherto existent culture of political patronage and bribe and entrenched it in the Sri Lankan political life.   

 A bloated Cabinet is one way to extend a network of political patronage. India with 1.2 billion people has 27 Cabinet Ministers, Japan has 20 Cabinet Ministers, Britain has a Prime Minister plus 21 Cabinet Ministers.   

Whereas Sri Lanka has a history of rewarding nearly all members in the government with some form of ministerial portfolio so that they would be entitled to the accompanying fringe benefits. Such positions have not enhanced efficiency but eaten into the public coffers. The latest economic data of the 3rd quarter is proof of pervasive economic stagnation.  

The economic growth in the 3rd quarter had slumped to an historic low of 2.9 per cent, against 3.7 per cent of equally mediocre growth in the same quarter of the previous year. So the economy has been in a slow death even before the October 26 trigger of a political crisis. Now, with an aggravated political crisis, and its economic implications in the final quarter of this year, the economy is set to record another below four per cent annual growth for the fourth consecutive year.  
While efforts for economic restructuring might have an impact on low growth numbers, the government’s repeated inability to proactively engage in economic development is the main factor for the sub-par economic performance. Unlike the Rajapaksa regime, which to give the devil its due, played a major role as a catalyst of economic development, which any emerging market economy should do, this government solely relied on market forces. However, market forces did not take their own course of action due to other extraneous factors and the prevailing economic and political uncertainty. All in all, economically speaking, the whole life span of the yahapalanaya government was four lost years for the country.   

These adverse economic and political conditions are unlikely to improve in the coming year. If any, they are bound to get worse. The president who is waiting to settle his scores with Mr. Wickremesinghe is likely to obstruct the latter’s economic policies at any given opportunity.  

Similarly, any moves to impeach the president would likely compel him to prorogue Parliament, triggering another political crisis. Personal prejudices between the executive and legislature will hold back the progress of the country, and the government’s economic agenda in the coming year.  The only winner in this equation is Mahinda Rajapaksa. He is ridiculed now for taking power through the backdoor. However, he was the one who could have romped home in an election, if the constitutional coup led to a snap general election.  

He is down, but not out. As the Opposition Leader, he is now more formidable. Post-coup political conditions serve him as well. He is likely to receive presidential patronage, if the courts belatedly launch investigations into allegations of corruption during the Rajapaksa regime. Even the courts will be disinclined to lock horns with the president ever too often.   

The only memorable legacy of yahapalanaya will be its role in strengthening the independent institutions in the country. However such institutions can not function in a vacuum. Public discontent over multiplicity of reasons, all of which have roots in the disillusionment over perceived economic stagnation, has unleashed far- reaching political changes from America to Philippines. Sri Lanka is not immune to that.  

The UNP has already failed to capitalize on the popular support it received during the constitutional crisis. It is in the process of squandering much of that political capital.  

The only memorable legacy of yahapalanaya will be its role in strengthening the independent institutions in the country

It is also unlikely to make a noticeable improvement in the economy any time soon- or even during the two years of its remainder of the term.  
Political uncertainty will take a toll on economy. Economic stagnation in turn would take a toll on democratic reforms.   

The year 2018 was one of political upheaval, sinister machinations, undelivered promises and economic decay. Sadly though, as political and economic factors stand, 2019 is unlikely to be different.   

Follow @RangaJayasuriya on Twitter     

Circles of Political Vengeance and End of Yahapalanaya!

By Laksiri Fernando-December 26, 2018, 9:50 pm 

"Men ought either to be indulged or utterly destroyed, for if you merely offend them, they take vengeance." - Machiavelli
"Vengeance is mine, I will repay, says the Lord." Romans 12:19
"Jesus taught his disciples to turn the other cheek." (Matthew 5:39)

How Things Began?

Maithripala Sirisena left Mahinda Rajapaksa four years ago, after a hopper treat, because he was not given due recognition as a Minister, and the PM position. That may be true. Otherwise, he even voted for the 18th Amendment to allow the possibility of Rajapaksa to contest for the Presidency again and again without a term-limit. There must have been other reasons to do with family rule or authoritarian handling of things.

The Lord (the people) took vengeance from Rajapaksa on the 8th January 2015, and he left for Madamulana on the same night without a whimper, whatever Mangala Samaraweera talked about a military coup. Romans as quoted above were correct about the Lord. That was justice. After another attempt at power as the PM on 26th October 2018, Rajapaksa is again eating the humble pie, still waiting to be declared as the Leader of the Opposition. Justice often means punishment, and this time by the Supreme Court.

When Sirisena was elected as the President, to the surprise of many, he was quite amicable to Ranil Wickremesinghe, the schemer behind all the political gimmicks since then, and even called the latter ‘Sir.’ However, Ranil apparently didn’t like anyone above him and most certainly a ‘gamarala’ from Polonnaruwa. Most disliked was his continuous and rigmarole Sinhala talk. Sirisena was meekly humble at the beginning, and even gave Temple Trees back to the PM.

Then there was this 100-day program (whoever drafted it!) to clip the presidential powers of anyone above the PM, among other things, and Sirisena was obviously trapped. The only obstacle was the presidential constitution itself which could not be totally changed without the people’s consent, a referendum. Therefore, many constitutional jugglery had to be performed, as evident from the 19A. An expert from the left movement was hired for the job, who has some experience in these type of matters.

Naivety and Offence

Sirisena was obviously naïve at the beginning. When he realized his predicament, he was rather late. Therefore his anger was doubled, and trebled. This is where what Machiavelli said about ‘offence’ became true. Sirisena was not destroyed, but offended to the brim.

This is not to relate Machiavelli’s advice literally into democratic politics today. Complete destruction of an enemy is not possible today, except in a civil war or by punishing someone for criminal offenses. Now Jaliya Wickramasuriya, Mahinda’s first cousin, is trapped in the USA. Similar things might happen in the near future. Otherwise, politicians have to live with perceived enemies, whether they like it or not. Mahinda Rajapaksa (also his gang) is still there with renewed vigour, although slightly bruised after the abortive attempt at unjustified grabbing of the PM position. Sirisena is to be blamed mainly for this tragicomic happening.

There is no question that politicians should be punished for financial fraud and corruption. However, this should be done without bias, and equally for one’s own side, and not merely targeting the opposition. Otherwise, the Lord will be angry. The opposite is what has happened since 2015 and the appointment of Ravi Karunanayake would confirm the situation in the eyes of the people. Whatever said against Sirisena, he relatively appears clean in respect of financial matters (so far!). Although called Mr Clean, Wickremesinghe has become a prime suspect in the Bond Scam.

Revenging in Circles

What has happened since 2015 is revenging in circles, not mere circularity. The reasons are not so byzantine. Politics is understood, or used by politicians as power, and absolute power in the case of some. And power is used for personal interests rather than for public good. Politics should be for justice and public good instead. Sirisena took revenge from Rajapaksa as he was marginalized. Wickremesinghe took revenge from Sirisena as he was not toying his line as anticipated. There were overt or alleged policy differences as well.

The first policy difference between the two was the appointment of Arjuna Mahendran as the Governor to the Central Bank. This reminded Sirisena of old stories about Wickremesinghe - that he is inclined to work with his Royalists. By that time Wickremesinghe has taken over the Central Bank under his wings and was quite determined to control and direct the economy according to his neoliberalism. The obvious immediate result was the Bond Scam.

According to Wickremesinghe ideology, an uncle giving inside information to his nephew is not a big issue. What is important is money to the Treasury. It appears that Wickremesinghe wanted to fudge the situation from the beginning and even Sirisena corroborated by dissolving Parliament in June (2015) before the Parliamentary Committee on Public Enterprises (COPE) giving its damning report on the matter. There are so many other people who don’t consider the ‘bond scam’ as a financial fraud or corruption, according to probably their capitalist thinking.

Things soured between the two eventually and much after the general elections of August 2015. Even by that time Sirisena was like a bruised cobra because of the 19th Amendment and other matters. His first major counter attack was the appointment of the Presidential Commission on the Bond Issue in March 2017. Even that was a late reaction. Nevertheless, it was a major turning point of their soured relations. Although the national government marriage continued uneasily even thereafter, it was without a proper direction either from Sirisena or Wickremesinghe.

Overreaction?

Sirisena appears to be a slow, but over reactor. As he was leading the SLFP, the party’s performance at the local government election was woefully appalling. He correctly attributed that set back to his alliance with the UNP and its unpopular economic policies. First, without properly assessing the relative strengths between the opposition and the Wickremesinghe government, he encouraged the aborted no-confidence motion in April 2018.

Then came his major reaction in October 26th. He ousted Wickremesinghe, but Wickremesinghe refused to leave Temple Trees or his position as the PM. Now R. Sampanthan is doing a similar adventure without leaving the office of the Leader of the Opposition. What strength did Wickremesinghe get in October even without a clear majority in Parliament? It is not merely the support of the TNA or the JVP that allowed Wickremesinghe to come back to power. Some of the Western embassies and international NGOs were believed to be behind the comeback, not to speak about the local cohorts. Sampanthan might be banking on the same.

More importantly, it was possible because of the miscalculation on the part of Sirisena that Rajapaksa could muster a majority. S. B. Dissanayake was behind all the machinations based on pre-2015 experience of parliamentary politics. It was not purely a constitutional obstacle, but a political one. Whatever the objectives that the people or even Sirisena had in mind in bringing a change of government in January and also in August 2015, Wickremesinghe government probably survived and survives because of the backing of the Western powers.

This backing is premised largely on the objective of preventing Chinese influence in Sri Lanka. It was not by accident that the Chinese Ambassador was the first and also the last to greet Rajapaksa as the new Prime Minister. This created more fears or anxieties on the part of Western embassies.

Overreaction was accompanied by overconfidence on the part of both Sirisena and Rajapaksa. Rajapaksa’s overreaction became more evident by taking the membership of the SLPP, or allegedly applying for it, without considering possible legal ramifications. When Sirisena’s three trump cards of ‘Dismissal, Prorogation and Dissolution’ came one after the other, at a quick pace, the Western educated middle class or the Colombians also became genuinely alarmed. They were thriving under Wickremesinghe economics.

Sirisena’s actions and boasted overconfidence undoubtedly had an element of authoritarianism. The return of Rajapaksa also united the UNP ranks and it was only for a short while that people like Wasantha Senanayake could flirt with both sides. The UNP/UNF Ministers, State Ministers and Junior Ministers undoubtedly have generously gratified their support base through public funds. This is something that the SLFP had failed to do, giving priority to their acrimonious or talkative politics. There are clear indications that both Sirisena and Rajapaksa have not learnt the lessons of the 2015 democratic change, where people don’t want to go back to authoritarianism or even semblance of it.

A Lost Opportunity

When looking back at last four years, it is at best a lost opportunity. It was also a betrayal and treachery from almost all sides. What they promised and delivered as Yahapalanaya were different. When friends (although new) become enemies they obviously become extra bitter. This is what happened to the UNP and the SLFP or more correctly to Sirisena and Wickremesinghe. It was by chance that the UNF government was salvaged thanks to the TNA and the JVP. In actual sense it is still a minority government. No one knows at what time it will fall or disintegrate.

Was it too ideal or impractical to have a national government? Perhaps yes. Primarily because the objectives on the part of the leaders were short sighted or rather opportunistic. Nevertheless the positive achievements or people’s aspirations behind 2015 change should be continued and even enhanced. They are primarily (1) to have independent commissions to oversee not only appointments but also government performance and (2) to resist authoritarian tendencies on the part of the President or even the Prime Minister.

As most of the authoritarian deviations in the future might come from the PM or the new government, the President should step back and allow the PM to expose himself before the people. Unnecessary reactions or attempts at imposition of authority might confuse the situation and boomerang on the President himself. There is a need for a strong opposition in Parliament (not a fake one!) and in the country. Opposition activities in the country should not be destructive, but peaceful, engaging and constructive as much as possible.

There is no question that the so-called Yahapalanaya has exhausted its potential. It is a lost opportunity, par excellence. The problematic however in the New Year would be its alternative. Ranil Wickremesinghe has got a lease of life through the Supreme Court and therefore he should either deliver or get out. Jesus’ advice to his disciples was too ideal, at least on the part of the sovereign people of the country. If their living conditions are attacked, people should not turn their other cheek, but should give a good hammer!

Victims of 2004 tsunami remembered across Tamil homeland

181226 Tsunami remembrance Uduththurai NC 2.jpg

Commemorative events were held today across the homeland to remember the 35,000 victims of the catastrophic tsunami on December 26, 2004. 

  26 December 2018

Recalling the disaster

The United Nation High Commission for Refugees (UNHCR) said five days after the disaster that almost two thirds of those killed across the island were in the Tamil homeland of the North-East.

"The North-East is the region worst affected by the tsunami," the World Bank, Asian Development Bank (ADB) and Japan Bank for International Cooperation (JBIC) said in a  joint report.

A doctor based in Amparai described the moment the waves struck. “We went from the hospital to retrieve some bodies of people killed by the first wave near the Pandiruppu beach," he said from the Kalmunai base hospital just hours after the disaster. "We saw at a distance another massive wave, more than hundred feet high, speeding towards Kalmunaikudi. It was like a diagonal wall rising out of the sea. The sight was terrible. We ran for our lives. I do not believe that anything could have survived the force of that wave.”

VIllagers in Navalady in Batticaloa wept as they talked of the disaster days later. “My child was clinging to me and screaming ‘father’ ‘father’ right to the end. Fearing that I was going to drown as the force of the water worsened, I released him from my grip hoping he would have a better chance. But I was eventually saved and he was swept away,” cried one villager. “Our other son was at a tuition class and perished with his whole class.”

“People were screaming though the night after the incident," said another. "Navalady is no longer a village, it is a graveyard full of bodies."

Within hours of the waves striking the coastline, the Liberation Tamil Tigers of Tamil Eelam (LTTE) had issued an urgent appeal for international assistance, declaring the situation as a National Emergency.

“It is ironical that this tragedy had befallen on a people who suffered the brutality of a war for two decades and are continuing to exist without realising the basic dividends of peace, normalcy,” said the LTTE, adding “the human disaster and the tragedy the survivors face are unprecedented and need immediate and effective humanitarian intervention.”

"I sincerely hope that the Internation Community will respond with the necessary financial and material relief to assist our people," said the leader of LTTE's Political Wing, S.P. Thamilchelvan. 

The Tamil Rehabilitation Organisation (TRO), the following day, released an appeal to the international community listing urgent requirements that needed to be attended to.

Read more here. 

Remembrance Events

Uduththurai, Tsunami memorial

Kalmunai Tsunami Memorial, Amparai 

University of Jaffna 

Karaitheevu Tsunami Memorial, Amparai 

Related Articles: 

25 December 2016 : Remembering the waves - 12 years on from the tsunami

Justice de Abrew affirms the majority decision

The Supreme Court seven-judge-bench headed by Chief Justice Nalin Perera on December 13 unanimously ruled that the gazette notification issued by President to dissolve the Parliament has been issued outside legal limits and has resulted in a violation of Petitioners’ fundamental rights.
While agreeing with the judgement delivered by Chief Justice and five other judges regarding these ten Fundamental Rights petitions, Justice Sisira de Abrew delivered a separate judgement explaining different reasons to justify his stance.

This is an excerpt from judgement delivered by Justice Sisira de Abrew in respect of the Fundamental Rights petition filed by TNA leader R. Sampanthan.

Lakmal Sooriyagoda-Friday, December 28, 2018

The President had, by a Proclamation published in Gazette No.2096/70 dated 09.11.2018 dissolved Parliament with effect from midnight on 09.11.2018. The petitioner R. Sampanthan who is a Member of Parliament whilst challenging through SC. FR Application No. 351/2018 the said Proclamation inter alia seeks the following reliefs from Supreme Court.

1. To declare that the Proclamation dissolving Parliament infringes his fundamental rights guaranteed by Article 12(1) of the Constitution.

2. To make order declaring that the said Proclamation dissolving Parliament is null and void ab initio and of no force or effect in law.

3. To quash the said Proclamation dissolving Parliament.

4. To quash the decisions and or directions contained in paragraphs (a),(b),(c) and (d) of the said Proclamation.

The Supreme Court by its order dated 13.11.2018, granted leave to proceed for alleged violation of Article 12 (1) of the Constitution.

The Attorney General whilst submitting the following grounds contended that the Supreme Court is precluded from exercising the jurisdiction in respect of the alleged violation of the Petitioner’s fundamental rights and from granting the reliefs sought by the Petitioner.

1. A specific mechanism is provided in Article 38(2) of the Constitution for the Supreme Court to exercise jurisdiction over allegation of intentional violations of the Constitution, misconduct or abuse of power by the President of the Republic.

2. The dissolution of Parliament by the President of the Republic does not constitute Executive or Administrative action falling within the purview of Article 126 of the Constitution.

* now advert to the above contentions.

When Article 38 (2) of the Constitution is examined, it is clear that the mechanism provided in Article 38 (2) of the Constitution is only available to the Members of Parliament. This mechanism is not available to the other citizens of the country. In fact there are several petitions filed in this court seeking to quash the Proclamation dissolving Parliament. The said petitioners are not Members of Parliament. For the above reasons, I reject the above contention advanced by the Attorney General. I now advert to the 2nd contention advanced by the Attorney General. He contended that the dissolution of Parliament by the President of the Republic does not constitute Executive or Administrative action falling within the purview of Article 126 of the Constitution. The general power given to the President of the Republic is contained in Article 33(2)(c) of the Constitution. The same power is contained in Article 70 of the Constitution with a procedure governing the exercise of the said power. Article 33 is found in Chapter VII of the Constitution. The Chapter VII of the Constitution deals with “Executive and the President of the Republic”. Therefore it can be safely concluded that the power of the President of the Republic to dissolve Parliament is an executive action of the President of the Republic.

The making of the Proclamation and the Regulation as well as the conduct of the respondents in relation to the five elections, clearly constitute “executive action” and the court would ordinarily have jurisdiction under Article 126 of the Constitution.

I hold that the power of the President of the Republic to dissolve Parliament is an executive action. I therefore reject the contention of the Attorney General that is to say that the dissolution of Parliament by the President of the Republic does not constitute Executive or Administrative action falling within the purview of Article 126 of the Constitution.

The President of the Republic in terms of Article 32 of the Constitution must take an oath stating that he would uphold and defend the Constitution. Therefore it is seen that the President of the Republic is subject to the Constitution. In Mallikaarchchi Vs Shivapasupathi, Attorney General [1985] 1 SLR 74 wherein Sharvananda CJ at page 78 held thus: “the President is not above the law.”

I have earlier held that the acts of the President of the Republic except the acts done in the exercise of his powers conferred by Article 33(2)(g) of the Constitution are not immune from suit.

I hold that this court has the power to examine legality of the impugned acts or omissions by the President of the Republic except the acts done by him in the exercise of powers conferred to him by Article 33(2)(g) of the Constitution.

For the above reasons, I hold that this court has jurisdiction to inquire into the legality and correctness of the Proclamation issued by the President of the Republic dated 09.11.2018 published in Government Gazette No.2096/70 dated 09.11.2018 dissolving Parliament. I further hold that acts of the President of the Republic in issuing the said Proclamation and the said Proclamation are subject to the judicial review of this court and do not come under immunity stated in Article 35 of the Constitution.

President’s Counsel for the 1st added Respondent Mr. Sanjeewa Jayawardena drawing our attention to both Sinhala and English versions of Article 62 of the Constitution, contended that the President of the Republic under Article 62(2) of the Constitution has the power to dissolve Parliament at any time.

 I now advert to this contention. If this contention is accepted as correct, the moment the notice of resolution discussed in Article 38(2) of the Constitution is handed over to the Speaker of Parliament, the President of the Republic can dissolve Parliament. If it happens, no resolution discussed in Article 38(2) of the Constitution can be passed by Parliament. Thus if the above contention is accepted as correct, Article 38(2) of the Constitution would be rendered nugatory. Sinhala version of Article 62(2) of the Constitution contains three sentences. But the English version of the said Article contains one sentence. The second sentence of the Sinhala version of the said Article is to the following effect.

 “However Parliament can be dissolved before the expiry of its fixed term.” According to Article 62(2) of the Constitution, fixed term of Parliament is a period of five years. Article 62(2) of the Constitution deals with the dissolution of Parliament at the end of term of five years from the date appointed for its first meeting. It is an automatic dissolution. Since it is an automatic dissolution, there is no necessity for the President of the Republic to issue a Proclamation. Article 62(2) of the Constitution (English version) reads 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 dissolution of Parliament.”

This Article discusses a dissolution called “sooner dissolution of Parliament”. What is “sooner dissolution of Parliament”? It is discussed in Proviso to Article 70(1) of the Constitution. Article 70(1) of the Constitution reads as follows:

“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.”

According to Article 70(1) of the Constitution, there are only two ways in which Parliament can be sooner dissolved. They are as follows:

1. At the expiration of a period of not less than four years and six months from the date appointed for its first meeting.

2. When the Parliament by a resolution passed by not less than two-thirds of the whole number of Members (including those not present) requests the President of the Republic to dissolve Parliament.

These are the two ways in which Parliament can be sooner dissolved. Thus it is seen that sooner dissolution of Parliament discussed in Article 62(2) of the Constitution is the dissolution that is discussed in Article 70(1) of the Constitution. For the above reasons, I hold that the President of the Republic has no power to dissolve Parliament under and in terms of Article 62(2) of the Constitution.

It was contended on behalf of the Respondents that the President of the Republic, in terms of Article 33(2)(c) of the Constitution, could dissolve Parliament. However it was contended on behalf of the Petitioner that the President of the Republic without fulfilling the requirements stated in Article 70(1) of the Constitution, could not dissolve Parliament in the exercise of the powers conferred to him by Article 33(2)(c) of the Constitution. Can the President of the Republic acting under Article 33(2)(c) of the Constitution dissolve Parliament without fulfilling the requirements stated in Article 70(1) of the Constitution? This is one of the important questions that must be decided in this case.

The 1st sentence of Article 70(1) of the Constitution which reads as follows “the President may by Proclamation, summon, prorogue and dissolve Parliament” should be stressed. When this sentence is considered, it is seen that the power given to the President of the Republic to dissolve Parliament by Article 33(2)(c) of the Constitution is reproduced in Article 70(1) of the Constitution. When Article 70(1) of the Constitution states that provided that the President shall not dissolve Parliament ….” he (the President of the Republic) cannot and is not empowered to dissolve Parliament without the requirements set out in Article 70(1) being satisfied. What are those requirements?

1. There must be an expiration of a period of four years and six months of Parliament from the date appointed for its first meeting.

2. Parliament by a resolution passed by not less than two thirds of the whole number of Members (including those not present) must request the President of the Republic to dissolve Parliament. This requirement becomes necessary only when the President of the Republic intends to dissolve Parliament before expiration of a period of four years and six months of Parliament from the date appointed for its first meeting

Therefore I hold that in terms of Article 70(1) of the Constitution, the President of the Republic cannot, until the expiration of a period of four years and six months of Parliament from the date appointed for its first meeting, dissolve Parliament at his own will. In other words the President of the Republic cannot, at his own will, dissolve Parliament during the period of four years and six months of Parliament from the date appointed for its first meeting. If the President of the Republic wants to dissolve the Parliament during the said period of four years and six months, there must be a resolution passed by two third majority of the Members of Parliament (including those not present) requesting the President of the Republic to dissolve Parliament.

Article 33(2)(c) of the Constitution only confers power to the President of the Republic to dissolve Parliament. The same power is contained in Article 70(1) of the Constitution. The requirements which should be fulfilled in exercising the said power are found in Article 70(1) of the Constitution.

The dissolution of Parliament by the President of the Republic should always be by a Proclamation. This is clear when one examines Article 70(1) of the Constitution. Article 33(2)(c) of the Constitution does not discuss about a Proclamation. For the above reasons, I hold that the President of the Republic cannot, under Article 33(2)(c) of the Constitution, dissolve Parliament without one of the requirements stated in Article 70(1) of the Constitution being fulfilled.

In the present Case, the date appointed for first meeting of Parliament was on 01.09.2015. This is evident by Government Gazette No.1929/13 dated 26.08.2015 marked P2. Thus, the period of four years and six months of Parliament from the date appointed for its first meeting would end on 28.02.2020. The President of the Republic has dissolved Parliament with effect from mid-night on 09.11.2018. Thus President of the Republic has dissolved Parliament before the expiration of 4½ years from the date appointed for its first meeting. Parliament by a resolution passed by two third Members of Parliament (including those not present) has not requested the President of the Republic to dissolve Parliament. Considering all the above matters, I hold that the Proclamation issued by the President of the Republic dated 09.11.2018 published in Government Gazette No. 2096/70 dated 09.11.2018 dissolving Parliament, is contrary to Article 70(1) of the Constitution; is therefore null and void ab initio; and of no force or effect in Law.

For the above reasons I hold that the Proclamation issued by the President of the Republic on 9.11.2018 published in Government Gazette No.2096/70 dated 9.11.2018 dissolving Parliament has violated fundamental rights of the Petitioner guaranteed by Article 12(1) of the Constitution. I have earlier held that the Proclamation issued by the President of the Republic dated 09.11.2018 published in Government Gazette No.2096/70 dated 09.11.2018 dissolving Parliament, is contrary to Article 70(1) and 70(3) of the Constitution; is therefore null and void ab initio; and of no force or effect in Law.

For the aforementioned reasons, I make order quashing the Proclamation issued by the President of the Republic dated 09.11.2018 published in Government Gazette No.2096/70 dated 09.11.2018 dissolving Parliament and declaring the said Proclamation null and void ab initio and of no force or effect in law.

I have read the draft judgement of the Chief Justice. For the aforementioned reasons, I agree with the conclusion reached by His Lordship.

The judgement delivered in this case and aforementioned orders will apply to SC FR 352/2018, SC FR 353/2018, SC FR 354/2018, SC FR 355/2018, SC FR 356/2018, SC FR 358/2018, SC FR 359/2018, SC FR 360/2018, and SC FR 361/2018.

Sri Lanka: On Damaging the Buddha Statues

by Sri Lankan patriotic- Dec 27, 2018

Dec 27, 2018

With deep sadness and sorrow, I condemn this violent act of uncultured and uncivilized gang who have attacked and damaged a Buddhist statue in a suburb of Mawenella. This barbaric act must be condemned by all civilised citizens of Sri Lanka. In Sri Lanka, different communities have been living side by side without any religious violence of this kind for the last one thousand year. Buddhists live side by side with Muslims. Muslims live side by side with Tamils. Likewise, Christians live side by side with Muslims, Hindus and Buddhists. Yet, recently religious violence has dramatically increased in Sri Lanka. Why and how did this violence increase in Sri Lanka. We are now living in this virtual world of modern technology. This modern technology with its all goodness has got some negative sides too.

Today, radical ideologies and radical ideas are spreading like a virus all over the world. Today, Ideas of radical Wahhabism, Salafism, literalism are not confined to some Arab and Muslim countries rather they are going around the world like virus.  99% of world Muslim community condemn violence in the name of their religion. Islam stands for peace, compassion, mercy and kindness and yet, some radical Muslims do not display these good qualities of Islam rather they display violence and aggression through their barbaric acts of violence as we have seen in Afghanistan, Pakistan, Iraq and many other Muslim countries. There is no room in Islam for this barbarism.

 A true Islamic teaching welcomes and facilitates pluralism. 1400 Islamic history is an historical proof to say that Muslim communities have been living with many other religious groups side by side. For instance, persecuted Jews from Spain sought refuge in Ottoman Empire and North Africa and some of these Jewish communities are still living with Muslim communities. Likewise, Christian communities have been living with Muslim community side by side for many centuries. Likewise, Buddhist community lives side by side in Malaysia, Bangladesh and some other countries. Why some radical Muslims cannot tolerate pluralism and multiculturalism? Humanity today lives in a complicated and closely interconnected world. So, pluralism is an inevitable social phenomenon of this modern world. Globalization has made it as a modern reality of human life. So, Muslim radicals must know all this. Moreover, The Holy Quran is very much clear on this point. People will have different religions and ways.(Had Allah willed, He would have made you one community? (5: 48). 

So, pluralism is a divine design. So, Muslim community should know this reality and get on well with all other different cultures and religions.  99.9% of Muslims do that and yet, some radicals do not accept this notion.

Whoever has done this barbaric act they must be punished. We Sri Lankan Muslim community request police to act swiftly on this issue.  We do not tolerate this type of violence in Sri Lankan soil at all. Neither Saudi form of religious extremism nor Afghan form of extremism is welcomed by Sri Lankan Muslim community. if it is proved that this is done by any Muslim group in Sri Lanka they must be punished accordingly. I’m sure that all Sri Lankans will condemn this act.

Muslim community in Sri Lanka has been working hard to promote peace and social harmony in Sri Lanka for the last 8 years since BBS issue came up in Sri Lanka.  This incident has indeed, shocked many of us. We hope that law enforcement agents act quickly before any political party tries to make use of this for any political gain. There is no any connection between this incident and politics.  

“Season’s Greeting” for another New Year in “Crisis”

2018-12-28

Three more days and another new year; 2019 would dawn with sky rockets, firecrackers and “31st Night” bashes in Colombo. For the fun loving urban middle class, the Constitutional crisis, the threat on “democracy” there was a month ago, is no more. For them, it’s yet another New Year with grand expectations; joy, good health, peace and prosperity. No different to the sky rockets, firecrackers, barbecues, beverages, music and dancing of yesteryears and what was wished for one year ago and every year before that.   

Beneath all that fun and frolic in the city the political crisis festers into 2019. A scary situation, a crisis that demands alternate answers to resurrect a new “democratic” State in place of the present corrupt and the crumbling. This crisis is many faceted. From Ministry Secretaries, Department heads to District Secretaries and down to Grama Niladharies, the whole State administration is corrupt and inefficient. The Police Department needs serious reforms to turn it into a civil department with public acceptance and trust. Independence and integrity of the judiciary is lot more than a “historic decision” of the SC that pleases the urban social activists. Clean and efficient it has to be, to be independent. The free market economy has topped all that with heavy corruption and growing disparities between urban and rural life.   
Answers don’t come with blind faith on individuals. Getting back to an insanely corrupt parliament on a SC ruling is not getting back to “democracy”. All political parties represented in parliament led by autocratic leaders represent “wheeler dealers” growing out of this free market economy. Such political parties don’t take principle positions on any issues.They work on cheap, populist slogans instead. Free market economies are not only inherently corrupt, they also breed ethno-religious extremism.That’s one major reason the Tamil National Question remains unresolved this long though ITAK leaders would continue to believe in these leader seven after the New Year dawn.   

Within all that the liberty to roam for employment and to decide and choose his or her basket of goodies came to be interpreted as “freedom and democracy”. The “free and open market” with a growing urban middle class struggling to increase its purchasing power too is being showcased as “development”. The rural folk, that’s 70.4 per cent of the population of this country, Sinhala, Tamil and Muslims all included, live in the periphery of the slow moving and almost stagnant market. They lack “buying power” to be of any worth in this consumer society. Buying power is not “purchases” of the poor who “buy to live”. “Buying power” is the “extra rupee” of the urban middle class who spend on extra comfort. It is therefore not just cash flow and profits that decide poverty in neo liberal economies. It’s the marginalising of rural life, the neglect of State funded priority services like education, health and public transport that defines poverty.   

Within that lopsided market,“poverty alleviation” is a crude game of numbers. “Poverty line” drawn around Rs.4,000 per person per month claims Sri Lanka’s poor is around 5.0 to 6.0 per cent while the “Household Income & Expenditure Survey” by the Census & Statistics Department says an urban family of 04 needs a monthly income of Rs.58,930 for basic living while in rural society it is Rs.38,274 per month. Over decades, this has also created a growing and a gnawing disparity with 20 per cent of the population enjoying 52.6 per cent of the per capita income, leaving the majority with little or no access to basics in life.   

"Import of vehicles should be restricted giving preference strictly for public transport and other productive use, to ease growing traffic congestions"

Yet within this “free for the filthy rich” market economy, no government can plan for sustainable economic growth with equal opportunities and access to social benefits. Planning in a free market economy is about opening up for more and more investors. This leads to increasing restrictions on access to health, education, public commuting, access to markets and cultural and intellectual life. Break down of moral and social values are unavoidable accompaniments. We thus have to re define “development” People need for a “contended life”. Not only in terms of material purchases but also in terms of “cultural and intellectual life”.   

Sketch for “2019 Manifesto”

“Development” defined for a contended life, we need to work on a “National Policy on Socio Economic Development” that should include,   

A. Education - reforms seriously thought and planned for pre, primary, secondary, tertiary, university and post university higher education including adult education. Curricula should focus on cultural and secular life. “Free education” to be defined in terms of marginalised, the poor and the less privileged. In-service training and regular knowledge improvement/advancement for teaching profession needs inclusion, making teaching a socially respected profession at the high end.   

B. Health - needs overall change in perception from “curative health” to “preventive community health”. Major focus to gradually reduce patients seeking treatment in hospitals. Curative health needs strong referral system across both State and private sector. Preventive health sector personnel should have improved modern training.Regular eye, dental and ENT clinics should be compulsory as State responsibility from pre-school to Grade V; 10 years in a child’s life. Focus being to produce a healthy future generation.   

C. Public transport – government to take full responsibility for an efficient, affordable and a comfortable public service. Import of vehicles should be restricted giving preference strictly for public transport and other productive use, to ease growing traffic congestions. City commuting should have efficient linking between rail and bus transport to reduce individual private vehicles entering cities. Schools should promote bicycle travel with pupils resident within 02 km enrolled to public schools and all “school service” vehicles banned.   

D. National economy - should be “people driven” and not “investor” driven. Should be planned with a guarantee on a “minimum national wage” for “decent work”. Economy to be regulated, with focus on the South Asianmarket. Rural economy should be planned to greatly reduce migration in search of employment to cities and Mideast. Economic planning should accommodate adequate green canopy in all cities, guaranteeing a forest cover not below that in 1990,with guarantee on wetland and coast conservation.   

E. Agriculture - requires a wholly different approach to subsidised farming. Subsidised paddy farming in the dry zone needs rethinking.It leaves labour idling for half the year and large tracts of seasonally underutilised land. Complete neglect of post-harvest technology for most agri-products denies stabilised market prices throughout the year with glut harvests leaving farmers at the mercy of middlemen.   

F. Cultural and intellectual development – economic development should facilitate the development of a culturally advanced Citizen. All development planning thus should include modern facilities in all provinces for modern museums on different subjects, modern and multidimensional libraries, fully equipped auditoriums, theatre halls and also recreational centres and parks for both children and adults.   

G. Media – State media should be taken out of ministerial authority and placed under an independent public authority. Unlike private print media, all electronic media using digital frequency spectrums should be regulated for social responsibility. An independent authority should be responsible for short term lease of digital frequencies and their terms and conditions in detail, made public.   
The “challenge” is to create an 

inclusive “State” that can bear responsibility for such a broad and complex new approach for “development” with a paradigm change. The problem lies with the Sri Lankan State. It was conceived, established and improved upon by the British over a period of about 130 years as a “Unitary” State. When Ceylon was handed over to the Colombo elite as an independent State, centralising was structured and firm, centred in Colombo. That centralised colonial State was re fashioned as a Sinhala Buddhist Unitary State by both the UNP and the SLFP leaderships. In the first parliament, the UNP government disfranchised and turned plantation Tamil labour into “Stateless” wage earners.   

Usurping of power by Sinhala Buddhist leaderships continued with Sinhala made the only official language in 1956. The first Republican Constitution in 1972 made certain the Sinhala Buddhist Unitary State remained further strengthened by fostering the Buddhist Sangha as a privileged religious clergy (Chapter 02 Article 09 says the State as a duty will protect and foster the “Buddha Sasana”, ie., the clergy). This allowed the Colombo centred governments to directly patronise Buddhist monks who became a legitimate political factor in the Sinhala South. The Colombo centred Sinhala Buddhist Unitary State since independence reveals how “development” has left the rural Sinhala people marginalised.   
The lesson learnt is, a “Centralised Unitary State”, would leave “development” as a privilege of the Colombo centred urban life.Development should ensure “a fully contented life to all Citizens with dignity, peace and stability”.   

What could then be the alternate model? A way out would be to,   

1. Have a carefully regulated open market that will not turn citizens into screaming consumers in an atomised society   
2. Shift investments to planned and identified economic sectors with strict conditions laid down for employment and safeguards on employee rights   
3. Restructure local government and provincial councils as participatory democratic organs of governance   
4. Ensure public policy making is open and participatory and is adopted within a national development plan   
All or most of these would need a new Constitution dialogued in society, consented to and approved by the people. I would propose the APRC Final Report (accessed here - http://www.groundviews.org/wp-content/uploads/July-20-APRC-Final-Report.pdf?x98647) as the main “discussion document” for 2019 to have all its “Greetings and Good Wishes” worthy of the year.