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Democracy at crossroads

  • Rajapaksa ranks rejoice, but JVP sees the beginning of autocratic insanity
  • Main opposition UNP plunges into further disarray; Sajith now openly seeking leadership
By Our Political Editor

"It's a victory for all our MPs and those who backed them," declared a jubilant President Mahinda Rajapaksa when his ministers joined him for the weekly cabinet meeting last Wednesday night.
All of them drove to 'Temple Trees', straight from Parliament where more than a two-thirds majority approved the 18th Amendment to the Constitution. Voting in favour were 161 whilst 17 were against it.
"I broke no rest a single night nor did I pay five cents to those from the opposition who supported us," claimed Rajapaksa. He said it was different earlier, like when the Government faced defeat during a vote on the budget. "On those occasions we had to work hard to prevent defeat. We had to break rest to persuade MPs to support us," he told his ministers. However, he cautioned, "we have a lot of work to do. We must now buckle down to that task."

When the discussion and approval of routine cabinet papers were over, Rajapaksa asked his ministers to join him in a Sangrahaya or treat. Most ministers took part to toast fruit cocktails and later dined with Rajapaksa. The mood was upbeat and the talking point naturally was the events surrounding the passage in Parliament of the 18th Amendment to the Constitution.

However, the mood in the UNP was just the opposite. Party seniors headed by their leader, Ranil Wickremesinghe, bitter with the defection of MPs discussed issues with lawyers. It was decided that letters be sent immediately to Lakshman Seneviratne (Badulla District) and Earl Gunasekera (Polonnaruwa District). The former was stripped of his post as Deputy Secretary of the UNP and the latter from the post of Assistant Treasurer. They were also removed from the Working Committee. When a courier service delivered the two letters to the homes of the two parliamentarians, they broke open, read it and returned them saying they could not accept. At Seneviratne's residence, a police officer took the letter from the courier deliveryman and gave it to him. He wrote two unprintable words meaning to buzz-off on the envelope before sending it back.

Rajapaksa supporters demonstrating in support of the 18th Amendment. Pic by Sanka Vidanagama

Since his decision to switch allegiance, the MP from the Badulla district has been at the receiving end of calls and sms messages from UNP loyalists. When he went by chopper to his constituency in a private chartered helicopter, one of them sent a message asking why he was flaunting his wealth so soon. But when Moneragala MP Ranjith Madduma Bandara who had combined with Seneviratne to topple the party leader was asked why he too didn't vote with the Government on the 18th Amendment like Seneviratne did, he replied "gamey pansalay loku hamaduruwo ekka tharaha vunai kiyala aagama athharinna one na ne" (Because you are angry with the high priest of your local temple you don't have to give up your religion).

In addition to Seneviratne and Gunasekera, the fate of five other MPs remaining as members of the UNP now rests with a meeting of the working committee, the main policy making body, on Friday, September 17. At their last joint meeting on September 1, it was decided unanimously that party MPs who supported the 18th Amendment would be expelled. The decision, as revealed in these columns last week, to oppose the 18th Amendment in Parliament. The Opposition Chief Whip John Ameratunga issued a 'three line whip' last Tuesday to UNP MPs telling them to vote against the 18th Amendment. Nevertheless, Ameratunga was himself at the centre of speculation about a crossover.

In accordance with parliamentary tradition, special attention is paid to the voting which is called divisions (where members vote on debates). These divisions are ranked in order of importance of the debate by the number of times they are underlined. Important divisions are underlined three times -- a 'three-line whip.' Defying a three-line whip is considered very serious. This means that the MP who chooses to dare the whip is effectively expelled from the party in terms of Westminster parliamentary traditions followed in Sri Lanka.

The five MPs are Manusha Nanayakkara (Galle District), Abdul Cader (Kandy District), Sri Ranga (Nuwara Eliya District), Nilwala Wijesinghe (Kurunegala District) and Upeksha Swarnamali (Gampaha District). The UNP leadership is cautious not to initiate any action against all seven renegade MPs until the Working Committee discusses the matter and takes a decision. One of the issues is the undated letters of resignation UNP candidates handed over to Wickremesinghe before they were elected. The Working Committee is to examine whether these letters could be forwarded to the Commissioner of Elections to claim the seats of the renegade MPs that have fallen vacant. UNP leaders are also seeking legal opinion in this regard.

Interesting enough, the eight parliamentarians from the Sri Lanka Muslim Congress who are technically UNP MPs (since they contested on the party ticket) faced no action. Neither did Praba Ganeshan and P. Digambaram, who started the crossover process in the current parliament.

A senior UNP leader who did not wish to be named said, "the SLMC does not come under our disciplinary control." This is grist to the mill for those facing expulsion. Besides pointing this out, they say there were many instances where party members including MPs were not expelled for violating discipline.

On Thursday, Lakshman Seneviratne, flew in a private helicopter to Mahiyangana to a welcome reception by his supporters. He said there would be "good news in a few weeks" and called upon the people of Mahiyangana electorate to join hands with him to develop the area. The remarks suggested that he would soon be a cabinet minister. On Friday, Seneviratne launched a vituperative attack on UNP leader Wickremesinghe. He said he should take sole responsibility for the crisis within the party. "He is not concerned about the country, the people or the party. He is only concerned about protecting his own position and enjoying the benefits of office. At times of importance, he gets out of the country," Seneviratne told a private radio station. He challenged the UNP to sack him and his colleagues and warned, "See what happens thereafter."

The UNP’s protest too little too late. Pic by Lasanda Kurukulasuriya

A similar reception was also held for Upeksha Swarnamali in Gampaha. Her last minute decision to support the amendments was the result of heavy pressure brought on her particularly by her husband. She had worn a black sari and turned up in the Parliament precincts for the party's Satyakriya or protest. Later on Tuesday, however, she telephoned a party MP who in turn passed on his mobile phone to Wickremesinghe. She said she was under immense pressure. The UNP leader asked her to decide. She did. She went in the same black sari for a meeting with President Rajapaksa at 'Temple Trees' accompanied by her husband, came back and voted with the government. However, in Galle, sections of Manusha Nanayakkara's supporters went to a temple to smash coconuts on the ground. It was to invoke the wrath of gods to punish him. They accused the parliamentarian of reneging on his promise never to leave the UNP.

The conduct of a group of renegade MPs who voted for the 18th Amendment and resultant developments have worsened Wickremesinghe's woes. Dayasiri Jayasekera told the Sunday Times that a group of nearly 25 UNP MPs had decided they would sit as an independent group in the opposition if Wickremesinghe did not affect party reforms within a week. "We urgently want the party leadership to implement reforms in the party. This will be the issue which we would be raising at a parliamentary group meeting fixed for next Tuesday", Jayasekara (UNP MP for the Kurunegala District) told the Sunday Times.
He said, "We are not willing tobow down to all mad acts of the government and remain silent. We need to be strong and react. That is why we need the reforms as soon as possible".

He added that discussions were underway with the others regarding the decision to sit as independent members, something, if it happens, the UNP hierarchy won't be able to sit back and allow.
On Tuesday, a day ahead of the debate, Speaker Chamal Rajapaksa, announced that the Supreme Court had ruled that the provisions of the draft 18th Amendment were consistent with the Constitution. The 19-page judgment had been signed by Justices Dr. Shirani Bandaranaike, K. Sripavan, P.A. Ratnayake, S.I. Imam and R.K.S. Suresh Chandra. (Pls. see extracts of the judgment in box)

When Wickremesinghe returned from Chennai after attending a private function last Sunday, Karu Jayasuriya, his deputy and General Secretary, Tissa Attanayake together with a group of MPs were holding meetings with the Most Venerable Maha Nayakes of the Malwatte and Asgiriya chapters. Thus, the UNP's strategy against the 18th Amendment was discussed only last Tuesday, just a day ahead of the debate in Parliament partly due to Wickremesinghe's absence from the country.

Wickremesinghe told a joint meeting of the parliamentary group and the working committee last Tuesday that the 18th Amendment did not augur well for democracy in Sri Lanka. Rather than fighting the issue inside Parliament, he opined that it should be fought outside. This also seemed to be the majority view of a committee that the Working Committee had appointed to discuss strategy on opposing the 18th Amendment. His deputy Jayasuriya was to add that there was no necessity for the government to rush through the amendments. Sajith Premadasa, who was absent at the previous meeting, said that the party should demand a referendum before the amendments were passed. Tissa Attanayake and Dayasiri Jayasekera were among the speakers.

If the previous joint parliamentary group-working committee meeting had decided to oppose the amendments, a debate ensued this time about how to do it. A section supported Wickremesinghe's proposal to fight the issue outside Parliament. Another insisted that they should go to Parliament and make their strong viewpoints recorded in the Hansard so future generations would know they had opposed it. However, Wickremesinghe's view prevailed. It was decided that he would make a statement on Tuesday and the party would hold a Satyakriya within the Parliament compound.

Thereafter, the party would conduct a protest march from 'Siri Kotha' to Parliament on Wednesday when the debate on the amendments would take place. Most MPs were unable to muster a crowd from their electorates since they had only a day's notice. The country's premier opposition political party, though aware of the impending constitutional changes, could not become organized over an issue of utmost national importance. It was aware weeks ahead that the constitutional changes were coming.
UNP parliamentarians were seated on the steps at 'Siri Kotha' before the Sathyakriya began. There were no crowds and a discussion ensued on what has to be done for the ills of the party. Kabir Hashim (Kegalle District) proposed that they write to Wickremesinghe asking for an urgent meeting of the UNP Parliamentary group. A letter took shape. Hashim signed it first to be followed by Talatha Atukorale (Ratnapura District.) At least 18 other MPs followed. Wickremesinghe said there was no time for it now and returned the letter.

When the extension of the Emergency was debated Wickremesinghe made a good speech in Parliament on Tuesday, 24 hours before the 18th Amendment was to be debated. "Every Parliament has the power to determine and regulate its own proceedings. The House of Commons fought a civil war with King Charles I and then dismissed his son James II to establish this right. Thereafter all Parliaments throughout the world enjoyed this right. Halsbury Laws of England states that the right of Parliament is based on the need to maintain its independence of actions and the dignity of its decisions.

"Sri Lanka's Constitution also embodies this right. Article 4 (c) states that Parliament shall directly exercise its judicial powers in regard to its powers and privileges. Furthermore, Article 74(1) provides for Parliament by Standing Orders to provide for the regulation of its business. The Standing Orders of the present Parliament lay down the procedure for presenting a Bill to Parliament and to enact it as a law. The first reading is the presentation of the Bill in Parliament, the second reading is when the Bill is debated and either passed or rejected by the House. After the 13th Amendment to the Constitution which established the Provincial Councils the Parliament made a new Standing Order 46A, which reads as follows:

The JVP was able to draw a large crowd for its protest . Pic by Saman Kariyawasam

"46A (1) When a Bill in respect of any matter set out in List III of the Ninth Schedule to the Constitution (Provincial List) is presented to Parliament, unless Parliament otherwise decides by resolution, the procedure laid down in paragraph 2 of this Order shall be followed.

"(2) (a) The Speaker shall direct the Secretary-General to forward copies of the said Bill to each Provincial Council for report to Parliament on its views regarding the Bill within a period of one month from the date of reference of such Bill to such Provincial Council or such period of time as Parliament may specify.
" (b) On the expiry of the times specified in (a) above, or on the receipt of the views of the Provincial Councils, whichever is earlier Parliament may proceed with the Bill.

"On Tuesday 7 September, the Prime Minister moved the first reading of the 18th Amendment to the Constitution. Clause 20 of the proposed 18th Amendment amends Article 154 of the Constitution by including the Provincial Public Service Commissions into the ambit of the Article. By Clause 20 the Provincial Public Service Commissions are abolished. These Commissions are dealt with under the 13th Amendment and therefore this was a Bill in respect of a matter set out in Provincial Councils.

"I raised the point of order that the Bill must be sent to each Provincial Council for a report to Parliament under Standing Order 46(2). Standing Order 46A (1) made provisions for a Bill to be exempt from Standing Order 46A if a resolution to that effect is passed by Parliament. Since there was no such resolution on the Order Paper, Standing Order 46A (ii) has to apply.

"The Speaker referred to the Judgment of the Supreme Court which notes that this Amendment does not attract the provisions of Article 154(G)(ii) of the Constitution which requires the President to refer such Bills to every Provincial Council before it is placed on Order Paper. There are two earlier Judgments to the contrary. In the matter of the Local Authorities (Special Provisions) Bill (Hansard 6/1/2009 Col.5,6) the Supreme Court made a determination in terms of Article 123 read with Article 154(G)(3) of the Constitution that the particular Bill related to certain matters set out in the Provincial Council List and shall not become law unless it is referred by the President to every Provincial Council.

"The same observation was made by the Supreme Court in the matter of Water Services Reform Bill (Hansard 20/11/2003 Col. 138). The Supreme Court has not referred to these cases at all. But I did not argue on Article 154 (G) of the Constitution. That was not relevant to the point of order I raised. I confined my argument to the powers of Parliament and not to the powers of the President.

"The Supreme Court judgment has no bearing on Standing Order 46A. Stephen J, in Bradlaugh v. Gossett stated "It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly." Since our Parliament has the same powers as the UK Parliament the Supreme Court decision does not apply to Parliament. The Court will not interfere with matters of Parliament. The Parliament has ignored Standing Order 46A and passed the 18th Amendment Bill.

"This is a violation not only of the Standing Order 46A but also of the Constitution which empowered Parliament to regulate its business through Standing Orders. Thus, all proceedings in respect of this Bill are illegal. "

Later that day, most of them clad in black, UNP parliamentarians staged a protest within the Parliament precincts. At one point, Prime Minister, D.M. Jayaratne, was travelling in a motorcade. He saw Wickremesinghe waving at him and stopped. Alighting from his car, the Premier walked up to Wickremesinghe and said "Oya athi than. Enna sabhawata." (Its enough now. Come to the House). There was chorus of UNP voices shouting back "Agamethi thuma enna apith ekka satan karanna (PM, please come and join us in our fight). One UNPer shouted loud "Lokka dena gaththoth Agamathi thuma evarai" (If the Chief gets to know, the PM is finished).

On Wednesday, whilst the Parliament was debating the 18th Amendment, UNPers gathered at their headquarters, 'Siri Kotha' to begin a demonstration. A telephone call from Mangala Samaraweera to deputy leader Karu Jayasuriya was to cause some interruption. He said that the Mirihana Police, who were on the lookout for a printing press owner for allegedly printing defamatory posters of President Rajapaksa, had arrested the press owners wife. Deputy Leader Jayasuriya, Gamini Jayawickrema Perera, John Ameratunga, Dayasiri Jayasekera and Wijedasa Rajapaksha rushed to the Mirihana Police. They spoke to Police officials and arranged lawyers to represent her.

A procession of some 1,000 UNP supporters marched from 'Siri Kotha' towards Parliament but was stopped at the Beddegana junction. There was a mild diversion when a group of supporters shouted "apey nayaka thumata jayawewa" (cheers to our leader). It was a reference to Sajith Premadasa. The youth had surrounded him and were raising their fists as they shouted the slogan. Moments later, another group was heard to shout "Ravi Karunanayake thumata jayawewa." (cheers to Ravi Karunanayake). Both Premadasa and Karunanayake are now archrivals within the party.

Premadasa was incensed after sections of the media reported that Wickremesinghe has appointed Karunanayake as the Assistant Leader of the UNP. His supporters accused Wickremesinghe of leaking the news item but he denied the charge. Premadasa told our sister paper Daily Mirror that he would contest Wickremesinghe for the party leadership. He also said that he would launch his party's new campaign from Colombo North, Karunanayake's electorate.

Premadasa has gone the full circle. At first, he sought the post of deputy leader agreeing to work with Wickremesinghe, then said he would not seek office and has now declared he wants to become leader. He is continuing his campaign for a leadership position speaking to grassroots level organisations of the party. Next Friday, he will meet members of the Independent Professionals Forum, a UNP outfit at the Solis Hall in Pita Kotte. He wants to seek the support of party professionals.

In marked contrast to the UNP's demonstration, the protest by the Janatha Vimukthi Peramuna (JVP) drew large crowds. The Police estimated a presence of over 4,000 participants. The JVP accused the Police of turning away some of their members travelling in buses from different parts of the country. They said some buses were held up for hours allegedly, until Police sniffer dogs arrived. A senior official at Police Headquarters, however, denied the accusation.

Speaking during the debate on the 18th Amendment, JVP's Anura Kumara Dissanayake made a stirring contribution, one of the better speeches in recent times according to several MPs. He said, "Many government members said that today is a historic day. Days become historic not only for good deeds but also infamous deeds. It is one such day. Today marks the funeral of democracy, which is buried in the cemetery of Parliament. I can understand why so many government members are shouting because the louder they shout, their chances of survival in the government are better.

"With the decision to lift the two term limit on the President, can even a child of an SLFP member aspire to be the President? Today, democracy is failing. There are attacks on peaceful rallies, political victimization as well as politicization of government institutions. The media are under attack. There is insanity brought about by autocratic rule. The impact of this will be felt by future generations as well."

Among those who strongly defended the 18th Amendment were Prime Minister D.M. Jayaratne and Economic Development Minister, Basil Rajapaksa (see extracts on Page 7). Premier Jayaratne said, "Those who are opposed to this are trying to create the wrong impression in the minds of the people that this is harmful. The 1978 Constitution was introduced by J. R. Jayewardene according to his needs but not based on public interest.

President Mahinda Rajapaksa used the office of executive president to end a 30-year war and to develop the country. "He did not use this power to postpone elections, intimidate the Judiciary, stifle protests, and give security to criminals, and sell public property or to topple governments that were elected by the people's mandate. Under the law, a Provincial Council or Pradeshiya Sabha member can be elected any number of times without any restriction but there is a restriction on the terms a person can contest for the office of President. The amendments will remove this obstacle. Also the changes make provision for the President to attend Parliament every three months."

Basil Rajapaksa told Parliament, "This amendment is to protect the mandate of the people. If people want to elect the same person for a third term, they should be allowed to do so. The Constitutional Council could not function for many years because there was a deadlock. Now with the creation of the Parliamentary Council with this amendment, there will more responsibility to Parliament. The prime minister and the opposition leader will be able to appoint their representatives to it. This one will ease the problems created by the 17th Amendment. The president needs a stable government to work for the people in the second term. These amendments will help towards that end."

Remarks by former Army Commander, Sarath Fonseka, at a news conference in Parliament were to draw an angry reaction from the UNP. Fonseka, leader of the Democratic National Alliance said, "The 18th Amendment will lead to a constitutional dictatorship. The government is inviting revolutions and coups by doing this .We have seen what happened to Marcos and Suharto. There was one ruler in Africa who built a golden throne and crown but he could not use them for long. This amendment is the final nail in the coffin of democracy in the country. The Government may have a two third in the parliament but in reality it has only one third of the votes so it cannot say it represents the majority of the people.

"It is unfortunate that members of the more powerful opposition party are not present in the House. Because we are elected by the people you have to come to parliament and speak on behalf of them."
His remarks drew an angry response from the UNP the next day. Addressing a hurriedly-summoned news conference, Dayasiri Jayasekera warned, "Fonseka should safeguard his mouth." That has caused him a lot of trouble.

The situation faced by Fonseka is the result of his experience in the past. "When someone makes charges against our party, we feel sad. We are not ready to dance according to someone else's tune. We have learnt lessons in the past. Fonseka should have learnt how to work with the opposition. He should not dilute the respect we have for him. Fonseka is not flexible. He must realise that the tail cannot wag the head. He should stop levelling charges against the UNP whilst being in a small party."

It is clear from the week's developments that the UNP's problems are multiplying manifold. Disturbing enough, this is at a time when Parliament has decided to have a stronger presidency and there is erosion from opposition ranks. All eyes will be on the UNP in the coming weeks and months. That is not only to see how the UNPers will overcome their internal crisis and face the upcoming local government elections. It is also to see whether the party is capable to deliver as a credible opposition, or wilt due to disunity.

SC's views on 17th Amendment

Among the noteworthy observations of the Supreme Court in the determination on the constitutionality of the 18th Amendment is a reference to the contention of counsel for the petitioners that the Constitutional Council, which the 18th Amendment sought to abolish, was established with the intention of safeguarding the independence of the judiciary. They had argued that the purpose and objective was to place a restriction on the discretion of the President in appointing judges to the higher judiciary.
The SC noted that the Constitutional Council was the core of the 17th Amendment.

The Supreme Court determination on the 18th Amendment said;
"….the 17th Amendment was brought into effect only in 2001 and from 1978 up to the 17th Amendment came into effect, for a period of over 13 years, judges were appointed in terms of the provisions laid down under the 1978 Constitution. This position in fact was considered in Silva v Bandaranayake {1997} 1 Sri LR 92, by a seven judge bench of this Court. In that matter consideration was given to the appointment of judges to the Supreme Court by HE the President of the Republic under Article 107 of the Constitution.
"At that time, as could be clearly seen, the 17th Amendment had not come into effect and the Supreme Court had considered the matter under Article 107 of the 1978 Constitution. In that decision, the Supreme Court had clearly held thus:

'The President in exercising the power conferred by Article 107 of the Constitution has a sole discretion. The power is discretionary and not absolute. It is neither untrammelled nor unrestrained and ought to be exercised within limits.

'Article 107 does not expressly specify any qualifications or restrictions. However, in exercising the power to make appointments to the Supreme Court there should be co-operation between the Executive and the Judiciary, in order to fulfil the object of Article 107.'

"Prior to the decision in Silva v Bandaranayake (supra) this Court had examined the powers of the Executive with regard to appointments. In Premachandra v Jayawickrema {1994} 2 Sri LR 90, this Court stated that:

'There are no absolute or unfettered discretions in public law; discretions are conferred on public functionaries in trust for the public, to be used for the public good, and the propriety of the exercise of such discretions is to be judged by reference to the purposes for which they were so entrusted.'

"It is therefore quite apparent that even prior to the introduction of the Constitutional Council in terms of the 17th Amendment to the Constitution, there were necessary safeguards which restricted the discretion of appointing authorities since no one possessed any unfettered discretion. The relevant provisions contained in the 1978 Constitution had not violated Article 3/and or 4 of the Constitution and similarly the introduction of the Constitutional Council also has not violated any of the said provisions……"

"On a consideration of the totality of the provision dealing with the establishment of the Parliamentary Council, it is abundantly clear for the reasons aforesaid that the proposed amendment is only a process of redefining the restrictions that was placed on the President by the Constitutional Council under the 17th Amendment in the exercise of executive power vested in the President, which is inalienable."

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