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Leaders of the United People’s Freedom Alliance (UPFA) were preoccupied asserting the role of the Executive in the ongoing cold war with the judiciary this week too.  President Mahinda Rajapaksa who held a breakfast meeting Thursday with publishers of national newspapers and heads of radio and television stations, both private and state, re-iterated the issues involved. It was clear that the major thrust was against a senior official of the Judicial Service Commission (JSC).

A Criminal Investigation Department (CID) team has been tasked to probe allegations of sexual harassment against him. The accusations have been made in two separate letters sent to President Rajapaksa by the father of a lady magistrate. One was received in April last year and the other in June this year. In those letters the father in question has claimed that his daughter has been told by the JSC official that she should heed his “requests” if she were to succeed in her career. The letters surfaced after questions were raised at a breakfast meeting Rajapaksa held with national newspaper editors on Thursday September 27. A journalist who said his newspaper had received copies of such letters asked whether they had reached the President too. The President was also asked what action he proposed to take.

Though no serious notice was given to such matters, Rajapaksa declared that in the light of the current developments, the complaint would be investigated. Thereafter, the CID was called in.

The Sunday Times has learnt from authoritative legal sources that Chief Justice Shirani Bandaranayake who heads the JSC also conducted an investigation of her own. In the presence of two JSC members, she had questioned the official against whom the allegations had been made. He had strongly denied the accusations.

The lady magistrate, now serving a station bordering the hill country, was also called in to be questioned. She had dissociated herself from the contents of the letter her father had sent. She has denied the allegations in the letter that has been attributed to her. That has set a poser to CID detectives who now have to determine how the complaint originated. There was an added issue for the lady magistrate. She had also been questioned on how she sought additional Police protection without routing such a request through the JSC. Circulars issued by the JSC, it was pointed out, had insisted that members of the judiciary making requests for personal protection over work related issues should channel those through the JSC.

On Thursday morning, Tiran Alles, MP and publisher/proprietor of Ceylon Newspapers (Pvt.) Ltd., asked President Rajapaksa why the government had not reacted to the three-page statement issued by the JSC. In that statement on September 18, among other matters, the Commission said “various influences have been made” regarding decisions taken by them and cited disciplinary action against a judge as an example. It charged that an attempt by the Executive to call for “a meeting with the Hon. Chief Justice and two other Supreme Court judges, was not successful” and added that the JSC has “documentary evidence on this matter.” The Sunday Times was the only English newspaper to publish the full text of the statement in its political commentary on September 23.

Rajapaksa promptly looked for Presidential Secretary Lalith Weeratunga. He was not on hand at the media briefing but was engaged in other official chores at Temple Trees at that time. Moments later, Weeratunga appeared before publishers and electronic media heads to say that the government (meaning the Executive) had acted with great restraint and resilience. However, in the light of the many developments, there would be a statement in Parliament. He did not elaborate.
That hint of a statement in Parliament made clear that UPFA leaders were following a clinical approach in the current cold war between the Executive and the Judiciary. As far as the Executive was concerned, they were making clear there were no confrontational issues. The only irritant seemed to be one with the official of the JSC, a matter which they had placed in the hands of CID detectives. As for the statement in Parliament, however, there were clear signs of a new issue emerging between the Legislature and the Judiciary. More on that issue later.

President Rajapaksa told the Sunday Times on Tuesday, “We (meaning the Executive) do not have any issue with the judiciary. That should be clearly understood.” His remarks came at a luncheon meeting where he explained to me his government’s position on matters relating to the Judiciary. In a letter to Chief Justice Bandaranayake dated September 25, Presidential Secretary Weeratunga (on behalf of the President) had noted that despite the JSC decision not to meet the President, he would still meet them as had been the practice that was followed. Extending on this policy, Rajapaksa took another step this week as, Minister of Finance; he made preparations for the November 8 budget. He despatched P.B. Jayasundera, Secretary to the Ministry of Finance for a meeting with Chief Justice Bandaranaike. He is learnt to have discussed financial allocations and related matters. Whilst Jayasundera had concurred on a number of issues raised, on others he is learnt to have explained that “policy matters” would require President Rajapaksa’s attention. This week, officials from different institutions were turning up at ‘Temple Trees’ for pre-budget consultations with the President.

Among them were members of the Police Commission. A ministerial team tasked to come up with responses to deal with the ongoing cold war between the Executive and Judiciary has not met since its three-hour long sessions on September 27. The task appears to have been taken over by some leading legal experts supporting the government. They were studying various options available to the Executive should any situation demand precipitate action. Legal experts advising the Government have been told to await the return of External Affairs Minister G.L. Peiris to further discuss their suggestions. Such measures have ranged from a milder course of action to a more confrontational resolution in Parliament, where it is pointed out, that only a simple majority would be sufficient. Yet, sections of the cabinet hold the view that a “vigorous confrontation approach” would be damaging to the Government at a time when it is fighting allegations over human rights issues internationally.

On the Government side, there is an increasing perception that the last straw that broke the camel’s back, or tensions between the Executive and the Judiciary exacerbated, was the result of the draft Divineguma Bill. This draft legislation seeks to create a mega department by amalgamating the Samurdhi Authority, Southern Development Authority and the Udarata Development Authority. A three-judge Supreme Court bench chaired by Chief Justice Bandaranayake and including Justice Priyasath Dep and Justice Eva Wanasundera held that it was mandatory for the Central Government to consult the Provincial Councils before placing such type of Bill on the Order Paper of Parliament. The SC ruled that “when such authority has been attributed to the Provincial Councils, by way of provisions contained in the Constitution that cannot be taken away unless by way of following the procedure laid down in order to amend such constitutional provisions.” The provisions referred to are the direct result of the 13th Amendment to the Constitution.

This has sparked a debate both in government and opposition circles. President Rajapaksa was heard to remark at the breakfast meeting with publishers and state media heads that among those opposed to the draft Divineguma Bill were those who waxed eloquent on the 13th Amendment to the Constitution. He was to later repeat the remark at the weekly cabinet meeting on Wednesday night. However, Tamil National Alliance (TNA) leader Rajavarothayam Sampanthan told the Sunday Times” the Bill is a means of taking back what has been granted as measures of devolution to the Provincial Councils. It takes away a lot of powers vested in the PCs through the 13th Amendment to the Constitution. It amounts to usurpation of PC powers by the government. Such a move requires the approval of all PCs. The Governor of the Northern PC is not an elected representative and hence cannot certify any approval.”

The Government has decided that the Divineguma Bill should be passed in parliament on Wednesday October 10 as an urgent piece of legislation. UPFA parliamentarians have been told that their presence on this day was essential.
On Thursday, the Court of Appeal referred to the Supreme Court for its determination or interpretation an application filed by Mavai Senathirajah, MP and Secretary of the Tamil National Alliance (TNA). It is yet to be taken up by the SC. He is seeking to prohibit Northern Province Governor G.A. Chandrasiri from giving approval to the draft Divineguma Bill (on behalf of the Northern Provincial Council). Somasunderam Senathirajah, a voter from Jaffna also filed an application in the Court of Appeal. He prayed that the Governor of the “Northern Province is not elected by the people of the Northern Province, and does not in any way or to any extent reflect the views, aspirations or preferences of the people of the Northern Province. Accordingly and otherwise, he is incapable and incompetent to credibly express the genuine views of the People of the Northern Province.” One of two newspapers cited by Senathirajah is the Sunday Times (Political Commentary) of September 30. It was a reference to remarks by the Governor’s Secretary S. Ilangovan that Governor Chandrasiri would give his approval to the Bill.
However, Economic Development Minister Basil Rajapaksa told last Wednesday’s weekly cabinet meeting it was good that the Divineguma Bill had received exposure. He said it had drawn a lot of public support. Joining in was President Rajapaksa. He said the protests over the draft legislation were engineered by what he called “vested interests” but did not identify them. He said those who sat to judge such matters should not bring their personal prejudices. In as much as there are cabinet ministers who favour the 13th Amendment to the Constitution, Rajapaksa said there were also those who were opposed to it. Irrespective of those positions, they should all come out to speak in one voice about the present issues.

Now to what seems a looming tussle between the Legislature and the Judiciary. The fact that the petition challenging the Supreme Court determination on the Divineguma Bill was not addressed to Speaker Chamal Rajapaksa prompted him to remark in the House that it was an insult to the Legislature. He said, “I wish to convey to Parliament that the determination of the Supreme Court on the ‘Divineguma’ Bill which was challenged under clause 121 (1) of the Constitution. The Supreme Court has determined that if the President does not refer the Bill to the Provincial Councils under 154 (h) (3) it could not be made a law, as this Bill relates to the Provincial council list, considering it with Clause 123 of the Constitution read along with Clause 120 of the Constitution. This ruling should be printed in the Hansard.

“According to the Supreme Court determination under Clause 121 (1) of the Constitution it clearly states that when a petition is filed in the Supreme Court a copy of it should be sent to the Speaker. I observe that, stating that the legal requirements would be fulfilled by sending the documents to another Parliamentary official instead of the speaker was an infringement of powers of the Speaker enshrined under the Constitution and devaluation of the sovereignty of the people. I will discuss this issue with party leaders and will take necessary action.” The matter has since been discussed with party leaders and legal experts have also expressed their views to Speaker Rajapaksa.

The Sunday Times learns that Speaker Rajapaksa will make an official statement when Parliament meets on Tuesday October 9. The statement is to define the supremacy of the legislature as well as demarcate the areas where no intrusion was possible. One of the matters advisers to the Speaker are looking at is a ruling given by the late Anura Bandaranaike, when he was Speaker of Parliament, on June 20, 2001 during a similar confrontation between the Executive and the Judiciary at the time. Though the ruling then made revolves around a controversy following a move to appoint a Parliamentary Select Committee, some of the constitutional positions and parliamentary procedures spelt out by the late Speaker Anura Bandaranaike, they note, are relevant.

Here are edited excerpts from the Speaker’s ruling published in the Sunday Times of June 24, 2001.
They purport to be made by the Court as interim measures Hon. Members would be pleased to see is a complete and decisive intervention, amounting to an interference, with the internal affairs of the House, over which this House alone is complete master and in sole control. This is a right and privilege which elected Legislatures of this country have long enjoyed and claimed to possess without it ever being challenged by any Court or other authority ungirdled by the laws and the Constitutions that have governed our affairs.

“But considering the fact that the questioning of this undoubted right and privilege emanated from the apex Court of this country, I have thought it fit to give the matter the most careful consideration and have sought the advice of learned counsel in the elucidation of this question, which has given rise to controversy. I have done my own researches into the problem on this matter which only confirm my long-held convictions of the plenary freedom and autonomy of Parliament in the conduct of its own affairs and my intuitive resistance against all attempts from external sources to intervene in this exclusive sphere — a conviction borne out of my own experience as a Parliamentarian which stretches for nearly a quarter of a century.
“I am also deeply conscious of my responsibility and obligation as your Speaker and as the custodian of the historic rights and privileges of this Assembly and its members, to be ever vigilant against such intrusions from any place outside this House, which have the effect of impeding the conduct of the affairs of Parliament on the supposed ground of enforcing the constitutional or legal rights of others. These rights and privileges are considered to be essential to the proper performance of the functions and duties of this House, and they constitute the collective inheritance of Parliament, empowered by the law of the State that neither the Speaker nor any single member of the House can renounce or surrender or otherwise abrogate. Any such right, privilege, immunity or power does not cease unless it be by legislative amendment of the current law.

“If I may briefly summarize its main provisions, the present law on this subject came to be enacted in 1953 when the Constitution Order-in Council of 1946 as amended was in force. The foundations of the law relating to the powers, rights and privileges of Parliament rest on the necessity “to maintain its independence of action and the dignity of its position” (Halsbury Laws of England Vol 34 (4th Ed) para 1479). The exclusion of the jurisdiction of the Courts to exercise any control over the acts of the Speaker and the officers of the Legislature, has been recognized in our own law for well over half a century. It was so provided in Section 29 of the State Council (Powers and Privileges) Ordinance No 27 of 1942. It is a historic privilege recognized in the United Kingdom from ancient times and forms an integral part of our system of parliamentary democracy which has drawn heavily from their practice in the development of our own traditions. As was observed by Stephen J in Bradlugh v. Gosset (1884) 12 QBD 271 at 278 ” I think that the House of Commons is not subject to the control of Her Majesty’s Courts in the administration of that part of the statute law which has relation to its own internal proceedings………. 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….. ………..
Speaker Anura Bandaranaike then went on to quote certain sections of existing laws and said.
The cumulative effect of these provisions in my opinion, place the question of the Parliament of the United Kingdom and by the members thereof. The exercise of the Speaker’s powers wholly outside the control of any court.
Finally, if I may summarise the decisions which I have reached on the several issues that have arisen:

1. The Supreme Court had no jurisdiction to issue the interim orders restraining the Speaker of Parliament in respect of the steps he is empowered to take under Standing Order 78A.
2. The aforesaid interim orders dated 6th June 2001 are not binding on the Speaker of Parliament.
3. There is no legal obligation to comply with the said orders.

I will now proceed to instruct the Secretary General of Parliament to place the Motion in the Order Paper.”
There is little doubt that the cold war between the Executive and the Judiciary would continue. More so, with the perception among UPFA leaders, either rightly or otherwise, that some of the rulings by the Courts were part of a campaign against the Government.

Legal sources, however, strongly counter the claim and say the Courts judged each case on its own merit, legally. “A Furthermore, the country’s Constitution has clearly apportioned the responsibility of interpreting the Constitution to the Supreme Court. Section 118 states that the “sole and exclusive jurisdiction” to determine if a Bill is constitutional or not rests with the Supreme Court, provided of course in some cases a Referendum of the people is required in addition to have a Bill passed after parliament has passed it. Now, the Legislature is set to tell the Judiciary of its confines and this would naturally draw a response, at least by way of explanation. Both, the Executive and the Legislature are bonded together in the battle of sorts. The Judiciary has two fronts to face. Nothing could be more important to the public since those who go to Courts and those who believe in its independence to deliver justice will be looking forward to developments.

Mini-revolt in the NCP

President Mahinda Rajapaksa used a Sanskrit phrase at last Wednesday’s meeting of cabinet ministers to illustrate how one reaps what you do unto others.

It was to illustrate the fate of former North Central Province Chief Minister, Bertie Premalal Dissanayake. In 2008 then PC Minister Gamage Weerasena, a staunch backer of Dissanayake, lost his portfolio. He was offered the post of Council Chairman and the former Chief Minister worked hard to have him elected. However, Weerasena was ousted by a group of Councillors voting in favour of P.B. Dissanayake also from the UPFA. Dissanayake’s hopes were dashed then.

This time, however, the roles were reversed. The newly appointed Chief Minister S.M. Ranjith and his UPFA councillors wanted Amarasiri Athukorale elected as the Chairman. At a meeting in Colombo, Economic Development Minister Basil Rajapaksa said the UPFA had decided on Athukorale. He said all councillors should vote for him. He also urged them to support the Divineguma Bill and assured that contracts would be channelled to carry out development work with their assistance.
When Rajapaksa was speaking to the NC provincial councillors, there was another event taking place. At a meeting at Siri Kotha in Kotte, UNP leader Ranil Wickremesinghe was speaking to UNP councillors who form the opposition. NCP Opposition Leader Kings Nelson said it would be possible for the UNP to propose the candidature of another councillor and thus defeat Athukorale. He said this would cause a rift in the UPFA ranks. “If you all are confident, go ahead with the move,” declared leader, Wickremesinghe.

UNP Councillor Anil Ratnayake is the one who suggested that there was a possibility of defeating the UPFA’s official candidate. He won approval for the move. The next thing Ratnayake did was to telephone UPFA North Central Provincial Councillor T.M.R. Siripala who was also in Colombo. He asked him whether he could get a lift to travel to Anuradhapura when he finished his meetings. Siripala readily agreed. During the drive from Colombo, Ratnayake had convinced Siripala that he had all chances of becoming NCP chairman.

Siripala who hails from the Kalawewa electorate is said to be a close associate of former Chief Minister Dissanayake. When the NC Provincial Council met on Tuesday, Education Minister Seshala Jayaratne proposed the name of Athukorale. It was seconded by Health Minister H.B. Semasinghe. UNP Councillor Anil Ratnayake proposed the name of T.M.R. Siripala and was seconded by UNP’s C.H. Ameratunga. A vote was held under secret ballot. Siripala received 21 votes whilst Athukorale received ten. The Council has 33 members – 21 UPFA, 11 UNP and one Janatha Vimukthi Peramuna (JVP). Whilst one councillor had spoilt his ballot another had not been sworn in.

In keeping with the Government requirement that no two blood relatives can hold two different positions in a public body, Chief Minister Ranjith’s brother S.M. Chandrasena had resigned from the cabinet. He was sworn in on Thursday as Deputy Minister of Agrarian Services and Wild Life.

S.M. Ranjith received the highest number of preferential votes at the provincial council elections held on September 8. Thus, in keeping with the UPFA’s policy, he was made Chief Minister.

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