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•  JHU, NFF intensify campaign against 13th Amendment; private-member motion and unofficial referendum
•  Basil says concerns expressed by UPFA partners and officials need to be considered
• President going ahead with plans for polls, SC ruling and Gazette notification this month

Two giant Russian Antonov 124 transport planes touched down this week at the Bandaranaike International Airport (BIA), taxied in the opposite direction towards the Sri Lanka Air Force (SLAF) base apron instead of the passenger terminal building to unload the heavy cargo in their bellies.

They were six Mi 171 helicopters; part of a fleet of 14 Russia is giving to Sri Lanka under a 2010 credit line for US$ 350 million. Some US$ 200 million from the credit still remains for other purchases.

Each An-124 strategic airlift jet carried three helicopters in knocked-down condition. Of the six, two are Mi 171-E VIP versions and will be for the President’s fleet. They have been specially configured to carry eight passengers plus crew and are equipped with satellite communications. The SLAF’s aging VIP fleet has often forced President Mahinda Rajapaksa to land unannounced in some areas. This was due to technical defects. Four more are Mi 171-Sh versions for military use. Eight other Mi-171 troop transport variants are due for delivery. Russian engineers and technicians have also arrived to assemble the helicopters, carry out test flights and formally hand them over to the SLAF.

At a time when the Government is still debating whether to import or hire luxury cars from foreign companies for the November Commonwealth Heads of Government Meeting (CHOGM) in Colombo, at least air travel is now assured. The new Russian helicopters will be put to good use to move VVIPs and their security entourages. Such travel is planned for trips to Hambantota where a Youth Forum will take place and Dambulla, the venue for a People’s Forum.

These developments came as the Government took the first official step in the conduct of Northern Provincial Council elections in September. The Supreme Court will, in the coming week, determine the constitutionality of an urgent Bill “to make special provision to exempt internally displaced persons from certain requirements of the Registration of Electors Act No 44 of 1980.” It will come up in Parliament next week after the Supreme Court determination.

The Bill permits “internally displaced citizens to vote in the electoral district in which they were resident prior to 2009,” provided (1) if his or her name appeared in the register of electors for any electoral district in the Northern and Eastern Provinces for any year until the end of 2009, and (2) whose name has not been entered in any register in operation subsequent to 2009. Even children of those citizens who are above the age of 18 will be eligible for registration on production of a birth certificate and a certificate issued by the Grama Niladari of the area in which they are presently residing.

A note circulated to his ministerial colleagues by Justice Minister Rauff Hakeem states, “During the armed conflict which engulfed our country for 30 years, a large number of civilians were forced to flee their places of permanent residence especially in the Northern and Eastern Provinces. Such displaced families and individuals had abandoned their lands and properties and sought temporary residence and accommodation in other parts of Sri Lanka or were housed in camps in other parts of Sri Lanka.

“In terms of the Registration of Electors Act No 44 of 1980, an applicant for registration as an elector should have attained the age of 18 years and should be resident in an electoral district on the first day of June of each year to be registered as an elector in such electoral district. The address at which such applicant was ordinarily resident in an electoral district on the first day of June in any year is referred to as his qualifying address. Consequently a large number of internally displaced individuals from the Northern and Eastern Provinces find it difficult to comply with the requirement of a qualifying address, in order to be registered as electors in such Provinces.”

The following are the significant highlights of the Bill:

• It provides for a supplementary register to be compiled.
• The Registering Officer prepares a list of names of persons and publishes a notice in the Gazette and in at least one newspaper in Sinhala, English and Tamil languages that such list has been completed and is open for inspection.
• A person who has applied to be registered and whose name has not appeared in the list may appeal in writing to the registering officer within one week of notice being published in the Gazette.
• If after inquiry the registering officer decides not to include the name of such person in the Supplementary Register, the aggrieved appellant may appeal to the revising officer within one week of such decision.
• No person whose name appears in the Supplementary Register shall have his name entered in any other register of electors.
• If a person uses his vote in two or more electoral districts they shall be guilty of an offence. They will be liable, upon conviction, for imprisonment for a term of two years or a fine not exceeding Rs. 100,000 or both.
• The proposed Act will be in operation only for two years and may be extended for further periods of two years by the Minister by the Order published in the Gazette.
• Any person furnishing false information or forged documents will upon conviction be liable to a prison term of one year, a fine of Rs. 50,000 or both.
• Such order should be placed before Parliament within three months from the date of publication.

As revealed exclusively in these columns last week, President Rajapaksa will issue a proclamation on June 26 constituting the Northern Provincial Council. Immediately thereafter, he will issue a directive to the Commissioner of Elections Mahinda Deshapriya to conduct the polls for that Council.

This week, issues relating to the conduct of the NPC polls under the 13th Amendment to the Constitution took a new turn. This is particularly with regard to the existing provisions related to Land and Police powers constitutionally vested in the Provincial Council. A section of Government’s legal advisors from the private bar have argued that the provisions relating to the Police have become defunct due to subsequent amendments. Now, External Affairs Minister G.L. Peiris, a professor of law, has been asked to study the matter and explain to the Cabinet his views on the issues involved.

These advisors claim that the 13th Amendment vested Police powers in the Provincial Council and provided for a Provincial Police Division for each province. This is besides a National Police Division with all ancillary units. Both came under the Inspector General of Police. In terms of Item 4:1 of Appendix 1 of the 13th Amendment to the Constitution, “A Provincial Police Commission shall be responsible for transfers, promotions and disciplinary control over officers in the Provincial Division; for promotion of officers of the National Division seconded to the Provincial Division up to the rank of SSP; and for transfer and disciplinary control over officers seconded to the Provincial Division, except the DIG (Deputy Inspector General of Police).”

However, they claim that the 17th Amendment to the Constitution that superseded the 13th (with three other unrelated amendments in between) made no provision for a Provincial Police Commission. Moreover, they also claim that the 18th Amendment has further added to the issue with the President being empowered to nominate persons for the National Police Commission.

Yet, putting an opposing argument forward, other expert legal sources point out that those provisions of the 13th Amendment relating to the devolving of police powers cannot be seen as being impliedly set aside or rendered defunct by the 17th Amendment or the 18th Amendment without express provision to that effect in those later amendments. They point out that the 17th Amendment itself was silent on the question of devolved police powers as it dealt with national police policy, putting into place an independent National Police Commission. Consequently, the well-established rule of constitutional interpretation, that earlier and special legislation cannot be indirectly repealed, altered or derogated by later amendments without the express intention of Parliament, comes into play, they added.

It is also relevant that, following the 13th Amendment, a Police Commission Act No 1 of 1990 was certified on January 23, 1990 though this law was not brought into operation. Even so, the same sources argue that this demonstrates “a specific legislative intent in total (read with the 13th Amendment) to devolve police powers which intent cannot be impliedly repealed by the 17th Amendment.” Under the 18th Amendment, the National Police Commission created by the 17th Amendment continued but with much of its substantive powers expressly repealed and with the President appointing its members without the intervening authority of the Constitutional Council. Here again, devolution of police powers is not expressly referred to and the 13th Amendment is left intact, these sources said. This appears to be an intricate point of constitutional law certainly.

The Jathika Hela Urumaya (JHU) which this week handed over a private member’s motion to repeal the 13th Amendment to the Constitution has now taken a new policy direction. If it earlier insisted in the total abolition of the provisions of the Amendment, Udaya Gammanpila, a Minister in the Western Provincial Council told the Sunday Times, “We are now ready to compromise.” He said: “we are aware that there are international and domestic pressures. We are ready to compromise on four different issues.”

They are:

• Repeal of the Police powers vested in Provincial Councils.
• Repeal of Land powers vested in Provincial Councils.
• Repeal of provisions that allow one PC to merge with another.
• The Parliamentary Act that provides for the consent of all PCs before introducing legislation affecting them is amended. It should make provision only for a majority of PCs to approve such legislation.

“We have now taken a decision on the new compromise formula. We have also decided we will meet all political parties including the Tamil National Alliance (TNA) to explain our four points,” Gammanpila said. In the coming week, he revealed, that the JHU would meet a delegation from the Democratic Party headed by former General Sarath Fonseka. Later, the JHU would also meet a delegation of the Janatha Vimukthi Peramuna (JVP) led by Somawansa Amerasinghe. Our final meetings will be with Opposition UNP leader Ranil Wickremesinghe and President Mahinda Rajapaksa. At these meetings, which will be after we have met all parties represented in Parliament, “we would urge the two leaders to allow a free vote so matters relating to the four points we have raised are approved.”

Gammanpila added that the private members motion has been handed over last Wednesday in accordance with Standing Orders (Section 47) which sets out the procedure for a private member’s motion. In terms of this, he said, the Secretary General of Parliament would publish the motion in a Government Gazette. Thereafter, it would be referred to the relevant Minister. “Since there is no Minister of Constitutional Affairs, it is our understanding that it would be the Minister of Justice,” he pointed out. Once that is done, he added, that the motion will be referred to a Parliamentary Select Committee. “We are meeting the TNA to explain why we feel the four points in the 13th Amendment to the Constitution should be annulled,” he said.

“We have still not taken a final decision on Constitutional amendments,” Economic Development Minister Basil Rajapaksa told the Sunday Times yesterday. He said the JHU has already written to Sri Lanka Freedom Party (SLFP) General Secretary Maithripala Sirisena seeking a meeting to discuss matters related to its motion. Sirisena is away in the United States and is due in Colombo on Thursday. “This type of proposal is coming from a party within the Government. We have to discuss it,” he said. For that purpose a date will be arranged with President Rajapaksa. Thereafter even other parties in the Government will have to be consulted, Minister Rajapaksa added.

Rajapaksa, who is also the National Organiser of the SLFP, said, “We cannot ignore the national security considerations that arise. The issue has been raised even by officials. Such concerns have been there for many years. We have a commitment to safeguard the Constitution. There are some clauses (in the Constitution) that cannot be changed even with a two thirds majority. That provision was made in the Constitution drafted by the late Colvin R. de Silva. That is there even in the present J.R. Jayewardene constitution. When someone points this out to us, we have to look into it. Of course we are open-minded. We are also concerned.”

Among the officials Rajapaksa was referring to is Defence Secretary Gotabaya Rajapaksa who has expressed concern over the 13th Amendment. He is strongly of the view that Police and land powers should be divested from the 13th Amendment.

Today, the National Freedom Front (NFF) will launch its one million signature campaign against the conduct of the NPC polls and to exclude land and police powers from the 13th Amendment, its leader and Minister Wimal Weerawansa said. It would begin in Colombo and extend to the districts, he added. He told the Sunday Times, “We are also to meet the President. We will take up the issues we are campaigning against.” Weerawansa, accompanied Rajapaksa on his official visit to China for a meeting with the new Chinese President Xi Jinping. The only other ministers were External Affairs Minister Peiris and Douglas Devananda, leader of the Eelam People’s Democratic Party (EPDP). Two parliamentarians, Namal Rajapasa and Sajin de Vass Gunawardena, were also in the entourage which returned on Thursday night. Weerawansa said that President Rajapaksa received a hero’s welcome in China.

Once again, the events that are playing out show the domestic issues relating to the upcoming Commonwealth Heads of Government meeting (CHOGM) are far from over. The priority for the UPFA Government will be to sort out these domestic issues before it can look to the November event. These are daunting challenges.

New Constitution to end Rajapaksa dictatorship: Ranil

• Sweeping democratic reforms with strict laws for good governance, accountability and transparency

In Committee Room “A” of the Parliament Complex in Kotte-Sri Jayawardenapura, the main opposition United National Party (UNP) on Wednesday unveiled a “Discussion Paper’ for a new Constitution for Sri Lanka.

Members of the clergy, representatives of civil society and opposition parliamentarians gathered there cheered when a significant provision in the position paper was read out. It was the introduction of new anti-corruption laws and to apply it retrospectively on the private sector, to which such laws do not apply now.

It also has provision for a Code of Ethics for Parliamentarians, Members of the Council of State, Justices of (proposed) Constitutional Courts, Superior Courts, members of the Judiciary and all other elected Members of Provincial Councils and Local bodies in accordance with international criteria.

UNP and Opposition Leader Ranil Wickremesinghe declared, “If one is part of the Rajapaksa regime, there is no need to be governed by the country’s laws. For the others, they will use the law to ruin them.” He said what prevails today is the authority of the Rajapaksa regime. “Today we see free education has been dismantled. Free health services have been abolished. Without any reason the electricity tariffs have been increased,” he said.

The proposed new Constitution, which would emerge after public discussion, Wickremesinghe said would replace the Second Republican Constitution adopted in 1978. The main aim would be to end the Rajapaksa dictatorship, he added.

UNP’s Communications chief Mangala Samaraweera told the Sunday Times that the draft Discussion Paper for a new constitution would be debated at the district level. There civil society leaders and members of the public would have an opportunity to air their views. “What emerges as the final draft of a new constitution would be adopted through a referendum, within six months after the UNP is voted to power” he added.

The Tamil National Alliance has welcomed the Discussion Paper. TNA parliamentarian M.A. Sumanthiran said in a statement distributed at the event that it must be “welcomed and applauded”. The history of this country, he said, is replete with instances of the main opposition party of the day opposing any proposals put forward by the government in office, without themselves committing to any particular position. He added “Today the roles have been reversed, with the government not able to or not willing to come out with their proposals to find a lasting political solution to the long-festering issues by means of a truly autochthonous constitution for this country.”

Here are some highlights of the Discussion Paper:

Legislature 

Parliament shall consist of 225 members elected on a mixed system where each constituency will elect its representative and the final result (seats in Parliament) will reflect the Party’s true strength (i.e. total votes polled) at elections. This system will give value for every vote cast.

• The system of preference votes will be abolished.
• The tenure of Parliament and the Provincial Council is fixed at five years.
• Elections for Parliament and all Provincial Councils shall be conducted on one and the same day, and in the event the Head of State is also to be elected, that election will also be held on the same day.
• If any Member of Parliament, or a Member of any Provincial Council or a Member of any Local Government Institution fails to submit Annual Declaration of Assets and Liabilities within the stipulated time period, he or she shall cease to be a Member of that body. Ministers and Deputy Ministers shall also be required to submit their Annual Declaration of Assets and Liabilities to the Speaker instead of the Executive as it is done now.
• If any Member of Parliament, or a Member of any Provincial Council or a Member of any Local Government Institution is convicted for a crime irrespective of whether he or she serves a jail sentence or not, he or she shall cease to be a Member of that body.

Executive 

• Presidency will be abolished.
• Instead of the Presidency, a Head of State will be substituted. The current powers conferred on the Presidency will be divided among the Head of State, the Prime Minister, and the Speaker’s Council.
• Option 1: A Prime Minister elected by the people at an election to govern with the Cabinet. The Prime Minister and his Cabinet are responsible to Parliament.
• Option 2: As a novel system the executive powers will be exercised on apolitical basis and to be subject to checks and balances.
• To ensure direct exercise of the People’s Sovereignty, the Head of State will be directly elected by the people.
• The Head of State will be the Head of the Council of State (which will consist of the Prime Minister, Leader of the Opposition, the Leaders of the political parties represented in the Parliament and the Chief Ministers of the Provinces), and will act on the advice of the Council of State.
• The Council of State shall decide on all political directions and national priorities. The Cabinet of Ministers headed by the Prime Minister and the Provincial Boards of Ministers shall be responsible for implementation of the decisions of the Council of State.
• The Cabinet of Ministers will be restricted to 25 including the Prime Minister.
• There shall be a Speaker’s Councils consisting of the Speaker, the Prime Minister, and the Leader of the Opposition and representatives of all political parties represented in Parliament. The Speaker shall be the Chairman.
• On recommendations of the Council of State, the Head of the State shall appoint members to Independent Commissions, Justices to the Constitutional Court and Superior Courts. Heads of State Institutions shall be appointed by the Head of State with the approval of the Speaker’s Council.

Devolution of Powers 

• While Sri Lanka remains a Unitary State, powers will be genuinely devolved to Provincial Units taking into consideration:
• The Joint Communiqué between the Government of Sri Lanka and the Secretary-General of United Nations in May 2009;
• Resolutions on Sri Lanka at United Nations Human Rights Council;
• Tissa Vitharana Report and the connected documents including papers exchanged at the talks between the SLFP and the TNA;
• Recommendations of the Lessons Learnt and Reconciliation Commission;
• The Office of the Governors of the Provinces will be abolished and their powers and functions shall be performed by the Head of State.
• The Member who commands the majority of a Provincial Council shall be appointed as the Chief Minister and the Leader of the political party which has secured the next highest number of seats shall be appointed as the Deputy Chief Minister.

Judiciary 

• There shall be an independent and separate Constitutional Court which shall be solely responsible for inter-alia the interpretation of the Constitution and the examination of the constitutionality of Bills and its decisions are final and conclusive. The Executive and the Legislature are bound to follow the decisions of the Constitutional Court.
• The tenure, salaries, allowances and privileges of all the judicial officers shall be guaranteed. In the event of any impeachment against Justices of Superior Courts, the Constitutional Court is empowered to investigate into the charges levelled against such Justices, in compliance with the Commonwealth principles (Latimer House Declaration).
• The Constitutional Court shall be empowered to hear and determine Parliamentary Election Petitions and there shall be a fixed time period within which the cases are to be concluded.

Good Governance

• Independent Election Commission, Independent Police Commission, Independent Public Service Commission, Independent Judicial Service Commission and Independent Anti-Corruption Agency would be set-up as a matter of utmost priority.
• All elections shall be conducted by the Independent Election Commission which shall have the powers to issue directions to all agencies involved in the election process including both State and Private media.
• A new anti-corruption law will be enacted to give effect to the United Nations Convention on Corruption.
• There shall be codes of ethics for Parliamentarians, Members of the Council of State, Justices of the Constitutional Courts, Superior Courts, Members of the Judiciary and all other elected Members of the Provincial Councils and Local bodies in accordance with international criteria.
• Anti-Corruption Agency law shall include Bribery and Corruptions in the private sector also and shall apply retrospectively.
• There shall be an independent secretariat with a data bank to facilitate investigations by COPE and PAC and they shall be empowered to examine the estimates of annual budgetary allocations before annual budgets are presented.
• Any project or investment or contract exceeding the value of Rupees One Billion shall be examined by a specially constituted Select Committee of Parliament.

Women’s Rights:

• There shall be an allocation of 25% for women’s participation in Provincial Councils and Local Government Institutions.
• There shall be a Women’s Chamber representing all strata of women from all over the country to deal with the diverse women’s interests. The Women’s Chamber shall be an instrument of deliberative democracy to uphold and enforce women’s rights. The Chamber will also exercise other powers vested by Parliament.

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