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Did rebel horde form unlawful assembly with vicarious liability attached to each?
The joint opposition stands in the nation’s dock this morning accused of turning Parliament into a well of violence. With scant regard to the inviolable norms of the House, their leader by proxy Dinesh Gunawardena led the charge to the well of Parliament on Tuesday to demonstrate their protest over a speech being made by General Fonseka and thus caused the 14th Parliament’s first bloodletting when UNP parliamentary fresher Sandith Samarasinghe had his baptism of blood.

BAPTISM OF BLOOD: UNP member of Parliament freshman Sandith Samarasinghe gets his first experience of the ugly side of the House after being trampled and kickjed in the head and face in Tuesday's melee whilst attempting to break up the brawl. Pic by Waruna Wanniarachchi/ Daily Mirror

The fact that the ‘well’ is the designated no man’s land in the House upon which no trespass is permitted to ensure peace reigns in the House and had been so for centuries coming from Britain’s Mother of Parliament, had no bearing on those who were determined to bring their little war of attrition to their enemy’s table and raise the ruckus that risked their raid turning violent.
The question now is not who threw the first punch but who first flouted the rules of parliamentary engagement and crossed the borders of parliamentary decorum to set the scene to make violence the inevitable fruit of their original sin.

That dubious honour must go to Dinesh Gunawardena, the ground commander of the rebel forces, who, it seems, has given up the daunting challenge of following in the dogged steps of his father, the Borolugoda Lion Philip Gunawardena and instead chosen to become the Rajapaksa cat’s paw to further the Rajapaksa cause, sacrificing the interests of the Mahajan Eksath Peramuna – the party his father founded and which he inherited to lead.

Read in his own words what led to the melee. Addressing a press conference that same evening he gives the media a blow by blow account of how Tuesday’s Parliamentary drama unfolded. Blaming the UNP MPs for starting the brawl, he says: “The Joint Opposition sought permission from the Speaker to express their views on the removal of army personnel from the security detail of Mr. Mahinda Rajapaksa.”

That is entirely correct procedure and Dinesh Gunawardena was right in following it. The Government’s decision to withdraw the military security provided for the former president and replace it with the same police security as provided to President Sirisena, Prime Minister Ranil Wickremesinghe and to another former President, namely, Chandrika Bandaranaike Kumaranatunge, was bound to stir a hornet’s nest amongst the joint opposition camp as any issue involving Mahinda Rajapaksa invariably does.

This is hardly surprising since the sole purpose and aim of this ragbag collection of small time parties with a breakaway faction of SLFP MPs who had received the best of all possible worlds under the Rajapaksas and were not only beholden to their former boss for past privileges received but also hero worshipped him as their future saviour from the toll of fate that awaits them, is to perpetuate the Rajapaksa image as the nation’s saviour too and ensure his welfare at all times. It is quite understandable. Furthermore it is the right of every Member of Parliament to ask the Government questions on any matter.

Then Mr. Gunawardena says, “The Speaker granted us permission and we questioned the Prime Minister about it.” That too is entirely correct. It conforms to Parliamentary procedure. The Prime Minister in turn gives his answer.

Then Mr. Gunawardena says: “When the Prime Minister’s explanation was over, Minister Field Marshal Sarath Fonseka sought permission to express his views on the same subject, and with the Speaker’s permission, Minister Fonseka had started to read out a prepared speech regarding the withdrawal of the army security of Mr. Rajapaksa.”

The state of play at that moment was that Dinesh Gunawardena had asked the speaker permission to raise a question from the Government. The Prime Minister had answered it and upon ending his speech had passed the baton to the Field Marshall for him to explain why the decision was taken to change the guard. Sarath Fonseka had sought the Speaker’s permission to contribute his mite and thus expand the answer to the question the joint opposition has asked the Government. The speaker had granted it. All had followed parliamentary procedure to the letter. So far, so good!

But then comes the jarring part as events take a dramatic turn. Apparently to the joint opposition the answers to a question posed by them must sound sweet music to their ears or else it justifies a full charge into the pit of the House to show their vehemence against an opposing viewpoint. Dinesh Gunawardena tells the media: “Then we went on to the Well of the House to show our disapproval of it.”

Here, in this first deviation from parliamentary norms on Tuesday, lies the root of the rumpus. Democracy is based on tolerance and founded on mutual respect for another’s opinion, howsoever obnoxious it may be. Parliament is the forum for the vital exchange of ideas and the stamping ground for debate and discussion. And the right to answer a question and to receive answer is sacrosanct. But not the right to seek recourse to violence – the first refuge of the incompetent – merely because logic, commonsense and reasonableness desert the intransigent who champion without pause their blinding prejudices with bigoted fervor.

Take, for instance, the case the joint opposition was espousing with such simulated passion. The very charge levelled by the rebel opposition that the Government was practising political discrimination against former president Rajapaksa when it decided to withdraw the military guard so far provided to him and to replace it with a similarly trained police guard with STF back up, cannot be maintained when it is also the case that the president, the prime minister the former president Bandaranaike and other VIPs are also provided with the same police security. In other words only Mahinda Rajapaksa is provided with a military security guard. If the opposition claims it is discrimination, then it is indeed a form of discrimination – reverse discrimination, to provide one with a special contingent of military guards denied to others.

The justification claimed for this special treatment is that Rajapaksa won the terrorist war and therefore is a target. But then aren’t the president and the prime minister also targets? The threats come not only from terrorism but also from disgruntled elements in the SLFP who have the means and the motive to see the last of the two and would have no qualms in getting rid of their problems for good if they had half the chance to do so.

Or for that matter, isn’t former president Chandrika Bandaranaike Kumaratunga who relentless continued waging the war against the LTTE during her double tenure as President, also a terrorist target even as she was in 1999 when a LTTE suicide bomber blew herself to smithereens only a few yards away from her presence? Providence saved Chandrika that day though she lost an eye in the service of Lanka as president.

Or how about Sarath Fonseka who, as army commander, laid out the battle plans and, personally leading from the front, motivated his troops to gain that elusive triumph over the Tigers? Have the LTTE stragglers forgotten his existence or forgiven the indispensable role he played in securing victory for the nation and wreaking disaster for the Tigers?

The president, the prime minister, former president Chandrika and former army commander Fonseka are today in power and are all terrorists targets. But they haven’t surrounded themselves with military guards though it is well within the power of the president, who is also the commander-in-chief of the nation’s armed forces, to order the immediate deployment of battalions to protect them. They have not done so. Instead it has been deemed that police security is adequate cover for them; and if it’s good for them, why, it is asked, isn’t it good for a former president? Thus it appears that the decision to replace Mahinda Rajapaksa’s military security which he had with him when he lost the presidential election but was allowed to retain until now, is to correct the anomaly that had existed for the past 16 months in the security firmament.

In the eyes of many, the argument forwarded may justify the Government’s belated decision. However if any parliamentary member has his doubts, it is his absolute right to raise the question in that august House. But when Dinesh Gunawardena, having immaculately followed parliamentary decorum up to that point, says “we went on to the Well of the House to show our disapproval of it,” does he consider he has the legal or moral right to order his troops down the mountainous aisle to lay siege at the prime minister’s seat in the no-go area that is the well of Parliament?

And when he remains there along with his band of rebels, in spite of the Speaker’s assurance that he will be given time to reply to the answer, wasn’t he aware that such occupation by force would inevitably invite counter measures from the UNP confirming the maxim that every action has a similar reaction? Can this joint opposition justify in any way their abject failure to match words with words with their attempt instead to make their arguments cogently with their fists? Hadn’t their leaders the experience in street protests to know that a group once unleashed assumes the mob spirit that makes violence inevitable?

At this point at the press conference the self-righteous Dinesh Gunawardena refers to Sarath Fonseka and adds: “His behaviour was also contrary Parliamentary procedure.” Rich, isn’t it, coming from one who had just violated the cardinal rule of parliamentary behaviour by storming the well of Parliament along with his comrades merely because he and they didn’t like the gist of the answer given to the question he had raised? Then he says: ‘The joint opposition never expected such an eventuality.’ What did he expect? A welcoming committee handing out strawberries and crème with a glass of the bubbly?

But it also takes two to tango. Whilst deploring the initial action of the joint opposition, the UNP members’ reaction in their leader’s presence, no less, must also be condemned. The UNP member Palitha Thewarapperuma who was suspended for a week from Parliament after being named in the report submitted to the speaker denied he assaulted anyone. In a boorish comment posted on his Facebook on Thursday he gloated: “If I had attacked someone, they would have ended up in a surgical ward and not in the accident ward.” The Prime Minister, the UNP chief should make careful note of this and take the necessary measures to prevent the slide of his own party to the abhorrent levels of the SLFP’s rebel faction.

Parliament’s Black Tuesday must not be repeated. But the Speaker’s mere warning to the MPs will sadly not be effective. On April 11, he issued a draft code of conduct to all the MPs in the House and asked them to return it within two weeks to him with their comments and suggestions. It was a self-regulatory code which was described in the SUNDAY PUNCH of 24th April as one that was ‘all bark and no bite’. The deadline was April 25. Not a single MP of the 225 MPs in parliament has even bothered to return their copies so far.

Thus it is clear that appeals to members to voluntarily maintain the dignity of the House by being polite to other members and parliamentary staff, by being selfless in their natures, by respecting other’s opinion, by placing country before self and all that twaddle will not do the trick. What is required is for the criminal law of the land to be equally applicable to members within the Parliamentary chamber as it would be to members outside its hallowed halls. The members should be made to understand that though they are empowered to make laws they are not above the laws they or their predecessors have made.

Tuesday’s incident which led to UNP member Sandith Samarasinghe being hospitalised after being punched, shoved, trampled and kicked on the head following his failed bid to break up the brawl should be a good starting point to commence police inquiries as to the possibility of framing charges against those who assaulted. Like in any other criminal investigation, Parliament’s CCTV cameras could be used to determine the offenders.

Inquiries should also be made to determine whether all the members who participated in the melee were members who knowingly participated in an unlawful assembly of more than five people pursuing a common objective. In such a case, under section 146 of the Penal Code, if an offence is committed by any member of such an unlawful assembly in prosecution of the common object and possessing the common intention of that unlawful assembly, every person who is a member of that unlawful assembly, is guilty of that offense.

Should the Attorney General hold that the actions of those that brought shame to the House of parliament can be held to fall within the ambit of the legal doctrine of unlawful assembly where vicarious criminal liability attaches to every member whether he personally committed an offence or not, it will surely be a compelling deterrent to delinquent MPs inclined to plummet parliament into pandemonium to think before they leap into the ‘well’.

When the internal mechanism to maintain discipline in the House has failed miserably, it is time to dial 911.