Sirisena insists there will be no link with the Joint Opposition and declares war on the Rajapaksas Ranil also insists UNP should continue to work with the SLFP despite fresh disputes over new Constitution and major projects such as the Hambantota port By Our Political Editor   President Maithripala Sirisena vowed Tuesday to continue the [...]

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President, PM vow to continue National Govt. despite friction

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  • Sirisena insists there will be no link with the Joint Opposition and declares war on the Rajapaksas
  • Ranil also insists UNP should continue to work with the SLFP despite fresh disputes over new Constitution and major projects such as the Hambantota port

By Our Political Editor

 

President Maithripala Sirisena vowed Tuesday to continue the alliance between the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP).
He told a special meeting of SLFP ministers that he would have no truck with former President Mahinda Rajapaksa or his supporters within the party. These ministers were summoned after the weekly ministerial meeting to be told of his plans for 2017. Sirisena who completes two years in office today, enters the third from tomorrow.

His remarks come as friction between the SLFP and the UNP continued to develop. New issues have cropped up over the proposed Constitutional changes as well as a deal with China for the Hambantota Port. Policy decisions on Tuesday by the SLFP ministers prompted an indefinite postponement of the debate in Parliament on a draft Constitution. It was scheduled from tomorrow till Wednesday. Last Thursday, President Sirisena directed Development Strategies and International Trade Minister Malik Samarawickrema not to sign the Concession Agreement with the Chinese firm, China Merchants Port Holdings Company Limited, on January 7 (yesterday).

However, a day before (on Wednesday) Prime Minister Ranil Wickremesinghe told the UNP Working Committee, the party’s main policy making body, they should turn up in full strength in Kurunegala (on Wednesday afternoon) for the opening of a car assembly plant and in Hambantota on Saturday for the signing ceremonies of the port deal. The assembly plant, contrary to claims by UNPers, it has now turned out, is not from the German car manufacturer Volkswagen. UNPers gathered nevertheless in Hambantota yesterday in what Wickremesinghe alluded in his speech was akin to cornering Rajapaksas in Kurunegala and Hambantota; “like cornering the LTTE, in two of its strongholds.”
Minister Samarawickrema has been the prime mover for the Hambantota Port deal which has drawn strong protests from Ports and Shipping Minister Arjuna Ranatunga. The latter is in charge of the subject as the line minister. He has said there were serious legal issues over the proposed agreement since the Sri Lanka Ports Authority (SLPA) has refused to sign it. In terms of the law, it was a matter vested with the SLPA and a third party cannot represent its interest or sign on its behalf, he has pointed out. Ranatunga also complained to the President that he was being bypassed. Sirisena has declared that all stakeholders should be consulted and the process should be transparent. Protests have also come from influential sections of the Buddhist clergy.

Sirisena’s categorical assertion, however, ended months of speculation about some SLFP ministers making secret overtures to Rajapaksa supporters. Some even made public utterances on the need for unity. What was left unsaid then was a possible offer of a halt to action against the former President or members of his family arising from ongoing investigations. This is if he (Mahinda Rajapaksa) chose to retire from politics. Sirisena charged that Rajapaksa and his family had destroyed the SLFP and added; “we should expose them.” Noting that no one was critical of them now, he urged the SLFP ministers to speak about Rajapaksas’ “wrong doings” in public.

At the UNP’s Working Committee meeting on Wednesday, Premier Wickremesinghe declared that his party should endeavour in the next three years to deliver on the promises made to the people. “Instead of finding fault, the only solution is to work together in the National Government,” he said. That again was a signal that the UNP would remain within the alliance, mounting issues notwithstanding. A group of some 36 UNP parliamentarians met Sirisena on December 30. One of them complained about critical comments by SLFPers against the UNP and urged that it be stopped or the UNP be allowed to form a Government. Sirisena was to ask the MP whether they (UNP) had 113 seats for such a course of action.

Former President Rajapaksa responded to Sirisena’s accusations saying; “the whole Government has turned out to be a failure.” He told the Sunday Times, “There is no economic development. The financial situation is very worrisome. Amidst these mounting failures, the only thing they could do is make the Rajapaksas the scapegoats.” When he was President, Rajapaksa said, he offered China only 750 acres for an industrial park. “China has been very helpful to us but I had to think of our own interests. This Government wants to give 15,000 acres and the people are still unaware of the terms or for what purpose such a vast extent is being divested”, he said. Earlier, Wickremesinghe told his party’s Working Committee that 95 percent of the land to be given to the Chinese belong to the state and only the rest to private parties. Rajapaksa also told the Sunday Times he had received no overtures directly from anyone towards SLFP reconciliation and pledged he would remain in politics.

Sirisena appears irked by strong public criticism from Rajapaksa. The former President declared he would topple the Government this year. Sirisena said Rajapaksa was trying to destroy the SLFP again and had been “autocratic” in his conduct. The fact that he (Rajapaksa) cannot lead the party should be strongly emphasised to the people, Sirisena said. The President was also critical of former Defence Secretary Gotabaya Rajapaksa. He said Gotabaya had been surrounded by some retired Generals of the Army. One Minister was to seize the opportunity to say Gotabaya Rajapaksa had lived in the United States and returned only after Mahinda Rajapaksa was elected President. However, “you have come up from the bottom of the political ladder,” he said pointing his finger at Sirisena.

Minister Nimal Siripala de Silva briefed SLFP ministers on matters related to Constitutional changes. Thereafter, they took some policy decisions on behalf of the SLFP. Among them:

  • The unitary status of Sri Lanka should be protected and no changes should be made to that provision.
  • There should be no change to provisions in the Constitution with regard to Buddhism.
  • There should be no merger of the Northern and Eastern Provinces.
  • No referendum should be held for adopting a Constitution. The SLFP is for provisions which require only a two thirds vote in Parliament.
  • There should be a full implementation of the 13th Amendment in granting devolution of power.
  • Electoral reforms

As revealed in our front page story today, Minister and SLFP General Secretary Duminda Dissanayake came out with a surprise proposal. He said he was doing so no matter whether President Sirisena liked it or not. He said he would also be placing the matter before the SLFP Central Committee for a detailed discussion and endorsement. Dissanayake’s proposal was that the Executive Presidency should not be abolished. Maithripala Sirisena should be the party’s candidate at the 2020 presidential election. Sirisena did not make any comments. The proposal was unanimously accepted. This is a complete turnaround from the campaign that was launched ahead of the presidential election in 2015 to abolish the executive presidency. Abolishing the executive presidency was the rallying point that bound together different political parties and civil society groups spearheaded by Ven. Maduluwawe Sobitha Thera and others who wanted to oust the then Executive President Mahinda Rajapaksa.

For further discussion of Constitutional changes, the SLFP Constitutional Committee met Sirisena at his Paget Road residence on Thursday evening. The members of the Committee are Nimal Siripala de Silva, Sarath Amunugama, Mahinda Samarasinghe, Mahinda Amaraweera, Duminda Dissanayake, Susil Premajayantha, Anura Priyadarshana Yapa, Dilan Perera, Dayasiri Jayasekera and Faiszer Musthapha.
During this meeting which lasted two and a half hours, it was decided that the SLFP Committee on Constitutional matters should meet with leaders of other political parties, civil society organisations, diplomatic missions and the United Nations representatives in Sri Lanka and explain their position. The process is to begin next week.

Earlier on Tuesday morning, at the weekly ministerial meeting, Minister Sarath Amunugama presented the first draft of a Bill to establish Criminal Justice Commissions (CJCs). The aim of the draft law is to “provide for the appointment of the members, to prescribe their powers and procedure, to facilitate the performance of their functions, and to make provision for matters connected with or incidental thereto.” President Sirisena welcomed the move and the ministers decided to unanimously accept it subject to two specific measures. One is to seek the advice of the Attorney General on whether the draft bill was in conflict or otherwise with the Constitution. The second was to ask the Legal Draftsman to knock into further legal shape the first draft. During the discussion, Minister Sarath Fonseka wanted provisions included to deal with “abuse of power.” Such a provision has already been included in the draft even before he raised issue.
Among the matters the CJCs will probe are “offences and or/actionable wrongs in relation to the administration of the Central Bank, public body, local authority or any incorporated company which the Government of Sri Lanka owns or controls 30 per cent or more of the issued share capital.” The draft law has provision for the imposition of civic disabilities if the CJC finds that a person is guilty. It will be done through a resolution of Parliament.
The Sunday Times has obtained a full copy of the 17-page draft Criminal Justice Commissions Act. For significant highlights, please see box story on this page.

A green light from the Attorney General that the proposed draft CJC Act does not contravene the Constitution and a final draft from Legal Draftsman will see the Cabinet of Ministers approving it. Even provisions which are held to contravene the Constitution could be deleted. There is little doubt that the proposed CJC Act will be a strong weapon in Sirisena’s hands particularly when he has not been successful in uniting the SLFP.

Nevertheless, his newly declared war on the Rajapaksas and the SLFPers who support him has somewhat weakened his position in the party further. Added to that is the continuing friction with the UNP. As one Sirisena confidant said, a Cabinet re-shuffle, in the light of this, has become inevitable. This is to shift some ministers whom Sirisena believes have become major irritants with their own agendas. The UNP leadership — and some SLFP ministers are strongly opposed to the move. The UNP does not want their ministers shifted around. Whether the President, now on his third year, will be more decisive and assertive remains the critical question. Otherwise he will be burning his political candle from both ends.

Proposed CJC Act: Those found guilty to be stripped of their civic rights for up to seven years
“Establishment of Criminal Justice Commissions
(1) Whenever the President is of opinion –
(a) that, within a specified period, there have been committed, before or after the date of commencement of this Act, -
(i) offence and/or actionable wrongs in relation to the awarding or receiving of government or public tenders, contracts of whatsoever nature including infrastructure projects of a public nature or of national importance
(ii) offences and/or actionable wrongs in relation to currency of foreign exchange of such a scale and nature as to endanger the national economy or interest, or
(iii) offences and/or actionable wrongs in relation to the administration of the Central Bank, public body, local body, local authority or any incorporated company in which the Government of Sri Lanka own or controls 30% or more of the issued share capital

(iv) offences and/or actionable wrongs in relation to corruption or any fraudulent act, misuse or abuse of power in relation to the Central Bank, public body, Provincial Council, local authority or any incorporated company in which the Government of Sri Lanka own or controls 30% or more of the issued share capital
(b) that the practice and procedure of the ordinary courts are inadequate to administer justice for the purpose of securing the trial and punishment of the persons who committed such offences and/or actionable wrongs and for the recovery of the proceeds thereof, the President may, by warrant under the Public Seal of the Republic of Sri Lanka, establish a Criminal Justice Commission (hereinafter referred to as Commission) consisting of such members, each of whom shall be a judge of the Supreme Court or Court of Appeal, or retired judge of the Supreme Court or Court of Appeal or an Attorney at Law with not less than 30 years practice since admission to the Bar as shall be specified in the warrant.

A warrant issued under subsection (i) may relate to any period whatsoever including any period before the date of commencement of this Act.
Every warrant issued under this Law shall –
(a) set out the name of the member or each of the members of the Commission;
(b) where a Commission consists of more than one member, specify the member who is to be the Chairman of the Commission,
(c) contain the terms of reference of the Commission;
(d) require the rendering of such reports, including interim reports, as to the Commission may appear fit.

  • A Commission established under this Act shall be deemed to be a superior court of record.
  • Subject to the other provisions of the Act, the terms of reference of a Commission shall be –
  • To inquire and determine whether any person or persons and if so what persons were or were not guilty of such offences and/or actionable wrong; and
  • to deal with the person so found guilty or not guilty in the manner prescribed by this Act.

Where a warrant establishing a Commission is issued by the President under the preceding provisions of this section in consequence of his opinion, under such provisions, expressed in the warrant, such opinion and such warrant shall be final and conclusive and shall not be called in to question in any court or tribunal, whether by way of action, application in revision, appeal, writ or otherwise.
“Appointment of members of a Commission

  • Where any member of a Commission dies, or resigns, or desires to be discharged from the performance of his duties in respect of the whole or part of an inquiry, or refuses or becomes unable to act, the President may appoint a new member in his place for the whole or any part of such inquiry.
  • At any inquiry before a Commission, the determination of any question before the Commission shall be according to the opinion of the majority of the members of the Commission.
  • An inquiry by a Commission under this Act shall be commenced and held, with due regard to the interests of justice, as expeditiously as possible, and accordingly the Commission-

(a) may, where any pleader appearing for any person desires to address the Commission upon any question or matter, limit the duration of the address, and in such event require the address to be submitted in writing;
(b) may commence, or continue with, the inquiry notwithstanding that the pleader appearing for any person is absent or desires to withdraw from the case, or such person desires time to make a change of pleaders;
(c) may commence, or continue with, the inquiry in the absence of any person-
(i) if the Commission is satisfied that such person is evading arrest, or absconding, or feigning illness; or
(ii) with his consent; and
(d) shall take all such other steps as it may consider necessary for the purpose of enabling the inquiry to be expeditiously held.

“Powers of a Commission
A Commission shall have the following powers:-
(a) To procure and receive all such evidence and to examine all such persons as witnesses, as the Commission may think it necessary or desirable to procure or examine;
(b) To require the evidence of any witness to be given on oath or affirmation, such oath or affirmation to be that which could be required of the witness if he were giving evidence in – a court of law, and to administer or cause to be administered by an officer authorised in that behalf of the Commission an oath or affirmation to every such witness;
(c) to summon any person residing in Sri Lanka to attend any sitting of the Commission to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession;

(d) notwithstanding any of the provisions of the Evidence Ordinance or of any other written law, to admit any evidence which might be inadmissible in civil or criminal proceedings;
(e) to regulate the admission of the public to the inquiry before the Commission;
(f) to regulate the admission of the Press to such inquiry;
(g) to exclude the public from the inquiry or any part thereof;
(h) to exclude the Press from the inquiry or any part thereof;

(i) to require by written order the manager of any bank in Sri Lanka to produce, as specified in the order, any book or document or the bank containing entries relating to the account of any such person specified in the order as the Commission considers necessary, or to furnish, as so specified, certified copies of such entries;

(j) to prohibit by written order the manager of any bank in Ceylon from permitting or allowing the withdrawal of any funds standing to the credit of any account in that bank of any such person specified in the order as the Commission considers necessary, except any such reasonable withdrawal of such funds as may, from time to time, be approved in writing by the Commissions;

(k) to require by written order the Commissioner of Inland Revenue or the Controller of Exchange to furnish, as specified in the order, all information available to any such officer relating to the affairs of any such person specified in the order as the Commission considers necessary, and to produce or furnish, as to specified any document or a certified copy of any document relating to such person which is in the possession or under the control of any such officer;
(l) to require by written order the Controller of Immigration and Emigration to impound the passport and other travel documents of any such person as shall be specified in the order, being a person whose evidence may be necessary at any inquiry before the Commission, until such time as such order is revoked by the Commission by a subsequent written order, if any, issued to such Controller;

(m) to require by written order any such police officer as shall be specified in the order, whether by name or by office, to take all such steps as may be necessary to prevent the departure from Sri Lanka of any such person as shall be so specified, being a person whose evidence may be necessary at any inquiry before the Commission, until such time as such order is revoked by the Commission by a subsequent written order, if any, issued to such officer;
(n) to require by written order the Telecommunications Regulatory Commission of Sri Lanka or officer (within the meaning of the Sri Lanka Telecommunications Act No. 25 of 1991) or operator of any other licensed entity under the said Act as shall be specified in the order, whether by name or by office, to produce, as so specified, any record from a telecommunication system containing entries relating to any message (within the meaning of that Act), including any telex message, text message, electronic record or other communication which is in the possession or under the control of any such authority or officer as the Commission considers necessary, or to furnish, as so specified, certified copies of such records.

(o) To require by written order to any authority or a person working there under to produce any recording of sound, pictures, visuals or anything of such nature or any contemporaneous recording reproduction thereof, which is in the possession or under the control of any such authority of officer as the Commission considers necessary, or to furnish, as so specified, certified copies of such records.
(p) To recommend that any person whose conduct, is the subject of inquiry under this law or who is in any way implicated or concerned in the matter under inquiry, be awarded such sum of money as, in the opinion of the commission, may have been reasonably incurred by such person as costs and expenses in connection with the inquiry. In this paragraph, “costs and expenses” includes the costs or representation by an attorney at-law, and travelling and other expenses incidental to the inquiry or consequential upon that attendance of such person at the inquiry.

(q) The Commission shall have power to call for representations from the public relating to matters within the scope of its terms of reference, whether expressly specified therein or not, and to inquire into and report upon any such representations.

“Procedure and practice before a Commission
(1) The proceedings at any inquiry before a Commission shall be free from the formalities and technicalities of the rules of procedure and evidence ordinarily or normally applicable to a court of law and may be conducted by the Commission in any manner not inconsistent with the principles of natural justice, which to the Commission may seem best adapted to elicit proof concerning the matters that are being investigated.

“Tender of pardon
The Attorney-General may, at any time before or after the commencement of any inquiry before a Commission but before the conclusion of such inquiry, with a view to obtaining at such inquiry the evidence of any person, tender a pardon to such person, on the condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to any offences which are the subject of such inquiry: Provided, however, that if the person who has accepted such tender has not complied with the condition on which the tender was made, a finding concerning such person for the offence in respect of which the pardon was so tendered may be made by the Commission at such inquiry.
“Power of Commission to deal with persons found guilty or not guilty of offences and/or actionable wrongs

  • Where, at the conclusion of any inquiry before a Commission under this Act, the Commission is satisfied beyond reasonable doubt that an offence has been committed and/or on a balance of probability that such person has committed an actionable wrong, having regard to the proceedings and upon consideration of the matters before it at such inquiry, that any person has committed any offence and/or actionable wrong which has been the subject of such inquiry, the Commission shall make a finding that he is guilty of such offence and/or actionable wrong and shall sentence him to any punishment, other than death or impose liability, to which he might have been sentenced if he had been tried and convicted by the Supreme Court.
  • Where the Commission finds a person guilty of any offence and/or actionable wrong, and the value of the proceeds of such offence and/or actionable crime can be assessed, the Commission shall, in addition to the imposing on that person any other punishment, order him to pay as a penalty, within such time as may be specified in the order, a sum which is equal to the amount of such assessment or is, in the opinion of the Commission, the value of that proceeds.
  • Where Commission finds any person guilty of an offence and/or actionable wrong under, it shall, in addition to any other penalty that it imposed under this Act, impose a fine of not less than the amount which the Commission has found to have been acquired by committing the offence and/or actionable wrong or by the proceeds of the same or converted to property by such offence and/or actionable wrong, or by the proceeds of such offence and/or actionable wrong, and not more than three times such amount.
  • Notwithstanding anything to the contrary in any other provision of this Act, where the Commission finds a person guilty of an offence and/or actionable wrong, the Commission may in lieu of imposing a penalty or fine under preceding Section, make order that any moveable or immovable property found to have been acquired by the commission of an offence and/or actionable wrong or proceeds thereof, be forfeited to the State free from all encumbrances: Provided however that, in determining whether an order of forfeiture should be made, the Commission shall be entitled to take into consideration whether such an order is likely to prejudice the rights of a bona fide purchaser for value of any person who has acquired, for value a bona fide interest in such property.

“Imposition of civic disabilities
(1) Where a commission finds at the inquiry and reports to the President that any person has been guilty of any act of political victimization, misuse or abuse of power, corrupt or any fraudulent act, in relation to any court or tribunal or any public body or in relation to the administration of any law or the administration of justice, the commission shall recommend whether such person should be made subject to civic disability, and the President shall cause such findings to be published in the Gazette as soon as possible, and direct that such report be published.

(2) Parliament may upon a Resolution duly passed by not less than two thirds of the whole number of members (including those not present) voting in its favour-
(a) Impose civil liability on such person for a period not exceeding seven years, and
(b) Expel such person from Parliament, if he is a member of Parliament
(3) Any report, finding, order, determination, ruling or recommendation made by a commission under this law, shall be final and conclusive and shall not be called in to question in any court or tribunal by way of writ or otherwise.
(4) For the purpose of this section civil disability, shall mean the disqualification of a person-
(i) from being an elector and from voting at any election of the President of the Republic, or to any election of a member of the National State Assembly (sic) or any local authority;
(ii) from being nominated as a candidate at any-such election;
(iii) from being elected or appointed as the President of the Republic or from being elected as a member of the National State Assembly (sic) or of any local authority, and from sitting and voting as such member and
Note: The clauses relating to the National State Assembly has been ‘lifted’ from the Criminal Justice Commission Act of 1983 which now stands repealed.
(iv) from holding office, and from being employed as a public officer.

“Special provisions applicable to sentences
imposed by the Commission
Every sentence imposed by a commission under the provisions of this Act upon any person shall be deemed to be a sentence imposed by the High Court after trial under the provisions of the Criminal Procedure Code, and accordingly the provisions of chapter XXIV and chapter XXVI of that Code shall, mutatis mutandis, apply in respect of such sentence.
“Application of chapter XVII of Criminal Procedure Code
The Minister of Justice may, by Order published in the Gazette, declare that such of the provisions of Chapter XVII of the Criminal Procedure Code as are specified in the Order shall, mutatis mutandis, apply for the purpose of enabling a Commission to charge persons for offences punishable by the Commission in like manner and to the same extent as they apply in the case of charges under that Code.
“Findings and sentences under this
Act to be final and conclusive

Any finding made, or sentence imposed by a Commission under this Act shall be final and conclusive, and shall not be called in to question in any court or tribunal, whether by way of action, application in revision, appeal, writ or otherwise.
No court shall, notwithstanding anything to the contrary, have power or jurisdiction to make any order at any state whatsoever and in any manner-
(1) Staying; suspending or prohibiting the holding of any proceeding before or by any commission established by warrant issued by the President in the exercise or purported exercise of the powers vested in the President under section 2 (1) or the making; of any order, finding, report, determination, ruling or recommendation by any such commission;
(ii) Setting aside or varying any order, finding, report, determination, ruling or recommendation of any such commission:
No court shall grant an order staying the proceedings of any commission on the ground that any matter which is the subject of inquiry before the commission is the same matter or substantially the same matter which, whether directly or indirectly, arises or is likely to arise for consideration or determination in any proceedings before any court.

“Effect of this Act notwithstanding inconsistencies
27. The Provisions of this Act and any warrant issued under the provisions of this Act shall be so interpreted and given full force and effect in order that the Commission shall have full authority and power and jurisdiction to inquire into the conduct of any President, Minister or other public officer including –
(a) the misuse or abuse of power, interference, fraud, corruption or nepotism,
(b) any political victimization of any person,
(c) any irregularity-
(i) in the awarding or receipt of any Government tender or contract
(ii) in the making of any appointment or transfer of any person,
(iii) in granting of any promotion to any person,
(iv) in the termination of the service of any person.”

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