Columns

• Stand up in unity theme of rallies; the second to be held in Kandy today
• Former President Gotabaya misled by his Viyath Maga colleagues; Pavithra alleges conspiracy to undermine the party
• Lawyer Romesh De Silva hands over his draft constitution; provisions contain radical changes, Wijeyadasa calls for formation of select committee to formulate a new constitution

By Our Political Editor

That the party’s leadership had gone into hibernation after protests began at the Galle Face Green and outside Temple Trees in March, is all too well known. There were no public events of any sorts and SLPP members, including parliamentarians, took extra security precautions to move around. Giving them sufficient strength to come out of the woodwork, so to say, was the election by Parliament of President Ranil Wickremesinghe, in keeping with the constitution.

Thereafter the country saw a reversal of many things. Protestors were arrested in hundreds in a crackdown that continues. At least two student leaders are detained under the highly controversial Prevention of Terrorism Act (PTA). Emboldened by these moves, some over-enthusiastic Police officers shut down Galle Face Centre Road this week to block protestors from holding events to mark the first three months of the uprising.  Orders went down hurriedly from their superiors to back out since the protests had not been banned. Yet many participants received rough treatment. A causes celebre for Police spokesperson, Nihal Talduwa SSP was the presence of a woman protestor with her child. He was widely quoted by the media that a detailed investigation was under way into how this happened. No doubt children should not be involved in protests or forced into them. Yet, little is being said of children who are increasingly falling victims to malnutrition. Even less, there is no word about the incidents on May 9 when SLPP goons carrying poles and metal tubes went on a spree of wanton violence to oust the peaceful protestors.

Perhaps aptly, though one is not sure of the timing, the campaign for resurgence is being named Ekwa Nagitimu or unitedly stand up. The name itself is an admission that they had fallen. Today, the second of these ten meetings will take place in Kandy and is being organised by Mahindananda Aluthgamage, SLPP parliamentarian for Nawalapitiyta. He was a close advisor to ex-president Gotabaya Rajapaksa in the many weeks until he fled the country. His inability to obtain asylum abroad forced him to return to Colombo. According to a member of his household staff at Malalasekera Mawatha, he is entertaining close associates and friends for lunch and dinner frequently.

The first Ekwa Nagitimu was held on October 8 (Saturday). The venue was not outdoor but the district coordinating office of SLPP Kalutara District leader, Rohitha Abeygunawardena. It was one of over 70 buildings that were burnt down by protestors in retaliatory attacks and later repaired. Party leader Mahinda Rajapaksa said, “All of us should join hands and protect this government.” He praised President Wickremesinghe and said he was doing a good job. “We had earlier scolded him, calling him ’UNP Ranil,’” he noted.

However, some of the nuances were reflected by other speakers. Onetime Minister Pavithra Wanniarachchi declared, “We knew that the presidential candidate that contests under our party would win. When the country faced a crisis, the party too faced one. Regretfully I have to say we failed to manage the country and the former President (Gotabaya Rajapaksa) had shortcomings and was unable to carry out party organising activities.

“People who have no political background reached high places in the government. They also caused us shortcomings; we had the biggest letdown by deciding to revert the whole country to the use of organic fertiliser at once.  Did they listen to Mahinda Rajapaksa’s advice. When our government was in an economic, social, and political crisis people who were not connected to our party had no political background fled from that crisis. They did not safeguard the government or the party.

“We made Gotbabaya Rajapaksa the president. Thereafter, some members of the Viyath Maga (Viyathu) said that Prime Minister Mahinda Rajapaksa was not allowing the president to work.  Now it is difficult to find Viyathmaga people as only a few remained with us. They created an ideology among people that the country should be handed over only to the learned; people too forgot the old politicians had voted for them. There was a conspiracy.

“The same conspirators, who said Mahinda Rajapaksa is pulling the president’s leg created the campaign ‘Gota Go Home’.  They also made another campaign to chase away “Naki Maina” (or old Myna bird). There was digital marketing. The protestors earned dollars. We told Mahinda Rajapaksa not to resign. If he resigns Gotabaya Rajapaksa too would be forced to resign. President Gotabaya Rajapaksa was chased away with that conspiracy. The Viyath Maga people told the president not to allow people to use his photo at elections. He agreed. He too tried to create a different political culture.”

The remarks repeated against Viyath Maga make clear that there will be only a small role for the movement in the resurrected SLPP. Thus, quite clearly, it is not only Gotabaya Rajapaksa who has lost his role but also his followers whom he nurtured under the Viyath Maga umbrella in a resurrected SLPP.

Aluthgamage told the Sunday Times, “We are holding our Asana Sammelanaya  (for Nawalapitiya) at the Kandy town. Our aim is to bring 2,000 people.” The main speech will come from SLPP leader Mahinda Rajapaksa, he said. Aluthgamage added that Minister Bandula Gunawardena would speak on the economic situation. Others assigned subjects, he revealed, were Plantation Industries Minister, Ramesh Pathirana on food safety and averting a food crisis; Energy Minister Kanchana Wijesekera on the energy crisis, and Namal Rajapaksa on the future of the SLPP.

The seemingly near normalcy, particularly on the economic front under President Ranil Wickremesinghe’s almost three-month-long tenure, there is little doubt, has created the climate for sections of the SLPP to launch their revival campaign. It is pertinent to note that some of the measures President Wickremesinghe has been forced to adopt have received little or no public backing from the revivalists. The fact that the opposition is fragmented has meant there is no combined threat against them, not even from splinter groups of the onetime coalition who were within. Seizing the opportunities, strengthening the SLPP’s power base and paving the way for a new order of succession have become priorities. The brain behind the move is SLPP ideologue and strategist Basil Rajapaksa. From Los Angeles, he has been manipulating the party’s future course.  That explains why Namal Rajapaksa (MP for Hambantota District) was inducted into the Sub-Committee on Identifying the Priorities in Formulation of Short, Medium & Long-Term National Policies of the newly set up National Council.  By asking him to be the keynote speaker on the SLPP reforms in Kandy, he is being groomed as the future leader of the party and a possible presidential candidate.

Earlier, from Los Angeles, Basil Rajapaksa stymied moves for the passage of the 22nd Amendment to the Constitution. A formidable group within the SLPP raised objections to its passage. It has now been put off for later this month. Yet, it seems unlikely that the amendment will receive a two-thirds majority despite the overwhelming confidence of Justice, Prison Affairs and Constitutional Reform Minister Wijeyadasa Rajapakshe. He told the Sunday Times that after the passage of 22A, he would recommend to the Cabinet of Ministers to appoint a Parliamentary Select Committee to formulate a new Constitution. This makes clear that a draft commissioned by then President Gotabaya Rajapaksa will not be taken in toto.  More on that in the later paragraphs.

The SLPP revivalists have set their eyes on the conduct of local council polls, a move which has already received short shrift from President Wickremesinghe. The President has made clear that he wants to halve the number of local councillors to some 4,000 before the next elections are called. The terms of the councils are now under extension for a year and this September, the Election Commission became legally empowered to hold elections. President Wickremesinghe, evidently not keen on a local poll immediately, has declared he would even go for a referendum on the subject. The proliferation of such many local councillors was the brainchild of Basil Rajapaksa. He ensured limits within which they could authorise development projects – a move that benefited many financially. In essence, the bottom line is: Wickremesinghe favours a resolution of the economic issues ahead of an election though not clear about the timing whilst the SLPP is bent on testing its strength first through a local poll. This is whilst the Samagi Jana Balavegaya (SJB) and the Janatha Vimukthi Peramuna (JVP) are pressing for a parliamentary election.

One would have also expected the SLPP to support publicly some of the measures President Wickremesinghe has been compelled to introduce so far. They include a steep increase in electricity and water, telecommunication rates and a host of others. It is in this backdrop, the new taxes that are being introduced retrospectively from October 1 would have a debilitating effect on the middle class. This is how Nihal Hettiaratchchi, a leading Chartered Accountants explained it: “The Inland Revenue Amendment Bill, which was published on 11th October 2022, reduced the personal tax relief for resident and non-resident individuals to Rs. 1.2Mn per year, introduced slabs of Rs.500,000 intervals, and increased the maximum tax rate from 18% to 36%.

“Thus, a person’s tax liability has gone up drastically compared to the situation up until the 1st of October 2022.

“Example: If a monthly salary of an individual is Rs.350,000, tax will be calculated as follows for two periods.

“Expenditure relief of Rs.1.2 million which was available prior to Amendments has not been considered for the calculation. In other words, an individual who paid Rs. 6,000 per month until 30th September 2022 now must pay Rs. 52,500 per month. The effective tax rate has gone up 15% from 1.7%.”

New Constitution

Now to constitution making. Justice, Prison Affairs and Constitutional Reforms, Minister Wijeyadasa Rajapakshe said yesterday, “What was given to me by is only a draft only a draft constitution formulated by nine persons. It only contains a set of policies. This is not the time to decide whether it should be adopted or not. Before bringing or deciding on the new constitution we need to get the 22nd Amendment done.

“I have requested cabinet approval to appoint a parliamentary select committee to discuss how the new constitution should be created. I requested cabinet approval to get the Prime Minister’s and the President’s nod on the select committee. The constitutional process should be done with people’s approval. Only then, can it become a successful constitution. It is as important as getting a two-thirds majority approval in parliament.

“The second reading debate on the 22nd Amendment Bill is scheduled for October 20 and 21.  I believe all parties would vote in support of it. Even though the SLPPers are having conflicting views over the 22nd Amendment they have no reason for voting against it.

“We first need to see if MPs support the 22nd Amendment, and only then think about bringing a new constitution. Everyone should respect people’s views. The country will progress only if that happens. When the UNP brought the 1978 constitution, it did not think of the people. It made it in such a way to strengthen the party. But ultimately the same constitution boomeranged on the UNP.

“The constitution should empower people and the state, it should not empower governments, parties, or politicians. The constitution should bring stability to the country. We must be careful when introducing a new constitution because people are still suffering due to a constitution that MPs approved.”

Asked whether a proposed Parliamentary Select Committee would also go into the draft constitution which a committee headed by President’s Counsel Romesh De Silva has prepared, Rajapakshe replied, “Individually I cannot decide on the draft of the new constitution. After the select committee is appointed, it will take a decision on whether to accept it or not.”

Rajapakshe is not in favour of the draft constitution, a copy of which was handed over to him by Romesh de Silva months earlier. This was his answer in an interview he gave a Sunday newspaper on March 21, 2021: “If you are going to make a constitution in two years, at least in four months the draft should be released. But four months have passed, and even the foundation of the new constitution is not yet there. Specialised groups or committees cannot make constitutions – nowhere in the world has this happened. The Indian constitution was drafted through a constitutional council from within parliament, under Dr. Ramji Ambedkar. In 1786, 13 states in the United States got together and asked James Madison to make the constitution. In Sri Lanka in 1948, the Soulbury Commission drafted a constitution. In 1972, when Madam Srimavo Bandaranaike wanted to change the constitution, she faced a problem as the Soulbury Commission said that it could not be done. That is why Madam Srimavo went for a revolutionary constitutional drafting method and made one from outside parliament, through a constitutional council, under Colvin R. De Silva. That occurred outside the common law. J.R. Jayewardene didn’t have a problem during his time because in 1972, a clause was added on how to change the constitution or make a new one – through a two-thrids majority.”

The Sunday Times has seen a copy of the 272-page draft constitution formulated by the nine-member committee headed by Romesh de Silva. Here are significant highlights:

CONSTITUTION OF THE REPUBLIC OF SRI LANKA (Draft)

1.14 The draft Constitution is the result of these endeavours. A summary of some highlights is given below.

STATE

National Day shall be the 22nd day in the month of May

SEPARATION OF POWER11

There is a clear delineation of the exercise of the sovereignty of the People wherein:

i.    The legislative power of the People shall be exercised by the National State Assembly elected by the People;

ii. The executive power of the People shall be exercised by the President of the Republic elected directly by the People; and

iii. The judicial power of the People shall be exercised by the courts.

NATIONAL SECURITY

There is a Chapter on national security in the draft.

Among the provisions introduced in this Chapter, the following have been included:

Prohibiting Armed Service Personnel (including intelligence officers) of any Foreign State being engaged without the approval of the National State Assembly.

Providing for the enactment of laws,

a) To establish a National Security Council to formulate and implement a national defence strategy

b) To regulate organisations operating with foreign funds and to regulate inward remittances

Contracts entered into between the Government of Sri Lanka and a Foreign Company or Foreign National relating to the transfer of possession or management of immovable property shall only be entered with the prior approval of the National State Assembly.

To prohibit entering into agreements to use any part of the Republic of Sri Lanka for a military purpose by any Foreign States.

FUNDAMENTAL DUTIES AND RIGHTS

DUTIES OF THE STATE AND CITIZEN

A novel feature of the draft is its recognition of enforceable duties of the State. Draft’s recognition of duties is in consonance with the cultural ethos of Sri Lanka.

The enumerated duties of the State include:

i.    To ensure that the resources of the Republic are not alienated or encumbered against national interests;

ii.   To preserve the national heritage of Sri Lanka;

iii.  To provide adequate social security to senior citizens of the Republic;

iv. To adopt necessary measures to ensure that persons with disabilities can meaningfully exercise their rights and freedoms guaranteed by the Constitution;

v.   To afford the citizens of Sri Lanka the freedom to lead their lives in a peaceful environment provided that the rights and freedoms of other persons and of the society are not infringed;

RESTRICTIONS ON FUNDAMENTAL RIGHTS

The exercise and operation of all the fundamental rights declared and recognised other than the Fundamental Rights guaranteed by Article 26 (freedom of religion) and 24 (torture and inhuman treatment) are subject to such restrictions as may be prescribed by law:

1) in the interests of national security, public order, racial and religious harmony, protection of public health, morality, or in relation to defamation, Parliamentary privilege and contempt of Court

2) in the interests of national economy or in relation to –

i. the professional, technical, academic, financial and other qualifications necessary for practising any profession or carrying on any occupation, trade, business or enterprise and the licensing and disciplinary control of the person entitled to such fundamental right; and

ii. the carrying on by the State, a State or a public corporation of any trade, business, industry, service or enterprise whether to the exclusion, complete or partial, of citizens or otherwise.

RIGHT TO SEEK RELIEF AGAINST NON-STATE ACTORS

The draft explicitly recognises, for the first time in Sri Lanka, that a citizen could institute action against another person for the breach of fundamental rights or fundamental duties.

BUDDHISM AND OTHER RELIGIONS

Article 9 of the present Constitution states as follows:

“The Republic shall give to Buddhism the foremost place and accordingly it shall be the duty of the state to protect and foster the Buddha Sasana while assuring to all religions the rights granted by Articles 26 and 27”

INTRODUCTION

A Council is to consist of not more than 16 members to represent the Siyamopali Mahanikāya, Sri Lanka Amarapura Mahanikāya and the Sri Lanka Rāmaňňa Mahanikāya and who shall be appointed by the President on the recommendations of the most Venerable Mahanayakas of the Malwatta and Asgiriya Chapters of the Siyamopali Mahanikaya, Sri Lanka Amarapura Mahanikāya and Sri Lanka Rāmaňňa Mahanikāya.

Special provision is made about the encroachment of temple property.

Once temple property is identified by the relevant authorities, the Magistrate’s Court may make an order of ejection of any person encroaching on temple property. This procedure is swift and without delay akin to the recovery of possession of State lands. However, a person ejected has the right to file action in an appropriate court for vindication of title.

vi. In addition, the draft Constitution envisages a separate court to adjudicate upon disputes relating specifically to Buddhists:

a.    Buddhist Temples;

b.   Disputes between Bhikkus;

c.    Disputes relating to the performance of services or payment of commuted dues payable in relation to any temple property;

d.   Any dispute in relation to Buddhist temporalities by any Bhikku to which such Bhikku is a party;

e. Registration of Samanera and Upasamprada;

f.    Recognition of Nikayas;

g.    Registration of temples of each Nikaya;

h. Enforcement of disciplinary orders made in relation to any Bhikku of any Nikaya by the disciplinary authority of such Nikaya.

13.6. Special reference is made to the Dasa Raja Dhamma in the Directive Principles of State Policy to guide the Government in conducting the affairs of the State.

13.7. It may be noted. However. that the following provisions are also emphasised in the draft so that no religion is unfairly treated:

i. Every person shall have the freedom of thought, conscience and religion;

THE EXECUTIVE

THE PRESIDENT

16.1. There shall be an Executive President who shall be elected directly by the People.

The Constitution builds in effective checks and balances in respect of the powers of the President.

The President shall be responsible to the National State Assembly for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any law.

As described later, the President shall not himself dissolve Parliament prior to the end of the term for which it was elected.

APPOINTMENTS BY THE PRESIDENT TO HIGH POSTS ON THE RECOMMENDATION OF THE HIGH POSTS COMMITTEE SUBJECT TO THE APPROVAL OF THE LEGISLATIVE COUNCIL.

All appointments by the President to the posts of Chief Justice, judges of the Supreme Court, the President and judges of the Court of appeal, the Attorney General and the Solicitor General, and the Chairperson and members of the Law Officers’ Commission shall be only on the recommendations of the High Posts Committee.

The President shall nominate as the Auditor General, Commissioner General of Elections, Secretary General of the National State Assembly, members of the Public Services Commission, Members of the Public Enterprise Commission, National Advisory Committee, Human Rights Commission of Sri Lanka, Finance Commission and Delimitation Commission, only upon the recommendations of the High Posts Committee.

All such appointments referred to in the paragraphs above require endorsement by the Legislative Council. However, where the Legislative Council refuses to endorse the first nominee submitted by the President, the President may submit a second nominee. Where the Legislative Council refuses to endorse a second nominee, the President shall nominate a third. Where the Legislative Council refuses to endorse all three nominees of the President, the President may nominate any other person.

GRANT OF PARDON

The President may, after due consultation with the Attorney General, and having obtained the views of the Chief Justice, grant a pardon.

IMMUNITY OF THE PRESIDENT

While a person holds office as President, no proceedings may be instituted or continued against him in any court or tribunal in respect of anything done or committed to be done in either of his official or private capacity. This provision would not apply to official acts of the President in the context of writ or fundamental rights applications.

No civil or criminal proceeding shall be instituted against any person who has previously held the office of President with regard to anything done or omitted to be done in good faith in the performance of his duties during his term of office.

DUAL CITIZENS NOT PERMITTED TO CONTEST

Only citizens of Sri Lanka (who are not citizens of any other country) shall be permitted to be elected as a member of the National State Assembly.

No citizen of any other country shall be entitled to contest any election. Local Authority Elections are recognised as part of the sovereignty of the people in the same way other elections are recognised.

CROSSING THE FLOOR” RESTRICTED

A member of the National State Assembly, who has contested the election being nominated by a recognised political party voluntarily gives up his membership of such party or obtains the membership of another political party or votes against a party decision, such member shall vacate his seat in the National State Assembly, unless such member together with others have constituted a separate group which is not less than one third of the members of such party represented in the National State Assembly. If a political party merges with another political party and a member is not in agreement with such merges and the member opts not to join with such new party consequent to such member, shall not vacate his seat.”

Whilst broader issues like the constitutional changes are paid attention to, it is imperative that the government also devotes attention to other burning issues that affect the people. One such case is the prolonged power cuts which the authorities seem to have conveniently forgotten. Even if it is not a priority for most of those, who do not face power cuts or have generators, it is hurting the people in a much bigger way.