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- Ranil tells Government Printer not to publish guidelines in the gazette
- AG also agrees they are not in line with the Constitution
By Our Political Editor
A move by the Constitutional Council to introduce Rules on the discharge of its duties and functions brought the executive and the legislature to an eyeball-to-eyeball confrontation last week. The matter, which reached a flashpoint, was resolved only after one side, this time the CC, blinked.
At issue was the draft 56-page Rules which the CC has sent the Government Printer for publication in the gazette. The CC, chaired by Speaker Mahinda Yapa Abeywardena, had on November 21 approved that an English text of the Rules be tabled for the information of all members of Parliament. The news of the document being sent to the Government Printer thereafter had reached President Ranil Wickremesinghe triggering a string of developments. In the end, Speaker Abeywardena, who chairs the CC, withdrew the material meant for the government gazette.
The Rules were to be promulgated “in keeping with the provisions of Article 41G (3) of the Constitution. Article 41G says, (1) The Council shall, once every three months, submit to the President and Parliament a report of its activities during the preceding three months. (2) The (Constitutional) Council shall perform and discharge such other duties and functions as may be imposed or assigned to the (Constitutional) Council by the Constitution, or by any other written law. (3) The (Constitutional) Council shall have the power to make rules relating to the performance and discharge of its duties and functions. All such rules shall be published in the Gazette and be placed before Parliament within three months of such publication.
President Wickremesinghe directed Government Printer Ganga Kalpani Liyanage not to print the gazette notification containing the CC Rules. Thereafter, he sought the opinion of the Attorney General both on the procedure followed and the provisions contained in it. Acting on behalf of the AG, Nerin Pulle, Additional Solicitor General, had opined that sending the Rules for publication in the gazette after tabling them in Parliament was by itself a violation of 41G (3) of the Constitution. He also listed more than eight articles in the Constitution which the Rules had reportedly contravened.
That included Article 3 which states that “in the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights, and the franchise.” Another was Article 12 that guaranteed the right to equality by stating that “all persons are equal before the law and are entitled to the equal protection of the law.” Article 107 dealing with the independence of the judiciary states “The Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and the Court of Appeal shall be appointed by the President of the Republic by warrant under his hand. Among the other articles in the constitution listed were Article 35 (1), 41, and 105.
In what is titled as “General Provisions,” the draft Rules, said that they, “are to be read subject to the Constitutional and legislative provisions that govern the Constitutional Council (hereinafter the “Council”). In the case of the recommendations, approvals, concurrence, consultation, and appointments to be made by the Council, the information required from the applicants, nominees, or candidates (as the case may be) are to be identified and listed by the Council and made public.
In making its decisions, the Rules said, the Council is bound to respect the Constitution and relevant legislation, including the right to equality and non-discrimination, guaranteed under Articles 12(1) and (2) of the Constitution. The Members of the Council are required to act diligently, independently, impartially, ethically, with integrity and with propriety. Deliberations of the Council shall be confidential.
Members of the Council must avoid conflicts of interests. A member may not participate in any decisions in instances where:
a) the member has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings.
b) the member, or a member of his/her family (spouse, siblings, or children), has an economic interest in the outcome of the matter.
This is the second time in recent weeks that the executive has been at loggerheads with the legislature. The first came over President Wickremesinghe’s recommendation to the Constitutional Council to appoint the Court of Appeal, President, Justice Nissanka Bandula Karunaratne, as a Supreme Court Judge. This is to fill the vacancy created by the retirement of Justice Buweneka Aluvihare. He also recommended the appointment of Justice Sobitha Rajakaruna, a member, as the President of the Court of Appeal.
He disclosed in Parliament last week that Speaker Mahinda Yapa Abeywardena had informed him in writing that the Constitutional Council was unable to decide with three members in favour and three others opposed. Two remaining members had abstained. Noting that by whatever name the Constitutional Council is called, be it Parliamentary Council or simply CC, President Wickremesinghe asserted that it is also part of the executive. The remarks triggered debate on whether this position was correct. He has now proposed the appointment of a Parliamentary Select Committee to review CC procedures.
The appointment of a tenth member (to fill one vacancy) thus bringing the total membership in the Constitutional Council to ten, Speaker Abeywardena has pointed out entailed legal snags. Raising a privilege issue in Parliament on November 24, Gevindu Kumaratunga MP said that while a party leaders’ meeting chaired by the Speaker was ongoing the previous day, President Wickremesinghe, possibly with the knowledge that such a meeting was ongoing, had come to the Parliament Chamber and made a statement that can only be considered as a direct interference regarding the appointment of the Constitutional Council (CC) member from minority parties that do not belong to either the government or the main opposition party.
“It is a statement he certainly should not have made and one that has clearly violated our privileges as MPs. Minister Nimal Siripala De Silva has been appointed to the CC as the President’s representative. The Prime Minister and (SLPP) General Secretary Sagara Kariyawasam are also members from the government side. From the main opposition, there is the opposition leader Sajith Premadasa and MP Kabir Hashim. The remaining member must be appointed from among the minority parties not in government or the main opposition. The President comes to this House and says that the TNA has nominated Siddharthan to serve as that CC member. Harsha De Silva also says they have nominated Siddharthan from the opposition.
He added, “They are ignorant of the situation. You (Speaker) convened a meeting on this matter between these minority parties. It (appointing the CC member) is our right. The President is interfering in the matter is a clear violation of the Constitution. The President cannot nominate the CC member from minority parties.
“When the 21st Amendment which reestablished, the CC was debated, MP Abraham Sumanthiran from the TNA described it as an unimportant amendment. I have Hansard that includes his comments from that debate. He even said they would not vote for it and if you look at the voting results, you will see that they did not vote for the amendment. We, on the other hand, fought hard to push this through. If the President comes to Parliament and attempts to interfere in the appointment of our representative and if other parties attempt to interfere, that should act as a disqualification for the nominee they are trying to appoint. As such, we urge the Speaker to call a meeting of the minority parties and appoint our CC member by agreement from among us.”
The Rules set out the guidelines for the approval of recommendations in respect of independent commissions. They contain prescribed forms for different categories to be completed. About the appointment of Judges to the Supreme Court and the procedures contained, the now withdrawn Rules had this to say:
In considering the recommendation made by the President, the Council may take account of the following as guidelines for suitability to the office:
a) any Judge of the Court of Appeal (normally in the order of seniority);
b) a member of the Official Bar who has held office as Additional Solicitor-General;
c) an eminent senior member of the unofficial Bar; or
d) a senior eminent jurist/academic
Where the nominee is a member of the unofficial Bar such nominee shall:
a) be a regular practitioner in the appellate courts.
b) except in exceptional circumstances having at least twenty-years of experience as an Attorney-at-Law; and
c) be held in high esteem by the judiciary and the legal profession.
In ascertaining the above, the Council shall obtain the views of the Chief Justice, and may also obtain the views of the retiring Chief Justice, where appropriate, on the nominee. Where the nominee is a jurist/an academic, such a person should have made a significant contribution to the development of the law. Any member of the unofficial Bar, or jurist/academic so nominated shall not usually be above the age of 62 years.
In considering nominations to the Supreme Court the Council shall apply its mind to the overall composition of the Court, and the need for diversity, also including the need for inclusion of members of the career judiciary, members of the official Bar and members of the unofficial bar including jurists/academics.
Where the Council is not satisfied with the nomination made, the Chair shall communicate the reasons for the same to the President and request for fresh nominations.
Procedure for Approval of a recommendation for the appointment to the Office of the President of the Court of Appeal.
In considering the recommendation made by the President, the Council may take account of the following as guidelines for suitability to the office:
a) any sitting Judge of the Court of Appeal (normally the most senior Judge);
b) a member of the official Bar who has permanently held at least a position of an Additional Solicitor General.
c) an eminent senior member of the unofficial Bar; or
d) a senior eminent academic/jurist.
Where the nominee is a member of the unofficial Bar such nominee shall:
a) be a regular practitioner in the appellate courts; and
b) May have at least twenty-years of experience as an Attorney-at-Law; and
c) be held in high esteem by the judiciary and the legal profession.
Any member of the unofficial Bar, or jurist/academic so nominated shall not be above the age of 60 years. Where the nominee is an academic/jurist, such a person should have made a significant contribution to the development of the law.
In ascertaining the above, the Council shall obtain the views of the Chief Justice on the nominee. Where the Council is not in agreement with the nomination made, the Chair shall communicate the reasons for the same to the President and request for fresh nominations.
Procedure for Approval of recommendations for the appointment of Judges to the Court of Appeal.
In considering the recommendation made by the President, the Council may take account of the following as guidelines for suitability to the office:
a) a Judge of the High Court (normally in order of seniority)
b) a member of the Official Bar and have permanently held at least a position of Senior Deputy Solicitor General
c) a member of the unofficial Bar.
d) a senior eminent jurist/academic.
Where the nominee is a member of the unofficial Bar such nominee shall:
a) be a regular practitioner in the appellate courts; and
b) except in exceptional circumstances have at least twenty years of experience as an Attorney-at-Law.
c) be held in high esteem by the judiciary and the legal profession.
Any member of the unofficial Bar, or jurist/academic so nominated shall not be above the age of 60 years. Where the nominee is an academic/jurist, such a person should have made a significant contribution to the development of the law.
In ascertaining the above, the Council shall obtain the views of the Chief Justice on the nominee.
The Rules have also defined the duties of the Constitutional Council. They state that “the Council shall recommend to the relevant appointing authority the suitable persons for the appointment as the Chairpersons and members of the Commissions referred to in the Article 41B of the Constitution, and the Commissions/institutions/Offices/bodies referred by other legislation.
“It shall be the responsibility of the Council to make recommendations to the President for the appointment of the Chairpersons and Members to the Commissions specified in Schedule 41B of the Constitution. In making recommendations, the Council must:
- Recommend fit and proper people.
- Endeavour to ensure that the recommendations reflect the pluralistic character of Lankan society, including gender.
- Recommend three names to the President for the appointment to the post of Chairperson of a Commission, where relevant.
- Give due regard to specific criteria specified in the Constitution and the relevant legislation.
As Sri Lanka enters another new year in a few weeks, these are issues the executive and the legislature will have to resolve. Moreover, 2024 has already been declared a year for presidential and parliamentary elections.
Anura Kumara Dissanayake emerges as frontrunner for presidential poll
In just 28 days, 2024 will dawn. Two foremost events the country will witness will be a presidential election and a parliamentary general election—both pledged in Parliament by President Ranil Wickremesinghe. Colombo-based diplomatic missions, international organisations, study groups and even political parties have been busy in the past months placing their bets on surveys and opinion polls. Emerging as an unexpected frontrunner in the presidential race is Anura Kumara Dissanayake, a product of Kelaniya University, who celebrated his 55th birthday just a week ago, on November 24. Some surveys are pitching him as a possible winner with just over 51 percent of the votes. His protagonists, however, counter it with a mathematical theory. They say the Janatha Vimukthi Peramuna (JVP) won only 3.1% at the 2019 presidential election. Therefore, they argue, he would have to record a 1500% increase in votes. “Politics is not mathematics. It is a social science. It may not sound realistic mathematically but according to social science it is possible,” counters Dissanayake, the JVP leader. Like the social change he expects, the JVP, which is the key player in the National People’s Power (NPP), he says, has changed in keeping with a new era. Until 1990s, there were two blocs—the socialists and the capitalists. We came from the former. Thereafter the world became United States centric. There are other powerful nations like China, Russia, India, and Europe. There is the Middle East. Therefore, we needed to change. In a wide-ranging interview with the Sunday Times, Anura Kumara Dissanayake answered questions posed to him. Here are edited excerpts: Q: In the backdrop of a difficult and challenging environment where the country remains bankrupt, the President has come up with a budget. What are your thoughts? A: We have faced two issues. The Treasury could not raise the required rupee revenue and the country failed to earn the dollar revenue. We failed to earn the required dollars because we import some of the items which could be produced here. The other reason is we have failed to capture developed markets and services. We need an economic plan. We need a policy on substitutes for imports. We need a plan to capture developed markets and services in the world. But we do not see that plan in budget proposals. For the Treasury to raise revenue the goods and services should be increased. Without improving goods and services we cannot raise the revenue. We do not see any proposals towards achieving this. I can cite some examples. The small and medium-scale businesses had collapsed. The government should have collected the information on these businesses through the Divisional Secretaries and found a solution. We do not see such a solution in the budget. The construction industry has suffered a major setback. There is no solution offered to salvage the construction industry. There is no concession for the multiday trawler fishermen who suffer losses. The coconut industry is another sector. We believe the production is not sufficient. We should have targets which could be achieved. Milk production is another area as the production is insufficient. Again, in the service sector such as the IT industry we need to have a plan to enter the market. But we don’t have a plan. Therefore, President Ranil Wickremesinghe’s budget has no solutions. He believes that he could offer giveaways and gain votes. He has offered a salary increase for 1.3 million public sector employees, offered an increase of pensions for 700,000 pensioners and Aswesuma beneficiaries for another two million families. Therefore, it is clear he is collecting votes. The budget does not have any solution to come out from the present crisis. Another main crisis the government is facing is in the power and energy sector. The Kelanitissa and Kerawalapitiya power stations and the new station at Kerawalapitiya collectively could produce 1000 MW. Diesel and naptha are being used but they can be converted to natural gas. A unit can be provided at Rs 32. There should be a plan for that. Also, roof-top solar power is another sector. Some 1000 Mw could be produced without increasing the generation capacity. This means the same transmission lines could transmit that capacity. That too needs a plan. Therefore, we do not believe that the power and energy sector crisis could be resolved by selling fuel stations. We see this as a budget to collect votes. Q: By January next year, the President Wickremesinghe-led SLPP government will complete 18 months in office. The public perception is that there are no shortages of fuel, power, or cooking gas. He says the opposition did not offer any support to him. Do you agree? A: We don’t agree. Firstly, the President should have a mandate from the people. This President does not have one. He too should be responsible for the economic crisis. The Supreme Court has already identified those who contributed to the economic bankruptcy. It is with the support of those people that the President is in power. How can we support such a person? Our proposal is that if a mandate from the people is received to form a government and if proposals are brought by that government, we have a responsibility to provide support. Secondly, we receive gas and fuel not due to an economic miracle. In April last year, we declared bankruptcy and said we were not re-paying loans. We have foreign loans arrears amounting to US$ 3,750 million. The total outstanding is US$ 36 billion. So, it is not that the economy was revived and that we earned dollars. The purchasing power of the public has been reduced. If the economy is improving the demand for electricity should increase. But the demand has reduced. Usually we need 1.6 million units, but we have used around 1.5 million units this year. That means that factories can be closed, and consumption could be reduced, and the electricity could be managed. The consumption of fuel could be reduced, and fuel could be provided. The usage of electricity and power should increase if the economy is improving as it is an indicator. The President has said if we must start repaying the loans from January the economic situation will get worse. Our stand is that the government should have a mandate from the people. Q: What would be your major campaign slogan for a future election? A: ‘Pohosath Janathawak – Pohosath Ratak’ (A rich people –rich country) We should have a corruption-free country with democracy in place. Today we do not have economic democracy. Today people can carry out business activity with the only if they have contact with the Minister. An investor can get land only if he knows the Lands Minster. A government tender could be obtained only if he is supportive of the government. That is a hindrance to economic development. Therefore, our effort is to restore economic democracy. We do not want to put up hotels, own distilleries, buy shares from companies or get into the mining business. We will create an opportunity for an entrepreneur or industrialist to reasonably participate in economic development. Q: Do you believe a fragmented opposition can pose a formidable threat to the government at an election? A: The fragmented groups have been those who were together at one time. For instance, the Dullas Allahapperuma faction was with the Rajapaksas. The Anura Priyadarshana Yapa faction was also with the Rajapaksas. The SJB was with Ranil Wickremesinghe. They broke away not due to policy differences. The SJB was formed not by questioning Wickremesinghe’s economic policies or his political culture. There was an opinion at that time that they could not win with Ranil. They believed they could win with Sajith Premadasa. That was the reason for the formation of that camp. The people who joined Sajith were those who thought they could enter Parliament if they came with him, instead of joining Ranil. The reason for the breakaway of Dullas and the group was due to personal differences with the Rajapaksas. If they were taken into the inner circle the results would differ. Earlier they were in the inner circle. Therefore, there are no policy reasons for the breakaway. Q: There have been increased engagements by the JVP with the international community. You have engaged key players like the United States, India, and other European nations which you criticized heavily earlier. Was the change on your initiative or theirs? A: We are a sovereign and independent country. Therefore, we have the acceptance and the right. That is the principle. But there is a difference between the principle and the reality. Whether we like it or not there is geopolitical competition. There is competition in trade, technology, etc. In Sri Lanka, we are not part of that competition. We are not competitors of India, China, Russia, or Europe. They have the competition. Our neighbour India is in the geopolitical competition. That is the reality. Our country’s decisions favour or disfavour India. Therefore, in our foreign policy, we cannot ignore India. Q: On the present impasse between the Presidency and the Constitutional Council: A: Of the 78 years since independence, 45 years have been under the Executive Presidential system. It does not suit our country. Our leaders are not mentally conditioned to hold office. Why do they use the power to offer presidential pardon to release those convicted of murder? The President has the power to appoint judges. But there is a question of how a person from a local bank was appointed to the office of Chief Justice. I am referring to Mohan Peiris, onetime Chairman of Seylan Bank. He was appointed after Shirani Bandaranayake was removed. The power to appoint persons to the judiciary has been given to the President believing that he would use his wisdom in the right manner. We feel the Executive Presidential system has been used to take control of the judiciary, the legislature, and the executive. Politically our stance is that the Executive Presidential system should be abolished. Former President Maithripala Sirisena said he released Jude Jayamaha, convicted for murder, because Ven Athureliye Rathana Thera asked him. He told that to me. But that is not the manner a President should act. Even those in the judiciary lost confidence. We need constitutional reforms. But not just legal reforms. The attitudes too should change. It is not that we are short of laws, but there is also an issue of attitudes. We are a country which has good attitudes. But that was destroyed by this political culture. Q: On the Supreme Court ruling that three members of the Rajapaksa family and a coterie of officials contributed to the economic bankruptcy: A: If they were responsible for the economic downfall, they have also committed an offence under criminal laws. Action could be filed under these laws. We will be doing that. But we believe that fraud, corruption, and wastage were more serious. Those were not taken into consideration in this case. We believe that these areas should also be considered, and action taken. Q: Colossal expenditure on retired presidents and provision of security for those who face no threats have cost the government a vast amount in public funds. Do you hope to continue such a practice? A: I have been in Parliament for the past 23 years and have never taken a policeman for my security. Therefore, we will remove VIP security where they are not required. We will not provide security to open the door for the MP, to go marketing for the MP’s wife and to prepare tea for their visitors. There are many vacancies in the Police while a large number have been deployed to protect VIPs. We will stop maintaining former Presidents. We will also stop providing houses for Ministers and paying their electricity bills. We believe that the President can have only one official residence in Colombo. We know that some court cases involving corruption have been withdrawn for minor technical reasons. Many bribery cases have been withdrawn on the grounds that all three Commissioners have not signed the papers. Many were discharged not after hearing of the case, but by considering if the case was filed properly or not. These cases should be filed again. The case of a ruling party politician regarding property at Malwana (he mentions the name). The case was withdrawn on the grounds that the Attorney General would not be calling further witnesses. If witnesses are not called, you cannot proceed in a case. Most cases have been withdrawn due to political intervention. We will refile these cases. There are cases which have not been filed. The investigations have been completed by the CID and the file is with the AG’s Department. We do not want to take revenge personally. But they should be held responsible as the issues involve public funds. Q: There have been fears that a government under your party will go on to acquire private properties and business establishments. What is your official position? A: There is an opinion being built that an NPP government is against those who have wealth, and that the property of the wealthy will be acquired. That is not correct. We don’t have such plans. We believe that the engine of economic growth will be the small and medium-scale industrialists and private entrepreneurs. As a government, we will not engage in business. But to direct the economy, we will ensure that there is economic democracy and targets will be provided to the private sector. We would say the tourism sector should achieve a particular target in five years. The social responsibility mandate is with the government. The private entrepreneur has no mandate to take responsibility. His target is profits. That is nothing wrong. But the Government has a social responsibility. According to that mandate the economy should be directed. For instance, we should give a direction that in two years’ time we should reach a target of four million tourist arrivals. The hotels required, guides, vehicles should be provided by the private sector. We should set a target and get the private sector to achieve it. In the tea industry we should go for further value addition. Currently 72 percent of the tea is exported as bulk. We should give directions to increase value addition. But that does not mean we will be opening tea factories. We will invite the business sector to invest.
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CC withdraws Rules after clash with President
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