Columns
- Speaker issues gazette notification outlining procedures; first commission appointed
- Udayanga says Dhammika Perera will be SLPP’s presidential candidate, but Mahinda and Namal skirt the issue
By Our Political Editor
The ding-dong controversy between the Presidency and the Constitutional Council over rules governing the CC’s functions has now been amicably resolved.
Speaker and CC Chairman Mahinda Yapa Abeywardena has issued a gazette notification embodying the Constitutional Council Rules No 1 of 2023. It was published on December 31, last year, or just seven days ago. Thereafter, the CC approved the first appointment—Chairman and members of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC).
A key feature of the new rules is the appointment of a Secretary-General to the CC. Such a person is required to possess a degree, preferably in law from a recognised university and have at least 20 years’ experience as an Attorney-at-Law. Among his tasks will be to summon meetings of the Council on the direction of the CC Chairman, communicate its decisions to the relevant authorities and maintain minutes/records of meetings.
In terms of the new rules, there are three primary functions formally assigned to the CC. The first is to recommend to the President, taking into consideration the requirements specified in Article 41B(3) of the Constitution, fit and proper persons to be appointed as the Chairpersons and members of each such Commission specified in (schedule 41B) of the Constitution.
Article 41B(1) of the Constitution stipulates that No person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council. The schedule (in Article 41C of the Constitution) lists the following: The Election Commission. The Public Service Commission. The National Police Commission, the Audit Service Commission, the Human Rights Commission of Sri Lanka, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission, the Delimitation Commission, and the National Procurement Commission.
The CC’s second function, listed in the rules, is “to consider the recommendations made by the President in respect of persons to be appointed to any office specified in the schedule and approve or disapprove such recommendation; and the third, “to perform and discharge any other duties and functions assigned to the council by the Constitution.”
Former President and SLPP leader Mahinda Rajapaksa answering media questions regarding the party's presidential candidate. Right: Namal Rajapaksa says 2024 will be a decisive year for political parties
The four-page gazette notification lays to rest a crisis that arose between the Presidency and the CC. It came in the wake of President Ranil Wickremesinghe’s recommendation to extend the tenure of office of now retired Inspector General of Police, C.D. Wickremeratne. The CC did not favour the appointment. Against that backdrop, there was also a stalemate over the President’s recommendations to appoint Justice Nissanka Bandula Karunaratne, President of the Court of Appeal, to the Supreme Court. That was to fill the vacancy created by the retirement of Justice Buwenaka Aluvihare. He also recommended that Justice Sobitha Rajakaruna, a member of the Court of Appeal, be elevated to the post of President of that body to meet the vacancy that would be created by Justice Karunaratne’s elevation. These recommendations, however, are still pending.
As reported in these columns on December 3, last year, a move by the CC to introduce Rules on the discharge of its duties and functions brought the executive and the legislature to an eyeball-to-eyeball confrontation. At issue was a 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 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, Additional Solicitor General Nerin Pulle 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.
In this backdrop, Justice Minister Wijeyadasa Rajapakshe sent the President’s Office a four-page draft of what he called “the Rules of the Constitutional Council” which he claimed was being “adopted for the performance of the discharge of the duties and functions of the Constitutional Council” in terms of Article 41G(3) of the Constitution.
In his draft rules, Minister Rajapakshe said, among other matters, “The Council shall ensure that it will not recommend or approve or grant concurrence for the appointment of any person to any office, commission, or institution where such person has any conflict of interest in the affairs or matters of the office, commission, or institution where such person’s name is nominated or forwarded. For this Rule “interest” means any interest or benefit, monetary or otherwise which may derive either directly or indirectly by a member of the Council or members of his family or close relatives.”
His draft added, “The Council may have the powers to call for any confidential information from any authority relating to the accuracy of a person whose name has been recommended or grant of approval or concurrence of the Council is required under the Constitution or any other written law as are necessary to hold the office where such person is nominated or recommended. “For the purpose of this Rule “interest” means any interest or benefit, monetary or otherwise which may derive either directly or indirectly by a member of the Council or members of his family or closed relatives…..”
When the revelations of Minister Rajapakshe’s draft proposals were made in these columns, without recourse to the Sunday Times, he raised an issue of privilege in Parliament over matters that were not accurate or true. He blamed this newspaper for preventing him from doing some “good” for the country and denied that the Attorney General’s Department had not received a copy of his draft report. However, the Sunday Times declared in these columns on December 17 last year that the Minister Rajapakshe’s DRAFT was received by the AG’s Department and their contents would not be accepted by the President’s Office. This was on the grounds that the Justice Minister’s draft contained provisions which, according to the opinion of the AG’s Department, usurped the President’s powers enshrined in the Constitution. It has now become clear that his proposals were not accepted for the same reason.
The rules stipulate the procedure to be followed for the conduct of meetings of the Constitutional Council. It lays down that:
(1) The Council may conduct its meetings in person, by any electronic means or on a virtual platform or in hybrid mode, as may be determined by the Council: Provided that, the Council may, whenever necessary, require any member of the Council to attend any meeting in person.
(2) The Council shall consider all relevant facts and circumstances in respect of any matter before the Council prior to reaching a decision on such matter and record the reasons for any such decision.
(3) The Council shall, in determining whether a person is a fit and proper person to be recommended to be appointed to any Commission specified in the schedule to Article 41B of the Constitution, take into consideration-
(a) the integrity and reputation of such persons.
(b) the ethical conduct of such persons.
(c) the experience, qualifications and competency of such persons pertaining to the nature of work carried out by the Commissions specified in the schedule to Article 41B of the Constitution; and
(d) the conflicting interests of such persons which may affect the discharge by such persons of any duty or function as the Chairman or any member of such Commission. The Council may, in evaluating the criteria specified in sub – paragraphs (a) to (d) of paragraph (1), consult any relevant person, professional body or other authority to obtain information as may be required by the Council in respect of persons to be recommended to any such Commission.
(2) The Council may in evaluating the criteria specified in the sub-paragraphs (a) to (d) of paragraph (1), consult any relevant person, professional body or other authority to obtain information as may be required by the Council in respect of persons to be recommended to any such Commission.
(3) In respect of any duty or function imposed or assigned to the Council under any other written law as specified in paragraph (2) of Article 41G of the Constitution, the Council shall perform or discharge such duty or function in accordance with the procedure and the manner as specified in such written law. The Council shall, by notice published in the Gazette and at least in three daily Newspapers in Sinhala, Tamil and English languages widely circulating in Sri Lanka, call expression of interest from fit and proper persons to be recommended as the Chairman and members of any Commission specified in the Schedule to Article 41B of the Constitution. Here are the criteria the rules want followed:
- The Council may, require such applicants to submit to the Council within a period as specified in such notice, any information or documents as may be required by the Council.
- The Council may, require such applicants to submit to the Council within a period as specified in such notice, any information or documents as may be required by the Council.
- Upon receipt of any application, information and documents required by the Council under paragraph (1), the Council shall evaluate the suitability of any such person to ascertain whether such person is a fit and proper person to be recommended in terms of Article 41B of the Constitution.
- The Council shall, after evaluating the suitability of the persons to be recommended as specified in this rule, prepare a shortlist of the persons whose suitability has been so evaluated, and interview them to ascertain their suitability.
- The Council shall publish at least in three daily newspapers in Sinhala, Tamil and English languages widely circulating in Sri Lanka, the names of persons recommended by the Council in terms of Article 41B of the Constitution.”
- Where the Council does not approve any recommendation made by the President under Article 41C of the Constitution, the Council shall inform its decision to the president along with the reasons for such decision. The rules made by the Council may, from time to time, be amended, varied or revoked in the same manner by and in which they were made.
- Where the Council does not approve the recommendation made by the President under Article 41C of the Constitution, the Council shall inform its decision to the President along with reasons for such decision.
- The rules made by the Council may from time to time, be amended, varied in the same manner by and in which they were made.
Soft campaign being launched
The resolution of the crisis between the presidency and the Constitutional Council comes at a time when soft campaigns for the next presidential election are being launched by different parties. Udayanga Weeratunga, a nephew of former President Mahinda Rajapaksa and former Sri Lanka Ambassador to Russia told an interviewer for YouTube that millionaire businessperson cum casino owner Dhammika Perera would be the candidate for the Sri Lanka Podujana Peramuna (SLPP). Interesting enough, the remarks came just ahead of a news conference at the SLPP headquarters. It was from a father and son combination, both Parliamentarians. At first, SLPP leader, Mahinda Rajapaksa deftly dodged the questions posed to him on who the SLPP candidate would be. However, Namal Rajapaksa hit out at their own government. This is how it went:
Q: Is the New Year grand?
MR: It is very grand.
Q: How do you hope to face this year?
A: We are preparing. We are ready for any election.
Q: People are dissatisfied with VAT. We hear that the President will dissolve Parliament suddenly.
A: Even if it is dissolved suddenly, we are prepared.
Q: Is it not a risk to go for elections when VAT has been increased?
A: How was it when we reduced VAT? Can’t you remember that?
Q: Who will be the candidate for the elections?
A: I will not be contesting. So, it is not me.
Q: There are several names. Will you bring somebody from outside?
A: We will wait and see.
Q: There are several names.
A: There are many names, except my name.
Here are Namal Rajapaksa’s answers to the questions posed. His answers, sometimes veiled, raised issues over the policies of President Wickremesinghe. Here is the Q & A:
Q: Politically what are the preparations this year?
NR: It is a decisive year for political parties. It is a year that we believe all key elections will be held. However, looking at the budgetary allocations, money has been allocated only for a single election. Constitutionally the Presidential election is scheduled while we believe a parliamentary election will be held before or after that. Also, we expect that the local and provincial elections will be held this year. As a party, we are preparing to educate the people.
Q: With the imposition of the VAT by the Government wouldn’t it be a disadvantage to go for elections at this time?
A: The people are aware that it was the SLPP government that developed the country. Therefore, we have faith in the people. We also should be able to accept public opinion. There is nothing that an election should be held at a time when you can win it. Elections should be held at the due time. You cannot engage in politics and presume that you can win an election at a particular time. You should give the people the right to elect the party or the leader they want. If they are opposed to anyone, they should be able to defeat him.
One of the main allegations against the Rajapaksa government was that the VAT was reduced. The Samagi Jana Balawegaya (SJB) and the Janatha Vimukthi Peramuna (JVP) which had then opposed the reduction of the VAT, are now complaining that the VAT is a burden on the people. Therefore, looking at issues with a political mind has made it difficult to reach the required goals. Some parties which were querying as to why they had not reached out to the IMF are now complaining about approaching the IMF. Therefore, if political parties try to achieve their own goals it is the people who suffer.
Q: Will the party field a senior member as the candidate or field a fresher?
A: The SLPP will field a candidate according to the policies of the party, according to the requirements of the party and also ensuring that party supporters could be protected. A person who could give leadership. It does not matter if the candidate is old or young or a person in politics or not, but a person who could meet the requirements and face international challenges. We do not select candidates on their individuality. We will name the candidate following a discussion within the party after the President calls for elections.
Q: You’ll have come through a difficult period. How do you hope to overcome the situation?
A: Even in the worst election the SLFP has got 38 percent of the vote while the UNP in its worst election has got 35 percent. When Chandrika Kumaratunga got more than 60 percent of the vote the opponent got close to 40 percent. When Mahinda Rajapaksa obtained 58 percent after the end of the war the others opposed him. It was the same when Gotabaya won. So, it is the government and the opposition.
Q: Political parties are head-hunting. Some of your party members are leaving. Even the Dullas group has broken away.
A: They broke away sometime back. What we observe today is there are differences within those groups. People who said they should contest collectively have now divided themselves. In a democracy there are options. We should not be head-hunting. As a political party what we should be doing is to have a programme where the challenges could be met in the next five to ten years. At the ground level, it is the SLPP which has the strongest network. Therefore, building a strong programme is a requirement instead of just changing heads among the 225 members.
Q: Would you be facing elections as an alliance?
A: We are open for discussions. Even today we are an alliance. As of today, the UNP is with us.
Q: Isn’t there a risk with the UNP? The chances of them leaving.
A: The UNP too has some good policies. But we have not discussed it with the UNP. It may have its own ideas. The UNP should also be strong.
Q: You made UNP stronger.
A: Yes, that is correct. The Aragalaya (protests) made us do that. We selected Ranil Wickremesinghe going by his experience.
Q: Isn’t it that your party made the UNP strong?
A: We are not sure if the UNP is strong or not. We believe that the UNP should be stronger at the village level.
In the coming weeks and months, a task for most opposition parties has been the formation of alliances. Quite clearly, they want to make sure of their own prospects in future elections. How it will work for many remains a question.
| Draft law ready for Truth, Unity and Reconciliation Commisison A Truth, Unity and Reconciliation Commission will be empowered to probe alleged violations of the law, including human rights, during the separatist war from 1983 for 27 years.The draft legislation, already gazetted, is due to come up for approval before Parliament early this year. The prime mover of this is President Ranil Wickremesinghe. He is now on a four-day visit to Jaffna but the proposed legislation, central to civilians there who are seeking accountability, has not figured. If they have been calling for accountability during the separatist war, those in the south have been told of reconciliation. A highlight of the new legislation is to make it lawful for the Attorney General to institute criminal proceedings in a designated court of law. This is “in respect of any offence based on material collected during an investigation or inquiry.” The members of the proposed Commission are to be appointed by the President on the recommendation of the Constitutional Council. One of them will be appointed as Chairperson of the Commission. The Commission will also have an “Information Officer” and a “designated officer” for the purpose of the Right to Information Act. Any person who intends to be appointed as a member of the Commission or wishes to nominate any other suitable person will be required to make an application to the Constitutional Council. The mandate of the Commission includes:
Arbitrary or unlawful arrests or detentions.
The draft law empowers the Commission to raise funds from overseas. The Commission is also required to open bank accounts. It is also empowered to “seek technical assistance” from any person or institution or organisation in the interest of the advancement of the Commission’s work.” The Commission, the draft law states, can make an application to a Magistrate having jurisdiction, for the issuance of a search warrant to enable the Police, “to search any premises suspected to contain material relevant to an investigation being conducted by the Commission. They are empowered to seize any object that is deemed necessary for an investigation. Magistrates with the relevant jurisdiction are also being empowered to excavate gravesites. Assistance from foreign countries is to be obtained under Mutual Legal Assistance programmes. A Victim and Witness Protection Division will assist the Commission in developing and enforcing a system for aggrieved persons and witness protection. A preambular paragraph to the draft law notes that “a truth seeking mechanism, anchored in the right of all Sri Lankans to know the truth as an integral part of their right to an effective remedy, will contribute to the promotion of national unity, peace, rule of law, coexistence, equality with tolerance and respect for diversity and reconciliation among the people of Sri Lanka and non-recurrence of disharmony and violence for the well-being and security of all Sri Lankans including future generations. It adds: “Respecting the fundamental rights and duties and implementing the directive principles of State policy enshrined in the Constitution being a primary objective of all organs of the Government of Sri Lanka, and having solemnly resolved to ratify the immutable republican principles of representative democracy and assuring all peoples’ freedom, equality, justice, fundamental human rights as the intangible heritage that guarantees the dignity and well being of succeeding generations of the people of Sri Lanka, and recognising that a national policy of truth seeking and the advancement of national policy of truth seeking and the advancement of national unity and reconciliation furthers the State’s assurance to all people of Sri Lanka freedom, equality, justice, fundamental human rights and the independence of the judiciary recognised under the Constitution. | |
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President and CC amicably settles rift over rules
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