Columns

• Appoints five-member team to strengthen the party on priority basis; contacts with other political parties and alliances continue
• Namal Rajapaksa’s name also emerges in public, but he says decision will be taken by SLPP leadership; Basil returns at critical time
• Supreme Court rejects Sumanthiran’s petition on Online Safety Act, insists it has no power to override Parliament’s law-making process

By Our Political Editor

There are seven months more to go before the presidential election. Don’t get burnt out before that, President Ranil Wickremesinghe warned his United National Party (UNP) stalwarts during a meeting.

They met last Sunday to review planning and the progress made so far for the upcoming presidential election. He nevertheless ticked off the party’s General Secretary, Palitha Range Bandara, over what he called “things not moving.” He wanted the UNP machinery strengthened on a priority basis and named a five-member committee to embark on the immediate task. The team is made up of Range Bandara, Sagala Ratnayake, Ravi Karunanayake, Ruwan Wijewardene and Naveen Dissanayake.

The fiery mood was reflected elsewhere too. He moved into his rebuilt private residence at Fifth Lane in Kollupitiya last Wednesday. On Thursday night, he told a Sri Lanka Air Force passing out parade in Trincomalee that whether there was an internal or external problem, one should not run away but face the brunt of it. His private house was burnt down by protestors (aragalaya) in 2022.

Namal as candidate

The task of hurriedly strengthening the UNP is assuming significance in the light of another development in Matale this week. Some 25 former local councillors and two parliamentarians, Rohana Dissanayake and Nalaka Dissanayake of the Sri Lanka Podujana Peramuna (SLPP), met at a closed-door meeting. They decided unanimously that Namal Rajapaksa should be the SLPP candidate in the presidential election. In terms of the constitution, this election is due any day between September 17 and October 17.

Hambantota district parliamentarian Rajapaksa was present at the meeting and did not raise objections. However, he did say that a final decision on a candidate has not been made by the party hierarchy. Two notable absentees from the district were Janaka Bandara Tennekoon and Pramitha Bandara Tennekoon.

That is not all. Namal Rajapaksa during a visit to the International Buddhist Centre in Nelligala, off Kandy, told Journalists that though some SLPP members who obtained ministerial positions have expressed the view that Ranil Wickremesinghe should be the next presidential candidate, it is not the view of the SLPP.

“After the presidential election is announced, the SLPP candidate will be named,” he said. “Whatever is being said now,” he asserted that, “the Presidential candidate will be from a broad front set up under the leadership of the SLPP.”

The new Police Chief Deshabandu Tennekoon inspects a Special Task Force Guard of Honour after assuming duties.

“Some of the cabinet ministers and state ministers are of the view that Wickremesinghe should be the next presidential candidate. There are others who propose other names. We should not be disturbed about it. There is freedom within the party to express their personal opinions. If it was another party, those saying so would be suspended from the party.”

This week around thirty SLPP parliamentarian, including their leader Mahinda Rajapaksa, Johnston Fernando, Janaka Wakkumbura, D.V. Chanaka, Sashindra Rajapaksa, Sanjeewa Edirimanna and Sagara Kariyawasam gathered at the residence of Namal Rajapaksa to discuss about future party activities. A similar meeting of SLPP MPs is due to be held next week.

This is the first time some groups within the SLPP have begun to raise their voice in favour of the former Cabinet minister. He is the eldest son of Mahinda Rajapaksa who has served two terms as President. At least officially, SLPP General Secretary Sagara Kariyawasam has been projecting contradictory positions in the media over the party’s candidate. He declared earlier that leading businessman and casino owner Dhammika Perera would be one of four who were being considered as presidential candidates. Later, he was to declare that the party had not decided on any nominee. However, this position was clarified by Mahinda Rajapaksa who said that Ranil Wickremesinghe was one of the candidates under consideration—a position that was endorsed by Namal Rajapaksa himself. Now that Namal Rajapaksa’s name has publicly emerged, it comes as proof that different lobbies in the SLPP are now becoming active.

SLPP trouble shooter Basil Rajapaksa is due in Colombo next week and that would be an issue for him to resolve. The party’s original thinking of not to field a candidate, thus keeping different groups intact within the party, seems to remain. However, the party’s founder and key strategist, Basil Rajapaksa, no doubt, would have some bargaining chips up his sleeve. He will want to convert them into party gains before extending total support. That can go beyond seeking political concessions during the presidential election to a parliamentary general election. This perhaps explains Ranil Wickremesinghe’s unease at the situation in the UNP and the need to consolidate it. At the grassroots level more needed to be done. This underscores the move to conduct a major party rally in  (the Kurunegala district) on March 10 and move to other areas thereafter.

Another task undertaken by UNP stalwarts is to canvass support for the “grand alliance” that would support Wickremesinghe as presidential candidate. Informal contacts are underway with different political parties and groups. Wickremesinghe himself spoke on the telephone with Ilankai Thamil Arasu Katchi (ITAK) leader Sivagnanam Sritharan. The President had earlier telephoned him  from Switzerland when Sritharan was elected president of the ITAK during their convention in Trincomalee. This was to congratulate him. The latest  call was more to break the ice and they agreed to meet next week for a more formal conversation. It is highly unlikely that ITAK will extend support. Sritharan’s advisors are asking him to contest as the candidate ‘representing the Tamil community,’ particularly in the North and East. They are urging him to make his candidacy as a “referendum” for Tamil “self-determination.” Another member is speaking with members of the Samagi Jana Balavegaya (SJB). He reported that according to contacts he made, one prominent SJBer had confessed that the “state of affairs in the party was similar to what it was when Wickremesinghe led the UNP.” The interlocutor remarked “I told them, why wait then. You can come to us.”   Others spoken to include Dilith Jayaweera, a lawyer cum publisher who has announced his presidential candidature, Parliamentarian Kumara Welgama and All Ceylon Makkal Katchchi leader Rishad Bathiuddin.

President Wickremesinghe has been chairing strategy sessions over the upcoming presidential election. Last week he initiated a string of measures to strengthen the UNP. His Media Division has been quick to issue formal statements of denial when opposition groups claimed that the presidential election will not be held. With all this and more, he is yet to formally announce his candidature. This has given rise to wild speculation in some political circles.

The Central Committee of the Pivithuru Hela Urumaya (PHU) heard their leader, Udaya Gammanpila, boldly declare that Wickremesinghe will not be a presidential candidate. At a meeting only a few blocks away from the UNP’s headquarters, Siri Kotha, they gathered at their own headquarters to hear him. The reason Gammanpila gave—during a visit to Australia for the seventh Indian Ocean Conference in Perth on February 9 and  10, the President was interviewed by Sidant Sibal of the WION (World is One Indian television channel).  This is what the transcript said:

Sibal: And moving forward to the domestic aspects of your country. Elections happening this year.

Wickremesinghe: Yes, both presidential and parliamentary.

Sibal: And, how optimistic are you that hopefully you will be back

Wickremesinghe: For me to be back, I must contest.

Sibal: And do you plan to, sir?

Wickremesinghe:  I have come here to put the economy into order, my first duty is to focus on that we get out of bankruptcy.

Gammanpila argued that Wickremesinghe had replied to a question about the prospects of returning to office by saying “for me to come back, I must contest.” This, he argued, showed President Wickremesinghe had no plans to contest the presidential election.

Highly placed UNP sources admitted that Wickremesinghe had not yet formally declared his candidature. However, these sources insist that he would contest but did not wish to identify themselves. One of them, a UNP senior, declared that a formal announcement would be made by President Wickremesinghe in April about his candidature.

Other political parties are also busy with manoeuvres to either form alliances or seek the support of one another. The newly formed United Republic Front (URF) is busy with an unusual project—discussing its 31 page “A step forward with Unity for our Nation” – with other political parties. A party delegation held a discussion this week with leaders of the Samagi Jana Balavegaya (SJB). They also met Tamil parliamentarians Mano Ganesan and Palani Digambaram. A URF statement raised a query from Ranawaka and had the answer alongside. This is what it said. Does that mean they (the two MPs) are willing to work together even to get this government power?

Answer: “In the future, they will decide which alliance they will come with in order to gain government power. They will assess and act on what kind of service should be given to the Tamil people of hill country and the general public of the country through that alliance. We trust them. Now from the opposition, they have shown that they can live without government power. That democratic attitude has been shown. We respect that.”

A delegation led by Ranawaka also met Russian Ambassador Levan S. Dzangaryan for the same purpose. It is unclear why the party has not chosen to first hold a public rally or any other event and explain its policy to Sri Lankans, who are the voters, first before they reach out to the diplomatic community.

The New Alliance of Gampaha District parliamentarian Nimal Lanza held its first public meeting in Colombo at the Hyde Park Corner last week. The grouping was originally formed to muster support of the SLPP parliamentarians for Ranil Wickremesinghe at the presidential election. There are now indications that the newly formed group is transforming itself into a political party though official recognition would take time. This was reflected when the alliance’s spokesperson Ruchira Dilan Madushanka officially released the letter of resignation of Sugheeswara Bandara, Private Secretary to former President Gotabaya Rajapaksa. He said Bandara will be the Chief Organiser of the New Alliance for the Colombo district. Obviously, they plan on fielding candidates at the parliamentary general elections which the government says will be held next year. Both Bandara and Lanza worked earlier from the Presidential Secretariat.  Would that mean the UNP and the New Alliance will field different candidates at a general election?

SC ruling on Sumanthiran’s petition

In the wake of the upcoming presidential poll, one of the major controversies which opposition parties have focused on is the passage of the Online Safety Bill in Parliament. Civil society groups have charged that the Bill, which has now become law after Speaker Mahinda Yapa Abeywardena signed it, severely restricts the space for dissent and is therefore ‘anti-democratic.’ In an unprecedented move, the Cabinet of Ministers has decided to introduce amendments to the law in a bid to rectify the situation. The decision itself reflects the reality that amendments should have been moved earlier.

One step adopted by the opposition was to move the Supreme Court. Tamil National Alliance (TNA) Parliamentarian Abraham Sumanthiran filed a Fundamental Rights petition, but the SC did not allow leave to proceed. He alleged that there was “non-compliance with the determination made by the Supreme Court in legislating the ‘Online Safety Bill.” A three-judge bench comprised Justice Priyantha Jayawardena, Justice A.L. Shiran Gooneratne and Justice Achala Wengappuli heard the petition.

• The petitioner prayed, inter alia that the SC “issue an interim order suspending the operation of the purported document published as “Online Safety Act No. 9 of 2024” and/or such other appropriate order;
• Declare that the fundamental rights guaranteed by Articles 12(1) and 14 of the Constitution to the Petitioner and the citizens of Sri Lanka, have been infringed by the purported certification by the 1st Respondent of the ‘Online Safety Act No. 9 of 2024″ P9(a)-(e)), and that such conduct entails further imminent infringement of such rights, and amounts to a continuing violation of the said fundamental rights, and/or such other appropriate order;
• Declare that the fundamental rights guaranteed by Articles 12(1) and 14 of the Constitution to the Petitioner and the citizens of Sri Lanka, have been infringed by the 2nd Respondent, by failing to advise the 1st Respondent and/or Parliament that the purported Committee Stage Amendments did not make the Online Safety Bill compliant with the Determination of Your Lordships’ Court and/or that the said Bill would still require a 2/3 Special Majority vote in order to be enacted into law;
• Declare that the purported certification of the 1st Respondent of the purported ‘Online Safety Act’ (P9(a)-(c)), is a nullity in law, and of no force and/or effect in law, and/or such other appropriate order;
• Declare that the purported document published as “Online Safety Act No. 9 of 2024″ (P9(a)-(c)) is ultra vires the Constitution and of no force and/or effect in law, and/or such other appropriate order;”

When this application was supported in court, the Attorney General who appeared for the respondents raised the following preliminary objections.

• The matters urged in the petition do not fall within the ambit of ‘executive and administrative action’ referred to in Article 126 of the Constitution. In this regard, he drew the attention of court to averments in the petition and the prayer to the petition.
• Hence, as the allegations levelled in the petition do not fall within the ‘executive and administrative action’, the instant application should be dismissed in limine. In support of his contention, he submitted that the powers of the legislature are set out in Chapter 11 of the Constitution and the allegation levelled in the petition falls outside the scope of ‘executive and administrative’ action.
• Further, he drew the attention of court to the averments in the affidavit filed along with the petition and submitted that the matters referred to in the said averments had taken place in the chamber of Parliament. Therefore, such matters fall within Parliamentary privileges and thus, the courts have no jurisdiction to investigate the matters referred to in the petition. (iii) Moreover, the 1 st respondent has certified the ‘Online Safety Bill’ under Article 79 of the Constitution. Hence, the court cannot consider the legality of the Act in view of Article 80(3) of the Constitution. In this regard, he cited the judgment delivered in Gamage v Perera (2006) 3 SLR 354 at 359.
• Matters averred in the petition refer to the legislative process and therefore, Article 124 of the Constitution has ousted the jurisdiction of courts in considering the procedure that the ‘Online Safety Bill’ was enacted into law.
• In terms of section 3 of the Parliament (Powers and Privileges) Act the courts have no jurisdiction to consider the allegations stated in the petition as the said section has taken away the jurisdiction of courts about matters relating to parliamentary affairs.

The SC held that “If any mistakes or omissions take place in the legislative process in enacting laws the remedy is to amend the relevant law. Such an amendment can be effected either by an amendment proposed by the Government or by way of an amendment brought before Parliament as a Private Members’ Bill. Erskine May Parliamentary Practice (24th Edition) at page 183 states;

“… A law might be unjust or contrary to sound principles of government; but Parliament was not controlled in its discretion, and when it erred, its errors could be corrected only by itself …”

“Hence, if the suggestions made in the determination with regard to the ‘Online Safety Bill’ have not been incorporated into the Bill before it was passed into law, either the Government or a Member of Parliament can take steps to move an amendment in Parliament to rectify such errors or omissions in enacting the legislation. Furthermore, in view of the aforementioned ouster clauses in the Constitution, the legislative process is not justitiable. The learned counsel for the petitioner cited Jackson and others v Her Majesty’s Attorney General [2005] UKHL 56 in support of his contention. However, the said case has no application to the instant application as ouster clauses in respect of the legislative process and post review of laws have been enshrined in our Constitution.

Conclusion:

“A careful consideration of the provisions of the Constitution shows that the legislature has intentionally ousted the jurisdiction of courts, tribunals, etc., not only reviewing the legislation passed by Parliament but also the legislative process in enacting legislation ‘on any ground whatsoever’. In this regard, the legislature has included two separate Articles in the Constitution to oust the jurisdiction of courts, tribunals, etc. Thus, it shows the importance placed by the drafters of the Constitution in preventing courts, tribunals, etc. from interfering not only with the legislative process but also the laws passed by Parliament. Thus, Articles 80(3) and 124 of the Constitution have prevented the post-legislative scrutiny of Acts passed by Parliament ‘on any ground whatsoever’.

“Moreover, the phrase ‘on any ground whatsoever’ prevents this court exercising power or jurisdiction in considering the matters referred to in the instant petition as they refer to the legislative process. In the circumstances, the preliminary objections raised by the Attorney General are upheld. Therefore, leave to proceed is refused and the application is dismissed without costs.”

No-faith motion against Speaker

Now, the Samagi Jana Balavegaya (SJB) leader, Sajith Premadasa, has won the support of some opposition parties to move a vote of no confidence against Speaker Abeywardena. Chief Opposition Whip Lakshman Kiriella told a news conference on Thursday that it was wrong on the part of Speaker Abeywardena to have placed his assent to the Online Safety Law which was a violation of the Constitution. However, there is little doubt that with the government’s majority, the motion is sure to be defeated when it is taken up for debate in Parliament. Here is an English translation of the Vote of No-Confidence:

No Confidence Motion against Speaker Mahinda Yapa Abeywardena

During the Committee Stage of the Online Safety Bill in Parliament certain clauses of the Bill were allowed to be passed contrary to the ruling of the Supreme Court, despite objections raised by Opposition members. Especially;

a.     By allowing to pass Section 13 of the said Bill  with a simple majority though the Supreme court found that the section is inconsistent with 12 (1) of the Constitution, and accordingly , in order to pass the said section  a special majority was required or  should be amended;

b.     By allowing to pass section 17 of the said Bill, despite the Supreme Court finding it to be inconsistent with the Constitution and ruled that it required a special majority to be passed and the Attorney General informing Courts that the said clause would be removed.

c.     By allowing passing of sections 20, 33 (6), 34 (1) and 35 (1) clauses with a simple majority without amendments, despite the Supreme Court ruling that the section was inconsistent with the Constitution and inorder to pass the clauses with a simple majority the clauses needs to be amended;

d.     By allowing to pass clause 21 of the Bill with a simple majority despite the Supreme Court ruling that the Clause was inconsistent with the Constitution and that in order to pass the clause a Special majority was required and the assurance that by the Attorney General to courts that the amendments would be submitted during the Committee stage not being followed.

e.     By allowing to pass clause 22 of the Bill with a simple majority without amendments, despite the Supreme Court ruling that the clause was inconsistent with the Constitution and in order to pass it with a simple majority amendments suggested by the Supreme Court should be incorporated.

f.      By allowing to pass clause 31 of the Bill with a simple majority, without amendments, despite the Supreme court ruling  that the clause was inconsistent with the Constitution and a special majority was required or should be amended keeping with the amendments suggested by the Supreme Court.

Also as the Human Rights Commission of Sri Lanka in a letter dated 08.02.2024 to the Speaker has raised concern that in passing the Bill the Supreme court ruling has not been taken into consideration and whether the bill received the required number of votes to be passed in Parliament;

Also as the third reading of the Bill was passed without a vote, despite the Opposition Chief Whip asking for a division (vote) and the request being ignored;

Also the Speaker had disregarded the request made by a group of opposition MP’s at the Committee on Parliamentary business held on February 01, 2024 not to sign the bill and make it a law, until in depth study is made regarding some of the clauses were passed against the ruling made by Supreme Court and gone onto sign it to make it a law;

Also since the Speaker had openly violated parliamentary standing orders, and the Constitution;

Also since the Speaker had openly exhibited that he acts with a bias towards  government side and therefore had violated the independency, dignity of the position of the Speaker of the Parliament;

Also since the Speaker who is bound to protect the privileges and rights of all MP’s irrespective of they belong to the Government or the opposition,  had violated the rights and privileges of the opposition MPs.

Also, since the duties and responsibilities of the office of Speaker have been neglected;

It is suggested that this Parliament no longer has confidence in the Speaker.

Controversy over IGP appointment

Another development that has drawn considerable controversy is the government’s appointment of Deshabandu Tennekeoon last Monday as the new Inspector General of Police. His tenure as acting IGP was to have ended last Wednesday and his elevation came under different circumstances. Last Tuesday, (just a day after his confirmation as IGP), the Supreme Court was to have heard a Fundamental Rights petition against Tennekoon’s appointment as acting IGP. There were seven more petitions pending. In one of them, a group of Buddhist clergy sought to be intervenient petitioners in his favour. It is not clear the appointment was made hurriedly to forestall any possible move to oust him.

The controversial appointment was quite clearly a serious drawback for the government leaders. The periodic two-week extensions of service of his predecessor, Chandana Wickremeratne, received kept Tennekoon, who was next in line for succession, away. During this period, government leaders publicly announced that there would be measures soon to restrict the term of service of the IGPs to a maximum period of only three years. Privately, government leaders have also mulled over the idea of appointing a Commissioner General of Police to be the overall head of the Police Department. The fact that Tennakoon won the post despite all this is a personal victory for Public Security Minister Tiran Alles, who has strongly espoused his case, rejecting criticism.  In terms of his age, Tennekoon can continue until 2031. That means he is entitled to serve the full term of a new President and two more years under a successor thereafter. Drawing the ire of the Leader of the Opposition, Sajith Premadasa, was how Speaker Abeywardena gave his casting vote at the Constitutional Council though, as the process required, it could be done only at times when there is a tie. Premadasa, however, is a close friend of Public Security Minister Alles and has clearly voiced his opposition to Speaker Abeywardena’s actions..

There is no doubt that one of his primary responsibilities would be to gear the police for the upcoming presidential election. Going by the rate of murders and mounting crime, fears of violence has become one of the biggest causes for worry. This is at a time when the Police, particularly after the protests in 2022, found their role diverted largely to quell an uneasy situation. Police stations have been compelled to cut down on patrolling and exercise duties related to maintaining law and order.