Columns

• All-Island Working Committee will meet tomorrow; he may lose parliament seat and minister post
• Ranil’s presidential campaign preparations disrupted by row between Basil and Lanza faction
• President’s criticism of SC determination on Gender Equality Bill raises storm; BASL sees it as attempt to undermine judicial independence
• Modi visit to Sri Lanka before presidential election is off:  Jaishankar holds talks with political party leaders

By Our Political Editor

The Sri Lanka Podujana Peramuna (SLPP) wants to expel Wijeyadasa Rajapakshe, Minister of Justice, Prison Affairs and Constitutional Reforms, from party membership.  The move will see him lose his parliamentary seat. However, it is the President who will have to determine whether he can remain a cabinet minister. Here again, to continue as one, being a Member of Parliament, either elected or appointed, is a requirement.

The matter will come up for discussion when the SLPP’s All Island Working Committee meets tomorrow. Participants will be called upon to endorse a report that found that Minister Rajapakshe has violated the party’s constitution. This is by obtaining membership in another party. He has been named leader of one faction of the feuding Sri Lanka Freedom Party (SLFP). Onetime President Maithripala Sirisena promotes this faction. He has formally named Rajapakshe as his party’s presidential candidate. The SLPP constitution prohibits its members from obtaining membership in any other political party.

With the endorsement by the All Island Working Committee, the proposal to expel Rajapakshe will go before the SLPP’s Disciplinary Committee. The party leadership has already prepared a dossier which contains evidence of Rajapakshe’s membership in another party. He contested the Colombo district on the SLPP ticket in the 2020 parliamentary elections.

Weeks earlier, Rajapakshe, upon casual inquiries from President Ranil Wickremesinghe, explained that he had not made a final decision. In recent remarks, he also denied claims that he had been called upon to resign. A senior SLPP member, who did not wish to be identified, said yesterday that “inquiries conducted so far collected evidence to prove Rajapakshe is a member of another political party. It will be up to him to explain several issues.” He, however, declined to list them.

Indian External Affairs Minister, Subramaniam Jaishanker, made a day long visit to Colombo on Thursday. Picture on the left shows him meeting seven representatives of Tamil political parties. On the right, he is seen meeting Samagi Jana Balavegaya Leader Sajith Premadasa. Also present was Sri Lanka Muslim Congress leader Rauff Hakeem. The meetings took place at India House, the official residence of the Indian High Commissioner in Sri Lanka.

The All Island Working Committee will also discuss constitutional changes to facilitate the appointment of a National Convenor for the party. To be appointed to this position will be Rohitha Abeygunawardena, the SLPP’s Kalutara district parliamentarian. The post is different from National Organiser, which is held by Parliamentarian Namal Rajapaksa.

Basil-Lanza row

A move by some groups backing President Wickremesinghe as an “independent presidential candidate” has created a storm within the SLPP. This was after two factions, one led by Nimal Lanza of the New Alliance and Duminda Dissanayake, from a faction of the SLFP, proposed at a Media Committee meeting last Monday morning for Wickremesinghe to veer away from the Rajapaksas. In other words, they said they would like to see all members of the Rajapaksa clan or, for that matter, the SLPP, their political party, left out of the election campaign. Lanza was earlier a close confidant of SLPP founder Basil Rajapaksa. He was also closely associated with former President Mahinda Rajapaksa. So much so, years ago, when there was a reported Police raid on his house in Negombo, President Rajapaksa flew in a helicopter from Colombo to defuse the issue. Duminda Dissanayake was a former SLFP cabinet minister. President Wickremesinghe assigned Lanza an office in the Presidential Secretariat. He undertook the task of persuading SLPP MPs to rally around Wickremesinghe. Later, he formed a party named New Alliance, which is yet to be registered. It has set up its office at Lake Road, Rajagiriya. Lanza won over some trade unions backing the SLPP.

Basil Rajapaksa was not present at the Media Committee meeting of which he is not a member. He arrived early on Monday evening for the Strategic Affairs Committee meeting chaired by President Wickremesinghe at the official residence of the President at Mahagam Sekera Mawatha (former Paget Road). Nimal Siripala de Silva (leader of the other faction of the SLFP) and Anura Priyadarshana Yapa (New Alliance) had already arrived. Ahead of the commencement of the meeting, Basil Rajapaksa raised issue with President Wickremesinghe over the request made by Dissanayake and Lanza. Dissanayake is now General Secretary of the SLFP faction led by Nimal Siripala de Silva. He said he was taking part in the meetings only because of Wickremesinghe. Eyagollo ehema kiyanawanam, apita egollanwa siyaparak epa (if they are saying so, we do not want them a hundred times). He cautioned that remarks and conduct of this nature could force party members to take a different direction. President Wickremesinghe declared that he would take this up with Lanza and Dissanayake. Interjecting was Vajira Abeywardena who declared Api kala guna salakana minissu (or something akin to ‘we appreciate what people do for us’).

Later, Wickremesinghe spoke with the two members and stressed the need to work together. He was to inform Basil Rajapaksa that he had already dealt with the matter. Basil Rajapaksa had in turn taken the opportunity to say that there were no Rajapaksas in the current government. Therefore, he argued, the question of not having them did not arise. Yet, they had imposed confidence in Ranil Wickremesinghe and have been supporting him. There were some who were out to undermine it, he charged. “We can support you. Tell them not to engage in destructive politics,” he said.

President’s criticizes SC ruling

In another development, President Wickremesinghe, made some rather harsh comments in Parliament this week against the Supreme Court. It was over the court’s determination on whether a Bill “titled Gender Equality Act No   of 2024 or any part thereof is inconsistent with the Constitution of the Democratic Socialist Republic of Sri Lanka.”

First an account of what he said as publicised by the Presidential Media Division: “Honourable Speaker, you have read out the decision on the Gender Equality Bill. The determination of the Supreme Court on the Gender Equality Bill. That’s right. It has been read out by you. I just want to raise a point of order that it violates the powers of this House under Article 4 of the Constitution, and we should appoint a select committee. I would like to say first and foremost the bill says, what is the national policy on gender equality and empowerment of women referred to in this bill. At the least, it’s hard to find out. It’s not specific as there is no reference in the bill. There has been a national policy on women’s empowerment and gender equality since 2011. These are obligations of the Government under the Sustainable Development Goals 5 and a number of women’s conventions and agreements that we have signed. More than that, in the case of the Kamalawathi and others vs the Provincial Public Service Commission, SLR 1, the national policy was deemed within the domain of the Cabinet of Ministers and passed by the Supreme Court. It’s a parliament. It’s a political matter.

“The Supreme Court cannot in any way go and make any ruling on this. Then they are contravening and coming into our area. Secondly, there’s a large number of cases which have been given on the question of equality and equality of women. There are Ratnayaka Taranga, Lakmali versus Niroshan Abeykoon and the Inspector General of Police. It recognises the dignity and well-being of people as a fundamental right. Then there are the ten-judge bench in Sarath Jayasinghe and others. We have the view that mere reliance on the text used in a constitution is not sufficient to ascertain the values that are embodied in a constitution or its amendments. Similarly, you have the case where Shirani Bandaranayake’s judgment in Karunathilaka and Jayalath de Silva and others, which says the basic principle governing the concept of equality is to remove unfairness. It is profoundly forbidding action which denies equality and thereby discriminates.

“And finally, they have also ignored the special determination on the Penal Code Amendment, made by the Chief Justice. In this, we are talking of empowering women and ensuring equality for women. But according to Goal 5 of “Sustainable Development, even other minorities must get government services without discrimination. That anyway follows from the average duties which have been given to us under fundamental rights. So all these powers have been disregarded. In a sense, the court has set aside everything and saying that this makes room. So in a way, what they have done is all these have disappeared, as if this court has eaten it up, all the other judgments. So in a way, they are practising judicial cannibalism and we are being asked then to accept it, which this house can’t. How can you overrule a ten-judge bench and how can you overrule the Chief Justice? So that is one area.

“Then they are saying that this will allow same-sex marriages and gender this thing. No, it has nothing to do with it. We can’t allow that. They are going on this normal section which is put in every law by the legal draftsman and the AG, not by us. This law prevails over other laws, but this has also been interpreted. It’s finally for the court to decide. And I think in Chamara Sampath, not our Honourable Minister, but another person, and Neil Iddawela, they also referred to the points. This has been done by the doctrine of harmonious constructions. And the laws of marriage in this country can’t be changed by one section.

“More than that, they say that the whole of the, basically the whole Pirivena Education Act, can get knocked out by this. I don’t know on what basis they have done. We have Article 9 which protects Buddhism. And I know this Act because I have one of those who drafted it, and the Minister who implemented it. This has been defended by, this has been taken on by Article 9. And this, you think a small provision can change it? I don’t think the Supreme Court or the bench that sat, is even aware of what is Pariyatti, Patipatti, Pativeda. I think they should go to the temple and learn what this is. Or to a pirivena before coming and telling this house; we are aware of what is happening there. We have an honourable member of the Sangha also. So these rights of what he is saying is that all the rights of the Buddhists can be taken away by one small section. And what is going to happen? All the protection for Buddhism has been removed. And the power of this Supreme Court finally has to go back to the 1972 Constitution, all of us. Any inherent powers must be justified by the Constituent Assembly and the 72 Constitution which this is built.

“Therefore, when it comes, the Supreme Court can’t rule on a bill. They can only advise us on the value. It is basically pre-legislative scrutiny. And what we did in the 78 Constitution as one of those involved in this house, was that there had been, we transferred the powers of the Constitutional Court to the Supreme Court to ensure independence of the court is even further strengthened. That’s all that we have done.

“But otherwise in 72, when the first instance came up and T.S. Fernando decided that the two weeks was not mandatory, the house overlooked it and ruled it out. I think honourable, the former President and Vasudeva Nanayakkara were members of the house. Because these powers of the Supreme Court in all other matters come under justice, but this comes under subordination. Certainly this comes from Parliament. In a sense, unlike the other courts, the Supreme Court is transgender. So that is what they fall into. They get from two genders, both from us and under Article 4C and from us under Article 4A. So this is really a perverse determination which this house should not follow. And I am going to recommend that a select committee be appointed to go into it. There is no need to summon the judges. I don’t think we should go into that. There are enough that can be studied, and they can recommend it. Because most of the members should be appointed by the Women’s Caucus. After all, this concerns women. But what happens is it deprives the majority of this population, the women, of their rights. And it takes away the safeguard of another majority, the Buddhists in the Constitution. So we cannot accept it. And this house then has to assert its own rights.”

BASL hits out at President’s remarks

The Bar Association of Sri Lanka, the premier national body representing lawyers countrywide, came out with a strongly worded statement over the President’s remarks. It said: “The Bar Association of Sri Lanka (BASL) reaffirms its commitment to upholding the Rule of Law and safeguarding the independence of the judiciary in light of a recent statement made by His Excellency the President in Parliament on 18th June 2024 concerning the Supreme Court’s determination on the ‘Gender Equality Bill’. The Supreme Court has fulfilled its constitutional duty by assessing whether the Bill aligns with the supreme law of the land. While individuals have the right to agree or disagree, neither the legislature nor the executive should criticise the Court for performing its duty to the people.

“The BASL firmly believes that the judiciary should be allowed to function independently and free from any kind of external pressure. Therefore, the BASL views recent parliamentary statements referring to ‘Judicial Cannibalism’ and suggesting the formation of a select committee to review the Supreme Court’s determination as attempts to undermine judicial independence and force through a Bill which has been decided to be unconstitutional by the Supreme Court. Further, the BASL is of the view that the said statement per se is beyond constructive criticism or a fair comment.

“The BASL has considered this matter and is strongly of the view that the statement made by His Excellency the President is a threat to the Supreme Court and to the entire judicial system in discharging the judicial function of the republic conferred by the Constitution. Accordingly, the BASL asserts that establishing a parliamentary select committee to review the Supreme Court’s ruling on the constitutionality of a Bill would set a dangerous precedent.

“In this context, the BASL emphasises that it is the duty of both the executive and the legislature to respect the judiciary’s functions. Any interference could lead to severe adverse consequences and pose a significant threat to the Rule of Law in the country.”

A three-member bench of the Supreme Court comprising Justice P. Pathman Surasena, Justice Yasantha Kodagoda and Justice Kumudini Wickremesinghe delivered the 46-page determination.

Justice Surasena said in his determination that “according to Article 4, the fundamental rights are one of the components of the Sovereignty of the People Article 4(d) not only unequivocally calls upon all the organs of government to respect, secure and advance, the Fundamental Rights which the Constitution has declared and recognised, but also calls upon all the organs of government not to abridge, restrict or deny, save in the manner and to the extent provided in the Constitution. According to Article 3 of the Constitution, the sovereignty of the people is inalienable, I have already held that some of the Articles of the Constitution with which the main provisions of this Bill are inconsistent are Articles 7A, 12 and 14 of the Constitution which confer fundamental rights on the citizens of this country, As shown above, the fundamental rights are part of the sovereignty of the people of this country. Thus, any derogation of the fundamental rights guaranteed by the Constitution would amount to the derogation of the sovereignty of the people.

“In terms of Article 4 (d), the fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the arms of government and shall not be abridged, restricted or denied save in the manner and to the extent provided in the Constitution. That is one of the ways through which the people are entitled to exercise and enjoy their sovereignty. Thus, for the reasons stated in this determination, the main provisions of the Bill have also become inconsistent with Article 4 read with Article 3 of the Constitution,

“Thus, the objects of the Bill are inconsistent with Articles 3, 4(d), 9 and 10 of the Constitution and they are inseparable from the other provisions of the Bill. This compels us to hold that the Bill as a whole is inconsistent with Articles 3, 4(d), 9 and 10 of the Constitution, Thus, I determine that the Bill as a whole cannot be enacted into law, unless the appropriate procedure Iaid down in Articles 83 and/or Article 84 read with Article B0 of the Constitution which requires that the number of votes cast in favour thereof must amount to not less than two-thirds of the whole number of Members of Parliament (including those not present), and is approved by the people at a Referendum.

“I place on record our appreciation of the assistance given by the learned Counsel who appeared for the petitioners, the learned Counsel for the Intervenient petitioners and the learned Depuly Solicitor General who represented the Hon. Attorney-General, in this proceeding.”

Justice Yasantha Kodagoda declared, “Honourable Justice P, Padman Surasena was pleased to share with me the draft determination prepared by him relating to the Bill titled ‘Gender Equality’ published in the Gazette of 17th April 2024 and subsequently placed before the Order Paper of Parliament on 7th May 2024.

“Furthermore, I find myself in agreement with Justice Surasena’s finding that, taken as a whole, the Gender Equality Bill is inconsistent with Article 12 of the Constitution read with Articles 3 and 4 of the Constitution. Therefore, I agree with Justice Surasena’s finding that the Bill as a whole cannot be enacted into law unless the procedure laid down in Article 83 or 84 of the Constitution read with Article 80 of the Constitution is followed by Parliament and the Bill is approved by not less than two thirds of the whole number of Members of Parliament and subsequently approved by the People at a Referendum.

“However, in view of the salient features contained in the afore-stated Bill and due to some of the findings reached by Justice Surasena, it is necessary for me to lay down my own reasons for the afore-stated finding that the Bill as a whole is inconsistent with Article 12 read with Articles 3 and 4 of the Constitution.

“Therefore, it is to be noted that my agreement with Justice Surasena’s draft determination is only to the extent provided herein. Prior to a discussion on some of the objectionable features of the Bill, it is necessary for purposes of clarity that I state that the jurisdiction vested in this Court in terms of Article 121 of the Constitution, is unique in that, its role is not to sanction or condemn the policy underlying a Bill, but to, in terms of Article 123 of the Constitution, arrive at a finding and express such finding on whether a Bill or any provision thereof is inconsistent with the Constitution, and if so, state which provision or provisions of the Constitution is inconsistent with the Constitution, it is necessary to place on record that the Constitution has vested discretion in this Court to consider the constitutionality of a Bill as a whole and or to examine and comment on the constitutionality of individual clauses. Thus, for good reason, this Court is under no compulsion to examine and comment on all clauses of a Bill, particularly where the objectionable clauses go into the very root of the Bill and revision of such clauses would not be feasible unless the entire character of the Bill is changed, then, this Court is entitled to comment on the Bill as a whole.

“A consideration of the totality of the clauses of the Bill gives rise to the finding that the overall underlying objective of the enactment of the Bill is to ensure and provide for gender equality and women’s empowerment. It is necessary to observe that policymakers appear to have taken cognisance of the need to ensure that all persons of this country independent of or notwithstanding their ‘sex’ and their ‘gender’ are treated equally before the law and are accorded equal protection of the law. The Black’s Law Dictionary, 11th Edition provides that ‘sex’ means the sum of the peculiarities of structure and function that distinguish a male from a female organism, Thus, ‘sex, is a natural inheritance of a human being. While both the Black’s Law Dictionary (11th Edition) and the Merriam-Webster’s Dictionary of Law (1996 Edition) do not provide a definition of the term ‘gender’, the Oxford English Dictionary provides that, contextually ‘gender’ means ‘the state of being male or female (chiefly in cultural or social contexts)’. While the term ‘gender, is not interpreted in the Bill, the term ‘gender identity’ has been interpreted as ‘the cultural, economic, social and political characteristics, role and opportunities through which women, men and others are socially constructed and valued’,

In contemporary usage, it is well accepted that ‘gender’ means the male sex or the female sex, especially when considered with reference to social and cultural differences rather than biological ones, or one of a range of other identities that do not correspond to established ideas of being a male or a female.

“These identities have acquired the nomenclature of lesbian, gay, bisexual, transgender, intersex, queer/questioning, a-sexual and many other terms (such as non-binary and pansexual). During the hearing, learned counsel submitted that, these identities are continuing to evolve, and newer identities are emerging, Therefore, it is necessary to recognise that the term ‘sex’ found in Article 12(2) of the Constitution, cannot by any interpretation be recognised in the eyes of the law, as now meaning both the conventional term ‘sex’ and the term ‘gender’ which is of more recent origin. Ensuring equal protection of the law to persons of all genders and gender identities is in consonance with Article 12(1) of the Constitution which reflects a core value contained in the Constitution of the Democratic Socialist Republic of Sri Lanka. All persons are equal before the law and are entitled to the equal protection of the law. By no stretch of argument can one advance the proposition that ‘persons’ as contained in Article 12(1) of the Constitution would mean only the male and the female sexes, indeed, irrespective of a person’s gender identity, every human being must be recognised as a ‘person’.

Therefore, there is nothing inconsistent in the afore-stated underlying policy vis a vis Article 12(1) of the Constitution. In fact, given matters on public record, it is necessary for me to observe that, indeed, developing a legislative framework to give effect to gender equality and women’s empowerment in public affairs is salutary and is in furtherance of the core values contained in the Constitution,

“However, in my view, what the Bill indirectly seeks to do is to amend Article 12(2) of the Constitution by ensuring that no citizen shall be discriminated against on the ground of ‘gender’ or ‘gender identity’. That is with the view to prevent even a reasonable classification on the ground of gender or gender identity to justify differential treatment. As pointed out by Mr, Manohara De Silva, PC who appeared for the Petitioners in SC SD 5412024, what the Bill as a whole proposes to do, is to elevate the protection given to persons of different gender identities to protection beyond what is provided by Article 12(1) of the Constitution, and provide protection accorded under Article 2(2)of the Constitution. While it is not the role of this Court to comment on the merits or otherwise of that policy of elevating the degree of protection, it is necessary to point out that realisation of that policy through the enactment of the Bill amounts to an amendment to Article 12(2) of the Constitution. The proposed Bill is an attempt to amend Article I2(2) of the Constitution by substituting the term ‘sex’ with the term ‘sex and gender’. This may be due to well-founded reasons pertaining to the need to respect equality independent of or notwithstanding the gender or gender identity of a person.

“However, that is not a process that can be given effect to by an ordinary Bill. The desired result can only be achieved by enacting an ‘Amendment to the Constitution’ which amends Article 12(2) of the Constitution…..”

Justice Kumudini Wickremesinghe was in agreement with her two colleagues.

Sumanthiran’s observations

President Wickremesinghe’s attack on the Supreme Court also drew other reactions. Tamil National Alliance (TNA) spokesperson Abraham Sumanthiran told Parliament, “There is a process that has started in this parliament, very unfortunately, a few months ago, in the Online Safety Bill. We showed that several matters which were determined to be requiring two-thirds majority were passed in this parliament with a simple majority and had been made into law.

“The Minister of Justice in the debate thereafter kept on asking there has been nothing that had been breached. But I have listed at least six matters that have been breached. One is the second or subsequent offences the penalty is doubled. The Supreme Court said that cannot be and that requires a two-thirds majority. It has been passed like that. Now this is a trend for the first time.

“This is the second time, the President came and said we don’t have to follow this (Supreme Court) determination. This is a very serious trend that he is pushing. The reason that we suspect, he is pushing, very soon there is going to be introduced into this House a piece of legislation to amend the term of the President and the term of Parliament to extend it to six years, from five years to six years. Article 83 (b), which we could not amend in the 19th Amendment, because that itself could have required a referendum, says beyond six years, but the President is actually occupying a space to complete the term of President Gotabaya Rajapaksa which was for five years, in case the Supreme Court determines that Bill also to require a referendum in addition to a two-thirds majority, the President is now paving the way not to comply with that determination that might come from the Supreme Court and to pass it with a two-thirds majority, by bribing the MPs who complete the one full term to get their pension etc and so on. So this is the reason why it has nothing to do with Gender equality. This is the reason, this is a very dangerous trend that has commenced in Parliament and as Speaker you need to be very careful about this, the cannibalism thing is not about encroaching into another person’s territory. I think he said in the context of eating their own judgments; he cited some judgments and said they are eating their own judgments and it is in that context he said cannibalism. Unfortunately, he shouldn’t have used that word. But Parliament has to comply with the Constitution, it is not the President or the judiciary, The Constitution very clearly says, once the determination comes that must be complied with. Otherwise it does not become law even if the Speaker signs it. That is a very dangerous trend that has been commenced and it has been done yesterday also with an ulterior motive.”

However, sources close to the Presidency said there were no plans by President Wickremesinghe to seek any ruling from the SC about the extension of his term by another year.

Contrary to the report last week about the arrival of Indian Prime Minister, Narendra Modi, the trip will not take place. Diplomatic sources said that he will not visit Sri Lanka until the presidential elections are concluded. India’s External Affairs Minister, Subramaniam Jayashankar, ended a day-long visit to Colombo with a series of meetings. Besides President Wickremesinghe, he met Opposition and SJB leader, Sajith Premadasa, former President Mahinda Rajapaksa, separately with Basil Rajapaksa and representatives of Tamil political parties.