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Removing PM not essential to executive power

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SC on 22A: Part II

by Dr Jayampathy Wickramaratne, President’s Counsel

In Part I of this article, the writer argued that the determination of the Supreme Court in the case of the Nineteenth Amendment was preferable to that of the Twenty-second Amendment Bill (22A).

Removal of the PM, not executive power

The writer submits that in 22A, the Court seriously erred by assuming that the power to dismiss a Prime Minister is an essential part of executive power. While the President is directly elected by the People, the Prime Minister is elected indirectly by the very same People. The People elect the Parliament, and the Member of Parliament who commands the utmost confidence of that elected Parliament has the right to be appointed Prime Minister. The President has solely to identify who that Member is. It is not an essential part of executive power.

The writer respectfully submits that it would be difficult to find a worse example of arbitrary action, in matters of public law in a functioning democracy, than the removal of a Prime Minister by a President at a time the former commands the confidence of Parliament. Regretfully, the Supreme Court has held that to take away such arbitrary power requires the approval of the People at a referendum.

That such removal can be challenged in the Supreme Court or that the ‘new’ Prime Minister can be defeated in Parliament is no answer. Why open the doors to manipulation in the meanwhile? When the Constitution is so clear as to who can hold the position of Prime Minister, why allow the President to dismiss a Prime Minister at all?

If, as the Supreme Court has determined, the power to remove a Prime Minister is an essential part of executive power, the appointment of the Prime Minister must also be an essential part of such power. It necessarily follows then that the power of appointment and removal of the Prime Minister cannot be given to Parliament! A constitutional amendment that provides that the caretaker government during the election would continue until Parliament meets for the first time, that both the Speaker and the Prime Minister would be elected by Parliament at its first meeting and that any change in the position of the Prime Minister would be a matter for Parliament only would need a referendum. After all, it is Parliament that can best determine which Member commands its confidence. If the Prime Minister is the Member who commands the utmost confidence of Parliament, would it be an alienation of executive power to transfer the power of appointment from the President to Parliament? From what the Court has determined, it would be so. Sounds illogical, doesn’t it?

Power to dismiss PM opens the door for manipulation

The turmoil created by the removal of a Prime Minister can also give rise to manipulation of the kind the country witnessed during the fifty-two-day period of constitutional crisis in 2018. Following the purported removal of Prime Minister Ranil Wickremesinghe, who commanded the confidence of Parliament, Mahinda Rajapaksa was appointed as the ‘new’ Prime Minister. A few Members of Parliament were enticed to cross over, but when it was clear that the ‘new’ Prime Minister was unable to secure a majority, President Maithripala Sirisena purported to dissolve Parliament. Upon several fundamental rights applications being filed, the Supreme Court granted leave to proceed and issued an interim order staying the operation of the dissolution. Parliament then met, and the ‘new’ Prime Minister and his ‘government’ were defeated on the floor of the House on several occasions. Upon an application being made by 122 out of 225 Members of Parliament for writs of quo warranto against the ‘new’ Prime Minister and ‘Ministers’, the Court of Appeal issued interim orders restraining them from functioning. The manipulations continued, and, in the meantime, the Supreme Court struck down the purported dissolution. It was only after the Supreme Court granted special leave to appeal against the order of the Court of Appeal but refused to stay the operation of the interim order that the ‘new’ Prime Minister ‘resigned’. However, President Sirisena refused to re-appoint Ranil Wickremesinghe as Prime Minister, indicating that he would instead be willing to appoint Sajith Premadasa, who steadfastly declined. Finally, Sirisena had to eat humble pie and appoint Wickremesinghe. It is in the backdrop of such ugly episodes in our history that the power to dismiss a Prime Minister must be considered.

Constitutional Amendments: Flexibility and Rigidity

Every written constitution lays down the procedure for amending it or making a new constitution. It is the general rule that such a procedure is more rigorous than the procedure followed in making ordinary law. In most countries, ordinary laws are passed by a simple majority of the legislature/s, while constitutional changes need a special majority, usually a two-thirds majority. In Sri Lanka, the Independence Constitution, as well as the 1972 Constitution, prescribed a two-thirds majority.

Under the 1978 Constitution, while a two-thirds majority is a general rule for amendments, changes that affect certain ‘entrenched’ provisions of the Constitution listed in Article 83 require the approval of the People at a referendum as well. Article 3, one of the entrenched provisions, states: ‘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.’ Article 4 sets out the manner in which legislative power, executive power, judicial power, fundamental rights and the franchise are exercised. Article 4(b), which is relevant to this discussion, is in the following form: ‘the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People’. Interestingly, in both the Draft Constitution contained in the report of the Select Committee on Constitutional Reform and the 1978 Constitution Bill, Article 4 was included in the list of provisions to be entrenched. However, it was deleted from the list at the committee stage, thus signifying a conscious decision to leave the power to change the manner of the exercise of sovereignty to Parliament.

It is generally accepted that a Constitution should neither be too flexible, which is too easy to amend, nor too rigid, which is very difficult to amend. A Constitution that is too flexible is open to political manipulation, and minorities—ethnic, political, and otherwise—become vulnerable. A Constitution that is too rigid is unable to respond to changing public opinion and can lead to frustration, strengthening the case for extra-constitutional action. A Constitution can also be made more or too flexible/rigid by judicial interpretation. Judges dealing with constitutional issues, therefore, have an onerous task before them.

17A and 19A: SC allows flexibility

From the day the 1978 Constitution was adopted, the reduction of Presidential power and making the Presidency a ceremonial position have been matters of intense debate.

The Seventeenth Amendment Bill of 2001 sought to restrict the powers of the President by making appointments to certain important positions subject to the approval of a Constitutional Council and requiring the President to appoint members of Commissions that are expected to be independent only on the recommendation of the Council. The Supreme Court, in a welcome determination, stated that although there is a restriction in the exercise of the discretion hitherto vested in the President, that restriction per se would not be an erosion of the executive power of the President.

In its determination on the Nineteenth Amendment Bill of 2015, the Court (Sripavan CJ, Dep J and EkanayakeJ) took another step forward.

The core of the determination is that an essential requirement for the avoidance of a referendum is that the President continues to be the head of the executive, and the ultimate ‘act or decision’ of his executive functions must be retained by him. The use of the word ‘or’ in the phrase ‘act or decision’ used by the Court needs to be emphasised. Thus, it suffices if the final act is that of the President, even if the decision is not his. The Supreme Court stated that Article 42, which states that the Cabinet of Ministers is charged with the direction and control of the government of the Republic and is collectively responsible and answerable to Parliament, conclusively establishes that the President is not the sole repository of executive power under the Constitution. This has been emphasised by a seven-member Bench In Re the Nineteenth Amendment to the Constitution 2002 as well. Executive power should not be identified with the President and personalised and should be identified at all times as the power of the People, the Court held in that case.

Reference was also made to Justice Wanasundera’s dicta in the Thirteenth Amendment case that the Cabinet of Ministers, of which the President is a component, is an integral part of the mechanism of government and the distribution of the executive power and any attempt to bypass it and exercise Executive powers without the valve and conduit of the Cabinet would be contrary to the fundamental mechanism and design of the Constitution.

It is of much significance that the Court did not find that provisions requiring the President to appoint Ministers and Deputy Ministers on the advice of the Prime Minister required a referendum. This is in line with the essence of the determination. The President continues to be the appointing authority and, as such, is not removed from the appointing process. The act of appointing Ministers continues to be that of the President, although the decision is that of the Prime Minister. On the other hand, the clauses that provided that the Prime Minister shall determine the subjects and functions assigned to Ministers and may at any time change such assignment would require a referendum as the President would not be involved. The Court thus relaxed the rigidity of the amending procedure, although to a limited extent. (To be concluded)



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Mannar’s silent skies: Migratory Flamingos fall victim to power lines amid Wind Farm dispute

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Victims: Flamingos / Birds found dead in Mannar

By Ifham Nizam

A fresh wave of concern has gripped conservationists following the reported deaths of migratory flamingos within the Vankalai Sanctuary—a globally recognised bird habitat—raising urgent questions about the ecological cost of large-scale renewable energy projects in the region.

The incident comes at a time when a fundamental rights petition, challenging the proposed wind power project, linked to India’s Adani Group, remains under examination before the Supreme Court, with environmental groups warning that the very risks they highlighted are now materialising.

At least two flamingos—believed to be part of the iconic migratory flocks that travel thousands of kilometres to reach Sri Lanka—were found dead after entanglement with high-tension transmission lines running across the sanctuary. Another bird was reportedly struggling for survival.

Professor Sampath Seneviratne, a leading ornithologist, expressed deep concern over the development, noting that such incidents are not isolated but indicative of a broader and predictable threat.

“These migratory birds depend on specific flyways that have remained unchanged for centuries. When high-risk infrastructure, like poorly planned power lines, intersect these routes, collisions become inevitable,” he said. “What we are witnessing now could be just the beginning if proper mitigation measures are not urgently implemented.”

Environmentalists argue that the Mannar region—particularly the Vankalai wetland complex—is one of the most critical stopover sites in South Asia for migratory waterbirds, including flamingos, pelicans, and various species of waders. The sanctuary’s ecological value has also supported a niche with growing eco-tourism sector, drawing birdwatchers from around the world.

Executive Director of the Centre for Environmental Justice, Dilena Pathragoda, said the incident underscores the urgency of judicial intervention and stricter environmental oversight.

“This tragedy is a direct consequence of ignoring scientifically established environmental safeguards. We have already raised these concerns before court, particularly regarding the location of transmission infrastructure within sensitive bird habitats,” Pathragoda said.

“Renewable energy cannot be pursued in isolation from ecological responsibility. If due process and proper environmental impact assessments are bypassed or diluted, then such losses are inevitable.”

Conservation groups have long cautioned that the installation of wind turbines and associated grid infrastructure—especially overhead transmission lines—within or near sensitive habitats could transform these landscapes into lethal zones for avifauna.

An environmental activist involved in the ongoing legal challenge said the latest deaths validate earlier warnings.

“This is exactly what we feared. Development is necessary, but not at the cost of biodiversity. When projects of this scale proceed without adequate ecological assessments and safeguards, the consequences are irreversible,” the activist stressed.

The debate has once again brought into focus the delicate balance between renewable energy expansion and biodiversity conservation. While wind energy is widely promoted as a clean alternative to fossil fuels, experts caution that “green” does not automatically mean “harmless.”

Professor Seneviratne emphasised that solutions do exist, including rerouting transmission lines, installing bird diverters, and conducting comprehensive migratory pathway studies prior to project approval.

“Globally, there are well-established mitigation strategies. The issue here is not the absence of knowledge, but the failure to apply it effectively,” he noted.

The timing of the incident is particularly worrying. Migratory flamingos typically remain in Sri Lanka until late April or May before embarking on their return journeys. Conservationists warn that if hazards remain unaddressed, larger flocks could face similar risks in the coming weeks.

Beyond ecological implications, experts also highlight potential economic fallout. Wildlife tourism—especially birdwatching—contributes significantly to local livelihoods in Mannar.

 Repeated reports of bird deaths could deter eco-conscious travellers and damage the region’s reputation as a safe haven for migratory species.

Environmentalists are now calling for immediate intervention by authorities, including a temporary halt to high-risk operations in sensitive zones, pending a thorough environmental review.

They stress that protecting animal movement corridors—whether elephant migration routes or avian flyways—is a fundamental pillar of modern conservation.

As the controversy unfolds, one question looms large: can Sri Lanka pursue sustainable energy without sacrificing the very natural heritage that defines it?

Pathragoda added that for now, the sight of fallen flamingos in Mannar stands as a stark reminder that development, if not carefully planned, can carry a heavy and irreversible cost.

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‘Weaponizing’ religion in the pursuit of power

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President Donald Trump; miscalculating in M-E / Ayatollah Khomeini; Architect of Iranian Revolution

A picture of US President Donald Trump apparently being prayed for by supporters, appearing in sections of the international media, said it all loud and clear. That is, religion is being flagrantly leveraged or prostituted by politicians single-mindedly bent on furthering their power aspirations.

Although in the case of the US President the trend took on may be an exceptionally graphic or dramatic form, the ‘weaponizing’ of religion is nothing particularly new, nor is it confined to only religiously conservative sections of the West. For example, in South Asia it is an integral part of politics. The ‘South Asian Eight’ are notorious for it and it could be unreservedly stated that in Sri Lanka, the latter’s ethnic conflict would be more amenable to resolution if religion was not made a potent weapon by ambitious politicians of particularly the country’s South.

The more enlightened sections of Christian believers in the US may not have been able to contain their consternation at the sight of the US President apparently being ‘blessed’ by pastors claiming adherence to Christianity. Any human is entitled to be blessed but not if he is leading his country to war without exhausting all the options at his disposal to end the relevant conflict by peaceful means.

More compounded would be his problem if his directives lead to the death of civilians in the hundreds. In the latter case he is stringently accountable for the spilling of civilian blood, that is, the committing of war crimes.

However, the US along with Israel did just that in the recent bombings of Iran, for instance. The majority of the lives lost were those of civilians. If the US President is endowed with a Christian conscience he would have paused to consider that he is guilty of ordering the taking of the life of another human which is forbidden in the teachings of Jesus Christ.

Moreover, the ‘pastors’ praying over the US President should have thought on the above lines as well. May be they were in an effort to curry the President’s favour which is as blame-worthy as legitimizing in some form the taking of civilian lives. Apparently, the realisation is not dawning on all Christian conservatives of the US that some of these ‘pastors’ could very well be the proverbial false prophets and the latter are almost everywhere, even in far distant Sri Lanka.

However, the political reality ‘on the ground’ is that the Christian Right is a stable support base of the Republican Right in the US. Considering this it should not come as a surprise to the seasoned political watcher if the Christian Right, read Christian fundamentalists, are hand-in-glove, so to speak, with President Trump. But it is a scathing indictment on these rightist sections that they are all for perpetrating war and destruction and not for the fostering of peace and reconciliation. Ideally, they should have impressed on their President the dire need to make peace.

That said, political commentators should consider it incumbent on themselves to point out that religion is being ‘weaponized’ in Iran as well. Theocratic rule in Iran has been essentially all about perpetuating the power of the clerical class. The reasons that led to the Islamic Revolution in Iran are complex and the indiscreet Westernization of Iran under the Shah dynasty is one of these but one would have expected Iran to develop from then on into a multi-party, pluralistic democratic state where people would be enjoying their fundamental rights, as enshrined in the Universal Declaration of Human Rights, for example.

Moreover, Iran should have taken it upon itself to be a champion of world peace, in keeping with its Islamic credentials. But some past regimes in Iran had vowed to virtually bomb Israel out of existence and such regional policy trajectories could only bring perpetual conflict and war. Considering the current state of the Middle East it could be said that the unfettered playing out of these animosities is leading the region and the world to ‘reap the whirlwind’, having recklessly ‘sowed the wind’.

However, religious fundamentalism-inspired conflict and war has spread well beyond the Middle East into almost every region since 1979, the year of the Islamic Revolution in Iran. So much so, knowledgeable opinion now points out that religious identity has come to replace nationalism as a principal shaper of international politics or “geopolitics”, as quite a few sections misleadingly and incorrectly term it.

Elaborating on the decisive influence of religious identity, the well known and far traveled Western journalist Patrick Cockburn says in his authoritative and comprehensive book titled, ‘The Age of Jihad – Islamic State and the Great War for the Middle East’ at page 428 in connection with the war in Chechnya ; ‘If nationalism was not entirely dead, it no longer provided the ideological glue necessary to hold together and motivate people who were fighting a war. Unlike the Islamic faith, it was no longer a belief or a badge of identity for which people would fight very hard.’ (The book in reference was published by VERSO, London and New York).

In his wide coverage of Jihadist Wars the world over Cockburn goes on to state that today a call from a cleric could motivate his followers to lay down no less than their lives for a cause championed by the former. The 9/11 catastrophe alone should convince the observer that this is indeed true.

However, as often pointed out in this column, there is no alternative but to foster peace and reconciliation if a world free of bloodshed and strife is what is being sought. Fortunately we are not short of illustrious persons from the East and West who have shone a light on how best to get to a degree of peace. Besides Mahatma Gandhi of India, who was the subject of this column last week, we have former President of Iran Mohammad Khatami, who made a case for a ‘Dialogue of Civilizations’ rather than a ‘Clash of Civilizations’.

The time is more than ripe to take a leaf from these illustrious personalities, for, the current state of war in the Middle East has raised the possibility of a war that could transcend regional boundaries. The antagonists are obliged to exhaust all the peaceful options with the assistance of the UN system. Besides, war cannot ever have the blessings of the sane.

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Venerable Rahula Thera’s 35-year green mission and national Namal Uyana

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Venerable Rahula Thera

It was 35 years ago, on March 28, 1991, that Venerable Rahula Thera, then a young monk, embarked on a journey to the Na forest in Ulpathagama, Palagama, in the Anuradhapura District. Today, three and a half decades later, this mission stands as living proof of the enduring bond between Buddhist philosophy and the natural world.

Marking the 35th year of this green mission, Rahula Thera’s relentless dedication has transformed the National Namal Uyana into an environmental landmark admired not only across Sri Lanka but around the globe, as well.

When studying the life of Venerable Rahula Thera, one cannot ignore the profound connection between Buddhism and the environment. Buddhism is a philosophy deeply attuned to nature. The historical use of the sacred “Na Ruka” by all four Buddhas: Mangala Buddha, Sumana Buddha, Revata Buddha, and Sobhita Buddha — for enlightenment —demonstrates that from time immemorial, Buddhism has maintained a sacred bond with the Na tree. From the birth of Siddhartha to his enlightenment, the propagation of the Dharma, and even the great Parinirvana, all of these milestones unfolded in verdant, living landscapes.

Venerable Rahula Thera did not embark on the Namal Uyana mission seeking government support or personal gain. His commitment sprang from a deep devotion to the Buddha’s teachings on grove cultivation. A grove cultivator is one who spreads compassion for nature. As the Vanaropa Sutta teaches:

Venerable Rahula Thera reclaimed Namal Uyana which was then under the control of timber smugglers and treasure hunters. The term “Wanawasi” does not merely mean living in a forest; it signifies finding rest and enlightenment through nature, free from the destructive roots of greed, sin, and delusion.

Another defining aspect of Venerable Rahula Thera’s 35-year mission is the purification of the human mind. He has consistently taught the thousands who visit Namal Uyana that a person who loves a tree will never harm another human being. As the Dhamma proclaims:

It is important to remember that Venerable Rahula Thera devoted his life, without fear, speaking the truth and taking necessary action, tirelessly advancing the national mission he began. From 1991 to the present, he has worked with every government elected by the people, maintaining impartiality and independence from political ideology. Yet, he never hesitated to raise his voice fearlessly against any individual, of any rank or party, who committed wrongdoing.

Religious and Social Mission

The National Namal Uyana is not merely a forest; it is a magnificent heritage site, dating back to ancient times. Scattered across the landscape are boundary walls, the remains of ancient monastery complexes, and stone carvings believed to date back to the reign of King Devanampiyatissa. In earlier centuries, this sacred land had served as a meditation sanctuary for hundreds of monks. The name “National Namal Uyana,” by which this ecological and archaeological treasure is known today, was introduced by Venerable Rahula Thera in 1991. The government’s later recognition of the site as the National Namal Uyana stands as a significant achievement for both religion and national heritage.

Venerable Rahula Thera is a monk who has lived a life of renunciation. A striking example of this is his decision not to assume the position of Chief Incumbent of the National Namal Uyana Viharaya, instead entrusting the temple to the Ramanna Nikaya and its trustees. In doing so, he set a precedent for the contemporary Sangha. The Thera himself stated that he was merely the trustee of Namal Uyana, not its owner.

Legacy and Continuing Inspiration

The 35th anniversary of Venerable Wanawasi Rahula Thera’s arrival at Namal Uyana is not merely the commemoration of a period of time; it is a message of nature to future generations. Through his work, the Thera revived the ancient Hela tradition of loving trees and venerating the environment as something sacred. This religious and environmental mission remains unforgettable.

The revival experienced by Namal Uyana, after the arrival of Venerable Wanawasi Rahula Thera, is beyond simple description. Some of the major accomplishments achieved under his leadership include:

* Securing and protecting the largest Rose Quartz (Rosa Thirivana) reserve in South Asia.

* Restoring the Na forest spread across hundreds of acres, providing shelter to numerous rare plants and animal species.

* Transforming the area into a living centre for environmental education, offering practical learning experiences for thousands of schoolchildren and university students.

* Drawing the attention of world leaders and international environmentalists to Sri Lanka’s unique environmental heritage.

In recognition of his immense contribution to environmental conservation, Venerable Rahula Thera was honoured with the Presidential Environment Award and the Green Award in 2004—a significant moment in his life. Yet the Thera himself has always remained devoted to the work rather than the recognition it brings, making such appreciation even more meaningful.

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