Friday 23rd April, 2021
Parliamentary sessions, at times, can be far more entertaining than cable TV programmes like Animal Fight Club. On Wednesday, our honourable MPs almost came to blows during a debate on the report of the Presidential Commission of Inquiry (PCoI), which probed the alleged instances of political victimisation under the previous government. The Opposition accused the government of having adopted an ad hoc method to open an escape route for the SLPP MPs and supporters with court cases against them.
The SJB argued, in Parliament on Wednesday, that all 90 cases mentioned in the PCoI report could not be considered instances of political victimisation as they had been filed by the person, who currently holds the post of Chief Justice, when he was the Attorney General. Its line of reasoning has left us puzzled. The SJB’s argument is apparently based on the assumption that the legality of actions taken by an Attorney General who goes on to become the Chief Justice cannot be challenged. But one may recall that in 2018 the Supreme Court rejected all arguments that the person, who is the current Chief Justice, put forth, in his capacity as the Attorney General, in defence of the then President Maithripala Sirisena, who sacked Prime Minister Ranil Wickremesinghe and formed a new government with Mahinda Rajapaksa as the Prime Minister, before dissolving Parliament, unable to muster a simple majority therein. The UNF government was reinstated, and, interestingly, the following year the Attorney General, whose defence of the presidential actions did not stand up to judicial scrutiny, became the Chief Justice. The rest is history.
That the SJB’s argument at issue is flawed cannot, however, be used to justify the government’s claim that all those against whom the aforesaid cases were filed during the yahapalana government have been politically victimised.
Political victimisation is part of Sri Lanka’s rotten political culture. Many people have been politically victimised under successive governments, and they need redress. The yahapalana government also manipulated the police and the Attorney General’s Department to compass its political ends while claiming to be on a mission to restore the rule of law and usher in good governance. But the fact remains that after every regime change, lawbreakers in the garb of government MPs pretend to be victims of political witch-hunts and some of them succeed in having their cases terminated. The Opposition is, therefore, right in having challenged some decisions of the PCoI on political victimisation although the arguments it has put forth to bolster its position are specious.
Meanwhile, among those affected by political victimisation are two former Heads of the Judiciary—Dr. Shirani Bandaranayke and Mohan Peiris. The impeachment that led to the ouster of Dr. Bandaranayake in 2013 was politically motivated. The then Rajapaksa government got rid of her because it considered her an impediment to its political project which it sought to have legitimised judicially. Two years later, the yahapalana government righted the wrong, but the method it employed for that purpose was wrong. Instead of having Parliament correct what it had done to her, it had President Sirisena reinstate her by ‘vapourising’ Chief Justice Peiris. The presidential decree that Dr. Bandaranayke’s removal was unlawful; the post of the Chief Justice had not fallen vacant and, therefore the appointment of Peiris as the head of the judiciary was null and void ab initio, made an already bad situation worse. The yahapalana government should have taken action against either Peiris or former President Mahinda Rajapaksa, who appointed him the Chief Justice or both of them, if it had really believed in its claim that he (Peiris) had been functioning as the Chief Justice unlawfully; that was the only way it could have justified the defenestration of Peiris. There were reports that some yahapalana goons had threatened him to resign.
Justice Minister Ali Sabry recently declared in Parliament that the removal of Peiris as the Chief Justice had been illegal, and promised to take remedial action. This issue, too, should be debated in Parliament.
Democracy in danger
Monday 30th January, 2023
Those who are all out to scuttle the local government elections (LG) scheduled to be held on 09 March have got down and dirty. Having failed to intimidate the Election Commission (EC) into postponing elections, they are now trying to scare the members thereof into resigning as part of their strategy to delay the mini polls. Their desperation knows no bounds and they will baulk at nothing.
The EC members who have been threatened with death to resign from their posts are S. B. Divaratne, M. M. Mohamed and K. P. P. Pathirana. P. S. M. Charles has already tendered her resignation letter. It is obvious that someone is trying to render the EC incapable of having quorate meetings by causing three or more of its five members to resign. It is hoped that the EC members will be given maximum possible security so that they will be able to carry out their duties without fearing for their safety.
Ironically, those who resorted to mindless violence to disrupt elections in the late 1980s are currently at the forefront of a campaign to safeguard the people’s franchise and some of their political rivals who dared protect democracy by holding elections and participating therein during that time are all out to sabotage polls. The JVP attacked the public officials who were on election duty during its second uprising (1987-89) and some of them were gunned down. The intrepid voters who defied the JVP’s order to boycott elections during the reign of southern terror were also attacked. Some of them died violent deaths at the hands of the JVP sparrow units, which terrorised the country. The then UNP governments held elections, which they rigged and won, and the current SLPP leaders who were in the Opposition at the time took part in those electoral contests courageously despite threats to their lives. Today, there has been a role reversal! The JVP is threatening to take to the streets if elections are postponed, and the UNP and the SLPP are trying every trick in the book to delay the polls.
The act of threatening EC members, or anyone else for that matter, with death, is a serious criminal offence, which must be treated as such. The caller who issued death threats to EC officials must be traced, brought here, made to reveal who his handler is and prosecuted forthwith.
Nobody should be considered guilty until proven innocent, but it is only natural that as for the threats to the EC members, fingers are pointed at the government, which is doing everything in its power to delay the LG polls for fear of losing them. The SLPP and the UNP have no one but themselves to blame; he that has an ill name is half-hanged, as a popular saying goes. All other political parties including the dissident SLPP constituents are keen to face an election at this juncture, when the public is resentful and the government’s approval ratings are extremely low. The worst times for the country are the best times for the Opposition both politically and electorally. The only way the SLPP-UNP administration could clear its name, if at all, is to ensure that the person who is threatening the EC members is brought to justice immediately. It will not be difficult to trace the caller if he or she has no links to the ruling coalition. Even Sri Lanka’s Napoleon of Crime, Makandure Madush, was arrested in Dubai, and extradited. So, it will be child’s play for the Sri Lankan police and their UAE counterparts backed by Interpol to arrest the caller.
Those who fear elections will not spare any institution in their efforts to postpone polls. There have been situations where repressive governments targeted even the judiciary to further their interests. The stoning of the houses of the Supreme Court judges, in 1983, following their historic judgement in a fundamental rights petition filed by Vivienne Goonewardene against the Police is a case in point. The Mahinda Rajapaksa government went so far as to ‘impeach’ Chief Justice Dr. Shirani Bandaranayake, whom it considered an obstacle in its path. It removed her from office in the most despicable manner. Today, the SLPP and the UNP are savouring power together.
It goes without saying that the ruling alliance, which poses a serious threat to democracy, has to be tamed, and the best way to achieve this end is to ensure that the LG polls are held as scheduled and the people given an opportunity to subject the government to an electoral shock.
Whether the announced local elections will be held as scheduled on March 9 remains a question that is wide open. The confusion became more confounded last week with the resignation from the Elections Commission of Mrs. P.S.M. Charles and speculation that its chairman, Attorney Nimal Punchihewa, would also resign. This was subsequently denied by Punchihewa himself but that is not the end of the story. The new Constitutional Council, meeting for the first time with the Speaker in the chair ex-officio decided to reconstitute all the so-called Independent Commissions mandated by the Constitution. This, of course includes the Elections Commission and raises the question of how any changes in its composition can affect the local elections for which nominations have concluded and a date set.
Former Elections Commissioner Mahinda Deshapriya, who enjoyed wide visibility during his tenure, went on record after Charles’ resignation saying that it will not affect the working of the five-member commission with a quorum defined as three. With four members still in office, the number necessary to make up a quorum is available. When the election day itself was decided, only three members were physically present at the meeting and the consent of the two absent member had been obtained, Punchihewa has said. This has not been denied. But the state-controlled Daily News, in its lead story last Tuesday, quoted Dr. Prathiba Mahanamahewa, a former chairman of the Sri Lanka Human Rights Council, saying that the date of the election must be gazetted in terms of the election law and no gazette had been issued. The date had merely been announced through the media and this was insufficient, he had said.
We do not know whether he was right or not at the time he made the remark or whether there was a subsequent gazette as is probable. Mahanamahewa is on further record saying the names of all five members of the Election Commission were on the gazette calling for nominations and it must be similar with regard to setting a date for the poll. However that be, many would wonder why Mrs. Charles who, having known that the Elections Commission itself was in a “state of flux” (if we may borrow Mahanamahewa’s language), chose to resign at this moment. She, as the country at large well knew that as the Constitutional Council had been constituted, all the Independent Commissions (there are eight of them including the Elections Commission, Human Rights Commission, Police Commission, Public Service Commission etc.) will be reconstituted. So what was the hurry to resign? The terms of all five members of the Elections Commission will soon come to an end.
The Daily News interpreted Charles’ resignation as confirmation of “deep divisions” within the Elections Commission over several issues including the holding of the local elections. It must be remembered that Mrs. Charles is a very senior public official belonging to the special grade of the Sri Lanka Administrative Service. She has held high office including Governor of the Northern Province, Director General of Customs, GA Vavuniya when the LTTE held sway and Ministry Secretary. She is a serving SLAS officer. She has resigned in the context of a situation of a government appearing to be afraid, nay terrified, of holding the local elections in the present perilous country conditions. So who can be blamed for suspecting that here is an inspired resignation given that Mrs. Charles herself has publicly given no reasons for her exit.
In this context it may be useful to go back to fairly recent history to Mrs. Bandaranaike’s government of the 1970s when there was a conflict between the legislature and the judiciary. Justice Hector Deheragoda, sitting on the new Constitutional Court chaired by Justice T.S. Fernando along with Justice JAL Cooray resigned from the court then adjudicating on the new Press Council Bill, the first matter to be brought before it. The court was sitting in the then House of Representatives with Mr. Sam Wijesinha, the Clerk of the House, as its Registrar. When the proceedings were ongoing, there was a demand in the chamber of the House that the court should be evicted from its premises. Speaker Stanley Tillakaratne made a remark eliciting a response from Justice TS Fernando that interpretation of the Constitution was a matter for the court and not for the speaker. It was amid this furor that Justice Deheragoda tendered his resignation aborting the continuance of the proceedings.
The government keeps tub thumping that the local elections will cost ten billion rupees the country cannot afford in its current economic predicament. The opposition is brimming with confidence that the results of these elections will signal the end of what many in its ranks delight in calling the “Ranil – Rajapaksa” government. The matter is now before court and the last word will probably be its determination. The affidavit filed before court by the Secretary to the Ministry of Finance/Treasury clearly states the financial predicament the government is placed in. While the determination is awaited the angry debate in the political space on whether or not the elections will be held will continue. There is yet no clear sign of countrywide election activity though nominations have been filed by the mainstream and minor parties as well as independent groups. But ominous threats abound of what’s likely to happen if there is no election.
HRCSL in govt.’s crosshairs
Saturday 28th January, 2023
The Human Rights Commission of Sri Lanka (HRCSL) has placed itself in the crosshairs of the government by carrying out its duties and functions conscientiously. Minister of Power and Energy Kanchana Wijesekera has claimed that his ministry is contemplating legal action against two HRCSL members for having allegedly pressured two of his ministry officials to agree to suspend power cuts until the conclusion of the ongoing GCE A/L examination. He says the two mandarins were threatened with imprisonment, and he has brought the matter to President Ranil Wickremesinghe’s attention and made a complaint to the Constitutional Council (CC).
Those who were present at the HRCSL meeting where an agreement was reached to suspend power cuts for the benefit of the students sitting the GCE A/L examination have said nobody was intimidated. Is the government trying to make a case for removing the HRCSL members.
There is reason to believe that the Power and Energy Ministry officials agreed to suspend power cuts at the aforesaid meeting but subsequently went back on their commitment because they incurred the wrath of the government for doing so. One may recall that in June 2022, the then Chairman of the Ceylon Electricity Board M. M. C. Ferdinando told the Committee on Public Enterprises that Indian Prime Minister Narendra Modi had pressured President Gotabaya Rajapaksa to award the Mannar wind power project contract to India’s Adani Group. Ferdinando said President Rajapaksa had, after a meeting, told him that the latter was under pressure from Modi to ensure that Adani clinched the deal. It was obvious that Ferdinando, an experienced public official, was telling the truth; he had no reason to lie. But he withdrew his statement and resigned when President Rajapaksa took exception to his claim. No action was taken against Ferdinando because the government did not want to open a can of worms. This is how most public officials react under political pressure.
The Rajapaksa-Wickremesinghe administration’s imperiousness knows no bounds. The Executive is doing everything in its power to keep all other institutions under its thumb. It has made a mockery of the Constitution by meddling with the independent commissions. President Wickremesinghe, who is the leader of the UNP, which is contesting the local government elections scheduled to be held in March, had a meeting with the members of the Election Commission (EC) and asked them to speak with one voice anent the announcement of the mini polls. The President cannot give such directions to the EC, especially when he/she happens to be a political party leader.
All Presidents save D. B. Wijetunga have bolstered the widely-held view that the executive presidency is a threat to democracy. All of them except Gotabaya secured the presidency while being members of Parliament and offered to strengthen the legislature and ensure the independence of the judiciary, but chose to undermine those two branches of government, and other vital state institutions to consolidate their hold on power.
The incumbent government also stands accused of trying to render the EC incapable of having quorate meetings by causing its members to resign as part of its strategy to postpone the local council polls. One EC member has already sent in her resignation letter. The newly-appointed CC has undertaken to reconstitute the independent commissions including the EC. Speculation is rife that the government is trying to have some pliable commissioners appointed so that it will be able to manipulate the EC.
It is hoped that all those who cherish democracy will unite to prevent the government from bulldozing the HRCSL and other independent commissions, which are the bulwarks against tyranny.
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