Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution
The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.
Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).
Applicable constitutional provisions
Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.
Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.
Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.
Violation of fundamental rights and need for a referendum
Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.
The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.
The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”
A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.
When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”
In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.
Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.
However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.
The need to refer the Bill to Provincial Councils
The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.
In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.
It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.
The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.
A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.
What JVP-NPP needs to do to win
By Dr. DAYAN JAYATILLEKA
A young academic at the Open University writing on a popular website has recently defined the NPP project as ‘Left populist’, a term which is very familiar to us at least from the writings of Ernesto Laclau and Chantal Mouffe. He also mentions several parallels and precursors internationally.
As one who has been advocating a ‘left populist’ project for years, I am disinclined to nit-pick about whether or not the JVP-NPP fits the bill. At the moment and in its current incarnation, it is indeed the closest we have to a ‘left populist’ project. Its competitor the SJB, which its founder-leader identifies as social democratic, would be as approximate –and as loose– a fit for the labels ‘progressive populist’, ‘moderate populist’ or ‘populist centrist’, as the JVP-NPP is for ‘left populist’. But that’s the deck of cards we have.
The points I seek to make are different, and may be said to boil down to a single theme or problematique.
Distorted Left Populism
My argument is that the JVP-NPP is as distant from ‘left populism’ globally as it was from ‘left revolutionism’ globally in an earlier incarnation. In both avatars, it is unique in its leftism but not in a positive or helpful way for its cause at any given time.
Mine is not intended as a damning indictment of the JVP-NPP. It is intended as a constructive criticism of a rectifiable error, the rectification of which is utterly urgent given the deadly threat posed by the Wickremesinghe administration and its project of dependent dictatorship.
The JVP-NPP has a structural absence that no ‘left populist’ enterprise, especially in Latin America, has ever had. It is an absence that has marked the JVP from its inception and has been carried over into the present NPP project.
It is not an absence unique to the JVP but figures more in Sri Lanka than it has almost anywhere else. I say this because the same ‘absence’ characterised the LTTE as well. In short, that factor or its radical absence has marred the anti-systemic forces of South and North on the island.
The homeland of left populism has been Latin America while its second home has been Southern Europe. With the exception of Greece, it may be said that ‘left populism’ has an Ibero-American or culturally Hispanic character, which some might trace to the ‘romanticism’ of that culture. But such considerations need not detain us here.
‘Left populism’ has had several identifiable sources and points of departure: the former guerrilla movements of the 1960s and 1970s; the non-guerrilla movements of resistance to dictatorships; parties and split-offs from parties of the Marxist left; left-oriented split-offs or the leftwing of broad flexible even centrist populist formations; leftwing experiments from within the militaries etc.
Populism, Pluralism & Unity
Despite this diversity, all experiments of a Left populist character in Latin America and Europe, have had one thing in common: various forms of unity – e.g., united fronts, blocs etc.—of political parties. I would take up far too much space if I were to list them, starting with the Frente Amplio (which means precisely ‘Broad Front’) initiated by the Tupamaros-MLN of Uruguay and containing the Uruguayan Communist party and headed by a military man, General Liber Seregni, in 1970. The Frente Amplio lasted through the decades of the darkest civil-military dictatorship up to the presidential electoral victories of Tabaré Vasquez and Mujica respectively. Another example would be El Salvador’s FMLN, which brought together several Marxist guerrilla movements into a single front under the stern insistence of Fidel Castro.
Though the roots of unity were back in the 1970s, the formula has only been strengthened in the 1990s and 21st century projects of Left populism. There is a theoretical-strategic logic for this. The polarisation of ‘us vs them’, the 99% vs. the 1%, the many not the few—in socioeconomic terms—is of course a hallmark of populism. But pro-NPP academics and ideologues are unaware of or omit its corollary everywhere from Uruguay to Greece and Spain. Namely, that socioeconomic ‘majoritarianism’ is not possible with a single party as agency.
When the JVP and the NPP have the same leader, and the JVP leader was the founder of the NPP, I cannot regard it as a truly autonomous project, but a party project. Left populism globally, from its inception right up to Lula last year, is predicated on the admission of political, not just social plurality, and the fact that socioeconomic, i.e., popular majoritarianism is possible only as a pluri-party united front, platform or bloc.
This recognition of the imperative of unity as necessitating a convergence of political fractions and currents; that unity is impossible as a function of a single political party; that authentic majoritarianism i.e., “us” is possible only if “we” converge and combine as an ensemble of our organic political agencies, is a structural feature of Left Populism.
It is radically absent in the JVP-NPP and has been so from the JVP’s founding in 1965. It was also true of the LTTE.
It is this insistence on political unipolarity (to put it diplomatically) or political monopoly (to put it bluntly) is a genetic defect of the JVP which has been carried over into the NPP project.
I do not say this to contest the leading role and the main role that the JVP has earned in any left populist project. I say it to draw the Gramscian distinction between ‘leadership’ and ‘domination’. Only ‘leadership’ can create consensus and popular consent; domination through monopoly cannot.
The simple truth is that however ‘left populist’ you think you are; no single party can be said to represent the people or even a majority – as distinct from a mere plurality– of the people. Furthermore, the people are not a unitary subject, and therefore cannot have a unitary leadership. This is the importance of Fidel Castro’s insistence to the Latin American Left of a ‘united command’ which brings together the diverse segments of the left by reflecting plurality.
Anyone who knows the history of Syriza and Podemos knows that they are not outcrops of some single party of long-standing but the result of an organic process of convergences of factions.
Had the JVP had a policy of united fronts – within the Southern left and with the Northern left– it would not have been as decisively defeated as it was in its two insurrections, and might have even succeeded in its second attempt. Though it has formed the NPP which has brought some significant success, it is still POLITICALLY sectarian in that it has no political alliances, partnerships, i.e., NO POLITICAL RELATIONSHIPS outside of itself.
I must emphasize that here I am not speaking of a bloc with the SJB, though it is most desirable, to be recommended, and if this were Latin America would definitely be on the agenda of discussion.
Let us speak frankly. The most important phenomenon of recent times (since the victorious end of the war) was the Aragalaya of last year. The JVP, especially its student front the SYU, participated in that massive uprising which dislodged President Gotabaya Rajapaksa, but it played a less decisive role in the Aragalaya than did the FSP and the IUSF which is close to it. This is by no means to say that the FSP led the Aragalaya, but to point out that it played a more decisive role – which included some mistakes– than did the JVP.
How then does one remain blind to the fact that the JVP-NPP’s ‘left populism’ does not include the FSP and by extension the IUSF? How can there be a ‘popular bloc’ – a key element of left populism—without the IUSF?
Given that Pubudu Jayagoda, Duminda Nagamuwa, Lahiru Weerasekara and Wasantha Mudalige are among the most successful public communicators today (especially on the left), what kind of ‘left’ is a ‘left populism’ devoid of their presence, participation and contribution?
What does it take to recognise that unity of some sort of these two streams of the Left could result in a most useful division of labour and a quantum leap in the hopes and morale of the increasingly left-oriented post-Aragalaya populace, especially the youth?
Surely the very sight of a platform with the leaders of the JVP-NPP and the FSP-IUSF (AKD and Kumar Gunaratnam, Eranga Gunasekara and Wasantha Mudalige, Wasantha Samarasinghe and Duminda Nagamuwa, Bimal Ratnayake and Pubudu Jayagoda) will take the Left populist project to the next level?
As a party the JVP from its birth, and by extension, the NPP today, have set aside one of the main weapons of leftist theory, strategy and political practice: the United Front. Lenin, Trotsky, Stalin, Dimitrov, Gramsci, Togliatti, Ho Chi Minh, Mao Zedong and Fidel Castro have founded and enriched this strategic concept.
It is difficult to accept that Rohana Wijeweera and Anura Kumara Dissanayake knew/know better than these giants, and that the JVP-NPP can dispense with this political sword and shield and yet prevail–or even survive the coming storm.
The JVP must present a LEFT option in the leadership of which is the major shareholder; not merely a JVP option or para-JVP option, which is what the NPP is. A credible, viable Left alternative cannot be reduced to a single party and its front/auxiliary; it cannot but be a United Left – a Left Front– alternative.
[Dr Dayan Jayatilleka is author of The Great Gramsci: Imagining an Alt-Left Project, in ‘On Public Imagination: A Political & Ethical Imperative’ eds Richard Falk et al, Routledge, New York, 2019.]
Obtaining fresh mandate unavoidable requirement
by Jehan Perera
The government’s plans for reviving the economy show signs of working out for the time being. The long-awaited IMF loan is about to be granted. This would enable the government to access other loans to tide over the current economic difficulties. The challenge will be to ensure that both the old loans and new ones will be repayable. To this end the government has begun to implement its new tax policy which increases the tax burden significantly on income earners who can barely make ends meet, even without the taxes, in the aftermath of the rise in price levels. The government is also giving signals that it plans to downsize the government bureaucracy and loss-making state enterprises. These are reforms that may be necessary to balance the budget, but they are not likely to gain the government the favour of the affected people. The World Bank has warned that many are at risk of falling back into poverty, with 40 percent of the population living on less than 225 rupees per person per day.
The problem for the government is that the economic policies, required to stabilize the economy, are not popular ones. They are also politically difficult ones. The failure to analyse the past does not help us to ascertain reasons for our failures and also avoids taking action against those who had misused, or damaged, the system unfairly. The costs of this economic restructuring, to make the country financially viable, is falling heavily, if not disproportionately, on those who are middle class and below. Fixed income earners are particularly affected as they bear a double burden in being taxed at higher levels, at a time when the cost of living has soared. Unlike those in the business sector, and independent professionals, who can pass on cost increases to their clients, those in fixed incomes find it impossible to make ends meet. Emigration statistics show that over 1.2 million people, or five percent of the population, left the country, for foreign employment, last year.
The economic hardships, experienced by the people, has led to the mobilization of traditional trade unions and professionals’ organisations. They are all up in arms against the government’s income generation, at their expense. Last week’s strike, described as a token strike, was successful in that it evoked a conciliatory response from the government. Many workers did not keep away from work, perhaps due to the apprehension that they might not only lose their jobs, but also their properties, as threatened by one government member, who is close to the President. There was a precedent for this in 1981 when the government warned striking workers that they would be sacked. The government carried out its threat and over 40,000 government officials lost their jobs. They and their families were condemned to a long time in penury. The rest of society went along with the repression as the government was one with an overwhelming mandate from the people.
The striking unions have explained their decision to temporarily discontinue their strike action due to President Ranil Wickremesinghe’s willingness to reconsider their economic grievances. More than 40 trade unions, in several sectors, joined the strike. They explained they had been compelled to resort to strike action as there was no positive response from the government to their demands. Due to the strike, services such as health, posts, and railways were affected. Workers in other sectors, including education, port, power, water supply, petroleum, road development, and banking services, also joined the strike. The striking unions have said they would take up the President’s offer to discuss their concerns with the government and temporarily called a halt to their strike action. This would give the government an opportunity to rethink its strategy. Unlike the government in 1981 this one has no popular mandate. In the aftermath of the protest movement, it has only a legal mandate.
So far, the government has been unyielding in the face of public discontent. Public protests have been suppressed. Protest leaders have been arrested and price and tax hikes have gone ahead as planned. The government has been justifying the rigid positions it has been taking on the basis of its prioritization of economic recovery for which both political stability and financial resources are necessary. However, by refusing to heed public opinion the government has been putting itself on a course of confrontation with organized forces, be they trade unions or political parties. The severity of the economic burden, placed on the larger section of society, even as other sectors of society appear to be relatively unaffected, creates a perception of injustice that needs to be mitigated. Engaging in discussion with the trade unions and reconsidering its approach to those who have been involved in public protests could be peace making gestures in the current situation.
On the other hand, exacerbating the political crisis is the government’s continuing refusal to hold the local government elections, as scheduled, on two occasions now by the Elections Commission and demanded by law. The government’s stance is even in contradiction to the Supreme Court’s directives that the government should release the financial resources necessary for the purpose leading to an ever-widening opposition to it. The government’s determination to thwart the local government elections stems from its pragmatic concerns regarding its ability to fare well at them. Public opinion polls show the government parties obtaining much lower support than the opposition parties. Except for the President, the rest of the government consists of the same political parties and government members that faced the wrath of the people’s movement a year ago and had to resign in ignominy.
The government’s response to the pressures it is under has been to repress the protest movement through police action that is especially intolerant of street protests. It has also put pressure on state institutions to conform to its will, regardless of the law. The decisions of the Election Commission to set dates for the local government elections have been disregarded once, and the elections now appear to have to be postponed yet again. The government is also defying summons upon its ministers by the Human Rights Commission which has been acting independently to hold the government to account to the best extent it can. The government’s refusal to abide by the judicial decision not to block financial resources for election purposes is a blow to the rule of law that will be to the longer-term detriment of the country. These are all negative trends that are recipes for future strife and lawlessness. These would have long term and unexpected implications not to the best for the development of the country or its values.
There are indications that President Wickremesinghe is cognizant of the precariousness of the situation. The accumulation of pressures needs to be avoided, be it for gas at homes or issues in the country. As an experienced political leader, student of international politics, he would be aware of the dangers posed by precipitating a clash involving the three branches of government. A confrontation with the judiciary, or a negation of its decisions, would erode the confidence in the entire legal system. It would damage the confidence of investors and the international community alike in the stability of the polity and its commitment to the rule of law. The public exhortations of the US ambassador with regard to the need to conduct the local government elections would have driven this point home.
It is also likely that the US position on the importance of holding elections on time is also held by the other Western countries and Japan. Sri Lanka is dependent on these countries, still the wealthiest in the world, for its economic sustenance, trade and aid, in the form of concessional financing and benefits, such as the GSP Plus tariff concession. Therefore, the pressures coming from both the ground level in the country and the international community, may push the government in the direction of elections and seeking a mandate from the people. Strengthening the legitimacy of the government to govern effectively and engage in problem solving in the national interest requires an electoral mandate. The mandate sought may not be at the local government level, where public opinion polls show the government at its weakest, but at the national level which the President can exercise at his discretion.
Sing-along… Down Memory Lane
Sing-alongs have turned out to be hugely popular, in the local showbiz scene, and, I would say, it’s mainly because they are family events, and also the opportunity given to guests to shine, in the vocal spotlight, for a minute, or two!
I first experienced a sing-along when I was invited to check out the famous Rhythm World Dance School sing-along evening.
It was, indeed, something different, with Sohan & The X-Periments doing the needful, and, today, Sohan and his outfit are considered the No.1 band for sing-along events.
I’m told that the first ever sing-along concert, in Sri Lanka, was held on 27th April, 1997, and it was called Down Memory Lane (DML), presented by the Moratuwa Arts Forum (MAF),
The year 2023 is a landmark year for the MAF and, I’m informed, they will be celebrating their Silver Jubilee with a memorable concert, on 29th April, 2023, at the Grand Bolgoda Resort, Moratuwa.
Due to the Covid pandemic, their sing-along series had to be cancelled, as well as their planned concert for 2019. However, the organisers say the delayed 25th Jubilee Celebration concert is poised to be a thriller, scheduled to be held on 29th April, 2023.
During the past 25 years, 18 DML concerts had been held, and the 25th Jubilee Celebration concert will be the 19th in the series.
Famous, and much-loved, ‘golden oldies’, will be sung by the audience of music lovers, at this two and a half hours programme.
Down Memory Lane was the brainchild of musician Priya Peiris, (of ‘Cock-a-Doodle-Do’ fame) and the MAF became the pioneers of sing-along concerts in Sri Lanka.
The repertoire of songs for the 25th Jubilee Celebration concert will include a vast selection of international favourites, Cowboy and old American Plantation hits, Calypsos, Negro Spirituals, everybody’s favourites, from the ’60s and ’70s era, Sinhala evergreens, etc.
Singers from the Moratuwa Arts Forum will be on stage to urge the audience to sing. The band Echo Steel will provide the musical accompaniment for the audience to join in the singing, supported by Brian Coorey, the left handed electric bass guitarist, and Ramany Soysa on grand piano.
The organisers say that every participant will get a free songbook. There would also be a raffle draw, with several prizes to be won,
Arun Dias Bandaranaike will be the master of ceremonies.
President of the Moratuwa Arts Forum, Melantha Perera, back from Australia, after a successful tour, says: “All music lovers, especially Golden Oldies enthusiasts, are cordially invited to come with their families, and friends, to have an enjoyable evening, and to experience heartwarming fellowship and bonhomie.”
Further details could be obtained from MAF Treasurer, Laksiri Fernando (077 376 22 75).
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