Monday, 23 March 2015

PHU Petitions SC on 19




Ceylontoday, 2015-03-23 02:00:00
By a Special Correspondent

The Pivithuru Hela Urumaya (PHU) will be filing a petition, in the Supreme Court after 24 March, against the gazetted 19th Amendment Bill, seeking a Court order requiring the conducting of a referendum for the passage of the Bill into the statute.



Manohara De Silva [PC] will appear on behalf of the petitioner, Western Province councillor, Udaya Gammanpila, who is the General Secretary of the PHU. There is a concept called the Grundnorm, coined by legal theorist, Hans Kelsen. This is a basic or fundamental norm that in essence is something from which everything else proceeds.It is a foundation or a beginning of sorts. It also could be construed to mean an order or rule that forms the underlying basis of everything else. If the Constitution is to be the Grundnorm or the basis of governance, it would stem from the supremacy or the will of the people who, in appointing a Legislature, Executive and Judiciary, all three of which are subsequent norms, have vested the idea of governance and governed in the Constitution, the totem pole, to which the nexus of the supremacy or will of the people or the body politic, the Legislature and the Executive stand yoked.

Article 3 of the Constitution reads: "In the Republic of Sri Lanka, sovereignty is vested in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise."
Considering the fact that sovereignty, which is with the people, is inalienable as a democratic principle , De Silva asked how the sovereignty of the people could therefore be annexed to or by the body called the Constitutional Council.
In the gazetted 19th Amendment Bill, other than the Speaker who would also be the Chairperson of the Constitutional Council, one person nominated by agreement of the majority of the MPs belonging to political parties or independent groups, other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong, and appointed by the President, and 'a mere' one person appointed by the President, the Prime Minister and the Opposition Leader would, besides holding membership within the Constitutional Council, nominate five persons to the Constitutional Council, he remarked.
"The Constitutional Council would however not in this case be ratified by the legislative body which could be the Senate in other countries but in Sri Lanka is the Parliament," he noted.

In reality, current Prime Minister Ranil Wickremesinghe would come from Colombo West in the Western Province while the present Opposition Leader, Nimal Siripala de Silva would come from the Badulla Electorate in the Uva Province, two mere MPs out of the 225 in Parliament. Since the duo would not be going through Parliament, a part of the nexus yoked to the Grundnorm, when making the appointments of the Attorney General and Judges to the Supreme Court Bench including the Chief Justice, these two MPs making nominations will override others in the Constitutional Council, Manohara De Silva opined.
In the South African context, the entire Parliament could vote on selections made by a Committee appointed by Parliament, he explained.
The Constitution of the United States of America has for example a tangible nexus between the will of the people and the Executive, from which the Executive derives authority for transformative action, he xplained.
He said nobody had really challenged the 17th Amendment either.

"Seen through the prism of constitutional theory, the 17th Amendment does not represent the will of the people – the Grundnorm. No political parties are democratic, and in them the top brass bulldoze the lesser, smaller members. The situation created now is ideal for non-governmental organizations to operate. Laws are enacted on the basis on individuals' interpretations as was the case with former President Chandrika Bandaranaike Kumaratunge, where on the face of it the laws looked nice, but in reality they manipulated the will of the people. During 2001, when the Constitutional Council was in place during Kumaratunge's time, appointments made were not only not the best but were utterly flawed, where the National Police Commission was concerned and the apex superior courts did not seem to reflect impartiality in judgments. In short, the will of the people does not get represented and the system is liable to fall prey to manipulations by other forces. When two MPs dominate the entire scene, what,for example, is the contribution of the MP from Binthenna. Anyone outside authority has only to tackle two MPs. The rest of the members of the Constitutional Council have been made non-entities and the Constitutional Council is answerable to none. This is nonsense," he added.

Gammanpila noted that the said 19th Amendment Bill had been created in such a fashion as to appease those who wished to have the President as the Head of Government and those who wished to have the Prime Minister as the Head of Government, although under Section 3 of the gazetted Bill, Article 30 (1) is repealed to read as having the President as the Head of the Government.
He related that such a move constituted the pick-pocketing of the supremacy of the people through which the President is afforded powers by the people, which if one attempted to transfer to the Cabinet or the Prime Minister, constituted in the said act, an attempt to transfer the power given by the people to the President, for which a referendum would be essential.

"The President can summon the Cabinet but it is the Prime Minister who is the Head of it and therefore who wields the real power. There is an important, fundamental, foundational principle in law which is that, that which cannot be done directly cannot also be done indirectly in a roundabout manner. What is happening is therefore undemocratic. In 2002, when Wickremesinghe brought a gazetted 19th Amendment Bill, a seven Judge bench, including former Chief Justices Sarath Nanda Silva and Dr. Shirani Bandaranayake, unanimously delivered a judgment that a referendum was mandatory for powers afforded to the President to be transferred elsewhere. To avoid this, this time around, they have included that the President will be the Head of the Government, a fact which is relegated merely to words in the present circumstances. We are against the country being destabilized by weakening the Executive, when there is Tamil separatism, international interferences and the need for massive development, at stake," Gammanpila explained.

The right to information, which is a good thing, has been included in a wrong manner, thereby placing the country in a perilous situation, he added. In Section 2, under Article 14A, every citizen, defined as an incorporated or unincorporated body, if not less than three-fourths of the members of such body are citizens, shall have the right of access to any information where no restrictions shall be placed on the right declared and recognized by this Article, other than such restrictions prescribed by law as are necessary in a democratic society, in the interests of national security, territorial integrity or public safety.
"The laws and regulations for national security come into being secondarily. Once this 19th Amendment comes into effect, if any citizen or a non-governmental organization, with three-fourths of its membership being citizens of Sri Lanka, writes a letter requesting information about the period of 01 to 19, May, 2009, who were the Army officers in Vellamullivaikkal, who gave orders to them, what were the weapons used and presently in the Palali camp how many weapons and entry routes are there, how do they get food, where is the well from which they draw water, the government is bound to provide that information.

Thus, Channel 4 and film-maker Callum Macrae can obtain information for their anti-Sri Lankan films from the government itself. The United Nations Human Rights Council can now get information from State documents to support their efforts to vilify our war heroes. Our war heroes are at risk. This government's Ministers want to imprison former President Mahinda Rajapaksa and former Defence Secretary Gotabaya Rajapaksa. Is the hidden intention of this gazetted bill the provision of information for such? We see this gazetted bill as setting out to do precisely this," he emphasized.

The Official Secrets Act and the Establishments Code does not provide sufficient protection to all information in question, Manohara de Silva observed.
"If transitional provisions were practically put in place stating that the said aspect concerning the right to access to information would come into effect only following the Right to Information Act, then there would be no practical issue, but as of now there is a certain danger in that documents could be leaked and we are uncertain whether there isn't a hidden objective to do such mischief," he relayed.
The PHU suggested two alternatives.

"The limitations imposed on the freedom of expression and the fact that right to information should not impinge on national security, should be included as provisions in the Constitution or else the said laws could be brought separately as an Act alongside the 19th Amendment. Amendments concerning the provincial councils and the Constitution were previously brought simultaneously," Gammanpila remarked. The PHU charged that in the establishment of independent commissions within the gazetted 19th Amendment Bill, the government had introduced racism to the Constitution.
Certain commissions have only three members and having to ensure that the pluralistic character and social diversity of the Sri Lankan society be reflected in the nominating of appointments of members to commissions, who would then become commissioners, is antithetical to the tenets of independence, the PHU highlighted.

How can anyone be unbiased and objective, when ethnicity (Sinhalese, Tamil, Muslim, Burgher, Malay), and religion (Buddhism, Hinduism, Christianity, Catholicism and Islamism) becomes a basis and criterion for being appointed to a commission? the PHU questioned. Demanding that a referendum be held for approval of the 19th Amendment, Gammanpila said the PHU would be filing a petition based on seven identified flaws in the gazetted 19th Amendment bill in the Supreme Court.

"The said flaws havbe been there in the 17th Amendment and have been retained in the gazetted 19th Amendment bill. Since 1833 this practice, which was thrown out once by the Donoughmore Commission in 1931, has been prevalent. This sets a very bad precedent and is against appointments based on merit and professionalism. Appointments to the Judicial Service Commission and Public Service Commission must be of politically independent persons. On such basis, we have no problem even if all members of a commission are made up of Tamils or Muslims," he added.
"The 100-day plan is not clear on what is to be done with the Executive Presidency and the same is reflected in the gazetted 19th Amendment Bill," Gammanpila explained.

Meanwhile, lawyers expressed deep concern with regards to changes made to the original draft of the 19th Amendment in the constitutional Amendment bill that has since been gazetted.
It can be seen that the original draft of the 19th Amendment was in keeping with the mandate that was sought at the presidential election, which was to abolish the Executive Presidential System, Chairman of the Standing Committee on the Rule of Law and Kandy Zonal Vice President of the Bar Association of Sri Lanka, Convenor for Lawyers for Democracy and Lawyers Collective and National Executive Council Member, Lal Wijenayake added. He said the gazetted Bill deviates from this mandate and in fact leads to the continuation of the Presidential system with certain changes.

"The essence of the demand for the abolition of the presidential system is that executive power has to be exercised under the supervision of Parliament, which is exercised by a Cabinet of Ministers answerable and accountable to Parliament. In such a set-up, executive power would be exercised under the control of Parliament. This is plainly manifest in the fact that the Prime Minister and the Cabinet can function in their capacities only for as long as they have the support of the majority of the MPs. Thus, it is of importance that the Prime Minister be the Head of the Government and the President be the Head of State and the Commander of the Forces," he remarked.

If the President is in addition also the Head of Government, as set out in the gazetted Bill, the question of the accountability of the Prime Minister and the Cabinet, to Parliament, arises, and thus the check on the exercise of executive power would be seriously affected by this arrangement, Wijenayake explained.
Further in a parliamentary form of government such as the one envisaged within the 19th Amendment, the President has to act on the advice of the Prime Minister on matters set out in the Constitution, he added.
"Certain powers being vested in the incumbent President , as interim arrangements, are understandable because he is an elected President. But what has to be enacted is the complete removal of executive powers now vested in the President.
It is distressing to see that these changes to the original draft are being made under pressure brought by persons, who opposed the President at the Presidential Election and were the main force behind the regime of Mahinda Rajapaksa. We therefore call upon the President and the Parliament to see that the mandate given by the people is not frustrated and to bring in the required amendments by removing obnoxious provisions when the 19th Amendment Bill is debated in the Parliament," Wijenayake highlighted.

Elsewhere, holding the Jathika Hela Urumaya responsible for misleading President Maithripala Sirisena, the PHU said Sirisena was liable to be impeached for officially sanctioning the singing of the national anthem in the Tamil language.
Article 7 of Constitution reads: "The National Anthem of the Republic of Sri Lanka shall be 'Sri Lanka Matha,' the words and music of which are set out in the Third Schedule."
A circular issued thus, if gazetted, would be in violation of the Constitution, the PHU noted, adding that, for such a move to be legitimate, a referendum would be necessary.
The PHU will host a conference themed on the gazetted 19th Amendment Bill at which former Sri Lankan Permanent Representative to the United Nations in Geneva, Dr. Dayan Jayatilleka, journalist C.A. Chandraprema and Gammanpila are featured speakers.

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