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Tuesday, 29 September 2015 00:03 - - {{hitsCtrl.values.hits}}
By Jayampathy Molligoda
The UNHRC report released on 16 September has recommended the establishment of a special hybrid court integrating international judges and lawyers to investigate allegations of war crimes committed during the final stages of the Sri Lankan conflict in May 2009.
The Ministry of Foreign Affairs in the new hybrid UNP/SLFP Government, in response to the advanced copy of the report, stated that the Government had taken note of the report and would ensure a dialogue and wide consultations with all stakeholders.This could be construed as an indictment of the administration and independence of the judiciary and the sovereignty of Sri Lanka.
Sri Lanka is a free, sovereign state. The Constitution of Sri Lanka is the supreme law of the country giving powers to the Government of the day and limiting its powers to its constitutional boundaries. In terms of the Article 3 of the Constitution of the Republic of Sri Lanka, the sovereignty is in the people and is inalienable. Sovereignty includes the powers of the Government and franchise.
The peoples’ sovereignty is a fundamental right guaranteed under the Constitution. The Constitution is not only the source that derives this power but also limits or regulates that power by imposing checks and balances on the Government. This mechanism is there to prevent abuse of power.
The current National Government
National Government or a hybrid?
During the recently concluded parliamentary election campaign, the UPFA categorically stated that they would not join with any party to form a National Government. Their manifesto is also silent on support for a National Government. Therefore there seems to be no mandate given by the people for the UPFA elected members to support the National Government.
“The members of Parliament hold a mandate and are agents of the People.” These are the extracts of the judgement delivered in 1987 on the 13th Amendment to the Constitution by Justice Wanasundera.
However, a section of the UPFA-elected members (including those who come through the National List) from the constituent SLFP has joined the National Government.
The process of forming the National Government was undertaken with a decision enforced on the Central Committee of the SLFP by the Chairman, who happened to be the President of Sri Lanka. An MoU between the two parties, namely the UNP and SLFP, has been entered into.
In my view the SLFP is not a recognised political party in Parliament in terms of the article 46(4) of the 19th Amendment. It was earlier reported that this proposal would be ratified by the Executive Committee of the UPFA which consists of a number of other constituent political parties including some recognised political parties such as the MEP of Dinesh Gunawardena, the National Freedom Front headed by Wimal Weerawansa, etc. It has now been reported that M/s. Dinesh, Wimal, Udaya G and Vasudeva N, who contested as part of the UPFA, have categorically stated that they have opposed any move to form a National Government. It seems that no formal approval has been granted at any executive committee meeting of the UPFA to that effect.
Machiavelli’s ‘Prince’
Pulitzer Prize–winning author Jared Diamond was asked by the New York Times which book he would require President Obama to read if he could. His answer was Machiavelli’s ‘The Prince’, written 500 years ago.
‘The Prince’ is a political treatise by the Italian diplomat, historian and political theorist Machiavelli. Machiavelli took it for granted that would-be leaders naturally aim for glory or honour. He encouraged ambition. Diamond said that what continues to make The Prince compelling reading for today’s political leaders is Machiavelli’s insistence “that we are not helpless at the hands of bad luck.”
During the reign of the UNP Government from 1977 until the 1990s, opponents criticised President J.R. Jayawardena and his style of governance saying that he was an ardent follower of the principles and practices of Machiavelli’s Prince. The same criticism was levelled against the manner in which former President Mahinda Rajapaksa handled the Government during the last five years.
The criticism was how the then Government took away the civic rights of its main political opponents and used their own Constitution to extend Parliament in 1982 through a referendum, which can be seen by innocent citizens as a democratic feature.
The opponents were accusing both the Jayawardena and Rajapaksa administrations of breaching public trust and accords, human rights violations, the deterioration of the rule of law, etc. Both were accused of tampering with the 1978 Constitution by introducing a number of amendments such as the 13th Amendment and 18th Amendment.
According to Machiavelli’s The Prince of course, the relative strength of the Prince’s party can be assured by sabotaging opposition parties. It says: “Public proclamations for opposition candidates will be tolerated, but other ways have been found to paralyse opposition efforts.”
Some 45 UPFA-elected Members of Parliament, some SLFPers and others MPs from other constituent political parties of the UPFA, intend on sitting as “Opposition members” in the Parliament. However, SLFP members stand to lose the party membership as the SLFP has taken a decision at the Central Committee level to join the National Government. The party is now under the total control of President Maithripala Sirisena, who happened to be the leader of the UPFA as well.
Going against the will of the people
The major political parties have appointed 11 defeated members to Parliament out of a total of 29 positions allocated under National Lists. These National Lists have previously been gazetted immediately after the closing of nominations for the benefit of the voters. The voters are aware of the identity of the candidates who are to be elected as National List members before exercising their franchise.
The defeated candidates’ names were not there in the gazette. The UPFA has not only nominated seven defeated candidates to Parliament but ignored the views of the other constituent party leaders. Therefore, this act of appointing defeated candidates could be construed as “going against the will of the people” and the mandate given by the voters at the elections just concluded.
The National Government has enabled the elected MPs and even defeated candidates to carve out portfolios and privileges in Parliament, thus wasting valuable taxpayers’ money.
The innocent citizens continue to pay direct and indirect taxes to the General Treasury to maintain a large cabinet of ministers and non-cabinet and deputy ministers. Isn’t it unethical to increase the number of Cabinet Ministers beyond the stipulated maximum of 30 under the 19th Amendment?
The SLFP leadership should have allowed the SLFP members who contested under the UPFA and who were willing to be in the Opposition, including those members from other constituent parties, to sit in the Opposition. This is in keeping with the mandate given by the people at the elections.
Instead, the UPFA Secretary has written to the Speaker indicating that the UPFA was not interested in the post of Leader of the Opposition.
Ideally the UNP could have got TNA and/ or JVP as the constituent parties to form the so called National Government, thus allowing UPFA members to be in the Opposition. This is because during the recently concluded election campaign, the UPFA categorically stated that they would not form a National Government. Therefore there seems to be no mandate given by the people for the UPFA elected members to support this move.
Isn’t it a violation of the freedom of speech of an elected member (UPFA members) although they are bound by alliance/party rules and regulations?
There appears to be a procedural flaw in obtaining required approval at the Executive Committee level of the UPFA. It seems that the due process of law has not been followed in forming the National Government. Therefore, in my view, neither the SLFP nor the UPFA can be included as a party in the so called National Government formed in terms of article 46 (4).
The SLFP/UPFA leadership cannot eat the cake and have it too. Some of the members do not want to join the jumbo cabinet just to eat and enjoy privileges.
In short, the President and the Prime Minister who control the two parties, namely the UNP and the SLFP, have abused their offices by resorting to this undemocratic process. They have used their power to form the National Government by dragging the real Opposition alliance of the UPFA to the Government side and simultaneously making two of the TNA and JVP members who have been very supportive of their Government from 8 January till the Parliamentary Election as the Leader of the Opposition and the Chief Opposition whip respectively. While the official Opposition has been playing a different game, a section of the SLFP/UPFA members in the Opposition has been protesting outside Diyawanna Oya. It goes without saying that for a vibrant democracy, it is vital that a strong Opposition side is needed. Can we as citizens have the Opposition members as servants of the rulers?
International Human Rights eroding people’s sovereignty
The concept of sovereignty of the people as stated in the 1978 Constitution means the authority of the Government is created by the consent of the people.The Government is granted with the people’s power ‘sovereignty’, on trust, in order to serve the public. This is the reason why in most democratic countries, governments are known to be ‘by the people for the people’.
We speak about a limited Government under unlimited sovereignty. What we bind to the law is the Government and not the sovereignty. Sovereignty remains unrestricted but institutions executive, legislature and judiciary will have to observe its limitations. Even if the President of Sri Lanka, the Executive, violates the Constitution through a serious breach, an impeachment against the President can be brought up by the ‘sovereign’, the citizens of Sri Lanka.
Article 17 of Chapter III provided for specific remedies entitled to by the citizens of Sri Lanka whose fundamental rights are infringed. “Every person shall be entitled to apply to the Supreme Court, as provided by Article 125 &126, in respect of the infringement, by executive or administrative action, of a fundamental right to which such person is entitled under the provisions of this chapter.”
A pertinent question would be whether the citizens’fundamental rights have been violated by not considering the group of SLFP/UPFA parliamentarians to act as an independent Opposition group? Isn’t it a violation of the freedom of speech of an elected member (UPFA) although they are bound by alliance/party rules and regulations? Isn’t it unethical and bad in law to increase the number of Cabinet Ministers beyond the stipulated maximum of 30 under the 19th Amendment of the Constitution?
My view is that as citizens we should examine whether there is any infringement or imminent infringement of fundamental rights during the first phase of the new National Government without concentrating too much on ascertaining whether there has been any alleged human right violations or war crimes committed during the final stages of the Sri Lankan conflict in May 2009. As mentioned above, sovereignty includes franchise. It is the power of the people that is exercised by Parliament.
The people’s unlimited power, meaning sovereignty, can at any time make the active Government of the day null and void for not observing those constitutional limitations.
