By Nagananda Kodituwakku –

Nagananda Kodituwakku

The reply sent by Mahinda Rajapaksa to Party Leader, President Maithipala Sirisena’s letter shows nothing more than the immaturity of the electorate and dire need to educate the people of Sri Lanka who hold the all inalienable sovereign powers of governance under the Constitution, which is being ruthlessly abused by the politico cheats belongs to both the ruling party and the opposition.

Naturally it is disheartening to observe that those who are well acquainted with the fundamentals of the constitutional law have preferred to remain silent, refraining from educating the people of this country whose sovereign rights (Legislative, Executive and Judicial power) have ruthlessly been abused by the two main political parties since independence.

Both two established political parties in Sri Lanka have shown that they have no genuine interest whatsoever to establish true democracy in this country that would respect the inalienable democratic rights of the people as enshrined in the supreme law of the land, the Constitution.

Rajapaksa: a cheat with credibility lost altogether

Mahinda Rajapaksa, in his re-election bid to the Office vouched in the 2010 Manifesto ‘The Executive Presidency will be converted into a Trusteeship which honours the mandate given to Parliament by being accountable to parliament, establishes equality before the law, is accountable to the judiciary and enacts laws that are accountable to the judiciary, and is not in conflict with the judiciary’ (page 56)

But what Rajapaksa did after his re-election to the office was absolutely the opposite. He encouraged the absolute lawlessness and was determined to have a firm grip on the justice system that could hinder all forms of abuses condoned by him.

First this Independent Office was made a mockery after taking over the functions of the department under Rajapaksa’s purview. The office of the AG was abused to such an extent that it was made absolutely subservient to the Executive President in unimaginable scale. The despicable act of withdrawing series of indictments served on criminal elements condoned by Rajapaksa was a blunt abuse of People’s executive power exercised through the Attorney General. Whereas the Attorney General is the chief legal adviser to the government and has a number of independent ‘public interest functions’, as well as overseeing the functions of the other government departments President Rajapaksa made it, nothing more than a statutory office simply carrying our his mandate.

Rajapaksa wanted the Judges in the Superior Court System to be parrots who simply carryout only his commands. Unlawful removal of the Chief Justice on 13th January 2013 was the beginning of the end of the independence of the Judiciary of this country with Rajapakse’s stooge being appointed to the office. With the 18th Amendment, Rajapaksa did away with the Constitutional Council that salvaged some sort of integrity in the administration. Since then all appointments to the Superior Court System was made solely according to his whims and fancies. It was ruthless abuse of people’s executive power that undermined the people’s trust and confidence in the Justice System.

Rajapaksa became absolutely drunk with power and had the audacity to tamper with the Supreme Law of the Land, the Constitution, purely for the personal benefit, worse than Zimbabwe’s Mugabe i.e. to remain in power for life.

He lacked common sense approach and relied on the predictions of his ‘royal astrologer’ and the advise given by Basil Rajapaksa and P.B. Jayasundera and declared President election, well before it was due under the law (two years before the end of his second term). He was highly convinced of an easy victory over his opponent.

The lawlessness prevalent in the country was such that when all-powerful Rajapaksa’s nomination for a 3rd term was challenged by way of a Writ Application (CA/Writ/434/2014) in the Court of Appeal on 15th Jan 2015, it went missing from the Court Registry. The Petitioner, the Counsel who filed the case in the public interest, argued that the application of the amendment made to the Article 31 of the Constitution by the 18th Amendment (removal of restriction of terms to the office of the President) lacked a mandatory expressed provision to apply it with retrospective effect to the extant president, who had been already elected to office twice, and apparently it was an impediment for his progression to be a tyrant.

However when Rajapaksa later realized that he was facing an inevitable defeat, suddenly the case was fixed for support on 02nd January 2015, less than a week before the Presidential Election. The motive behind the sudden development was quite apparent. And it was meant to grant interim relief asked by the Petitioner Counsel for the suspension of the election, pending the final determination of the case, which would have taken about two years from start to finish. Further, attempts were also made to induce the Counsel to proceed with the case and to obtain the interim, enabling Rajapaksa to remain in power, whilst Maithipala Sirisena camp urged the Counsel to withdraw the Case.

Yet, considering the public opinion forming against Rajapaksa, the Petitioner Counsel declined to go ahead with his case, and to obtain the interim relief prayed for. Instead, he decided not even to appear in the special court sitting, held on 02nd January 2015, during the Court Vacation to hear the the case. On the day fixed for the hearing, the counsel merely filed Motion in Court withdrawing the Petition, effectively denying the final lifeline left for Rajapaksa to remain in office. The following paragraphs of the motion filed in Court on 02nd Jan 2015 depict the absolutely lawlessness then prevailed in Sri Lanka.

Whereas with the proclamation issued by the Extant President dated 20th Nov 2014 in terms of Article 31 (3A) of the Constitution, declaring his intention to hold a Presidential Election and with that proclamation and in terms of Article 31 (4) (b) of the Constitution, the term of office of the Extant President will expire on the date on which the results of the Presidential election would be declared by the 1st Respondent

Whereas since the filing of this Petition, the Petitioner believes that the public opinion on the Extant President has been evidently eroded and in this background the Petitioner contemplates that the Attorney General who performs his office under the Extant President would have been instructed to concede the Interim Relief prayed for in the Petition to suspend the holding of the Presidential Election scheduled for 08th Jan 2015 until the final determination of this Petition, effectively throwing a life-line to the Extant President to remain in Office for a considerable period, against the Will of the People that has been expressed by both in the electronic and print media since filling of this Petition

And whereas in this background the Petitioner believes that the Petition filed in the national Interest could be defeated if preceded with it, the Petitioner withdraws the Petition, with due respect to the Will of the people and their Sovereignty that would determine their choice through the exercise of their franchise at the forthcoming Presidential Election.

Ranil Wickremesinghe: Ruined the golden opportunity set to establish Rule of Law and Good Governance

When the people dumped Rajapaksa on 08th January 2015, and Wickremesinghe was installed in office as the Prime Minister (although without a proper mandate), people of this country expected swift action to restore the Rule of Law and their trust and confidence in the justice system. Also to set the criminal law in motion against those politico-cheats who had openly abused public office for unjust enrichment.

When the 19th Amendment was enacted on 15th of May 2015, the people expected Wickremesinghe government to restore the independence of the judiciary with the reestablishment of the Constitutional Council with independent and trusted persons with high degree with integrity and credibility to be the members in the Constitutional Counsel, sans corrupt politicians to make decisions concerning judicial and other important independent appointments. People did not want MPs to have any access whatsoever, particularly to interfere and influence with the independence of the judiciary.

Yet, Ranil Wickremesinghe Government had its own interests and a 10 member Constitutional Council was set up in which 7 members were the elected MPs (Article 41A of the Constitution). And this abuse of legislative power of the people is considered as an obvious betrayal of the aspirations of the peoples for independent, fearless and upright judiciary to act as watchdogs for the people, with absolute an mandate given to deal with all corrupt elements in the other organs in the government (Legislature and Executive), including the Executive President, in the even any plausible charge is brought against the abuse of office. This was not exactly what the people yearned for when the change was made possible. The plain truth is that, in order to get the consent of the opposition to make the 19th amendment law, Ranil Wickremesinghe conveniently gave away to the pressure brought upon by the corrupt members in the legislature, who demanded to have a firm control in the judicial appointments.

Ideally, the Constitutional Council should have been consisted of no member in the legislature at all, who exercises people’s legislative power. The government should have respected the Separation of Power doctrine, permitting the legislature to have no control whatsoever over the Judicial appointments. And in order to ensure its absolute independence, the entirety of it should have been appointed from people with proven credibility, character and integrity, who should have absolute control over all appointment to all Scheduled Independent Commissions and the Superior Court System, from those proposed by the President.

Allowing Rajapaksa irregular appointees in the Judiciary to hold office

People of this country are burdened with irregular appointments made to the Judiciary by the lawless Rajapakse regime. The Wickremesinghe Administration was expected to replace the Judiciary with honourable judges reappointed and those irregular appointees removed. This would have restored the trust and confidence in the judiciary by the people, yet spineless Wickremesinghe in order to have the consent of the opposition allowed these irregular appointees to hold office, causing tremendous damage to the credibility of the judiciary in the eyes of the people.

Wickramasinghe’s Entered deal within deals with the Rajapaksa clan

People expected swift action being taken against the corrupt elements against whom clear and prima facie cases were established. Yet, what people experienced since January 2015 had been appalling and absolutely par-below their expectations.

Criminal elements, with credible cases brought against them for embezzling hundred of millions of public fund, when taken into custody and produced before the Magistrate were allowed to remain in ambulances and were transferred to private hospitals straight from the Court to spend their custody period in remand.

And serious plausible complaints made against the corrupt elements in Rajapaksa regime to the Corruption Commission were absolutely ignored and disregarded, by Wickremesinghe administration, forcing the citizens to initiate legal action against the Corruption Commission in the Supreme Court. So far there are four such cases pending in the Supreme Court filed against the Corruption Commission that has condoned serious wrongdoings of the previous regime. The reasons given for its failure to inquire into the serious complaints made against the former regime is laughable and in some cases the Commission has reported that although the government has incurred a loss such losses had been incurred as a result of the ‘government policy’, an explanation that is clearly unacceptable from a public institution that exercise people’s executive power on trust.

Wickremesinghe’s Bond Scam

At least, during the transitional period, Prime Minister, Wickremesinghe should have some degree of respect to people who had made the change possible. President Sirisena has repeatedly urged Wickramasinghe to remove the Governor of the Central Bank, a Wickremesinghe appointee, who is embroiled in a serious act of corruption, costing unprecedented monitory loss to the government. Yet, Wickremesinghe considered the Arjun Mahendran was an irreplaceable asset, which is again a question of credibility of the Wickremesinghe Regime. Instead of initiating immediate corrective measures, Wickremesighe had the audacity to employ one of his close confidants, Sujeewa Senasinghe, a deputy ministry in his minority government, to obtain a restraining order from Court, to prevent the citizens of this country, to have access to the information concerning this colossal fraud.

The highlight of this bond scam was the appointment of a ‘panel of inquiry of UNP loyalist lawyers’, despite there was a huge public outcry against this deplorable act, which is measured as a day-light robbery of the Central Bank of Sri Lanka.

All in all the voters are requested to assess whether both Rajapaksa and Wickremesinghe are disserved to be believed and whether they can place any more trust in this people who had fatally failed and already lost their credibility.

The best option available to the people under the current political climate is to make the JVP, a powerful opposition party, to act as the people’s watchdog against all forms of abuses of people’s Legislative and Executive power by whatever party that may ‘capture power’ with billions of rupees of money spent in this election campaign, with ‘a genuine interest to serve the people’.

*Writer is an Attorney at law (Sri Lanka) and Solicitor (UK), and a public interest litigation activist. (All four corruption cases filed against the government (2015) and now pending in the Supreme Court have been initiated by him