21 May, 2019

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Opposition Cannot Abdicate Its Role To Judiciary

By Jehan Perera –

Jehan Perera

The crisis that is brewing between the executive and judiciary is a sign that the system of checks and balances continues to be functional.  In the past eight years since President Mahinda Rajapaksa became the Chief Executive the accumulation of power in the executive branch of government has grown apace and appears to be an unstoppable march.  It was thought to have reached its apogee with the passage of the 18th Amendment to the Constitution by the present Parliament with a 2/3 majority.  One section of this Amendment gave its assent to the President taking over the powers of appointment of heads to all key departments of government.  This was a power that the previous 17th Amendment had thought fit to share between Parliament and the Executive President.  This power sharing Amendment had been passed unanimously by a differently constituted Parliament a decade earlier.

It was disappointing to see senior members of Parliament, especially those on the side of the government, who had both publicly and privately expressed their disagreement with the 18thAmendment, nevertheless voting for it in Parliament.  Among those who voted for the Amendment were those who had been elected as opposition Parliamentarians, and who had crossed over to take over ministerial positions in a jumbo cabinet of ministers of over 50 that was expanded to accommodate such crossovers.  The critics of the 18th Amendment who voted for it were cognizant of the political reality that the government leadership would brook no opposition to the 18th Amendment which additionally gave to the President the right to run for unlimited terms of office, and not for just two as had limited the incumbency of previous Presidents.

The process of centralization of power is set to continue.  The government has now presented the Divineguma bill to Parliament that is meant to concentrate economic power in the hands of the Economic Development Ministry.  The democratic world long ago decided to put limits on the concentration of powers in the hands of a few individuals.  But in Sri Lanka this logic is turned around on its head, and its greatest triumph of modern times that saw the demise of the LTTE is now sought to be emulated in other spheres on the same basis of unmitigated concentration of power.  The proposed new law will consolidate economic resources that have been decentralized to statutory government authorities and to elected Provincial Councils and give the overriding decision making power to the Economics Ministry.

LEGAL CHALLENGE

If it was hoped that the elected Provincial Councils would fight to retain their devolved powers and economic resources, it was a misplaced hope.  They voted to give away their powers to the central government.  Ironically the proposed law has been challenged in the Supreme Court not on behalf of the eight functioning Provincial Councils but on behalf of the sole non-functioning Provincial Council, the one for the Northern Province.  This was the one provincial council from which a fight to retain provincial powers could realistically have been expected.  Perhaps it is for this very reason that the government has so far failed to hold provincial council elections for the Northern Province.

The government has given many reasons for not holding the Northern Provincial Council elections, including the need to demine the all the land, resettle all the displaced people and compile accurate electoral registers prior to holding the Provincial Council elections.  However, the government has not permitted these legitimate considerations to prevent it from conducting Presidential elections, General elections and Local Government elections as and when it suits it in the Northern Province.  This makes it clear that the government’s refusal to conduct Provincial Council elections in the Northern Province lies elsewhere.  In response to international pressures that the end of the war three years ago calls for a full restoration of democracy in the former war zones as well, it has now promised to hold the Provincial Council elections in the Northern Province by September next year.

The most likely reason for its failure to hold the Provincial Council elections is that the prospects of the government to win the elections in this province are low at the present time.  In the Eastern Provincial Council election where the proportion of Tamil people is less than 40 percent, the government failed to win an absolute majority of seats.  In the Northern Province, with the Tamil people being over 90 percent of the population, the likelihood of the government winning those elections is even lower. At least the government was able to emerge as the largest party in the Eastern Provincial Council and thereby cobble together a majority.  But in the Northern Provincial Council this will be less likely.

Due to the absence of an elected Provincial Council for the Northern Province, its Governor has been asked for his consent to the Divineguma bill and has given it.  However, this has given rise to a legal question whether the Governor of the Northern Province, who is an appointee of the President, and who is not elected by the people of the province, can act on behalf of the elected representatives of the province.  Whatever may be the technical or legalistic position, the ground reality is that the Governor can in no way represent the desires and aspirations of the people of the Northern Province.  Anyone who visits the Northern Province and speaks to the people would know that one of their bitterest complaints is the role that the military plays in the administration of the province and the close nexus that exists between the military and the Governor, who is himself a retired army general and was the northern army commander.

UNREALISTIC EXPECTATIONS

Several parties including a political party, a civil society group and an affected public official have filed cases before the Supreme Court hoping to halt the centralizing government juggernaut.  The Sri Lankan Constitution provides for the independence of the Judiciary. However, the ability of the judiciary to check the Executive is a limited one in the Constitution.  On the other hand, the Courts have a limited power to review legislation. Such judicial review is confined to a pre legislative rather than post legislative review.  The Supreme Court ruling that the Divineguma Bill should be approved by all the Provincial Councils before it can be passed by Parliament appears to have disturbed the government and led to a train of unacceptable actions and rumours, including the impeachment of the Chief Justice.  It appears that the government approacy is that the judiciary is not to there to thwart the will of the government that the opposition political parties are unable to do.

The concept of judicial independence is that the judiciary needs to be aloof from influences, partisan interests and fear of the other branches of government.   The rationale for this independence is to ensure that justice is impartially dispensed and this is not possible unless the Judges have independence to decide without fear or favor.  The Supreme Court and the judiciary it leads need to be appreciated for being willing to be a check and balance on the power of the government.  The credibility and legitimacy of judicial decisions also need to be based on a realization of the limits of judicial power.  There is nothing to stop the government from passing yet another Constitutional Amendment using its 2/3 majority to overturn a judicial decision.

The Pakistan case is not applicable to Sri Lanka at the present time.  In the case of Pakistan, President Musharaff was an unelected President who chose to confront the Chief Justice and the judiciary in his waning years when he was highly unpopular with the masses of Pakistan’s people. In Sri Lanka, on the other hand, the President and his government are both popularly elected and are continuously re-affirming their popular mandate by winning local and provincial elections, albeit by hook or by crook. There are, alas, no short cuts to saving Sri Lanka from the perils of over-centralised power and the abuse of power that will invariably accompany it.  The opposition parties cannot abdicate their role of being a powerful voice and educator of the people for political reform.  Among other things they could be doing they need to convince the defectors from their parties who give the government its 2/3 majority to come back.

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    Your comments are always extremely wise and intelligent. I have a lot of admiration for your lucidity in facing the tensed conditions of democracy in Sri Lanka. And I wonder: whilst a ruthless tyrant is taking control of the country, what are the options for the opposition? The president doesn’t hesitate to use any means to achieve his target: from the massacre of civilians to the abduction of a high-ranked civil servant. Is this really a player in the democratic arena? Isn’t this action assuming more and more the character of a subversive overthrown of the Sri Lankan institutions? In other words: isn’t this administration becoming a regime against the Sri Lankan citizens?

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      ..Is he going against its citizens/subjects? Then why are they voting
      him again and again – unless one can prove the counting is grossly
      erroneous in all past elections; as it will be so in the future ones too.

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      The opposition is obviously on his side

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      Celeraty, you asking “what are the options for the opposition?” ….
      Read your wise and intelligent guy, JP’s heading … “Opposition Cannot Abdicate Its Role To Judiciary”?
      To have options for the opposition, there must be a opposition … At the moment, there is no credible opposition …
      That’s why the opposition abdicated it’s role even to FUTA (lead by history lecturer Nirmal Ranjith Devasiri and the monk Dambre Amila) … It is obviously failed and now the opposition trying through Judiciary lead by the Secretary to the Judicial Services Commission, Manjula Thilakarathna …. Where does this outsourcing of the opposition lead to? They try ‘academias’, judges, foreign governments, INGO’s, UN, Human rights councils, Milliband and even LTTE rump … List goes on …
      What a impotent opposition? … No wonder it goes to the record books as the Only opposition in the world which demands NO ELECTIONS …..

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        Bruno there was a time after Independence the Govts unable to carry on it’s period had to go to polls before time. Then we saw the UNP for the first time in ’65 running for the full period. Thereafter we witnessed how elected Govts were refusing to budge extending the period under the Kitchen Prime Minister. Thereafter we saw the extension of govts through Referandums. I have no qualms about Referandums as long as they are Democratic and free of abuse. Today people are agitated not only by those who did not vote MR into power, but by those who voted MR into power and many who camped with him. The latter is more vociferous than the former. These individuals believe MR should be toppled and can be toppled if there is a Strong Opposition. Hence many who are impatient are full of blame towards RW for not doing it. Can any one suggest or disclose the strategy, when we have an individual in the calibre of MR, with no scruples, vested with power of the Election machinery at his disposal and assisted by an equally corrupt Public Service who help MR at a time of Elections, but criticise the Opposition and RW for not unseating MR, thereafter. Is this not the scenario we see in this country today.

        RW has been blamed for more than he is due, but has the General Public including the Public Servants involved in the Election Machinery made an attempt to conduct Elections Free and Fair, as MR alone can not do this ‘Computer Jilmart’ or whatever. We all know the plight of the last Election Commissionner. Does he have the backbone to tell the General Public the ‘truth’ at least now as revealed by Former CJ Sarath N Silva of his compliance. What are the critics of RW expect him to do? take a gun and shoot MR? or get someone else to do it for him? Yes if Premadasa was living, having Sirisena Cooray would have done the needful by now. RW does not want to have any part of such methods. That is why he prevented Sirisena Cooray coming back to the UNP. Whatever said and done RW is maintaining discipline in the UNP although most of the riff raff has left. Discipline is important for a person, a Political Party or a Society to develop. It may take time but will certainly help everyone. Mere toppling MR, with the type who revolt within the UNP, will not help this Society to establish Law and Order, let alone under RW but anyother.

        When the FUTA started there were many who criticised RW for the UNP not taking advantage. Imagine if RW joined FUTA, what is his position today? Now all are clamouring RW should make use of the Judiciary Issue to topple MR. To do that he will have to seek assistance from some of the members of the Judiciary. If RW does so, once he is elected these very members will be waiting for rewards over others. Then how can RW establish a Just Society if he is obliged? This was well projected when RW revealed about the Maharaja Company demands, when RW temporarily took over in 2002. I believe there is no point blaming Ranil Wickremasinghe for the chaos. It is our responsibility to elect him if we want a system of Fair Governance to this Country.

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    I suppose that arbitrary abductions, soppression of press freedom, assault on high-ranked civil servants, concentration of economic power in the hands of close relatives is detrimental to the well being of all Sri Lankans. Not to mention that the Tamils massacred in the IV Eelam War are Sri Lankan citizens.

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    The main opposition is led by a set of political eunuchs. The opposition leader could have at least launched a broadside on the 18th Amendment that could have gone into history on that D-day even though its passage looked a certainty. But he chose to run away giving up the battle. He let down the judiciary recently too at the psychological moment. I think our enlightened readers would know what I meant by ” psychological moment”.

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    The opposition leader Ranil wants to enjoy the fruits of Executive presidency powers one day, he never agitate for its abolition.

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      Jim Hardy,You are dead right.Not only for he presidency,also for the 17th amendment for constitutional councils which will increase transparency and limit the governments powers to do as they please. Ranil’s attitude is if others have enjoyed all these ‘perks’ of power why shoudn’t i also enjoy it one day.The stupid fool does not realise that he is not trusted by the sinhalese anymore and will never be president and is just like prabhaharan dreaming of one day getting something that is a distant mirage,and in the process just like prabha put the tamils in a soup,Ranil is putting the UNP and a viable opposition in a soup.

      Fonseka on the other hand is much more direct and sincere and does not play slimy games.He has openly said that those who want to abolish the presidency come to the rally on Oct 18 th. See what Ranil’s response is.He has stopped so many UNP parliamentarians including Karu Jayasuriya from attending using the threats of disciplinary action. It shows his mentality towards the presidency and also his opposition to the support of the UNP for the beleaguered judiciary shows he has ulterior motives of doing the same things to them as MR if he comes to power,which will never happen anyway and is like Prabha’s dream of becoming the president of Eeelam.

      First of all the UNP must kick this bugger out and make Karu Jayasuriya the leader.Then Karu must invite Fonseka to join the UNP. Then he should invite all the disgruntled elements in the SLFP to join the UNP. There are many SLFP er’s who are very unhappy about the power given to crossovers from the UNP and also who are Bandaranayaka loyalists.As long as Ranil is there they will not join the UNP because Ranil does not believe in accommodating others unlike MR who will generously give positions to those who join.That trait of MR can be exploited by breaking up the SLFP by wooing the old crowd who are being sidelined by the Rajapakshe’s.

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      Jim Hardy, IF one day RW assumes power as President, you can be assured that there would be Law and Order established in this Country. There will be DISCIPLINE. Further none will be favoured or saved from wrong doings that will apply to all alike, known or unknown. Corruption will be minimised or eliminated. The country will develop as a whole and not only for the stooges. The masses need not know any in the system for each one’s due. A system of merit will be in place, instead of the current system where only the stooges benifit. RW has proved his credentials of HONESTY in ample measure, compared to MR or anyother in the field of Politics. What more can a society ask for at a time, everything is in shambles?

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    People like Mr.Perera narrate everything bad about overly centralization of power and undemocratic governance under Rajapakses. To bring about a true democracy Perera assumes; PCs ought to retain its powers at least as they have it now.

    Perhaps, he think a different law for this side of the road to that side means people are empowered. He sees race based concentration (like in Bantu lands) is freedom. But it is prohibited in liberal Singapore. He doesn’t see police and land powers to acknowledged demagogues would bring conflicts to this small nation.

    Pereras talk everything good about PCs but he has conveniently forgotten they came about in the first place. He thinks we too have forgotten that PCs is a product of 13A that was rammed down our throat by India. And PCs were boycotted by most Sri Lankans and that include Tamils and their sole representatives LTTE. And the war just dragged on because sole representatives of Tamils asked for Shylock’s pound of flesh.

    For over twenty years, NGOs like Mr.Perera’s hadn’t cried for PCs not functioning in the North or East or not having democracy there. While the war intensified, NGOs spend millions of dollars of western tax payer’s money to educate us the goodness of ‘Federal Plus’ kind of devolution and not PCs.

    When Rajapakse finally wiped out LTTE and brought about real peace, it dislodged all the peace nicks. And since then Pereras have changed the music. But people can feel their hart beat. They have not forgotten what most NGOs stood for.
    Leela

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      Nangiye (Younger sister-) are u suffering from Alzheimer ?

      Quoting from your comment:

      “When Rajapakse finally wiped out LTTE and brought about real peace, it dislodged all the peace nicks”

      When was that Rajapakshe brought about real peace ? Remember was that not – that he killed out terrorists and the civlians together creating new problems that still remains to find correct answers ?Is that the peace are u talking about ?

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        You sounds like you enjoy no peace in Sri Lanka. Where do you live? As for me, I live in a village in Sri Lanka and I enjoy peace here very much.

        Do you know that the days that Pirapakaran had his suicide squad on the loose, I mean for thirty years, we traveled in different buses for we had not wanted to get caught in his blasts and entire families to die.

        Now Pirapakaran is no more and his suicide men and women are no more. And we, I mean father, mother, son daughter of all nationalities; Tamils, Sinhalese and Muslims travel together in one bus and reach their destinations anywhere in the country alive in one piece.

        Do you understand that is what I mean peace. Vast majority want Rajapakse to remain as President because they believe that there is none who could keep that peace going. He alone could keep the separatists, anarchists and terrorists out.
        Leela

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    I continue to be amazed at the state of mind-numbing inertia exhibited by the people of Lanka in response to the imperious actions of the government in power. The Opposition also appears to have been completely neutered, and remains unable or unwilling to challenge the progressive erosion of democratic freedoms, institutions and good governance in the country. Many in the opposition who have betrayed their electorate and crossed-over for a ‘mess of pottage’ can only be described as characterless and feckless. Ranil W is an ineffective incompetent and should be booted out for the sake of the country. Surely the country can do better that this?

    In the final analysis, the people of Lanka have got the government they voted in, for better or for worse.

    Super article, Jehan; may your voice continue to ring true.

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