By Nagananda Kodituwakku –

In 1999, Chandrika promised vibrant democracy

On the eve of the Presidential Election in 1999, the PA manifesto promised the people that its future political programme would be based on their inalienable sovereign rights; a vibrant democracy based on law; and a society where human values would be upheld.

The promises further included the introduction of a ‘new Constitution’ ensuring social justice, abolishing the Executive Presidency, and the establishment of a Constitutional Council. The fulfilment of these promises would have removed the President’s powers to interfere with important public offices, which include appointment of judges to Apex Supreme Court, the Court of Appeal, the members of the Judicial Services Commission, the Attorney General, the Auditor General, the IGP, the Ombudsman and the Secretary General of Parliament.

On 21st December, 1999 President Chandrika Kumaratunga was re-elected with a clear mandate (51.12%) to realise what she pledged to the people.

However, her regime completely failed to realise the expectations of the people who had overwhelmingly believed in what the Presidential candidate and People’s Alliance uttered.

When the CBK Government felt the growing displeasure of the people over these broken promises, the 17th Amendment was brought in on 03rd October 2001, which introduced the following changes:

• Establishment of a 10-member Constitutional Counsel with five members appointed on the nominations of both the Prime Minister and Leader of Opposition (Section 41A).
• Removal of the President’s powers to intervene in the appointments to the high public officers (mentioned above) arbitrarily. Recommendations of the Constitutional Council were made mandatory for such appointments (Article 41C).
• Removal of the President’s powers to intervene with the following Commissions established by law (the Election Commission, Public Service Commission, the National Police Commission, the Human Rights Commission, Permanent Commission to investigate allegations of Bribery or Corruption, the Finance Commission and the Delimitation Commission) was also removed (Article 41B)

In 2005, Rajapaksa went a further step and promised complete abolition of the Presidency

In the 2005 PA manifesto, the Presidential Candidate Mahinda Rajapaksa also sought a mandate from the people with a pledge made to abolish the Executive Presidency with due regard and respect to the sovereignty (Executive, Legislative and Judicial power that the President and the Cabinet of Ministers, the Parliament and the Judiciary exercise purely on a social contract) in the people. On 17th November, 2005, the people elected Mahinda Rajapaksa to office, hoping that he would honour the promises made to bring about a true democratic system of government.

Deceiving and insulting the people for a second time

President Rajapaksa did completely the opposite of what he promised. He became drunk with power and was determined to reverse the democratic changes made by the 17th Amendment to the Constitution by the CBK administration.

Demonstrating his dictatorial tendency, Mahinda Rajapaksa brought in the ‘18th Amendment’ as a ‘urgent bill’ claiming that his action was purely ‘in the National Interest’. However, the true intention was a have a firm grip on the other two organs of the government, the Legislature and the Judiciary.

It was apparent that willingly or unwillingly the PA politicians, proving their utter subservient attitude, had succumbed to the pressure brought upon them by the Rajapaksa family and they never raised a finger to stop the draconian measures contained in the 18th Amendment.

It was against this backdrop that several concerned civil rights groups challenged the bill before the Supreme Court, then headed by Asoka de Silva, the Chief Justice. It was clear that he wanted to avoid the hearing altogether since it was common knowledge that it was a clear move to set up regimented administration by President Rajapaksa.

He simply appointed a five-judge Bench, presided over by Justice Shirani Bandaranayake, and evaded the customary role of heading the Bench by the Chief Justice. For his role and support in this unfolding drama of devastating the democratic governance, after his retirement, he was given a special appointment as special presidential advisor.
Being an experienced and master strategist, Rajapaksa had already laid a trap for Shirani Bandaranayake by appointing her business-husband to the post of Chairman, National Savings Bank. Further, Mohan Peiris, a man with dubious character, had been placed as the Attorney General, thus ensuring a safe passage through the Supreme Court.

On 31st August 2010, when the case (SCSD/01/2010) came before the 5-judge bench, Mohan Peiris acutely defended it, arguing that “the objective of the amendment is to make ‘consequential amendments’ brought about ‘by the change of the terminology to the body known as the ‘Constitutional Council’ for the term ‘Parliamentary Council’ referred to in the proposed amendment”, which was a diabolical lie.

The Constitutional Council was an independent body and without its recommendation, the President was barred from making any constitutional appointment. Whereas the ‘Parliamentary Council’ was merely a body consisting solely of MPs, and the provision in the 17th Amendment that prevented the President from making any constitutional appointment had been completely removed by the 18th Amendment. This effectively gave President Rajapaksa the right to rule the country as a tyrant, according to his own whims and fancies.

The main contention of the citizens who challenged the 18th Amendment in the public interest was that it violated the sovereign rights of the people (Article 3 of the Constitution) and in such an undesirable manner (allowing the President to have a firm grip on the Judiciary, the Legislature and other important watchdogs created by law to ensure good governance), the President was afforded an opening to violate the basic sovereign rights of the people, grossly violating Article 3 and 4 of the Constitution. The provisions of the 17th Amendment had been effectively nullified by the 18th Amendment, diluting the independence of the Judiciary, resulting in a direct impact on Article 4(c). Therefore, it needed to be passed by the people at referendum in terms of Article 83 of the Constitution.

Yet, the Court held otherwise; that no provision in the bill required to be approved by the People at a referendum, effectively creating a monster with absolute power to undermine all organs of the government, which the former President Mahinda Rajapaksa exactly did thereafter. The irony is that the blunder committed by the 5-judge Bench presided over by Justice Shirani Bandaranayake, (a one-time friend of Rajapaksa) made her the first casualty of her own making. President Mahinda Rajapaksa unceremoniously kicked her out of office with comparative ease, reminding her of her own failure to stop the passage of the 18th Amendment.

Then, on 09th September 2009, an appallingly subservient parliament approved this highly controversial and undemocratic 18th Amendment, with a majority of 144 votes. This was a carefully planned out and strategic move, which had permitted one individual, the Executive President Mahinda Rajapaksa, to enjoy absolute power, over other organs of the government, effectively paving the way for the President to have absolute control over the judiciary, the watchdog of the people, with grossly inappropriate appointments made to the Court of Appeal and the Supreme Court, purely according to his whims and fancies, forcing the people to pay heavily.

It is not the practice of any true democracy to rush through a bill of national importance such as amending the Constitution, the supreme law of the country, claiming that it was to be an ‘urgent bill’, without being given adequate time to be examined by the citizens, the Judiciary and the Legislature. Further, the methodology adopted by the President to make it law was seen as an outrageous move with complete disregard and disrespect to sovereign powers of the people, as it pushed through in less than two weeks from the draft’s first appearance. Rajapaksa had already made things favourable to him at the legislature with two-thirds majority secured, having bought dozens of opposition members.

‘Ruler is only a temporary trustee’ doctrine

It is worthwhile to mention that on 17th December 2009, when the proclamation was made calling for nominations for the Presidential Election (Rajapaksa’s second term), he declared in his manifesto (2010) that “A ruler is only a temporary trustee and not an owner of your children’s heritage” and promised “the motherland a Brighter Future”.

Mahinda Chintana II also included the following:

‘In reviewing the public service within a framework of social democratic values, I strongly believe that the Public Service should function in the best interest of the general public. This concept was always advocated and promoted by successive governments led by the Sri Lanka Freedom Party’ (pg33).

Society with high values, free from corruption and fraud guaranteed

“Early travelers who visited Sri Lanka, including Robert Knox were struck by our courtesy, hospitality and discipline. Unfortunately, these treasured social values deteriorated after 1977, when our society was directed towards legitimizing and legalizing fraud, corruption and violence, leading to the erosion of our time honoured values”.

“I will address this social decline and establish high values and ethics by eliminating fraud, corruption and malpractices, which have engulfed our society for a long time, and will take whatever measures necessary to eradicate criminal activities”.

“During the last four years I have ensured transparency in all financial transactions of the state and enforced many regulations to maintain transparency”.

“To create a society with good values and ethics, the ‘Mathata thitha’ program, the curtailment of the underworld, the addressing of child abuse, rape and violence against women, were some of the main actions we implemented. The progress we achieved so far has been laudable, but I am fully aware that more needs to be done to achieve our goals”.

“I will appoint an independent board comprising of independent and politically unbiased intellectuals under a new constitutional amendment, to eliminate all forms of corruption, fraud and malpractices”. (pg 37)

• As the first Act of Parliament, I will introduce a special act to eliminate fraud and corruption, malpractices and violation of tender procedures in government corporations, boards and financial institutions.
• Within 100 days of enacting such legislation, the legal and institutional framework will be strengthened and implemented.
• To ensure transparency in the utilization of state funds in village development projects, I will formulate a legal framework to establish committees comprised of religious leaders and credible persons trusted by the community at the level of the Jana Sabha secretariat.
• The gaps in the legal processes will be filled to eliminate all types of underworld activities. The institutional structures required will also be strengthened.
• All relevant institutions will also be instructed to implement the necessary measures to eliminate the use of drugs and substance abuse from society.
• I will allocate Rs. 500 million annually, to strengthen counseling and rehabilitation programmes for those who are addicted to alcohol and drugs.
• The coordination and cooperation of all religious dignitaries of temples, kovils, churches and mosques will be sought for this effort. Institutions that provide such services will be exempted from taxes and financial support will be provided. (pg 38)

Executive Presidency will be converted into a Trusteeship

‘I was particularly careful when exercising the powers of the Executive Presidency. In the past, the Executive Presidency was used to postpone elections, to topple elected governments, to disrupt the judiciary, to ban political parties, to suppress demonstrations and lead the country towards a violent culture, to sell state institutions at under-valued prices, to defend criminals and to grant concessions to unscrupulous businessmen. Agreements that betrayed the country were entered into using the powers of the Executive Presidency’.

‘I used such powers to unite the country. An open discussion on the Executive Presidency will be held with all parties. 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’ (pg 56).

Gullible people become a easy prey in the 2010 Presidential Election

The People who were deceived and caught up in the colourful trap laid down by Rajapaksa, afforded him with an absolute majority (52.9%) in the Presidential election held on 26th January 2010, also with an option to contest for a third term by removing the restriction placed on the term of office (Article 31) by the so-called 18th Amendment.

Displaying true colours, the monster destroyed all norms of good governance

With his re-election to office, Rajapaksa start showing the true colours of the great Machiavellian politician, blatantly violating the Rule of Law, good governance and all norms of government simply to benefit himself and his cronies.

• The Judiciary became a principal casualty with the Chief Justice forced out and installed with a henchman, Mohan Peiris, by unlawful means. Mohan Peiris enjoyed the full blessing of the President and made the judiciary a mockery, completely losing the trust and confidence of the people.
• With the removal of the Constitutional Council, Rajapaksa enjoyed all power and appointed his men as judges to the Superior Court System, purely according to his whims and fancies. He was no longer barred from making appointments without the approval of an independent body (Constitutional Council), rather, called on the views of the so-called Parliamentary Council which only consisting of members of parliament who were under his firm grip.
• The one who promised an administration free from corruption, did completely the opposite. The Office of the Auditor General (the people’s watchdog to examine any matter relating to public finance) also became a victim, with Rajapaksa becoming the sole appointing authority to the office. Financial abuses and mismanagement in all state institutions including the President’s Office reached an unimaginable scale.
• Ministers, MPs and his handpicked staff were given all perks and privileges not permitted by law, which included issuance of permits to import ethanol and other luxuries, absolutely free from fiscal levies. All the abuses of public funds committed by these men were immune from the law and President Rajapaksa openly condoned the serious acts of wrongdoing by his men which includes the serious criminal acts committed by the drug peddlers against the society.

Popular discontent gathers momentum and non-violent uprising, demanding Justice

On 08th January 2015, people who were absolutely conned by Rajapaksa dumped him for a reason and they elected Maithripala Sirisena for a purpose; which was to clean up the administration with maximum punishment meted out to those who had openly abused the governance under the lawless regime of Rajapaksa, primarily to embezzle billions of rupees of public funds.

Ranil Wickremesinghe administration let-down people’s aspirations

Some think that election of Maithripala Sirisena was a vote for him but the truth is that it was a vote for dumping of Rajapakse’s administration dishonest to the core. It was a vote for the good governance and restoring the democratic rights of the people. What people expected was swift and decisive actions against those who are responsible for embezzlement of billions public funds by unlawful means, which however never accomplished as Ranil Wickremesinghe administration miserably failed.

The people were yearning for returning to true democracy with due respect and recognition of the recognised constitutional norms, the separation of powers (mandatory for good governance) and for observance of the Rule of Law.

The 19th amendment, introduced by Ranil Wickremesinghe‘s administration re-established the Constitutional Council, but riddled with inadequacies. Originally in the bill the composition of the Council was somewhat satisfactory, but it was completely compromised in order to get the consent of Rajapaksa controlled legislature. Whereas there should not be a single MP in the Constitutional Council, the provision for composition of its member was murdered with MPs appointed to control the Judiciary and other constitutional appointments created by law.

Rule of law and good governance compromised for petty political gains

Citizens concerned with their democratic rights do not approve a single MP who exercises people’s legislative power in the Constitutional Council at all. This is exactly what Rajapaksa wanted and did in his 18th amendment. Yet, Ranil Wickremesinghe administration appallingly failed here and let down the aspiration of the people as it compromised with Rajapaksa lawmakers to increase the number of members in the Council to be constituted from MPs, a measure taken not in the best interest of the people.

People anticipated the Wickramasinghe administration to rectify serious wrongs committed by Rajapaksa regime concerning judicial appointments. This monumental blunder should have been rectified with the removal of all Judges in the Superior Court System with inclusion of all of them in the Transitional Provision (section 54 of the 18 amendment bill), and reconstitution of the composition of the superior court system with judges appointed by the Constitutional Council purely on merits and to be consist of people of moral integrity, character and knowledge, sans all sorts of political and other considerations.

But by refusing to do so and ignoring to respect the will and desire of the people, Ranil Wickremesinghe administration has clearly demonstrated that it too has no concerns of installing a truly people oriented Judiciary, probably they too want to have somewhat leverage to control the judiciary with majority of the members to the Constitutional Council appointed from the MPs, clearly a move resorted not in the best interest of the people, whose sovereign powers Wickremesinghe administration exercises on trust in a social contract entered with them.

It is common knowledge that without an absolutely independent appointing authority, due performance of the judges in the superior court system (watchdogs to keep all government business is done according to the rule of law), the Auditor General (the office of the watchdog for due management of public finance), the office of the Attorney General (the office that required to uphold the rule of law at all times and not simply to act on the command of the Prime Minister or the President), can be achieved or realised. Yet, what Ranil Wickremesinghe administration has achieved under the 19th amendment is appalling and definitely falls short of the realisation of the desire of the people who made this decisive change possible.

Failure to deal with criminal elements as required by law

In other parts of the world, where the sovereignty in the people is respected and the Rule of Law is duly observed, the Court system strictly treats every person equal before law and provides no unequal or special treatment for whatever reason. In Sri Lanka however what people witness is completely the opposite. Just a few weeks ago the Supreme Court of Egypt sentenced the President to life for abusing office for improper purposes and his appeal against the conviction too was turned down sending a clear message to the those who abuse office.

Whereas in Sri Lanka those who abuse office for embezzlement of public funds in billions of rupees and commit various other criminal offences such as drug peddling and murder are not dealt with and even the ones arrested are given preferential treatment over other average prisoners. The kind of favoured treatment given to these criminal elements are such that they were permitted to stay in an ambulance parked in the Court premises, when such accused persons were summoned or produced before Court. The abuse of the system and the privileged treatment given to them was such that these anti-social elements were permitted to spend their entire period of remand in the national hospitals or in private hospitals.

Rajapaksa-led criminal elements are encouraged to regroup

The former President Rajapaksa and most of his cronies who should have been behind bars by now have been permitted to regroup, with a seeming possible attempt to return to power.

Rajapaksa now pretends that he ‘venerates Buddha and what Buddha preached’ in Buddhist temples housed by persons, wearing yellow robes. They have benefited by the Rajapaksa regime with tax-free luxury car permits, which they have sold instantly, and unjustly enriched by making millions of rupees are now under obligation to Rajapaksa. They are surely not practicing what Buddha taught but permit Rajapakse to preach utter falsehoods from holy premises to the innocent and gullible people, fuelling his burning desire to capture power by re-election to the position of Prime Minister and wanting to protect his cronies from criminal prosecution.

• He is the master who practices harbouring of hatred, ill will and enmity against his opponents – imprisonment of General Fonseka for merely contesting at the Presidential election is the best example. Had Maithripala Sirisena lost the presidential election he would have been dealt with severely as same as General Fonseka
• Rajapaksa lacks quality of obedience and is driven by sheer arrogance and enmity
• He spread a harmful ideology amongst the communities aiming to flare racial unrest amongst communities for his petty private benefit, eyeing the Sinhalese majority vote
• He is a man attached to all sorts of sensual desires and cannot live a simple contented life. Unpaid bills of hundreds of millions rupees for the food ordered from 5 star hotels and hundred of millions of tax payers money spent on dansalas at Temple trees is a good example
• He led an expensive lifestyle during his tenure of office as the President. Whenever abroad he was accompanied by hundreds of his men and occupied one full aircraft of the national carrier, which has only a handful of aircrafts, an act completely disproportionate to the poor Sri Lankan economy
• His motorcade was much worse than the US President and it comprised 20 to 30 cars and security vehicles including an ambulance. One can see how the Prime Minister of
• UK goes about day-to-day business by his official transport with only one security vehicle, respecting the highway traffic rules and stopping at traffic signals like any other motorist
• Rajapaksa’s main concern was not the country and the downtrodden citizens but his family and his cronies
• He never practiced what he preached. A great cheat and deceiver who condemned and punished his opponents for refusing his unlawful orders – best example – the unlawful and unjust removal of the Chief Justice Shirani Bandaranayake
• He only understands and practice ill-will and hatred against his political opponents – had Maithipala Sirisena lost the presidential election he would have been dealt with severely as same as General Fonseka

It is truly sad that despite all this serious weaknesses and flaws President Sirisena allows Rajapakse to engage in politics under the cover of ‘Dhamma’ taking the gullible Sinhalese majority, absolutely clueless about the true character of this person, for a ride. 

Rajapaksa knows that inciting racism and religious conflict is the best weapon to win the hearts and minds of the majority Sinhalese.