14 November, 2018

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The Wijeyadasa Rajapakshe Saga – Some Questions Of Law Following The 19th Amendment

By Chrishmal Warnasuriya

Chrishmal Warnasuriya

Resignations, Removals & Collective Responsibility

In the wake of “a resignation” from office of the former Hon. Minister of Foreign Affairs, today we saw what was termed “a removal” from office of another, the Hon. Minister of Justice & Buddha Sasana; over allegations reported as being the failure to abide by the Collective Responsibility of the Cabinet (over the Hambantota Port Agreement) and the failure to speed-up prosecutions of alleged mass-scale corruption and malpractices of the previous regime. Emphasising that the idea of this dialogue is not to engage in any political discourse of what happened (or did not happen), having been involved with the formulation of the 19th Amendment to the Constitution in the immediate aftermath of the January 8th “silent revolution” I thought it was pertinent to look at several questions of law that arise in this process; perhaps as a precursor to an intellectual dialogue of the Sri Lankan polity as to how we are meant to be governed as opposed to how in fact we are supposedly “governed” (or misgoverned)!

I suppose the best explanation of “collective responsibility” from the science of politics lies in the often quoted words (at times attributed to Churchill) that “whether we swim or drown, we must do it together”; which has been given legal recognition at Article 43 of the Constitution, requiring the Cabinet of Ministers charged with the direction and control of government to be collectively responsible to Parliament, therefore by necessary implication, to us the People. The common concept is that should any member not wish to be so bound, he must then resign from such collective responsibility of the Cabinet; which admittedly Wijeyadasa Rajapakshe PC, MP did not do prior to his removal this afternoon.

Co-relation between Cabinet’s Duty & Directive Principles of State – Articles 43 & 27

The Cabinet is bound to be “guided” by the “Directive Principles of State Policy” set out in Article 27 when exercising its charge of the “direction and control of government” given under Article 43, the idea being that H.E. the President (head of the Cabinet), the Hon. Prime Minister and other Hon. Ministers are also collectively bound by the Rule of Law specified in the Constitution in all their undertakings; they have not been given an open warrant or the commonly quoted freedom of a wild ass to govern as they please, as for instance, when dealing with public assets or the judicial process. Therefore whilst Wijeyadasa Rajapakshe PC, MP may have been charged (and may very well be guilty) with the breach of collective responsibility, one needs to also consider the following questions:

(1)  Was the removal of Wijeyadasa Rajapakshe PC, MP legal / sustainable in law?

 

(2)  Are the allegations against Wijedasa Rajapakse PC, MP matters that a Cabinet of Ministers can

insist upon in law?

 

(3)  Do the provisions of the Constitution (following the 19th Amendment) permit Wijedasa

Rajapakse PC, MP to challenge this removal?

These “Directive Principles of State Policy” at Article 27(2), amongst other things, directs a Cabinet of Ministers to ensure:

  • full realization of fundamental rights & freedoms (a)
  • justice to all people (b)
  • equitable distribution of our resources to best subserve the common good (e)
  • means of production etc are not concentrated on a privileged few but dispersed to all people (f)

Therefore it may be pertinent to ponder the question whether the fault or faults found in Wijeyadasa Rajapakshe PC, MP to remove him from Cabinet office (as appears from what is reported), such as the speaking out against the Hambantota port agreement or failure to speed-up prosecutions of earmarked cases can be justified as lawful demands of a Cabinet; the fact that he breached collective responsibility is an entirely separate issue which he may very well be guilty of.

The “Pleasure Principle” – Appointment & Removal of a Minister

Particularly in appointments in the public sector we speak someone serving at “the pleasure of the employer”, meaning that you hold office in so far as you satisfy the requirements of your appointing authority; which does not mean however, in today’s context and the wealth of interpreted law that you may be removed unlawfully and/or in violation of your rights. The amended Article 33(1)(a) requires a President of this Republic to ”ensure that the Constitution is respected and upheld”, which therefore vests a right on any person whose constitutional rights have been infringed to have them vindicated as a necessary corollary thereof. In this light we also note that the replaced Article 35(1) removes the previous absolute immunity enjoyed by a President from legal suit, permitting any person aggrieved by an act of the President to challenge same under Article 126 before the Supreme Court.

A plain reading of the amended Article 43(1) and (3) following the 19th amendment provides for the complete discretion (subject to “consultation with the PM, if necessary”) to appoint a Minister of the Cabinet and allocate functions and at 46(3)(a) to remove someone so appointed on the advice of the Prime Minister. Thus whilst the power clearly lies with His Excellency President Sirisena the legal question is was that power exercised within the parameters of the Rule of Law; this of course is a question of fact which, if referred for adjudication, will have to be determined by evaluating the evidence of the allegations, the charges, the inquiry into it and the ultimate removal.

Even if “Collective Responsibility” was breached – are the allegations “Legal”

Thus if we were to break down the allegations (as reported) leading to the removal of Wijeyadasa Rajapakshe PC, MP from office –

(a) if the question is that Wijeyadasa Rajapakshe PC, MP spoke out against the collective decision of the Cabinet on the Hambantota port agreement, then:

i. whilst he may very well be GUILTY of breaching collective responsibility, was the Cabinet also not guilty of breaching the law in entering that agreement?

ii. IF SO should the Minister have been removed based on an illegality?

(b) if the question is that Wijeyadasa Rajapakshe PC, MP did not use his ministerial portfolio of Justice to speed up certain earmarked prosecutions:

i. whilst he may very well be answerable as to WHY he did not come up with a special mechanism SUSTAINABLE IN LAW to prosecute certain identified categories or classes of cases, can he be asked to interfere or intervene in a judicial process?

ii. IF SO was such a requirement, for instance to prosecute certain identified persons or cases giving priority over others a LEGAL request?

These thoughts were gathered in somewhat of a rush, seeing the events that unfolded this afternoon, therefore my sincere apologies for the brevity and any corresponding absence of detailed explanations; which I am sure will follow during the course of the proceeding weeks. As that famous Chinese saying goes (no pun intended) “MAY WE LIVE IN INTERESTING TIMES”!

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Latest comments

  • 2
    1

    ………Can Sambandan get that Federal Thing from Dr Ranil?…..All these Yahapalana Amendments were drafted, agreed , signed and put in to the Srilankan Constitution to do the above as the Priority…… And number one obligation of the UN , Diaspora UNP, TNA Pact…….. Then punish the War Heroes …….Did Diaspora Mahendran and the Foot Note Brigade F**** it Up?…. Foot Note Brigade who tried to cover up the LKR 11 Billion Fraud of the Public Purse. forced Walasmulla Rajapaksa to leave…….Because WR did not allow any interference in the AG Dept by the crooked Politikkas of the UNP………Dr Ranil apparently called the AG to TT and told him to follow the instructions of his mates………People who read and listen know who they are………. Now the guard is no more there, can Livera and Koda pursue the crooks who robbed the bank……..Can the AG Dept take further action on them after Sira Commission winds up?…………………………………….Or shut Down ?….Interesting Times … I Bet……………Where is Dr Ranil?….

  • 2
    0

    I agree with Chrishmal; there is a resemblance of truth and apparent logicality about Wijedasa Rajapaksa’s removal from his cabinet portfolio. However, it sounds like the ‘weapons of mass destruction’ that justified the Iraq war. My point is people’s conscience say there is something fishy within the entire saga. As WR himself has alleged, is there a conspiracy behind this UNP’s well calculated ‘decision’ to divert the attention from the mega thieves of the Bond scam to another direction.
    For me MS is a mere ‘marionette’ and does whatever RW tells him to do. The poor man is like the areca-nut caught in the areca-nut cutter. That’s why he mailed the letter of removal by post to WR. However, the buck doesn’t stop here! As I read elsewhere in a popular daily: “How can anyone hope for justice and fair play in a country where the Justice Minister himself is denied justice and harassed for expressing dissent and refusing to manipulate the judicial process for political expediency? The Yahapalana leaders who believe they can pull the wool over the eyes of the people and win elections with the help of a string of show trials against their opponents while defending the crooks within their ranks are living in cloud cuckoo land.”

  • 2
    0

    First, that Politics is science is in the minds of people who might be unaware of science .. but those involved in politics can keep using the term science regarding what they discuss .. but unless they subject themselves to an inquiry of what they mean by science this only remains in the realm of “us too”

  • 5
    1

    Chrishmal ,

    Another frigging lawyer! What a windbag!

    Why can’t you cut the bloody crap and simply say what you have to say without running around the mulberry bush? …………………..

    In the Iranian revolution they got rid of the old crooks to make way for another set of brand new crooks. …………..

    ………….. Shot all the ministers of the previous regime and put them in the mortuary ………. the highest ministers occuping the topmost slots ……… and so on …………
    If I had my chance I would put all you guys in the mortuary ………. only thing I’ll do it while you are still alive ……………..

  • 5
    1

    Crap articles. What BS. Who decies these collective Resposibility and and who is wrong and who is right. What is the responsibility of these big mouth politicians to the voters. they got votes. They themselves have changed rules becuase of that none is responsible for the voter. Parliament is a complete fraud. Journalists, they also want employment and income. So, they write crap. Politicians at the top are uneducated, irresponsible, unsophisticated, they don’t have any value system as in christianity or they do not follow or respect buddhist precepts. they work on their own rules. So, we talk nonsense. BEFORE THESE UNP THIEVES INCLUDING THEIR LEADER TALK ABOUT COLLECTIVE RESPONSIBILITY THEY SHOULD THINK ABOUT THEIR RESPONSIBILITY TO VOTERS. THEY ARE LIVING ON PUBLIC BUT BY CHEATING PUBLIC. HIGHWAY ROBBERS ARE MORE RESPECTABLE THAN THESE ROBBERS SPEEING IN SUPER LUXURY SPORTS UTILITY VEHICLES.

  • 2
    0

    don’t worry chum these things don’t matter

    he is out but not out. as a martyr
    he will be leading the JO s presidential campaingn

  • 7
    3

    This double faced, crooked, corrupt, double dealing, double crossing scoundrel, the so called double doctor Wijedasa Rajapakse, the Medamulana mole, the notorious Trojan horse within the government with a double ministerial posts is sacked. A leech that was hanging on without leaving until it gorged the whole blood from the government till the end of the term by making sure that the rogues and goons of Medamulana will return to power is pulled out and thrown away. Another great achievement for the good governance.

    • 0
      0

      I am not you; you are not me !!! :)))))

      • 0
        0

        Nimal F,
        Most certainly he ain’t you. What godawful writing : ” Another great achievement for the good governance.”

  • 2
    2

    Wijeyadasa’s argument during the press interview was that as Minister he cannot interfere with the judicial process.

    My point is that while he certainly cannot (and should not) interfere with judicial process, nobody was asking him to do that.

    He was merely accused of administrative mismanagement of the AG’s dept (with regard to the delay in expediting the judicial process) by not providing adequate staff, materials and other resources.

    His Hambantota Port comments are a red herring, and appear to be irrelevant in the context of his removal from office.

    Wijeyadasa was certainly obfuscating at the press interview. He waxed eloquent about the Bond scam, but failed to mention his own subterranean involvement with Senadhipathi of Avant Guard whose prosecution has been put on the back-burner.

    All would, of course, be revealed in due course.

    A “de facto” CJ was removed by the President unceremoniously, so the removal of a Minister on the recommendation of the PM is no great shakes. Please note Chrishmal.

  • 1
    1

    It was a public secret that JRJ had extracted resignation letters from
    all his cabinet ministers and one could imagine the slogan of
    “GOOD GOVERNANCE” is similar to that line ! In the case of Wijedasa,
    he challenges in public that he will not rest until Hambantota port is
    returned to the public , according to reports . If that is his resolve he
    should have vacated his post the moment the deal was sealed by his
    leaders , in strong protest ! This is exactly what Gamini Jayasooriya
    did to JRJ in protest to Indo-Lanka agreement . We have a saying that
    ‘the law is a donkey and standing before it or behind it ‘ would be a
    knock down or kick out but travelling on the back of it is the safest !
    Wijedasa the Dr,PC and the minister of Justice doesn’t seem to know
    much about the law in politics .

  • 1
    1

    Incompetence is grounds for sacking but in WR’s case, was it incompetence, corruption or for just not towing the party line? Much is said about ‘team players’ & loyalty in the public & private sector, which is often interpreted as ‘going with the flow’ & even turning a blind eye to underhand dealings. In this context, even constructive criticism can be considered as ‘negative’. Such people become ‘thorns on the side’ & soon given the sack on some frivolous charges, whereas, even the incompetent are rewarded if they know how to ‘get along’.

    WR has many corruption allegation charges, in which case, he should be investigated, just like RK, but if it was incompetence, maybe there were closed door secessions with the big chiefs on the matter for which the public may not have to be privy to, yet, sacking of a senior Minister holding 2 Ministerial portfolios is a serious matter & the public should be enlightened, otherwise, WR will be considered a hero for standing up against his Govt., whether or not he was correct in his belief is another matter. Personally, I think if WR was an honorable man & disagreed with Govt. policy, he should have tendered his resignation at the outset but sacking him without a clear & credible explanation gives him some credence & also the question of legality for being critical.

  • 1
    0

    The robbed (the people) need not worry about violation of agreement among thieves for equal distribution of the loot. What we hear is thieves accusing one another.
    Soma

  • 0
    0

    Why must one go with the flow for the sake of the flow if something is not right with the flow?

  • 0
    0

    Peliagoda fish market clique of UNP politicians and th ebig mouth Rajith aSenarathne accuse for being clumsy in pushing Rajapakse’s court cases. How about, Galleon Ravi was postponing his case even during the previous govt. Penthouse Ravi was not aquitted from the money Laundering case the previous one. What ahhpened to it once it went bak to AG’s depart.ment. Then check every court case against politician. They take their need to attend the parliament as an excuse. then take how slow the Sri lankan court system is, I sy both PResident and Ranil Wickramsinghe are playing games with these thieves. They have made those political games. That is why need a completely new teams, not even the next group of thieves in Jackal opposition.

  • 0
    0

    “Collective responsibility” is an understanding – not even a code of conduct and certainly not a prosecutable offence.
    One may flout the “collective responsibility” to lodge a “conscientious objection” but one will resign the position before all that.
    In WR’s case his colleagues passed a vote of no confidence – we do that off and on in for example Past students Association. WR chose not to resign. He wanted to go as a martyr – why? Of course high spectrum political ambitions!

    • 0
      0

      K Pillai,

      Just two days back , MP Nalin Bandara , a vocal back bencher
      among the rebellious anti-WR move from UNP appeared on
      Sirasa Satana 30 minutes live . He mainly focused on WR ‘s
      foot dragging in dealing with corruption files of MR regime.
      And surely this man WR behaviour had been on various
      occasions , a real pain on the bum for govt policies . On
      communal issues he looked to courting with the monks and
      on the issue of Avant guard he plainly came out to protect
      GR saying ‘ I will not allow the arrest of him because he is a
      national hero.’ And then this Hambantota port issue , he
      went openly against the president , the PM and the Chinese.
      It is not only about breaking cabinet collective understanding !
      He was playing a game using his authority ! He was placed on
      that authority to serve the govt and the people and not to make
      it for his personal ambitions which have now leaked out !
      Ranil has become the PM after 20 years of bitter in fight of UNP
      and conspiracies by the MR and CBK . So, it won’t be that
      difficult for him to spot any black sheep .

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