By Elmore Perera –

Elmore Perera

Money, bulldozers cannot destroy SL History – President

In a news item published in the Island of 20^th December 2012, it was reported that at the opening of the new building complex at the National Archives Department the President had stated that “No one would be able to rewrite the country’s history with the help of money or destroy it by bulldozing places of archaeological value. He was quoted by the Policy Research and Information Unit as having said that no amount of money or might could change a country’s history.

Addressing the LLRC on 10^th November 2010, I stated that on 9^th December 2009 a Victory Memorial was unveiled to the Nation by HE the President at Puthukkudiyirippu. This Victory Memorial is “a tribute to the glorious Forces and to the State Leadership of H.E. the President Mahinda Rajapaksa, Commander in Chief of Armed Forces, who was born for the grace of the Nation, with the guidance and co-ordination of the Secretary Defence Hon. Gotabaya Rajapaksa, and the Operational Command and Military Leadership of the Commander of the Army Lt. Gen. Sarath Fonseka who led the military for the greatest victory through a humanitarian operation where terrorism was entirely eradicated from our motherland and restoring its territorial integrity and the “perpetual peace”.

However the Victory Monument of Puthukkudiyirippu which has since replaced that Memorial, reads as follows: “The Victory Monument was unveiled to the Nation by His Excellency Mahinda Rajapaksa, the President of the Democratic Socialist Republic of Sri Lanka, and Commander-in-Chief of the Armed Forces with the participation of Honourable Lalith Weerathunga, the Secretary to the President and Honourable Gotabaya Rajapaksa RWP, RSP psc,   the Secretary  to the Ministry of Defence, Public Security, and Law and Order on the invitation of Lieutenant General J. Jayasuriya USP ndu psc the Commander of the Sri Lanka Army, on 9^th December 2009.”

The first refers to the War Memorial unveiled to the Nation on 9^th December 2009 by H.E., the President whereas the second refers to the Victory Monument unveiled to the Nation also on 9^th December 2009 by H.E. the President.

At first sight, it appears that Money and Bulldozers seem to have destroyed and/or significantly altered Sri Lanka History. The President certainly cannot take kindly to this brazen attempt to destroy and/or alter Sri Lanka History. The onus is on him to set the record straight and discipline those who have wilfully undermined his credibility.

Entertainment of a Motion – A Speaker’s Duty

In an article published in the Daily Mirror of 19^th January 2013, Senior Attorney-at-Law Sanath Jayatilaka had correctly stated that in terms of Standing Order 78A (i) (reproduced by him, in full) “the Speaker carries a huge responsibility and should not deal with the entertainment as we do in normal life when dealing with a social occasion”. Having referred to the definition of the word “entertain” in Black’s Law Dictionary he correctly states that “the Hon. Speaker ought to have examined the charges” and in doing so “he would have inquired how absolutely confidential information provided by the Chief Justice in her declaration of Assets, (access to which could have been only by a due process through the President, the Bribery Commission and, may be, by an order of Court) reached the signatories”. Jayatilaka goes on to state that “if” the Speaker had done so he would have referred the signatories to what he cannot entertain and even “gone the second mile” and “referred them to their respective legal remedy as provided for by law in Sansoni J’s judgment on the Paddy Lands Act”. Then on “investigation” by the correct authority   (perhaps the Bribery Commission which displayed remarkable alacrity and prowess in charging the spouse of the Chief Justice) the Chief Justice would have been charged and if the charges are proved, they would have a “proved misconduct” in their hands, to enable the Speaker to “entertain” their application,
place it on the Order Paper of Parliament, appoint a Select Committee and proceed further under Standing Order 78A.

Having stated these indisputable facts, Jayatilaka goes on to state “Hence Chamal Rajapaksa” failed in his statutory duty and an order in the nature of a writ would be available to any party interested.

Both Jayatilaka and I, and undoubtedly many, many others, are very well aware that Chamal Rajapaksa retired after exemplary service as a Police Officer, before venturing into politics. To succeed in politics there was no requirement that he should necessarily further his legal knowledge/expertise. As such it seems to me that Jayatilaka was being a little bit unfair in expecting Chamal Rajapaksa as Speaker to offer legal advice to the signatories of the Impeachment Motion, since their knowledge of matters “legal” are largely restricted to their appearances in Court in response to “summons” or “notices” served on them, or on those near and dear to them.

However, Jayatilaka has, quite correctly stated “Hence Chamal Rajapaksa has failed in his statutory duty and an order in the nature of a writ would be available to any party interested”. The justification for this irrefutable conclusion of Jayatilaka lies in the proviso to Article 107 (2) of the Constitution, which states clearly that “no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity”.

Whereas the first pre-condition has clearly been satisfied the Speaker has failed to reject the motion on the basis that the second pre-condition re full particulars of the alleged misbehaviour (which clearly excludes anything other than “proved misconduct”) or incapacity, had not been satisfied.

It is significant that even on 4^th January 2013, the Deputy Speaker who is a lawyer stated to the media that the Select Committee was only mandated to “investigate and report” only, and specifically that it was not mandated to make a “finding of guilt”. Had the Speaker consulted his Deputy before “entertaining” the resolution he may not have failed in his statutory duty and certainly would have averted the present state of  anarchy, where the rule of law has been replaced by the rule of men who consider themselves infallible and above the law.

An open apology to the nation will not be out of place.

*Elmore Perera, Attorney-at-Law, Founder CIMOGG, Past President OPA