7 July, 2020

Blog

Will Gota Defy The Supreme Court?

By Kumar David

Prof. Kumar David

A commentator in Colombo Telegraph caught my eye when he remarked on 21 May: “Today at the cabinet meeting Gotabaya Rajapaksa asserted that even if SC orders that Parliament be reconvened, he would not do so. He will use his presidential powers to veto, postpone, or reconvene and immediately suspend”. If by directly flouting a court order or by covert means Gota subverts a verdict of the Supreme Court, it would signal a political coup; not just a de facto suspension, but an actual abrogation of the Constitution. I am drawing out a hypothetical question posed by the commentator. Defying the court directly or indirectly would signal the arrival of presidential dictatorship. If the court says “reconvene parliament” and Gota refuses, or if he goes through the motions and dismisses it forthwith, the implications are the same; it is blatant flouting. Will he do it? I don’t know. I also do not know what the verdict will be and I am not commenting on proceedings. With parliament dissolved, if the judiciary is relegated to impotency then two pillars of the constitution would be dismantled. It would be a presidential dictatorship, enforced by the military. A pronouncement may follow later formally abrogating the constitution. Constitutions have been overthrown more than once in Pakistan, Thailand and in South and Central America and Africa. The Gota-Military nexus is unpredictable, so this is not farfetched. Huge numbers of military and police promotions lays the groundwork of preparing loyalty if the forces are to be moved against the people.

There is a ‘To Whom it May Concern” email authored by ANI Ekanayake (may be a pseudonym) doing the rounds with an attachment containing ten reasons why we are drifting to military dictatorship. It says, inter alia, “A large number of people voted to make Gota president. They included professionals, academics, clergy, business classes and ordinary citizens who were fed up with the corruption and incompetence of politicians. They longed for a benevolent dictator to take control and put things right. Consequently, any move by Gota to go beyond his electoral mandate, take control and assume autocratic power will be welcomed by millions who voted to make him president. He will become dictator by popular mandate. Public resistance, if any will be muted because of the cost of dissent”. This is a shrewd and valid observation.

I will go further and assert that if the Supreme Court holds against Gota, there will be greater mass support for defying the court than for abiding by the law and the constitution. I anticipate mass protests mobilised by the SLPP and its allies the LSSP, CP, MEP and DLF demanding defiance of the court. But the assumption that the SC may hold against Gota in any significant way is moot. What is certain is that the Sinhala-Buddhist public will rally behind any step, constitutional or unconstitutional, by Gota and poropaya. Politics of race and religion will continue to dominate Sri Lanka for some generations more, as it has for three generations past.

To change back to my theme, whatever the details, there are two crucial points on which the court must make a determination. (a) Will the 2 March presidential proclamation lapse on 2 June and therefore the old parliament “recalled to life”, (b) if not will court instruct the Elections Commission to conduct an election based on the current nominations in the minimum legally permissible time (35 to 50 days). If the former, Gota may dissolve parliament on the morrow. Nominations will have to be called again and elections, corona permitting, can be in late July or early August. If (b), again corona permitting, it can be two or three weeks earlier.

I have always maintained in this column that a shift of two or three months this way or that will make little difference to the outcome. The received wisdom in most quarters is that MR-GR-poropaya will easily secure a majority in excess of 120 seats, but fall short of 2/3-rds. Correspondingly, people expect the two rumps of the UNP together to secure 60 to 80 seats. I have no idea if these numbers are meaningful and have no predictions of my own. What is significant in the difference between (a) and (b) is that in case (a) fresh nominations have to be called giving the two rumps of an opportunity to fuse and seal the split. If the rumps merge it will improve UNP election prospects because of a better psychological climate for the thoroughly disheartened supporters of the UNP and its allies.

The economic turmoil that will unfold in the next 12 to 36 months will be very serious, catastrophic if it is compounded by a deep global recession or an actual depression, but it is too far away to have an effect on an election in 2020. 

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Latest comments

  • 17
    8

    if the 5 member court has the balls along with the impetus of courage to give a judgement now favourable to the rajapuka’s then the sad sorry nation will become a real true YAKKO’s hellhole where the unthinkable disgusting sordid happenings will be a daily way of life.
    =
    the military war murdering criminals even though retired have all been set up for such an eventuality.
    =
    this is what usually occurs when one hands over power to the undesirable doubtful of their birth legality.?

    • 1
      0

      ANI Ekanayake is a retired professor of Dentistry, a Peradeniya University alumni, who was two years senior to me at Royal college. He is a straightforward person who has the courage to write in his name, unlike several cowards in this forum.

      • 1
        0

        Gota is going to defy the supreme court. He has openly stated that he is not bound by the supreme court decision. He has declared island wide curfew from 31st May to 6th June with possibility to extend it further, anticipating unrest. He knows that except JVP activists and few UNPers, the rest will never dare to flout the curfew. He may even get Muslim extremists to explode bombs, if people get onto the streets defying the order.

  • 6
    8

    The best, court may ask the King to recall the proclamation and the effect of that is nil for King. He need not to defy it but can comply very safely while keeping the parliament out. Court has no provision to recall old parliament. That order is directly against the constitution, which has given him the dissolution option. If Court orders to recall the parliament, it is going to be a call under “Doctrine of necessity”. That is the last one the Court will go for.

    • 9
      3

      Mallaiyuran
      The SC did recall one old Parliament not very long time ago.

      • 2
        2

        Champawati,

        Circumstances may not match.
        This is under 19A. 19A has so many gaps and overlaps.

        The is aside. I did not see a strong argument to demand the court to act now, from the petitioners’ lawyers. Constitution is silent what to do when the June 2nd comes. Especially it has not instructed the president how to handle a situation like that. Now, if court instruct him what to do it is going to be under “Doctrine of Necessity”. The court’s instruction may not be anywhere in the Constitution.

        • 4
          0

          Mallaiyuran
          I am talking about the same 19A that you all have supported.
          The Constitution is not silent. It is clearly mentioned therein that the election should be held within 3 months from the day of the dissolution of Parliament. What would happen if the election could not be held? Then the proclamation becomes invalid!
          The President is powerless in the face of this constitutional technicality.
          The decision to dissolve Parliament is a private decision of the President. He attempted a premature dissolution of Parliament, but it did not materialize. What to do? Now he has to go back.
          I have no particular interest in this matter. But letting the Executive Branch to undermine the role of the Legislative branch is not healthy for any democratic country.

          • 2
            0

            About second para.
            To be precise, according to the Constitution, upon dissolution of Parliament by Proclamation, the President should fix a date for the election and summon the new Parliament within three months from the date of the Proclamation, which is June 2 in this case.

      • 1
        0

        Yes, Champa, let s wait and see. If they would not react in accordance with the constitutional provisions ?

        People will have be like frying pan to the fire.

        I really dont know if they could swear in before the millions of people in this country having pledged to be compliant but to forget everything when it comes to respect the constitution – the kind of misbehaviours can only be the case so long candidates are not cultured, civilized and educated. Former P Sirisena proved all at once. We dont need to waste searching other example.
        Just after the SC stood against Sirisena, his behaviour was almost like a fierce dog being defeated – made every effort to hide its tail between rear legs. .. … what to do, this is an era, human being turn out to be animals. They are shameless. They can face the very same people without a shame. I could not do that…. my god..I d better go for self-immolation if i would loose my shame/resepct.

  • 14
    16

    Switched to reading tea leaves, professor?
    /
    Hope you would be somewhat better at that!

  • 8
    0

    ” (a) Will the 2 March presidential proclamation lapse on 2 June and therefore the old parliament “recalled to life”, (b) if not will court instruct the Elections Commission to conduct an election based on the current nominations in the minimum legally permissible time (35 to 50 days). If the former, Gota may dissolve parliament on the morrow.”

    How will the Court resort to (a)? Is it by an Order on the President which will amount to a direct Challenge on him as he has repeated umpteen number of times that he will not reconvene the Old Parliament? Very Unlikely. May be, the Court can call upon the Speaker to reconvene the Old Parliament, if that is permissible. In which case, the question is whether the President has the Power to dissolve the Parliament, albeit a Reconvened Parliament, again. We will know the answer in the next few days.

    • 1
      0

      If the Court takes Dr. Jeyasunghe’s letter as final and says to “EC conduct the election” (It is not going to fall before June 2nd) then the court is handing over the judgement burden to a single doctor; there is no need for five justices bench. The letter was not addressed to court or even if it is, it cannot become virtually an order over the Justices. Justices have to respect EC’s witness that election cannot be held on June 20th. Based on that Sumanthiran PC has withdrawn his client’s petition. If court order EC to conduct the election say even within the end of June, It may force Sumanthiran to take the case back again. Election Commission feels before August , procedurally the election cannot be held. Court may not over rule that based on the letter, because that part has nothing to do with the Corona Virus. So I have to wait and see what is the effect of this letter in the verdict, if it will have one.

  • 7
    17

    Prof. David
    Your whole article is hinged upon one concept “If the court says “reconvene parliament” ” . The legal experts say that SC can only suggest the option of “reconvene parliament”. So the President can accept it or reject it. That response itself is not an act of dictatorship. However, I term GR as a consultative autocratic leader because he consults all relevant and make his own decision. He knows he is the person answerable to all outcomes. You guys are also blame him for everything happening under the sun in Sri Lanka. So guys who push him to his leadership style are the part of the problem if they think there is a problem. I don’t really think there is a problem.. Country will be a better place for general public who obeys the law and order and mind their own business, if GR remains on this seat for 5 years. I hope he would do a send term and finish this business as he did with LTTE.

    • 6
      2

      Aru

      In Gotha-Lanka Supreme Court is irrelevant. Gotha reigns supreme inside Lanka.

  • 7
    2

    Kumar

    Will Gotha Defy The Supreme Court.

    *** SUPREME COURT Ceased to exist in Gota-Lanka when Gotha announced his candidacy. which was evident when he PARDONED the Convicted Killer. Gotha Lovers have now woken up to reality including retired surgeons ( who was slow to pick up) that Gotha is a Liability for Sri Lanka and the Chicken has come home to Roost.
    Gotha made so many promises during the Election that he will not allow any Country to interfere with his SOVEREIGNTY. But soon after he was elected the only Country that has engaged with him was the master India . As I have always said India has total Control.
    Let us look at the evidence
    ‘Govt hiding a deal on the East Container Terminal’
    May 26 (NR) SJB charges the govt of concealing the agreement with India pertaining to the East Container Terminal of the Colombo Port. Former MP Ajith P Perera said information has been revealed of an agreement being reached between Indian PM Narendra Modi and Prez Rajapaksa over the terminal. Perera requested the govt to promptly reveal the truth to the people. He claimed that an agreement of US$ 1.1 billion has been purportedly agreed between the two leaders in a phone more.
    Sadly Gotha has no Friends in the World and no Country to Govern.

    • 2
      1

      Kali, once again you are writing rubbish due to your poor knowledge of English. What has supreme court got to do with pardoning of convicted killer by president. Supreme court correctly passed judgement. But president used a clause in the constitution to pardon the murderer. So blame the constitution not supreme court. Do not use phrases if you do not know the meaning. With your level of intelligence you cannot understand the double game played by Rajapakse brothers. Not only India, but China has also engaged with Gota. Mahinda is keeping China happy and Gota is keeping India happy. Gota is a thick skinned person who does not worry about his past misdeeds and with military support, he will ward off threats to his rule. How can you say India has total control when China is physically present in Hambantota and India is not. Also getting lease of east terminal is nothing compared to land given to China in Colombo port city – 20 hectares on 99 year lease and 170 hectares on 45 year lease. India can only control Sri Lanka, if it abandons giving carrots and show the stick as what was done in 1987. Without support of Tamils, India cannot achieve it, and with past experience, Tamils will tread carefully. India has to use non implementation of 13th amendment clause, to intervene militarily and take control.

  • 9
    3

    Kumar I admit it was me who wrote the comment based on the digital news I read from a fairly reliable site. (not social media) . But given the fact, reliability of any media is limited, I did not get the opportunity to verify by any means. The news reported it as a statement made in cabinet meeting. But given the history and seeing what they are up to right now, I tend to believe it as true.

  • 7
    0

    If GR does that the military must stand with the law and remove him. President has immunity to violate the law but army officers have no such immunity. If they support a criminal president and his Crime Minister, army officers must be punished.

    All army officers want to go to western countries. So they are not going to paint themselves as warlords. But they must be dragged to court and convicted if they support the despot.

    SL has been a democracy at various levels of democracy since 1931. A petty Colonel should not be allowed the change that.

  • 8
    5

    A man lost his ax and suspected that his neighbour’s child stole it. Then on, every action of the child affirmed to him that the child was the thief.
    He late found his ax where he had absentmindedly laid it. Then on, every action of the child affirmed to him that the child was very honest.
    Subjective thinking can be deadly dangerous, but also funny.

    • 4
      0

      What was the rest of the story? The child when grow up as young man stole the axe from the man’s house and chopped off the man’s head?

      Or is it a certification that pious sages like Deva and King will never become dictators?

      Or is that Sanga time Jain’s Philosophy is preaching, cutting at small is sin so wait and watch until a thorn bush becomes a Virucham and spread its seeds all over the village?

      As an ignorant student, Guru what is the moral of this wise story, pls?

      • 2
        2

        It is an ancient fable, and fables do not go on endlessly.
        I thought that I summed it all up with: “Subjective thinking can be deadly dangerous, but also funny.”
        *
        Good teaching is not giving answers but to helping even the most ignorant to work out the answer.
        Keep trying, you seem to have good company.

        • 0
          0

          First I thought it is going to an Arabian Nights to keep amusement to spend the Curfew.
          But now it is sounds like the lesson has been learnt. The curfew fogginess is relaxing the gripe in the mind. Some rays of hope is radiating.

          Keep trying, you seem to have good company. I can’t see the Doc you send. You didn’t help. That is why I had the company. But still I have to shut it as Curfew is over.
          (Still your arrogant head is thinking all other educated ones are fool and the your are smart one. But we even though the curfew coming to end we still can find time to lesson)

  • 6
    1

    I believe ANI. Ekanayake is correct in warning of a military rule which is Plan B of GR. Gotha is clear about free reign. It has to be achieved either by 2/3 majority (still have to work with other Rajapaksas) or by such military rule where he is free of everyone including sibs. He needs two factors to get his plan on roll , military which is solely in his control and the monks, on whom he has been working for past 1 to 2 years. These two should help in getting those masses to accept Gotha as their future leader.

  • 2
    1

    We don’t know, by legally, whose fault is June 2nd. The proclamation of dissolution was 100% legal. Constitution not left any space on hat for any automatic reversal. Date setting is only a condition. It does not affect president’s authority to dissolve parliament. So for EC violating that condition, one cannot bring any action against president. Here if anybody has to lose their civic rights for violating the constitution, it is Mahinda Patriotic Deshapriya.
    Apparently King will not benefit by recalling parliament in Corona fighting. The 7 Million voted to King only expecting King to take decisions bypassing Parliament in circumstances like that, unlike the dysfunctional Yahapalanaya -New King tug-of-war relationship. Court has nothing to tell to Parliament how to help President in corona fighting. It has to be president’s request to parliament to pass any laws he feels urgent to fight corona. The argument that opposition wants the parliament to be reconvened so that they can help the government to pass needed laws is not argument for a court of law, but may be good for consulting president, privately. In spending matter, unless there is a election date is set and gazetted, I am not sure how the 150(3) can be used to take money from consolidated funds.

  • 2
    0

    But in money matter Royal family will not give any change for anybody to talk. That was the whole story during Chitanta government too. They managed the 80% of government with in their family budget. If Court orders anything on that, I am 100% sure they will defy that. Ratnajeevan fledged his life and saved many from Corona death by an election, which has done no good for Lankaweans from 1931, held in the middle of it corona. In any chance it seems this case can bring no fruit to Opposition.

    The purpose of the early dismissal of parliament was to get 2/3 before people identify that by mistake they had elected the Old Royals back to power again. The election will help Royals to decent into dictatorship smoothly with name of “elected government” and avoid any IC sanctions or UN action. Old King tried that with 18A and failed. October coup also failed. If this election also failed on them, there is no reason why shouldn’t they use the military to take the power. But if the court mess up with election, there is chance that may expedite the matters.

  • 3
    1

    In fact the appropriate question in Gotha – Land is Will the Supreme Court Defy Gotha. Dare If you will

  • 4
    0

    Mallai, thank you so so much for saving me time by telling the moral of SJ ,s enlightening story.

  • 1
    0

    After Sarath Fonseka was jailed around 2011, the Rajapakses were scared of a military coup by Fonseka loyalists. So top brass were dispersed away from SL At diplomatic missions. Gota is now rewarding top brass, current and retired, with high administration positions to obtain their loyalty. When the time comes, he will assume a military dictatorship.

    This won’t please Mahinda R and his cohorts. Namal’s chances of becoming President will diminish, and corrupt ministers and MPs will not be able to rip off the country and become rich. But military guns will silence them,

    Most Sri Lankans are tired of politicians, so they will allow Gota to carry on.

    The bottom line: we are screwed.

  • 0
    0

    The first impression one gets is that Prof. Kum’s imagination is running riot. What has happened is a serious matter. It is best that the courts should decide what it should be and interpret the Constitution taking into consideration what are acts of god and what are man-made. In short it is a mess in which now judges have to unravel. Whether it is the author or any other commentator, to contemplate on a show down between the executive and the judiciary is premature. Not even leave to proceed has been yet granted in this case. The concept of separation of power is practiced in many countries today and generally one organ of state will never try to show its supremacy over the others but will do its duty by the nation.

  • 0
    0

    If we are to have a viable opposition the two rumps of the UNP must necessarily be allowed to merge. Representation in Parliament is far from strictly proportional representation. It favours the largest party (which gets bonus seats as well), then the parties of middling size. The smallest parties are discriminated against even in Districts which return more than a score of members, owing to the cut-off percentage.
    .
    Of course, there is a rationale for this, but no party respects such considerations, they just want to crush all opposition.
    .
    Yes, if the Courts hold against Gota, he may well get street protests going.

    • 3
      0

      Sinhala_Man: “Street protests”. We have a history of gangs deployed to throw stones at Judges houses and in one case a judge was shot to death after he sentenced a drug baron to death. Equally the “Judges”, including “Chief Justices” too have played into the hands of the rogue politicians. Remember one “CJ” even “apologized” for giving a wrong decision in the “Tsunami Fund” case. Another “CJ” “Pledged” to offer decisions in any way that the President desires. Today, it is carried out in a little different way, in that, the “Infrastructure” leading to an “Authoritarian Rule” is been established along with a softly orchestrated “Public Opinion” is garnished to create a “Sweet Taste” of a “Disciplined State”. In essence, the PEOPLE are “Brain Washed” to believe that a “Brigade of War Heroes” who brought “Peace” after three decades of war are equally “Capable” and “Qualified” to “RESTORE” peace, harmony, and development to a country that has been devastated, politically, economically and socially for the last seven decades. Remember the “DICTUM” of the present Presiden -“If you are not prepared to accept directives, please leave”. It is a “Message” everyone including the Judiciary has to be aware of.

  • 0
    0

    If the court decides not in favor to petitioners, the petitioner’s lawyers should take responsibility. The case is not a weak case but it is weakened the way it is presented. Like Ranil acted during Yahapalanaya time the Petitioners lawyers acting during their presentation time in the court. If the justices decide to force King to recall the parliament from all what we read in the media, then it is only windfall to petitioners, not because of the eminency the case is being presented.
    Are there any evidences to suggest that King is a fascist, dictator minded person so that the parliament should be there to protect the people’s sovereignty, as soon as the legal limit is ended? Lawyers don’t want to take the case on that side, only to prove King was the hero saved the sovereignty of Lankawe from terrorist LTTE, backed up by imperialists. Lawyers are not ready to destroy the character of King to prove that he is a dictator; they want to protect him to as he is a savior. So they want to leave their case only as a theoretical case on a constitutional point, but do not have practical value.

  • 0
    0

    Dr. Jayasinghe’s letter should have been presented by the petitioners’ lawyers to prove the need of additional parliamentary provision to manage the Corona. As the Corona must be taken care before the election, so it can be done only by the Old Parliament. Then there is a need for justices to answer that question. They goofed and Government presented the letter on its side to hold the election without calling back the parliament. There is no one single evidence is showed to justices that on June 2nd the sky is going to fall down unless the parliament is recalled to hold it up again. If not so why should the justices have to overact? Royal Family brought in unethical 18A to make a royal dynasty out of the family, last time when the family controlled the parliament and presidency. 2,000 family members’ and close friends controlled the last Chitanta government. They dismissed the CJ and brought presidential councils. Already there are 20 high positions are filled up by non-qualified army officials, who are acolytes of the Royal family. Ganier, the Swiss embassy employee is put in prison for helping CIDs investigated the murder cases on King. UNHRC Resolution is cancelled because it demanded to investigate the War Crime of King & other Military men.

  • 1
    1

    Hisbullah, PC is arrested for appearing a constitutional case against the royal family. A 7 Million people seems to be voted misunderstanding when a bald head Modaya praised King as he is like Hitler and those imbeciles thinks Hitler’s government is good for Lankawe, so the Tamils and Muslims can be taken care like Hitler did to Jews. There are many evidences suggest the people of a section wants a Hitler and King is ready to take leadership of them. Only thing can stop this is strong parliament which capable of clipping the wings of dictators. The tendency of parliament missing on June 2nd has lot of evidence that it will be missed forever.

  • 3
    0

    Sinhalaman see what is happening right now within UNP . Sajith threatens to takeover party office and UNP vowing to take action on (remove permanent ) Sajith and his followers

  • 0
    0

    Kalagola, We know you’r angry because the NPP didn’t look after you after all the Rse licking you did for them from the Lakehouse.
    /
    But your points are reallystupid and shorter than your ‘imposing’ 4.1/2′ personality.
    /
    So find another job, may be as a waiter somewhere

  • 0
    0

    The real question is will The Supreme Court defy Gota?

    • 0
      0

      Kali,
      ” In fact the appropriate question in Gotha – Land is Will the Supreme Court Defy Gotha. Dare If you will “

      Rajash,
      ” The real question is will The Supreme Court defy Gota? “

      Prof. Kumar’s question and/or your questions, which are a version of inside out of his question, will take colossal worth only in democracies where EP and SCs are two entities. From 1948,in Lankawe , elected power/executive power and judicial power are only two bodies , but one soul relationship. Remember the Indian Pakistani Citizenship Act or Sinhala only or…..?There will be “Oodal” or there will be Koodal within them, but both actions are exhibition of mutually consented love overflowing within their heart. This is the “one and only Sinhala Buddhist government and Sinhala Jury Verdict Supreme Court”. “Royal’s interest is first”, in the verdict of Sinhala Buddhist citizenry. If Shiranee B. has a interest in husband’s job at National Saving Bank, she will be leaving Supreme Court after she deliver the verdict. But that verdict will not affect the status of Royal. So rain or Shine, net worth of the events is parliament will stay out for sometime.

      • 1
        0

        Gota is going to use a loophole in the constitution, which its makers did not foresee as a possibility. Constitution only instructs president to fix a date for election and summon new parliament within three months of dissolution of old parliament. It does not say that if elections cannot be held due to some reason and new parliament cannot be installed within stipulated time frame, that president should recall gazette notification of dissolution and reinstate old parliament until election could be held. This allows president to carry on without a parliament till election is held. Supreme court has to go along with that and dismiss cases filed, but if they order to summon old parliament, he is within his legal right to ignore it.

      • 0
        0

        Mallaiyuran – Good comments

    • 1
      0

      Rajash,
      Good question. There is a news item that Namal Rajapaksa says that there is only one choice – either military rule or democracy. What made him to say in such a way is suspicious. Beware of Rajapaksas family bandysm. Every one knows how this Namal sat for the Law Exam and every knows how his father too uncivilized steps against former Chief Justice (Dr) Shirani Bandaranayake. Now there is an unwanted division between Sajith Premadasa and Ranil Wickremasinghe. Sometimes Corona virus may provide an unexpected decision for the restoration of glorious revolution. Probably the people are expecting for it.

      • 0
        0

        Yes I also read about this news item.

        The Rajapske family is now slowly brain washing the rural Sinhala voters. They want to plant the prospect of dictatorship by Rajapakse dynasty in to the brains of the rural Sinhala masses

        Namal is hoping that the Royal family will rule Sri Lanka for ever and one day he will inherit the crown.

  • 3
    0

    SJ, there is a new fable if you have not heard yet. “Try hard as you can to look smart but not by making others fool”.

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