{"id":210738,"date":"2020-05-24T00:00:58","date_gmt":"2020-05-23T18:30:58","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=210738"},"modified":"2020-05-28T13:10:18","modified_gmt":"2020-05-28T07:40:18","slug":"the-supreme-court-the-future-of-sri-lankas-parliament","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/the-supreme-court-the-future-of-sri-lankas-parliament\/","title":{"rendered":"The Supreme Court & The Future Of Sri Lanka\u2019s Parliament\u00a0"},"content":{"rendered":"

By Rajan Philips<\/a> –<\/b><\/span><\/p>\n

\"\"<\/a>

Rajan Philips<\/p><\/div>\n

For the second time in two years, learned and some less-learned arguments are being presented before the Supreme Court of Sri Lanka that have implications for the status and the future of Sri Lanka\u2019s parliament. In October-November 2018, the question was about the President\u2019s authority to prematurely dissolve parliament within four and a half years of its five-year tenure following a general election. This time around the question is about the state of affairs when elections cannot be held within the prescribed time frame following the dissolution of parliament and the date for the convening of the new parliament. There are well established conventions and easily understandable constitutional provisions to deal with such situations in any and all constitutional democracies, be they parliamentary or presidential. Almost the same universal provisions are included even in Sri Lanka\u2019s uniquely hybrid presidential-parliamentary system. It is the reluctance to abide by them due to arrogant ignorance and stubbornness of power that is at the root of the current stalemate and controversy. One might formulate super-structurally political and class-based explanations for the current goings on, but that would be giving undue credit to the pathetic unfamiliarity with the ABCs of government that is manifestly at display now. \u00a0 \u00a0<\/span><\/p>\n

Freudian Puzzle<\/b><\/span><\/p>\n

The 17th<\/sup> May Sunday Island carried two contributions that are quite relevant to the current controversy. One of them was by Dr. Tissa Vitarana, commemorating the inauguration of the First Republic, on 22 May 1972, and based on a new constitution drafted by Dr. Colvin R de Silva that rendered Sri Lanka\u2019s parliament the \u2018supreme instrument of state power. The second contribution was by Nihal Seneviratne, former Secretary General of Parliament,\u00a0 <\/span>to mark the anniversary of the opening of the new parliament in Diyawannawa, Kotte, on 29 April 1982. Mr. Seneviratne\u2019s contribution reproduced President JR Jayewardene\u2019s \u201chistoric speech\u201d on that occasion. Neither contribution touched on the current controversy over parliament.\u00a0<\/span><\/p>\n

President Jayewardene\u2019s speech was \u2018historic\u2019 if only because it included a lot of history about the physical locations and buildings that had enshrined the institution of parliament in Sri Lanka from its inception in 1920, until its relocation from Colombo to Kotte in 1982. What is remarkable, however, is that there is not a single reference in the entire speech to the executive presidential system that Mr. Jayewardene had instituted in the country four years before the opening of the new parliament in Kotte, and to the implications it would have for the functioning of parliament in its new home that JRJ had built with Geoffrey Bawa\u2019s design and Japanese generosity. The speech had its flights of eloquence towards its end.\"\"<\/a><\/p>\n

The President almost poetically recalled the Buddha\u2019s advice to the King of Magadha, extolling the virtues and welfares of an ideal nation as worthy of emulation for the new home of Lanka\u2019s parliament \u2013 frequent gatherings of peaceful and well-attended assemblies, concordance among members and conformance with the laws, showing respect for honour and esteem and venerating the elderly and the shrines. He called out to those assembled that \u201cin this Temple of Democracy let us so conduct ourselves for the welfare of the many that generations yet unborn may say that within this Chamber our words and conduct represented our finest hours.\u201d And he heralded the birth of a \u201cnew era of Parliamentary Democracy in a Chamber worthy of an Elected and Sovereign Assembly.\u201d\u00a0<\/span><\/p>\n

Really? The question arises rhetorically in one\u2019s mind, 38 years after President Jayewardene spoke and five times as many (190) days after President Gotabaya Rajapaksa has been in office. The Freudian puzzle is that why Mr. Jayewardene chose not to make any reference to the executive presidency in the course of his ceremonial address. Was it a deliberate omission, or slip of mind? Not the latter, because as Head of State JRJJ spoke from a script. It is for MPs that speaking from notes was considered infra dig. Not anymore. Being barely able to read from someone else\u2019s notes is now qualification enough to be an MP. Not only in the dissolved parliament, but also in the yet to be elected new parliament. \u00a0 \u00a0 \u00a0 \u00a0<\/span><\/p>\n

In fairness, President Jayewardene had spoken at length about the two – presidential and parliamentary \u2013 systems, and his inspired longing to marry the two to give birth to a new Dharmishta society in Sri Lanka. But that was all when he was Prime Minister and before he made himself President through the Second Amendment to the 1972 Constitution. In April 1982, while opening the new parliament, Mr. Jayewardene eschewed any reference to the presidential system. But he chose to give a very detailed account of the initiative that began in 1967 during the government of Prime Minister Dudley Senanayake, to build a new and more spacious parliament to accommodate the anticipated increase in the number of MPs exceeding 200.\u00a0<\/span><\/p>\n

Mr. Jayewardene recounted that on 4 April 1967, a gathering of leaders of all political parties in parliament, both government and opposition, unanimously decided to proceed with the construction of \u201ca new building for the House of Representatives and to demarcate land close to the Galle Face Green by the side of the Beira lake parallel to the land where the building \u2026 (of the old parliament) stands.\u201d Mr. Jayewardene read out the list of leaders who attended the meeting. Mrs. Srimavo Bandaranaike, then Leader of the Opposition, was not one of them and the SLFP was represented by Maithripala Senanayake and M.P de Zoysa Siriwardene. \u00a0<\/span><\/p>\n

The process moved forward and continued after the 1970 change in government with Mrs. Bandaranaike as Prime Minister. The leaders of political parties again confirmed the Beira Lake lands as the location for the new parliament and authorized the hiring of Geoffrey Bawa and his firm of Architects to prepare preliminary plans and feasibility reports. The cabinet granted approval for the project to proceed and for the allocation of Rs. 2.2 million for Stage 1.\u00a0 <\/span>Even a ground-breaking ceremony was scheduled for 17 May 1973 at 1.09 pm, \u201cwhich was considered to be an exceptionally auspicious day and time,\u201d according to President Jayewardene.\u00a0<\/span><\/p>\n

However, at a meeting of political party leaders on 3 May 1973, and attended by the Prime Minister, then Speaker Stanley Tillekeratne invited the Prime Minister to \u201cinaugurate the work on the new Parliament Building\u201d on 17 May. \u201cThere was no response from the Prime Minister\u201d recalled President Jayewardene. She had already suggested postponing the project and with her silent non-response to the Speaker\u2019s invitation, said JRJ, \u201cthe progress of the New Parliament Building Project thus came to an inauspicious halt.\u201d The project was revived after 1977 by the new government of JR Jayewardene which decided to locate the new parliament not near the old parliament at Galle Face, but to a new site in Kotte.\u00a0<\/span><\/p>\n

This saga of relocation is interesting for several reasons. Mrs. Bandaranaike was already deprived of her civic rights, courtesy of a Presidential Commission of inquiry, and she was not at the inauguration in Kotte, when President Jayewardene quite meticulously laid it out that but for Mrs. Bandaranaike\u2019s snub of a non-response on 3 May 1973, Sri Lanka would have had a new parliament in Colombo\u2019s Galle Face, across the narrow Beira Lake waters from the old parliament.\u00a0<\/span><\/p>\n

There has not been any news story, or even gossip, about the reasons why Prime Minister Srimavo Bandaranaike nixed the project at that time. Nor was there any political buzz after JRJJ\u2019s revelatory recounting in Kotte. The only buzz at that time was among UNP cheer leaders about the apparent oratorical feat that day in Kotte by Ananda Tissa de Alwis, who certainly might have made good use of the absence of the old verbal gladiators like SWRD Bandaranaike, GG Ponnambalam, Colvin R de Silva, Dudley Senanayake and Pieter Keuneman, to stand tall among the plains of Kotte.<\/p>\n

Costly Fallouts<\/b><\/span><\/p>\n

What is equally significant is the decision, after 1977, by the new Jayewardene government not to continue with the original plan to build the new parliament near the old one in Colombo, but to relocate it to a new site in Kotte. It has proved to be a costly move with little benefit in return \u2013 not only from the political standpoint, but also from the physical standpoint of the urbanization of the City of Colombo and its greater environs. Politically, the relocation of parliament to Kotte is the second costly fallout from the seemingly inadvertent omissions of the United Front government (1970-1977) of Mrs. Bandaranaike.<\/p>\n

The first and the costliest fallout is the executive presidential system that JR Jayewardene was effortlessly able to prise out of the 1972 Constitution. To my mind, a grave omission of the 1972 Constitution was to reduce the Head of State to be a mere appointee of the Prime Minister. Sri Lanka could have followed the Indian example, as it transitioned from being under a monarchy to becoming a republic, and provided for an electoral college system to elect the President, or election by parliament, i.e. the National State Assembly. Just nomination by a Prime Minister was not going to cut it and JRJJ had it too easy to scupper the entire First Republican Constitution.\u00a0<\/span><\/p>\n

Alternatively, Mr. Jayewardene could have opted to modify the 1972 Constitution by providing for the parliament to elect the President, or Head of State, rather than replacing the time-tested parliamentary system by an untested presidential-parliamentary hybrid system predicated on an elected executive president. But he was acting to a different agenda. JR Jayewardene\u2019s constitutional project had a grand face and a sinister side to it. After JRJ, the republic became more sinister with little grandeur, for none of JRJ\u2019s successors could be as grand as the master himself.\u00a0<\/span><\/p>\n

As well, JRJ was one of three PMs or Presidents that Sri Lanka has had, SWRD Bandaranaike and Dudley Senanayake being the other two, who could actually read a constitution and understand its applications. After JRJ, with the successors that Sri Lanka has had to variously suffer, it was inevitable that the sinister contents of JRJ\u2019s constitution would increasingly displace whatever grandness that was left in it. Now that degeneration has taken Sri Lanka to its political nadir, and manifesting itself in the current constitutional crisis. The country\u2019s parliament that was constitutionally elevated to be the Supreme Instrument of State Power in 1972, is again struggling to be rescued by the Supreme Court from executive overreach.\u00a0<\/span><\/p>\n

As political and architectural symbols go, the old parliament building, on the Galle Face promenade, although it was built in the imperial neo-baroque architectural style of the 19th<\/sup> century, it evolved to reflect the changing moods of a politically sensitized country as it transitioned from colonial rule, to dominion status, to independence, and to becoming a republic for the time in the island\u2019s history. Its open lawns and low parapet walls were endearing to ordinary people, who would either sit on them or just hop over onto the terrain of power. Over forty-six years (1931-1977), it provided the forum to set up Sri Lanka\u2019s vaunted welfare state. It could also flex its muscle when needed to deal with emergencies or put down coups and insurrections. Most of all, it accommodated a collective instrument of state power, not a rubber stamp for an individual executive, and where every Minister was an ordinary MP first, and the Prime Minister was merely the first among equals and nothing more.<\/p>\n

After 1982, the old parliament became the new presidential secretariat. The parapets that people walked over became footings for spiked fences that kept the people away. Symbolically and substantively, people were separated from power. The same building was adapted to house power without parliament, make decisions without deliberations, rule without accountability, and to privilege the direct election of an individual over the elected representatives from multiple constituencies. The house that JRJ built in Kotte as his legacy gift to Sri Lanka\u2019s parliamentary democracy has become an opulent edifice for the trappings transferred from the old parliament while leaving the power behind at the presidential secretariat. Politically, the now locked up complex in Kotte represents the subtraction of power from parliament. \u00a0<\/span><\/p>\n

And a sign of the times and of times to come is the Temple Trees Parliament! A makeshift assembly of old MPs, more than symbolically in masks, that Prime Minister Mahinda Rajapaksa convened as a surrogate for recalling the real parliament, which is dissolved but is not dead. There is a global pandemic, and there is national curfew, but the two do not make sufficient grounds to declare national emergency and recall parliament. That is the governing assessment. While saying there is no emergency, the government is also insisting that there is necessity. The (doctrine of) necessity, that is, not to declare emergency, and not to recall parliament. That was not the advice that the Buddha gave to the King of Magadha, which JR Jayewardene recounted to his MPs in Kotte, but forgot to mention that he was their President.\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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