When sovereignty remains “inalienable” at all times and includes “powers of government, fundamental rights and franchise”, the hurriedly adopted 19 Amendment clearly violates the “sovereignty of the people”.
by Kusal Perera
( November 11, 2018, Colombo, Sri Lanka Guardian) Colombo’s “yahapalana” civil society activists became hysterical when Parliament was dissolved by President Sirisena again on a Friday. The gazette notification was out midnight Friday 09 November 2018. I too agree, it was definitely a frustrated reaction to the combine failure of Sirisena-Rajapaksa attempts to regain a majority in parliament after removing Ranil Wickramasinghe from premiership and appointing Mahinda Rajapaksa.
Travelling to Elpitiya and back on Saturday, Colombo’s desperate protests against the dissolution of parliament was not there to be heard
or seen among those ordinary folk in the hinterlands. Rajapaksa was smiling and waving from billboards of different sizes with affectionate slogans. One said “You are our Father” (ඔබයි අපේ අප්පච්චි). Back in Colombo, it was confirmed the UNP, the TNA and the JVP would seek Supreme Court rulings declaring the dissolution illegal and to have an order refraining the National Election Commission (NEC) in holding parliamentary elections on 05 January, 2019. How DEMOCRATIC is this demand against the dissolution of parliament to hold elections for people to elect a government of their choice?
A few Colombo based “Experts” on Constitutional Law with funded civil society agents argue it is “illegal”. They are the same Colombo’s “people’s power” group who campaigned against Rajapaksa, with Sirisena as their “Common Candidate” at the 2015 January 08 presidential election and promised “democracy and good governance”. What those promises meant to the larger majority of the people during the past 03 years and 10 months, and what the “good governance” coalition between Sirisena and Wickramasinghe as a “Unity” government delivered to the people, remain as unmistakably the most “miserable failure” in post independent Sri Lanka.
That being the most obvious reason for the re-emergence of Rajapaksa, arguments against the dissolution of parliament and against holding parliamentary elections with Rajapaksa heading a caretaker government are based solely on the 19 Amendment. It is said, while the President can dissolve parliament under Article 33(2)(c), it cannot be read without Article 70 of 19A that defines powers of the parliament and its procedure. It is thus said, Article 70 very explicitly says, “(1) The President may by Proclamation, summon, prorogue and dissolve Parliament: Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.”
Yes, not only the Constitution, but most legal enactments cannot be read with their ‘clauses’ extracted out, to be interpreted in isolation, when other clauses and related laws provide teeth and muscle to it. So is the 19A that is taken in isolation by these Colombo based “experts”. The 19 Amendment should be read along with Article 03 of Chapter I of the Constitution. The only exception being, this Article of the Constitution can be read by itself and needs no other Article in the Constitution or any clause in any other law for its interpretation. It simply says, “In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and franchise.” How would the Colombo “experts” read this with the 19 amendment and its provision, “Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting” ?
When sovereignty remains “inalienable” at all times and includes “powers of government, fundamental rights and franchise”, the hurriedly adopted 19 Amendment clearly violates the “sovereignty of the people”. Therefore, 19A itself is “unconstitutional”. written into the Constitution in a mighty hurry by the “yahapalana” rulers who shouted down MPs when asked for their right to have Tamil translations of clauses pushed in at the last minute. Chamal Rajapaksa as Speaker then, went dumb on it and the JVP that now talks about “democracy” did not demand “Sinhala” translations either. The 19A for all those reasons too, remain “unconstitutional” though blindly and selfishly backed by urban civil society cheer leaders. It had no social discourse and far worse, it had no serious discussion and debate in parliament as well.
Ushering in of the “Yahapalanya” ushered in a spate of defacing and distorting the “will of the people” by very undemocratic means using presidential powers under President Sirisena. The first was when President Sirisena appointed the Leader of the Opposition as PM with only 43 MPs to support him. The Colombo “FB Activists” who question the “mental status” of a President who believes a MP without a majority in parliament could be appointed as PM, never said a President who appoints a PM with only 43 MPs in a parliament of 225, could be “loony”. President Sirisena used his newly won heavy authority to completely change the people’s representation, the will of the people in parliament elected in 2010 April, to provide his prime ministerial appointee with a majority. President Sirisena became the “darling” of the funded Colombo civil society, for breaching the people’s will in parliament in their favour, calling it “legal” then as 19A wasn’t in place. What these “honourable” gentlemen and ladies essentially say is, constitutional provisions can be used to undermine democracy for “their own benefit”.
This was replayed once again after the 2015 August parliamentary elections. President Sirisena was applauded when he played all the “trumps” in his hand to scuttle and derail the UPFA campaign against the UNP, led by Rajapaksa. Those horribly indecent public manoeuvrings were made by Sirisena as President of the country and also as President of the SLFP. He was vilified by 4.2 million SLFP supporters who voted with Rajapaksa and against the UNP. The UPFA won 95 seats as against 106 of the UNP. Again, President Sirisena defaced the parliamentary representation that was decided by the people. He moved 37 UPFA MPs into the UNP fold with ministerial portfolios.
And now the latest effort since proroguing parliament on 26 October is also about shifting MPs to create a parliamentary representation the Sirisena-Rajapaksa duo could control. Immediately, the UNP decided on a “Temple Trees Take-over” defying Sirisena’s decision. Over a week ago, the prorogued parliament was convened for 14 November by President Sirisena. As the date came closer, I had few calls that asked me what the “outcome” could be on 14 November, when parliament meets. This was one such conversation.
Asked what the outcome could be, I said, “Going by the culture of political party leaders and MPs in their parties, 07 or 08 may end up in hospital….I doubt the President and the Speaker would be allowed even to take their seats” But I also said, I wish sanity would prevail and that would not happen. “Oh yes. They may even throw chairs” the caller agreed. “Isn’t this the parliament you all wanted reconvened in the name of democracy and held placards?” I asked in jest and the phone got disconnected at the other end. Another old chum, I lost with that. The Colombo middle class wouldn’t want answers that disagree with their own beliefs.
One may accept or not, but almost 03 years and 10 months with this overwhelmingly stupid formula of tying up two unholy and unprincipled political entities with a “Yahapalana” (good governance) label has only brought back Rajapaksa. He is unavoidable and perhaps unstoppable too. It is this reality that drives the urban middle class to hide behind Constitutional clauses in the name of “democracy”, once again for their selfish needs.
The chaos and instability they helped create with their loony brand of “good governance” now demands a new mandate from the people, if they wish to have it. That right of the people to elect a government of their choice, the sovereignty of the people enshrined in the Constitution under Article 03 of Chapter I is inalienable and is non negotiable. It needs to be safeguarded at any cost, to avoid this crisis that can never be placated with this rowdy parliament sitting once again, even with a Supreme Court ruling. It bewilders one when these Colombo men and women who enjoy holding placards that read “Our vote is not for sale” and “We want Democracy” run to the Supreme Court, instead to the People.
Sovereignty of the people cannot be suspended for 04 years and 06 months for these MPs to trade themselves on the floor of the House. It is not me but, Eran Wickramaratne of the UNP who said a few days ago as a MP, “politicians will never change the destiny of this country….and a politician, a minister told me, this system works for us. Why should we change this?” (check here ) This parliament therefore should stand dissolved for people to elect a new government, with one single Amendment to the Constitution included within 02 weeks from the first day of sittings, as pre condition for elections. An amendment to “Recall” a MP, who 1,000 voters in the district with their signatures inform the NEC their trust and representation has been breached by that MP and therefore they need to elect a new representative. That’s what sovereignty should mean for people. Not SC rulings, however enlightening they could be on technicalities of law.
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