Tuesday, July 31, 2018

Failure to change attitude towards political solution, a bigger shame than Black July

By Veeragathy Thanabalasingham-By Editor on July 29, 2018

Many articles appeared in the newspapers week to mark the 35th anniversary of the communal pogrom of July 1983 in Sri Lanka, commonly known as’ Black July’ riots. It was the illustrious editor and political analyst of international fame, the late Mervyn de Silva who coined the term ‘Black July’ in his now defunct magazine ‘Lanka Guardian’.

Failure to change attitude towards political solution.docx by Thavam on Scribd

Government needs to build on its Northern Achievements

by Jehan Perera-July 30, 2018, 10:03 pm

Military personnel, stationed in the North, are often perplexed when told that their continued presence is objectionable to the local population. Their experience is different. When they ask the people about their presence, the answer they say they receive is a positive one whether in term of preserving law and order or in terms of providing material assistance. The sceptic would point out no civilian population in a post-war setting would be willing to tell uniformed military personnel that their continued presence is objectionable. But this may, not be the only truth of the matter.

On a visit to the North, we went to the northernmost point of the country in Point Pedro. A plaque there says that this area was cleared and made fit for public viewing by the army. There is also a signboard that says unity in diversity is the strength of the country. The tourists who come there to take photographs are from all parts of the country. When we were there we saw a group of young women come on their own and cross over the rocks and corrals that form the front barrier of the built-up viewing point. They waded into the sea to take photos and selfies of themselves. They appeared to be local people.

We stopped for lunch at the army-run hotel called "Thalsevana" (shade of the palmyra tree) in Kankasanthurai which had once been the site of full scale war. Although the time we got there was past 2 pm, the hotel was full of local people who had come there for lunch and to enjoy the swimming pool. Many of them had come with their relatives from the Diaspora. The issue of the military running civilian businesses, such as hotels and farms, is an issue that is often brought up by human rights and political activists. But to the local population and the Diaspora community who may be less politically motivated, the army is providing a quality service at a reasonable price and from which they wish to benefit. It needs to be noted that ending the role of the military in commercial enterprises in the North is one of the commitments of the government in the UN Human Rights Council resolution of October 2015, which has yet to be implemented fully.

On the road, down from Point Pedro to Jaffna, we passed new housing projects, some completed others just beginning. At the ones that are just beginning there are signboards with the photos of the president and Prime Minister on either side. The fact that these two governmental leaders, whose political rivalry is a major source of political analysis and speculation, should come together on the signboards of housing projects for war-affected people in the North, gives an impression of governmental unity in developing the North. Their rivalry to be the government candidate for the next presidential election in 2019 has not stood in the way of portraying them as being equally committed to the welfare of the northern people.

CONTINUING DISSATISFACTION

The towns we passed through, coming down from Point Pedro, such as Nelliady, looked bustling and modern with large new government buildings and wide roads without a sense of the clutter and disorganization that is symptomatic of older towns. These are all towns that were more or less destroyed during the war, and which have been reconstructed in recent years. The net result is that they seem to be no less booming and bustling than their counterparts in the southern parts of the country. The appearance of prosperity in the North is no doubt supplemented by the generosity of relatives who are now in the Diaspora. However, despite these visible signs of progress and development there is dissatisfaction that fills the polity in the North.

As befits a plural society, there are different strata and groups in the North who see things differently. This was observable during the local government elections held in February this year when Tamil nationalist parties that are very critical of the government initiatives improved their performance at the expense of the Tamil parties that seek to collaborate with the government. Improving the infrastructure and economy is not the only priority concern of the people who also look to other unmet concerns. These are their grievances about the war and those who went missing in the war, particularly those who were surrendered by their families to the military at the end of the war.

Although the government has established an Office of Missing Persons earlier this year, this mechanism has yet to start giving answers, which has prompted sections of the Northern people to denounce this government effort and to continue to press for international intervention.

Another reason why the Tamil nationalist parties are gaining in strength is due to the government’s failure to deliver on the promised political reforms that include constitutional reform. The themes of Tamil nationhood, right to self determination and Tamil homeland continue to resonate powerfully within the Tamil polity as it has done for the past 60 years before the war began and today more than nine years after it ended. Unless the government’s heart and mind strategies include constitutional reform that address these issues, the country will be fated to see the continuation of Tamil grievances and the rise of nationalism.

BEST CHANCE

The challenge for the government is to find a political solution that can transcend the nationalism in the North and South, and East and West, and yields a polity that is plural, multi ethnic and multi religious and in which no citizen has an advantage or disadvantage because of his or her community in any part of the country. The Sinhalese, Tamil and Muslim people, and their mainstream political representatives, need to feel that they are treated equitably and are joint decision-makers in creating the future in a united Sri Lanka. The best opportunity that the country has to chart out this shared future is now when the President and Prime Minister and the two major political parties, they separately lead, are united with the ethnic minority parties and their leaderships in seeking a mutually acceptable political solution.

The commitment of the President and Prime Minister to the national reconciliation process was recently seen at the ceremony held at the Sugathadasa Indoor Stadium to appreciate the students who achieved distinction passes for Sinhala and Tamil from the "If you know, teach, if you do not know, learn" Radio Programme 2017 organised by the National Integration, Reconciliation and Official Languages Ministry under Minister Mano Ganesan. More than 3000 schoolchildren from all parts of the country attended the function at which prizes were awarded to those schools that had performed best in teaching a second language in their schools. Minister Ganesan pledged that the programme would expand and said many more students would follow the programme next year so that the ceremony to appreciate their achievements would have to be held at the Gall Face Green.

Although they have unresolved issues of leadership in the government, both President Sirisena and Prime Minister Wickremesinghe need to put their differences aside to come together with the schoolchildren of the country for the sake of national reconciliation. As leaders of their respective political parties, they need to be more assertive in communicating the success of the government in developing the North and in increasing the role of civilian administration. They need to take their commitment a step further and work jointly for the constitutional change that addresses the aspirations and grievances of the Tamil people while taking the rest of the country along with them, for which their respective political parties too need to work together.

Navy Intelligence officers arrested over abduction of 11 youths granted bail

By Tharindi Pabasara-July 30, 2018

Two Intelligence officers of Navy, remanded on the suspicion over the abduction and disappearance of eleven youths in 2008, have been released on bail under strict conditions by the order of the Colombo High Court.

The order of release on bail was issued by the Colombo High Court Judge Champa Janaki Rajaratne, after taking into consideration the petition filed by the two Navy Intelligence personnel, Kahawalage Gamini and Thushara Mendis.

Accordingly, the two suspects were released on a cash bail of Rs 100,000 and two personal bonds of Rs 500,000. The mother of one suspect and a government staff officer were ordered to be accountable as sureties for the two suspects.

The High Court Judge imposed an overseas travel ban on the two suspects and ordered to hand over their passports to the court.

They were also ordered to report to the Criminal Investigation Department (CID) on the last Sunday of every month.

The High Court Judge prohibited the suspects from interfering with the investigations and pressuring the witnesses of the case and, warned them that their release on bail would be cancelled if any complaint were filed against them for violating the said orders.

The CID had arrested the two suspects on March, in connection with the abduction and disappearance of eleven youths in Colombo and suburban areas in 2008.

What’s next for Sri Lanka’s Muslim Women?

Featured image by Hafsa Razi

SHREEN ABDUL SAROOR- 07/29/2018

“Fear Allah! Do not do injustice to your own community women and girls”

This was the plea on placards held by many of the women who stood near the Parliament opposing Muslim (male) MPs discussing the Muslim Marriage and Divorce Act (MMDA) reform report with All Ceylon Jamiyyathul Ulama (ACJU- yet another male only body) on 24thJuly 2018. Many of the protestors knew what MMDA could do to women because they had been victimised by it. For most of the women standing there, it was a first – the first time they were protesting in public, the first time they were publicly questioning a religious body which has nominated itself as the sole guardian and sole arbiter of Islamic affairs.

The MMDA reform report was handed over in January this year to the Justice Minister Hon. Thalatha Atukorale. The 18-member committee had deliberated for 9 years before finally producing the report. It took almost 06 months for the Justice Ministry to release this report officially in the justice ministry website.

When it came to offering recommendations for reforming the Muslim Marriage and Divorce Act, the Committee could not achieve unanimity. The committee split into two and each group gave its own set of recommendations. Since then there had been many arguments about which set of recommendations complies with Sharia principles and Islamic jurisprudence. Though the committee did not reach unanimity on all the recommendations, on some extremely important issues they were in total agreement. For instance, all members agreed on making conditions to polygamy, seeking women’s consent for marriage, compulsory compensation to women for unilateral Thalaq etc.

The four main areas on which the committee failed to reach unanimity were:

Ending child marriage and fixing age of marriage as 18 as it applies currently to other women in this country.
Equal representation of women in the structures that implement the MMDA specially women to be appointed as Quazi judges.
Compulsory registration of Muslim Marriages.
Taking out reference to Sect or Madhab, so that all matters fall under “Muslim law” and for opinions of all recognized schools of thought to be considered in making orders and decisions of the Quazi Court and the appellate courts.

The committee comprises of 9 including the chairperson (Justice Saleem Marsoof) who have recommended all the above changes as part of their reform recommendations. However the other half of the committee, led by ACJU president M. I. M Rizwe, has not agreed on these key issues and submitted a 8 page document with conservative recommendations specially taking the Shafi Madhab stance. The Holy Quran prohibits dividing religion into sects and depriving women of equality, justice and fair play.

Enter ACJU

Given this context, the ACJU’s attempts to monopolise the conversation is worrying. The organization is being helped by a cabinet minister who has been opposing the reform of MMDA. His opposition is based on the spurious argument that the MMDA is a divine law and therefore must not be changed. On the contrary, the MMDA is part of our colonial legacy and no longer reflects current realities of Sri Lankan Muslims nor the advances made in the interpretation of Muslim personal law in Muslim communities and countries across the world. The origin of Sri Lankan MMDA stems from a code of law on marriage and divorce imported from Batavia (present day Indonesia) in 1770 during the Dutch rule. Between 1806 and 1951, this code of law went through a process of codification, review and modification thus it is a combination of some aspects of Sharia and customs practiced then. Ironically as it stands today MMDA accommodates features that are contradictory to Sharia stipulations. One such example is kaikuli (dowry given from bride’s side to bridegroom) followed by Sri Lankan Muslims at the time. Among certain religious schools of thought, kaikuli is considered haram/forbidden in Islam.

In 2009 the then justice minister Milinda Moragoda would have had the same concerns as the current justice minister Thalatha Athukorale. He would have regarded the MMDA as an issue that concerns a religiously identified community and therefore appointed mostly Islamic scholars, legal professionals and community representatives and 2 ACJU members (President and General Secretary) to look into the reform within the religious framework. The committee has done exactly that. The 313-page report and another 302 pages of annexures in the form of Vol. 02 stand evidence to that. It draws examples from other Muslim countries’ reforms, applicability of Islamic Jurisprudence (Fiqh), draws conclusion based on contemporary studies here and elsewhere. And most importantly it has the annexures of submissions made by many community representatives & organisations, Muslim academics, Islamic scholars, religious groups and most importantly affidavits of the affected women.

The report provides Minister Thalatha Athukorale with a blueprint for action. She has a chance to correct a historic injustice, and turn Muslim women of Sri Lanka into citizens in the full sense of the world.

Will Minister Atukorala follow the due process? Will the draft she submits to the cabinet and table in parliament respond to the concerns of Muslims women and girls? Will she remember that the Lankan constitution grants equal rights to all the country’s citizens and as the Minister of Justice it is her responsibility to ensure that Muslim women are not excluded from this? Will she ensure that the MMDA reform is guided by the principles of equality and justice enshrined in our constitution?

Editor’s Note: Also read “Muslim Women Protest Exclusion from MMDA Talks” and “The MMDA and Muslim Women’s Right to Shape an Egalitarian Law”

Another Tamil fisherman’s boat burnt in apparent reprisal for protests

30Jul 2018

Tensions between local fishermen and Sinhalese continue to mount in Vadamarachchi East after a Tamil fisherman’s boat was burnt on Sunday night, following a similar attack on the boat of a Tamil fisherman from the same area last week.

The latest victim is Arulappu Mary Robinson who has played a frontline role in the local fishermen’s protest against illegal fishing by Sinhalese fishermen.

Vadamarachchi East’s Tamil fishermen have long been protesting the presence of around 1400 Sinhalese fishermen squatting on state land in the area and encroaching the area’s fishing waters without licenses, particularly by poaching sea cucumbers.

The Tamil fishermen accuse the Sri Lankan Navy of supporting the illegal fishing and also said that although police have been informed about both boat-burning incidents, police have failed to take any action.

MMDA: Why Silence & Inaction?

By Ameer Ali –JULY 30, 2018

Dr. Ameer Ali

If procrastination and inaction are the defining characteristics of the Yahapalanaya regime then the saga of the Marsoof report on Muslim Marriage and Divorce Act (MMDA) says it all. This Act of 1951, whose genesis actually goes back to 18th century Dutch ruled Batavia, was borrowed and adapted by our British colonial masters to suit conditions prevailing in the Ceylon of 1806. What was a convenient and quick solution to an issue of Muslim social and religious management by an alien power, was, after independence, given legislative format in 1951, which in course of time, has become a misogynous instrument of injustice and suppression to Muslim women. Apart from certain marginal changes in the implementation of the act the substance of it remained almost intact since colonial times.

At last in 2009 an eighteen member committee chaired by a former Supreme Court judge, Saleem Marsoof, was appointed to investigate the issue and report to the government. After nine years of deliberation, wrangles and gestation the chairperson handed in the report to the female Minister of Justice in January 2018. Justice Marsoof also submitted a dissenting report apparently engineered by the All Ceylon Jamiyyathul Ulama (ACJU), whose president was also a member of that committee. It took another six months for the ministry to release that report to the public.

On July 24th the Muslim members of Parliament (all males) appear to have met ACJU for further discussion. What is shocking in this saga is the inordinate delay and inaction on the part of the President, the Prime Minister and his cabinet ministers on a matter that is so vital to the status and lives of almost one half of the country’s Muslim population. Is this because the victims are Muslim women? Or, is it because the government is concerned about the Muslim vote bank controlled by ACJU? In any case, who gave the mandate to ACJU to dictate terms to legal experts and intellectuals on a matter in which ACJU has no monopoly of expertise?

How backward looking this institution is evident from the name itself. The so called apex body of the ulama prefers to situate itself in colonial Ceylon rather than in independent Sri Lanka. It also has no place for female ulama within its membership, because it does not consider women eligible to become alims. The country is yet to see its first Muslim female religious scholar. This is in total contradiction to the history of Islamic scholarship which produced some eminent female religious scholars such as Amrah bint Abdur Rahman, Umm Darda, Fatima bint Ibrahim b Jowhar and Ayesha bint Abdul Hadi to name a few, and who taught even male imams in Damascus. It is a shame that when women are leading prayers in mixed congregations in other parts of the world, in Sri Lanka even working Muslim women are not allowed to attend mosques to perform their daily prayers. This is another battle awaiting Muslim women in the country.

It is also disappointing to note that instead of hearing deafening noises in support of reforming MMDA there appears to be a conspiratorial silence on the part of Muslim intellectuals on this matter. Are they afraid of a fatwa from ACJU? By allowing the politicians and mullahs to decide the marital conditions of Muslim women the intellectuals are betraying the social trust and contract bestowed upon them by the community. This is yet another reflection of the pathetic condition of Muslim leadership in the country.

If only 19 prisoners are handpicked for execution it is akin to Gota’s mass murder of Welikade prisoners ! No law permits that

-Wimal Dheerasekera analysis

(Lanka e News -30.July.2018, 7.00AM) The cabinet decision conveyed at the media briefing Wednesday (25) confirmed that the 19 heroin dealers in jail shall be executed .To president Pallewatte Gamarala implementing the capital punishment is more important than the GSP plus concessions which have already proved to be a boon to the country . Gamarala’s stubborn as a Mule attitude is because his son is addicted to drugs .This is what has made him most vindictive and venomous against the drug dealers while showing least concern for the country. It was reported again that the cabinet has given unanimous approval for the president’s decision.

However following the cabinet decision yesterday , to us as civilized humans a number of questions have sprung up to which answers have to be sought …....

Prologue..

It is a well known fact even the barbaric practice of pounding infants in mortars was lawful in Sri Lanka during the period of the grandfathers and great grandfathers of the present elderly generation . Incidentally , the grandfather of the writer was born in 1895.

When the infant of Ehelepola of Kandy was killed by pounding in a mortar in 1815 by the mother of the child who was made to do it, the great grandfather of the writer was a youth. After that cruel episode when King Sri Wickrema Rajasinghe was taken as prisoner by ship by the British to Goa ,his physician asked the King , why was such a cruel punishment meted out ?

The king very simply answered , the Sinhala rules of the kingdom were not made by him , and he only implemented the decision approved by the then cabinet in accordance with the rules ( Read Dr. Marshal’s diary ) .

In the past people were killed according to whims and fancies under various pretexts : Those killings included the ‘death to traitors’ label fastened on the victims by the Left after using the word ‘discard’ (iynkireema). ( The word ‘discard’ was coined by Rohana Wijeweera. Interestingly , the writer heard this word for the first time from the mouth of Wijeweera).

During the Rajapakse era , those named by them as traitors were killed freely and unlawfully using the term’ knock off’ (gahaladhemeema)

While parading most pompously as their own after borrowing what belongs to others , Sri Lankans are a breed which chooses the most easy primitive system- dying rather than living when trying to solve problems .This was the system to which the rulers, groups with opposing views, Leftists, revolutionaries, and the ordinary people were accustomed . If it was not so , this tiny Island will not have earned the inglorious distinction as the country with the highest suicide rate. This is because of the deeply embedded notion among them that the easiest way to resolve an issue is through death.

When president Gamarala learnt his son is addicted to drugs , he panicked and got agitated so much so that he is getting ready to kill 19 prisoners charged with drug peddling. Now it is being said the unanimous support of the cabinet of the consensual government has been obtained for this.( Coincidentally , it is noteworthy it was the cabinet at that time which was the cause of embarrassment and humiliation of Sri Wickrema Rajasinghe too ,who like a beast killed infants within jungles)

Dissecting the issues ..

If the government is to introduce death penalty as a matter of policy , that law should apply to all equally and indiscriminately. A civilized government cannot therefore save the lives of only those it fancies , while picking and choosing for killing those whom it resents.

Yet based on another news report it was most clearly enunciated by the cabinet spokesman, when implementing the death sentence delivered by the courts , only some drug dealers are to be executed , that is only the 19 culprits named by the police intelligence division shall be executed.

This is unlawful, a wrong method and unethical.

According to the country’s laws , after the death sentence is delivered by court , it is implemented only when the president signs it and the laws have laid down the procedure for that. He cannot therefore pick and choose those sentenced for signing.

Before the president places his signature approving the death penalty of a particular individual he must call for reports from four ‘sides’and get their unanimous consent . The four are : the chief justice , the Attorney General , minister of justice and the panel of judges or the judge that delivered that verdict.

Hence, though the court delivers a verdict of death sentence , four more parties should confirm that the verdict is correct . It is then and only then the president can give his consent to the death penalty.There is no other procedure than this under Sri Lankan laws. Therefore the president cannot assign this task to another committee as revealed by him recently at the Moragahakande reservoir .If he wishes to do that there must be a constitutional amendment or a new enactment shall be passed.

In the circumstances , if death penalty is to be implemented in accordance with what the cabinet spokesman revealed , that can only be done only on the lines of the procedure in the aforementioned paragraph , and there is no other option.

The question is why neglect to state this….

What is being said is , capital punishment shall be implemented against the 19 prisoners because they are continuing to engage in drug business while they are already serving sentences for drug offences in jail. This premise is weird and most rudely shocking for while saying this , those who are serving death sentences for murder are not being executed !

A fresh case ought to be heard.

Under these circumstances , it is nothing but fair that a fresh case is heard against those who have allegedly engaged in drug deals while being in jail , and in addition a separate investigation is carried out. In that event without any doubt all the groups including prison officers who aided and abetted the drug dealers within prison shall also be incriminated when new charges are filed. Otherwise than that nobody has any legal right to execute anybody summarily. What is important is , without singing stupid senseless bailas, implement the death sentences passed on all those found guilty without exception in accordance with the law.

On the other hand, if only 19 individuals are to be executed because the police information service wants to, it is akin to Gotabaya Rajapakse sending the forces unlawfully into the prison and killing a group of prisoners including those charged with drug offences , as well as the murderers who allegedly killed the Kotte Vihara monk when they went to the Vihare to rob the sword at the behest of Rajapakses.

The final question….

In case it is another prisoner ( and not those on whom death sentence has been served) engaged in drug business within prison , that is , he is an individual who is in jail serving a sentence of about 15 years , and embarks newly on drug business while being within prison , what has this group for execution got to say?

Finally , the following pertinent questions crop up…

In case if it is a prisoner who engaged in drug business other than the group of 19 prisoners referred to who are sentenced to death , what is the position ? If the prisoner who is facing charges of robbery or any other and jailed for 15 years or thereabout , starts drug business newly while in jail , are these ‘gentlemen’ clamoring for capital punishment going to implement the death sentence against him? How can death penalty be implemented without a trial ? If not , is he going to be permitted to go on with his drug business while he is in jail? Surely these ‘gentlemen’ must furnish answers to these questions.

Conclusion

It is to be noted all the prisoners on whom sentences have been delivered are under the custody of the courts . The prison officers are only protecting that custody .If the accused who is meted out punishment is not rehabilitated , and continues to commit the offence time and again , that responsibility should be shouldered by the courts and the prisons, in other words , the government.

In the circumstances the civilized citizens therefore cannot permit the president to wreak havoc simply because he wants to earn cheap popularity or pay off a personal grudge taking advantage of a responsibility that has not been duly discharged by the government.

This is most imperative because if a local ‘Gotler’ alias ‘Hitler’ emerges and comes to power he can use this pernicious precedent to swell his already swollen head to the point of explosion and lead the country into a volcanic eruption. .

By Wimal Dheerasekera

Translated by Jeff

Connected report ..

President stubborn as a Mule: Capital punishment even at cost of GSP ; to kill 19 based on specific choice!

---------------------------
by (2018-07-30 02:30:26)

If only 19 prisoners are handpicked for execution it is akin to Gota’s mass murder of Welikade prisoners ! No law permits that

-Wimal Dheerasekera analysis

However following the cabinet decision yesterday , to us as civilized humans a number of questions have sprung up to which answers have to be sought …....

Prologue..

During the Rajapakse era , those named by them as traitors were killed freely and unlawfully using the term’ knock off’ (gahaladhemeema)

While parading most pompously as their own after borrowing what belongs to others , Sri Lankans are a breed which chooses the most easy primitive system- dying rather than living when trying to solve problems .This was the system to which the rulers, groups with opposing views, Leftists, revolutionaries, and the ordinary people were accustomed . If it was not so , this tiny Island will not have earned the inglorious distinction as the country with the highest suicide rate. This is because of the deeply embedded notion among them that the easiest way to resolve an issue is through death.

Dissecting the issues ..

This is unlawful, a wrong method and unethical.

The question is why neglect to state this….

A fresh case ought to be heard.

The final question….

Finally , the following pertinent questions crop up…

Conclusion

By Wimal Dheerasekera

Translated by Jeff

Connected report ..

President stubborn as a Mule: Capital punishment even at cost of GSP ; to kill 19 based on specific choice!

---------------------------
by (2018-07-30 02:30:26)

Democratic Decay: Examining Sri Lanka under the Rajapaksa Government

Featured image from the Sunday Leader

DINITHI DE ALWIS- 07/30/2018

The phenomenon of democratic decay has gained attention around the world by various different academics, especially in light of countries such as Poland, Hungary and the United States. Scholars such as Tom Daly, have understood ‘democratic decay’ as an overarching umbrella term for the general decline in the quality of democracy of younger and long-established democracies, which do not qualify as full democratic breakdowns. I believe that this framework is an important way to analyse how post-war, Rajapaksa executed a hybrid-playbook narrative, consisting of both legal changes and explicit manipulations of practice to deliberately undermine democratic institutions. This particular time frame illuminates how in comparison to any other period in Sri Lanka, the Rajapaksa regime, exacerbated decay.

Democratic Decay Examining Sri Lanka under the Rajapaksa Government.docx by Thavam on Scribd

A powerless Parliament and all powerful PCs

New draft constitution - Part 2

By C.A.Chandraprema-July 30, 2018,

(Continued from last Wednesday)

We pointed out last week that in terms of the Government’s proposed draft constitution, prepared by a panel of experts for the Steering Committee of the Constitutional Assembly, the executive presidency is to be abolished and the Prime Minister is to be the head of the government and the Cabinet. The President will be obliged to carry out his duties on the advice of the Prime Minister except in instances where discretion is expressly vested in the President. One of the instances when discretion is vested in the President is of course in appointing the Prime Minister. The proposed draft constitution says that the President shall appoint as Prime Minister the Member of Parliament, who in his opinion ‘enjoys the confidence of Parliament’. However, this discretion ceases to operate when a political party has obtained more than 50% of the total number of seats in Parliament, and where such party had nominated its Prime Ministerial candidate at the time of tendering of nominations. In such instances, the President is obliged appoint such person as Prime Minister without the requirement of an election by Parliament.

When Parliament meets for the first time after a general election, immediately after the election of the Speaker, Deputy Speaker and Deputy Chairman of Committees, a resolution of confidence in the Member appointed as Prime Minister shall be moved. If the vote of confidence is not passed by a majority in Parliament, the Member already appointed Prime Minister, shall cease to hold office, and Parliament shall elect one of its Members to be Prime Minister. The election of the Prime Minister by Parliament shall be on the exhaustive ballot system where if one candidate does not get an overall majority, the candidates with the lowest number of votes is eliminated from the race and a further round of voting takes place until somebody gets an overall majority. The Prime Minister will be vested with the power to appoint and remove cabinet ministers, state ministers and deputy ministers according to his will.

The total number of Cabinet Ministers is to be limited to 30; and non- Cabinet Ministers and Deputy Ministers limited to a further 30. Where Parliament passes a motion of no-confidence against the Government, by a simple majority of the whole number of Members of Parliament (including those, not present) the Cabinet of Ministers shall stand dissolved, and a new Prime Minister and Cabinet of Ministers appointed. The Secretary to the Cabinet, Secretary to the Prime Minister and the Secretaries of all Ministries will be appointed by the Prime Minister.

Limiting powers of ‘Central Legislature’

Parliament is referred to in the draft constitution as the ‘Central Legislature’ which gives one a fair picture of the general trend in these constitutional proposals. This ‘Central Legislature’ is to comprise of the Parliament and the Second Chamber. Parliament shall consist of 233 Members and its term is to be five years. The President may dissolve Parliament if 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. In the first two years of the Parliament, if the Government is unable to secure the passage of an appropriation Bill after three attempts, the President shall dissolve Parliament. After the first two years, if the government is unable to secure the passage of an appropriation Bill after two attempts, the President shall dissolve Parliament. A proclamation dissolving Parliament will also fix the date for a general election and summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.

The Second Chamber shall consist of 55 members 10 members of who are appointed by Parliament and the remaining 45 as five each by the nine provinces. The Second Chamber shall exercise oversight and other functions as may be provided by the Constitution, by law, or by the Standing Orders of Parliament. Every Bill shall he published in the Gazette at least 14 days before it is placed on the Order Paper of Parliament. Upon a Bill being tabled in Parliament, such Bill shall be referred to the Second Chamber, and placed on the Order Paper of the Second Chamber, at its next sitting. The Second Chamber shall consider such Bill, and shall return it to Parliament within one month specifying areas where reconsideration is necessary. The draft constitution states that "Prior to enacting the Bill into law, Parliament shall give due consideration to the views of the Second Chamber". However the term ‘due consideration’ has not been defined.

The Central Legislature has exclusive power to make laws, including laws having retrospective effect, with respect to any of the matters enumerated in the National List. However, when enacting laws on subjects coming under the provincial list, each and every Provincial Council will have to agree to the enactment of such a law. If all Provincial Councils are not in agreement then such laws can be passed only with a two-thirds majority in both houses of Parliament plus a referendum. Under Article 154G(3)(b) of the present Constitution, Parliament can make any law applicable to the subjects on the Provincial Councils list with just a two-thirds majority. However the new constitution seeks to make this virtually impossible by placing three major hurdles in the way of Parliament when legislating on subjects coming under the provincial councils list. Such a law will firstly need a two-thirds majority in Parliament, then a two-thirds majority in the Second Chamber and then approval by the people at a referendum.

Even in the event that the central authorities do manage to get a law relating to a matter on the provincial councils list passed in this tortuous manner, the provincial councils will still be able to pass statutes on the same matter and the statute passed by a provincial council (with a simple majority) will always override the central authority law passed with two-thirds majorities in both houses of Parliament as well as a referendum! Thus what the new constitution seeks to do is to create a federal state in Sri Lanka with the ‘central legislature’ virtually powerless to make laws on subjects coming under the provincial councils. It is in this context that the shift in this draft constitution from administrative districts to provinces becomes all the more relevant. The province is to become the basic unit of reckoning even when electing MPs to parliament.

What is envisaged are virtually independent provincial units tied to the centre with the flimsiest of bonds that can be shaken off at will. When it comes to the concurrent list, Parliament can make laws on matters coming under the concurrent list only after such consultation with all Provincial Councils. The word ‘consultation’ has not been defined but given the tenor of the draft constitution the word undoubtedly means ‘agreement’. If even one PC does not agree, the power of Parliament to make any law on a subject coming under the concurrent list will be called into question. What this does is effect is to transfer all powers on the concurrent list to the PCs. Under Article 154G(5)(a) of the present Constitution, Parliament may make laws with respect to any matter set out in the Concurrent List after such consultation with all Provincial Councils ‘as Parliament may consider appropriate’ in the circumstances of each case. Note the phrase ‘as Parliament may consider appropriate’ which confers the authority on Parliament. Moreover, under Article 154G(6) of the present Constitution, if any provision of a statute made by a Provincial Council is inconsistent with the law made by Parliament, the provisions of the provincial statute will be void.

Judicial review of legislation

The limitation of the powers of the central legislature under the proposed draft constitution becomes even more evident when it comes to its power to determine national policies. The proposed draft constitution states that the Cabinet may formulate national policy on a subject in the provincial list only if such matter cannot be effectively dealt with by the legislation of an individual province, or the maintenance of legal or economic unity, especially the maintenance of equivalent living conditions beyond the territory of a Province necessitates it. In formulating national policy on any matter in the provincial list, the Cabinet has to adopt a participatory process with the Provincial Boards of Ministers. Even after the formulation of national policy by Cabinet on a matter in the provincial list, the respective Provinces shall continue to exercise the relevant executive or administrative powers in respect thereof. The formulation of national policy will override statutes enacted by a Provincial Council in respect of matters in the Provincial List only if the law is passed with a two-thirds majority in both houses of Parliament plus a referendum.

Parliament may by law prescribe national standards, where minimum standards are necessary to ensure the enjoyment by citizens of a reasonable minimum standard of living throughout the country; and the minimum standard of state service delivery throughout the country; or a reasonable minimum standard of environmental protection throughout the country. The power to prescribe national standards will not deprive the respective Provinces of their legislative and executive competence. The central government may also prescribe national standards by way of regulations under authority of law. However, such regulations shall not be valid unless approved by both Houses of Parliament. Furthermore, the substantive and procedural validity of such regulations may be challenged in the Constitutional Court.

Under the present Constitution, no court of law can inquire into an Act passed by Parliament. But under the proposed draft constitution, the Constitutional Court is to have the power of judicial review and they can strike down a law passed by Parliament or any of the provincial legislatures. This will be a major new development the implications of which are hard to foresee. The Constitutional Court will however not be able to call into question a Constitutional Amendment once it is passed. As in the present Constitution, the proposed draft constitution also provides that if the Cabinet has certified that any Bill is intended to be submitted for approval by the People at a Referendum, in addition to obtaining a two thirds majority in both houses of Parliament, it shall not be necessary to refer such Bill to the Constitutional Court. The new features that are to be introduced with regard to the legislature through this proposed draft Constitution will be as follows.

=A bicameral legislature instead of a unicameral legislature as at present.

=Severe restrictions on the law making powers of the central legislature and the solidifying of the powers of the provincial councils.

=Severe restrictions on the central executive and central legislature in formulating national policies and standards.

=Judicial review of all legislation except for constitutional amendments.

(To be continued)

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Tuesday, July 31, 2018

Prologue..

Dissecting the issues ..

This is unlawful, a wrong method and unethical.

The question is why neglect to state this….

A fresh case ought to be heard.

The final question….

Conclusion

By Wimal Dheerasekera

Prologue..

Dissecting the issues ..

This is unlawful, a wrong method and unethical.

The question is why neglect to state this….

A fresh case ought to be heard.

The final question….

Conclusion

By Wimal Dheerasekera

Masters of Money: Marx (3/3 BBC) .avi

தமிழோசை*සංදේශය BBC SINHALA

Nimalka Fernando speech

தமிழோசை

*සංදේශය
BBC SINHALA