Thursday 14 November 2019

Gajalakshmi Paramasivam

14 November  2019


The Daily Mirror report headed ‘SC appeal rekindles challenge to Gota’s Sri Lankan citizenship’ confirms that the two civil society petitioners have appealed to Sri Lanka’s Supreme Court, in relation to the judgment delivered by the Court of Appeal. The report includes the following:

[On Friday, 4 October, after several days of hearings, a three-judge bench of the Court of Appeal dismissed the application. The bench comprised Court of Appeal President Yasantha Kodagoda and Justices Mahinda Samayawardhena and Arjuna Obeysekere. 
A detailed written order was issued by the court a week later, in which the bench stated that President Rajapaksa was the “repository” of executive power under the Constitution and was able to lawfully exercise the powers vested in a minister by law, even before the appointment of a Cabinet of Ministers. The judges also ruled that the two activists had no standing to file the application, should have filed it several years ago, and had made the application for a collateral political purpose.]
A few days prior to the ‘dismissal’ – there was active discussion on Executive Presidency at the ‘Face the Nation’ program -
The question of bicameral structure was also discussed – under the stated need for ‘checks and balances’.
My special attention was drawn to Mr Eranda Ginige who did express a different interpretation to mine in relation to article 9 of the Sri Lankan Constitution.
The last Q & A went as follows:
EG:Finally, when you objectively look at the written history and its archaeological evidence you have to accept that the civilization of this land has been greatly developed by the Bauddha Sasana. A reasonable person would respect and appreciate it's continued value in today's Republic. 

GP :No Eranda. My Sri Lanka was developed by me. I do not know Buddha Sasana. My Sri Lanka is great because I made it so for myself and for all those who are my heirs.
That Sri Lanka has already merged the individual with the common. My question is if you are living in Australia and you have not opposed unjust discrimination in Australia – is it because you are also radical? A radical for benefits – becomes one for its costs or produces one in shared space.

I believe that by our natural constitutions we do unite or separate into various parts of the whole. To my mind, our truth is the basis of our natural constitution. We may give our truth different forms but they would merge naturally at the destination.

To my mind as a family person – Governance is the parallel of Love – which is Absolute power; and Executive is the parallel of Romance which is Relative power.

In the above mentioned ‘Face the Nation’ discussion Mr Ginige gave his interpretation of the Executive – as one who executes and highlighted that there was a discrepancy in that the Cabinet of Ministers acted as both – makers and executors of law. The family parallel are the parents.
The governor in the parent carries Absolute power of belief. This usually is heritage from their parents and ancestors as well as from their own truth as children. The parents have immunity from being questioned by children – due to this heritage.

Then there is the Executive power which is usually carried by the father. The whole family executes but the power is exercised on behalf of the whole family - by the father. This ‘on behalf of the whole is often lost sight of.

Article 4 of the Sri Lankan constitution states as follows:
[4. The Sovereignty of the People shall be exercised and enjoyed in the following manner :–
(a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum ;
(b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People ;
(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law ;]

The People means – one undivided whole. As per the above – a lower reading may lead to the thinking that the Parliament and its Members could interfere with the Judiciary – as per (c ) above.
On 14 November 2018 - Dr Palitha Kohona – a dual citizen - stated as follows at a press conference organized by Eliya Organisation in the aftermath of the Constitutional crisis:
[Finally for those who lament the disruption of the democratic processes and institutions, given the lack of consensus and the impasse the country had reached, the best option was to go to the people and let the people decide. Many would argue that this was the cleanest option under the Constitution. That is the essence of democracy. If the elected representatives, and many in Parliament are appointed not elected, had reached an impasse and the actions of the President were being questioned, the ideal solution would be to go back to the people and let them decide. That is what is being done. A similar situation arose in Australia in 1975. The Prime Minister was sacked by the Governor General. The replacement PM recommended dissolution of Parliament and went on to win the election that followed.]

Given that Dr Kohona was posted to the Australian Permanent Mission in UN Geneva – one would expect Dr Kohona to have some understanding of the above mentioned crisis and how the Constitution of Australia was structured in this regard. Section 61 of the Australian Constitution states as follows:
[Executive power
                   The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.]
The Sri Lankan parallel of the Queen is the President.

The Island article headed ‘Eliya’ to be Gota’s pitch for the Presidency?’ published on 09 September 2017, presents the core purpose and the ‘owners’ of this organization as follows:


[Gotabhaya Rajapaksa’s open foray into politics took place last Wednesday in the form of ‘Eliya’ a new organization that was ceremonially launched at the Golden Rose hall in Boraleasgaluwa. Its launch was in the form of a seminar on the proposed new constitution. The panel of speakers included Gota himself who introduced the new organization to the audience and spoke on why it opposes the proposed new constititution. Ven. Prof. Medagoda Abhayatissa Thera, Dr Dayan Jayatilleke, Rear Admiral Sarath Weerasekera, Dr Seetha Arambepola, Rev. Fr. Wimal Tirimanne, Tamara Kunanayagam, Lawyer Rushdi Habib, and Maj. Gen. Kamal Gunaratne were among the speakers at this event.]

Mr Ginige was also reported to have been present at the 14 November 2018 conference.
If they were common to Australia and Sri Lanka – they would have discovered the following:
[Section 61 vests the executive power of the Commonwealth in the monarch of Australia, and establishes the Governor-General as being able to exercise this power on behalf of the monarch as their representative.  In practice, the Governor-General only exercises this power on the advice of the Federal Executive Council which he or she presides over]

And also:
[Section 61 provides Constitutional legitimacy to certain actions taken by the Executive without any need for Parliamentary or legislative sanction. For example, the Executive may enter into treaties without prior parliamentary approval. It is well settled that section 61 includes the prerogative powers of the Crown, including, for example, the power to enter into treaties. This independence of the Executive was observed by H.V. Evatt in his 1924 doctoral thesis. Evatt suggested that one of the reasons why section 61 was so little studied was that:
Responsible government has to an extent blinded us to the importance of the domain of the Prerogative in which the Executive has still an important independence reserved to it.

Australian activists who felt ‘ownership’ have led to the deeper understanding of Executive Powers. The word ‘Commonwealth’ in Section 61 of the Australian Constitution  is the parallel of the word ‘People’ in Article 4 of the Sri Lankan Constitution. To my mind, S 61 and Article 4 (b) respectively are the parallels of  Discretionary powers provided for in many laws. Where the decision maker / judge is not able to come to a conclusion – by passing the evidence through stated / written laws – discretionary powers facilitate the use of belief in the whole to make the decision / judge. Essential to this is ‘belief’ in the ‘whole’.

If the decision to attack and eliminate the LTTE was through the ‘Executive Power’ as per Article 4 (b) – and therefore was for the Defence of Sri Lanka – then LTTE was a ‘foreign’ power.  Exercise of Executive Power would have then been legitimate as per the Constitution. But to the extent LTTE members were Sri Lankan article 4 (b) empowerment was not applicable. Hence PTA (Prevention of Terrorism Act).

Was the execution  of the Citizenship certificate issued to Mr Gotabaya Rajapaksa by the then President Mr Mahinda Rajapaksa valid under Executive Power as per Article 4(b)? Where Citizenship is covered by written law – this action is not covered by Article 4(b) and therefore the Executive Powers of the President on behalf of the People. Powers under Article 4 (b) cannot be devolved to parts of the whole.

[57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.

The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent]

As per my understanding - the 1975 Constitutional Crisis in Australia happened after 21 blocks to passage of Bills. Then the Governor General as the Queen’s representative as the ‘repository’ of   Executive  powers  of Australian Commonwealth – dismissed Mr Gough Whitlam and appointed Mr Fraser as Prime Minister. Mr Fraser then asked Governor General Sir John Kerr to dissolve parliament as per the above provisions.

I am not aware of parallel requirements in the Sri Lankan Constitution that facilitated  Dissolution of Parliament because the legislature was deadlocked . Differences and disagreements between President and the Prime Minister do not amount to an unworkable parliament. Dr Kohona copied the outcome and claims precedence. The judiciary then did decide that the Sri Lankan dissolution was unconstitutional.

The citizenship  action by Mr Mahinda Rajapaksa was unconstitutional due to the powers being not on behalf of the ‘whole’ of Sri Lanka but on behalf of a particular part – the Department of Immigration – which has powers devolved by the Parliament. No part of it comes under Executive Powers of the whole State.

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