Gajalakshmi
Paramasivam
14
November 2019
EXECUTIVE
PRESIDENCY AND DUAL CITIZENSHIP
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 - https://www.youtube.com/watch?v=H_kOGMCuaR4
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. http://austms.blogspot.com/2019/08/buddhist-radicalism-response-to.html
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:
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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