Gajalakshmi Paramasivam

02 December 2018

Rebirth time for Sri Lanka

This morning half way between my work – I suggested to my husband that we would have fresh bread for brunch. I had in mind bread rolls. My husband brought home sliced bread for me and rolls for himself. I said that after all these years – he still could not read my mind at the current time, in terms of food. He started explaining as per our usual practice - which to him was my agenda/budget. But to  him – his current wish was the driving force. Thus he divided and ruled.  The Constitution, like the Budget  is the Common menu. The actual practice was separated by one who lacked Common life with the other. I use this family example to present my true view about the current Lankan crisis at government level - for those who seek to add their Truth at their respective levels which then naturally supports every true believer in Sri Lanka. At birth, our base as individuals is in our makeup – as determined before we were born. As we stay in Truth – we restructure ourselves – as if we are reborn. Likewise a nation. The Constitution is the horoscope  of the nation / the karmic picture of the individual at the time of birth. The environment in which we are born is part of the Sovereign structure that we carry at the time of our birth.  Those of us who are driven more by Truth – continue to carry that Sovereign power in all our environments even when majority around us fail to recognize this as such. A citizen must therefore restructure her/himself as per her/his Truth, in order to be a natural representative of Sovereignty.

As I read the Ground Views article ‘The Removal of the Prime Minister and the Dissolution of Parliament: A Legal Opinion’ I reserved my approval on the basis that it was not inclusive of Belief of the Common Sri Lankan – represented by an elected President. I was also conscious of the fact that the following team did not seem to include members of minority communities. The team has been described as follows:

[This legal opinion was prepared by Gehan Gunatilleke, Dinesha Samararatne, Kalana Senaratne and Asanga Welikala in response to a request made by Dr Jayampathy Wickramaratne, P.C, Member of Parliament.]

The first question was ‘Did the withdrawal of the United People’s Freedom Alliance (UPFA) from the National Government result in the vacation of the post of Prime Minister?’

The response begins as follows:

[There is no constitutional provision that stipulates that the withdrawal of one party in a coalition forming a National Government has the effect of dissolving the Government or the Cabinet of Ministers, or the office of Prime Minister becoming vacant. Article 46 (4) and (5) of the Constitution, which deals with a National Government, makes no reference whatsoever to such consequences.]

At the root of majority rule in democracy is the value that the party with majority in Parliament is taken to have the confidence of the People and hence is taken to have the authority to form government. I could not find specific provision for this in the Constitution and the above legal team has also not highlighted it.  Neither could I find a specific provision regarding who becomes entitled to leadership of the Opposition. The problem actually started with Opposition Leadership – to which Mr Rajapaksa attached himself on de facto basis. But Tamil leadership in Parliament confirmed the Common Sri Lankan. One has to lose / renounce that which we think we have – to become Common. Mr Rajapaksa gained status by making himself Joint Leader and therefore demoted the structure of the whole Government.

The Common Sri Lankan needed to work out from the structure that evolved as per the elections – the problems that were submitted to - the Lord / Truth / Court of Natural Justice. That is the judgment of the People – which if based on Truth – would support any natural law. If Tamils were overwhelmingly in support of a military solution and therefore  Separation – as per their true experience – they would not have voted for Mr Sirisena or any Sinhalese leader.   By voting to oust Mr Rajapaksa and the Executive Presidency – Tamils voted for Equal Opportunity under Democracy. Whoever crafted the 19^th Amendment failed to recognize this need by minorities. But Truth never forgets.

Thus, Mr Rajapaksa who kept promoting himself to de facto status in Opposition – also promoted himself to Prime Ministerial position.

The above legal team however highlights through the second question and response their belief in law:

Q - Is the President empowered by the Constitution to appoint any Member of Parliament as Prime Minister, who, in his opinion, is most likely to command the confidence of Parliament?

R:[ ……………… It should be added that as a consequence of the presidential two-term limit being reintroduced by the Nineteenth Amendment, the President should not appoint a Member of Parliament to the post of Prime Minister who is constitutionally disqualified from assuming the presidency in a situation where that office becomes vacant before the expiry of the incumbent’s term of office.

One of the critical – but much ignored – aspects of the purported appointment of Mahinda Rajapaksa MP as the Prime Minister is the fact that he is disqualified from holding the office of President, since no person who has been elected twice to the office of President is qualified to be elected to such office (see article 31(2) and article 92(c)). Where the office of President becomes vacant, Parliament elects as President one of its Members who is qualified to be elected to the office of President for the unexpired period of the term (article 40(1)(a)). This clearly disqualifies any person who has been twice elected from assuming the office of President in this particular situation.

We highlight this issue, simply to make it clear that the decision to appoint a new Prime Minister on the 26th of October failed to consider the broader legal and political factors that deserved the serious attention of the President.]

Article  37 provides as follows:

[37. (1) If the President is of the opinion that by reason of illness, absence from Sri Lanka or any other cause he will be unable to exercise, perform and discharge the powers, duties and functions of his office, he may appoint the Prime Minister to exercise, perform and discharge the powers, duties and functions of the office of President during such period and may also appoint one of the other Ministers of the Cabinet to act in the office of Prime Minister during such period : Provided that if the office of Prime Minister be then vacant or the Prime Minister is unable to act, the President may appoint the Speaker to exercise, perform and discharge the powers, duties and functions of the office of president during such period.]

As stated by the above team of lawyers – Article 31 (2) does prohibit a President who has already been president for two terms, from standing for Presidency  again. Article 37 however is an indirect application which by ‘purpose’ excludes such a person. Motive is usually taken as the causal force of a crime.  Calculated motive could be assessed through intellectual reasoning / logic. But where it is not calculated it is taken to be due to one’s karma / genes / permanent feature – Piravi Kunam (birth trait) in Tamil. If overriding the law  has become a leader’s Piravi Kunam – then one needs to address the issue at its roots – i.e. through belief and not by intent.

Lord Krishna explains this through the Wish Fulfilling Tree / Kalpagatharu.  Krishna says to Arjuna and through Ajuna to us – that the ‘roots’ of this tree are in the sky – the 5^th natural element – where the environment is still / zero. Hence the zero base start in democratic Budgeting. Whatever happened before then is taken to be of infinite value. Lord Krishna says to cut that tree – that is hanging upside down – so the fruits fall to the Earth but the root remains in the sky where it never decays. The root is permanent when there is no pain and no gain. That is when one transcends relativity. When one is reborn in the same environment – where one’s contribution was negative – it would be difficult to provide a structure that is ‘sovereign’. Hence there is bound to be a different environment for those with wide gaps between themselves and the common person in that environment. Such changes are brought about through Constitutions in the case of nations.  

In the case of actions, if someone acts due to that root and not for profit – that person should not be punished but set aside – even if the law says s/he is punishable. Hence immunity to governors and diplomats. This is also the reason why mentally ill are exempted from punishment. One who stays within her/his belief only,  should not be found fault with.

The Executive Presidency suits someone who actively uses her/his intellect to lead. Her/his belief keeps her/him rooted to the common base. One whose intellectual pursuit is stronger than her/his belief,  develops the tendency to gamble. This is what happened in Sri Lankan leadership.

If some parts of the cause  of such gambling with the Constitution are in the respective roots, then we need to ‘separate’ them – as in Divide and Rule – at structural level. This usually is needed when the leader of the whole is driven by immediately visible  outcomes rather than belief. Where the former is stronger than the latter – the whole naturally divides and subdivides due to laws of Nature / Truth. Where belief is the driving force that person is self-governing. Hence devolution of power is needed to confirm the sustainable part’s Sovereignty.

The 19^th Amendment failed to confirm the contribution by Truth that surfaced through elections – that Tamils as a community are Sovereign and since this was denied by the Government – they evolved as Equal Opposition. There is no confirmation of this in the 19^th Amendment.

Hence this de facto governance which is like hand to mouth living has become reality of Sri Lanka.

Had  Dr Jayampathy Wickramaratne, P.C, Member of Parliament who is one of the leading architects of the team that drafted the 19^th Amendment included at policy level – the belief of a member of the Tamil community to actively provide the ‘other side’ and limited the intellectual height of the Constitution to that belief – the Government would have been protected from the infection of de facto leaders driven by immediate outcomes. The basic requirement is belief in the whole with minority looks and intellectual ability to express at the topmost  level. Gandhi had both – the grassroots looks and knowledge of law at the highest level needed by India.

Where there is clear opposition group their belief based contribution is the highest level at which the Constitution has Sovereign powers. Whether it is the Constitution or the above team – providing feedback – it is limited to majority race for its Sovereign power. The rest is gambling for one side and mental depression  for the other.