Monday 1 June 2020

Gajalakshmi Paramasivam

01 June  2020

Constitution  - The Intervenient Petitioner?

On 30 May 2020, I wrote as follows, under the heading ‘Dual Citizenship Dismissal of  Mr Premadasa’s group’:

 [Mr Premadasa had the duty to resign as leader of the Opposition and from UNP membership before registering as member  of another Political Party.]

Back then I did not know the provisions of the law and did not check the Constitution. It was a warning from my belief in UNP’s democratic leadership. This morning I read through the Sunday Times political editorial  headed ‘UNP-SJB battle will aggravate when polls campaign begins’ and realised that that Political editor’s fundamental belief was different to mine. There was always the possibility that I was wrong in Sri Lankan context. The editorial begins with the following:

[Last Tuesday, the five-judge Supreme Court bench was in session hearing arguments over fundamental rights petitions on the conduct of parliamentary elections and related issues when the unexpected happened.
From an upper ceiling window, a white pigeon, usually regarded as a symbol of peace, fell on the floor, ahead of the justices’ table. Additional Solicitor General (ASG) Indika Demuni de Silva, was on her feet and was prompted to say; “There is a spectator.” A lawyer seated in the petitioner’s bench quickly quipped; “There is a peace dove intervenient petitioner.”
The octagonal ceremonial sittings space in the superior courts complex had been chosen for the SC sittings. Air conditioning was switched off and a few pedestal fans had been placed to keep the temperature low. Other arrangements showed that health guidelines were being strictly followed in view of the Covid-19 pandemic. A court staffer carried away the poor fallen dove, but the small event portrayed a monolithic landscape.]

That poor fallen dove was the Belief in the Constitution. The lawyer stating that the dove was the intervenient petitioner was on the basis that the Dove represented Peace. At the deeper level – in a court of law the law is the pathway to peace. Since these are  fundamental rights petitions – the Constitution was represented by the Dove. In other words, one needs to respect the Constitution to contribute to peace through the case.

The Free Dictionary presents the legal  interpretation of the term ‘intervene’ as follows:

[To obtain the court's permission to enter into a lawsuit which has already started between    other parties and to file a complaint stating the basis for a claim in the existing lawsuit. Such intervention will be allowed only if the party wanting to enter into the case has some right or interest in the suit and will not   unduly prejudice the ability of the original parties to the        lawsuit in conducting their case. Example:      Little Buttercup Butter Co. has been sued by   Market Bag Grocers for selling below standard butter.    Better Buy Market has also been     buying Buttercup's butter, and wishes to intervene (join in the lawsuit) to avoid either a loss   by Market Bag which would affect Better Buy's possible claim, and also to avoid two              separate suits. Or another butter company might want to join the suit on Buttercup's side in  order to put up a united front with Buttercup against the markets. ]

The fundamental rights case before the Judiciary is about elections. But there was already an issue with the SJB candidates being in two parties when submitting their nominations. Article 91(1) (b)(ii) of the Sri Lankan Constitution – under chapter headed ‘THE FRANCHISE AND ELECTIONS  - states:

[91. (1) No person shall be qualified to be elected as a Member of Parliament or to sit and vote in Parliament –
 (b) (ii) if he - stands nominated as a candidate for election by more than one recognized political party or independent group in respect of any electoral district, ]
Basically, membership with a political party is through belief. As political parties – SJB headed by Mr Premadasa is independent and Equal to UNP headed by Mr Wickremesinghe. The Sunday Times Political editorial presents the following:
[Whilst an SC ruling is expected, political activity is heating up between the two main Opposition political parties – the United National Party (UNP) and its offshoot, the Samagi Jana Balavegaya (SJB). In a surprise move, notwithstanding the awaited ruling from the Supreme Court, UNP General Secretary Akila Viraj Kariyawasam issued a news release on Wednesday about the cancellation of party memberships of those whom he says have “violated the party constitution.” In effect, he is referring to SJB leader Sajith Premadasa and his backers who have handed in their nominations as Balavegaya candidates. It appears that UNP lawyers had wanted the move done before June 2, the date by which the party says the proclamation of March 2 dissolving Parliament expires.]

Wikipedia presents the following timeline about SJB:

·       30 January 2020 - United National Party working committee approves Sajith Premadasa as leader of the new alliance and its Prime Ministerial candidate.
·       11 February 2020 - Election Commission has accepts the appointment of Opposition Leader Sajith Premadasa as the leader of Samagi Jana Balawegaya and Ranjith Madduma Bandara as General Secretary.
·       13 February 2020 - Jathika Hela UrumayaSri Lanka Muslim Congress and the Tamil Progressive Alliance announce its support to the new alliance.
·       19 February 2020 - United National Party working committee approves the swan as the symbol of the alliance.
·       2 March 2020 - Party was officially launched at Nelum Pokuna Colombo. 
·       9 March 2020 - SJB opens its Headquarters at No 815, E.W. Perera Mawatha, Ethulkotte.
·       10 March 2020 - SJB select Telephone as its election symbol.
·       19 March 2020 - Party handover nominations for 22 districts for 2020 General Elections.

It was in breach of ethics  of the Universal Franchise for  the Election Commission to accept the registration of a new party (SJB) headed by someone who was holding a seat in the then (11 February 2020) current parliament under the grouping of another party (UNP).

The franchise of the electorate was given in the last elections to UNP candidate. Mr Premadasa the UNP candidate is different to Mr Premadasa the SJB candidate. The People have not given the latter the Franchise. In essence article 91(1) (b)(ii) of the Sri Lankan Constitution was violated when the Election Commission accepted the party SJB while Mr Premadasa was still holding a seat in Parliament as a UNP candidate. This to my mind was why Mr Mahinda Rajapaksa had Dr G L Pieris as his proxy, presented as follows in my article of 30 May – under the heading Dual Citizenship Dismissal of  Mr Premadasa’s group’:

[Mr Premadasa had the duty to resign as leader of the Opposition and from UNP membership before registering as member  of another Political Party. This was an issue when SLPP was formed with Mr Mahinda Rajapaksa as the real invisible leader and Dr G L Pieris became his proxy. By becoming leader of a party that did not exist in 2015, Mr Premadasa was in breach of the Doctrine of Universal Franchise which prohibits dual forms of belief. A belief expressed at primary level can have only one form. This is why we cannot vote for two or more contestants in the one election. This is why, in democracy one who has dual citizenship cannot be in Parliament. ]

The Sunday Times reports as follows:

[On Friday, the UNP Working Committee was hurriedly summoned and party leader Ranil Wickremesinghe read out a statement outlining the reasons why party members who have submitted a separate list to contest the forthcoming general election should be suspended from the party.  Party senior and former Minister John Amaratunge presented the motion to suspend 99 such party members and former minister  Vajira Abeywardena seconded it.
First to the UNP statement: “A group of UNP members have taken the membership of another party and have handed over their nominations to contest for the upcoming general election. Any UNP party member who becomes a candidate through another political party by signing nominations or hope to sign nominations, should obtain prior approval of the Working Committee in writing according to section 3(c) of the party constitution. Any of the members involved in actions leading to the controversy has not acted according to the earlier mentioned section 3(c) as well as has not obtained any written prior approval from the Working committee.]

If indeed the UNP’s Constitution provided for such nominations after approval – that is also in breach of the above article. And they were the architects of the 19th Amendment to the Constitution. The wonderful way of belief is that the belief leads you.

As shared recently – we had an issue with Strata Management about renovating our bathroom. They said that we needed to pay for a special by law. I asked them for similar approval for others before us. But they insisted on the by law. I decided to give up and endure the pain of denial. But my intuition kept urging me and I went deeper into the law and definition of ‘common property’ according to which we did not need any special approval. We were challenged on the 1st day when our contractors arrived. But I refused to obey. To prevent violence – I asked our contractor to leave – saying I would compensate them and claim damages from the Owners’ Corporation. Then  the person got on the phone and after that said to go ahead. Now the lawyers have advised that we did not need special approval. To me that was because

(i)             I respected the law and fulfilled my duties as per the law
(ii)           I felt ownership in the Owners’ corporation

Sri Lanka is the parallel of the Owners’ corporation. The UNP is my parallel and the SJB is the parallel of a new unit owner within the Owners’ corporation. Neither leader has proven to have the empowerment of Belief in the lawful pathway. The value of the franchise they receive is also limited to their belief in law. This was why the dove intervened.
All those who became members of SJB have no authority to hold membership in the UNP – even if the UNP constitution permits it. If it does it is like the above claim that I needed a special by-law to renovate my bathroom.

A well wisher suggested ‘Please give the Nothern  citizens an opportunity to read and write as all of them am sure are skilled, but do not have access to any avenues that can improve them. A newspaper, devoid of political and ethnic issues, which can provide education - education for improvement of life skills, education for better agriculture, education for better entrepreneurial knowledge, education on small scale industry, education on good business practices such as financial management, marketing, personal/personnel management

My article facilitates those beyond the community to learn and bring logic into their participation in politics through which we merge with each other’s mind. The law of global standards helps us to merge with wider world beyond Sri Lanka.  

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