‘Best Loser’ (Gunawardena) Technique Undemocratic

By Laksiri Fernando

Dr. Laksiri Fernando

Dr. Laksiri Fernando

If 1 desires to modify the nature of a specific democracy, the electoral program is probably to be the most appropriate and successful instrument of undertaking so.” &#8211  Arend Lijphart

Any electoral reform that intends to substantially alter the proportional representation (PR) in Sri Lanka will go against people’ sovereignty. For that reason, any try to do so need to be opposed. This does not imply that the introduction of ‘first previous the post (FPP) constituencies,’ within the current or a new PR system is undemocratic. In reality these constituencies are necessary to improve the elector-elector links for much better democracy and representative accountability.

Among the so far discussed or disclosed proposals, the ‘best loser’ approach linked with the Dinesh Gunawardena (DG) recommendations on mixing (not linking) FPP and PR is the most undemocratic.

There are two primary nations which employ the ‘best loser’ (BL) strategy at present: Mauritius and Japan. It is possible that DG or his advisers picked the technique from Japan than Mauritius since the program in Mauritius has been far more controversial than in Japan and it is in the method of abandoning at present. Italy also employed the ‘best loser’ technique throughout 1993 and 2005 but abandoned it for whatever the reason.

Expertise in Mauritius

When Mauritius received independence in 1967, it adapted this method from the colonial practice of ‘communal representation.’ It was an appendage to the Westminster FPP program to let particular minorities to give representation on the basis of their assertion. For this objective all candidates have been compelled to ‘declare their ethnicity/religion’ which was fundamentally undemocratic. At the starting it worked nicely and even considered a needed ingredient in a multi-ethnic/religious society. It had nothing considerably to do with proportional representation.

Mauritius is divided into 21 multimember constituencies and elects 62 members by way of the FPP program. As described before, the constitution compels all contestants to declare his/her ethnicity and particular minorities (Muslims, Christians, Chinese or Creoles) qualify for the ‘best loser’ accommodation for 8 seats in a 70 member assembly. All may possibly be losers, but only the greatest are accommodated under the scheme. For that reason, as a approach this is similar to what is proposed in Sri Lanka.

There is or was some validity in the concept when it is/was applied in the case of representation of tiny ethnic/religious minorities. Similarly, if this is applied for representation of females, nevertheless there can be some validity.

Yet, the practice was challenged just before the UN Human Rights Committee (HRC) as a violation of certain principles in the International Covenant on Civil and Political Rights (ICCPR) and a determination was given in August 2012. That is one reason why Mauritius is now thinking about its abolition and devising a greater technique of representation which includes adopting a PR program.

Among the two primary contentions transpired for the duration of the HRC determination, the inadvisability of the stereotyped communal representation and the deviation from the principle of ‘one vote 1 value,’ the latter has a lot relevance in discarding the ‘best loser’ approach in any country.

Sekihairitsu (very best losers) in Japan

In contrast to in Mauritius, Japan makes use of the best loser technique as a portion of proportional representation. This was introduced in 1996. In a 480 member parliament, 300 members are elected via FPP method in single member constituencies and 180 in a PR tier. The PR tier is a list technique. This is also a mixed member technique, nonetheless allocation of seats in one particular tier does not dependent on the other. In other words, the constituency technique is not linked to an general PR program like in Germany or New Zealand.

As Leonard Schoppa has stated “in a mixed member technique, the devil is typically in the details,” whether in Japan, Germany, New Zealand, Sri Lanka or Russia. Russia is another country which has an unlinked mixed member system however with out a ‘best loser’ technique.

The two principal principles in the Japanese system are (1) the double candidacy (choufuku rikkouho), which is typical to a lot of mixed systems, and (2) the ‘best loser’ (sekihairitsu) provisions. The second provision signifies that the candidates in the PR list also be nominated in a single member district or vice versa. Japan usually ranks the candidates in the PR list collectively and not on a preferential order. Then the candidates who win their single member constituencies are deleted from the PR list. Thereafter, the remaining candidates are then ranked according to how close they came to winning their single member constituencies.

The ‘philosophical’ argument goes that possibly the candidate B lost to A by one vote! Consequently, the best loser notion is democratic. In Japan, the calculation employed is not the calculation proposed in Sri Lanka. Japanese ratio equals, in the above example, the votes received by A divided by the votes received by B.

The following nonetheless is the ‘devil’ according to Leonard Schoppa (The Evolution of Japan’s Party Method, 2011).

“The PR component of the new electoral system has provided a few seats to little parties, but the major parties have employed it to resolve nomination troubles in the single-member districts that are at the heart of the system.” (My emphasis).

Where the Devil in Sri Lanka?

We have nevertheless not seen the devil in Sri Lanka! Of course we have seen several devils in the political arena, but what I mean is behind the electoral reform proposals to introduce the ‘best loser’ method. The final report of the Gunawardena (PSC) Committee is not available for public scrutiny. This is even following the acceptance of ‘right to information’ in principle as a constitutional proper. The Interim PSC Report does not have a lot meat. It is only of six pages. What it says in total about the national electoral technique is the following.

“The majority view favours reforms to the present technique leading towards a Mixed Method of a mixture of First-previous-the-post and Proportional Representation Systems. Issues were raised in respect of a proposed adjust of the present program by minority parties and communities of interests who urged the committee to make sure equitable representation in the method that is finally proposed.”

“Your Committee is of the view that a mixed technique be adopted which involves components of Initial-past-the-post and Proportional Representation systems. The modalities and particulars of the technique to be adopted would be further deemed by the Committee at its future sittings and would be presented to Parliament in due course.”

“The Committee is in agreement that the present quantity of Members of Parliament need to not be elevated.”

Of course it calls for a mixed technique. It talks about a combination of FPP and PR. The Interim Report focuses on other issues like national identity cards, postal voting and even electronic voting which are not altogether unnecessary. It is attainable that there was a final report subsequently. Even so, I have heard even the Election Commissioner saying he has not noticed or it was not submitted to him.

There is significantly speak about the ‘best loser method’ or concept nevertheless. However, there can be numerous approaches of applying even the ‘best loser’ approach as we have seen above in the case of Mauritius and Japan.

In the President Maithripala Sirisena’s Election Manifesto he says the following.

&#8220I guarantee the abolition of the preferential method and will ensure that every single electorate will have a Member of Parliament of its personal.  The new electoral technique will be a mixture of the first-past-the post system and the proportional representation of defeated candidates&#8220

The 1st sentence is significantly far more important than the second. It guarantees the abolition of the preferential system and the introduction of electorates (constituencies) with its own Members of Parliament. It does not say about abolishing the PR method. It is apparent that the formulation is not effectively believed out in the hurry probably. Even though it says ‘the proportional representation of defeated candidates’ what is needed is the proportional representation of all deserving parties for good governance in the country.

Like the bizarre terminology of the ‘best loser,’ the advocacy of a ‘program of defeated candidates’ proportional representation’ (DCPR!) smacks democratic principles and excellent governance. It is unfortunate that this has creeped into Mr. Sirisena’s Manifesto. By altering the terminology to ‘runner up’ from ‘best loser’ would not make a distinction.

Greatest-Loser Mentality

Schoppa identified the intent to ‘solve nomination problems’ as the major motive behind the ‘best loser’ approach in Japan. What could be the motives in Sri Lanka? I hardly consider the concern in the Gunawardena report was for the minor or minority parties or democratic principles. It is essential to figure the period in which this ‘secret’ report has finally carved out – 2007.

The political class in Sri Lanka has, by and big, turn out to be a parasitic tribe. Appear at what they say about the Best Loser at the Presidential elections! The very best loser need to turn into the Prime Minister! This is the very same mentality in proposing the ‘best loser’ approach in the electoral program. Gunawardena is the primary man behind each moves.

I have noticed in current instances at least two essential political figures, one particular in the government and one in the dubious opposition, lamenting that they may possibly shed their assigned electorates beneath a FPP competitors. A single was also a crucial member of the Gunawardena Committee. So they can only get into parliament under the ‘best loser’ system.

This is not to say that there is something particularly incorrect in placing the exact same candidate in each tiers (FPP and PR), if the political party so wish and the individual so deserve. This might be needed particularly in the case of females candidates. Nonetheless, accommodating the ‘best losers’ or ‘defeated candidates’ need to not be the beginning point or the decisive issue in the PR tier.

There is also a essential distinction in between the constituency of the FPP winner and the PR winner. In the case of Sri Lanka, the first should be the constituency or the electorate and the second need to be the all round district. Duty and accountability need to be different. The losers must not be packed to the exact same ‘Kalawana’ seat. The proposed ‘best loser’ accommodation is arbitrary like the old ‘Kalawana’ double seating.

The ‘best loser’ (initial loser) strategy can be a trick to redistribute PR seats amongst the loser candidates of main parties in any country. What about the second or the second greatest losers? The technique will betray the objective of proportional representation altogether. As some of the members of the HRC pointed out in the Mauritius case, the ideal loser system violates a fundamental principle of universal franchise, ‘one vote a single value.’ What the proportional representation tries to obtain is not the equalisation of (obvious) unproportioned votes among winners and losers but to give due share of representation to proportionate votes that the parties and/or candidates receive from the men and women.

It is very best that the ‘best loser’ idea is entirely dropped in election vocabulary not only in Sri Lanka but everywhere altogether.

Kanu Thuna – Sanjeewa Sampath

Kanu Thuna – Sanjeewa Sampath Download Now: http://www.music.lk/download-kanu-thuna-sanjeew-sampath-music-video Artist – Sanjeewa Sampath Music – Dharshana Rajamanthri, Sanjeewa …

GAYESHA PERERA

Gayesha Perera, the most recent beauty queen of Sri Lankan history to win many awards at the International level is representing Sri Lanka at Miss supranatinal 2013 in Belarus. Right after crowning…

Sampanthan As Opposition Leader Would Be The Last Nail In The Coffin

By Dayan Jayatilleka

Dr. Dayan Jayatilleka

Dr. Dayan Jayatilleka

We have already had a bitter experience with Mr. Wigneswaran and we mustn’t repeat or compound it. Mr. Sampanthan is a cultured gentleman, a superb speaker and a fine parliamentarian in the old tradition. But he would be most unsuitable to be created Leader of the Opposition. It is neither due to the fact he is an ethnic Tamil nor since he is the leader of the TNA that Mr. Sampanthan must not be appointed the Leader of the Opposition of the Sri Lankan parliament. It is because of the political project he subscribes to and the political views he holds. Going by those declared views, he would, as Opposition Leader, not oppose only the policies and practices of the Government of Sri Lanka. Indeed he possibly will not oppose the present Government at all, considering that he helped bring it into workplace his celebration colleague Mr. Sumanthiran is a co-drafter of the 19th amendment which castrates the executive Presidency, turning that office into a constitutional eunuch and his party the TNA has gone on to defend the 19th amendment in the Supreme Court. As an alternative, Mr. Sampanthan as Opposition Leader would be opposed to the extremely political neighborhood, the quite political unit, which he would be sworn to uphold and operate squarely within.

To place it differently, a single can not have as the Leader of the Opposition a person who is not loyal to the Sri Lankan State. 1 can not have as Leader of the Opposition, somebody who refuses to uphold the quite character – unitary, not merely united—of the Sri Lankan state.

I refer not only to a decade ago, when Mr. Sampanthan and his celebration contested the election on a single point platform, namely that the separatist-terrorist LTTE was “the sole reputable representative of the Tamil People”. I do not refer mostly to the fact that he has yet to express regret and apology for that stand.

I refer mainly to Mr. Sampathan’s stand on so solemn an occasion as his party’s 14th Annual Convention in 2012 a mere 3 years ago, nicely into the post-war period when his political conduct can’t be excused by the invocation of a most likely LTTE threat to his life.

A mere three years ago, Mr. Sampanthan, the most prominent neighborhood leader of the Northern Tamil neighborhood, which exists a few miles away from the sub-regional landmass of Tamil Nadu with its aggressively hostile streak towards Sri Lanka, reiterated his party’s commitment to reaching with the help of the international community, the very same ‘soaring aspirations’ that could not be accomplished by way of the force of arms.

He asserted—some would say confirmed—that ‘the international community’, by way of its present stance, might open the space for the achievement of that objective: “&#8230The existing practices of the international neighborhood may give us an chance to accomplish, without the loss of life, the soaring aspirations we had been unable to accomplish by armed force.” (R. Sampanthan, speech at ITAK 14th Annual Convention, Batticaloa, May possibly 2012, Colombo Telegraph)

Plainly the “soaring aspiration” which was unsuccessfully sought to be achieved via “ armed force” is that of the separate state of Tamil Eelam, which axiomatically entails the dismemberment of Sri Lanka. This is the gentleman who some openly suggest for the post of the Leader of the Opposition!

In his keynote speech on this formal political occasion, Mr. Sampanthan called for the restoration of the degree of sovereignty that the Tamil people are said to have enjoyed over 500 years ago, prior to the advent of colonialism. This refers to a entirely independent political existence. “…Up to 500 years ago, the Tamil individuals established their personal governments, and governed themselves.  Our party symbolizes a time in history…during which our individuals had their personal sovereign Tamil governments&#8230Our basic objective is to regain our community’s Property, its historical habitat and its sovereignty. The symbol of the House symbolizes this unshakeable aim…” (Ibid)

The House Mr. Sampanthan is talking about is not the Parliament of Sri Lanka, where the Sri Lanka Muslim Congress ( SLMC) and particular ideologues of the LSSP such as Mr. Lal Wijenaike would like to see him as Leader of the Opposition! No, Mr. Sampanthan is clearly calling for a separate house as a home—not a roomier space in the current home of the unitary Sri Lankan state.

If the globe have been to be re-ordered by restoring the pre-colonial status quo ante of no less than half a millennium if each and every minority of roughly a million people or a fraction of a country’s citizenry, have been to demand this correct and seek its exercising, the planet would be plunged into anarchy, chaos, bloodshed. This project can’t be entertained—and most surely not on a fairly tiny island with no ‘defense in depth’ adjacent to a landmass which has been historically hostile.

Had Mr. Sampanthan’s transparent declaration of techniques at his party’s Annual Convention just three years back been authored by a Sinhalese, it would have been dubbed ‘racist stereotyping’. “…The softening of our stance regarding particular problems, and the compromise we show in other concerns, are diplomatic techniques to make sure that we do not alienate the international neighborhood. They are not indications that we have abandoned our fundamental objectives…In other words – we have to prove to the international community that we will never ever be capable to recognize our rights within a united Sri Lanka… Despite the fact that the issue at hand is the same, the prevailing conditions are distinct. The struggle is the same, but the approaches we employ are distinct. Our aim is the same, but our techniques are distinct. The players are the same, but the alliances are distinct. That is the nature of the Tamil folks. Although we still have the identical aim, the techniques we use are now different…” (Ibid)

Straightforward logic tells us that if such a individual who holds these views is appointed the Leader of the Opposition, he will use his office to further the aims he believes in and is committed to. As a result we shall have a Leader of the Opposition who has “not abandoned [their] fundamental objectives” who believes that “the struggle is the same” and “the aim is the same” (as that of those who employed “armed force”). Logic tells us that he will use “different strategies”, “approaches” and “alliances” in the service of the unchanged basic objective and aim. Most clearly of all, Mr. Sampanthan as Leader of the Opposition will continue to feel and feel, and act on the pondering and feeling, that he and his celebration “must prove to the international neighborhood that we will never ever be capable to realize our rights inside a united Sri Lanka”. Therefore Mr. Sampanthan is committed to proving to the world that Tamil rights can be realized not “within” but only outside a “united Sri Lanka”.

Note that Mr. Sampanthan utilised the term “united” and not “unitary’. If he does not think that Tamil rights can be realized inside a “united Sri Lanka”, is he not making the case for separation? Do we believe his Supreme Court affidavit or his address as leader, the annual convention of his celebration? In other words do we think what he says in English in Colombo or what he says on a formal occasion, in Tamil, in the North and East? At the extremely least we have right here a case of political schizophrenia. Do we want to have a democratic separatist or at the quite least, a political schizophrenic as the Leader of the Opposition of Sri Lanka? These who advocate this are either utterly irresponsible or subscribe to a sinister separatist project. They are either fools or knaves.

Shrinkage of Sinhala Political Energy

Currently the combination of the 19th amendment which dismantles the robust Presidency would spot national decision making in the hands of a Prime Minister who could be the prepared or unwilling hostage of the TNA and a parliament and a Cabinet that could be bought up by Diaspora slush funds. Taken collectively with the drive to go beyond the 13th amendment and Mr. Sampanthan’s belief that Madam Chandrika Bandaranaike Kumaratunga will settle the ethnic problem by the end of this year on the basis of her political ‘package’ of the mid-1990s, what the Ranil-Chandrika-TNA troika and their external patrons are embarking on is a road map to weaken the centralizing capacities of the Sri Lankan state and lessen the share of state energy, political power, that the Sinhala community has and is rightfully entitled to be given (a) its overwhelming demographic preponderance, (b) antiquity (if the Northern Tamils had preceded the Sinhalese they would hardly have remained stuck in the least arable Northern cone of the island) and (c) the fact that it is the only neighborhood whose language, an ancient a single, is spoken only on this island.

The suggestion to make Mr. Sampanthan the Leader of the Opposition is part of a macro-strategy to minimize the share of political energy and size of the stake-holding inside the Sri Lankan state that the Sinhala nation is naturally and organically entitled to. Ranil, Chandrika, the TNA, and these nations with substantial concentrations of Tamil voters are moving to dismantle the safeguards for Sinhala political power in this island state. The strategic aim is the dilution and dissolution of Sinhala power, the energy of the majority on the island—not least simply because the Sinhalese are observed as the sole obstacle to Western and neighboring hegemony and as allies of China on this strategically placed island on the Maritime Silk Route, whilst the Northeastern periphery is noticed as a prospective base by the external hegemons, who will therefore tilt towards maximizing the energy of the North as a distinct, very autonomous, certainly quasi-independent political unit a la Kurdistan. This is why Mahinda Rajapaksa was externally de-stabilized and ousted, and a puppet regime “democratically” installed. And that in turn is why the multitude wishes him to return, to steer the destiny of their nation a nation that is now manipulated by external hegemons and their disgraceful neighborhood lackeys. The multitude knows in its bones, nay, in its collective soul that this island is the only nation they have on this planet.

Drinking Water Trigger A Slow, Tortuous & Spectacular Demise

By K. Arulananthan –

Dr. K. Arulananthan

Dr. K. Arulananthan

Wellawatte : Moving to a new apartments at the third floor, as usual drawn water from kitchen tap and boiled prior to drinking. On the second day, all who shared the same water had complained severe thoracic discomfort. Later, came to know that the tap water is drawn from a tube effectively water and distributed among the unsuspicious residence with no any purification.

Rathupaswala : A quickly increasing town, surrounded by paddy fields, is positioned at about 25 km from Colombo. Water is drawn from open duck properly for drinking. A colleague of mine, who lives in Rathupaswala, drawn water from a effectively at her home and tested at the laboratory, exactly where she performs, discovered that the pH remained in between 2 and three – Acidic (pH significantly less than 7 are mentioned to be acidic).

Now the residents at Rathupaswala are supplied with public water program (pipe borne water), thanks for the mass struggle, which ended with deaths, injuries and damage to home. Nevertheless, no 1 knows what triggered the acidity to the well water, a factory or geology of the soil or each! (Rathu –RED, paswala -SOIL)

Mahaweli Upper Catchment : Below the project “Managing Agro-chemical Multiuse Aquatic Systems (MAMAS)”, water samples had been drawn from upper catchment of Mahaweli River by one particular my collogue for testing agrochemical pollution. The samples were offered to be tested for pesticide at the institute, which constituted the expert group to examine the severity of the oil contamination with ground water at Chunnakam. The institute reported that the pesticide content is “not detectable” (negligible or nil) in all water samples. My colleague told me that, suspecting the outcome, he injected pesticide into the sample and handed more than to the very same institute for testing. Nevertheless the test report from the institute indicated that the pesticide content is at not detectable level!

Systematic Monitoring of water quality is the first step to assure safe drinking water. - Photo courtesy Amantha Perera

Systematic Monitoring of water high quality is the initial step to assure secure drinking water. &#8211 Photo courtesy Amantha Perera

Coastal waters: A current coastal water quality monitoring outcomes revealed that Escherichia coli, a bacteria associated with fecal matter and cause for water borne disease far exceed the accepted limit (The widely accepted limit is 500 cfu/100 ml).The lead to is identified as the municipal raw sewage, discharged at about 2 km into the sea from coastline in Colombo, in other places it is discharged at the coast line itself. One particular of my colleagues, an on looker of the presentation of the monitoring result told me that “it seems taking a swim at our coastal waters is like swimming in a septic tank!”

Padavi-Sripura : CKDu, Chronic Kidney Disease, where “u” stands for unknown or uncertain etiology, was 1st reported in 1994. Soon after two decades, it is at an epidemic scale, affecting far more than 50,000, additional spreading into Northern, Eastern, North Western, Central, and Uva provinces. I keep in mind, it was earlier told that cooking in an aluminum vessel could be the potential cause for the CKD, not too long ago it is reported that the potential result in could be the drinking water contaminated with pesticides. Nevertheless no one appears to know the trigger!.

Chunnakam : In January 2015, it is reported that the Northern Provincial Council has appointed a team of specialists to investigate the contamination of ground water from Chunnakam Power Station. There are other reports indicated that that two separate teams from the Power and Energy Ministry and the Disaster Management Ministry would assess the ground situation and concern would be addressed inside two weeks and also reported that an independent committee consisting of officials from the ministry and the Central Environmental Authority to study the oil contamination issue (Sundaytimes-25.01.2015).

The most typical and deadly pollutants in the drinking water are of biological origin (pathogenic bacteria, viruses and protozoa) and chemical contaminants, which consist of naturally occurring constituents (Arsenic, Barium, Boron, and so forth ), synthetic pollutants (Cadmium, Mercury, and so on ), organic pollutants (Benzene, Carbon tetrachloride, and so forth.) Sri Lanka Requirements Institute published “Tolerance limits for inland surface waters used as raw water for public water supply (SLS 722)”, which contain, if not all the biological and chemical containments, at least for most of them. Is the drinking water within the tolerance limit? No 1 seems to know!

Secure an efficient and successful monitoring, assessment and enforcement is vital to make certain safe drinking water. Ceylon Environmental Authority is mandated to undertake surveys and investigations as to the causes, nature, extent and prevention of pollution and undertake investigations and inspections to ensure compliance in inland waters.

Systematic Monitoring of water top quality is the very first step to assure secure drinking water. Though, discrete monitoring is reported, in my restricted search, I haven’t come across any systematic continuous monitoring. It appears that we do not have capacity to monitor all the health hazardous chemical contaminants. Even, the instruments offered look to be not in desirable working situation, due to lack of certified and trained personals and lack of information in calibration of instruments. Therefore, as of today, we could never know the good quality of water and continue to drink with deadly pollutants.

Govt. Lacks Credibility We’ve No Explanation To Believe In Sirisena’s Promises: Tamil Civil Society Forum

The Tamil Civil Society Forum (TCSF) says the characterization of the final phase of the war by the President of the nation as a &#8220humanitarian operation&#8221 does not bode nicely with his Government’s guarantee of a credible inquiry.

TCSF Convener - Bishop of Mannar, Dr. Rayappu Joseph

TCSF Convener &#8211 Bishop of Mannar, Dr. Rayappu Joseph

TCSL Co-Spokesman, Elil Rajan in a letter UN Particular Rapporteur on the Promotion of Truth has mentioned &#8220We also would like to remind you that the Foreign Minister of Sri Lanka in his speech to the UNHRC on the 2nd of March stated that only UN assistance will be sought and not involvement. Hence in the absence of substantial international involvement in the design and delivery of an accountability mechanism and offered the attitude of the present Government towards the credible allegations against the armed forces we have no explanation to think in the Sirisena Government’s promise of a credible internal inquiry.&#8221

We publish under the letter in full

Kilinochchi

01 April 2015

Mr. Pablo de Greiff

UN Specific Rapporteur on the Promotion of Truth,

Justice, Reparation and Guarantees of Non-Recurrence

 

Dear Mr. de Greiff,

&nbsp

Transitional Justice and Domestic Mechanisms for its realization in Sri Lanka.

We are thankful for your visit to Kilinochchi today and take this chance to spot on record in writing, particular troubles of significance that we hope to raise with you in your brief meeting with us these days.

  1. Lack of progress to date in initiating a process of consultation with victims in designing an internal mechanism in pursuit of truth and justice.

The Government of Sri Lanka (GOSL) sought and was granted a deferral of the report of the OHCHR Inquiry on Sri Lanka (OISL) on the promise of placing in spot a credible internal mechanism in the pursuit of truth and justice in Sri Lanka.

(Please see attached marked as ‘A1’ our letter to the High Commissioner on the deferral of the report and marked as ‘A2’ our statement on the decision to defer the report).

There was no credible proposal in the public domain that the Government had place out when it sought the deferral. The UN Human Rights Commissioner in his address to the Council on the 5th of March 2015 insisted that GoSL ought to consult the victims in designing this internal mechanism. To date no such approach has been initiated[1].

The Prime Minister of Sri Lanka throughout a recent pay a visit to to Jaffna[two] has mentioned that discussions are underway with the help of the South African Government to set up a Truth Commission. He further elaborated that the suggestions of Sir Desmond de Silva, a single of the authorities appointed by the prior Government to guidance the Presidential Commission on Missing Persons, has been tasked with identifying the legal framework required to provide for such an internal mechanism. The existing Government has also decided to let the Presidential Commission on Missing Persons continue its investigations regardless of its flawed mandate and modus operandi.

(Please see attached, marked as ‘A3’ the statement by the Tamil Civil Society Forum and the Welfare Organisation of the relatives of these forcibly disappeared communicating our decision to not to attend any additional hearings of the Commission)

We submit that it is a lot more than clear from the above that the existing Government has accomplished very small or absolutely nothing to seek the advice of the victims in the style of its internal mechanism. The entirety of the method is becoming made in secrecy. From what has been produced public GoSL is attempting to show progress by rehashing the previous regime’s approach of talking to the South Africans and utilizing the solutions of a particular person whose credibility and standing are very suspect.

  1. Lack of political will in the pursuit of truth and justice.

In a speech delivered in Parliament lately the Foreign Minister of Sri Lanka stated as follows:

“As you are aware, in the spirit of operating in harmony with the international community, the Government has extended invitations to the UN High Commissioner for Human Rights and the Working Group on Enforced and Involuntary Disappearances. Some sections of the former regime contact this a betrayal of the armed forces. Nonetheless, this is furthest from the truth. Our objective, Hon. Speaker, is to clear the name of our armed forces who have received wide international recognition as expert and disciplined forces”[3].

The Foreign Minister’s assertion that the objective of his Government’s engagement with the UN (and concomitantly the guarantee to establish a domestic mechanism) is to ‘clear the name of the armed forces’ is deeply problematic.

The Government’s partiality towards the armed forces was produced even clearer by President Sirisena in the order that he issues granting Common Sarath Fonseka with the title of Field Marshal. In that order the President asserted that Sarath Fonseka is bestowed with the honourary rank of Field Marshal for ‘outstanding gallantry, meritorious efficiency and distinguished service to the nation in the course of the humanitarian operation and the defeat of terrorism in Sri Lanka in May 2009’[four]. The characterization of the last phase of the war by the President of the country as a humanitarian operation does not bode well with his Government’s guarantee of a credible inquiry. These statements by the President and the Foreign Minister we are afraid show no departure from the policy adopted by the former Government on accountability.

We also would like to remind you that the Foreign Minister of Sri Lanka in his speech to the UNHRC on the twond of March said that only UN help will be sought and not involvement[5]. Therefore in the absence of significant international involvement in the design and delivery of an accountability mechanism and provided the attitude of the present Government towards the credible allegations against the armed forces we have no cause to believe in the Sirisena Government’s promise of a credible internal inquiry.

  1. On the exhaustion of domestic remedies:

The point is repeatedly made that domestic treatments will have to be exhausted for an international process to be entrusted with the burden of discharging accountability. Beneath the former Government the UN method concluded that the domestic treatments had been exhausted and that there was no political will for accountability[6]. With the removal of the former Government by the Sirisena Government the argument is made afresh that domestic treatments will have to be again demonstrated to have been exhausted. The UN system took 5 years to conclude that domestic remedies had been exhausted with the earlier regime. We worry that any efforts at locating truth and justice will be totally washed away as the argument is becoming produced once again that domestic treatments will have to be verified to be inadequate again below the new regime.

We think that the domestic treatments exhaustion criterion ought to be viewed a lot more holistically by very carefully searching at the contextual and structural factors that historically clarify the lack of accountability and the pervasive nature of impunity in Sri Lanka. A closer evaluation of these aspects will aid much better explain as to why impunity reigned not just below the previous regime but also beneath all successive governments in the previous 40-50 years.

Our understanding is that a vast majority of the Sinhala Buddhist population in the South condones the war and impunity for violations committed in its name as a necessary and unavoidable price in the try to retain the united and unitary character of the state. Hence even really minimal action taken against the Sri Lankan Armed Forces has been interpreted as a betrayal of the Sinhala Buddhist Nation and an act that amounts to siding with foreign, alien powers that seek to include and destroy the Sinhala Buddhist nation-state of Sri Lanka. In this imagination Tamils, Western Governments, the UN and all these who demand accountability are regarded as to be participants of the foreign conspiracy that is seeking to break the unity and territorial integrity of the state.

It is most unfortunate not even the Sirisena Government is willing to tackle this fear by addressing it straight. No Government in post-independent Ceylon/Sri Lanka has made an attempt to address these issues honestly and hence unsurprisingly Sinhala Buddhist ideology has received democratic endorsement repeatedly at Sri Lankan elections. This is why even President Sirisena was unwilling to make any substantive guarantee with regard to accountability in his election manifesto and in truth repeatedly claimed that it is his victory alone that will be able to safeguard the former President from international attempts at holding him to account. Post-elections, we are witnessing a continuation of this dormant and idle political technique of wooing the Sinhala Buddhist vote base. The very best example of this is how the deferral of the OISL report is being trumpeted as a main victory for the Sirisena Government with an eye on the upcoming Common elections. Unless the Sirisena Government is willing to accept and clarify to its electorate that the violations committed by the Sri Lankan Army were morally wrong there is no real hope for accountability and non-recurrence. As an individual who believes that transitional justice need to be viewed from a contextual and holistic picture we believe that you will understand the complicated set of factors that very best aids us understand historically the lack of accountability for the violations committed in the troubled history of post war-Ceylon/ Sri Lanka.

  1. The need to have for criminal prosecutions as portion of a holistic transitional justice programme in Sri Lanka.

We are provided to comprehend that criminal prosecutions will not function in the internal mechanism design that the current Government is drawing up. To tackle impunity and to ensure non-recurrence we believe that criminal prosecutions are an essential element of any transitional justice programme in Sri Lanka.

  1. Institutional Reforms should encompass reform of the state structure.

A holistic transitional justice programme ought to consist of institutional reforms that will guarantee non-recurrence of mass atrocities. This is traditionally defined as institutional reforms of the security sector and the law enforcement authorities including the court system. We think that in the Sri Lankan context that this has to go even deeper. Unless the unitary character of the Sri Lankan State imagined and constructed around a Sinhala Buddhist Nation-State is abandoned Tamils will not feel safe in this island. This necessarily indicates an internationally mediated approach towards finding a sustainable and just political remedy. Such reforms need to also incorporate the repeal of draconian legislations such as the Prevention of Terrorism Act.

We conclude expressing hope that you will engage in fruitful discussions that lend towards a nuanced and honest assessment of the possibility of Transitional Justice in Sri Lanka.

(Signed)

Elil Rajendram

Co-Spokesperson

Tamil Civil Society Forum


&nbsp

[1] UN Human Rights High Commissioner Zeid Ra’ad Al Hussein, Opening Statement, 28th Session of the UN Human Rights Council, Offered at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15642#sthash.XXYsHubz.dpuf : “I urge the authorities to seek advice from deeply with the folks, especially victims, in order to design mechanisms that will work and not repeat the failures of the past”

[two] Video Footage of Public Meeting of the Prime Minister of Sri Lanka in Jaffna, 27 March 2015 https://www.youtube.com/watch?v=UquXJjUkQjI&ampfeature=youtu.be&ampt=10m7s

[three] Hansard, 18 March 2015, Column 216, available at http://parliament.lk/uploads/documents/hansard/1426856082005040.pdf

[4] Added Ordinary Gazette Notification No. 1906/51, (March 22, 2015) accessible at http://documents.gov.lk/Extgzt/2015/PDF/Mar/1906_51/1906_51%20E.pdf

[five] Complete text of the Statement delivered by Mangala Samaraweera, Minister of Foreign Affairs of Sri Lanka and Leader of the Sri Lanka Delegation, at the High Level Segment of the 28th Session of Human Rights Council, 02 March 2015 offered at https://www.colombotelegraph.com/index.php/foreign-affairs-minister-mangala-samaraweeras-unhrc-speech-these days-complete-text/

[six] Oral Report of the UN High Commissioner for Human Rights on on the promotion of accountability and reconciliation in Sri Lanka (24 February 2014) accessible at http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.CRP.2_AV.doc.

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Sri Lankan 66th Independence Day 2014 Choreographed by Aruni Boteju Yashoda Rangana Dance Troupe : Nithya Bamunuarachchi, Heshawa Bamunuarachchi, Nathaly Karunarathne, Andrea …
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The 19A Permits Private Broadcasters To Legally Skew Elections!

By Wijayananda Jayaweera

Wijayananda Jayaweera

Wijayananda Jayaweera

The new clause 26 of the proposed constitutional amendment permits private broadcasters to ignore the Election Commission&#8217s media recommendations if the broadcaster informs the EC in advance of its intention to assistance a distinct a political celebration of its decision. The very first version of this text even allowed the state broadcaster to take a partisan position throughout the election, but now the new text has restricted the partisan broadcasting only to private broadcasters. Irrespective of this alter what this provision makes it possible for is a completely ill advised practice which has all the potentials to undermine the conduct of a free of charge and fair elections. The need to go into such operational details about election associated media functions in a constitutional text is also unheard of.

Let me explain as to why this provision is an ill conceived 1.

I have no quarrel if a national newspaper requires a public stand to support a particular candidate or a political celebration during an election. The newspapers are published entirely by private enterprises without utilising any frequently owned public sources for its sustenance. The readers who wants to reinforce their personal electoral positions would free to obtain the newspaper which publicly assistance their preferred political position or the candidate.

But broadcasting is a fully different matter. Theoretically, each and every person of Sri Lanka can establish his or her newspaper, but scarcity of broadcast frequencies allows only few privileged persons to own and operate the broadcasting solutions. As a result, permitting private broadcasters to turn out to be partisans in the course of an election is certainly an abuse of that privilege. The private broadcasters, though are organised as private enterprises can not operate with no use of the spectrum, which is clearly a public property. The spectrum is allocated to both public and private broadcasters, below a licence, on the understanding that they have to supply must carry solutions in the public interest. A fair and extensive coverage of the election is a single of those have to carry solutions which should be provided by broadcasters, irrespective of their ownership sort.

This would imply that all broadcasters ought to give due weight to the coverage of main parties throughout the elections with suitable coverage to other parties and independent candidates with significant views and perspectives, thus enabling the voter to make a well informed choice.

Allowing private broadcasters to become partisan broadcasters throughout elections would skew the election benefits due to the fact it engages far a lot more significant financial interest and significantly more effective messaging from the strong groups. A biased report in a newspaper is just not the very same as biased manifested via Television. Following all selection of media does not operate in the very same way. If I am a proper wing supporter I only buy and study correct wing newspapers, so my selections are respected. But considering that Television is primarily an entertainment medium I watch the entertainment shows I like, whatever channels they are on. Thus, permitting private Tv channels to take sides during an election will be a excellent disadvantage to these parties and candidates who cannot retain the support of private broadcasters. This will produce a very uneven playing field for the contestants who are not supported by private broadcasters.

None of the current private broadcasting institutions are owned by means of a transparent and justifiable licencing method. As a result they are not really accountable to the audiences and there is no independent oversight authority to see that broadcast media functions in the public interest. On top of that, the proposed exemption which permits private broadcasters to ignore the suggestions established to make certain a fair coverage of elections, would make it even constitutional to skew the elections via partisan broadcasting by the strong.

Election is a time in which voters are expected to make properly believed out informed choices, largely based on the political experiences reflected through news media. Allegations of media bias are really common at election time and usually they are tough to either prove or disprove. But it is crucial to have a method of checks and balances specifically for broadcast media to look out for and right any imbalances in coverage. Were the camera shots and angles manipulative? Were the queries balanced? Have been the substantial viewpoints covered? Have been the opinion polls credible and expert ? and so on?

We know that the much more commercialised a particular media method is, much more probably it is that politics will be framed as a game rather than troubles. This sort of framing needs much less interest and expertise from the audience. It is precisely for that purpose why we require media guidelines which would compel the private broadcasters at least for the duration of the election occasions to engage their audiences much more as citizens than mere customers.

Can we truly assure a fair and honest coverage of electoral politics if we make it completely legal for the private broadcasters to turn into partisan and ignore the Election Commission&#8217s media suggestions?. It is true, that in the US the first amendment disallows regulating media behaviours in the course of elections, regardless of any objectionable or irresponsible election coverages they may do. But in all other established democracies obligation of fair, impartial and non partisan approach to election coverage is ensured across all variety of broadcasting media by way of guidelines on election coverages issued by an independent Election Commission.

For that reason, we must request the legislators to withdraw the proposed exemption which exclusively allows private broadcasting solutions to turn out to be partisan broadcasters for the duration of the elections, which is entirely unwarrented and undemocratic.

Sri Lankan shares fall for 5th session on margin calls, political woes

COLOMBO, MARCH 27

(Reuters) – Sri Lankan shares fell for a fifth straight session on Friday and closed at their lowest in practically eight months as investors sold their stocks to settle margin trading ahead of quarter-end, whilst political worries also weighed on sentiment.

The main stock index ended .71 percent, or 49.31 points, weaker at six,873.52, its lowest close given that Aug. six and further moving away from the essential psychological assistance level of 7,000. It has lost six.07 percent in the previous 20 sessions.

“The marketplace fell across the board due to margin calls and month-end settlement selling stress,” said Dimantha Mathew, research manager at First Capital Equities (Pvt) Ltd.

Analysts count on the subsequent support level at six,800.

Shares of the country’s best mobile telephone operator, Dialog Axiata Plc, fell .92 %, whilst conglomerate John Keells Holdings Plc dropped .69 percent.

Shares of the country’s biggest listed lender, Commercial Bank of Ceylon Plc, fell .71 %.

The day’s turnover was 447 million rupees ($ 8.28 million), much less than half of this year’s daily average of 1.21 billion rupees.

Foreign investors sold a net 91.5 million rupees worth of shares. But they have been net buyers of three.12 billion rupees so far this year.

Analysts mentioned issues that the government’s decision-producing approach would slow down, also weighed on sentiment following President Maithripala Sirisena formed a national government incorporating the main opposition party in a bid to push by way of reforms and preserve political stability.

Reuters

The Proposed 19A – A Critique

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Dr. Nihal Jayawickrama

The Bill for the Nineteenth Amendment to the Constitution has been drafted, published in the Gazette and placed on the Order Paper of Parliament without having any opportunity for public consultation. As soon as a lot more, a government has arrogated to itself the sole energy to draft a constitution, ignoring the reality that the constitution belongs to the complete country and all its inhabitants. It is a social contract amongst the citizens and the state, whereby the folks agree to submit themselves to the energy of the state, and agree to the manner in which that power will be distributed, exercised and limited amongst the institutions of government. A constitution must not be the solution of political bargaining amongst competing political parties nor should it outcome from the application of the celebration whip.

The proposed Nineteenth Amendment to the Constitution appears to have been drafted with care to reflect some of the commitments created in the typical programme of the typical candidate for the presidency which received the overwhelming support of all ethnic and religious groups of this nation. Nonetheless, a reading of the Bill reveals a number of provisions which, if enacted, could impede the governance of this nation, and interfere with the lives of ordinary Sri Lankans as nicely.

Access to Details

The proposed new Post 14A seeks to introduce a new fundamental proper, namely, the proper of access to info, notwithstanding the reality that the proper to seek, obtain and impart information is an element of the “freedom of speech and expression such as publication” which is currently guaranteed in Write-up 14(1)(a) of the Constitution. What is now needed is a substantive law that offers sensible effect to that basic right. Rather, what is being offered is a constitutional provision that reflects a significant misunderstanding of the concept of access to details. Post 14A seeks to grant every single citizen the basic appropriate of access to any information held by “any other person”, “being info that is needed for the physical exercise or protection of that citizen’s rights”. As far as I am aware, there is no legislation in any country in the globe that gives a citizen the right of access to information in the possession of yet another “person”.

The draftsman has apparently borrowed this provision from the 1996 Constitution of South Africa which was drafted in the context of the “secretive and unresponsive culture” that had prevailed beneath the apartheid regime. The draftsman appears to have ignored the truth that when substantive legislation was enacted in that nation, that error was rectified and the term “private bodies” was substituted for “persons”. In the absence of any such implementing legislation in Sri Lanka, will my neighbour now acquire a constitutional proper to intrude into the privacy of my property in search of info (possibly my study material !) that may be valuable to him for the goal of vindicating his rights in a court of law?

Access to info indicates a appropriate of access to information in documentary kind in the possession, custody or handle of departments of government or other public bodies constituted below the law for any public purpose. It is about open government and accountability and the strengthening of democratic processes. It is not about access to info in the possession of private individuals. Nor must the physical exercise of that correct be restricted below an omnibus clause that consists of grounds such as “the protection of overall health or morals” as stated in the Bill. Exempt documents are normally these that might prejudice a pending criminal investigation, info communicated in confidence by the government of a foreign state, trade secrets, but incomplete scientific investigation, and such like.

Presidential Immunity

The proposed new Report 35 continues to give the President with immunity from civil or criminal proceedings. An examination of comparative constitutions, which includes those of France, South Africa and the Republic of Korea, will reveal that such immunity is enjoyed only in monarchical states and not in democratic republics (where absolutely everyone is equal before the law and topic to the equal protection of the law). Even the President of the United States has not been granted any such immunity under the Constitution of that nation, although the Supreme Court has declined to situation judicial directions in respect of his official acts. Under the current and proposed provisions of the Constitution, even a president’s spouse is prohibited from instituting a civil action for divorce or for upkeep!

Acting President

The proposed new Report 37 states that anytime the President is absent from Sri Lanka or is otherwise unable to perform the functions of his office, the Speaker shall act in that office. This is a departure from previous practice in regard to the workplace of the constitutional head of state. Beneath each the 1946 and 1972 Constitutions, provision was produced for the Chief Justice (or the chief judge of the highest court) to assume that office in the course of such a period if no other individual was appointed to act. If the workplace of President is anticipated to be non-political, it would be inappropriate for an elected politician belonging to a political party even to act in that workplace. Additionally, in terms of Article 66 of the Constitution, the seat of a Member of Parliament becomes vacant if he becomes subject to any disqualification specified in Write-up 91, and 1 of these disqualifications is “if he is the President of the Republic” – even for a day!

In 1975, when President Gopallawa was due to leave the Island on an official check out, the then Speaker, Stanley Tillekeratne, staked a claim to be appointed to act. At the request of the Prime Minister, I sought the opinion of the Lawyer Common on this matter. Mr Raja Wanasundera was of the view that the combination of the offices of Speaker and President would be against the whole spirit of the Constitution. He wrote:

Each as the Speaker and as a Member of the National State Assembly, he is part of the legislature which does not straight exercising executive and judicial powers. The workplace of President is one of the most essential offices contemplated by the Constitution. The President is the head of the Executive. Getting regard to the functions and duties reposed in these offices, it appears to me that the nomination of a person who is a Member of Parliament and the Speaker of the National State Assembly, to act in the workplace of President, would have a tendency to damaging the distinctions drawn in section five of the Constitution.

The incompatibility would clearly arise if the particular person concerned is deemed not to vacate the office of Speaker or Member of Parliament, or both, on acting for the President. If, on the other hand, we take the view that the Speaker vacates workplace on acting for the President, then it seems that a new Speaker will also have to be appointed. The provisions of the Constitution appear to indicate that the workplace of Speaker and Deputy Speaker are various, and the Constitution contemplates that both offices should be filled.

The Attorney Basic concluded that getting regard to the incompatibility referred to above, it was not desirable that the Speaker need to be nominated to act in the office of President. Accordingly, Chief Justice Victor Tennekoon assumed the workplace of President, and Mr Justice Samarawickrema was appointed to act in the office of Chief Justice.

The Constitutional Council

The proposed new Chapter VIIA provides for the establishment of a Constitutional Council. Nonetheless, that chapter does not seem to have taken note of the unfortunate expertise of the preceding Constitutional Council. Five persons are required to be appointed on the nomination of both the Prime Minister and the Leader of the Opposition. What would happen if these two opposing politicians are unable to agree on five or lesser number of persons? Similarly, what would happen if the Members of Parliament of other political parties and independent groups are unable to agree on 1 member to be appointed? Certainly, provision ought to be produced for the President to make such appointments on his personal initiative in such situations.

Secretary to a Ministry

In the proposed new Article 52, provision is created for the appointment of a Secretary for every single Ministry who shall “subject to the path and control of his or her Minister” exercise supervision over the departments of government and other institutions in charge of the Minister. In the 1946 Constitution, the Permanent Secretary exercised such supervision “subject to the basic path and manage of his Minister”. In the 1972 Constitution, the word “general” was deleted. “General direction” related to matters of policy only “direction” on the other hand could be case distinct if the Minister was so inclined. Thereby, the Minister, and via him many Members of Parliament and constituents whom he wished to humour or accommodate, became directly involved in the routine administration and selection-generating processes of government departments.

This modify appeared to have considerable assistance at the time amongst the Ministers considering that many of them believed that Permanent Secretaries who had been appointed by the President on the recommendation of the Prime Minister, occasionally with no prior consultation with the Minister to whom the Ministry had been assigned, had been a channel through which the Prime Minister exercised oversight and influence, if not manage, more than those Ministries. That modify stripped the Permanent Secretary of his independence, and transformed that office into that of a political agent who could be necessary to carry out the distinct directions of the Minister even on matters where independent action was desirable. Obtaining served as a Permanent Secretary under the 1946 Constitution and as a Secretary under the 1972 Constitution, I would strongly urge that the independence of that workplace (and thereby of the public service as a complete) be restored by permitting only “general” path.

Dissolution of a Ministry

The proposed new Article 52 also states that the Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers, which is an event that would ordinarily happen at the conclusion of a basic election. It is precisely at such a time that a Ministry need to continue to function beneath a Permanent Secretary until a new Ministry is developed or a new Minister is appointed. The conclusion of a common election ought to be the time for an orderly transition, and the Permanent Secretary ought to be the link in between the previous and the future.

Dissolution of Parliament

To curtail the energy of the President to dissolve Parliament in the course of the initial 4 years and six months of its 5 year term (except on a resolution passed by not less than two-thirds of the complete number of members – including those not present – voting in its favour) as is sought to be done in proposed new Report 70, is a recipe for anarchy. What would take place in a Parliament in which no single celebration has a clear majority, and each government that is constituted is defeated following a few months, or a budget is repeatedly rejected, and members are unwilling to vote for a dissolution till they have qualified for their pension at the end of the fifth year? Surely the President should have that reserve power to dissolve Parliament and contact a general election to ensure that stability returns to governance.

Head of Government

A lot has been made in particular political circles about the lack of a reference to the “head of government”. There was no reference in either the 1946 or the 1972 Constitutions to a “head of government”. As in both those Constitutions, the President (or Governor-Basic in the 1946 Constitution) is the head of the executive (i.e. the government), whilst the Prime Minister is the head of the Cabinet of Ministers which is charged with the direction and control of the Government of the Republic.

The Problem of the Referendum

The proposed new Report 3 offers for the President of the Republic to be “elected by the People”. A national election of a constitutional head of state is a luxury that Sri Lanka can’t afford. This provision is possibly being retained in the Nineteenth Amendment for worry that any other, much more rational, form of election (such as by Parliament) could require approval at a referendum. It is time that this unreal worry, unleashed by a 2002 judgment of former Chief Justice Sarath Silva, is ultimately laid to rest.

Following the common election of five December 2001 at which the UNP secured a comfy majority in Parliament, President Kumaratunga invited her principal political opponent, Ranil Wickremesinghe, to kind a government. In mid-2002, fearing that President Kumaratunga could exercise her power of dissolution at any time, the UNP Cabinet decided to seek parliamentary approval to amend the Constitution, inter alia, to make the President’s energy to dissolve Parliament topic to parliamentary manage anytime the majority of members belonged to a political celebration of which the President was not a member.

Chief Justice Silva constituted a seven-judge Bench, from which he excluded the 3 most senior judges, to examine the constitutionality of the Bill. This Bench held that the proposed amendments to the Constitution infringed Post four. A Bill that is inconsistent with Post four could be passed by a two-thirds majority and does not need approval at a referendum. The Chief Justice, nevertheless, went beyond his judicial role, and trespassing into legislative territory held that Article four was “linked” to Article three which is a single of twelve Articles of the Constitution which need each a two-third majority in Parliament and approval by a majority at a referendum for the adoption of any inconsistent legislation. He therefore retained for President Kumaratunga the energy to dissolve Parliament at a moment of her deciding on, a energy that she exercised a few months later.

Article 83 of the Constitution specifies twelve “entrenched” Articles. These, apart from Report 83 itself, are Articles 1 (The State), two (Unitary State), 3 (Sovereignty is in the Individuals and is inalienable), six (The National Flag), 7 (The National Anthem), 8 (The National Day), 9 (Buddhism), 10 (Freedom of Believed, Conscience and Religion), 11 (Freedom from Torture), 30 (Term of Office of the President), and 62 (Duration of Parliament). Post 4, which describes the manner in which the Sovereignty of the Men and women is exercised – i.e. legislative power by Parliament, executive energy by the President, judicial energy by way of courts, basic rights, and the franchise at elections, is not 1 of them.

It is interesting to recall that in the original draft Constitution ready by the Choose Committee of the National State Assembly, Write-up 4 was also included as an entrenched provision. Even so, on 16 August 1978, when the Bill containing the draft constitution was getting considered in committee, Justice Minister Devanayagam moved that the reference to Article 4 be deleted, and it was so agreed. Consequently, what the legislature deliberately omitted is what Chief Justice Sarath Silva sought to re-introduce. It may be that other judges prior to him have also shared his view, but it is Parliament, and not the Supreme Court, that can add or delete provisions of the Constitution. The sooner that Parliament asserts its authority to do so, the far better it would be for the governance of this country.