By Kelum BandaraCourtesy The Daily Mirror

• JVP’s six seats made the difference in ensuring two-thirds for the Govt. 
• What was presented isn’t what was enacted
• Adoption of this technique means the abandoning of all constitutional safeguards in relation to legislative process
• That is completely against the Standing Orders and the Constitution

• It’s likely that a similar exercise will be done related to the constitutional process 
• What will happen to the fundamental rights in the Constitution then?
• JVP, TNA are integral parts of Govt.
• We are now exploring appropriate modalities to take this matter again to the Supreme Court

In the wake of the enactment of the new Act postponing Provincial Council Elections, former External Affairs Minister Prof. G.L. Peiris of the Joint Opposition spoke about its implications. Following are excerpts of the interview.  

Q How do you view the procedure adopted in the enactment of this legislation?   
We are today in the throes of a constitutional crisis. This goes far beyond party politics. It strikes at the very root of our constitutional system. It involves franchise. It doesn’t stop there. What we are dealing with here is a total subversion of the legislative process. The Constitution contains clear provisions in relation to the passage of legislation. There is a certain procedure that is mandatory with regard to the enactment of laws. Article 78(II) declares that the passing of a Bill or a resolution by Parliament shall be in accordance with the Constitution and Standing Orders of Parliament.
Between the publication of a Bill in the gazette and the presentation of that Bill in Parliament, there must be a minimum of two weeks. After its presentation in Parliament, it can’t be proceeded with yet for another week. All of this serves a very important purpose. This is to enable the public to be informed of the contents of legislation. The public is given the opportunity of challenging those Bills in the Supreme Court on the basis that proposed legislation isn’t consistent with the Constitution. This is the principle now repeatedly violated by this Government. The latest example of that has very far reaching consequences.

Q Why do you say so?   

The Bill that was brought before Parliament was for the purpose of increasing women representation in the Provincial Councils. What was presented to Parliament was a simple, straightforward uncontroversial piece of legislation. It provided for the point that, at the time of nomination, 30 percent of slots must be reserved for woman candidates. Nobody had any problem with that. The bill originally consisted of one and half pages. The amendments, proposed during the committee stage, ran into 32 pages. The effect of those committee stage amendments was to transform the whole character of the Bill and make it a completely different Bill. That is to change the whole electoral system with regard to the provincial council elections. That is to introduce a constituency system. A member of the public lost the opportunity to have it scrutinized by the Supreme Court.
The consequences are dire as one can imagine. Let’s say a Bill is presented to increase the number of High Court judges from 75 to 85. Then, a committee stage amendment is introduced to say that the judges whose names proposed should be approved by Parliament. The latter provision, if it were there in the original Bill, would have been challenged. It is smuggled in at the committee stage. This violates the constitutional procedure and the Standing Orders.

The bill originally consisted of one and half pages. The amendments, proposed during the committee stage, ran into 32 pages. The effect of those committee stage amendments was to transform the whole character of the Bill and make it a completely different Bill

The committee stage amendments are meant for clarifying and the clearance of doubts. It has to be within the framework of the original Bill. What makes it even more ominous is that this thought occurred to the Government in a particular context. The Government brought the 20th Amendment to the Constitution. The stated purpose of the 20th Amendment was to require all elections of the provincial councils to be held on the same day.

The provincial councils have been in existence since 1987. There have been six Presidents. No President has made provisions for all the provincial council elections to be held on the same day. It never happened in Sri Lanka. It doesn’t happen anywhere in the world. All regional elections can’t be telescoped into one day. The real purpose is the Government’s fear of facing the people. What the Government was determined to do was to postpone the Provincial Council Elections.
Q However, the Government states the elections will be conducted under a new system before March, next year. What is your view? 

Article 154(E) declares that when five years have elapsed, the Provincial Councils stand dissolved. Then, the Provincial Councils Elections Act will come into play. The 20th Amendment sought to extend the lives of the provincial councils standing after the initial terms expires. It was challenged in the Supreme Court. I submitted a petition to the Supreme Court for the first time in my life. The Supreme Court held that this couldn’t be done by a mere two-thirds in Parliament, and a referendum was needed. The Government wasn’t ready for a referendum. Again, it couldn’t face the people. Therefore, the 20th Amendment wasn’t proceeded with.

But, the Government was determined to achieve its objective of postponing the elections. Then, they considered other methods. It interfered significantly with the franchise of the people. The people elected these councils for five years. At the end of their terms, they have the right to cast their ballots again to elect new councils. If that right is to be withheld, that must be done only through a referendum. There was an infringement of suffrage of people. In that sense, Parliament also threw into the dustbin a decision of the Supreme Court.

The Supreme Court ruling was that the Elections Commission should conduct elections in those three areas. The commission had said the elections could be conducted on December 9 if the 20th Amendment weren’t enacted. It wasn’t enacted. What the Government did was to change the system at the 11th hour.

There is clear provision in the 13th Amendment that where any legislation has an impact on the provincial council functions, it has to be sent to the provincial councils. The electoral system is changed totally. The elections can’t be held. Nevertheless, the Attorney General advises no reference to the provincial council is necessary.

That is to tell the Elections Commission that the elections can’t be conducted under the old system. The new system needs a re-demarcation of all the boundaries. Until that is done, these elections can’t be done. That is the argument. That is an indefinite postponement. That is open-ended. The re-demarcation of boundaries in the case of the local authorities has taken more than two and half years. There is no likelihood at all that the similar exercise in relation to the provincial councils can be completed in a shorter period of time. The net result is the indefinite postponement of the provincial council elections. Though they say the elections will be conducted before March, next year, it will not be practical at all.  This is the only democratic country in the world where there is no functioning local authority elected by people of that area for two and half years.

Q In this manner, do you see any possibility for the Government to enact even the new Constitution?   

Now, there is a very well-founded fear in the minds of the public that the same procedure was going to be adopted in relation to the new Constitution. Now, the interim report of the Steering Committee is available. It is a very wishy-washy document. It contains some unique features. The English version describing the character of the Constitution doesn’t say the unitary state. It uses the Sinhala word ‘EkiyaRajya’. How can you have that word in the English version? It is described as undivided and indivisible. That is also the definition of a Federal State. It is exercising deception. The idea is to present to people something which is palatable. Then, it’s to put obnoxious elements at the committee stage. It has been done in relation to the Inland Revenue Act and the Provincial Councils Election Act. It is likely that the similar exercise will be done related to the constitutional process. The adoption of this technique means the abandoning of all constitutional safeguards in relation to the legislative process.

There are other very serious constitutional implications. There is clear provision in the 13th Amendment that where any legislation has an impact on the provincial council functions, it has to be sent to the provincial councils. The electoral system is changed totally. The elections can’t be held. Nevertheless, the Attorney General advises no reference to the provincial council is necessary. The Attorney General has to examine every bill and give his certification. It is in conformity with the Constitution. The Attorney General gave that certification with regard to the amendments moved at the committee stage.

That is completely wrong. That is completely against the Standing Orders and the Constitution. In Parliament, on that day, there was a list of speakers. The list was exhausted. At that time, the Government didn’t have a two-thirds majority.

Then, the Government told its MPs to go on speaking to kill time until the Government was able to cobble together two-thirds majority. Despite all that, there was no two-thirds still. Then, something unique happened. The House was adjourned. The vote wasn’t taken. When the last speaker finishes, the vote has to be taken. The House was adjourned until a vote was taken.

Then, the leaders like Rauff Hakeem, Mano Ganeshan and Rishad Bathiudeen said they weren’t prepared to vote in the present form. Without their support, the two-thirds couldn’t have been obtained. They demanded a certain amendment. They demanded the 60-40 formula to be changed to 50-50. All of this was done in a rush. Minister Faizer Mustapha has admitted that there are significant errors with English and Sinhala versions being different from each other. The result is a picture of total confusion.

Q The Bill has been passed and signed into law. What can you do now? 

This is certainly a matter that warrants the attention of the Supreme Court. Leading counsel in Colombo argued this case and won it. We are now exploring appropriate modalities to take this matter again to the Supreme Court.

If this is left alone without any form of intervention, this will continue happening. What will happen to the fundamental rights in the Constitution?

With regard to certain provisions of the Constitution, a referendum is needed. That is Article 83. That can be circumvented completely by adopting this procedure. What the Attorney General has allowed is an implied amendment of the Constitution by means of committee stage amendments of a Bill. That is simply not possible.

The provincial councils have been in existence since 1987. There have been six Presidents. No President has made provisions for all the provincial council elections to be held on the same day

This will continue happening if this dishonest method of enacting legislation is allowed to stand. It means, in future, these protections mean nothing. The Bill that is presented isn’t what is finally enacted. Then, there is no remedy if there is no recourse to the Supreme Court. Casualties are the fundamental rights provisions in the Constitution. That is the gravity of crisis we are speaking about.

Q Now, the Speaker has certified it into Act. How is it possible for you to reverse it? 

We will reveal the strategies we are going to use. We believe our arguments will be answered for intervention by the Supreme Court. Without that, constitutional provisions will become total nullity.

It isn’t surprising that civil society organizations connected with elections like CaFFE, PAFFREL and Sri Lanka Bar Association have registered their strong protest regarding this matter. It is a horrendous precedent. If that is allowed to stand, there will be no rule of law in this country.

Q The Joint Opposition was unable to deny two-thirds for the Government. Doesn’t it amount to their failure?   

It isn’t a failure on the part of the Joint Opposition. Upholding of the Constitution and the protection of people’s rights isn’t exclusively the business of the Joint Opposition. The Joint Opposition has consistently been denied of the proper opportunities in Parliament. It hasn’t been given the opportunity to perform in Parliament. At the moment, there are 54 people in the Joint Opposition. But, the position of the Leader of the Opposition isn’t conceded to that group. The position belongs to a group that has only 16 seats in Parliament. The post of Chief Opposition goes to a party that has only six seats in Parliament.

The JVP and the Tamil National Alliance (TNA) are very much a part and parcel of this Government. They are an integral part of this Government. The JVP can be very vocal in its criticism of the Government. But, when it comes to something that really matters, the JVP always protects the Government. The six seats of the JVP made all the difference. Without them, two-thirds is impossible.

Q In that situation, the Government can proceed with the enactment of the new Constitution. How can you block it?   

That is a very different matter. In this case, SLMC General Secretary Nizam Kariapper said Muslims have been grievously affected. They had lost the Eastern Provincial Council. When it comes to the Constitution, quite a lot of members belonging to President Maithripala Sirisena’s group will find it impossible to raise their hands. If they raise their hands, it will be political hara-kiri for them.