{"id":82747,"date":"2018-11-03T21:36:27","date_gmt":"2018-11-04T03:36:27","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=82747"},"modified":"2019-01-11T16:26:06","modified_gmt":"2019-01-11T23:26:06","slug":"the-constitution-and-the-crisis","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2018\/11\/03\/the-constitution-and-the-crisis\/","title":{"rendered":"THE \u2018CONSTITUTION\u2019 AND THE \u2018CRISIS\u2019 Part 1"},"content":{"rendered":"

KAMALIKA PIERIS<\/em><\/span><\/h2>\n

\u00a0Pub 3.11.18 Revised\u00a0 7.11.18, 16.11.18 <\/strong><\/p>\n

This essay looks at certain matters which emerged in the appointment of Mahinda Rajapaksa as Prime Minister in October 2018. There is far too much emphasis at the moment on the legal issues relating to this matter and none at all on the politics which are at the bottom of it all. The Parliament of Sri Lanka is primarily a political institution, and there are certain political imperatives that rank way above the procedures for appointing the Prime Minister. \u00a0Let us look at some of these imperatives.<\/p>\n

The primary requirement in a democracy (sic) is to give effect to the \u2018will of the people\u2019.\u00a0 (For those who know political theory, this is not Rousseau, this is me) This \u2018general will\u2019 or \u2018will of the people\u2019 as regards the government it wants is demonstrated in three ways in Sri Lanka. Firstly in elections, which Sri Lankans love, secondly, in public assemblies and utterances. Thirdly, by strategic\u00a0\u00a0 hoots and jeers indicating political disgust.<\/p>\n

There is also a new development in the general will, worldwide. Voters at national elections now want an opportunity to change things if they got it wrong the first time. They say they were mislead by wrong information and want to undo the damage. We see this in the request for a second Brexist vote in UK. \u00a0We also see it in Sri Lanka in the reaction to the\u00a0\u00a0 defeat of Mahinda Rajapaksa in 2015.<\/p>\n

When the Presidential election results were announced, there was disbelief.\u00a0 When they saw the voting pattern, voters realized that they had been taken for a ride. \u2018Meka keruve api ne\u2019 they said and decided to try and reverse the decision. The Sri Lanka\u00a0\u00a0\u00a0\u00a0\u00a0 electorate is politically very mature, \u00a0very savvy\u00a0\u00a0 and alert. It is also highly literate. It was used to having its own way at elections.<\/p>\n

The very next day, the public ran, in droves, to Rajapaksa at his home in Medamulana. They discovered that they loved him. Throughout the past four years, they kept up the momentum. Crowds pursued him everywhere he went.\u00a0 The crowds at his functions were greater than those for Sirisena or Ranil Wickremasinghe .<\/p>\n

Rajapaksa\u2019s May Day rallies were \u00a0bursting, the Pada Yathra and Janabalaya Kolambata\u00a0 had much support. The decisive event was the \u00a0public voting in huge numbers for Rajapaksa\u2018s new, untested Pohottuwa party at the local government election of February 2018. \u00a0By all this, the public had made it abundantly clear that they wanted Mahinda Rajapaksa back and they wanted Ranil Wickremasinghe out.<\/p>\n

The public in the hinterland of the country were well aware of the doings of the Yahapalana government. Are people in the villages actually aware of the Central Bank bond scam and other such deals,\u2019 asked the Colombo elite. After recent visits to the Uva, Central and Eastern provinces, the answer to that query is in the positive, said an analyst. \u00a0<\/em>Smart phones are in use not only in urban areas but also in the rural areas. Users of these mobile phones know what is going on the centers of power.\u00a0\u00a0 Claims that complex issues, like the bond scam did not reach the countryside were incorrect.<\/p>\n

To their delight, and initial disbelief, Mahinda Rajapaksa was suddenly made Prime Minister. This was no accident. Discussions had started after the Pohottu win of February 2018, \u00a0reported Chandraprema. The 16 dissident SLFPers had maintained constant contact with President Sirisena and continued their efforts to bring the two estranged factions of the SLFP together again.\u00a0The high point in this was Basil Rajapaksa\u2019s secret meeting with President Sirisena. The mere fact that there was a meeting between the two was the first indication that something very serious was afoot, said Chandraprema. Also the repeated announcement on televisions, \u2018we want Mahinda Rajapaksa as Prime Minister \u2018<\/p>\n

The precipitating factor , according to President Sirisena was the threat of assassination. No one was surprised to hear this. It was perfectly obvious to \u00a0us all, that if the USA wanted to \u00a0achieve its objectives through Yahapalana, then \u00a0USA would have to kill. In his address to the nation, President Sirisena\u00a0 said,\u00a0 \u2018I would now like to explain\u00a0 the reason that made me appoint former President Mahinda Rajapaksa as Prime Minister and remove Ranil Wickremesinghe from the post of Prime Minister. Recently, a person called Namal Kumara came before the media and disclosed about a plot to assassinate me and Gotabhaya Rajapaksa. There is also an involvement of a Cabinet Minister in this plot to assassinate me.\u2019<\/p>\n

Nalaka Kumara\u00a0 went public. He held a press briefing at his home in Ampara on 28.10.18.\u00a0 Daily News<\/em> reported.\u2018 In a special media conference Nalaka Kumara alleged that former Prime Minister Ranil Wickremesinghe and former Minister Field Marshal Sarath Fonseka are behind giving instructions to the assassination plot against President Sirisena and former Defence Secretary Gotabhaya Rajapaksa. According to Kumara, DIG Nalaka Silva received instructions from Wickremesinghe and Fonseka to use Makandure Madush in the assassination plot. He does not have evidence\u201d, [on the matter] said Kumara, he is simply revealing what he knows.( Daily News 29.10.18).\u00a0 I saw this on Derana evening news as well.<\/p>\n

When Mahinda Rajapaksa became Prime Minister , there was jubilation. There were\u00a0 dan salas with kiribath.\u00a0\u00a0 Trishaws carried pictures of Rajapaksa. There was also an ashirvada puja in a temple.\u00a0\u00a0 Copies of the Gazette announcing Mahinda Rajapaksa \u2018s\u00a0 appointment were distributed free. \u00a0Crackers \u00a0\u00a0were lit in towns. Crackers had been lit when \u00a0Premadasa was killed, when Kilinocchi fell, when Prabhakaran was killed and now\u00a0 when Ranil Wickremasinghe was removed..<\/p>\n

At the same time, the public also showed their deep dislike of the Yahapalana government and its leader Ranil Wickremasinghe. The UNP ministers held a press conference at Temple Trees and when it was relayed live on Face book, all the comments made were hearty curses against the Yahapalana government and expressions of jubilation at their ouster, said Chandraprema.<\/p>\n

When\u00a0 Mangala Samaraweera, Rajitha Senaratne and his son Chatura went to the Rupavahini Corporation to give a live broadcast to protest against their ouster, they were prevented from doing so by the staff of Rupavahini . TV news showed this at length because it was not \u00a0the usual reaction. They were chased away amidst loudly uttered curses, jeers and obscenities, said Chandraprema. They hooted and jeered and chased after the departing cars for quite a length. This\u00a0 alone shows the extent of their\u00a0 dislike. I cannot recall such anger towards a government before.<\/p>\n

Yahapalanites\u00a0 were shocked and\u00a0 furious over the removal of Ranil Wickremasinghe. They challenged it immediately on the basis of numbers. They said it was Ranil Wickremasinghe who had the majority in Parliament, not Mahinda Rajapaksa . They wanted Parliament\u00a0 to meet immediately, to decide if Ranil Wickremesinghe or Mahinda Rajapaksa commands a majority in the House.\u00a0 But there is nothing in the Constitution about majority.<\/p>\n

Critics\u00a0 pointed out that when Ranil Wickremasinghe became Prime Minister in 2015,\u00a0 UNP only had 41 seats, SLFP had 161.\u00a0 At the time Ranil Wickremasinghe was appointed Prime Minister, there was a sitting Prime Minister, DMU Jayaratne. Yahapalanites were told\u00a0 if the appointment was not lawful, \u00a0why did not Ranil Wickremasinghe go to Supreme Court and challenge the appointment. Some\u00a0 wanted Ranil Wickremasinghe expelled from the country.<\/p>\n

An entertaining discussion about the validity of the new Prime Ministerial appointment started thereafter. \u00a0Thanks to the 19th amendment to the Constitution, the only person who can remove the Prime Minister is the Prime Minister himself, either by dying, resigning or losing support. This \u00a0amendment was brought in May 2015, after Ranil Wickremasinghe was made Prime Minister . It was\u00a0 done to make sure Ranil Wickremasinghe stayed in power. The President cannot remove him, said Yahapalana supporters triumphantly. \u2019Oh yes, he can\u2019 replied the Rajapaksa team and rattled off the relevant clauses.<\/p>\n

They pointed out, inter alia, that \u00a0\u00a0certainly, both the Sinhala and English versions say at 46\/2 that The Prime Minister shall continue to hold office until he either resigns, or ceases to be an MP. That was Yahapalana\u2018s argument. \u00a0\u00a0But\u00a0 section 47\/2 says something\u00a0\u00a0 different.\u00a0 Notwithstanding the death, removal from office or resignation of the Prime Minister\u201d\u00a0 said the English text. Agamethi\u00a0 miya giye vuvada, durayen evat karanu labu veda, asvuye vu vada said the Sinhala text.\u00a0 At 48\/1 the Sinhala text repeats this statement in a different tense, \u2018 Durayen ivat karanu labeemen\u2019\u00a0 and that,\u00a0 said the Mahinda Rajapaksa team clinches the issue.<\/p>\n

The Mahinda Rajapaksa team stated that it is the Sinhala version which is legal. This cannot be contested. It has been long accepted that where texts differ, the Sinhala text takes precedence.\u00a0 G.L. Pieris\u00a0 added \u2018I was a member of Parliament when the 19th Amendment was discussed and enacted by Parliament. It was the Sinhala version which was put to the House, clause by clause, during the Committee Stage. The English version did not receive the attention of Parliament at all.<\/p>\n

Yahapalanites\u00a0\u00a0 refused to stay silent.\u201dIf a Sinhala translation of the Constitution has a reference to “removal”, that word cannot be used to undermine the specific provisions on termination of the term of office of a PM, and argue for an open ended, discretionary,\u00a0and different concept of Presidential “removal”, said one critic.\u00a0 It is hard to understand how a single word incorporated into the Sinhala copy of the Constitution (perhaps by a single legal draftsman struggling with translating a legal document using two languages) can give legitimacy to actions taken by the President\u00a0 Sirisena last week when they are contrary to specific provisions in the Constitution.<\/p>\n

It is very clear that President Sirisena, in his appointment of Mahinda Rajapaksa as the Prime Minister, replacing former Prime Minister Ranil Wickremesinghe, has acted constitutionally and practically, said Dr. Jayatissa de Costa. The country is still governed by the 1978 Constitution and it is Presidential rule. The Constitution says, \u2018the President shall appoint as Prime Minister, a member of Parliament who, in his opinion, is most likely to command the confidence of parliament. \u2018Therefore, I think this decision taken by the President is in accordance with the Constitution.\u201d\u00a0 A similar incident happened in Pakistan in the case Asma Jilani Vs the Govt. of the Punjab over the awarding of military degrees. The judges of the Supreme Court had to decide and they used the doctrine of necessity.<\/p>\n

Pointing to the recent Local Government elections, de Costa \u00a0said,\u00a0 Sri Lanka Podujana Peramuna had swept the boards across the country and they clearly won the election.Hence, the SLFP and the SLPP together would far exceed over 50% even at a General election. This combination is adequate,\u201d he said, adding that it is clear that the President had exercised his powers in this instance in accordance with the provisions of the Constitution and in a practical sense.<\/p>\n

In addition, all the Governors of the nine provinces have also accepted the new government under Sirisena and Rajapaksa.. Hence, the above doctrines are applicable here,\u201d Costa blamed the 19th Amendment to the Constitution for the current predicament. What was promulgated as the 19th Amendment is a recipe for disaster,\u201d he said, \u00a0however, the country must run.<\/p>\n

Mahinda Rajapaksa was recognized as Prime Minister\u00a0 by no less a country than China. The ambassador for China met Ranil Wickremasinghe and Mahinda Rajapaksa and thereafter recognized Mahinda Rajapaksa \u00a0as Prime Minister and conveyed to him the \u00a0greetings of the\u00a0 President of China. He posed for a photo with Mahinda Rajapaksa . The nine Governors of Provinces also stated that they unanimously supported Mahinda Rajapaksa. K.C.Loganathan, Governor Western Province,\u00a0 \u00a0the \u00a0spokesman said that [with Yahapalana]\u00a0 they\u00a0\u00a0 could not carry out any work in the Province due to interference from Colombo.<\/p>\n

There are two opposite reactions to the return of Mahinda Rajapaksa. Ven. Keppetiyagoda Siriwimala Nayake Thera of Rajopawanaramaya Peradeniya and members of the Sri Lanka Ramanna Nikaya issued s statement\u00a0 where he hailed the action taken by President Sirisena at a time of political crisis in the country.<\/p>\n

The Yahapalana administration led by former Prime Minister Ranil Wickremesinghe was responsible for the political chaos in the country during the past three and a half years he said. former President Mahinda Rajapaksa in his capacity as the New Prime Minister would be competent to restore the country to normalcy after resolving the many issues created by his predecessor. The entire Sri Lankan nation had\u00a0 confidence that Prime Minister Mahinda Rajapaksa, with his far-sighted patriotism and courage, \u00a0\u00a0would efficiently resolve the many burning issues created by the Wickremasinghe regime during the past years.<\/p>\n

The National Christian Council of Sri Lanka (NCCSL) said in its statement: It is with a sense of shock and dismay we received the announcement on the evening of Friday 26 October 2018 of the swearing-in of Minister Mahinda Rajapaksa as the Prime Minister of our country by President\u00a0 Sirisena, and the removal of the serving Prime Minister, Ranil Wickremesinghe from such office.<\/p>\n

The NCCSL takes serious note of this political development and considers this unprecedented move which is questionable in terms of the accepted norms of democratic principles and the provisions in our Constitution. It is our belief that the matter should have been best resolved in Parliament in a transparent manner with adherence to stipulated and clear procedures. The turn of events shrouded in secrecy and surprise, we regret, has raised many questions in the minds of our people instilling fear and uncertainty as we witness two competing Prime Ministers together with their respective parties jostling for power, authority and legitimacy for state rule.<\/p>\n

The NCCSL statement has been signed by Rev. Heshan de Silva, Chairperson of the National Christian Council of Sri Lanka, and President, Sri Lanka Baptist Sangamaya Rt. Rev. D.R. Canagasabey, Bishop of Colombo, Church of Ceylon, Diocese of Colombo, Rev. Saman Perera, President, Presbytery of Lanka, Rt. Rev. Dr. Daniel S. Thiagarajah, Bishop of Jaffna Diocese, Church of South India, Rev. Asiri P. Perera, President\/Bishop, Methodist Church of Sri Lanka, Rt. Rev. Keerthisiri Fernando, Bishop of the Church of Ceylon, Diocese of Kurunegala, Rev. Shirley Faber, President, Christian Reformed Church, Colonel Yousaf Masiah, Territorial Commander, The Salvation Army, Rev. G. Nadarajah, President, Lanka Lutheran Church, Rev. Michael Dissanayake, General Superintendent and Chairman, Assemblies of God of Ceylon, Rev. Leslie Keegal, President, Church of the Four Square Gospel Church in Sri Lanka, Rev. T. Thevanesan, President, Church of the American Ceylon Mission and Rev. W.P. Ebenezer Joseph, General Secretary, National Christian Council of Sri Lanka. The NCCSL also represents Young Men\u2019s Christian Association (YMCA), Young Women\u2019s Christian Association (YWCA), Student Christian Movement (SCM), The Ceylon Bible Society Christian Literature Society, Theological College of Lanka. Back to the Bible Broadcast, Colombo Theological Seminary and Youth for Christ.<\/p>\n

The world reaction to the appointment of Mahinda Rajapaksa as Prime Minister is significant and should act as a wakeup call\u00a0 for the public .The UN acted correctly. Its representative\u00a0 met the President who\u00a0 responded.<\/p>\n

The Delegation of the European Union said in a statement issued in agreement with the EU Heads of Mission resident in Colombo\u00a0 that\u00a0 the Ambassador of the European Union as well as the Ambassadors of France, Germany, Italy, the Netherlands, Romania and UK\u00a0 are closely following the events as they are unfolding in Sri Lanka. UK parliament\u00a0 said\u00a0 that\u00a0 they recognize Ranil Wickremasinghe as Prime Minister.<\/p>\n

Canada issued a\u00a0 separate statement. “Canada is very concerned by the recent events in Sri Lanka and is closely monitoring the situation.” A number of countries, including the United States, United Kingdom, European Union and several other European countries, Australia and India have\u00a0 expressed concern over the sudden transition of power by President sacking Prime Minister Ranil Wickremesinghe and appointing former president Mahinda Rajapaksa as the Prime Minister, concluded Canada.<\/p>\n

USA\u00a0 which was so brash and confident in 2015,\u00a0 has turned cautious. The acting US Ambassador\u00a0 together with the\u00a0 Head of the Political Division in the embassy had met\u00a0 with Speaker. They\u00a0\u00a0\u00a0\u00a0 said they were surprised at the developments and they were watching. In Washington, the spokesman for the Secretary of State was evasive when\u00a0\u00a0 asked whether USA would take action on the coup. The spokesman replied that the United States believes the determination should be made in accordance with the Sri Lankan law and due process.<\/p>\n

Gro Harlem Brundtland, former Prime Minister of Norway \u00a0advised, “Sri Lanka is facing an unprecedented constitutional crisis which must be urgently resolved by peaceful and legal means. The country cannot afford reckless political maneuvers advised. Lakhdar Brahimi, former Foreign Minister of Algeria, said:”In all its years of conflict and anguish, Sri Lanka has never experienced such a serious constitutional crisis. The country\u2019s leaders must abide by its traditions of constitutional law and parliamentary democracy.<\/p>\n

This \u00a0transfer of power is a good opportunity for the watching public to see how the western media and western agencies distort local events and also \u00a0how local events are stage managed \u00a0for the purpose. The UNP show of strength\u00a0 is a good example. This \u00a0smallish gathering\u00a0 included NGOs and civil society members as well. That explains why the crowd looked\u00a0 unconcerned and indifferent. \u00a0Some were dancing the baila. A true UNP gathering would have been very different. They would have wanted to tell Ranil Wickremasinghe a few things.<\/p>\n

BBC\u00a0 showed a shot of the crowd, referred to it as a massive meeting , said that Temple Tress was the true seat of power in Colombo\u00a0 and asked for comment from their reporter in Colombo. The reporter told the truth. She said that the public disliked Ranil Wickremasinghe , the gathering\u00a0\u00a0\u00a0 shown on\u00a0 video was mostly \u2018civil society\u2019 and that the Sinhala version of the Constitution\u00a0 supported the transfer of power. But Reporters without Borders (RSF) said\u00a0 \u2018Tens of thousands of Wickremesinghe supporters blocked roads in Colombo on Tuesday\u2019.<\/p>\n

Reporters without Borders\u201d (RSF)\u00a0 also said supporters of former president Mahinda Rajapaksa stormed state-owned media institutions shortly after he was controversially named Prime Minister on Friday. “The violence with which Mahinda Rajapaksa\u2019s bully boys took over the state media is absolutely unacceptable,” RSF\u00a0 said<\/p>\n

Minutes after Rajapaksa was sworn in, his Sri Lanka Podujana Peramuna (SLPP) party activists invaded the newsrooms of various state media. RSF said the SLPP activists forced journalists at the\u00a0Daily News\u00a0and the Lake House group\u2019s two leading weeklies,\u00a0Silumina\u00a0and\u00a0Sunday Observer, to change the front pages of their next issues. They took control of the two public service TV channels,\u00a0Rupavahini\u00a0and\u00a0ITN, the radio stations that are part of the\u00a0Sri Lanka Broadcasting Corporation, and the\u00a0Lake House\u00a0press group.RSF said the constitutional crisis recalled the “darkest hours of the Rajapaksa presidency between 2005 and 2015,” when he lost an election to current president Maithripala Sirisena, said RSF.<\/p>\n

From simple distortion we move on to more serious\u00a0 observations, containing veiled threats. .My\u00a0 example is from Human Rights Watch. Human Rights Watch issued a statement, where it said, inter alia, \u201dSri Lankan President Maithripala Sirisena\u2019s decision on October 26, 2018, to appoint former President Mahinda Rajapaksa as prime minister has raised fears about a return to past abusive practices in the country The sudden announcement to sack Prime Minister Ranil Wickremasinghe, was made without informing Parliament or the Cabinet.<\/p>\n

“Rajapaksa\u2019s return to high office without any justice for past crimes raises chilling concerns for human rights in Sri Lanka,”\u00a0 continued Human Rights Watch. The current government\u2019s failure to bring justice to victims of war crimes under the Rajapaksa government reopens the door for past abusers to return to their terrible practices.”<\/p>\n

Rajapaksa\u2019s administration was implicated in violations during the final stages of Sri Lanka\u2019s brutal civil war and in suppression of freedoms of the media, expression, and association.\u00a0 Military forces under Rajapaksa\u2019s authority indiscriminately attacked civilians and summarily executed prisoners during the final months of fighting against the Liberation Tigers of Tamil Eelam (LTTE), continued Human Rights Watch.<\/p>\n

People with suspected links to the LTTE were subject to arbitrary arrest, torture and sexual violence, extrajudicial killings, and enforced disappearances. Journalists and activists critical of the Rajapaksa government faced harassment, arrest, and even physical attack. The media outlets, rights organizations, and victims\u2019 groups who had been vocal and free from government threats now fear a return to anxiety and fear, concluded Human Rights Watch.”<\/p>\n

The Yahapalana reliance on foreign countries was made clear when Ranil Wickremasinghe invited the ambassadors of EU, USA, India, Japan, Australia and Canada for a discussion at Temple Trees after he was deposed as Prime Minister. He has wanted to internationalize the issue.<\/p>\n

Thereafter he wrote to the ambassadors of USA, UK, Germany France, Norway and Italy, on the letter head of the Prime Minister of Sri Lanka, saying that he sought their cooperation to protect Sri Lanka and its peace. He said, please consider the possibility of deploying UN Peacekeeping Force here, and let me know.<\/p>\n

It is of note that instead of seeking the support of his own people when removed as Premier, Ranil Wickremasinghe turned to his mostly Western friends and allies, said Tamara Kunanayagam. The intention was to agree on a narrative that helps legitimize external intervention, she said. A photo of this letter is available on Lankaweb (https:\/\/www.lankaweb.com\/news\/items\/2018\/10\/31\/call-for-ranil-to-be-indicted-for-high-treason<\/a>)<\/p>\n

Ambassadors of EU, UK, Canada, and Germany \u00a0\u00a0had warned the Speaker of inimical outcome of the unexpected transfer of political power\u2019 and the unfriendly situation the country could face. There was also a comment that the crisis could lead to a “bloodbath” on the streets if\u00a0\u00a0 Parliament does not hold a vote soon. \u00a0The Speaker\u2019s Office said that Jayasuriya urged the delegation not to take action against Sri Lanka.<\/p>\n

Foreign intervention can be carried out in several ways. One possibility is the Right to Protect Strategy (R2P) which gives countries the right to invade other countries saying the people in it need to be protected.\u00a0 R2P\u201d is definitely the line which interested western countries will try to use to invade Sri Lanka and therefore, Sri Lanka should\u00a0\u00a0 be alert about R2P. Tamara Kunanayagam has repeatedly drawn attention to this danger. , Damien Kingsbury has written on Sri Lanka and the Responsibility to Protect\u201d.<\/p>\n

Sri Lanka tumbled into the R2P scenario in 2008. In 2008, there was an attempt to make the International Centre for Ethnic Studies in Colombo into the Southern affiliated centre of the Global Centre for the Responsibility to Protect. ICES was listed as such on the website of the Global Centre. Rama Mani, the ICES director responsible for this activity had her visa revoked and was asked to leave the country.\u00a0 Rama Mani and Radhika Coomaraswamy were on Advisory Board of the Global Centre.<\/p>\n

Before that, Gareth Evans, the head of Global Centre for the Responsibility to Protect, was invited to deliver the Neelan\u00a0Tiruchelvam\u00a0Memorial Lecture 2007. In his talk he said that mismanagement of the Eelam issue could lead to international intervention. There were murmurs but since this was almost a private function, nothing transpired.<\/p>\n

In 2000 an International Commission on Intervention and State sovereignty (ICSS) was created in Canada, with funding from the government of Canada. Its head was Gareth Evans, also head of the International Crisis Group. ICISS was convened, to provide information to UN Secretary General Kofi Annan, on the subject of\u00a0 intervention .<\/p>\n

ICISS issued a report titled \u2018Responsibility to Protect\u2019\u00a0 in 2001.This put forward the idea that\u00a0 when any group\u00a0 faced a crisis in a sovereign state,\u00a0 the international community\u00a0\u00a0 could respond by, inter alia, \u00a0coercive actions and military intervention,\u00a0 and\u00a0 bring \u2018security and justice\u2019 to the victim population. This was an attempt to set a new set of rules that might allow intervention in sovereign matters.<\/p>\n

R2P argued that when the sovereign state was unable or unwilling to protect its people from internal war or repression the principle of non-intervention in the affair of sovereign states must give way to the international responsibility to protect. R2P wanted to bypass Security Council permission to invade. This was rejected. Security Council authorization remained.<\/p>\n

Countries feared that R2P would be used to legitimize military actions intended to advance imperial ambitions, rather than human protection. R2P is just another pretext to justify neo colonial intervention in the domestic affairs of developing nations, said Ajit Randeniya. R2P has still not been formally accepted, observed G.L.Pieris.<\/p>\n

R2P has not been accepted by the UN though supporters of R2P say so. At the UN World Summit, 2005 R2P was reluctantly included into the statement, and given minimum mention in items 138 and 139.This is not the victory it is made out to be. UN appointed a Special Adviser on the Responsibility to Protect<\/a> in 2009. \u00a0This Special Adviser is responsible for the further development and refinement of the concept as well as for the continuation of dialogue with Member States.<\/p>\n

R2P was debated in UN General Assembly in 2009 with 94 member states voicing concerns and the resulting resolution only records that it had taken note of R2P.\u00a0 In 2018, UN General Assembly include R2P, with prevention of genocide, war crimes, ethnic cleansing and crimes against humanity” as part of the Agenda of its 72nd session. Delegates have talked and talked but nothing seems to have been decided. It is most unlikely that UN member states will allow blanket R2P, \u00a0but it is best to be watchful.<\/p>\n

The Constitution of Sri Lanka has\u00a0 been invoked in the appointment of Mahinda Rajapaksa as Prime Minister.\u00a0 The present\u00a0 Constitution is the old 1978 Constitution with 19 amendments added on. The original\u00a0 1978 Constitution\u00a0 converted\u00a0 Sri Lanka abruptly from\u00a0 traditional Parliamentary rule to extreme Presidential rule. It was specifically\u00a0\u00a0 designed to\u00a0 give excessive powers to the then President, J.R.Jayewardene, who was\u00a0 pro USA. These powers\u00a0\u00a0 were hidden in the body of the text.<\/p>\n

I had looked at the original 1978 Constitution but not its numerous amendments. The present \u2018crisis\u2019\u00a0\u00a0 sent me to the 2015 version of the Constitution of Sri Lanka. This Constitution \u00a0contains howlers.\u00a0 The Legislative function of Parliament usually takes precedence over the Executive and the Judiciary. But in the Constitution of Sri Lanka, the Legislature\u00a0\u00a0 appears at Chapter X, behind Executive, Cabinet, Constitutional Council and Public Service Commission. In Chapter XI, legislative power\u2019 (75) comes after \u2018voting\u2019 (72) \u2018quorum\u2019 (73).This indicates the low importance placed on actual law making.<\/p>\n

The Constitution declares at 30\/1\u00a0\u00a0 that\u00a0\u00a0 \u2018there shall be a President of the Republic of Sri Lanka who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces\u2019. Section 33\/2 says President shall have the sole \u2018power to declare war and peace\u2019 . Yahapalanites state that these powers are now restricted by Section 33A which says \u2018The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers\u2019.\u00a0 Howlers appear when you look at this provision closely. They make it difficult to go ahead with 33A.<\/p>\n

Section 33\/2\/C states that the President shall have the power to summon, prorogue and dissolve parliament. Therefore, the President has to summon Parliament before Parliament can summon the President.\u00a0 Section 32\/3 says ‘The President shall, by virtue of his office attend Parliament once in every three months\u201d but Section 70\/2\u00a0\u00a0\u00a0 says \u2018Parliament shall be summoned to meet once at least every year\u2019. This means is that the President can summon Parliament\u00a0 once a year, (or once in three months,) and tell Parliament what he did or what he\u00a0 plans to do.<\/p>\n

The problem does not end there. Section 33A is far too vague for the vast powers given to the President.\u00a0\u00a0 Section 33A\u00a0 <\/em>\u00a0does not say what Parliament should do after listening to the President. Does it have the power to approve, ratify or cancel any action taken by the President?\u00a0\u00a0 If so, why have an Executive President at all. The work can be done better by a Prime Minister\u00a0\u00a0\u00a0\u00a0 answerable to Parliament, like in the old days.<\/p>\n

We could attach another observation to this analysis. The value of Parliament lies in the fact that its members are elected by the people. When Parliament includes persons who actually lost the election, (coming in through the National list), it no longer represents the people.\u00a0 It is a tainted Parliament, sort of \u2018kiri hattiyata goma.\u2019 If so, it also loses the right to judge the President, who at least is directly elected.<\/p>\n

A constitution must be able to accommodate change and respond to public opinion. When the public are\u00a0 fed up with the government they elected,\u00a0 the head of state must be able to dissolve Parliament and go for elections.\u00a0 If the Prime Minister is\u00a0 exceeding his role and also the trust\u00a0 placed in him, \u00a0the Constitution must enable the Head of State to dismiss the Prime Minister. Sri\u00a0 Lanka\u00a0 showed through demonstrations and elections\u00a0 that they wanted a change of\u00a0 government and also that it wanted Ranil Wickremasinghe removed.<\/p>\n

The 19th amendment was set in place to make sure that neither of these happened and\u00a0 that the present puppet government would continue till its purpose was achieved. Under the 19th<\/sup> amendment, there were two undemocratic features.\u00a0 the Prime Minister\u00a0 could not be dismissed by the Head of State once appointed, and\u00a0 the Yahapalana Parliament could not be dissolved for four years. Within those four years, it was\u00a0 hoped\u00a0 that USA could take full\u00a0 control of the country, own its land, destroy its people and move \u00a0the USA\u2019s 7th fleet\u201d into Trincomalee.<\/p>\n

(to be Continued)<\/p>\n","protected":false},"excerpt":{"rendered":"

KAMALIKA PIERIS \u00a0Pub 3.11.18 Revised\u00a0 7.11.18, 16.11.18 This essay looks at certain matters which emerged in the appointment of Mahinda Rajapaksa as Prime Minister in October 2018. There is far too much emphasis at the moment on the legal issues relating to this matter and none at all on the politics which are at the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[104],"tags":[],"class_list":["post-82747","post","type-post","status-publish","format-standard","hentry","category-kamalika-pieris"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/82747","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=82747"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/82747\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=82747"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=82747"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=82747"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}