Determination to be conveyed to President, Speaker
By Chitra Weeraratne and A.J.A. Abeynayake
The Supreme Court yesterday concluded the hearing of petitions for and against the constitutionality of the proposed 20th Amendment to the Constitution. The decision of the court will be conveyed to the President and the Speaker.
The five-Judge Bench of the Court heard petitions for the fourth day yesterday.
Thirty nine petitions were filed against the proposed 20th Amendment to the Constitution.
The immunity granted to the President in Article 35, was only during his term of office, Attorney General, Dappulu De Livera informed the Court yesterday.
He appeared for the state, pertaining to the Bill.
President’s Counsel De Livera explained that according to the 20th Amendment the decisions of the Supreme Court were final. Similarly, the Parliament enjoyed certain immunity. There was immunity around every organ of the government, he said.
The immunity under Article 35, was only confined to the term of office in the Bill, but liable thereafter.
“Article 31 states that the President is the Head of Armed forces, according to the amendment. This is needed for public safety, law and order during natural disasters and catastrophes.
If the acts of the President is to be obstructed it will affect all the aforesaid issues. If the President’s actions as are to be subjected to judicial review it will impede his work. This immunity is in Article 35.
In the amendment the President is vested with immunity to safeguard the nation and national security.
The Article 126 jurisdiction is not necessary in view of Article 138 in the Bill, which is a constitutional check on the President.
If the President is constantly pulled back by Article 126, his work will be impeded. The Article 138 in the Bill checks on the acts of the President.
In a vibrant democracy this check has to operate.
In terms of Article 131, the President Exercised Executive power. If that was impeded the sovereignty of the people would be affected.
If the Acts of the President were subject to constant judicial review, his work as President would be impeded. The President had to exercise executive power in public interest and no other, the AG argued.
The AG submitted that Article 126 jurisdiction amounted to a fetter on the presidential acts. He then referred to the dissolution of Parliament in section 14 of the Bill, which seeks to restore the power of the President to dissolve Parliament within one year.
The power to dissolve is granted to the President in public interest. When the President exercises the power vested in him under Article 70, the franchise of the people is ensured. When Parliament is unstable the sovereignty of the people has to be protected. The Executive under public interest can handle instability. Parliament may be elected by the people. If a bad situation arises, the Parliament should be dissolved and the people will be asked to give a fresh mandate.
The Prime Minister has to command the confidence of the Parliament. If that is lost, the remedy is for the President to remove him.
The power to remove the Prime Minister in public interest is vested in the President in the new amendment.
The four-and-a half-year period for the dissolution of Parliament had proved ineffective. The Parliament must go on for the welfare of the people, not otherwise when Constitutional Council is replaced by Parliamentary Council, the institution had only been re-defined, the AG added.
The final decision maker was the President. He would exercise t in public interest, the AG added.
“The Executive Power is in the President, not in the Constitutional Council. The President’s hands are not tied.
On Wednesday (30), counsel appearing on behalf of 32 of the petitions filed challenging the proposed constitutional amendment concluded their statements.
When the petitions were taken up on Friday (02), the counsel representing all 39 petitions against the constitutional amendments concluded their oral submissions against the original draft of the 20th Amendment.
During the hearings last week Attorney General Dappula de Livera informed the Supreme Court that amendments would be introduced during the committee stage debate in Parliament on the draft 20th Amendment.
The Samagi Jana Balavegaya (SJB) and the Tamil National Alliance are among the groups that filed petitions in the court against the 20th Amendment to the Constitution.
The five-Judge bench of the Supreme Court headed by Chief Justice Jayantha Jayasuriya commenced hearing of the petitions last Tuesday (Sept. 29).
The bench includes Justices Buwaneka Aluwihare, Justice Sisira de Abrew, Justice Priyantha Jayawardena and Justice Vijith Malalgoda.
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AG not bound by its recommendations, yet to receive report
PCoI on Easter Sunday attacks:
By Shamindra Ferdinando
Attorney General Dappula de Livera, PC is not bound by recommendations made by the Presidential Commission of Inquiry (P CoI) into the 2019 Easter Sunday carnage, or presidential directives in that regard, according to authoritative sources.
They said that the AG couldn’t under any circumstances initiate legal proceedings until he had received the full PCoI report.
President Gotabaya Rajapaksa received the PCoI report on Feb 1. The President’s Office delivered a set of PCoI reports to Speaker Mahinda Yapa Abeywardena on Feb 23, a day after the report was presented to the cabinet of ministers. The Island raised the matter with relevant authorities in the wake of a section of the media reporting the PCoI recommending punitive measures against former President Maithripala Sirisena, Defence Secretary Hemasiri Fernando, IGP Pujitha Jayasundera, Chief of State Intelligence Senior DIG Nilantha Jayawardena, Chief of National Intelligence retired DIG Sisira Mendis and All Ceylon Makkal Congress (ACMC) leader and Samagi Jana Balavegaya MP Rishad Bathiudeen et al over the Easter Sunday carnage.
Sources pointed out that due to the inordinate delay in sharing the PCoI report with the AG, the department hadn’t been able to take preliminary measures required to initiate the proceedings. Sources said that a team of officers would take at least six weeks or more to examine the report before tangible measures could be taken.
With the AG scheduled to retire on May 24, 2021, even if the AG Department received the P CoI it would be quite a tough task to initiate proceedings ahead of retirement, sources said. However, in terms of the 20th Amendment to the Constitution enacted in last October, both the AG and the IGP could receive extensions beyond 60 at the President’s discretion.
Dappula de Livera received an Acting appointment as the AG a week after the Easter Sunday carnage whereas his predecessor Jayantha Jayasuriya, PC, was elevated to Chief Justice.
Responding to another query, sources said that the Attorney General two weeks ago requested Secretary to the President for a copy of the P CoI. However, the AG was yet to receive one, sources said. In spite of the AG not receiving a P CoI copy, the AG had instructed the IGP to obtain a copy of the report when he requested the police to complete investigations into the Easter Sunday carnage. The AG issued specific instructions after having examined police files pertaining to the investigations.
The IGP, too, hadn’t received a copy so far though some sections of the report were in the public domain.
Agriculture Minister Mahindananda Aluthgamage displayed at a live political programme on Derana a copy of the P CoI report he received at the cabinet meeting earlier in the day.
Sources said that the Attorney General’s Department couldn’t decide on a course of action in respect of the Easter carnage on the basis of a section of the report. In terms of the Commission of Inquiry Act (Section 24), the AG enjoyed significant powers/authority in respect of investigations; sources said adding that the Department urgently required both the P CoI report and police investigations report. The Attorney General’s Department has raised the delay in receiving a P CoI report amidst the Catholic Church attacking the government over the same issue.
Sources said that ministerial committee appointed to study the P CoI report couldn’t decide on how to proceed with the recommendations and the matter was entirely in the hands of the AG. Sources pointed out that the delay on the part of the government to release the report had received the attention of sections of the international media, including the New York Times. Public Security Minister retired Rear Admiral Sarath Weerasekera having met Malcolm Cardinal Ranjith at the Bishop’s House on Dec 8, 2020 said that the AG would get a copy of the P CoI report once the President received it. Minister Weerasekera said that the CID had handed over the relevant files after having completed investigations into eight blasts. Referring to the Parliamentary Select Committee (PSC) report on the Easter Sunday carnage, the former Navy Chief of Staff said that all such documents would have to be brought to one place and considered before initiating legal proceedings. Acknowledging that there could be delays, lawmaker Weerasekera said that on the instructions of the Attorney General a 12-member team of lawyers was working on the case. The minister vowed to expose the mastermind behind the Easter Sunday attacks. Investigations continued while some of those wanted were overseas, the minister said.
The minister acknowledged that the Attorney General couldn’t proceed without the P CoI report. Minister Weerasekera reiterated that once the President received the P CoI report, it would be sent to the Attorney General. The minister said that there were documents two to three feet high that needed scrutiny. The minister assured comprehensive investigation. The minister said that investigations pertaining to eight blasts had been completed and the reports handed over to the AG. However, the Attorney General had found shortcomings in those investigations.
JVP picks holes in PCoI report
By Saman Indrajith
The Presidential Commission of Inquiry on the Easter Sunday bombings had failed to identify the mastermind of , the JVP said yesterday.
Addressing the media at the party headquarters in Pelawatte, JVP Propaganda Secretary MP Vijitha Herath said that the PCoI report had levelled accusations against former President Maithripala Sirisena, former IGP and head of intelligence for their dereliction of duty, shirking of responsibilities and not taking action to prevent the attacks and negligence. There were reference to the causes of the terror attacks and actions to be taken to avoid such attacks and the influence of extremist organisations. “However, there is no mention of the mastermind of the attacks, the handlers of the attackers and those whose interests the carnage served. It is also not mentioned whether there has been any foreign or local organisation behind those attacks. As per the PCoI report the attack took place as a result of culmination of extremism.
“According to the PCoI the extremist activities were a result of the prevailing political situation then. The entire nation was waiting to see who was responsible and who masterminded those attacks. The PCoI has failed to identify the true culprits responsible for the terror attacks. The report says that the leader of the suicide cadres killed himself in the attacks and it was a puzzle. That means those who are actually responsible for the attacks are still at large. The report does not provide exact details of the sources of the attacks. The PCoI had sittings for one year and five months. It summoned various persons and got their statements but it has failed to shed any light on the terror attacks. Everybody knows that the top leaders of the government and heads of security and intelligence establishments failed in their duties. Ranil Wickremesinghe was the second in command and he too is bound by the responsibility but the PCoI report fails to identify him as one of the persons against whom legal action should be instituted. The PCoI has treated Wickremesinghe and former President Maithripala Sirisena differently. We are not telling that this report is a total failure but we cannot accept this as a complete report. The PCoI handed over its report to the President on Feb 1. After 23 days it was sent to Parliament. Now, a copy of the report is there in the parliamentary library for the perusal of MPs.”
Herath said that the PCoI did not have powers to take punitive action. “It only has powers to name those responsible and recommend action to be taken against those named.
TNA MP faults govt. for delay in answering questions, gets under Johnston’s skin
By Saman Indrajith
It did not matter whether the MPs were wearing pressed clothes or had travelled long distances when their questions were answered, Chief Government Whip Johnston Fernando told Parliament yesterday.
The Minister said so in response to a complaint by Batticaloa District TNA MP Shanikyan Rasamanikkam, who expressed his dismay for government taking time to answer a question raised by him.
MP Rasamanikkam has raised a question whether the Minister of Health is aware that the Dikkodai ospital, located in the Batticaloa district is not used for public purposes and the patients who visit the hospital for receiving services, face inconveniences, owing to that. On behalf of the Minister of Health, the Chief Government Whip and Minister asked for additional two weeks time.
MP Rasamanikkam: I come to parliament from Batticaloa, which is 422 km away. To attend Parliament we take great care including pressing our clothes. After taking so much trouble to come there braving the pandemic threat we do not get answers. There is a Health Minister and Acting Health Minister and neither of them is here. I saw Minister Dr Sudarshini Fernandopulle in the House this morning. She too has gone out. I travel more than 800 km. We could attend to many other problems. It is because the government does not give answers we are conducting protest marches, but when we do so we are hauled up before courts.
Chief Government Whip Minister Johnston Fernando: Every MP comes here wearing pressed clothes. But that has nothing to do with questions and answers here. I have been requested by the subject minister to ask for two weeks’ time. The MPs have a right to ask questions and in the same way the ministers have the right to ask for time. On the other hand, whether you cover 400 km to reach parliament does not matter. The majority of MPs travel 200 to 250 kilometers to come to Parliament. It is for that purpose they contest elections and get elected. Once elected the distance is not an issue you have to come to Parliament. The government has answered all your questions. This is the first time the Minister has asked for additional time. It is unfair for you to level charges. A more responsible conduct is expected of you as an upcoming political leader.