Editorial/Opinion

Gota’s prez dream faces hurdles

The previous week’s final vote on the Budget 2019 is likely to have lain to complete rest, the grand alliance initiative between the President Maithripala Sirisena-led Sri Lanka Freedom Party (SLFP) and the Sri Lanka Podujana Peramuna (SLPP) led by former President, Opposition Leader Mahinda Rajapaksa.
Many from SLPP saw this as a hypocritical move on the part of the SLFP leadership to cling on to power with the current executive having just eight months and 25 days left in the hot seat.
SLPP stalwart and Rajapaksa strongman Prasanna Ranatunga, addressing the Graduates Wing of the SLPP in Gampaha last week, heavily criticised Sirisena’s wavering and inconsistent policies, calling for a review of SLPP-SLFP talks for a broader coalition.
“It is regrettable that SLFP MPs abstained from voting the UNP’s ‘dream’ Budget 2019. However, President Sirisena, who attended the United People’s Freedom Alliance (UPFA) Parliamentary Group Meeting the previous day (4), extolled that this Government should be changed. He lamented that the UNP Government won’t let him do anything and was pulling his leg. Although the President whined and criticised the UNP, the next day, he instructed his MPs to abstain from voting. Indirectly, what the President and SLFP did was to safeguard Ranil and his Government. This is nothing but hypocrisy. This clearly shows the two-faced nature and duplicity of the SLFP,” lambasted Ranatunga.
Joining the others, Ranatunga too hinted at calling off of SLPP-SLFP talks.
“We cannot condone the SLFP’s actions at all. If they are criticising the Government, they should have the backbone to take a firm decision. From 8 January, what they did was to fool both SLFPers and Sri Lankans at large. They have backstabbed the people. We don’t need to be fooled by SLFP any further. We need not fall into the same pit again. Therefore, we must rethink the SLFP-SLPP alliance discussions. The leaders of the Joint Opposition should take a decision on this.”
It is learnt that a delegation of SLPP strongmen are to meet Mahinda Rajapaksa soon in order to request the immediate calling off of alliance talks.
In this light, SLFP General Secretary Dayasiri Jayasekara too said that it was none other than President Sirisena who had requested SLFP MPs not to vote against the Budget, as he would be placed in an uncomfortable position if so. However, Jayasekara reiterated that the SLFP would be ready at any moment to topple the Government, if the Opposition could muster the necessary 113 majority.

Mixed signals

Be that as it may, addressing the media last week, Rajapaksa too gave mixed signals, showing that the inner circle of the SLPP was unwilling to call off its talks with SLFP for reasons best known to them.
Rajapaksa publicly announced that they had shown the red light to the Government by voting against the Budget, but added that the decision on the presidential candidate of the opposition forces would be taken after due consultations with President Sirisena.

Gota’s summons

This week, two incidents that took place outside of Sri Lankan shores made breaking news of many local media outlets. Both incidents relate to the handing over of notice of civil lawsuits to Former Defence Secretary and SLPP presidential hopeful Gotabaya Rajapaksa in California. He is currently in the process of relinquishing his US citizenship.
It is learnt that slain Sri Lankan Investigative Journalist and Founder Editor-in-Chief of The Sunday Leader Lasantha Wickrematunga’s daughter Ahimsa, filed the first case, alleging that the assassination of her father was carried out under the guidance and instructions of the former Defence Secretary.
Meanwhile, South Africa-based International Truth and Justice Project (ITJP), issuing a statement, announced that it too had filed a case against Rajapaksa over the alleged physical and mental torture of a Tamil detainee Roy Samathanam between 2007 and 2008, during Rajapaksa’s tenure.
Captioning the photograph, certain social media reported that the notice of civil lawsuit had been served to Rajapaksa near a Trader Joe’s shopping mall in Pasadena, California. Rajapaksa, who is a citizen of the US, is currently on a tour in the US and was scheduled to return to Sri Lanka on Friday (12).
In its statement, Johannesburg-based International Truth and Justice Project (ITJP) stated that the ITJP and the US law firm Hausfeld had filed a civil damages case in California against former Sri Lankan Gotabaya Rajapaksa on behalf of a Tamil torture survivor. Samathanam made the complaint in the Central District of California against Rajapaksa, who is a dual US Sri Lankan citizen.
Notice was formally served on Gotabaya Rajapaksa on Sunday night at a Trader Joe’s parking lot in Pasadena. This was after the ITJP and Hausfeld hired private investigators to track down the whereabouts of Rajapaksa, who is currently on holiday in California. Notice was also served at the same time in a separate case filed by another organisation on behalf of assassinated journalist Lasantha Wickrematunga.
Samathanam, who is a Canadian national, was detained in Colombo in September 2007 by the Terrorism Investigation Division (TID) of the Sri Lanka Police that reported directly to Gotabaya Rajapaksa. Samathanam was physically and psychologically tortured and forced to sign a false confession before being released in August 2010 on a plea deal and payment of a fine.
In 2016, Samathanam won a UN human rights committee case but Sri Lanka has failed to abide by the compensation ruling.
“Mr. Rajapaksa has to give up his US citizenship to be able to stand in presidential elections, so this was probably the last chance for a long time to begin to hold him accountable,” said ITJP’s Executive Director Yasmin Sooka.
“We hope other survivors of torture will join the suit and make this a class action.”

Rajapaksas deny

However, Spokesperson for Former Defence Secretary Gotabaya Rajapaksa, Milinda Rajapaksha, announced that no notice had been received regarding any cases filed in United States against the former, as at Tuesday (9).
Furthermore, a photograph allegedly showing a notice being served to Rajapaksa, circulating social media, carries no truth and the particular photograph had been posted by a non-governmental organisation called the International Truth and Justice Project (ITJP) based in South Africa, the Spokesperson claimed.
Gotabaya’s nephew, SLPP MP Namal Rajapaksa, too, in a Twitter message, announced that his uncle never received summons of any form as far as he was aware.
“As far as we’re aware @GotabayaR never received summons of any form. Not sure if I’m appalled or amused by the lengths some people will go to publicise unsubstantiated claims based on strategic propaganda”
This latest development is now being discussed in several political circles. Nevertheless, the Rajapaksa camp is yet to acknowledge the receipt of the two suits.
Many Lankans think that the lawsuits could complicate Gotabaya’s renouncement of US citizenship, with some claiming that the renunciator can’t have pending court cases in the US or delinquent tax filings or tax payments in the US if the US Govt. is to approve the renouncement.

No bearing

Adding flavour to the mix, Lisa Fuller from Al Jazeera announced on her Twitter handle that the case is likely to not have any bearing on Rajapaksa’s renunciation of US citizenship.
“To clarify, this case won’t prevent Gotabaya from renouncing his US citizenship & thus probably has no bearing on his ability to run for #lka president. US citizens can renounce citizenship regardless of pending legal matters. #SriLanka https://t.co/0Z4JZVqPGj — Lisa Fuller (@gigipurple) 8 April, 2019”
Section 349(a) of the Immigration and Nationality Act of the US governs how a US citizen shall lose US nationality. According to Section 349(a) – “a person who is a national of the United States whether, by birth or naturalisation, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality:(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.”
According to the State Department, persons who wish to renounce US citizenship should be aware of the fact that renunciation of US citizenship may have no effect on their US tax or military service obligations.
In addition, the act of renouncing US citizenship does not allow persons to avoid possible prosecution for crimes which they may have committed or may commit in the future which violate US law, or escape the repayment of financial obligations, including child support payments, previously incurred in the US or incurred as US citizens abroad.

Term extension

Meanwhile, it is also learnt that incumbent President Sirisena is considering consulting the Supreme Court to determine whether he can continue till mid 2020. Sirisena’s legal advisors were of the view that since the 19th Amendment was enacted on the 28 April 2015, the period of five years may be taken into account from the date of enactment.
In fact, Joint Opposition stalwart MP Vasudeva Nanayakkara told media that President Sirisena was adamant on holding another election, possibly the provincial council elections before any other election.
Be that as it may, legal luminaries point out that the Constitution was very clear on this and that the President cannot hold his office even a day longer than what is prescribed in the same.
According to a landmark decision delivered by the Supreme Court in January 2018, it was ruled that as per 19th Amendment, the next presidential election must be called between November 2019 and January 2020. The Court also ruled that the incumbent President’s tenure in office was limited to five years and would thus end on 8 January 2020.
On 8 January 2018, media reports indicated that President Sirisena had sought an opinion from the Supreme Court under Article 129(1) of the Constitution asking: “Whether, in terms of Provisions of the Constitution, I, as the person elected and succeeding to the office of President and having assumed such office in terms of Article 32(1) of the Constitution on 9 January 2015, have any impediment to continue in the office of President for a period of six years from 9 January 2015, the date on which the result of my election to the office of President was declared.”
The case was listed for 11 January 2018, and the Supreme Court’s opinion was to be communicated to the President on 14 January 2018.
Many of the intervenient-petitioners averred that the position on the 19th Amendment to the Constitution was very clear and that 19th Amendment makes express provision that the President’s term was limited to five years.
Article 30(2) of the Constitution: The President of the Republic shall be elected by the people, and shall hold office for a term of five years.
Further, the Amendment’s transitional provisions explicitly state that this five-year term limit applies equally to the sitting President.
Section 49(1)(b) of the 19th Amendment to the Constitution: For the avoidance of doubt, it is hereby declared that…the persons holding office respectively, as the President and Prime Minister on the day preceding 22 April, 2015 shall continue to hold such office after such date, subject to the provisions of the Constitution as amended by this Act. (Emphasis added).
Furthermore, the 19th Amendment to the Constitution clearly states which parts of the 19 Amendment do not apply to President Sirisena as the incumbent President and the reduction of the term of office is not such a provision (Section 51 of the 19th Amendment). Accordingly, President Sirisena’s term must be understood as being for five years from 9 January 2015 (i.e. until 9 January 2020) and not for six years (i.e. until 9 January 2021).
In the run up to the enactment of the 19th Amendment in 2015, President Sirisena himself noted that the reduced presidential term of five years will apply to him as well.

Partly free

Sri Lanka was recognised as being “partly free” in the Freedom in the World 2019 report released recently by the US-based non-governmental organisation Freedom House. On a scale of 100 (most free) to 0 (least free), Sri Lanka clinched an aggregate freedom score of 56 as against Bhutan – 59, India – 75, Pakistan – 28, Bangladesh – 41, Maldives – 35, and Nepal – 54.
Sri Lanka bagged a freedom rating of 3.5, a political rights rating of 3, and a civil liberties rating of 4 out of 7 (1 = most free, 7 = least free).
According to the report, Sri Lanka improved because the election commission showed independence by holding local council elections despite the Government’s efforts to continue postponing them on one hand, and by resisting the President’s unconstitutional attempt to call early parliamentary elections on the other.
However, the report raised concerns about opposition groups.
“Opposition groupings are generally free to carry out peaceful political activities and are able to win power through elections. Most recently, the Opposition SLPP won control of 231 out of 340 local councils in the February 2018 elections. However, Opposition figures and supporters sometimes face harassment. Election observers noted that some Opposition party members were attacked and intimidated in the Northern Province during the 2015 parliamentary election campaign.”
It also highlighted systematic discrimination and women’s rights.
“A number of parties explicitly represent the interests of ethnic and religious minority groups, including several Tamil parties and the Sri Lankan Muslim Congress (SLMC), the country’s largest Muslim party. Tamil political parties and civilians faced less harassment and fewer hindrances in voting during the 2015 presidential and parliamentary elections compared with the 2010 elections. However, systemic discrimination, including via language laws and naturalisation procedures, negatively affects Tamils’ political participation. The interests of women are not well represented in Sri Lankan politics, and women hold less than 6% of the seats in Parliament.”
According to the report, Sri Lanka’s freedom rating declined due to the disruption to governance caused by the President’s unconstitutional and ultimately unsuccessful attempts to replace the Prime Minister, dissolve Parliament, and hold snap elections.
Although freedom of expression is guaranteed in the Constitution, and respect for this right has dramatically improved since 2015, challenges to press freedom persist, and senior government officials and lawmakers sometimes threaten journalists.
In June and July 2018, two local reporters, who worked with the New York Times on a story that scrutinised the Rajapaksa Government’s dealings with Chinese companies to build the Hambantota Port, were attacked on social media and maligned by members of Parliament at a press conference.
In an effort to suppress anti-Muslim rioting that broke out in March, the Government blocked social media platforms including Facebook, Viber, and WhatsApp nationwide for three days.
The report also lamented the Government’s apathy over probes on past killings of journalists.
Impunity for past crimes against journalists is a problem. Several investigations into journalists’ killings have been reopened in recent years, but none have resulted in convictions.
The civil war remains a sensitive topic. State officials’ harassment of civil society activists working on human rights issues in the North and East has deterred open discussion of those topics among private citizens.
The report notes that the country’s score improved in 2018 because the Supreme Court and Court of Appeal demonstrated their independence by ruling against President Sirisena’s moves to replace the Prime Minister and dissolve Parliament.
However, moves to replaces the archaic Prevention of Terrorism Act (PTA) with the Counter Terrorism Bill (CTB) was also highlighted with concern.
Due process rights are undermined by the PTA, under which suspects can be detained for up to 18 months without charge. The law has been used to hold perceived enemies of the government, and many detained under the PTA’s provisions have been kept in custody for longer than the law allows.
In September 2018, the Cabinet approved a draft counterterrorism bill to replace the PTA. It would increase the powers of the Human Rights Commission to act as a check on abuses by security forces and reduce the number of acts that can be considered terrorism, among other improvements.
However, the bill still allows the detention of terrorism suspects for up to one year without charge, and civil society organisations expressed concerns that its positive provisions could get watered down in Parliament.