JVP & UNP move to abolish executive presidency



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by C.A. Chandraprema


Last Wednesday, as the whole country remained transfixed by the Joint Opposition’s demonstration in Colombo, the JVP presented to Parliament their private Member’s Bill to abolish the executive presidency. This was not unexpected because this 20th Amendment Bill had been in the pipeline since May this year, and its presentation to Parliament was just another step in the process that was already in motion. According to the procedure laid out for Private Member’s Bills in the Standing Orders of Parliament, the draft 20th Amendment Bill was handed over to the Secretary General of Parliament by the JVP on May 25 this year.  


According to the Standing Orders, any Private Member desiring to introduce a Bill shall apply to Parliament for leave to do so, setting out the objective and leading features of the Bill.  Every such application is to be made in the form of a motion and the Member making such application shall deliver to the Secretary-General a copy of the proposed Bill, in Sinhala and Tamil with a translation in English together with a copy of his motion. The Secretary-General shall refer the Bill to the Attorney-General to seek his opinion as to whether the Bill is inconsistent with the Constitution and whether it attracts any impediment in respect of the Thirteenth Amendment to the Constitution.   


The Attorney-General shall communicate his observations to the Parliament within a period of six weeks. After the receipt of the opinion of the Attorney-General the Secretary-General shall cause the Bill to be published in the Gazette in Sinhala and Tamil with a translation in English. The JVP’s Private Member’s Bill was published in the gazette on July 9 this year. According to the Standing orders, at any time after the lapse of fourteen days from the date on which the Bill was published in the Gazette, it shall be placed on the Order Paper of Parliament. On September 5, 2018, the 20th Amendment Bill having been on the order paper was duly introduced by JVP parliamentarian Vijitha Herath and seconded by Anura Kumara Dissanayake. 


Even though the Standing Orders say that the Bill shall then be deemed to have been read the first time ‘on a question put and carried’ or ‘in the event that leave is not granted by the House but not fewer than twenty Members rise in their places to support the Member’, what happens in practice is that Leave to introduce a bill is granted automatically, and the motion is deemed carried, without debate, amendment or question put.


A private Member normally provides a brief explanation of the bill he is introducing. On September 5 when the JVP’s 20th Amendment Bill was presented to Parliament it was the Chief Government Whip Lakshman Kiriella who stood up and requested the JVP to make a brief explanation about the Bill which Vijitha Herath did. Kiriella’s body language left little doubt that the government (at least the UNP part of it) was fully behind the 20th Amendment. 


Now that the 20th Amendment Bill has been formally presented to Parliament, the next step will be that it will be ordered to be printed and will stand referred without discussion to the Minister in charge of the subject to which the Bill relates. No further proceedings shall be taken in respect of such Bill until the Minister has reported to Parliament thereon. The Minister has to report back to Parliament within a period of six months. If the Minister fails to do so, the Bill goes automatically on to the next stage in the process. Since the JVP’s Private Member’s Bill is being challenged in the Supreme Court, it follows that the SC process will run parallel to the period in which the Minister in charge of the subject will be studying the Bill. In any event, according to the Constitution, when a Bill is challenged before the Supreme Court in terms of Article 121 of the Constitution, the SC has to deliver its determination within three weeks, failing which the Bill will automatically go on to the next stage.   


Since the JVP’s 20th Amendment Bill has been described in its title as a Bill to amend the Constitution, all that the Supreme Court will be authorized to do will be to determine whether it needs to be approved at a referendum in addition to obtaining a two thirds majority in Parliament or whether just a two thirds majority will suffice. After the Minister’s report has been made regarding the Private Member’s Bill or if after the expiry of six months from the date on which the Bill was referred to the Minister and where no report has been made by such Minister, the Bill shall be set down for Second Reading upon such day as the Member in charge of the Bill desires. It should be noted that the Bill should be sent to the Minister in charge of the subject and not necessarily the Cabinet. The Minister on charge of the subject is UNP and thus the JVP is virtually assured of clearing this hurdle. 


According to the Standing Orders, a Private Member’s Bill after being read a second time will be referred by the Speaker to the Legislative Standing Committee. The Legislative Standing Committee on such a Bill shall require proof of the facts and other matters set forth in the Bill as showing that it is expedient that the Bill should be passed, and may take such oral or other evidence as it may think requisite. If the Legislative Standing Committee finds that the said facts and other matters have been proved, it shall consider the several Clauses of the Bill, and may repeal, substitute or insert any Clause and may make any other amendments which it may deem necessary, and all such amendments shall be reported to Parliament: Provided that, no Clause shall be allowed in such a Bill which is inconsistent with the notice originally given of the intention to present this Private Member’s Bill setting out the objectives and leading features of such Bill.  


The Legislative Standing Committee consists of the Deputy Speaker as the Chair, the Deputy Chairperson of Committees and 10 other Members nominated by the Committee of Selection. For a Private Member’s Bill to be referred to the Legislative Standing Committee is the equivalent of an ordinary Bill reaching the Committee stage at which it can be directed by Parliament to a Committee of the whole Parliament, a Select Committee to be nominated by the Speaker or to the Legislative Standing Committee or an appropriate Sectoral Oversight Committee. When a Bill has been referred to a Select Committee, Legislative Standing Committee or a Sectoral Oversight Committee no further proceedings shall be taken thereon until the Committee has reported back to Parliament. 


When any Bill is referred to a Committee, such Committee shall discuss its several provisions and any proposed amendments. The Chair of the Committee or the Secretary-General shall read the number of each clause of the Bill in succession. Any amendment may be made to a Clause by deleting, substituting, inserting and adding provisions provided they are relevant to the subject matter of the Bill. The principle of the Bill shall not be discussed in Committee, but only its details.   


 When a Committee of the whole Parliament has completed the consideration of a Bill, the Chair shall report the Bill with or without amendments to Parliament. A Sectoral Oversight Committee, the Legislative Standing Committee or a Select Committee to which a Bill has been referred shall present a report to Parliament setting out its recommendations, and a copy of the report shall be distributed to every Member. The report of a Select Committee on a Bill shall be presented by the Chair and may be ordered to lie upon the Table, or be otherwise dealt with as Parliament may direct. The report of a Sectoral Oversight Committee or the Legislative Standing Committee on a Bill shall be presented by the Chair and the report shall be set down for consideration upon a day to be appointed by the Member in charge of the Bill. Upon consideration of the report from a Sectoral Oversight Committee, Legislative Standing Committee or a Select Committee, Parliament shall consider only those amendments, if any, made by the Committee but may further amend those amendments. No new amendments shall be made by Parliament upon consideration of the report except such are as consequential upon amendments made by the Committee and accepted by Parliament, but the Bill may be recommitted to the same Committee with reference to particular amendments made by that Committee.   


A Bill having passed through Committee of the whole Parliament, or having been reported without amendment to Parliament by a Select Committee, may, on motion made, forthwith be read a third time and passed. Thus we see that the JVP’s 20th Amendment Bill still has to clear several hurdles – the Supreme Court, the Minister’s report, the Committee stage, reporting to Parliament, the third reading and passage.


 


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The case of the Medamulana memorial 


 


Indictments are to be served on former Defence Secretary Gotabhaya Rajapaksa by the Special High Court tomorrow over the construction of a Memorial to D.A.Rajapaksa in Medamulana. This matter featured in an exchange between JVP leader Anura Kumara Dissanayake and Prime Minister Ranil Wickremasinghe last Wednesday in Parliament. In reply to a question posed by Dissanayake in relation to the bond scam, the PM said that a sum of Rs. 12 billion of Perpetual Treasuries money has been frozen and that the money can be recovered. To this Dissanayake replied that paying back the money does not vitiate criminal liability and one of the examples he took to explain his point is the fact that Gota is to be indicted in the Special High Court over the construction of the D.A.Rakapaksa memorial in Medamulana even though the money has been paid back. 


However, what the JVP leader failed to mention was that when the D.A.Rajapaksa memorial project was first started by the Sri Lanka Land Reclamation and Development Corporation (SLLRDC), it was on the clear understanding that the cost of the project was to be recovered from donations. On 26 February 2014, when a decision was taken at the Board meeting of the Sri Lanka Land Reclamation and Development Corporation (SLLRDC) giving covering sanction for the commencement of this project, it was stated that the total cost of the project would be Rs. 33.9 million and that the funds for this project will be received from various sources. The minutes of that Board meeting specifically stated that collection of the same would be done by a committee.  


It was not specified whether this committee would be formed by the SLLRDC itself or by the D.A.Rajapaksa Foundation. However any money spent on the Medamulana memorial was meant to be recovered. When a Board Minute states that a certain amount of money spent by the Corporation is meant to be recovered from some other party, it has to be recovered otherwise there will be queries from the auditors. If anyone was planning to spend the money and not recover it, they would not have said in the Board minutes that it has to be recovered. So when a sum that was specifically meant to be recovered has been recovered, that cannot be equated with recovering the proceeds of a crime that was committed such as the Central Bank Bond scam.


 One notices that the 2014 Annual Report of the Sri Lanka Land Reclamation and Development Corporation which was obviously prepared after the present government came into power, makes no mention of the Medamulana memorial over which this case is being filed. Only the Auditor General’s report for that year has made mention of the memorial under the rubric of "Management Inefficiencies" where the SLLRDC had taken on something that was not necessarily within its scope. It should be noted that the Auditor General has not included the expenditure on the Medamulana memorial under the rubric of "Transactions of a contentious nature". The Auditor General’s report mentions three projects under the rubric of ‘management inefficiencies’ – the Medamulana memorial, the Boralesgamuwa North Nimna Bhoomi Development Project and the proposed pond of the Pope Benedict XVI Asian Cultural Centre at.Bolawalana. 


While the two latter projects find mention in the Annual Report, the monument does not feature at all in the annual report. That too is a clear indication that the Medamulana memorial was never meant to be a part of the regular work of the SLLRDC but something they were doing on the sidelines and which was meant to be financed by some source other than the funds of the Corporation. If it was meant to be financed from the Corporation funds, it would have been accounted for as a project of the SLLRDC as were the Boralesgamuwa North Nimna Bhoomi Development Project and the proposed pond of the Pope Benedict XVI Asian Cultural Centre at.Bolawalana


Before the SLLRDC approved the building of this monument they had obtained an estimate on 27 January 2014, from the Director General Civil Engineering of the Navy who had written to the SLLRDC giving the total estimate for the civil works of the monument as Rs. 33.9 million according to the design that had been provided to them. The memorial was opened on November 6, 2014, but had not been formally handed over by the Navy to the D. A. Rajapaksa Foundation, due to some minor work that had to be completed. On August 21, 2015, the General Manager of the SLLRDC wrote to the Rajapaksa Foundation stating that they were in the process of preparing the final bill which will be sent to them shortly, and asking for an advance payment of Rs. 25 million.


The Rajapaksa Foundation duely paid the Rs. 25 million to the SLLRDC. Shortly thereafter, the GM of the SLLRDC wrote to the Rajapaksa Foundation enclosing the final bill for Rs. 81 million - well over twice the originally estimated cost. The Rajapaksa Foundation wrote back to the GM of the SLLRDC on September 14, 2015 reminding them that the SLLRDC had (just an year earlier in 2014) conveyed to them that the total cost of the memorial would be Rs. 27 million (which becomes Rs.33.9 million with the addition of the contingencies fund and government taxes.)


The Rajapaksa Foundation has asked for a detailed final bill and final BOQ in order to ascertain the actual cost incurred on this project. Thereupon the SLLRDC sent a letter of demand through the legal firm of Jayaratne Associates to Chamal Rajapaksa the Chairman of the D. A. Rajapaksa Foundation with copies to the other board members of the Foundation, asking for the remaining Rs. 56 million (Rs.81 million minus the Rs. 25 million already paid). What we hear is that the final bill had ballooned to an estimate of Rs. 81 million is because the construction of the D. A. Rajapaksa memorial had been lumped together with some other minor projects being carried out by the SLLRDC in that area including the building of a police station and referred to collectively the ‘Weeraketiya Project’.


The costs of the other projects too had been included under the D. A. Rajapaksa memorial project and charged to the Foundation. As the Board minute of the SLLRDC of February 26, 2014 said, the completion of the Medamulana memorial was indeed facilitated through private donations from many sources. The most visible features of the memorial – such as the stone ‘punkalas’ were donated by two parties – the labour to carve them out was donated by a skilled stone mason and the material for him to work on by a private company. The glass structures outside were fabricated and installed under the sponsorship of yet another private company.


The glass panels inside the monument were donated by a well known glass company. The air conditioner in the display room was donated by a company that sells air conditioners. The wax figures too were donated by an artiste donating his labour with a private company providing him with the material. Other donations were in monetary terms to reimburse the cost of building the memorial.


We learn that a valuation of the memorial was in fact carried out in January 2017 and it has been valued at the cost of building it – the same Rs. 33.9 million that it was originally estimated to cost - which stands to reason because this is not a property which has any commercial or residential value. The Rajapaksa Foundation had since paid a further Rs.9 million thus meeting the full cost of the project as originally estimated. A project that was estimated to cost Rs.33.9 million in 2014, can’t possibly increase to Rs. 81 million by 2015 especially when virtually all the work had been completed by November 2014.


 
 
 
 
 
 
 
 
 
 
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