Maitri Gunaratne vs Ranil Wickremesinghe


The most politically significant thing that happened last week was the overruling of the preliminary objections filed in the Nugegoda District Court by Ranil Wickremesinghe et al in the case filed against them by Maithri Gunaratne, the Southern Province provincial councilor.  This case could potentially effect a revolution within the main opposition party and should be followed very carefully. When Gunaratne took Wickremesinghe to courts, he put his entire political career on the line. But then the choice before him and indeed the entire party was limited. It was either a case of acquiescing to arbitrary rule or taking the party to courts to ensure compliance with the new party constitution which was promulgated on December 12, 2010. 

Even so, taking your party to courts was a brave thing to do. There would always be people who would baulk at taking such a step because of accusations that this was a case of going against your own party.  Taking the UNP to courts was a gamble. If it worked, well and good. But if the action failed, Guneratne’s political career would end as the man who filed action against his own party.  There would even be accusations that this was a ‘contract’ given by the government. Nobody was willing to take the risk of taking the UNP leader to court other than Gunaratne.  Many preferred a lifetime of servitude rather than risk being labeled as the one who did the unthinkable. Finally it is the risk takers who drive change.

The new party constitution was ushered in last December amidst much hope of democratizing the UNP and curbing the arbitrary power wielded by the party leader. The most important feature introduced by the new constitution was to make provision for the election of the key office bearers of the party including the party leader. The other feature was to limit the number of working committee members the party leader could appoint at his sole discretion to 20;  and making the appointment of the rest of the members of the working committee and all other officials, electoral organizers, district leaders, national list MPs and other such appointees, subject to recommendation by a six member Advisory Council comprising of the party leader, deputy leader, assistant leader, national organizer, party chairman and  general secretary. The party leader could no longer make these appointments at his sole discretion.

But after the promulgation of the purportedly democratic new constitution, what we saw was even more arbitrary rule within the UNP than existed before.  The party leader placed the UNP under the article 16.2 emergency provisions of the new constitution and rode roughshod over everything else in the constitution. When Ravi Karunanayake was appointed national organizer by the working committee, that body was only half constituted with many members yet to be appointed.  Article 16.2 stipulated that notwithstanding any vacancies or irregularities in the appointment of members to the various decision making bodies in the party, the decisions made by them would still be valid. This was the advice given by Tilak Marapone when Sajith Premadasa raised the question of the constitutionality of the first meeting of the Advisory Committee which met without a national organizer.

Since then this provision has been used and abused for Wickremesinghe to have his own way, with decisions continuing to be valid even if the decision making body concerned was only half constituted with Wickremesinghe loyalists.  The emergency provisions were being used for the day to day running of the party and we wrote a column with the title "UNP under emergency rule" to mark the new trend in the party.  This case before the Nugegoda district courts will be a landmark case as it will decide whether emergency provisions can be used for the day to day running of any given body ruled by a constitution. It will also have to declare on the circumstances that would warrant the use of emergency provisions in a constitution.   

Wickremesinghe has now been asked to show cause as to why an interim injunction should not be granted in favour of Maithri Gunaratne. The next hearing of the court will be on July 28.  Several weeks ago, Gunaratne had filed a plaint in the district court of Nugegoda citing UNP leader Ranil Wickremesinghe as the first respondent and 74 others including party deputy leader Karu Jayasuriya, party chairman Jayawickrema Perera and the party general secretary Tissa Attanayake also cited as respondents.

Gunaratne had prefaced his plaint with the assertion that he together with several other members of the party had been engaged in a campaign to democratize the UNP from 2008 onwards with a view to having the appointment of party office bearers and members of the working committee made by a process of election rather than nomination. Gunaratne also asserted that this campaign for democratization was strongly resented by the first defendant and his small coterie of friends.  He states that meetings of the interim working committee with a view to electing office bearers were held on March 21, 22 and 23, 2011 and the party leader,  deputy leader and party chairman were appointed without a contest. A decision to create a new position styled co-deputy leader was also arrived at even though the party constitution has not yet been amended to accommodate a co-deputy leader. 

The working committee meeting of March 23, 2011 decided that the national organizer would be appointed at the meeting held on March 28. When the working committee met on that day for the express purpose of appointing a national organizer, Imtiaz Barkeer Markar had nominated Ranjith Madduma Bandara for the position and it was seconded by Chandra Gankanda.  No other name had been proposed for the position of national organizer. Therefore Gunaratne pleaded in his plaint in the district courts that Ranjith Madduma Bandara was the lawful national organizer appointed uncontested to the position. According to Article 8.6 of the new party constitution, the appointment of office bearers and working committee members has to be done within four months of the new constitution coming into effect. Therefore the deadline was 12 April 2011. The party constitution does not allow for any exceptions to Article 8.6. 

The only name that was proposed for the position of national organizer during this mandatory period was that of Ranjith Madduma Bandara. However the first defendant had held a meeting of the working committee on May 3, 2011 which was not a meeting held in accordance with Article 8.1 to 8. 4 of the constitution which laid down the procedure for the appointment or election of office bearers.  At the meeting held on that day, the first defendant had announced that a consensus had been reached to appoint Ravi Karunanayake as the national organizer. The relief that Gunaratne was pleading for was firstly a declaration that Ranjith Madduma Bandara was the rightful national organizer of the UNP and secondly, that 16 other appointments made by the improperly constituted advisory committee and working committee of the party be declared null and void.  This included appointments to positions like the senior assistant chairmen of the party, the legal secretary, the media secretary and so on.    

The argument made by Gunaratne was that in terms of Article 8.8 of the new party constitution, the six member advisory committee made up of the party leader, deputy leader, assistant leader, general secretary, party chairman and national organizer had to recommend the names of potential office bearers to the working committee and it was only on that basis that such appointments could be made. However the advisory committee which recommended these appointments was improperly constituted, first meeting without a national organizer and later with an irregularly appointed Ravi Karunanayake as the national organizer. Moreover, Sajith Premadasa was not really a member of the advisory committee as according to the constitution, there is to this date, no such position as a co-deputy leader of the party.  Gunaratne pleads that no valid meeting of the advisory committee has been held to make the necessary recommendations.

At the time Ravi Karunanayake was appointed national organizer only about half the 92 member working committee had been appointed and there were many vacancies in the working committee as well. However Gunaratne has not made an issue of this in his plaint.   The clause in the constitution that Wickremesinghe has been using to legitimize his actions is emergency provision 16.2 which says that notwithstanding any vacancies or irregularities in the appointments to any decision making body, the decisions made will still be valid.  Thus he can argue that despite the vacancy of the national organizer in the advisory committee all actions of the advisory committee are valid and that despite half the working committee members not being appointed, at the time, the appointment of Ravi Karunanayake as national organizer is still valid.

The question however is whether not appointing a national organizer on at the working committee meeting held on March 28 will qualify as an emergency? Article 8.2 of the party constitution says quite clearly that if a consensus cannot be reached, then an election should be held. In the case of Madduma Bandara, the working committee did not declare him appointed uncontested and neither did they hold an election when they could very well have done so and finished the matter off on March 28. Everything will hinge on how the events of that date are perceived. Another major sticking point will be the fact that the UNP failed to appoint the new office bearers and working committee before the expiry of the constitutionally mandated period of four months i.e, by April 12, 2011.

Another point is that the minutes of the working committee meeting of March 23 specifically states that a national organizer will be appointed at the meeting scheduled for March 28.   In such circumstances, how can the non-appointment of a national organizer at the working committee meeting of this day be justified especially in view of the fact that a name had been proposed and seconded for the position?

Two eminent President’s Counsel acting on behalf of Wickremesinghe et al, filed preliminary objections to Gunaratne’s plaint stating among other things, the following. (The preliminary objections raised by RW’s counsel  Wijedasa Rajapkse and Ikram Mohamed are taken from SL Gunasekera’s written submissions countering each one of the objections raised.)  Rajapakse and Mohamed had observed that a single member of the UNP had brought this action so as to bring the affairs of the party to a halt.  To this, Gunasekera had submitted that the plaintiff Gunaratne, seeks nothing for himself but to ensure that the UNP was administered according to its constitution and that any citizen has a right to institute action to ensure that a country (or a party) is not run arbitrarily.

* The first preliminary objection to Gunaratne’s plaint was that he was not a member of the UNP and therefore had no right to file a plaint about the party. 

* Another objection was that in instituting action against the UNP as represented by the 1st to 4th defendants (RW, Karu J, Jayawickreme Perera and Tissa Attanayake) while claiming to be a member of the same party, Gunaratne was in effect filing action against himself which is not permitted in law.

* The very fact that no relief has been sought in relation to the 5th defendant (Sajith Premadasa) shows that this action has been instituted to sabotage the UNP.

* The plaintiff Gunaratne has prayed for relief with regard to certain appointments made but has not alleged that either the advisory committee or the working committee has been improperly constituted. (Implying therefore that the actions endorsed by these bodies were legal and above board.)

The arguments S.L.Gunasekera adduced against these preliminary objections was that firstly, some of these were not matters that could be raised as preliminary objections such as for instance the allegation that Gunaratne was not a member of the UNP. This was a matter to be gone into at the hearing stage.  S.L.Gunasekera asserted that these preliminary objections were designed to forestall the court from inquiring into the merits of the case.   

Certainly to laymen like us, the foremost preliminary objection raised to the effect that Maitri Gunaratne is not a member of the UNP sits oddly beside the fact that he is a sitting UNP member of the Southern Provincial Council and is now serving his third consecutive term on the SPC as a UNP member. Gunaratne assured the present writer that he does have his membership card for the present year and that his monthly contribution to the party goes by standing order direct from the provincial council to the party account. In addition to the above, various technical details were raised with regard to the plaint filed by Gunaratne, with even the question raised whether he had a right to sign it as Adhineethigna ‘advocate’ rather than as ‘neethigna’ meaning attorney at law.  Technicalities were in focus in the preliminary objections raised by Wickremesinghe’s lawyers.

The district judge Champa Janaki Rajaratne in delivering her ruling on the preliminary objections, declared that even a club is governed by the rules and regulations of that club and if these rules are not being adhered to, a member has a right to file action in court and that in political parties, the constitution is supreme and it has to be adhered to. And if this was not the case, any member of the party had a right to come before courts to seek relief.  To the objection that Gunaratne was not a member of the UNP, the judge had observed in open court that the general secretary of the UNP as late as October 2010 had written a show cause letter to Gunaratne calling for an explanation about the press releases and interviews he had given to the media and referring to him as a member of the UNP. On this basis, the court decided that the fourth respondent had in fact written to Gunaratne acknowledging that he is a member of the party.

With the court throwing out the preliminary objections raised by RW’s lawyers,  they will now have to come to courts and show that the party constitution has been adhered to. In making the appointments referred to in Gunaratne’s plaint. This promises to be one of the most interesting court cases of recent times.  The government too will be keenly watching the arguments and whatever is said by Wickremesinghe’s lawyers will be recorded for future use by the government when questions of constitutional interpretation come up.  The supreme irony is that while the courts here were rejecting the preliminary objections raised by his lawyers to Gunaratne’s plaint, alleging constitutional manipulation and irregular appointments among other things,  RW himself was in Washington attending sessions of the International Democratic Union and no doubt holding forth on the need for good governance, and democracy etcetera.  

Muza’s party

Western PC member and Colombo Mayoral hopeful A.J.M.Muzammil threw a farewell party for the outgoing Indian Deputy High Commissioner Vikram Misri and outgoing  Minister Prabha Murthi. The UNP was present in force with Karu J. Ravi K, Sagala Ratnayake, Ranjith Madduma Bandara, Malik Samarawickrema, R.Yogarajan, Shantini Kongahage and Mano Ganesan among others in attendance.  The affable Indian High Commissioner Ashok K.Kantha was also present. Misri served in Sri Lanka during the final war against the LTTE along with former Indian High Commissioner Alok Prasad, and if High Commissioner Prasad should get a portion of the credit for having steered India-Sri Lanka relations into safe waters during the most trying period ever, a part of it has to go to Misri as well.

The personality of the diplomats on the ground have much to do with maintaining good relations between countries especially during turbulent periods. The present columnist had the pleasure of meeting Misri soon after he assumed office in Sri Lanka and he came across as a cautious and correct diplomat who would not allow his tongue to travel ahead of him.  Every Indian diplomat coming to this country will always be compared with the colourful J.N.Dixit.  Dixit was promoting his country’s interests in Sri Lanka but whether he did it in the best way possible is a moot point. On the one hand, Dixit was threatening J.R.Jayewardene with dire consequences in the form of arming the LTTE if he did not agree to the Indo-Lanka Peace Accord and on the other hand, he was trying to issue orders to General Harkirat Singh to bump off Prabhakaran when he turns up for discussions with the Indians. Harkirat Singh after consulting his superior Dipinder Singh had turned down Dixit’s order saying that it would not behove the Indian Army to shoot people in the back when they turn up discussions under the white flag of truce.

It must be said however, that Dixit was right and Harkirat Singh was wrong. At that time the Indians were openly doing what they should not have been doing anyway. They were promoting terrorism in a neighbouring country and twisting the arm of a small friendly country to have their own way and generally doing many things that they should not have been doing.  Given that background, just one more dirty trick would not have made any difference and indeed if Prabhakaran had been bumped off as Dixit ordered, the Indo-Lanka Peace Accord may have worked and many things would have been different.  Dixit knew that having resorted to evil, he had to go the whole hog or risk losing everything. Well India did end up losing everything in that round. And even Rajiv Gandhi himself could not get M.G.Ramachandran to stop supporting the LTTE even when the Indian army was engaged in a war against them.

The difference during the Alok Prasad era and by association that of Vikram Misri was that much more was achived with very little stress and the gnashing of teeth.  A terrorist organization which posed a grave danger to Tamil Nadu as well as Sri Lanka, was got rid of.  What Dixit tried to get Hakirat Singh to do was achieved only during the time of Alok Prasad (and Misri) and that too without getting Indian hands dirty.  That period also saw the Indian presence in various fields in this country increasing.  Indeed India has a more significant presence now than during the period of arm twisting in the late 1980s and that perhaps is a measure of success in diplomacy.  Asked whether Sri Lanka has now become an uninteresting backwater for Indian diplomats now that the fire and thunder of the war is no more, Misri answered to the contrary saying that they now have their plates full of other things such as railways, housing and roads. 

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