Sampanthan throws a detailed legal challenge to speaker Karu Jasuriya regarding the leader of the opposition post in Sri Lanka parliament

The speech make by R. Sampannthan in the parliament today (25.01.2019 follows.

Leader of the Opposition Sri Lankan Parliament

Honorable Speaker

Parliament

Jayewardenepura Kotte

Sir,

I seek your leave to raise the following question relating to a matter of public importance “The Position of the Leader of the Opposition in the Sri Lankan Parliament”

1. You made a statement in Parliament on 18^th December 2018, pertaining to the position of Leader of the Opposition. In the course of the said statement you mentioned that you had received a letter from the Secretary of United Peoples Freedom Alliance (UPFA) which claimed to have the second largest number of members of Parliament and requesting that Hon Mr Mahinda Rajapaksa be appointed as Leader of the Opposition. You also stated that you were acceding to the request as the United Peoples Freedom Alliance (UPFA) had the second largest number of members of Parliament.

2. Some Hon Members of Parliament raised questions in regard to this matter on the said date and stated Firstly, that though the UPFA indisputably had the second largest number of Members of Parliament they could not hold the post of the Leader of the Opposition as they were a part of the Government. Secondly, that Hon Mahinda Rajapaksa the appointee to the post of Leader of the Opposition, under Article 99 sub section 13A of the Constitution of the Democratic Socialistic Republic of Sri Lanka. subsequent to he having become a member of the Podu Jana Peramuna a political party distinct and different from the United Peoples Freedom Alliance (UPFA) on whose nomination paper Hon Mahinda Rajapaksa’s name appeared at the time of the election and 30 days having lapsed from the date on which he ceased to be a member of the UPFA had ceased to be a Member of Parliament and could not therefore be the Leader of the Opposition. You stated that you would respond to these questions on a later date.

3. I made a Statement in Parliament on 19^th December 2018, in the course of which I myself referred to the aforesaid two matters mentioned in para 2 above. In the course of the said statement I stated that in September 2015 as the Leader of the Illankai Thamil Arasu Katchi (ITAK) the second largest party in opposition in the Sri Lankan Parliament you recognized me as the Leader of the Opposition. Further, in August 2018 as the Leader of the Illankai Thamil Arasu Katchi (ITAK) the second largest party in Parliament you once again recognized me as the Leader of the Opposition. On both these occasions you recognized the Leader of the second largest party in Parliament as the leader of the Opposition for the reason that the largest party in opposition in Parliament the UPFA was also represented in Government.

4. The Hon Deputy Speaker on your behalf made a statement in Parliament on 8^th of January 2019, where he stated your position in regard to the aforesaid matters. In the course of the said statement there is no reference whatsoever to the UPFA also being represented in Government and therefore not being entitled to serve as the official opposition. You have thereby failed to refer to the crucial reason stated by you when recognizing me the Leader of the second largest party in opposition as the Leader of the Opposition twice: first in September 2015 secondly in August 2018.

5. In regard to the aforesaid two matters I consider it my duty to place on record the following matters for your information and necessary appropriate action.

1. Under Article 30 of the Constitution of the Democratic Socialistic Republic Sri Lanka the President of the Republic of Sri Lanka is the Head of State, the Head of the Executive and of the Government.
2. Under Article 42 Sub sections 1,2 and 3 of the Constitution of the Democratic Socialistic Republic Sri Lanka

1. There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic
2. The Cabinet of Ministers shall be collectively responsible and answerable to Parliament
3. The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers

6. You will observe from the provisions of the sections set out in para 5 above that the President of the Republic is the Head of the Executive and of the government the President is a member of the Cabinet of Ministers and the President is also the Head of the Cabinet of Ministers. The Cabinet of Ministers of which the President is a member and the Head shall be collectively responsible and answerable to Parliament. Further, under Article 51 of the 19^th Amendment to the Constitution, the current President as long as he holds the Office of President may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment, and determine the Ministries to be in his charge for that purpose, and the President on his own volition has assigned to himself the subjects and functions of Defence, Mahaweli Development and Environment. The President has also assigned to himself other subjects and functions.

7. The President is also Head of the United Peoples Freedom Alliance (UPFA) and Sri Lanka Freedom Party (SLFP) a constituent party of the UPFA.

8. You will thus observe that the current President of the Democratic Socialistic Republic Sri Lanka while being a member of the Cabinet of Ministers holding several portfolios and the Head of the Cabinet of Ministers the Head of the Executive and of the Government and while being collectively responsible and answerable to Parliament as a member of the Cabinet of Ministers is also the Head of the United Peoples Freedom Alliance (UPFA) and the Sri Lanka Freedom Party (SLFP) a constituent party of the United Peoples Freedom Alliance (UPFA).

9. Hon Mr Mahinda Rajapaksa, sought to be appointed as the Leader of the Opposition is a leading member of the United Peoples Freedom Alliance (UPFA) and the Sri Lanka Freedom Party (SLFP), a constituent member of the United Peoples Freedom Alliance (UPFA). In fact his name has been proposed to the position of Leader of the Opposition by the Secretary of the United Peoples Freedom Alliance (UPFA).

10. You will thus observe that the President who is the Head of the Executive and Government member of the Cabinet of Ministers holding several portfolios and Head of the Cabinet of Ministers and the purported appointee to the position of the Leader of the Opposition Hon Mahinda Rajapaksa are both from the United Peoples Freedom Alliance (UPFA) and Sri Lanka Freedom Party (SLFP), a constituent party of the United Peoples Freedom Alliance (UPFA).

11. You will thus observe that there is clear and definite conflict of interest between the duties and functions performed by the President in the capacities referred to above and the duties and functions of Hon Mahinda Rajapaksa in his capacity as Leader of the opposition. They both belong to the UPFA and its constituent party SLFP. In this context may I refer to an article written by Dr. Nihal Jayawickrema, a leading legal luminary in the Sunday Island January 6^th 2019, wherein he states the following: I quote “Under the Constitution the President is the Head of the Government. Of his own choice Maithiripala Sirisena is also the President of SLFP and the UPFA which is a coalition of likeminded political parties that includes the SLFP. Mahinda Rajapaksa who claims to be member of the SLFP /UPFA is reportedly now the Leader of the opposition. Therefore, Parliament is entitled to ask the President to explain how he can concurrently serve as Head of the Government and as Head of the Opposition and whether he does not understand that functioning simultaneously in both capacities is a gross violation of the fundamental democratic basis of the Constitution”. This statement of Dr Nihal Jayawickrema is clearly indicative of the extent of the conflict of interest. This position would not arise if Hon Mahinda Rajapaksa was not Leader of the Opposition, which is a recognition accorded to him by you.

12. An effort is being made to make out that similar situations had arisen during the terms of previous Presidents. It needs to be pointed out that this question has never been raised before, and no ruling has been given by any Hon Speaker on this question. Now that the question has been raised the matter needs to be addressed on the basis of the relevant Constitutional provisions, Parliamentary practices and conventions and the relevant facts relating to the conflict of interest between the Offices of the Head of the government and the Head of the opposition.

13. May I also in this context refer to “Parliamentary Practice” by Erskine May 24^th edition, pages 334 and 335. This deals with the question of Opposition’s time and who determines such Opposition time in the House of Commons. I quote from Erskine May: “ Standing Order number 14 provides that on 20 days in each session, proceedings on business chosen by the opposition parties shall have precedence over Government business” it further states “ 17 of the days so allocated are at the disposal of the Leader of the Opposition and 3 at the disposal of the Leader of the second largest opposition party” this is defined in the standing order as the party of those members not represented in the government which has the second largest members elected to the House as members of that party. It is abundantly clear from the above that any political party to be recognized as the official opposition must not be represented in the government. It’s also abundantly clear from what I have stated earlier. that the UPFA is in fact represented in Government. It also emphasizes the importance given to the second largest party in the opposition, the Ilankai Thamil Arasu Katchi – the Tamil National Alliance is in that position in our Parliament. In this context may I also refer to sec 8 of our Parliament (Powers and Privileges Act) which states as follows, I quote “Journals of the Commons House of the Parliament of the United Kingdom or of the proceedings of the said House or of a report of any Committee of the said House shall be received as prima facie evidence. The practices prevalent in the House of Commons are thus of relevance to us.

14. It also cannot be disputed that several members of the UPFA and the SLFP a constituent party of the UPFA elected to Parliament on the nomination paper of the UPFA have crossed over to government sit on the government benches and now represent the government in Parliament. This circumstance further strengthens the position that the UPFA is represented in Government and in the circumstances Hon Mahinda Rajapaksa who is also a member of the UPFA and SLFP a constituent party of the UPFA and proposed by the Secretary of the UPFA to the post of Leader of the Opposition is not entitled to hold the post of the Leader of the Opposition.

15. In regard to the second issue pertaining to Article 99 sub section 13A of the Constitution of the Democratic Socialistic Republic of Sri Lanka and the impact of the said provisions consequent to Hon Mahinda Rajapaksa ceasing to be a member of the party on whose nomination paper he was elected, in deference to your view that you have already ruled on this matter I will not raise that issue in the course of this statement.

16. I do however, wish to state that this issue remains an open question and that a determination on this issue needs to be arrived at in the appropriate forum.

17. It is fundamental that the Truth be ascertained in regard to this matter The Constitution the Supreme Law of the Country and the facts related to the implementation of provisions contained in the Constitution cannot be manipulated or subverted to suit the needs of individuals. To be a party to such act would be to deny the sanctity of the Constitution. I consider it my duty to place on record these facts to ensure that the Constitution and the Constitutional practices and conventions that I have referred are followed.

18. I wish to make it perfectly clear that I do so not because I or the Ilankai Thamil Arasu Katchi the Tamil National Alliance (TNA) are hankering after office. We have never sought office. In 1983 16 Tamil Members of Parliament of the Tamil United Liberation Front (TULF) on principle refused to take an oath and consequently sacrificed their seats in Parliament when we had six years more to serve as members of Parliament. I was the first of the 16 members of Parliament to vacate my seat. We have declined office on other occasions which is a matter of public knowledge. But we do think that the rights of the minority political parties and minority peoples should not be jeopardized by manipulating or subverting either the Constitution or accepted constitutional practices and conventions so as to serve the interests of individuals catering to majoritarianism. I do further think that rights which Constitutionally accrue to minority parties and minority peoples should be protected and preserved. That’s why Mr Speaker I consider it imperative that I make this statement in Parliament.

Thank you

R Sampanthan

Member of Parliament.

(as sent by the TNA media office)