SPECIAL REPORT : Part 458
By Shamindra Ferdinando
The Supreme Court (SC) on Feb. 10 dismissed a contempt of court application filed by the Human Rights Commission of Sri Lanka (HRCSL), delivering a shock therapy to the latter.
The HRCSL filed the contempt case against the Chairman of the Ceylon Electricity Board (CEB) N.S. Illangakoon, the Secretary to the Ministry of Power and Energy, M. P. D. U. K. Mapa Pathirana, and Chairman of the Ceylon Petroleum Corporation (CPC), Uvais Mohamed, for failing to comply with an agreement to provide uninterrupted electricity to students sitting for the 2023 Advanced Level (A/L) examinations.
The HRCSL consists of retired Supreme Court Justice Rohini Marasinghe, Venerable Kalupahana Piyarathana Thera, Dr. M.H. Nimal Karunasiri, Dr. Vijitha Nanayakkara and Ms. Anusuya Shanmuganathan.
Moving of SC was consequent to a controversial determination made by the HRCSL. On Jan. 30, 2023, the HRCSL determined the Secretary, Ministry of Power and Energy, Chairman, CEB, and the Managing Director/Chairman, Ceylon Petroleum Corporation, failed to provide electricity, without interruption, during the Advance Level examination, from Jan. 23 to Feb. 17, 2023. The HRCSL found fault with them for not adhering to an agreement worked out by the independent commission.
The HRCSL deemed the CEB Chairman guilty of the offence of contempt, under the provisions of the Human Rights Commission of Sri Lanka Act No. 21 of 1996. The CEB Chairman was accused of willfully and maliciously disregarding the agreement. The Commission called the CEB’s failure to provide an uninterrupted electricity supply, during the examination period, a gross violation of a child’s right to education.
The CEB refused to stop power cuts until the Public Utilities Commission of Sri Lanka (PUCSL) approved a new electricity tariff formula. The CEB announced an end to power cuts immediately after the PUCSL finalized a new electricity formula on Feb. 16.
Of the five-member PUCSL, three, namely Attorney Chaturika Wijesinghe, Douglas Nanayakkara and SG Senaratne, gave the go ahead for a 66 percent tariff increase. They defeated a proposal that had the backing of the PUCSL Chairman, Janaka Ratnayake, for a 36 percent increase. D.N. Kushan Jayasuriya is the other member of the PUCSL.
Having waged a high profile campaign, against the proposed second electricity price hike, Janaka Ratnayake finally suffered a major setback. Ratnayake has lost control of the PUCSL. President Ranil Wickremesinghe personally intervened in the matter and, after careful planning, brought in new members, in place of Mohan Samaranayake and Udeni Wickremesinghe, who served as the Deputy Chairman of the PUCSL at the time trouble erupted at the independent commission.
President Wickremesinghe effected the required changes in the PUCSL to facilitate cooperation between the PUCSL and the Power and Energy Ministry. Wickremesinghe has intervened in the PUCSL in a way no previous President interfered, as he sought to suppress dissent therein. The PUCSL, established by the Public Utilities Commission of Sri Lanka Act No. 35 of 2002, is the economic, technical and safety regulator of the electricity industry, as well as the designated regulator for petroleum and water supply industries. The PUCSL also functions as the shadow regulator for lubricants sold here.
The PUCSL undertakes regulatory responsibilities in terms of the Sri Lanka Electricity Act No. 20 of 2009.
A major contentious issue is the continuing failure, on the part of successive governments, to secure parliamentary approval for the relevant Acts to regulate the water services and petroleum industries.
The HRCSL should examine the quarrelsome issue, involving the CEB, Power and Energy Ministry, and the CPC, over power cuts imposed during Gotabaya Rajapaksa’s administration. The HRCSL cannot take its failure to convince the CPC and the CEB, and the Power and Energy Ministry, to provide uninterrupted power supply during the Advance Level examination, lightly.
Power and Energy Minister Kanchana Wijesekera has been strongly critical of both the PUCSL and the HRCSL. Wijesekera questioned the HRCSL’s intervention after the independent commission announced an unprecedented agreement with the CEB, the CPC and the Power and Energy Ministry.
The recent turmoil undermined both the PUCSL and the HRCSL. Those who are genuinely concerned about the effective operation of the PUCSL and the HRCSL should be seriously concerned about the recent developments.
The Parliament should also examine the inordinate delay in expanding the PUCSL to play the role as water and petroleum sector regulator, as originally envisaged. It would be pertinent to mention that Janaka Ratnayake received appointment as Chairman, PUCSL, for the support he rendered during Gotabaya Rajapaksa’s 2019 presidential election campaign. Ratnayake received the appointment on Feb. 08, 2021. over a year after the last presidential election.
The turmoil in the PUCSL and the HRCSL undermined both commissions and erode public confidence in them.
EC caught up in political agenda
The Wickremesinghe-Rajapaksa government has dealt a deadly blow to the Elections Commission (EC) after its Chairman, Nimal Punchihewa, stood his ground in the face of relentless pressure, exerted by President Ranil Wickremesinghe, to put off the Local Government polls, scheduled for March 09. Wickremesinghe went all out to derail the electoral process, in the wake of the EC’s refusal to bow down to pressure. The government appeared to have been quite surprised by the truly independent stand taken by the EC. Even after EC member, P.S.M. Charles, quit the body, amidst threats received by some of them, Punchihewa, and Director General of the EC, Saman Sri Ratnayake, sustained the effort. However, finally the exasperated Wickremesinghe, having exhausted behind the scene tactics, intervened, publicly, and issued instructions meant to put off the Local Government polls, indefinitely.
After Charles quit, Nimal G. Punchihewa (Chairman), S.B. Divaratne, M.M. Mohamed, and K.P.P. Pathirana, remained members of the EC.
Considering the sorry state of the economy, may be this is not the time to hold polls for local councils, which are often corruption-ridden, with as many as 8000 elected members, who are a severe burden, we can do without, especially at this juncture. The Wickremesinghe-Rajapaksa government, however, is pursuing an agenda that erodes independent commissions. Surely the Parliament of this country did not install a new President, whom they thought was a mellowed politician, to complete the term of his predecessor, to suffer his hollow imperial airs. We know what happened to the country because his late uncle, President JRJ, tinkered with the democracy, at every turn, and fixed every election, held under his tenure, including the infamous referendum, and, finally, the whole country literally went up in flames. Let us only hope that history is not repeating itself.
We are not saying this because we have any greater trust in comrades waiting eagerly to taste power, despite having behaved worse than cannibals in the past, that includes their involvement in the May 09, and, thereafter, unconscionable acts of violence. Recently, MP Mahindananda Aluthgamage, at a press conference, gave a detailed list of the obvious charges they have to answe. So we will refrain from adding to them. But imagine what would have happened to this country had they, and their erstwhile comrades, the FSP, successfully stormed the Parliament, as planned last year, after having tasted success at overrunning other vital state bodies, in the guise of peaceful protests. Remember how a mob lynched just one MP, and his police bodyguard, on May 09, in public, or how they systematically destroyed properties of so many government politicians in that one night alone, across the country.
We are grateful to President Ranil Wickremesinghe for standing up to the mob mentality of the JVP/FSP and gathering up the shaken security establishment behind him to resurrect what was left of the government. It is also quite possible all that was a mere show for our consumption with the ‘Great Satan’ working behind the scene, not so mysteriously, to help him, as happened in places like Libya, or Ukraine, after creating similar situations.
As for the Rajapaksas, they threw away, almost overnight, so much they achieved for this country, because of just one sibling, Basil, and Mahinda succumbing to petticoat government to elevate his progeny, especially the eldest, to positions of power, well ahead of his time, without allowing him to season through the system.
For all we care, an inner clique, among the comrade leadership, unknown to their rank and file, and, along with leading Eelamists, could be working for a US agenda, to ultimately plunge, not only this country, but especially India, into chaos.
The government launched the project to undermine the EC, late last year, with Prime Minister Dinesh Gunawardena, who is also the Minister in charge of Public Administration, Home Affairs, Provincial Councils, and Local Government. Summoning the EC twice to the PM’s Office, where it was advised to postpone the scheduled election. Subsequently, President Ranil Wickremesinghe, too, summoned the EC twice. On both occasions, Premier Gunawardena was also present. But, they couldn’t convince the EC to put off the election, that is legitimately due.
Regardless of pressure being exerted on members, the EC insisted that election can be held, though the government experienced difficulty in releasing the required funds.
The police owed an explanation, regarding the status of the investigation into alleged threats, directed at some members of the EC, and a despicable bid made by IGP C.D. Wickremeratne to create another issue, by submitting highly exaggerated expenditure, pertaining to the March 09 poll. Some ministers, too, made a desperate bid to discourage the EC, and the electorate, by repeatedly warning of the government’s inability to meet the poll expenditure.
Wajira Abeywardena, MP, the lone UNP National List MP in Parliament, conducted a campaign of his own to justify the postponement of the poll, whereas UNP Chairman Palitha Range Bandara too played his part.
At the behest of the government, Public Administration, Home Affairs, Provincial Councils and Local Government Ministry Secretary, Neil Bandara Hapuhinna, made an abortive bid to derail the electoral process by directing Divisional Secretaries not to accept deposits from candidates. An angry reaction from the EC compelled Hapuhinna to withdraw instructions, issued on January 09. Hapuhinna found himself in an extremely embarrassing situation after Premier Gunawardena contradicted his claim that January 09 instructions were based on a decision taken by the Cabinet-of-Ministers. Now the matter is before the Supreme Court.
Samagi Jana Balavegaya (SJB) candidate for the post of Mayor of Colombo, Mujibur Rahuman, has moved the Supreme Court against Hapuhinna.
Having failed to manipulate the EC, President Wickremesinghe finally directed the Secretary to the Treasury, Mahinda Siriwardana, and Government Printer, Gangani Liyanage, to stop the electoral process. JVP leader Anura Kumara Dissanayake is on record as having said that the Government Printer was ordered to stop printing until the EC made the payments. There had never been such a deliberate bid to sabotage an election, under any circumstances, since the UNP put off the General Election, scheduled for August 1983.
The then President JRJ held a referendum, on Dec. 22, 1982, to ask the electorate whether it accepted extending the life of Parliament by six more years. Thereby the next General Election was held in 1989.
In terms of Article 104 B (2) and 104 GG (1) of the Constitution it makes it clear that all state authorities are duty bound to cooperate with the Elections Commission and that refusing, or failing to do so, is a criminal offence, punishable with imprisonment. In terms of Article 33 (c) of the Constitution, the President, too, is empowered to ensure the creation of proper conditions for the conduct of free and fair elections, at the request of the Election Commission.
Prez’s strategy
President Wikremesinghe’s UNP is not in a position to contest the Local Government polls. Wickremesinghe’s strategy is geared to avoid election this year. With the UNP now reduced to just one National List MP in Parliament, even though for a long time in the past it was one of the two major parties, is simply unable to conduct a LG polls campaign in its current decimated state. In spite of securing the Presidency, the UNP remains vulnerable, and extremely weak, politically. The UNP has conveniently turned a blind eye to previously taken Supreme Court decisions, relevant to the current situation.
During the Yahapalana administration, on Dec. 15, 2017. the Supreme Court in SCFR 35/2016 clearly explained the pivotal importance of conducting timely elections for local authorities and the importance of the franchise. The SC stated: “Franchise is a fundamental right enjoyed by people. According to Article 3 of the Constitution ‘In the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of the government, fundamental rights, and the franchise”. Franchise is a fundamental right recognized under Article 10 and 14(1) of the Constitution. The failure to hold elections on the due date or postponing is a violation of fundamental rights of the people. Under Article 4(d) of the Constitution the fundamental rights which are by Constitution declared and recognized shall be respected, secured and advanced by all organs of the Government and shall not be abridged, restricted or denied save in the manner and to the extent hereinafter provided. In the present case the legislature as well as the executive had violated this Article.
If the government gets away with this, the next presidential and parliamentary elections, too, can be postponed on the same claim that economic recovery can be undermined by releasing of funds for the conduct of other elections. The government has conveniently forgotten that the Wickremesinghe-Rajapaksa government has allocated as much as Rs 10 bn for the EC, in 2023.
The possibility of the incumbent government seeking to put off future elections is a serious threat to the fragile democracy. Depending on the success of the current agenda, such actions can set a dangerous precedent for a detested executive or legislature to block the allocation of resources for an election and prevent the people of Sri Lanka from choosing their representatives and leaders.
JVP leader Anura Kumara Dissanayake told this writer that former Speaker Karu Jayasuriya, who recently received the coveted ‘Sri Lankabhimanya’ title, should explain his stand on the government bid to postpone the election. Incumbent head of the National Movement for Social Justice (NMSJ) Jayasuriya owed an explanation as he couldn’t remain silent as President Wickremesinghe has definitely undermined the independent commissions. The JVPer pointed out that the 20th Amendment, enacted in Oct. 2020, largely negated the 19th Amendment, introduced in 2015. The 21st Amendment was brought in Oct. 2022 to restore the provisions of the 19th Amendment and now President Wickremesinghe resorted to a strategy that weakened the very basis of independent commissions.
Having repeatedly assured that he wanted to restore parliamentary superiority and strengthen the independent commissions, the UNP leader not only went back on his word but pursued a deliberate strategy meant to undermine the very system he vowed to protect, lawmaker Dissanayake said.
The JVPer pointed out several decisions by Wickremesinghe, in recent weeks, supposedly aimed at managing public funds, have had the effect of preventing the Elections Commission from conducting the elections. These include a demand by the Government Printer for the release of funds, prior to the printing of ballot papers, and the Secretary to the Treasury claiming that there were no funds available for the elections. This is despite a budget allocation of Rupees 10 Billion for the purpose of elections, the MP said.
The JVPer alleged that the conduct of the Secretary to the Treasury, the Government Printer, and other government officials, and institutions, over the last few weeks clearly demonstrated a concerted effort to bring the elections to a halt, thus undermining the franchise of the people and endangering the sovereignty of the people of Sri Lanka. Such attempts to prevent elections mandated by law represent an unprecedented attack on democracy and the rule of law and pose a grave threat to the electoral process in the future, the JVP leader said.
