The country, until two days ago, had a Prime Minister in office who commanded the confidence of parliament, which he had demonstrated not long ago by having a no confidence brought against him defeated in parliament.
President Sirisena’s sacking of Prime Minister Ranil Wickremesinghe and the appointment of Mahinda Rajapaksa in his place has been described by some as a ‘constitutional coup’. The phrase ‘constitutional coup’ is a contradiction in terms, or ‘an oxymoron’, because it would imply that although President Sirisena’s actions amounted to a coup, his actions are sanctioned by the constitution. There is no constitutional basis for the President to have removed the Prime Minister. At the press conference held on 27 October 2018, as reported in Adaderana (GL explains how PM was removed and why Parliament was prorogued) Dr G.L. Peiris, the chairperson of the SLPP, attempted to justify the legality of President Sirisena’s actions, putting forward two points in support. They are (i) the cabinet of ministers stood dissolved by the very fact of exceeding the numerical limit prescribed in Article 46(1), and (ii) the President as the appointing authority has also the power to dismiss him. In fact, the phrase used by Peiris is ‘compulsory removal’. What Dr Peiris sought to do was to provide an ex post facto rationale for the President’s action but the reasons he put forward for the removal cannot be reconciled with those given by the President. Nor are they reflected in the position taken by the President in his gazette notification.
The gazette notification announcing the President’s decision stated that “the President in the exercise of powers conferred upon him under the Constitution …, has removed Hon. Ranil Wickremesinghe … with immediate effect.” (see The Gazette Extraordinary no. 2094/43 dated Friday 26 October 2018). There is no reference in this gazette to the specific provision or provisions of the constitution under which the President purported to act when removing the Prime Minister from office. If, as Dr Peiris says, the cabinet of ministers ceased to hold office and the Prime Minister had gone out with the cabinet, then there was no need for the President to have “removed” the Prime Minister from office, and to have done so with immediate effect. The President has not stated that the appointment of Mahinda Rajapaksa became necessary because the office of the Prime Minister which was occupied by Ranil Wickremesinghe had fallen vacant. Continue reading
The Nineteenth Amendment has once again become the subject of controversy, and its current focus concerns the provision in the Nineteenth Amendment that disqualifies the same person from being elected as President for more than two terms. The two-term limit is not an innovation of the Nineteenth Amendment. A provision imposing a term limit was in the Constitution as it was originally enacted in 1978 but it was repealed by the Eighteenth Amendment enacted during Mahinda Rajapaksa’s tenure as President. It was re-introduced by section 3 of the Nineteenth Amendment which inserted the following new paragraph as Article 31(2) of the Constitution: “No person who has been twice elected to the office of President by the People, shall be qualified thereafter to be elected to such office by the People.” (emphasis added). This prohibition was reinforced by section 21 of the Nineteenth Amendment which added Article 92(c) of the Constitution which disqualified a person who “has been twice elected to the office of President by the People” from being elected to the office of President thereafter. This is identical to the paragraph that existed as Article 92 (c) of the 1978 Constitution before it was repealed by the Eighteenth Amendment.
It has been argued, nevertheless, by some, including Professor G.L. Peiris and ex-Chief Justice Sarath Silva, that these provisions do not disqualify Mahinda Rajapaksa from seeking a third term. Mahinda Rajapaksa has already served two terms as President but if this argument holds, then he would be eligible not only to run for a third term but also a fourth. It has been contended that according to the Constitution as amended by the Eighteenth Amendment there was no provision imposing a term limit, and as the Nineteenth Amendment does not expressly state that Article 31(2) is to apply retrospectively, it should not apply to Mahinda Rajapaksa, who, in ex CJ Sarath Silva’s rather infelicitous oxymoronic phrase, is ‘a previously elected incumbent in office’. (Sunday Observer 19 August 2018, Mahinda ineligible to contest 2019 prez poll – Jayampathy). Mahinda Rajapaksa is not currently holding office to be called an incumbent. Continue reading
Our comrade Dr Reeza Hameed explains that ‘The changes brought about by the Nineteenth Amendment are designed to free Parliament and the Prime Minister from subservience to the President. The President no longer has the power to remove the Prime Minister.’
Some commentators have persistently advanced the proposition that, notwithstanding the Nineteenth Amendment to the Constitution of Sri Lanka, the President’s power to remove the Prime Minister is intact. It is a view that relies on a literal reading of the Sinhala text of Article 48(1) in which the phrase “removal from office” appears. I have, in my previous intervention on this subject, analysed the provisions of the Constitution as amended by the Nineteenth Amendment and expressed the view that the President no longer has this power. That interpretation has been questioned on the basis that the words “removal from office” appear in the Sinhala text of Article 48(1); and because the Sinhala text should prevail in the event of an inconsistency, it must follow that the President may remove the Prime Minister. I disagree with this conclusion for the reasons I have given below. The tenure of Prime Minister’s office pre-Nineteenth Amendment is as follows.
The Constitution as enacted in 1978, (which I shall hereafter refer to as ‘the Principal Enactment’), in Article 47, provided for the tenure of the office of the Prime Minister. It stated that he “shall continue to hold office throughout the period during which the Cabinet of Minister continues to function under the provisions of the Constitution unless he (1) is removed by the President, (2) resigns his office, or (3) ceases to be a Member of Parliament.” The Prime Minister shall continue to remain in his office unless and until any one of the three events mentioned above occured, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015. Continue reading
‘To describe the Rubaiyat’s quatrains as the epigrams of an epicurean is to misunderstand Khayyam’ explains Dr Reeza Hameed.
As rendered by Fitzgerald, the Rubaiyat of Omar Khayyam has remained an enduring favourite among poetry lovers all over the world. Khayyam is a poet for all seasons. Khayyam was undoubtedly one of the greatest mathematicians and astronomers to come out of the Islamic world of the middle ages. He was a contemporary of Ali ibn Sina, known to the West as Avicenna. Khayyam was a polymath in an era which produced polymaths by the dozens, many of whom are known to the West only by their Latinised names, but Khayyam’s name survives in the Arabic original. Khayyam had mastered many disciplines. In addition to mathematics and astronomy, he was fluent in philosophy, medicine, geography, physics, and music. Ibn Sina taught him philosophy for many years. He also learnt medicine and physics from that great man. Another contemporary was Al-Zamakshari, well-known for his commentary of the Quran. Since Khayyam was one of the greatest astronomers of the Middle Ages, in recognition of his contributions a crater on the Moon was named after him.
In mathematics, he virtually invented the field of geometric algebra. His treatise on Algebra was used in Europe as a standard text even as late as the nineteenth century. He was not known for his poetry, until he was reborn as a poet in the second half of the nineteenth century in Edward Fitzgerald’s translation of his Rubaiyat, which catapulted him to poetic stardom. Had it not been for Fitzgerald, Khayyam’s fame might have rested on his contributions to astronomy, mathematics or the development of the Jalali calendar to replace the Julian calendar. He alludes to his involvement in the calendar in one of his verses.
Ah, by my Computations, People say,
Reduce the Year to better reckoning?
‘There is nothing in the Quran which says that a man should marry a young girl … It is not in the best interests of a girl to be married off early. Early marriage robs a girl of her childhood,’ argues Dr Reeza Hameed.
The All Ceylon Jamiyyathul Ulama (ACJU) is opposed to making any changes to the existing Muslim family law. Mufti Rizwi, who is a member of the Saleem Marsoof Committee appointed to look into reforms to the Muslims Marriages and Divorces Act (MMDA) of 1951, has made the oracular pronouncement that the law is ‘perfect in its present state’ and required no reform. Mufti Rizwi also presides over the ACJU. Regrettably, the views expressed by the Mufti and his outfit are anachronistic and obscurantist. Matters relating to Islam and Muslim law ought not to be the sole concern of the ulema. In this comment I have touched upon some issues in the hope that it will contribute to the debate on the need for reform. In Muslim law marriage is not a sacrament but a civil contract. Neither religious ritual nor having it done in a mosque is essential to confer validity to a marriage. A Muslim marriage is contract like any other in Islamic law. Parties to a marriage should have legal capacity to enter into the contract.
There has to be an offer and an acceptance of that offer with the intention of establishing a marital relationship. There must be consideration given to the wife known as mehr. All the schools of law recognise that a person has freedom of choice to enter into a marriage and that he or she cannot be forced into one. The age at which a young Muslim acquires legal capacity to marry has been a contentious issue. The traditionalist view adumbrated by classical jurists is that a person acquires the legal capacity to marry on attaining puberty. In the Hedaya, the manual on Hanafi law, the earliest age at which puberty is attained by a girl is 9 and by a boy at 12. A similar view is adopted by the Shafi School, which is followed by a majority of Sri Lankan Muslims. The presumption of Muslim law as applied in India and Sri Lanka is that a person attained puberty at 15. Continue reading
I have never attended cricket matches and only once took a bat and a cricket ball in my hands and that was under compulsion from the head master
Markandey Katju, quondam Justice of the Supreme Court of India, is a man who does not mince his words. A maverick, he has a penchant for courting controversies. Not long ago, he dubbed Mahatma Gandhi “a British agent” (he also called Subhash Chandra Bose “a Japanese agent”). Katju accused Gandhi of serving the imperial agenda and declared as a myth the widely held claim that Gandhi won India her freedom. For about twenty years Gandhi practised law in South Africa and in 1915 went back to India, where he became involved in the country’s independence movement. In India, he set out to build a mass political movement by injecting religion into politics, thereby exploiting the deeply held religious sentiments of the people. In almost every meeting he participated, he propagated Hindu religious ideas.
The Congress was converted to a party of the Hindu masses, leading to the Muslims and the Congress becoming polarised. Citing the eminent jurist Seervai in support, Katju has argued that Gandhi’s method of appealing to Hindu ideas inevitably led to partition. Had Katju been in Solon’s Athens, where speaking ill of the dead was prohibited by Solon’s law, his remarks would have got him into hot waters. In twenty first century India, Katju’s remarks touched a raw nerve of the law makers because he had spoken ill of the Father Continue reading
The Prophet could have easily got himself crowned as the King of Medina but he chose not to. He preferred to govern with the consent of the people.
The quest to correctly understand and interpret the teachings of Prophet Muhammad has consumed historians for centuries. Undoubtedly, he would be disappointed with all that is being done in his name and the monotheism he, and his persecuted followers, preached in the Hejaz to the idolatrous/litholatrous tribes of Arabia. All sorts of people now subscribe to all sorts of views and connect them to the Prophet. In Iran, millions of people gathered today in Mashhad to mark the Prophet’s death and the martyrdom of his grandson Imam Hassan. The 28th day of the month of Safar (the second month in the lunar calendar) marks both these events. People from all across Iran and foreign pilgrims in large numbers held religious ceremonies at the holy shrine of Imam Reza, the eighth Shia Imam, in Mashhad today to honour the Prophet and his grandson.
Here is a thought provoking analysis of the Prophet’s teachings and lifestyle. Dr Reeza Hameed argues that Prophet Muhammad was different because he was not a miracle performer like Jesus Christ; he could not walk on water and he did not magically part the sea like Moses. As Prophet Muhammad himself said, he was merely a man. Not to be worshiped, he was just the messenger wanting to bring a better life to wretched Arabia Continue reading
Following the attack on the APS, Pakistan removed the moratorium on the death penalty. The hangman Albert Pierrepont said capital punishment is “a primitive desire for revenge”. This post looks at the case of Sri Lanka.
There has been an organised move to bring back the hangman and implement the death penalty in Sri Lanka. Several weeks ago, Colombo District MP Hirunika Premachandra presented in Parliament an adjournment motion for the revival of capital punishment in Sri Lanka. She said that once the motion went through Parliament she would request President Maithripala Sirisena and the government to consider bringing back capital punishment. The motion seems to have been grounded in the member’s belief that capital punishment is the solution to the increasing anti-social and violent activities within the country. An adjournment motion does not end in a vote but some members of the government supported the motion while others spoke against it. In the course of the debate, the Minister of Justice made a statement in the House, confirming the government’s intention to sign the UN moratorium in November 2016. Subsequent to his statement in Parliament, the Minister was reported to have said that the moratorium on the penalty will continue but it will not be abolished.
The death penalty is a cruel, inhuman or degrading form of punishment and it should be eliminated from the statute books. It is pre-meditated killing by the state. Curiously, even before the fair member had tabled her motion in Parliament, the Prison Commissioner had advertised the vacancies for the post of hangman and refurbished the gallows at the Welikade Prison. In the vernacular, a hangman is referred to as vadhaka, commonly known as ‘alugosuwa’, a word which is of Portuguese origin (algoz). Continue reading
The question whether ex-President Mahinda Rajapaksa is eligible to be appointed to the Prime Minister’s post if he has the support of a majority of members in Parliament following the August 17 poll is the subject of current debate. President Sirisena has made public his intention not to appoint Rajapaksa as the Prime Minister and has hinted that ‘there are enough seniors in the party to be the Prime Minister’. There are some within the UPFA who want Rajapaksa as their Prime Minister in the event of a UPFA majority in Parliament. A.H.M. Fowzie, for instance, has acknowledged that the appointment of the Prime Minister is the prerogative right of the President but that, after the elections are over, the UPFA ‘will prevail upon President Sirisena to accommodate Rajapaksa as the Prime Minister’.
Another UPFA candidate has threatened to do a Dahanayake and run around with the mace if Mahinda Rajapaksa is ignored for the post. G.L. Peiris has weighed in to say that nowhere in the constitution is it stated that a former President cannot become Prime Minister. The President, he said, must appoint as Prime Minister the member who commands the support of a majority of parliamentarians, and he must appoint Mahinda Rajapaksa if he happened to be that person. Former Chief Justice Sarath Silva has declared as untenable the argument that Rajapaksa is disqualified from acting as President simply because he has already been elected twice as President. Continue reading
The draft 19th Amendment reminds me of the story ‘Naya Qanoon’ (New Constitution) written by the late Saadat Manto, regarded by many as the finest writer of short stories in Urdu and as the greatest South Asian writer of the 20th century. Set in pre-independence Lahore of the 1930s the main protagonist of the story is a tongawalla called Mangu. One day, Mangu over-hears two of his customers discussing a new constitution that was to be introduced in a few days. Mangu hated the British, and was sick and tired of the humiliation and abuse that he had suffered under British rule. Mangu is excited by the prospect of freedom that he believed would be ushered in by the constitution. He imagined it would be something bright and full of promise and spends the next few days getting ready to celebrate the arrival of the new constitution.
On the appointed day, he discovers that nothing has changed and everything appeared as before. An Englishman with whom he had an argument on a previous occasion approaches him for hire. Emboldened by the prospect of change promised by the constitution, Mangu wants to put his customer in place and in a sharp voice quotes his customer more than his usual fare for the journey. The encounter with the Englishman ends up in an altercation with Mangu landing several blows on Continue reading