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Erskine May, Robert’s Rules : Mahinda Yapa & Coup Conspiracy

25 Mar 2024 - {{hitsCtrl.values.hits}}      

To ensure the Speaker’s office remains impartial and transparent; the  Speaker should relinquish party ties upon assuming office; ensure a  transparent and merit-based selection process



Erskine May’s Parliamentary Practice says, the Speaker is required to relinquish any party or group affiliation upon appointment and to abstain from political engagement. This title, originating in England, was first recorded in 1377. Two and a half centuries later, on January 4, 1642, King Charles I made an unprecedented move by entering the House of Commons to arrest five Members of Parliament. 

However, Speaker William Lenthall bravely defied the King to uphold the privileges of Parliament. As a result, the King was forced to leave without executing the arrest of the Five Members. This historic event marked a significant assertion of parliamentary sovereignty over the monarchy. Since then, no monarch has entered the House of Commons.

Sir Alfred Francis Molamure

Sir Alfred Francis Molamure’s political journey began in 1924 when he was elected to the Legislative Council [Colebrooke]. Later, he returned unopposed to the first State Council [Donoughmore]. Molamure made history by becoming the first Speaker of both the State Council and the first House of Representatives in 1947 under the Soulbury Constitution. He unexpectedly absented himself from parliamentary sittings for seven years.



Consequently, on August 25, 1935, he lost both the positions of Speaker and the Dedigama seat, and he withdrew from active politics for six to seven years. In 1943, Molamure made a comeback, winning the Balangoda by-election to the State Council. Interestingly, his name was proposed for the position of Speaker in 1947. Molamure secured majority votes, marking his return to the position of Speaker, as many voters were unaware that Molamure had been disqualified from contesting for seven years due to his involvement in a criminal financial misappropriation of a private fund while serving as its Trustee, and had been punished by a Court of Law.

Sri Lanka’s main Opposition party, driven by concerns over what they perceived as a breach of constitutional principles, mobilized to cast their votes in favour of a No-Confidence Motion (NCM) against Speaker Mahinda Yapa Abeywardana. The accusation against the Speaker revolved around his purported violation of the Constitution by approving the appointment of a controversial figure as the country’s police chief. The Speaker defended himself by pointing out that out of the nine members of the Constitutional Council (CC), two abstained from voting, leading him to believe that they opposed the appointment. Leader of the Opposition, on platform ‘X’ amplified his discontent declaring, “The Constitution is being blatantly violated for the second time. Shame on you, Speaker!” 

Speaker’s role

The late Indian Prime Minister Nehru suggests a comparison with Nehru’s more visionary and idealistic conception of the Speaker’s role, he said: “The Speaker represents the House. He/she represents the dignity and freedom of the House, and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty. Therefore, it is right that should be an honoured position, a free position, and should be occupied always by persons of outstanding ability and impartiality.”

To ensure the Speaker’s office remains impartial and transparent; the Speaker should relinquish party ties upon assuming office; ensure a transparent and merit-based selection process; provide training on parliamentary procedures and ethics; promote transparency in the Speaker’s activities and encourage dialogue among parliamentary stakeholders. These actions can uphold impartiality and transparency within the Speaker’s office. Meanwhile, the Speaker Yapa Abeywardana opted to abstain from active participation in the three-day debate leading up to the NCM vote. 

However, following the defeat of the NCM, the Speaker seized the opportunity to make a ‘startling revelation’. In a surprising turn of events, he disclosed a ‘secret’ incident where a few powerful individuals, amidst the constitutional turmoil of 2022, pressured him into disregarding constitutional provisions and orchestrating a state takeover, and added, “One such person was a signatory to the NMC.”

Startling revelations” lacking specific names may indeed lack credibility, as it leaves the claims without substantiation. If one acknowledges the disclosure, it undoubtedly signifies an attempted Constitutional Coup, warranting litigation and punitive action against the alleged conspirators. If the Speaker refuses to disclose the names of conspirators who agreed on an unconstitutional plot, it warrants another NCM and subsequent expulsion. An excerpt from the trial judgement in “Queen vs Liyanage,”  67th NLR: 203/204, pertaining to the aborted Coup d’e t`at of 1962:

“…the essence of the conspiracy is the agreement to do the unlawful acts alleged: but no act needs to take place in pursuance of the agreement, whether a criminal act is done or not, the agreement, and not the act, is what is penalized. ‘The conspirators may repent and stop or they may either have no opportunity or may be prevented, or may even fail. Nevertheless, the crime is complete and was complete when they agreed.”                              
Abstentions according to Robert’s Rules of Order.

Decision-making processes

The CC plays a pivotal role in overseeing constitutional matters, and abstentions from its members can lead to delays and inefficiencies in the decision-making processes, ultimately resulting in financial repercussions for the public. Robert’s Rules of Order explains the right way to do things when a board member is in doubt about voting rules. Usually, the bylaws for nonprofit boards will specify whether the issues will pass according to a simple majority or a two-thirds vote. According to Robert’s Rules, abstention votes don’t count as a “yea” or “nay.”  As a rule, abstentions don’t count and do not affect the outcome of the vote. What about a case where there are abstentions on a unanimous vote? Robert’s Rules doesn’t define the term unanimous vote, so an abstention in this situation could be left open to the board’s interpretation.

According to Robert’s Rules, abstentions should typically not be called for, counted, or recorded. This is because no member can be compelled to vote. However, there are exceptions to this rule. Firstly, if you are part of a public body, such as elected or appointed officials, you may have a responsibility to record your participation in votes for the benefit of constituents. Additionally, if the number of members voting is fewer than the number required for a quorum, it may be necessary to identify abstentions to ensure that a quorum was present for the vote. When determining whether a majority has been reached, abstentions generally do not affect the outcome of the vote. For example, if there are 12 members on a board, and 10 people vote while two abstain, you would typically need six yes votes to win, based on the default definition of a majority as “those present and voting.” However, if your governing documents define a majority differently, such as counting the total number of members or individuals present, then abstentions may impact the outcome. 

In such cases, abstentions effectively act as “no” votes because the basis for a majority is a fixed number, and you would need a greater number of affirmative votes to win.

However, while the Speaker brings attention to this significant financial burden running up to 45 million, it is essential to consider the factors contributing to this expenditure. The two abstinent members of the Constitutional Council (CC) shoulder a significant portion of responsibility. Their abstention reflects a lack of commitment and undermines the integrity of their high office, warranting immediate replacement. The signatories to NCM also contribute to the financial strain. The failure to resolve conflicts or disputes efficiently can exacerbate the financial toll on taxpayers.

Additionally, the broader responsibility falls on the entirety of Parliament, which failed to draft the rules governing the CC. This oversight not only hampers the effectiveness of crucial institutions but also leads to wasteful spending that could be allocated towards more pressing societal needs.
 Reimbursement of the 45 million of taxpayers’ money is necessary to alleviate the burden on the public.

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