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Amendment 21A: President and Cabinet Responsible to Parliament

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by Neville Ladduwahetty

During the course of a special televised statement, Prime Minister Ranil Wickremesinghe is reported to have stated among other Amendments to 21A, an Amendment to make the President and the Cabinet of Ministers responsible/answerable to Parliament. Since other Amendments proposed are limited to reorganising one organ of government, the Parliament, what is addressed herein involves the relationship of two separately elected organs of government to which the Peoples of Sri Lanka assigned their sacred sovereignty, namely the Executive and the Legislature.

While Amendments or reforms relating to one organ of government such as the Parliament could be undertaken without seeking the opinion of the People, the question is whether powers Constitutionally assigned could be withdrawn from one organ and transferred to another without seeking the opinion of the People. Furthermore, since the intended 22A is supposed to abolish the Executive Presidency, the conclusion the public could rationally arrive at is that the Amendment proposed by the Prime Minister to make the President and the Cabinet responsible/answerable to Parliament, could be achieved without seeking the opinion of the People through a referendum.

OPINION of the SUPREME COURT

The unanimous judgment given by a panel of seven Supreme Court judges becomes aptly relevant. They stated in SC FR 351 – 3612/2018: “the first rule when interpreting Constitutions is that words in a statute must be given their ordinary meaning”. Based on this rule, while Article 3 states: “Sovereignty includes powers of government…”, Articles 4 (a) and 4 (b) state the specific powers of government assigned by the People to the Legislature and the Executive.

Article 4 (a) states: “the legislative power of the People shall be exercised by Parliament consisting of elected representatives of the People and by the People by a Referendum”. AND Article 4 (b) states: “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People”.

It is in this background that the Determination of the Supreme Court in S.D. No. 04/2015 should be revisited in the event the President is to be responsible to Parliament. The Court stated: “In fact, Mr. Sumanthiran contended that Article 42 is identical to corresponding provision in the 1st Republican Constitution of 1972, which stated in Article 91 that “the President shall be responsible to the National State Assembly for the due execution and performance of the powers and functions of his office under the Constitution…. Thus, the position of the President vis-a-vis the legislature, in which the president is responsible to the legislature was left untouched by the 1978 Constitution.”

What is of serious concern is how Article 91 of the 1972 Constitution came to be incorporated “untouched” in the 1978 Constitution when the political systems under which the two Constitutions operated were as different as chalk and cheese. For instance, the 1972 Constitution specifically states in Article 4: “The sovereignty of the People is exercised through a National State Assembly… Article 5 states: “The National State Assembly is the supreme instrument of State power of the Republic. The National State Assembly exercises – (a) the legislative power of the People (b) the executive power of the People (c) the judicial power of the People”. Thus, the 1972 Constitution caters to a system that is based on a single “supreme instrument of State power. On the other hand, the 1978 Constitution caters to a system where the where powers of government are separated between the “Legislative power of the people” and the “Executive power of the people”. Under such circumstances, it is beyond comprehension how provisions applicable to the arrangement that recognizes a single authority of State power could possibly be also applicable to a system of government where the sovereign People gave a mandate to divide their sovereignty between separate organs of State power.

How such a provision where the sovereignty of the People is exercised by a single all – encompassing entity, the National State Assembly, in which the President elected by Parliament is responsible to the legislature REMAINS “untouched in the 1978 Constitution” in which the sovereignty of the People is exercised by a separately elected President and a separately elected Parliament as separate organs of government is a judicial conundrum. What is tragic is that this seriously flawed notion has persisted without question since 1978 and would continue if a bold initiative is not taken by the legal fraternity to correct this legislative misadventure.

If the first rule of interpretation is to go by the ordinary meaning and Article 42 remains, there is a strong possibility, however flawed, that the President and the Cabinet would become responsible/answerable to Parliament. This would mean that the Amendments proposed by the Prime Minister in 21A would be subject only to a 2/3 majority. The need for a referendum would not arise either on spurious grounds that Article 4 is not an entrenched Article even though Courts have repeatedly state that Article 4 should be read with Article 3, or on blindly accepting existing constitutional provisions without questioning fundamentals.

It is only if Courts indulge in the luxury of exploring fundamentals that they would realise that the inclusion of Article 42 in the 1978 Constitution is misplaced. This means that under provisions of the 1978 Constitution, the President cannot be responsible to Parliament. The only way the President is required to be responsible to Parliament is by seeking the consent of the Peoples through a Referendum.

JUDGEMENT RELATING to the CABINET

Another issue of concern relates to the Cabinet. The judgement in S.D. No. 04/2015 states: “The People in whom sovereignty is reposed have made the President as the Head of the Executive in terms of Article 30 of the Constitution entrusted in the President, the exercise of Executive power being the custodian of such power. If the People have vested such power on the President, it must either be exercised by the President directly or someone who derives authority from the President. There is no doubt that Executive power can be distributed to others via President. However, if there is no link between the President and the person exercising Executive power, it may amount to a violation of mandate given by the people to the President”.

Continuing the judgment states: “Though Article 4 provides the form and manner of exercise of the sovereignty of the People, the ultimate act or decision of his executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and others to whom such power is given must derive the authority from the President or exercise Executive power vested in the President as a delegate of the President”.

Therefore, the conclusions that could be drawn from the judgment is that the Executive power of the President is independent of Parliament, and since the Cabinet derives its authority from the President, the Cabinet too must necessarily be independent of Parliament. Consequently, any attempt to alter this relationship between the President/Cabinet and Parliament must necessarily require an endorsement from by the people through a Referendum.

CONCLUSION

The conclusion that could justifiably be reached from the material presented above is that an Amendment that attempts to make the President to whom the people have unequivocally assigned part of their sovereignty to exercise their Executive power, responsible to Parliament to whom the People have assigned a separate part of their sovereignty, cannot be made without first seeking the consent of the people through a Referendum. Furthermore, since the Cabinet derives its authority from the President, the constraint that is applicable to the President is equally applicable to the Cabinet.

If the intent is to prevent an individual such as a President from exercising unfettered Executive power, Parliament could legislate broad benchmarks and guidelines for the Executive to abide by, and for Parliamentary Oversight Committees to monitor and report to Parliament. Such an arrangement would be in keeping with the core principles of the present Constitution.

The focus at this moment of desperation should not be to engage in a contest as to which branch has more power, but together focus on restoring the economy for the sake of the People. The notion that these Amendments are undertaken in response to the boisterous voice of some is a misplaced distraction because the concern of the silent majority is for essentials of livelihood that is not getting the attention it deserves. Therefore, the need of the moment is for both branches of government to work together without competing as to who has more power.

A suggestion that would have a significant impact on the overwhelming majority is availability of petroleum products. Therefore, instead of depending on credit lines, the government should take a bold initiative and consider negotiating with Russia to set up a refinery in Trinco of sufficient capacity to furnish local needs and export any excess. In the interim, Sri Lanka should negotiate with China to secure excess petroleum products in their possession due to devaluation of the yuan and the slow down of their economy due to COVID-19. Such interim arrangements should not be a concern for India, because LIOC already has 35% of Sri Lanka’s market share. Engaging with India, Russia and China to resolve Sri Lanka’s desperate energy needs would be in keeping with its Neutral Foreign Policy. It is only such bold initiatives that will prevent Sri Lanka from experiencing instability of a nature hitherto unknown.



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The Division Bell Mystery

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Tales of Mystery and Suspense 3

The murder, in a private dining room in the house, is of a financier with whom the government was negotiating a loan. When this seemed difficult the Minister of Home Affairs agreed to lead discussions, since he had known Mr Oissel the financier when they were young. Hence the private dinner, but when the Minister stepped out for a vote, Oissel was shot just as the Division Bell rang.

The Brahms and Simon detective novels, the first of which I wrote about last week, were amongst several books by the pair that Robert Scoble gave me when I was in Australia towards the end of last year. Amongst them was another thriller of a very different sort, though that too was written and set between the wars.

Called The Division Bell Mystery, it was set in the House of Commons, the first such book I believe, and was by Ellen Wilkinson, a Labour MP who became Minister of Education in Attlee’s government after the war, having served previously as Parliamentary Private Secretary to several ministers. Her hero Robert West is also a PPS, but a conservative, and his Minister, of Home Affairs, is an old style aristocrat, not much loved by the less orthodox Prime Minister, who nevertheless needs his support on many occasions.

The murder, in a private dining room in the house, is of a financier with whom the government was negotiating a loan. When this seemed difficult the Minister of Home Affairs agreed to lead discussions, since he had known Mr Oissel the financier when they were young. Hence the private dinner, but when the Minister stepped out for a vote, Oissel was shot just as the Division Bell rang.

West was just outside the door when the shot was heard, and when he opened it saw only the dead body with a revolver beside it. The assumption that this was suicide was however challenged by Oissel’s grand-daughter Annette, who was his heir, on the grounds that he would never have killed himself. But her view was given greater credence by the Inspector put in charge of the case who said there were no burn marks on the body which would have been the case had Oissel fired the pistol himself.

Matters are complicated by the fact that Oissel’s flat had been burgled while he was at dinner, and Jenks the policeman allocated to him, who had served the Home Secretary and seemed more acceptable to Oissel than someone from the Security Service, had been killed. Matters get even more complicated when Annette says her grand-father’s notebook in which he wrote his secrets in cipher was missing.

That was found in Jenks’ pocket, and then a photographer came to West to say he had been asked by Jenks to photograph this. More worryingly for West, he finds in the Home Secretary’s drawer a few pages from the notebook with what appears to be an interpretation of the cipher.

Ellen

Overwhelmed by all this he confides in a recently created peer who knows all about the business world, who insists that they leave the house party at which they had met over dinner and discuss the matter with the Prime Minister who promptly summons the Home Secretary.

But the Home Secretary had gone to Scotland to launch a ship over the weekend, so the meeting could take place only on the morning of the Monday, when difficult questions were expected on the adjournment motion. He admits at the meeting that he had got Jenks to take the notebook, and also that he knew the code since it had been created by him and Oissel when they were young.

He thought he should resign, and even contemplated suicide, but the Prime Minister told him that that would be even worse for the government, and that he should go home to bed. The Prime Minister said that he himself would handle the question, which he did with aplomb, insisting that confidentiality was needed until the inquest. What had happened would be made clear then, he declared, leaving West and Inspector Blackit and Lord Dalbeattie what seemed the impossible task of solving the murder.

Dalbeattie had suggested that West ask a female Labour MP who was very fond of him to get what information she could from the staff. That there was some involvement there had become clear when West, going back late one night to collect a briefcase he had left in a dining room, found someone lurking in the dark in the corridor outside the private rooms. Room J, where the murder had happened, was meant to be guarded throughout by a policeman, but he had left the room having felt dizzy, and it seemed that his coffee had been drugged. West’s sudden appearance however had prevented anyone else getting into the room.

Dalbeattie decides to recreate the scene of the murder and has a dinner party in Room J on the Tuesday night, inviting West and Annette and the society hostess at whose house he had met, and also Patrick Kinnaird, an MP who was engaged to Annette, as well as the Permanent Secretary to the Home Ministry.

After coffee Inspector Blackit comes in with Grace, the Labour MP who had got the confidence of the staff, and a journalist who had also been helpful, and just as they say they think they are on the track the division bell rings. Grace jumps up and tells the Inspector that that provides the solution and they get a ladder, and sure enough find the revolver in the space where the bell is. Directed at the place where Oissel had sat, it had been primed to go off with the ringing of the bell. The waiter who had helped to set things up made clear who the murderer had been.

The reason for the murder and the confused motives of all those involved made for a fascinatingly intricate mix. But also impressive in the book were the descriptions of the isolation possible in the crowded premises of the house, the forceful characterization of the members – Grace based on the writer, the society hostess based on Nancy Astor, the first female MP – and the laid back nature of senior politicians which West realized had to change in the brave new world of high finance.

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The challenge of keeping value-based politics alive

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Anti-migrant protests in Durban, South Africa. BBC

The current outbreak of anti-immigrant protests in Durban, South Africa is bound to have taken many a subscriber to value-based politics or political idealism quite by surprise. After all, this is evidence that despite the historic accomplishments of nation-builders of the stature of the late President Nelson Mandela it cannot be taken for granted that identity politics, including racism in its worst forms, is no more in South Africa.

At the time of this writing details are scarce on the substantive root causes of the protests but it could very well be that economic grievances, particularly on the part of the majority community in South Africa, are contributing considerably to the disaffection. Shrinking employment and material prospects are likely to figure majorly among the factors igniting the unrest.

Fortunately, the local authorities in Durban are losing no time in calling for peaceful co-existence among the relevant communities and are pointing to the vital importance of stepping-up national integration processes. Apparently, immigrants in sizable numbers from neighbouring countries are present in Durban. However, international TV footage of the protests quoted some local authorities as saying that the majority of the immigrants in some centres that housed them were not illegal migrants and had the documents that entitle them to be in Durban.

In the Durban protests the world has fresh proof of the socially divisive consequences of the gathering globe-wide economic disaffection, touched off particularly by the continuing crisis in West Asia. Going ahead, the world would need to brace for increasing identity-based unrest of the kind it is just witnessing in South Africa.

Considering that the material lot of ordinary people everywhere could only aggravate progressively, with the US and Iran showing no signs of negotiating an end to their confrontation any time soon, it will be left to the more democratic and progressive sections of the world community to initiate positive measures collectively to bring a measure of relief to the discontented.

The swiftness with which such relief will be provided would depend crucially on the importance those sections taking up these undertakings attach to value-based politics as opposed to Realpolitik of power politics.

Going by these yardsticks, Italy could be considered to be moving in the right direction. Recently Italy came to the fore in initiating the collective named, ‘Rome Coalition for Food Security and Access to Fertilizer’, which has as one of its aims the swift provision of fertilizer to economically weak African countries.

In a recent statement Italian Minister of Foreign Affairs and International Cooperation, Antonio Tajani, said that a principal aim of the project was to ensure that the farmers of Africa gained easy access to fertilizer, considering that food security is a growing concern among some of Africa’s economically vulnerable countries.

The statement went on to mention that some 30 countries hailing from the Mediterranean region, the Middle East, the Balkans as well as the FAO had been invited to join the coalition. The venture is far-seeing in that food security is main among the reasons for social discontent which in turn could degenerate into endemic political turmoil and bloodshed. Separatist violence and geographical fragmentation of countries wouldn’t be too far behind these developments, as Africa itself has often proved.

It is hoped that more G7 countries would take the cue from Italy and do what they could to ease the hardships of economically distressed countries, particularly of the global South. In these efforts they would need to break rank with the US, which is today brutally indifferent to the consequences of its policy of making ‘America First’, come what may.

Going by current developments, the Trump administration seems to be blithely oblivious to the wider, deleterious effects of its policy course in West Asia. Besides rendering Iran militarily and otherwise impotent nothing else seems to matter to Washington, as regards West Asia. This is policy short-sightedness of an extreme kind. After all, right now West Asia could be said to be sitting on the proverbial powder keg.

On the other hand, Iran is not giving the world the impression that it is doing anything constructive to get out of the policy straitjacket that it wove for itself decades ago. Rather than enter into a policy of ‘live and let live’ in relation to Israel in particular and initiate a process of reconciliation with the latter, it has chosen to operate within policy parameters that continue to damn Israel. This has put Israel always on the ‘defensive’ so to speak and prevented the opening up of space for meaningful dialogue.

That said, Israel is obliged to explore the possibilities of entering into a negotiatory process with the Arab-Islamic world that could lead to a de-escalation of tensions and bloodshed. It cannot continue to look at its neighbours through lenses that distort them as archetypal enemies who should be ‘wiped off completely from the face of the earth.’

In other words, the need is urgent for Realpolitik to give way to value-based politicks. Italy is beginning to prove that the latter approach could be pursued with some success. May be the EU and the UK could throw their weight behind these initiatives as well and establish that international politics could be refashioned on the basis of humane, civilized norms. The UN would need to be fully supportive of these moves and prove an organizational nucleus of the operations that follow.

In fact the time is ripe for people of conscience to collectively stand up on the side of peace and say ‘No’ to war and violence. Organizations such as the ICRC, the WHO and Medicines Sans Frontiers have already taken up this call. Referring to the widespread destruction of health facilities and their dehumanizing results these organizations have said, among other things, that ‘This is not a failure of the law. It is a failure of political will.’

True, ‘failure of political will’ among those powers that matter accounts for the runaway, uncontrollable nature of war and destruction in contemporary times, but more fundamentally it is a failure of the human conscience. It could very well be that the phenomenal levels to which violence and war have been unleashed today have had the effect of deadening consciences. This is a matter for urgent study and wide discussion.

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Vesak celebrations … with Cuteefly

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Perfect for celebrations, gifts, and meaningful occasions // Gift pack

I would describe Indunil Kaushalya Dissanayaka as innovative and creative, and she operates under the name of Cuteefly.

Indunil always comes up with something novel to celebrate special occasions, and she does it with candles … and that’s her profession.

She was in the spotlight when she created a happening scene, with candles, for Christmas, Sinhala and Tamil New Year, and Valentine’s Day.

As lanterns light up Sri Lanka for Vesak, the Colombo-based candle maker is quietly turning wax and wick into little pieces of the festival.

Candles reflecting Vesak themes

Her candles reflect Vesak themes – light, peace, remembrance, giving, etc., to enable you to fill your Vesak celebration with devotion and beauty.

Among her Vesak creations is a lotus-shaped soy candle, scented with sandalwood, lavender, etc., meant to burn during this Vesak Poya Day.

Indunil Kaushalya Dissanayaka: Customers
praise her for her creativity

These handcrafted Vesak candles are perfect for offering at the temple, she says.

What makes her creations so novel is that they come in different shapes, scents, themes, and all are handmade.

What’s more, her customers have heaped praise on her for her creativity.

According to Indunil, her creations are perfect as a thoughtful gift … to bring beauty, unity, and light into every moment.

Says Indunil: “Our beautifully handcrafted Unity candles are designed with premium detail and love, making them perfect for celebrations, gifts, and meaningful occasions.”

Cuteefly, says Indunil, is available online.

Readers could contact Indunil on 0778506066 for more details.

He Facebook Page is: Cuteefly.

Handmade with love

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