Connect with us

Features

Resolving contradictions in 19th Amendment

Published

on

Is going back to 19A sufficient? – Part II

by Jayampathy Wickramaratne, President’s Counsel

(First part of this article appeared yesterday)

The Nineteenth Amendment to the Constitution (19A), though now abolished, is an important milestone in our constitutional history. With the experiences under the Twentieth Amendment, there is growing support for going back to 19A.

President still powerful

The main changes made by 19A relevant to this article may be noted. The term of office of the President and the duration of Parliament were reduced to five from six years. The President could dissolve Parliament during the first four and a half years only if a two-thirds majority in Parliament requested a dissolution. The President appoints Ministers, Ministers who are not members of the Cabinet of Ministers, and Deputy Ministers on the advice of the Prime Minister. The President has no power to dismiss the Prime Minister. It is only Parliament that can remove the Prime Minister by rejecting the Statement of Government Policy or the Budget or passing a vote of no-confidence in the Government, resulting in the Cabinet of Ministers standing dissolved. The President shall not hold a Ministry. The incumbent 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.

Despite reduced powers, the President remained quite powerful. He continued to be the Head of the Government and Head of the Cabinet of Ministers. The President would determine the number of Ministers and the Ministries and the assignment of subjects and functions to Ministers. In doing so, he would consult the Prime Minister only where he considered it to be necessary. He could also, at any time, change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Secretaries to Ministries would also be appointed by the President without any consultation.

Emulating Hanuman

During the period of his Presidency, Sirisena used his powers to the fullest, especially after 2016 when his relationship with Prime Minister Wickremesinghe had broken down. He even refused to appoint Ministers as advised by Wickremesinghe, the best-known case being his refusal to appoint Sarath Fonseka as Minister of Law and Order.

Several names for approval by the Constitutional Council were sent by President Sirisena without any consultation. He surprised the legal community when he recommended a Judge of the Court of Appeal to be appointed to the Supreme Court over several senior Judges. When Sirisena recommended his Additional Secretary (Legal) for appointment to the Court of Appeal, the Bar Association of Sri Lanka wrote to the Constitutional Council to say that “the higher Judiciary requires a blend of academic and professional career Judges” and urged the Council to consider nominees suggested by the Chief Justice and the Attorney General. The Constitutional Council wasted no time in refusing approval in both cases.

One need not recount the unprecedented crisis resulting from the unconstitutional removal of Prime Minister Wickremesinghe, the appointment of Mahinda Rajapaksa in his place, and the dissolution of Parliament. When Rajapaksa was defeated in Parliament, resulting in the Speaker not recognising him anymore as Prime Minister, he did not budge mainly because he had the backing of the President. Then, 122 MPs challenged Rajapaksa and his “Ministers” in the Court of Appeal on the ground that the Cabinet of Ministers stood dissolved, and the Court of Appeal issued an interim order restraining them from functioning. Meanwhile, the Supreme Court declared the dissolution of Parliament unconstitutional. Yet, Sirisena would not appoint Wickremesinghe as Prime Minister. It was only after the Supreme Court refused to stay the interim order of the Court of Appeal that Rajapaksa “resigned”. Yet, Sirisena refused to appoint Wickremesinghe, in flagrant violation of the Constitution, instead offering Speaker Karu Jayasuriya and Sajith Premadasa the position. He finally relented and reinstated Wickremesinghe.

Sirisena was quoted as saying that if he had to go, he would go as Hanuman did, setting fire to Lanka. He almost did.

Competing powers at the apex of the State

The above shows that while 19A reduced the powers of the President, it also created two “competing centres of power at the apex of the State”, a phrase used by Dr. Colvin R. De Silva in the Constituent Assembly on 02 July 1971. Responding to the proposal made by J.R. Jayewardene that executive power be vested in a President directly elected by the people, Dr. De Silva warned against the danger of counterposing the Prime Minister chosen by the people who are sovereign against a President who is directly elected: “Let me put it directly and more strongly. You have the Prime Minister chosen by the people who are sovereign. Then, if you have a President, chosen also by the sovereign people directly through the exercise of a similar franchise, you have at the heart and apex of the State two powers counterposed to each other, each drawing its power from the same source, the sovereign people, but each drawing the power independent of the other.” No Constitution will be able to define adequately and satisfactorily the relationship between the two, he explained.

Apart from Sirisena’s personality traits and the breakdown of relations between Sirisena and Wickremesinghe, what contributed to the events described above was clearly what Dr. De Silva warned against, namely, the existence of two centres of power, both elected. Speaking in Parliament on 25 July 2019, the writer referred to Dr. De Silva’s warning and added that while what was happening was to be expected because of the competing powers of the President and the Prime Minister, the breakdown of relations of such magnitude was never envisaged.

(Anti-government media distorted the speech to say that the writer had said that it was never expected that 19A would be so bad, but that is another matter.)

To go back to 19A as it was is to go back also to two competing powers at the heart and apex of the State. That would be the case to some extent even if we are to go back to the Draft 19A Bill (which provided that the President would act on the advice of the Prime Minister) because the President would still be directly elected. If not shackled by Sirisena’s undertaking to the JHU that no amendment necessitating a referendum would be presented, 19A would have provided for Sirisena to continue as President and the complete abolition of the Executive Presidency at the end of his term in 2020.

Resolving the contradiction

As to the form of government, whether it should be parliamentary, presidential, or semi-presidential, renowned political scientist Arend Lijphart states that in countries with ethnic and other cleavages, the choice should be based on the relative potential for power-sharing in the executive. He prefers a parliamentary system, which is a collegial decision-making body, to the presidential one-person executive. Presidential elections are necessarily majoritarian in nature, and the system encourages the politics of personality and overshadows the politics of competing parties and their programs. He considers semi-presidential systems to be only a slight improvement, and such a system can make an even more powerful President as has happened in France. In a parliamentary form of government, the head of the state should not be elected by popular vote but preferably by Parliament. A popularly elected President, even with limited powers, may be tempted to be an active political participant, claiming to have a direct mandate which even the Prime Minister does not have, potentially transforming the system to a semi-presidential one.

Thus, going back to 19A is not sufficient. The inherent contradiction in 19A must be resolved in favour of Parliament, even if that would require a referendum to be held. A referendum is no doubt costly, but the political costs of retaining the Executive Presidency and that of going back to 19A without resolving its inherent contradictions are greater.



Features

The challenge of keeping value-based politics alive

Published

on

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.

Continue Reading

Features

Vesak celebrations … with Cuteefly

Published

on

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

Continue Reading

Features

Dark Spots …

Published

on

Yes, dark spots do crop up on the skin, especially with sun exposure and, of course, as the skin ages.

However, these tips should be of immense benefit to those who are faced with dark spots.

Lemon and Honey Glow Mask:

You will need 01 teaspoon lemon juice and 01 teaspoon honey.

Mix the lemon juice and honey well and then apply this mixture, only on the dark spots.

Leave for 10–15 minutes and then rinse with cool water.

Benefits:

Lemon helps brighten pigmentation.

Honey moisturises and heals skin.

Gives a natural glow.

* Aloe Vera Gel Treatment:

All you need is fresh aloe vera gel.

Apply the gel apply on dark spots, before going to bed.

Leave overnight and wash in the morning.

Benefits:

Reduces acne marks and pigmentation.

Soothes irritated skin.

Helps skin repair naturally.

Turmeric and Yoghurt Paste:

You will need 01 teaspoon yoghurt and a pinch of turmeric

Mix the yoghurt and turmeric into a smooth paste and apply on affected areas.

Leave for 15 minutes and then wash gently with lukewarm water.

Benefits:

Turmeric brightens skin naturally.

Yoghurt removes dead skin cells.

Helps fade dark spots gradually.

Use these packs 02-03 times a week as results are generally seen over time.

You can also try this out: Mix a ripe papaya into a smooth paste and apply to the face, or directly on to the dark spots. Leave for 15-20 minutes and then wash with lukewarm water.

Continue Reading

Trending