Features
The Judicial Power of the People and a Presidential Interpretation of our Constitution?
Friday Forum media release:
‘Since 1972 this country has known no monarch and the President has not inherited that mantle.All his powers are limited by the provisions of the constitution.’Dissolution of Parliament Case (2018)
We as citizens of the country have witnessed in the past weeks some grave political developments that impact the governance of our country.On 31 January the President’s Media Division (PMD) released a public document. This document indicates that it is meant to be the Secretariat’s interpretation of the President’s powers under our constitution.
Just before the PMD release, the Online Safety Bill was signed into law by the Speaker. This Bill was brought to Parliament after the Determination of the Supreme Court which required 31 amendments. The OSA was very controversial legislation, criticized by civil society, local experts and international organizations and Tech companies. They expressed grave concerns on its damaging impact on the democratic and fundamental rights of the people.
The Speaker ignored calls by the Opposition for time to debate the Bill in parliament and ensure that it complied with the amendments that the Court had determined were essential for this law to be legal. The Opposition had pointed out that compliance was essential to ensure the OSA was a valid law according to our constitution.
The Speaker’s actions have resulted in the OSA Act becoming the law of the country, with no assurance that it conforms to the Supreme Court Determination and the constitution. This is unprecedented in parliamentary procedures. We now have a law whose legality is doubtful.
Both these developments indicate a growing trend towards authoritarian governance, disregarding the constitution and the democratic rights of the people. The Friday Forum draws attention to some matters that clarify that the misleading media release of the Presidential Secretariat, published with the President’s approval, must be challenged and rejected:
· Under our constitution only the Supreme Court can interpret the constitution. The President and the Presidential Secretariat have no role and authority in this regard.
· For 76 years the courts, and their independence from the Executive and parliament through a constitutional system of checks and balances, has been a foundational value in governance in Sri Lanka, and is recognized in the1978 constitution. That concept has not been eliminated by 21 later amendments to this constitution. It is reflected in post- independence jurisprudence of the Superior Courts of the country, especially the apex Supreme Court.
· The document indicates that the President is empowered to exercise all powers under the constitution at the President’s sole discretion. No public institution, including the courts and the Constitutional Council on high post appointments, have a right to place any obstacles to the exercise of Presidential powers. If the President is deemed to have acted unconstitutionally, by exceeding his powers, the constitution “provides a procedure to address this”.
The President has taken an oath of office as President, and also as a lawyer, to be guided by the constitution of the country in all his actions. This PMD document suggests that he can disregard the constitution if he thinks that this is best for the country. The fact that he is challenging the Opposition in parliament to respond perhaps with an impeachment motion is indicative of his confidence in his parliamentary majority that will, as in the past, raise their hands in support of him with mindless loyalty whatever are the consequences for the country.
· The Supreme Court has indicated in many judgments in the last decades, that public office must be held in public trust and official powers must be exercised within the framework of the law and the constitution. This has been reiterated in several recent cases, including the case on the economic crisis and the fundamental rights of the people. President Wickremesinghe is aware that in 2018, the Supreme Court, in a seven-judge bench decision, decided that President Sirisena had acted arbitrarily and
unconstitutionally by dissolving Parliament. Consequently, he was restored to the office of Prime Minister. The President cannot seek unquestioning loyalty to himself from all public officials and institutions, in the exercise of what he personally considers are his powers and responsibilities.
· The Constitutional Council (CC) is not an executive body. It has been empowered by the constitution to scrutinize Presidential nominees, and to approve them to high posts. This has been reiterated in the 21st Amendment that President Wickremesinghe himself initiated. This body has a constitutional right and an obligation to fulfill its mandate of either nominating or approving the most suitable candidates for high office. The Constitutional Council rejecting a nominee cannot be considered an ‘obstacle’ to the exercise of presidential power.
The PMD document challenging the Opposition to impeach the President if he abuses power, demonstrates the manner in which, in the post war years, this office has been transformed into something even worse than the powerful executive presidency originally created by the 1978 constitution. President Wickremesinghe is clearly seeking to carry this office to an even higher level of an authoritarian dictatorship, with the justification of having to seek solutions to national bankruptcy.
The time has come for us as citizens to demand that the abolition of the executive Presidency is realized as a matter of urgency in 2024. It is a toxic model of governance that has damaged public institutions. All the major political parties in this country made this promise and never fulfille it. All Presidents who came to office, except President Chandrika Kumaranatunga, failed the nation in this regard. The draft constitution of 2000 which President Kumaratunga’s government presented, providing for abolition of the Executive Presidency could not be adopted by parliament because of the conduct of the Leader of the Opposition, who was at that time, current President Ranil Wickremesinghe.
He and his UNP rejected this constitution and tore the document during the debate in parliament. The disagreement was not in regard to the text of this constitution, but a provision on who would head the new government. It is classic irony that 24 years later, Mr Wickremesinghe is trying to strengthen the Executive Presidency and transform it into a political dictatorship beyond the limits of the constitution. His rationale appears to be his personal vision or “Idiri Dekma” or what he thinks is best for the country. Is this a new articulation of another Executive President’s “Vistas of Prosperity”?
The events of recent weeks in 2024 and our national economic and governance crisis must convince us as citizens to call for an affirmation by all parties and their leaders that they will abolish the executive presidency, and go back to a system of an elected Prime Minister responsible to parliament and the people. Let us call for a referendum on this matter, that is combined with the first election held in 2024.
Prof. Savitri Goonesekere, Prof. Deepika Udagama, Prof. Camena Guneratne, Prof Gananath Obeyesekere, Prof. Ranjini Obeyesekere, Dr. Geedreck Usvatte-Aratchi, Prof Gameela Samarasinghe, Mr. Chandra Jayaratne, Dr. A.C. Visvalingam, Bishop Duleep de Chickera, Mr. Daneshan CasieChetty, Dr. Ahilan Kadirgamar, Mr. Javid Yusuf, Mr. Priyantha Gamage, Rev. Dr. Jayasiri Peiris, Mr. S.C.C. Elankovan, Pulasthi Hewamanna and Shanthi Dias.
(The Friday Forum is an informal group of concerned citizens pledged to uphold norms of democracy, good governance, the rule of law, human rights, media freedom and tolerance in our pluralist society.)
Features
Trump’s tariffs, AKD’s gazette and Sri Lanka’s diplomatic slumber
“We are rather respectable in Colombo. We go to bed fairly early, and we remain there till morning. “
According to Sri Lanka’s diplomatic folklore, the late S.W. R. D. Bandaranaike uttered these words while explaining the reasons for Sri Lanka’s abstention on the UN resolution condemning the Soviet invasion of Hungary. Apparently, SWRD’s foreign ministry officials were asleep at home when the diplomatic cable seeking instructions was received from New York. In those days, there were no cell phones, Internet, or even fax or telex machines. The diplomatic cables were sent through post offices. Decoding them was a slow and time-consuming process. Thus, the government could not provide appropriate instructions to our mission in New York in time, and the Sri Lankan delegation abstained on that sensitive UN vote.
Sri Lanka’s Absence from Section 301 Consultations
But then, how does one explain Sri Lanka’s absence from the crucial bilateral consultation held in Washington by the Office of the United States Trade Representative (USTR) during March-April on “Forced Labour” under the Section 301 of the US Trade Act of 1974? Didn’t our foreign and trade ministries send appropriate instructions to Washington in time? Even if the instructions from the foreign ministry were transmitted to our embassy in Washington by pigeon carriers, there was enough time for Sri Lanka to participate in those meetings.
In March, the USTR initiated these 301 investigations on 60 trading partners, and invited all of them for confidential consultations. Out of the 60, 46 participated in these consultations. Sri Lanka was not one of them. Other countries that didn’t participate in these consultations included China, Russia, and Venezuela! In addition to that, the Section 301 Committee conducted a public hearing with interested parties on April 28 and 29. Washington-based diplomats, representatives from few trade ministries as well as representatives from many foreign trade associations and chambers participated in these hearings. Sri Lanka was once again conspicuously absent.
As a result, when the USTR published the proposed forced labour tariffs on June 2nd, Sri Lanka ended up with a 12.5% duty. Pakistani and Indonesian diplomats participated in these consultations and took appropriate follow-up measures, and managed to enter the 10% duty category. As even a threat of a modest tariff hike could disrupt supply chains and reduce competitiveness, particularly in an industry such as garments, I discussed this issue on 15 June and underscored the importance of Sri Lanka’s participation at the next hearing, which was scheduled to be held from July 7th .
Awakening from Diplomatic Slumber and AKD’s Gazette
Fortunately, Sri Lanka finally awoke from weeks of diplomatic slumber, and Ambassador Mahinda Samarasinghe participated in the public hearing on 9 July, and promised, “…. · We have agreed to the text in our negotiations with the USTR on forced labour, …. The gazette as we speak is being printed and I’m getting the gazette tomorrow morning, and the gazette will be shared with USTR as I get it“.
As promised, President Anura Kumara Dissanayake issued a gazette on 10 July banning the imports of goods produced by forced labour. These new regulations are very similar to what Pakistan and Indonesia enacted in April, after their consultations with USTR in March. Why couldn’t we do it in April? Why did we wait till the very last minute?
Challenges ahead
“War is too important to be left to generals alone,” is a famous saying attributed to former French Premier Georges Clemenceau. Similarly, monitoring our main markets is too important to be left to diplomats alone. The United States is the largest single-country market for Sri Lanka. Therefore, Sri Lankan trade chambers and associations should become more proactive in these markets and participate in these events. For example, the chairman of the Pakistani apparel exporters association participated in the April hearings. Similarly, representatives from the Indian Agricultural and Processed Food Products Export Development Authority, the Federation of Indian Chambers of Commerce and Industry, the Confederation of Indian Industry, and Reliance Industries also participated in July hearings. At an event where each speaker is given only five minutes (strictly enforced), having a number of speakers from a country is an advantage. The presence of industry representatives in these kinds of events also help them understand the market dynamics and the future challenges. This is important, particularly because there will be many more challenges with Trump’s tariffs.
With the gazette issued on 10 July, Sri Lanka has imposed a prohibition on the importation of goods produced with forced labour. Now, the challenge will be to effectively enforce the prohibition. And what are the goods produced with forced labour? The USTR list only focuses on aluminum, cotton, electronics, lithium-ion batteries, rice, and tobacco. However, according to the U.S. Department of Labour, the list is much longer. Hence, this list may change continuously during the next two years and tariffs may fluctuate once again.
So, this is definitely not the time to slumber.
(The writer, a retired public servant, can be reached at senadhiragomi@gmail.com)
by Gomi Senadhira ✍️
Features
Tales of Mystery and Suspense 10 Casino for Sale
After the overwhelming grotesquerie of J K Rowling’s latest Cormoran Strike novel (written, I should have noted, as the others were, under the pseudonym Robert Galbraith), I thought I should return to the world of fun, and also a much shorter description since this thriller moves quickly without the layers of detail that Rowling engages in.
I then move to the second comic thriller by Caryl Brahms and S J Simon. This, their second story to feature Vladimir Stroganoff and Adam Quill, was Casino for Sale, as lunatic a romp as the first, though without the emphasis on the ballet that characterized A Bullet in the Ballet.
This one begins with the impresario Stroganoff buying a casino cheap from Baron Sam de Rabinovich, only to find that it was a rundown place, not the grand casino of La Bazouche, a resort on the Frenc+h Riviera, as he had initially thought. The grand one belonged to Lord Buttonhooke, and Stroganoff could not compete, until he thought of bringing the Ballet Stroganoff to the casino – which of course leads to Buttonhooke deciding to have ballet performances in his Casino too.
Stroganoff invites Quill to visit him, which Quill decides to do since he has left Scotland Yard, having come into a legacy. No one believes this, and he has to face questions as to what he did to have been sacked, with sympathy for having been found out.
The day he arrives in La Bazouche there is a murder, of a vitriolic critic called Citrolo, in Stroganoff’s office. He had been going to write a damning review of the opening night of the ballet and Stroganoff, when he realizes Citrolo cannot be swayed, drugs him and dictates the review himself to the papers. He leaves Citrolo sleeping and finds him shot the next morning, whereupon he decides to muddy the waters and leave a suicide note and lots of other murder weapons. So much overkill, as it were, of course ensures that he is arrested.
But the excitable French detective who makes the arrest follows up his suggestion that Buttonhooke was also involved, and so the two casino owners find themselves in cells next door to each other, with the detective Gustave quite happy to provide creature comforts for a fee.
Quill decides he must investigate, and finds Gustave most cooperative, since he has a laid back attitude to work. So it is Quill that finds a notebook which makes it clear Citrolo is an accomplished blackmailer, and that there are lots of possible murderers, including Stroganoff’s croupier, who was crooked, Rabinovich, who was now working for Buttonhooke, a confidence trickster called Kurt Kukumber, whose prospectus for a dud gold mine was found in the office and Prince Alexis Artishok who was engaged in a deal to buy diamonds from the ballerina Dyra Dyrakova.
Stroganoff had been trying to get Dyrakova to dance for him, but having done so previously she had refused. But then to Stroganoff’s chagrin she agreed to dance for Buttonhooke. The clearly crooked Artishok had told Buttonhooke’s mistress Sadie Souse, who was not very bright, that Dyrakova possessed diamonds she was willing to sell cheap, and Sadie was determined to have them.
Quill meanwhile finds out that there was a secret passage to Stroganoff’s office, the obvious solution to what had begun as a locked room mystery, and that this was known by almost everyone apart from Stroganoff himself. And then Rabinovich is murdered, just after Gustave had released his two original suspects, leading him to blame Quill for having insisted on that and thus allowing them to kill again.
Soon afterwards Dyrakova arrives, and the town is full of posters announcing that she will appear in the casinos, elaborate posters for either one, since Stroganoff is determined that she will dance for him, and if she does not come willingly, he has devised a scheme to make her do so unwillingly. So, though Buttonhooke has her taken off to his yacht immediately she arrives at the station, Quill along with Arenskaya gets her into a launch and to Stroganoff’s casino, where she performs to tumultuous applause, not knowing for whom she is dancing.
When Quill asked her about the diamonds, she said she had sold them long ago, and that gave Quill the solution to the mystery. Rabinovich had known about this, and Artishok had killed him to prevent Sadie learning it from him, he had killed Citrolo who had recognized him for an accomplished card sharper, not a Russian prince at all. But before he is arrested, he gets away in a boat, and the police launch that pursues him is on the point of catching him up when it runs out of petrol.
Again, lots of excitement, and entertaining references – Gustave grows marrows – and if not quite as brilliant as its predecessor, Casino was certainly a delightful read.
Features
The challenge of being positive about SAARC
It was a few years back that a former President of Sri Lanka took it on himself to pronounce SAARC ‘dead’. Since then there have been other sections of Sri Lankan opinion that have joined the critics of SAARC and taken the solemn stance that SAARC has indeed died what may be called a natural death.
Their fatalism is understandable. SAARC has failed to meet at heads of government or state level for the past several years to take the SAARC process notably forward. Regional cooperation has more or less been only an appealing idea. No substantive concrete projects have taken off to make the idea a hard reality. ‘Inner paralysis’ seems to be SAARC’s lot. Hence the fatalism in these circles.
However, being one of the worst cash-strapped regions of the world and a teemingly populated one with people virtually left to their devices, what choices do the ‘SAARC Eight’ have other than to try their best to band together and continue with their cooperation efforts, however small they may be?
There is no escaping the mounting debt trap for many of these countries and bankrupt Sri Lanka is a glaring example, but ‘throwing in the towel’ and abandoning themselves entirely to the diktats of the strongest economies and their agencies will prove a ‘living death’ for many countries in the SAARC fold.
The gains may be meagre but giving-up on SAARC cooperation in full would prove self-defeating for the organization and South Asia. Right now, the collective intention ought to be to salvage what the region could from the tenuous cooperative efforts. Moreover, such initiatives could go some distance to generate a degree of goodwill among the Eight and help in sustaining a dialogue process.
Given this backdrop it proved ‘a stich in time’ for the Regional Centre for Strategic Studies (RCSS), Colombo, to recently host the SAARC Secretary General Ambassador Md. Golam Sarwar to a round table discussion on the unifying potential of SAARC and its future possibilities, besides other related issue areas.
Held on June 24th and moderated by RCSS Executive Director and former ambassador Ravinatha Aryasinha, the forum brought together a vibrant, wide ranging audience comprising academicians, diplomats, senior public servants, civil society activists and many others. Following the presentation by Ambassador Golam Sarwar titled, ‘Reigniting SAARC: Achievements, Challenges and the Way Ahead’, a lively Q&A followed.
The above forum could be described as an act of lighting the proverbial ‘candle’ rather than ‘cursing the darkness.’ It surely is a ‘darkness’ that could be seen as daunting considering that the region’s pivotal powers, India and Pakistan, are failing to act in a spirit of accord but are engaged in bitter finger-pointing on a number of questions of vital importance to SAARC.
On the other hand, what is the rest of the region doing to bring the above sides together? It is disappointing that to date the rest of SAARC has failed to launch a major diplomatic drive to bring peace between the feuding regional heavyweights. It needs to act without delay and establish its earnestness and this effort would need to prove SAARC’s staying power in the unfolding months and even years.
In assessing SAARC’s seeming failure local opinion in particular has failed to factor in what could be described as weak leadership. Since Sheikh Mujibur Rahman of Bangladesh, the founding father of SAARC, the region has failed to produce a visionary leader who could advance the SAARC cause with charisma and drive.
Among other reasons, weak leadership accounts considerably for the faltering and stuttering status, as it were, of SAARC. Badly needed are leaders who could go the extra mile, think less of narrow national interests and work diligently towards the collective well being of the region but SAARC’s millions of ordinary people have been made to wait in vain for leaders of such stature. Instead, they have been burdened with politicians who seem to be relishing the apparently moribund state of SAARC.
Looking back, it could be said that it was the dynamic leadership factor that led to the launching of the Non-Aligned Movement and for its sustenance for a few decades. True, it could be seen in some quarters that NAM is no more, but as in the case of SAARC, the former too has been unfortunate to be burdened over the years with politicians who lack the vision and drive to unflaggingly advance the fortunes of the South. NAM and SAARC lack the dynamism and vision of leaders of the stature of Jawaharlal Nehru, for example, to give them the required guidance and intellectual depth.
The reasons are complex for there not being among us currently political leaders with the vision and the steadfast commitment to advance the legitimate interests of the South. However, it could be stated with conviction that the majority of Southern leaders have too easily caved in to the demands of the global North and its financial agencies.
These leaders have failed to see, for instance, that the largely market economy oriented Northern governments would not view with favour a centrist economic model that attaches priority to the interests of the dis-empowered publics of the South. This realization ought to have dawned on the current government in Sri Lanka, for instance, some while ago but it has no choice but to abide by IMF dictates since economic survival at present is unthinkable without the latter’s succour.
Accordingly for SAARC this should be the time for some soul-searching. Priority needs to be attached to ending the feuding between India and Pakistan since at present the material fortunes of the region hinge largely on these regional giants giving peaceful relations among them a try. This is no easy challenge to meet but some daring, visionary diplomacy needs to take hold among the rest of SAARC.
There is some sense in SAARC bringing the peoples of the region together through programs that address their best collective interests. A meeting of minds among SAARC nations could enable SAARC and its agencies to build a region-wide people’s movement for progressive political and economic change that could in turn lead to the region’s political leaders sensitizing themselves more to the neglected needs of their publics.
However, the time is ‘now’ for the initiation of these progressive changes and the voice of SAARC well wishers would need to drown out those of their critics.
-
Features6 days agoPrison riots and politics: NPP’s biggest challenge and Sri Lanka’s biggest opportunity
-
Features3 days agoDirty Money
-
Editorial6 days agoMuch ado about crime: Fish or cut bait
-
Features6 days agoMore on Saudi Arabia: ARAMCO and beyond
-
Sports6 days agoThe banker who rescued Sri Lankan cricket
-
News1 day agoMoney laundering case against Yoshitha, fixed for pre-trial conference
-
Midweek Review3 days agoThe sordid tale of theft and tragedy at Finance Ministry
-
Latest News4 days agoOil prices hit 1-month high as US-Iran attacks dim Strait of Hormuz outlook

