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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undertaken without seeking the opinion of the People, the question is whether powers Constitutionally assigned could be withdrawn from one organ and transferred to another without seeking the opinion of the People.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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Recruiting academics to state universities – beset by archaic selection processes?

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by Kaushalya Perera

Time has, by and large, stood still in the business of academic staff recruitment to state universities. Qualifications have proliferated and evolved to be more interdisciplinary, but our selection processes and evaluation criteria are unchanged since at least the late 1990s. But before I delve into the problems, I will describe the existing processes and schemes of recruitment. The discussion is limited to UGC-governed state universities (and does not include recruitment to medical and engineering sectors) though the problems may be relevant to other higher education institutions (HEIs).

How recruitment happens currently in SL state universities

Academic ranks in Sri Lankan state universities can be divided into three tiers (subdivisions are not discussed).

* Lecturer (Probationary)

recruited with a four-year undergraduate degree. A tiny step higher is the Lecturer (Unconfirmed), recruited with a postgraduate degree but no teaching experience.

* A Senior Lecturer can be recruited with certain postgraduate qualifications and some number of years of teaching and research.

* Above this is the professor (of four types), which can be left out of this discussion since only one of those (Chair Professor) is by application.

State universities cannot hire permanent academic staff as and when they wish. Prior to advertising a vacancy, approval to recruit is obtained through a mind-numbing and time-consuming process (months!) ending at the Department of Management Services. The call for applications must list all ranks up to Senior Lecturer. All eligible candidates for Probationary to Senior Lecturer are interviewed, e.g., if a Department wants someone with a doctoral degree, they must still advertise for and interview candidates for all ranks, not only candidates with a doctoral degree. In the evaluation criteria, the first degree is more important than the doctoral degree (more on this strange phenomenon later). All of this is only possible when universities are not under a ‘hiring freeze’, which governments declare regularly and generally lasts several years.

Problem type 1

Archaic processes and evaluation criteria

Twenty-five years ago, as a probationary lecturer with a first degree, I was a typical hire. We would be recruited, work some years and obtain postgraduate degrees (ideally using the privilege of paid study leave to attend a reputed university in the first world). State universities are primarily undergraduate teaching spaces, and when doctoral degrees were scarce, hiring probationary lecturers may have been a practical solution. The path to a higher degree was through the academic job. Now, due to availability of candidates with postgraduate qualifications and the problems of retaining academics who find foreign postgraduate opportunities, preference for candidates applying with a postgraduate qualification is growing. The evaluation scheme, however, prioritises the first degree over the candidate’s postgraduate education. Were I to apply to a Faculty of Education, despite a PhD on language teaching and research in education, I may not even be interviewed since my undergraduate degree is not in education. The ‘first degree first’ phenomenon shows that universities essentially ignore the intellectual development of a person beyond their early twenties. It also ignores the breadth of disciplines and their overlap with other fields.

This can be helped (not solved) by a simple fix, which can also reduce brain drain: give precedence to the doctoral degree in the required field, regardless of the candidate’s first degree, effected by a UGC circular. The suggestion is not fool-proof. It is a first step, and offered with the understanding that any selection process, however well the evaluation criteria are articulated, will be beset by multiple issues, including that of bias. Like other Sri Lankan institutions, universities, too, have tribal tendencies, surfacing in the form of a preference for one’s own alumni. Nevertheless, there are other problems that are, arguably, more pressing as I discuss next. In relation to the evaluation criteria, a problem is the narrow interpretation of any regulation, e.g., deciding the degree’s suitability based on the title rather than considering courses in the transcript. Despite rhetoric promoting internationalising and inter-disciplinarity, decision-making administrative and academic bodies have very literal expectations of candidates’ qualifications, e.g., a candidate with knowledge of digital literacy should show this through the title of the degree!

Problem type 2 – The mess of badly regulated higher education

A direct consequence of the contemporary expansion of higher education is a large number of applicants with myriad qualifications. The diversity of degree programmes cited makes the responsibility of selecting a suitable candidate for the job a challenging but very important one. After all, the job is for life – it is very difficult to fire a permanent employer in the state sector.

Widely varying undergraduate degree programmes.

At present, Sri Lankan undergraduates bring qualifications (at times more than one) from multiple types of higher education institutions: a degree from a UGC-affiliated state university, a state university external to the UGC, a state institution that is not a university, a foreign university, or a private HEI aka ‘private university’. It could be a degree received by attending on-site, in Sri Lanka or abroad. It could be from a private HEI’s affiliated foreign university or an external degree from a state university or an online only degree from a private HEI that is ‘UGC-approved’ or ‘Ministry of Education approved’, i.e., never studied in a university setting. Needless to say, the diversity (and their differences in quality) are dizzying. Unfortunately, under the evaluation scheme all degrees ‘recognised’ by the UGC are assigned the same marks. The same goes for the candidates’ merits or distinctions, first classes, etc., regardless of how difficult or easy the degree programme may be and even when capabilities, exposure, input, etc are obviously different.

Similar issues are faced when we consider postgraduate qualifications, though to a lesser degree. In my discipline(s), at least, a postgraduate degree obtained on-site from a first-world university is preferable to one from a local university (which usually have weekend or evening classes similar to part-time study) or online from a foreign university. Elitist this may be, but even the best local postgraduate degrees cannot provide the experience and intellectual growth gained by being in a university that gives you access to six million books and teaching and supervision by internationally-recognised scholars. Unfortunately, in the evaluation schemes for recruitment, the worst postgraduate qualification you know of will receive the same marks as one from NUS, Harvard or Leiden.

The problem is clear but what about a solution?

Recruitment to state universities needs to change to meet contemporary needs. We need evaluation criteria that allows us to get rid of the dross as well as a more sophisticated institutional understanding of using them. Recruitment is key if we want our institutions (and our country) to progress. I reiterate here the recommendations proposed in ‘Considerations for Higher Education Reform’ circulated previously by Kuppi Collective:

* Change bond regulations to be more just, in order to retain better qualified academics.

* Update the schemes of recruitment to reflect present-day realities of inter-disciplinary and multi-disciplinary training in order to recruit suitably qualified candidates.

* Ensure recruitment processes are made transparent by university administrations.

Kaushalya Perera is a senior lecturer at the University of Colombo.

(Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.)

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Talento … oozing with talent

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Talento: Gained recognition as a leading wedding and dance band

This week, too, the spotlight is on an outfit that has gained popularity, mainly through social media.

Last week we had MISTER Band in our scene, and on 10th February, Yellow Beatz – both social media favourites.

Talento is a seven-piece band that plays all types of music, from the ‘60s to the modern tracks of today.

The band has reached many heights, since its inception in 2012, and has gained recognition as a leading wedding and dance band in the scene here.

The members that makeup the outfit have a solid musical background, which comes through years of hard work and dedication

Their portfolio of music contains a mix of both western and eastern songs and are carefully selected, they say, to match the requirements of the intended audience, occasion, or event.

Although the baila is a specialty, which is inherent to this group, that originates from Moratuwa, their repertoire is made up of a vast collection of love, classic, oldies and modern-day hits.

The musicians, who make up Talento, are:

Prabuddha Geetharuchi:

Geilee Fonseka: Dynamic and charismatic vocalist

Prabuddha Geetharuchi: The main man behind the band Talento

(Vocalist/ Frontman). He is an avid music enthusiast and was mentored by a lot of famous musicians, and trainers, since he was a child. Growing up with them influenced him to take on western songs, as well as other music styles. A Peterite, he is the main man behind the band Talento and is a versatile singer/entertainer who never fails to get the crowd going.

Geilee Fonseka (Vocals):

A dynamic and charismatic vocalist whose vibrant stage presence, and powerful voice, bring a fresh spark to every performance. Young, energetic, and musically refined, she is an artiste who effortlessly blends passion with precision – captivating audiences from the very first note. Blessed with an immense vocal range, Geilee is a truly versatile singer, confidently delivering Western and Eastern music across multiple languages and genres.

Chandana Perera (Drummer):

His expertise and exceptional skills have earned him recognition as one of the finest acoustic drummers in Sri Lanka. With over 40 tours under his belt, Chandana has demonstrated his dedication and passion for music, embodying the essential role of a drummer as the heartbeat of any band.

Harsha Soysa:

(Bassist/Vocalist). He a chorister of the western choir of St. Sebastian’s College, Moratuwa, who began his musical education under famous voice trainers, as well as bass guitar trainers in Sri Lanka. He has also performed at events overseas. He acts as the second singer of the band

Udara Jayakody:

(Keyboardist). He is also a qualified pianist, adding technical flavour to Talento’s music. His singing and harmonising skills are an extra asset to the band. From his childhood he has been a part of a number of orchestras as a pianist. He has also previously performed with several famous western bands.

Aruna Madushanka:

(Saxophonist). His proficiciency in playing various instruments, including the saxophone, soprano saxophone, and western flute, showcases his versatility as a musician, and his musical repertoire is further enhanced by his remarkable singing ability.

Prashan Pramuditha:

(Lead guitar). He has the ability to play different styles, both oriental and western music, and he also creates unique tones and patterns with the guitar..

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Special milestone for JJ Twins

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Twin brothers Julian and Jason Prins

The JJ Twins, the Sri Lankan musical duo, performing in the Maldives, and known for blending R&B, Hip Hop, and Sri Lankan rhythms, thereby creating a unique sound, have come out with a brand-new single ‘Me Mawathe.’

In fact, it’s a very special milestone for the twin brothers, Julian and Jason Prins, as ‘Me Mawathe’ is their first ever Sinhala song!

‘Me Mawathe’ showcases a fresh new sound, while staying true to the signature harmony and emotion that their fans love.

This heartfelt track captures the beauty of love, journey, and connection, brought to life through powerful vocals and captivating melodies.

It marks an exciting new chapter for the JJ Twins as they expand their musical journey and connect with audiences in a whole new way.

Their recent album, ‘CONCLUDED,’ explores themes of love, heartbreak, and healing, and include hits like ‘Can’t Get You Off My Mind’ and ‘You Left Me Here to Die’ which showcase their emotional intensity.

Readers could stay connected and follow JJ Twins on social media for exclusive updates, behind-the-scenes moments, and upcoming releases:

Instagram: http://instagram.com/jjtwinsofficial

TikTok: http://tiktok.com/@jjtwinsmusic

Facebook: http://facebook.com/jjtwinssingers

YouTube: http://youtube.com/jjtwins

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