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Constitutions and amendments

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By Neville Ladduwahetty

The 20th Amendment (20A) to the Constitution has become a topic of spirited debate and discussion. Much of it is generated by misunderstanding the true intent of 20A. It should not be a durable amendment to the Constitution. Instead, it should be temporary, until a comprehensive new Constitution is developed and presented to the nation.

Until then, 20A should serve as a stop gap for the Executive President to address the unprecedented challenges the country has to face following the COVID-19 pandemic. With this in mind, the intent of 20A should be to either repeal those provisions that had been introduced by the 19th Amendment to seriously dilute executive powers as admitted by the framers of 19A or to repeal 19A altogether and restore the executive powers the President had under the 1978 Constitution. It is only by removing the constraints that exist under 19A that the President would be in a position to address the daunting challenges that lie ahead. Without strengthening the hand of the Executive, the formidable task of social and economic recovery that the country is compelled to face because of the global pandemic would be a near impossibility.

 

THE NEED for 20A

The two most formidable issues that should engage the full attention of the government and the nation are:

(1) The need to continue with the very effective measures adopted to contain COVID-19 in order to prevent the possibility of a resurgance.

(2) The absolute urgency to revive the seriously depressed economy, brought about nationally and globally by the pandemic.

As far as the first issue is concerned, the government has demonstrated very effectively that it has the capabilities and organizing abilities to implement procedures and practices to maintain the health of the nation to such a degree that the President and the Sri Lankan nation have received international acclaim. An equally encouraging aspect is the support extended by the public to the call of the government to practice the health safeguards recommended by the government. What the government and the nation have collectively achieved is a shining example to the world for which we as a nation could be proud of.

The elephant in the room is how to revive the depressed economy. While the measures that need to be adopted are bound to test the skills and ingenuities of the entire nation, an equally important factor that would have a direct bearing is the freedom for the government, in particular the President and the executive branch, to act without being constrained by the fetters introduced by 19A.

There is no denying the fact that 19A was introduced with the deliberate intent of diluting executive powers of the President. In fact, Dr. Jayampathy Wickramaratne P.C., (Dr. JW) referring to 19A, has admitted that the initial attempt was “to completely abolish the Presidential system of government”. This attempt failed because the Supreme Court ruled that the intended attempt would require a referendum. The end result was the compromised version of 19A. According to Dr. JW, “The experience under 19A clearly showed the need to completely abolish the Presidential form of government and move towards a Parliamentary form…” (The Island, September 8, 2020).

The approach should not be to analyze which Article should be amended and to what degree, since such an exercise would not only be time consuming but also would add to the confusion that already exists in 19A. Instead, the approach should be to undo the entirety of 19A, and for the executive power of the President that had existed under the 1978 Constitution to be restored, for the simple reason that tough measures are needed to overcome the economic black hole Sri Lanka is in, the likes of which the nation as a whole has never seen.

The argument that such an approach would restore what is often described as draconian executive power amounting to a Presidential dictatorship that had existed under the 1978 Constitution, is unfounded if one realizes the full impact of the economic catastrophe the nation is currently facing. The situation is so dire that the bulk of the nation is more concerned with the basics of existence and survival rather than about niceties of Democracy and Good Governance that only the fortunate few could afford to be concerned about.

 

THE NEED for a NEW CONSTITUTION

Having addressed the short term issues, the next is the long term issue of a new Constitution. The genesis for 19A and 20A is the 1978 Constitution. Therefore, any anomalies and contradictions that exist in amendments invariably are a result of anomalies and contradictions in the 1978 Constitution. Describing the system of government under the 1978 Constitution, Dr. JW quotes Dr. Colvin R. De Silva as having described the 1978 Constitution “as a constitutional presidential dictatorship dressed in the raiment of a parliamentary democracy’ (Ibid). The comment is justified because the 1978 Constitution has features of Presidential and Parliamentary systems, notwithstanding that each represents one of the two ideologically completely different systems of government by which practically all democracies are governed. If such contrasting systems are incorporated in a single constitution confusion is inevitable, as evident from the 1978 Constitution and its related amendments. Therefore, the framers of a new constitution should endeavour to base it on either one or the other, a Presidential or a Parliamentary system, but certainly not a mix of both.

 

PARLIAMENTARY and PRESIDENTIAL

FORMS of GOVERNMENT

Under a Parliamentary system, Parliament is supreme and as described in the 1972 Constitution is the “supreme instrument of State Power”. This means that Parliament is responsible for Legislative and Executive functions. A few members of Parliament are selected by the Prime Minister to form the Cabinet of Ministers to exercise the executive functions of the government. Consequently, the Cabinet of Ministers is responsible and answerable to Parliament.

On the other hand, under a Presidential system, the cardinal principle is the separation of Legislative and Executive power. This separation is underscored by the fact that each branch is separately elected by the people and responsible for the exercise of separate powers, namely Legislative and Executive. This separation is clearly outlined in Articles 4 (a) and 4 (b) respectively, of the 1978 Constitution.

Article 4 (a) states: “the legislative power of the People shall be exercised by parliament…”.

Article 4 (b) states: “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President…”.

Commenting on the executive power of the people, the Supreme Court in S.D. No. 04/2015 stated: “It is in this background that the Court in the Nineteenth Amendment Determination came to a conclusion that the transfer, relinquishment or removal of the power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of the sovereignty of the people, the ultimate act or decision of the 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 to others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President”.

On the other hand, Article 43 (1) states: “There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic which shall be collectively responsible and answerable to Parliament”.

Commenting on Article 43 (1) the Supreme Court in the same case, S.D. No. 04/2015 stated: “This important Article underscores that the Cabinet collectively is charged with the exercise of Executive power, which is expressed as the direction and control of the Government of the Republic and the collective responsibility of Cabinet of which the President is the Head. It establishes conclusively that the President is not the sole repository of Executive power under the Constitution. It is the Cabinet of Ministers collectively, and not the President alone, which is charged with the direction and control of the Government.

 

This Cabinet is answerable to Parliament. Therefore, the Constitution itself recognizes that Executive power is exercised by the President and by the Cabinet of Ministers, and that the President shall be responsible to Parliament and the Cabinet of Ministers, collectively responsible and answerable to Parliament with regard to the exercise of such powers…”.

It is evident from the opinions cited above that the powers of the President depend on whether he acts under provisions of Article 4 (b) or Article 43 (1). For instance, under provisions of 4 (b) the “President as the Head of the Executive is sovereign in the executive field”. However, if the President acts under provisions of Article 43 (1) the Court stated that “the Constitution itself recognizes that Executive power is exercised by the President and by the Cabinet of Ministers”. The potential for such contrasting interpretations that exist in the 1978 Constitution have been blindly repeated in 19A without regard for their relevance or irrelevance.

Another serious contradiction often overlooked is that a President elected by the People should be recognized as being co-equal with Parliament under provisions of separation of power. Therefore, the President cannot be responsible to another organ of government– the Parliament. Furthermore, if the Cabinet of Ministers derive their authority from the President as interpreted by the Supreme Court, the Cabinet cannot be responsible and answerable to Parliament either. Under the circumstances, Article 33A that calls for the President to be responsible to Parliament “for the due exercise performance and discharge of his powers, duties and functions” is a violation of the principle of separation of power.

The few examples cited above amply demonstrate that while the framework of the 1978 Constitution is essentially Presidential, it has sufficient elements of a Parliamentary Democracy to warrant the Judiciary from giving contrasting opinions depending on which Article it interprets. This ambiguity requires Sri Lanka to adopt either a Presidential or a Parliamentary system, but not a mix of both systems. Despite the fact that such contradictions have been brought to the attention of the public, confusion has reigned uninterrupted. Therefore, the need is for Parliament to vote on which system of government is best suited to govern Sri Lanka. Furthermore, when formulating a new constitution, it is also recommended that a fresh approach be incorporated to devolve power to the smallest practical workable unit in order to strengthen operations in the periphery.

 

CONCLUSION

According to media reports the intention of the government is to introduce the 20th Amendment. Indications are that each Article would be reviewed and amended where necessary. Such an exercise is bound to repeat the contradictions in 19A because the framers mechanically copied provisions from the 1978 Constitution without understanding what separation of power is all about in a Presidential system. Therefore, it is best to repeal 19A completely, and go back to the powers exercised by the President under the 1978 Constitution as a stop gap measure until a new constitution is formulated. Such an interim measure is vital in order to prevent a resurgence of COVID-19 and to equip the executive with necessary powers to revive the depressed economy.

Critics to such an approach may consider it to be the death knell to Parliamentary democracy. What such critics forget is that the country is in such dire straits economically, that drastic measures need to be introduced if the country is to get back to some degree of normalcy. Proof of the merits of such an approach is evident from the uncompromising measures successfully adopted by the government to contain COVID-19; a fact acknowledged internationally. The reversal to the past is intended to be only until such time that a new constitution is tabled and adopted by Parliament and the People at a referendum.

In summary, the essence of the recommendation is for the 20A to define a clear two-step approach. Step One is to repeal all of 19A and strengthen the hand of the President and the executive with necessary powers to address all issues relating to COVID-19, and to also adopt all necessary measures to revive the economy. Step Two is for Parliament to vote and give clear direction as to whether the new constitution should be based on a Presidential or Parliamentary system to address all issues relating to good governance in all respects. Adopting such a clear cut approach without ambiguities would enable Sri Lanka to be free of the current fog of confusion, and embark on a fresh Chapter in her history.



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Misinterpreting President Dissanayake on National Reconciliation

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President Dissanayake

President Anura Kumara Dissanayake has been investing his political capital in going to the public to explain some of the most politically sensitive and controversial issues. At a time when easier political choices are available, the president is choosing the harder path of confronting ethnic suspicion and communal fears. There are three issues in particular on which the president’s words have generated strong reactions. These are first with regard to Buddhist pilgrims going to the north of the country with nationalist motivations. Second is the controversy relating to the expansion of the Tissa Raja Maha Viharaya, a recently constructed Buddhist temple in Kankesanturai which has become a flashpoint between local Tamil residents and Sinhala nationalist groups. Third is the decision not to give the war victory a central place in the Independence Day celebrations.

Even in the opposition, when his party held only three seats in parliament, Anura Kumara Dissanayake took his role as a public educator seriously. He used to deliver lengthy, well researched and easily digestible speeches in parliament. He continues this practice as president. It can be seen that his statements are primarily meant to elevate the thinking of the people and not to win votes the easy way. The easy way to win votes whether in Sri Lanka or elsewhere in the world is to rouse nationalist and racist sentiments and ride that wave. Sri Lanka’s post independence political history shows that narrow ethnic mobilisation has often produced short term electoral gains but long term national damage.

Sections of the opposition and segments of the general public have been critical of the president for taking these positions. They have claimed that the president is taking these positions in order to obtain more Tamil votes or to appease minority communities. The same may be said in reverse of those others who take contrary positions that they seek the Sinhala votes. These political actors who thrive on nationalist mobilisation have attempted to portray the president’s statements as an abandonment of the majority community. The president’s actions need to be understood within the larger framework of national reconciliation and long term national stability.

Reconciler’s Duty

When the president referred to Buddhist pilgrims from the south going to the north, he was not speaking about pilgrims visiting long established Buddhist heritage sites such as Nagadeepa or Kandarodai. His remarks were directed at a specific and highly contentious development, the recently built Buddhist temple in Kankesanturai and those built elsewhere in the recent past in the north and east. The temple in Kankesanturai did not emerge from the religious needs of a local Buddhist community as there is none in that area. It has been constructed on land that was formerly owned and used by Tamil civilians and which came under military occupation as a high security zone. What has made the issue of the temple particularly controversial is that it was established with the support of the security forces.

The controversy has deepened because the temple authorities have sought to expand the site from approximately one acre to nearly fourteen acres on the basis that there was a historic Buddhist temple in that area up to the colonial period. However, the Tamil residents of the area fear that expansion would further displace surrounding residents and consolidate a permanent Buddhist religious presence in the present period in an area where the local population is overwhelmingly Hindu. For many Tamils in Kankesanturai, the issue is not Buddhism as a religion but the use of religion as a vehicle for territorial assertion and demographic changes in a region that bore the brunt of the war. Likewise, there are other parts of the north and east where other temples or places of worship have been established by the military personnel in their camps during their war-time occupation and questions arise regarding the future when these camps are finally closed.

There are those who have actively organised large scale pilgrimages from the south to make the Tissa temple another important religious site. These pilgrimages are framed publicly as acts of devotion but are widely perceived locally as demonstrations of dominance. Each such visit heightens tension, provokes protest by Tamil residents, and risks confrontation. For communities that experienced mass displacement, military occupation and land loss, the symbolism of a state backed religious structure on contested land with the backing of the security forces is impossible to separate from memories of war and destruction. A president committed to reconciliation cannot remain silent in the face of such provocations, however uncomfortable it may be to challenge sections of the majority community.

High-minded leadership

The controversy regarding the president’s Independence Day speech has also generated strong debate. In that speech the president did not refer to the military victory over the LTTE and also did not use the term “war heroes” to describe soldiers. For many Sinhala nationalist groups, the absence of these references was seen as an attempt to diminish the sacrifices of the armed forces. The reality is that Independence Day means very different things to different communities. In the north and east the same day is marked by protest events and mourning and as a “Black Day”, symbolising the consolidation of a state they continue to experience as excluding them and not empathizing with the full extent of their losses.

By way of contrast, the president’s objective was to ensure that Independence Day could be observed as a day that belonged to all communities in the country. It is not correct to assume that the president takes these positions in order to appease minorities or secure electoral advantage. The president is only one year into his term and does not need to take politically risky positions for short term electoral gains. Indeed, the positions he has taken involve confronting powerful nationalist political forces that can mobilise significant opposition. He risks losing majority support for his statements. This itself indicates that the motivation is not electoral calculation.

President Dissanayake has recognized that Sri Lanka’s long term political stability and economic recovery depend on building trust among communities that once peacefully coexisted and then lived through decades of war. Political leadership is ultimately tested by the willingness to say what is necessary rather than what is politically expedient. The president’s recent interventions demonstrate rare national leadership and constitute an attempt to shift public discourse away from ethnic triumphalism and toward a more inclusive conception of nationhood. Reconciliation cannot take root if national ceremonies reinforce the perception of victory for one community and defeat for another especially in an internal conflict.

BY Jehan Perera

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Recovery of LTTE weapons

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Sri Lanka Navy in action

I have read a newspaper report that the Special Task Force of Sri Lanka Police, with help of Military Intelligence, recovered three buried yet well-preserved 84mm Carl Gustaf recoilless rocket launchers used by the LTTE, in the Kudumbimalai area, Batticaloa.

These deadly weapons were used by the LTTE SEA TIGER WING to attack the Sri Lanka Navy ships and craft in 1990s. The first incident was in February 1997, off Iranativu island, in the Gulf of Mannar.

Admiral Cecil Tissera took over as Commander of the Navy on 27 January, 1997, from Admiral Mohan Samarasekara.

The fight against the LTTE was intensified from 1996 and the SLN was using her Vanguard of the Navy, Fast Attack Craft Squadron, to destroy the LTTE’s littoral fighting capabilities. Frequent confrontations against the LTTE Sea Tiger boats were reported off Mullaitivu, Point Pedro and Velvetiturai areas, where SLN units became victorious in most of these sea battles, except in a few incidents where the SLN lost Fast Attack Craft.

Carl Gustaf recoilless rocket launchers

The intelligence reports confirmed that the LTTE Sea Tigers was using new recoilless rocket launchers against aluminium-hull FACs, and they were deadly at close quarter sea battles, but the exact type of this weapon was not disclosed.

The following incident, which occurred in February 1997, helped confirm the weapon was Carl Gustaf 84 mm Recoilless gun!

DATE: 09TH FEBRUARY, 1997, morning 0600 hrs.

LOCATION: OFF IRANATHIVE.

FACs: P 460 ISRAEL BUILT, COMMANDED BY CDR MANOJ JAYESOORIYA

P 452 CDL BUILT, COMMANDED BY LCDR PM WICKRAMASINGHE (ON TEMPORARY COMMAND. PROPER OIC LCDR N HEENATIGALA)

OPERATED FROM KKS.

CONFRONTED WITH LTTE ATTACK CRAFT POWERED WITH FOUR 250 HP OUT BOARD MOTORS.

TARGET WAS DESTROYED AND ONE LTTE MEMBER WAS CAPTURED.

LEADING MARINE ENGINEERING MECHANIC OF THE FAC CAME UP TO THE BRIDGE CARRYING A PROJECTILE WHICH WAS FIRED BY THE LTTE BOAT, DURING CONFRONTATION, WHICH PENETRATED THROUGH THE FAC’s HULL, AND ENTERED THE OICs CABIN (BETWEEN THE TWO BUNKS) AND HIT THE AUXILIARY ENGINE ROOM DOOR AND HAD FALLEN DOWN WITHOUT EXPLODING. THE ENGINE ROOM DOOR WAS HEAVILY DAMAGED LOOSING THE WATER TIGHT INTEGRITY OF THE FAC.

THE PROJECTILE WAS LATER HANDED OVER TO THE NAVAL WEAPONS EXPERTS WHEN THE FACs RETURNED TO KKS. INVESTIGATIONS REVEALED THE WEAPON USED BY THE ENEMY WAS 84 mm CARL GUSTAF SHOULDER-FIRED RECOILLESS GUN AND THIS PROJECTILE WAS AN ILLUMINATER BOMB OF ONE MILLION CANDLE POWER. BUT THE ATTACKERS HAS FAILED TO REMOVE THE SAFETY PIN, THEREFORE THE BOMB WAS NOT ACTIVATED.

Sea Tigers

Carl Gustaf 84 mm recoilless gun was named after Carl Gustaf Stads Gevärsfaktori, which, initially, produced it. Sweden later developed the 84mm shoulder-fired recoilless gun by the Royal Swedish Army Materiel Administration during the second half of 1940s as a crew served man- portable infantry support gun for close range multi-role anti-armour, anti-personnel, battle field illumination, smoke screening and marking fire.

It is confirmed in Wikipedia that Carl Gustaf Recoilless shoulder-fired guns were used by the only non-state actor in the world – the LTTE – during the final Eelam War.

It is extremely important to check the batch numbers of the recently recovered three launchers to find out where they were produced and other details like how they ended up in Batticaloa, Sri Lanka?

By Admiral Ravindra C. Wijegunaratne
WV, RWP and Bar, RSP, VSV, USP, NI (M) (Pakistan), ndc, psn, Bsc (Hons) (War Studies) (Karachi) MPhil (Madras)
Former Navy Commander and Former Chief of Defence Staff
Former Chairman, Trincomalee Petroleum Terminals Ltd
Former Managing Director Ceylon Petroleum Corporation
Former High Commissioner to Pakistan

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Yellow Beatz … a style similar to K-pop!

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Yes, get ready to vibe with Yellow Beatz, Sri Lanka’s awesome girl group, keen to take Sri Lankan music to the world with a style similar to K-pop!

With high-energy beats and infectious hooks, these talented ladies are here to shake up the music scene.

Think bold moves, catchy hooks, and, of course, spicy versions of old Sinhala hits, and Yellow Beatz is the package you won’t want to miss!

According to a spokesman for the group, Yellow Beatz became a reality during the Covid period … when everyone was stuck at home, in lockdown.

“First we interviewed girls, online, and selected a team that blended well, as four voices, and then started rehearsals. One of the cover songs we recorded, during those early rehearsals, unexpectedly went viral on Facebook. From that moment onward, we continued doing cover songs, and we received a huge response. Through that, we were able to bring back some beautiful Sri Lankan musical creations that were being forgotten, and introduce them to the new generation.”

The team members, I am told, have strong musical skills and with proper training their goal is to become a vocal group recognised around the world.

Believe me, their goal, they say, is not only to take Sri Lanka’s name forward, in the music scene, but to bring home a Grammy Award, as well.

“We truly believe we can achieve this with the love and support of everyone in Sri Lanka.”

The year 2026 is very special for Yellow Beatz as they have received an exceptional opportunity to represent Sri Lanka at the World Championships of Performing Arts in the USA.

Under the guidance of Chris Raththara, the Director for Sri Lanka, and with the blessings of all Sri Lankans, the girls have a great hope that they can win this milestone.

“We believe this will be a moment of great value for us as Yellow Beatz, and also for all Sri Lankans, and it will be an important inspiration for the future of our country.”

Along with all the preparation for the event in the USA, they went on to say they also need to manage their performances, original song recordings, and everything related.

The year 2026 is very special for Yellow Beatz

“We have strong confidence in ourselves and in our sincere intentions, because we are a team that studies music deeply, researches within the field, and works to take the uniqueness of Sri Lankan identity to the world.”

At present, they gather at the Voices Lab Academy, twice a week, for new creations and concert rehearsals.

This project was created by Buddhika Dayarathne who is currently working as a Pop Vocal lecturer at SLTC Campus. Voice Lab Academy is also his own private music academy and Yellow Beatz was formed through that platform.

Buddhika is keen to take Sri Lankan music to the world with a style similar to K-Pop and Yellow Beatz began as a result of that vision. With that same aim, we all work together as one team.

“Although it was a little challenging for the four of us girls to work together at first, we have united for our goal and continue to work very flexibly and with dedication. Our parents and families also give their continuous blessings and support for this project,” Rameesha, Dinushi, Newansa and Risuri said.

Last year, Yellow Beatz released their first original song, ‘Ihirila’ , and with everything happening this year, they are also preparing for their first album.

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