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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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Rev Fr. Eugene Herbert’s loss should result in breaking down societal imbalances

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The river we step in is not the river we stand on

By B Nimal Veerasingham

Years ago, when visiting New Orleans, Louisiana, I found myself wandering through the sprawling campuses of Loyola University. It is not far from the mighty Mississippi river flowing almost 6,000 km and economically powering significant parts of US Upper Midwest. In an unassuming quite corner under a well branched shady tree I noticed a memorial structure commemorating the killing of eight people in El Salvador, including six Jesuit priests in 1989. The six priests were also professors at the university of Central America in El Salvador at that time.

Peace memorial

This May, as per Loyola’s ‘Maroon’, at the memorial event held at the Peace Quad at Loyola university New Orleans, now dedicated as a memorial to this tragedy, Prof Alvaro Alcazar addressed the gathering. ‘The colonial power that is still very much in place in Latin America has created a ‘faith’ that is blind to or silent about injustice. It was this faith that inspired the Jesuit’s activism, but it cost them their lives’.The involvement of US in this tragedy was also addressed by Prof. Susan Weisher something the United States has never taken accountability for.

US Foreign Policy

The many contradictions and positivity of US foreign policy and its vast turns and switches in reaching many parts of the world is like the mighty Mississippi that prowls almost through or parts of 32 US States. The depth and power of this vast river cannot be estimated by mere width and length. Hurricane Catarina breaching the dikes nearly destroyed the entire city of New Orleans.

Fr Eugene Herbert memorial

Early this year a memorial statue of Rev Fr. Eugene Herbert SJ was declared opened by Rt Reverend Ponniah Joseph, Bishop of Batticaloa in the outskirts of Batticaloa town right by the shores of Batticaloa lagoon. The statue was placed midway between the Batticaloa town, where he lived and taught, and the town of Eravur, where he ‘disappeared’ along with one of his students at the Eastern Technical Institute, where he was a Director. He was on his way on the scooter to arrange a safe way for the nuns trapped in a convent in the nearby town of Valaichchenai engulfed by ethnic riots.

Rev Fr Eugene Herbert was born in Jennings Louisiana. He joined the Jesuits on 14 Aug. 1941, while still in his late teens. He volunteered to join the ‘Ceylon Mission’ and arrived in Sri Lanka in 1948. As in the traditions of Jesuits as providers of high-quality education from their founding of their first school in 1548, Rev Fr Herbert served particularly in two schools in the East, St. Josephs College Trincomalee and St. Michael’s College Batticaloa. It is well known that Education in the Jesuit tradition is a call to human excellence. It develops the whole person from intellect and imagination to emotions and conscience. It approaches academic subjects holistically, exploring the connections among facts, questions. Insights, conclusions, problems and solutions. It has succeeded in a variety of cultures because it adapts to the context of the learner.

Multi-talented

Rev Fr. Herbert was a multi-talented genius excelling in music, science, technical studies, vocational studies and to be outdone of it all, in the basketball courts. In all disciplines, he brought a stricter structure that is besides excelling in the fundamentals, incorporating situational strategies encompassing critical thinking and adaptation. This was greatly visible none other than in the basketball courts where he injected exuberance and counter strategies to conventional wisdom. Saint Michael’s College Batticaloa up until his arrival in 1974 just was crawling in all Island Championships more so maintaining the status-quo. But Rev Fr Herbert revolutionised the outcome when Saint Michael’s started winning All Island Championships almost in all age groups against much more resourced Colombo schools.

Excellence in Basketball

Human excellence as we all know is not rocket science but striving to be the best with practice, discipline and endurance. But Rev Fr. Herbert’s presence provided the boys from the East who often lacked a concentrated leadership with clear and precise roadmap. The structural imbalance whether it be not so well built or barefooted at matches, didn’t determine the outcome. Rev Fr, Herbert provided energy and leadership both morally and corporally to the boys of the East who faced systemic roadblocks by not getting the direction and leadership. This was further evidenced by Rev Fr. Herbert’s active and emotional coaching that led the College teams to ignore opponent’s big city environments and large support base, but to keep concentrated on the final execution, the championship.

The referees in matches, where Saint Michael’s played paid greater attention to their decisions something that became standard when dealing with someone who knew the rulebook top to bottom. Rev Fr. Herbert quite often, if not in all matches, where St. Michaels College played could be seen challenging the referees for their inaccurate or missed calls. He always carried a basketball rulebook and could be seen feverishly waving the exact page of the rule and exclaims at top pitch when the referees failed to observe especially when the game was heated, and the difference between was swinging by one or two points.

Reaching the stars

I can remember that Rev Fr. Herbert once refused to participate in a Consolation Finals of a tournament. The team wanted at least to bring home a Consolation Finals Trophy, having failed to reach the finals. Rev Fr, Herbert looked at it differently. ‘We came here for nothing else but for the Championship trophy. Now that we couldn’t, we are catching the 8.00 PM night train tonight back to Batticaloa – and by the way, the practice for the next tournament will begin tomorrow evening, be on time’.

Rev Fr. Herbert’s humanity was visible in practically everything he exemplified, calculating the speed of the travelling train to explaining the mechanism of automobiles and the melodies from his clarinet. Between the matches and practices in Colombo he said mass at the Jesuit residence at Bambalapitiya. As teenagers with expectations we got confused sometimes with his message from the pulpit. ‘We strive to become the best and win. But at times that is not possible, and we have to accept defeat gracefully. But we have to rise again learning from our mistakes’.On another occasion, the security person refused to allow us to sleep on the floor of an enclosed classroom.

The train was late, and it was late in the evening; there was no one to instruct the security to open the classroom. He was ready to allow only the priest to the reserved quarter upstairs. ‘I will stay with the team and do not need any special arrangement,’ said Rev Fr without blinking, sleeping the entire night with us on the ground of an open but roofed half basketball-court, using his cassock as the bedsheet.

Rev Fr. Herbert exemplified through his life the true meaning of his calling and forging a future full of hope to a population that was at the receiving end of things for a longest while.

Last letter

In one of his last letters to his fellow Jesuit in New Orleans he wrote,’ Enough for our trials. The Lord continues to take care of us. I had really planned to write to USAID for another grant. We are running rehabilitation courses for ex-militants and other youth. Every four months we train 20 boys in welding, 20 in refrigeration repairs and 25 in house wiring. Every six months we train 15 in radio and TV repair. This is in addition to our regular three -year course in general mechanical trades’.

‘Pray for us. God willing the current instability and disturbances will be changed by the time I write again. We are used to vast fluctuations in fortune’.

Rev Fr. Herbert’s letter foretells several aspects of humanity that he was called upon to uphold.

The US continues to provide resources to ensure economic wellbeing, stability and peaceful existence across the Globe. The rule of law cannot be simply behavioral codes or identifying the cause or the culprit but ensuring resources and direction for the citizenry in general to break the cycle and rise above injustice. The rule of law cannot be applied differently to different set of people or on a best effort basis.

Breaking down societal imbalances

El Salvador and Sri Lanka were victims of a vicious violent cycle, where Jesuits lost their lives in obeying to their calls from above in their attempt to remake what it ideally should be. Many lost their lives in these cycles of hatred and violence both ordinary and clergy, including my well-liked and ever smiling classmate Rev Fr Savarimuthu Selvarajah. Fr Herbert’s disappearance galvanizes the distrust in our own destiny; many thousands were killed by fellow citizens than in the nearly 500 years of combined occupation by the foreign colonial powers.

The mighty Mississippi River, which travels almost 6,000 km is hardly comparable to a mere 56 km-long Batticaloa lagoon. Yet the son who was born on the shores of Mississippi became the true son by the shores of the Batticaloa lagoon.

This August 15th marks the 32nd anniversary of Rev Fr. Eugene Herbert’s ‘disappearance’. Ironically, at the time of his disappearance he was a year less a day from celebrating his Golden Jubilee in joining the Jesuits (14th August 1941). No one has been brought to date to justice or rather under the clauses of the ‘rule of law’. The one who held the rulebook up above his head is still denied justice.Batticaloa and the entire Sri Lanka lost one of its true sons, and he just happened to be born in the United States of America.

 

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Vijaya Nandasiri : Losing it in laughs

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By Uditha Devapriya

Vijaya Nandasiri left us six years ago. The epitome of mass market comedy in Sri Lanka, Nandasiri belonged to a group of humourists, which included Rodney Warnapura and Giriraj Kaushalya, who redefined satire in the country. Nandasiri’s aesthetic was not profound, nor was it subtle. It was not aimed at a particular segment. Indeed, there was nothing elitist or pretentious about it; if you could take to it, you took to it. It was hard not to laugh at him, it was hard not to like him. Indeed, it was hard not to sympathise with him.

In the movies, Sri Lanka’s first great humourist was Eddie Jayamanne. Typically cast as the servant or bumpkin, Jayamanne could never let go of his theatrical roots. More often than not his laughs targeted a particular segment, so much so that when Lester Peries cast him as the father of the hero’s lover in Sandesaya, he still seemed stuck in those movies he had made and starred in with Rukmani Devi. Many years later he was cast as a close friend of the protagonist in Kolamba Sanniya, in many ways Sri Lanka’s equivalent of It’s a Mad, Mad, Mad, Mad World. Even there, he could not quite escape his origins.

In Kolamba Sanniya, Jayamanne played opposite Joe Abeywickrema. Hailing from a different background, more rural than suburban, Abeywickrema had by then become our greatest character actor. Dabbling in comedy for so long, he found a different niche after Mahagama Sekara cast him in Thunman Handiya and D. B. Nihalsinghe featured him as Goring Mudalali in Welikathara. Yet he could never let go of his comic garb. Cast for the most as an outsider in the cities and the suburbs – of whom the epitome has to be the protagonist of Kolamba Sanniya – Abeywickrema discovered his élan in the role of the man who falls into a series of absurd situations, but remains unflappably calm no matter what.

There is nothing profoundly or intellectually funny in Kolamba Sanniya. Like It’s a Mad, Mad, Mad, Mad World, the humour emerges from the characters’ imperfections and foibles: their way of looking at the world, their accents, their lack of polish and elegance. The dialogues are not convincing, and some of the situations – like the hero’s family discovering a bidet for the very first time – are downright silly, if not condescending. What strengthens the story is Joe Abeywickrema’s performance; specifically, his ability to convince us that, despite the situations he is being put through, he can stand on his own. Like the protagonist of Punchi Baba, left to take care of an abandoned baby, he is helpless but not lacking control. He often makes us think he’s losing it, but then gets back on track.

Vijaya Nandasiri was cut from a different cloth. In many respects he was Abeywickrema’s descendant, yet in many others he differed from him. Whereas Abeywickrema discovered his niche playing characters who could conceal the absurdity of the situations they were in, Nandasiri’s characters could only fail miserably. Abeywickrema convinced us that he was in control; Nandasiri could not. As Rajamanthri, the politician who for most of us epitomised the silliness and stupidity of our brand of lawmakers, he frequently parrots out that he’s an honest man. Abeywickrema could say the same thing and get away with it. Nandasiri could not: when he says he’s honest, you knew at once that he was anything but.

Nandasiri revelled in having no self-respect even when we ascribed to him some sense of honour and dignity. In Nonawarune Mahathwarune the ubiquitous Premachandra flirts with the woman next door (Sanoja Bibile), though we don’t get why the latter never returns his affections. As Senarath Dunusinghe in Yes Boss, the situation is reversed: he has to suffer another man flirting with his wife, the issue being that the man happens to be his employer who doesn’t know that they are married. The whole plot pivots on two things: the fact that his boss doesn’t like him, and the fact that he has to disguise himself as an older husband of his own wife to conceal their marriage from his boss.

In his own special way, Nandasiri went on to represent our contempt for womanisers, cuckolds, and politicians, by turning them into easily recognisable and easily mockable stereotypes. In Nonawarune Mahathwarune he was the womaniser, in Yes Boss he was the cuckold – though his wife only pretends to give in to their employer’s advances – and as Rajamanthri, easily the most recognisable comic figure here during the past 20 years, he was the politician. It was as Rajamanthri that he prospered, even when playing characters who only vaguely reminded us of him, such as the antihero of Sikuru Hathe.

Many years ago, I watched a mini series on Rupavahini revolving around a politician and his driver. Vijaya Nandasiri played the politician, Vasantha Kumarasiri’s driver. Early on I sensed something odd about them. Their voices were different. The dubbing team had synced one actor’s voice with the other, a trick that survived the first 10 minutes of the first episode, after which these two meet a horrible accident that (inexplicably) leaves onlookers and relatives confused as to whose body belongs to whom.

Both are near dying. A quick surgery is hence followed by a quick plastic surgery, in which the wrong face is placed on the wrong body. The voices now revert to the correct actor. In hindsight this was an unnecessary gimmick, but also a useful trick, since for the rest of the story the driver becomes the believer in authority and the politician the believer in Marxist politics. Crude, and rather one-dimensional, but fun. And it wasn’t just a change of voice: it was also a change of spirit, of two contradictory personalities transplanted to each other. That was Nandasiri’s charm. You could never anticipate anyone other than him when he was there. For the mini series to work, hence, he had to be himself.

If Joe was redeemable because he was at the receiving end of some confusing dilemma (like the baby he raises in Punchi Baba, or the lifestyle in Colombo he gets used to in Kolamba Sanniya, Vijaya was unredeemable because he was at the other end, always provoking if not unleashing some havoc. It’s not a coincidence that, in this respect, his characters were always middle class, consumerist, very often in professions that called for security, stability, and status: as a Junior Visualiser in an ad agency in Yes Boss, as the chief in a security firm in Sir Last Chance, and as a police sergeant in Magodi Godayi. These symbolised a lifestyle that Nandasiri’s antiheroes sought to subvert and to defy.

Where he was his own man – the magul kapuwa in Sikuru Hathe or Rajamanthri in so many movies and serials – he wasn’t a provocateur, but a lovable antihero. And like all antiheroes, he conceals goodness because he despises it: in Sikuru Hathe, for instance, he commits one deception after another for his family’s sake, especially his daughter’s.

Where he was paired with another actor, I think, Nandasiri failed. He was his man, so when in Methuma he and Sriyantha Mendis are mistaken for two lunatics by a veda mahaththaya in a village, he could not really shine the way he had in Ethuma. Even in Magodi Godayi, he was less than he usually was whenever he was opposite Gamini Susiriwardana. Yes Boss and Nonawarune Mahathwarune had him among a plethora of other actors, to be sure, but then he was on his own there. There are moments in Yes Boss when Lucky Dias nearly outshines him. But Nandasiri gets back on track; he exerts his dominance again.

In other words, Nandasiri could give his best only if his co-star was alive to his range, or if his character was of a lesser pedigree than his co-star. That is what happens in King Hunther, where he could be himself opposite Mahendra Perera for two reasons: because Mahendra was a fairly good comic actor himself, and because Nandasiri’s character, Hunther, hails from such a different world that the present (in which Mahendra is an escaped convict) appears outlandish to him. Hunther to get used to this world, and that means getting used to the first two people he befriends: Mahendra and Anarkali Akarsha.

Vijaya Nandasiri’s ultimate triumph was his gift at getting us to feel for unfeeling antiheroes. Sometimes he could trump us, as Abeywickrema often did, like in King Hunther, when he hears that the politician who befriends him to further his career has decided to kill him off, and surreptitiously escapes. You never thought he was capable of upping the antagonist, but he does just that, providing us with the final twist in the story.

He couldn’t behave this way as Rajamanthri because he was not reflecting our contempt for figures of authority, but downright embodying it. When, towards the end of Suhada Koka, he is killed off by an assassin acting on the orders of the second-in-command to the Prime Minister (the latter played by W. Jayasiri), the film preaches to us a homily on the corrupting influence of power, a warning for all politicians. But then, just as you come to terms with this conclusion, he wakes up; the whole scene, it turns out, was a nightmare.

Ordinarily, you’d think he would learn from such a nightmare. But he doesn’t. Even after that harrowing fantasy, he is soon back to being the pompous figure he always was. Yet in that brief sequence he told us everything that needed to be told about how the corrupt remain corrupt, and how irredeemable they are. Was it a cruel coincidence, then, that the only time Rajamanthri was killed off like that marked the last time Vijaya Nandasiri played Rajamanthri? We may never know, but perhaps it was more than a coincidence. Perhaps it was the only fitting end to such a career that could be filmed.The writer is an international relations analyst, researcher, and columnist who can be reached at udakdev1@gmail.com

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22A: Composition of CC problematic; ensures government domination

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By Dr. Jayampathy Wickramaratne
President’s Counsel

The Wickremesinghe-Rajapaksa government’s new Twenty-Second Amendment to the Constitution Bill was presented to Parliament on 10 August 2022. The earlier Bill, which was published in the Gazette in June 2022, lapsed as it was not presented before the recent prorogation of Parliament.

The August Bill is an improvement on the June Bill from a Nineteenth Amendment perspective. Under 19A, Ministers and Deputy Ministers were appointed by the President on the advice of the Prime Minister. This was done away with by the Twentieth Amendment. The June Bill sought to bring back the requirement of the Prime Minister’s advice, but that provision would not apply during the present Parliament. The August Bill does not have such an exception.

According to the June Bill, where the President is of the opinion that the Prime Minister has lost the confidence of the present Parliament, the Prime Minister can be removed. Such a provision is not found in the August Bill.

Under 19A, the Speaker, Prime Minister and Leader of the Opposition were ex officio members of the Constitutional Council (CC), while the President would nominate one MP. Five persons were nominated jointly by the Prime Minister and the Leader of the Opposition, two of them being MPs. In making such nominations, they were required to consult the leaders of political parties and independent groups represented in Parliament to ensure that the CC reflects the pluralistic character of Sri Lankan society, including professional and social diversity. One MP was nominated by the MPs belonging to parties other than those to which the Prime Minister and the Leader of the Opposition belonged. The three persons from outside Parliament shall be persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party. Parliament shall approve their nomination. In practice, such approval was a mere formality as they were nominated jointly and after a consultative process.

The August Bill, like the June Bill, proposes the re-establishment of the CC but makes a crucial change. The five persons referred to are not appointed pursuant to the joint nomination of the Prime Minister and the Leader of the Opposition. One MP is nominated by the Government Parliamentary Group, and the other MP is nominated by the party to which the Leader of the Opposition belongs. The three persons from outside are nominated not jointly by the Prime Minister and the Leader of the Opposition but by the Speaker in consultation with them. The smaller parties are not consulted.

This deviation from 19A gives rise to several issues. If the Speaker is partisan (and there have been several such Speakers), the Government could ensure that all three CC members from outside are their own nominees. The Government, by virtue of its majority, would have no difficulty getting Parliamentary approval. The smaller parties would have no say in the nomination of these three persons. Thus, in the current Parliament, parties such as the TNA, NPP, EPDP, TNPF etc., who together account for twenty-five MPs, would not be consulted.

The 22A Bill says that in nominating the two MPs and the three persons from outside Parliament, Members of Parliament shall ensure that the CC reflects the pluralist character of Sri Lankan society. This would be most difficult as they would be nominated by separate processes. Under 19A, on the other hand, that was ensured as the nomination was jointly by the Prime Minister and the Leader of the Opposition after consulting the leaders of all parties in Parliament.

The composition of the CC is of crucial importance for the achievement of a national consensus on high-level appointments. The approval of the CC is a pre-requisite for the appointment of judges of the Supreme Court and Court of Appeal and appointments to high positions such as the Attorney-General and the Inspector-General of Police. Appointments to independent Commissions are made on the recommendation of the CC. As the other seven members of the CC are all Members of Parliament and may be swayed by political considerations, the three members who are appointed from outside have a vital role to play. They should be persons acceptable to all and who can have a moderating influence on the politicians.

An argument that has been adduced by the Government is that the Prime Minister and the Leader of the Opposition may not agree on the to be nominated jointly. No such issue arose both under the Seventeenth and Nineteenth Amendments. Members of Parliament nominated jointly acted with responsibility. Distinguished personalities appointed by joint nomination included Justice Dr A.R.B. Amarasinghe, Professor Colvin Gunaratne, Dr Jayantha Dhanapala, A.T. Ariyaratne, Shibley Aziz, and Dr Radhika Coomaraswamy, Javid Yusuf and Professor N. Selvakkumaran.

That the Prime Minister and the Leader of the Opposition may not agree is no reason to give the power of appointment to the Speaker. The writer proposes that the 19A provisions be re-enacted with the addition that if the Prime Minister and the Leader of the Opposition do not agree on the nominees within a stipulated period, the Speaker will make the nominations in consultation with the Prime Minister, the Leader of the Opposition and the leaders of the smaller parties.

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