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Covid-19 & SL’s future

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by C.A. Chandraprema

 The emergence of yet another major Covid cluster in Divulapitiya is food for thought. While the entire world seemed to have lost control over the spread of Covid-19, Sri Lanka seemed to have brought it under control until this latest outbreak. Even this latest cluster though the largest by our standards, is nothing compared to what most other countries including highly developed countries with much smaller populations have been experiencing. There is little doubt that Sri Lanka will bring this cluster under control as it did the previous ones. There is no such thing as eradicating this disease which has no cure. All that one can do is to have a successful firefighting mechanism which is capable of containing any outbreaks. The Kandakadu cluster came as an unpleasant surprise just like the present one, but it was successfully contained.

At no point were we ever rid of Covid-19 completely. When the number of local patients declines, the repatriation of expatriate workers from overseas commences and every planeload brings new Covid-19 patients into the country. Hence the emergence of new clusters is something that has to be expected. Even countries like China and New Zealand which had established control over Covid-19 very early on, experienced the emergence of new clusters which they had to put a cap on. Before the emergence of the Divulapitiya cluster, people had begun relaxing to an extent that would seem to be inviting disaster. We seemed to be fiddling while the entire world burned all around us.

We were watching the news bulletins announcing new outbreaks throughout the western world and in parts of Asia which exceeded even the first wave experienced in those countries and yet going about our work as if nothing was wrong. The Divulapitiya cluster was perhaps a much needed reality check, to put the whole country on alert once again. One international personality who said, based on studies carried out, that this could be a three to four year pandemic, was Michael Moore the documentary film producer. Unless a vaccine is developed before that, this pandemic seems set to continue for quite some time more.

We are now nearing the first anniversary of the first outbreak of Covid-19 in Wuhan China and nowhere near developing a vaccine for the disease. One thing that can be said for certain is that the Covid-19 pandemic is going to be very different to previous outbreaks of viral dieseases like the SARS (Severe acute respiratory syndrome) outbreak of 2003, or even the AH1N1 pandemic of 2010. Of these SARS was just a blip on the radar which affected only a few countries. AH1N1 was far more widespread – perhaps as pervasive as Covid-19 but the number of fatalities it caused was negligible by Covid-19 standards. As a disease, Covid-19 is nowhere near as fearsome as was the Ebola hemorrhagic fever which was also a viral disease with a fatality rate that could be as high as 90%. Yet with the number of Covid-19 deaths worldwide topping over a million, it cannot be ignored as a case of the ‘sniffles’ either. In actual fact most people are still unclear as to extent to which they should be concerned. If this had been a disease like Ebola, what we would be living through would effectively be the end of the world and people would have been in a state of blind panic.

 

Wake up call

 

But what we see now happening with regard to Covid-19 is whole countries and populations alternating between concern and indifference. One thing that the entire world seems to have decided on is that there will be no more complete shut downs as was imposed in March and April this year during the early stages of this pandemic. Such shutdowns were impractical and in the circumstances, only helps to suppress the spread of the disease for a while and it resurfaces the moment the shut down is lifted. The only alternative appears what countries like Vietnam and Sri Lanka have been doing, isolation of cases, localized shutdowns where necessary, restrictions on gatherings, imposing face mask and hand washing regulations and contact tracing. If this cannot be done in a particular country, perhaps the only other alternative is to try to go about your day to day work and hope for the best as countries like the USA and Brazil seem to be doing.

 The approach being tried by the USA and Brazil was tried out in its classic purity by Sweden which never had shutdowns or mandatory face masks or total restrictions on gatherings. At one point, even the wearing of face masks was discouraged by Sweden on the grounds that it would cause unnecessary panic. Today, Sweden which has less than half the Sri Lankan population has over 95,000 recorded cases and nearly 6,000 deaths. Swedish levels of infection and mortality would have caused the government to fall in Sri Lanka but the Swedes seem to be taking it with stoic indifference. There was much criticism of President Trump for having left hospital without being completely cured of Covid-19 and taking his mask off to address the media, but perhaps in those countries, there’s no alternative but to put on a brave face and weather the storm as best as one can.

 Throughout the West there have been protests against any move to reimpose shutdowns. A phenomenon aptly termed ‘Covid-19 fatigue’ is setting in throughout the world. Indeed the same can be said about Sri Lanka. Despite the horrific stories that one hears about the rate of infections and fatalities in other countries, people are becoming less and less amenable to Covid-19 routines such as wearing face masks and washing hands. In most establishments in Sri Lanka, the sinks and soap have been replaced by hand sanitizers as most customers show little inclination to go through the hassle of washing one’s hands before entering an office or a shop. As of this moment, the entire world is actually veering in the direction of countries like Sweden, USA and Brazil except perhaps countries like Sri Lanka which have hit upon an alternative way of dealing with the problem.

 Finally we may well end up dealing with Covid-19 the way the world dealt with the Spanish flu over a century ago – by basically ignoring it and allowing those who die to die and hope for the best. As a result of that attitude, the economic impact of the Spanish flu was not as severe as one would think, even though that pandemic killed millions worldwide. The attitudes that we are seeing towards death in countries like Sweden, the USA and Brazil are very different to the attitudes that prevailed in the West just a decade or two ago. In the old days, if a 98-year old person died in a hospital, his relatives would file a medical negligence suit claiming that his dearly beloved great great grandpa would still have been alive if not for someone’s negligence. Things came to such a pass that in some countries insurance companies refused to insure medical professionals against medical negligence claims and governments had to consider laws limiting the maximum payout that can be obtained from a medical negligence suit. After the end of the cold war and the emergence of a unipolar Western dominated world, the West suffered a serious loss of commonsense.

 Damages could be claimed for the most ridiculous causes. This writer is aware of an instance in a western country where a man jumped out of a moving train just as it was coming to a stop at a station as we see so many passengers doing in Sri Lanka on a daily basis. One would think that if anyone is injured after jumping off a moving train without waiting a few seconds for it to come to a halt, one has to bear the consequences of one’s actions. But not in the West. In the instance mentioned, the passenger sued the railway company saying that he jumped out only because it was possible to do so. That was the West just a few years ago. In recent years this snowflake culture in the west developed to untenable levels with just a word being considered a threat and the victim needing counseling or medication to get over the stress of being called a name. But today people are dying like flies in the West and one would expect a flood of litigation bigger than the Asian tsunami of 2004, but we see nothing of the kind. The West is taking the damage from Covid-19 with third world levels of resignation. Perhaps this is nature’s way of correcting attitudes.

 

Face to face with reality

 

Covid-19 has brought home to the Western world the realities of life and how. It’s tempting to hope that this new found realization of practical limitations, of one’s own mortality and vulnerability of what is possible and impossible, will lead to a more realistic approach to the rest of the world. At one point some theorists in the West were advocating R2P (the right to protect), a doctrine formulated to enable the West to intervene even militarily in any country on the pretext of protecting its population or a part of its population from its own government. One Western leader who realized that this involvement in dozens of conflicts around the world with little or no understanding of what they were doing, was sapping the strength of the West was Donald Trump. He has been taking concrete steps to extricate the USA from interminable and unwinnable wars all around the world. The realization of limitations on the political and military front go together with a similar realization on the economic front.

 Indeed it could be said that the realization of these realities predated Covid-19 – the election of Donald Trump in 2016 symbolized that trend. Covid-19 only been a kind of coup d’ grace in this whole process. The changes in the world economy now taking place due to Covid-19 actually began before Covid-19 appeared on the scene. Unbridled economic globalization was proving to be untenable. In the US, companies selling goods in the American market would relocate overseas to cut costs and increase profits and import into the USA what once used to be produced within the USA. Its not that these companies were making losses when they were producing within the USA, but they could make greater profits when they relocated to other countries with cheaper labour costs and cheaper inputs. Thus we saw globalization being driven by an international kleptrocracy that had no loyalty to any nation or anybody except the profit motive. The Americans within this kelptocracy had no regard to the fact that relocating production facilities overseas were depriving Americans of their jobs.

 No regard was paid to the question as to how Americans were supposed to purchase the goods that were being imported if a good part of the population did not have an income to pay for those goods. After about two decades or more of unbridled globalization, countries like the USA were looking for a reset, which Trump provided in 2016. So even before Covid-19 appeared on the scene, a turning inwards was becoming apparent throughout the world, most conspicuously in the USA and Britain. Suddenly, ideas like Sovereignty, borders, national security, national economy had once again become fashionable. Now Covid-19 has made that trend a necessity. People have learned the hard way how disruptive over dependence on imports can be in certain situations.

 Even before Covid-19 hit SL, we had certain priorities dictated not so much by economic reasons as by political ones. There was a need to generate more job opportunities locally. There was a need to cut down on imports and to produce such goods locally whenever possible so as to conserve foreign exchange. There was a need to limit our dependence on certain overseas markets. All these have been made even more necessary by the pandemic. There will be restrictions on the number of Sri Lankans who can be employed abroad as the economies of all countries shrink and the volume of world trade contracts. Quite a number of those already employed are likely to lose their jobs and return to Sri Lanka which makes it imperative that job opportunities are created locally for these people.

 

Making room for a reset

 

The decline in foreign exchange earnings will have to be met by limiting imports which also works in favour of the above mentioned objective of creating more employment by producing such goods locally. Over the past four decades or so, both political parties have had policies trending in this direction to a greater or lesser extent. The UNP of J.R.Jayewardene despite its open economy orientation still gave priority to the local production of rice through projects like the Accelerated Mahaweli Programme. They also tried to get local sugar production going by earmarking the Moneragala district for sugar cane cultivation and setting up the Pelwatte Sugar factory. The sugar produced by this new factory was sold on the local market for slightly above the world market price with the then UNP government imposing a tax on imported sugar to make Pelwatte sugar viable on the local market. The UNP of J.R.Jayewardene was a development oriented party and in the 1980s, they were sneeringly called the ‘Sanwardhanas’ because of their emphasis on economic development.

 However, after the mid-1990s the UNP completely lost its development orientation and became a mouthpiece for NGOs. It came to such a pass that the UNP government stored paddy from a bumper harvest in the Mattala airport to make fun of the bumper harvest as well as the airport. It’s very unlikely that JRJ would have reacted to a bumper paddy harvest in that manner. During his time, he even participated in the traditional wap magula ceremonies, getting into the paddy field barebodied and in a sarong like the farmers. Now, due to Covid-19, and the economic and political changes that had been taking place in the world before Covid-19, we have once again come to an era where the prime need of the country is to promote local production, to create new avenues of income for the people and generate jobs locally for the youth entering the labour market every year.

 For Sri Lanka, the need for an economic reset that has been made necessary by Covid-19 is actually an opportunity to make a change of course that was becoming necessary due to political circumstances. Making such a change of course when things are normal both domestically and internationally is difficult because the disruption caused generates stresses and resentment. Now however with the entire world in turmoil, and the domestic economy also thrown into disarray due to circumstances beyond the control of the government, it’s easier to change course with minimal political fallout.  

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Politics

Pompeo’s visit

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The Island of 26/10 carried a news item, on the visit of Pompeo’s to Sri Lanka while also covering India and the Maldives. With just eight days for Presidential Elections in the US, there must be great urgency for the visit with respect to the Maldives. One possibility is to try and get Maldives to recognise Israel, a foreign policy triump for a beleaguered Trump. This will add  to, UAE, Bahrain and Sudan which are already in the quiver. The US has no borders in the Indian Ocean. The visits to India and Sri Lanka could only be side-shows.

The US says it is concerned about “a strong, independent and democratic Sri Lanka”. So is Sri Lanka about a democratic US, the first democratic country in the modern world. The US could justify its commitment to democracy by accepting a peaceful transfer of power to the elected one, after the elections. Seeing the emerging chaos in the US election, the US may like to get technical assistance from our Election Commission on how to run elections.

The Foreign Minister could take this opportunity, to canvass the US for her approval of the Nuclear Test Ban Treaty. This would make Sri Lanka, The Mouse that Roared. 

Jolly Somasundram

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Silent death of constitutional holy cows

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by C.A. Chandraprema

That the 20th Amendment was passed does not come as a surprise. That some opposition MPs voted with the government also does not come as a surprise and neither does the fact that the unity of the governing coalition held during the voting despite the sparring between constituent sections of the government that had been going on for weeks over some provisions of the Amendment. What was surprising however was the manner in which some constitutional shibboleths of the past went into oblivion silently and almost unnoticed. The carcasses of several constitutional holy cows of the past can literally be seen lying dead on the streets.

When the 20th Amendment to the Constitution was first Gazetted as a Bill, this writer stated that some of the changes envisaged in that Amendment were urgent and could not wait until a new Constitution was drafted. Foremost among these was the abolition of the Constitutional Council which had the final say in making important appointments to high state positions like the Attorney General, the IGP and the Judges of the higher judiciary as well as the bodies like the Elections Commission, the Public Services Commission, and the Police Commission. Even after a presidential election and a parliamentary election, and the complete rout of the yahapalana political parties, five of the eight remaining members of the Constitutional Council (after the resignation of one member and the defeat of yet another member at the parliamentary elections) were yahapalanites who would have the final say in making all important state appointments until October 2021.

 

Misconceived institution

Getting rid of this Constitutional Council was what imbued the 20th Amendment with urgency. Yet this was one of the most cherished holy cows of the yahapalana camp. The 20th Amendment gave rise to a great deal of controversy and discussion, but one of the matters that was almost never mentioned was the abolition of the Constitutional Council. Back in 2001, when the 17th Amendment was introduced, it was all about the Constitutional Council and the need to take the power to make important state appointments out of the hands of the President and to give it not to Parliament and not to any elected representative of the people, but to unelected persons nominated by the political parties in Parliament. The first Constitutional Council created by the 17th Amendment had only three Parliamentarians but had seven outsiders.

The tautological absurdity of taking the power to make appointments to important state positions away from the President and away from Parliament and giving it to outsiders who however were appointed by the political parties in Parliament was lost on the proponents of the 17th Amendment – so firmly held was the view that elected politicians should not have a say in making important appointments to state positions. The prejudice seemed to be against elected representatives of the people. So long as you were not an elected representative it did not matter even if the members of the Constitutional Council were hangers on and nominees of political parties! When the 19th Amendment reintroduced the Constitutional Council in 2015, the proportion of parliamentarians to outsiders was reversed and it had seven Parliamentarians and only three outsiders, thanks to the furious resistance of the UPFA and its allies. If the yahapalanites had had their way, the Constitutional Council established by the 19th amendment would also have had only three Parliamentarians as against seven unelected outsiders.

When the 20th Amendment finally did away with the Constitutional Council that was introduced by the 19th Amendment, this yahapalana holy cow went into oblivion silently, and unnoticed. Even the remaining yahapalanites in Parliament did not agitate for its retention or even mention it by name during the weeks of public debate over the 20th Amendment. If they did mention the Constitutional Council, the media did not pick it up. What sealed the fate of the whole concept of the Constitutional Council was the manner in which the yahapalana political parties divided up the positions in the government and the opposition among themselves and stuffed the Constitutional Council full of yahapalanites without a single member to represent the real opposition in the country. The entire concept of the Constitutional Council was perverted and destroyed so completely, that not a single yahapalanite stood up to defend the Constitutional Council and to agitate for its continuation.

Even Karu Jayasuriya who Chaired the yahapalana Constitutional Council in his capacity as the Speaker and who obviously reveled in that role, did seem not come to the defence of the Constitutional Council in a major way, choosing instead according to some news reports, to oppose the 20th Amendment on the slogan of preventing dual citizens from becoming elected representatives of the people. Thus died a misconceived institution. On the one hand we talk of democracy and free and a fair elections, but try to argue that somehow, those who are democratically elected to positions of power should not be trusted with making appointments to important state positions and the power to make such appointments should as far as possible be given to unelected persons. Hopefully this is the last we hear of harebrained mechanisms like the Constitutional Council.

 

The defence portfolio issue

The other urgent matter that needed to be cleared up by the 20th Amendment was whether the President could hold the defence portfolio or not. The 19th Amendment had sought to bar the President from holding any portfolio by the repeal of the old Article 44(2) which said that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister. President Sirisena was allowed to hold the defence portfolio and the environmental portfolio by means of a transitional provision in the 19th Amendment. The repeal of old Article 44(2) and this transitional provision was supposed to imply that the President could not hold any portfolio, not even the defence portfolio even though the President was a member and the head of the Cabinet and Article 4 of the Constitution said that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President.

This was a matter that needed to be cleared up urgently one way or another without waiting for the new Constitution which could take up to another year or more. The 20th Amendment sought to clear this up by reinstating the old Article 44(2). The restoration of the President’s power to hold portfolios was passed without any controversy or anybody seeming even to notice it. In the past, reducing the powers of the Presidency was the pivot around which the entire constitutional reform exercise revolved. The attempt to block the President from holding ministerial portfolios was a measure taken to reduce the power of the presidency introduced by the 19th Amendment. The absurdity of designating the President as the head of State, head of the government, head of the Executive, head of the Cabinet and then trying to prohibit the holder of that office from holding a ministerial portfolio was lost on the drafters of the 19th Amendment. Now this inconsistency too has been put right by the 20th Amendment. Thus the two most urgent provisions in the 20th Amendment have been passed with little or no controversy or even discussion. The former yahapalana hegemons who are now in the opposition in fact did not really defend the specific provisions of the 19th Amendment. They only expressed opposition to the 20th Amendment as a whole.

 

The vital elements in Article 70(1)

 

Another important issue that needed to be corrected even though it was not perhaps as urgent as the previously mentioned issues was the prohibition brought by the 19th Amendment on the dissolution of Parliament before the lapse of four and half years from the date of its first meeting, unless Parliament passes a resolution requesting dissolution with a two thirds majority. The rectification of this issue was not considered to be as urgent as the two issues mentioned earlier only because the present government has an overwhelming majority in Parliament. Had a government with only a slim majority in Parliament been in power, this issue would have been right at the top of the priority list. When the 19th Amendment repealed and replaced old article 70(1), the provisions that existed from the inception of the 1978 Constitution providing for the dissolution of Parliament in the event of the defeat of the government at a vote on the budget, or the statement of government policy or a no-confidence motion, were also dropped.

Thus, the Article 70(1) introduced by the 19th Amendment constituted a total prohibition on the dissolution of Parliament until the lapse of four and a half years quite irrespective of whether the government in power had enough support in Parliament to get the budget or a statement of government policy passed and to survive a no-confidence motion. What the 20th Amendment sought to do was to repeal the 19th Amendment’s Article 70(1) and to replace it with the pre-19th Amendment Article 70(1). In making this switch, only one aspect of the pre-19th Amendment Article 70(1) came to the attention of the Supreme Court. That was the period of one year during which the President could not dissolve Parliament if the previous Parliament had been dissolved by the President at his discretion.

The Supreme Court quoting a previous SC determination stated that if this period during which the President is barred from dissolving Parliament is too long, it may be contended that the President’s power of dissolution which operates as a check to sustain the balance of power is denuded of its efficacy. But, if we strike middle ground, the balance of power itself being the overall objective, and decide on a period of two years and six months, that sufficiently addresses concerns with regard to this provision and it could be passed with only a two thirds majority in Parliament and will not require a referendum. Now after the 20th Amendment, the President can dissolve Parliament after two and a half years instead of the one year period in the old article 70(1) which existed before the 19th Amendment. This however was not the issue with regard to the post 19th Amendment Article 70(1). It would not have mattered even if the period during which the President could not dissolve Parliament was retained at four and a half years if the President’s power to dissolve Parliament in the event the parliamentary government loses a budget, a vote of no confidence, or a statement of government policy was restored. The 20th Amendment has restored the President’s ability to dissolve parliament if the Parliamentary government is showing signs of collapse by being unable to get a budget passed or to survive a no confidence motion etc. and that’s what really matters.

 

SC on the provisions that raised controversy

The provisions relating to Urgent Bills which were to be reintroduced into the Constitution by the 20th Amendment raised some controversy. When the Cabinet is of the view that a particular Bill is urgent in the national interest and makes an endorsement to that effect, the President shall require the special determination of the Supreme Court on the

consistency or inconsistency of any provisions of the Bill by a reference addressed to the Chief Justice. The Supreme Court should make its determination in twenty-four hours or such longer period not exceeding three days as the President may specify. Petitioners against the 20th Amendment contended that this provision impacts on the People’s judicial power as well as legislative power and that the restrictive time period set out not only hinders but also unfairly curtails the exercise of judicial power. Furthermore they claimed that giving the Executive discretion in deciding the time period within which the determination should be made encroaches into the judicial power of the Courts.

The Supreme Court’s reaction to such contentions was to observe that the 20th Amendment Bill amends Article 123 of the Constitution by the insertion of a new paragraph which states that if the Supreme Court entertains a doubt whether the Bill or any provision thereof is inconsistent with the Constitution, it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution. The required nature of the determination is thereby limited to the expression of “entertaining a doubt” rather than a specific determination on the Constitutionality of the Bill or any of its provisions. As for the President fixing the timeframe within which the SC has to respond, the SC observed that Article 129(1) of the Constitution also empowers the President to refer a question to the Supreme Court to obtain its opinion within a time specified by the President.

Therefore, empowering the Executive to set a time period within which a Court should provide its determination per se does not infringe on the Sovereignty of the People. The SC further observed that the relevant provision does not exclude or prohibit an interested party intervening in proceedings relating to a hearing on such Bill. Furthermore the provision concerned makes it mandatory that such Bill be submitted to judicial review through the prescribed process. Therefore the provisions relating to urgent Bills in the 20th Amendment does not require a referendum and can be passed with a two thirds majority in Parliament.

When it came to Dual Citizenship, Petitioners against the 20th Amendment contended that the removal of this disqualification infringes Articles 1 and 3 of the Constitution. They contended that persons who hold a dual citizenship have split loyalties. When they pledge allegiance to two sovereign nations, their capacity to take decisions with the sole idea of protecting and preserving the Sovereignty of one country would be compromised; specially, in situations of conflict of interests between the two countries. Such situations can always arise in many areas of concern including, commerce, trade, defence and in addition on bi-lateral and multi-lateral relations when both countries become relevant parties.

The Attorney-General’s contention was that even a dual citizen has the right to be treated equally and enjoys all the rights of a person who is a citizen of Sri Lanka, only. He further stated that Article 26(2) and (3) of the Constitution prohibit making any distinction on the manner on which citizenship was acquired, Citizens by descent and citizens by registration will have same rights. It was further contended that under the provisions of the Citizenship Act it is only a person who had had been a citizen of Sri Lanka who could gain the dual citizenship. The AG argued that the Petitioners’ claim of “split loyalties” and “conflicts of interests” are mere surmise and conjecture. The SC was of the view that a decision on the inconsistency or consistency with a Constitutional provision cannot be based on surmise and conjecture and further that in the exercise of jurisdiction in relation to an amendment to the Constitution, does not extend to consideration of the desirability of a provision or to delve into policy matters. The SC’s sole consideration would be the constitutionality of the provision.

Only one really important provision of the 20th Amendment was shot down by the Supreme Court on the grounds that it would require a referendum in addition to a two thirds majority in Parliament. This was the restoration of the immunity of the President from suit as it existed before the 19th Amendment. The Supreme Court held that the removal of the existing right guaranteed through the Constitution to the People to invoke the jurisdiction of the Supreme Court under Article 126 in relation to acts of the President is inconsistent with Articles 3 and 4 of the Constitution and therefore would require a referendum in addition to a two thirds majority in Parliament.

 

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Drafting of new constitution begins

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by C.A.Chandraprema

The drafting of the new constitution to replace the 1978 constitution has begun even before the 20th Amendment has been through the committee stage in Parliament. The Special Experts Committee to Draft a New Constitution headed by President’s Counsel Romesh de Silva has been allocated offices in the BMICH, and three senior officers of the Ministry of Justice have been appointed to the Secretariat of the Committee. Sittings of the committee have already commenced with meetings being held every Friday. Two formal weekly meetings have already been held.

The other members of the committee are President’s Counsel Manohara De Silva, President’s Counsel Sanjeewa Jayawardena, President’s Counsel Naveen Marapana, Prof. Nazeema Kamardeen, Dr. A. Sarveswaran, President’s Counsel Samantha Ratwatte, Prof.Wasantha Senevirathne and Prof.G.H.Peiris. The fact that this Committee has commenced work would have been headline news in normal circumstances but it has been completely overshadowed by the latest Covid-19 outbreak.

 For that matter, Covid-19 has drowned out the noise generated over the 20th Amendment as well. The government can be seen to be taking a very cautious approach to this Covid-19 cluster with whole villages and individual establishments being shut down at the slightest suspicion that an infected person may have visited the place concerned. Quite a number of false alarms have been reported but the government is proceeding on the basis that it’s better to be safe than sorry. There seems to be little doubt that the government agencies concerned will be able to get over this latest Covid crisis as well.

 Even though yahapalana theorists have raised a mighty caterwaul of protest claiming that the 20th Amendment will give rise to authoritarian rule, the 20A only restores the constitutional provisions that existed before the 19th Amendment, which essentially means that after the 20th Amendment, the President will have the approximately the same power that past Presidents J.R.Jayewardene, R.Premadasa, D.B.Wijetunga, Chandrika Kumaratunga, Mahinda Rajapaksa and even Maithripala Sirisena had. Even though the 19th Amendment removed some of the powers of the President, the yahapalana President Sirisena continued to enjoy those powers through other means and it’s only the incumbent President Gotabhaya Rajapaksa who has had to bear the full brunt of the 19th Amendment.

 

Yahapalana sleight of hand

 One significant way in which the 19th Amendment sought to truncate the President’s powers was by establishing the Constitutional Council which would have the final say in making appointments to important state positions. After the establishment of the Constitutional Council, the President cannot appoint members and Chairmen of Commissions set up by the 19th Amendment such as the Public Service Commission, National Police Commission, the Election Commission, and several other such commissions without the individuals to be appointed being recommended by the Constitutional Council. Likewise when it came to the appointment of Judges to the Supreme Court and the Court of Appeal, the Attorney-General, the Auditor-General and Inspector-General of Police and other such high state positions, any person appointed by the President to such positions had to be approved by the Constitutional Council. Thus either way, it’s the Constitutional Council that has the final say in making such appointments and not the President.

 Even though these provisions in the 19th Amendment were supposed to limit the powers of the President, they did not limit President Sirisena’s or the yahapalana government’s powers because the yahapalana political parties working in concert divided up the parliamentary government and the parliamentary opposition among themselves and established a complete hegemony over the Constitutional Council. It goes without saying that if the political backers and promoters of the President have complete and total control over the Constitutional Council, it’s the same as the President exercising those powers and that was the situation during the Sirisena Presidency. President Sirisena’s political setup enjoyed the same powers over high appointments that the political setups of his predecessors did.

 Another way in which the 19th Amendment sought to limit the powers of the President was by not allowing the President to hold any ministerial portfolios. Hence the pre-19th Amendment Article 44(2) of the Constitution which said that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister was repealed. Even though the 19th Amendment never expressly said that the President could not hold a portfolio, the repeal of Article 44(2) was supposed to mean that despite the fact that even under the 19th Amendment, the President continued to be the Head of the Government and the Head of the Cabinet he could not hold a ministerial portfolio. President Sirisena was not affected by this limitation because a transitional provision in the 19th Amendment allowed him not only to assign to himself the subjects and functions of Defence, Mahaweli Development and Environment so long as he holds the Office of President but also to determine the Ministries to be in his charge for that purpose. So all that President Sirisena had to do was to decide upfront which ministries he wanted. All Presidents do in fact decide upfront which ministries he would hold, so President Sirisena despite the 19th Amendment was able to do what all his predecessors did in this regard.

 

The genuine changes

To be fair, there were in fact a few genuine ways in which President Sirisena’s powers differed from those of his predecessors. The first and foremost of these was that the tenure of the presidency was shortened from six years to five years by changes made to Article 30(2). This was a genuine change and the 20th Amendment seeks to retain this without alteration. Another genuine change was the effective removal of presidential immunity by the 19th Amendment by means of changes made to Article 35(1) of the Constitution. Article 35(1) as amended by the 19th Amendment states that no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity, provided that this shall not be construed as restricting the right of any person to make a fundamental rights application in the Supreme Court under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity.

 Making the President subject to fundamental rights litigation basically makes it possible to challenge any action that the President takes. In fact the 19th Amendment specifically stated that the Supreme Court shall have no jurisdiction to pronounce upon the exercise of the powers of the President only when it comes to declaring war and peace – which establishes that the Supreme Court can pronounce judgments on virtually everything else other than that one exception. President Sirisena was subject to this provision during his tenure and this was a genuine change made by the 19th Amendment. But it’s an unusual, and arguably counter-productive change. Even under the 1972 Constitution, the ceremonial President was designated the head of the Executive who was required to act on the advice of the Prime Minister. Article 23 of the 1972 Constitution stated that while any person holds office as president, no civil or criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him in his official or private capacity.

 If one takes the Ceylon Constitution Order in Council of 1946, the Executive power was exercised on behalf of the British crown by the Governor-General who was required by convention as mentioned in Article 4(2) of that Constitution to act on the advice of the Prime Minister and Cabinet. Even though the Governor General was the representative of a titular head of state, even he was protected from litigation with the proviso that no act or omission on the part of the Governor-General shall be called in question in any court of law. We see the same protection accorded to the President of India. Article

53(1) of the Indian constitution says that the  executive  power  of  the  Indian Union  shall  be vested  in  the  President. Article 77(1) states that  all  executive  action  of  the  Government  of India  shall  be  expressed  to  be  taken  in  the  name  of  the President. Article 74(1)  requires the Indian President to act on the advice of the Prime  Minister and the  Council  of  Ministers  and the question whether any, and if so what, advice was  tendered  by  Ministers  to  the  President  cannot  be inquired  into  in  any  court. Under Article 77(2) of the Indian constitution, orders and other instruments made and executed in the name of the President shall not be called in question on the ground that it is not an order or instrument made or executed by the President.

 Thus we see that in the 1946 Ceylon Constitution Order in Council, the first Republican Constitution of 1972 and the second Republican Constitution of 1978, and even in the Indian Constitution, the actions of the head of the executive had always been given immunity from litigation. If the actions of the executive can be subject to litigation, then it can be argued that the final arbiter if not the wielder of executive power will be the judiciary and not the executive. The immunity of the President from suit was removed on the argument of limiting the President’s executive power. That gives the impression that before the 19th Amendment was passed there were no limits on the President’s executive power.

 

President never had unlimited power

 Two Supreme Court cases presided over by former Chief Justice Sarath N.Silva indicate otherwise. The 2006 landmark judgment in Nallaratnam Singarasa vs the Attorney General stated as follows:

“The President exercises the executive power of the People and is empowered to act for the Republic under Customary International Law and enter into treaties and accede to international covenants However,… such acts cannot be inconsistent with the provisions of the Constitution or written law. This limitation is imposed since the President is not the repository of the legislative power of the People…. such a treaty or a covenant has to be implemented by the exercise of legislative power by Parliament and where found to be necessary by the People at a Referendum to have internal effect…where the President enters into a treaty or accedes to a Covenant which is “inconsistent with the provisions of the Constitution or written law”… such act of the President would not bind the Republic qua state….”

Then there was the famous Waters Edge judgment of 2008 (Sugathapala Mendis and Another vs Chandrika Kumaratunga and Others) where it was stated as follows:

 “The principle that those charged with upholding the Constitution – be it a police officer of the lowest rank or the President – are to do so in a way that does not “violate the Doctrine of Public Trust” by state action/inaction is a basic tenet of the Constitution which upholds the legitimacy of Government and the Sovereignty of the People. The “Public Trust Doctrine” is based on the concept that the powers held by organs of government are, in fact, powers that originate with the People, and are entrusted to the Legislature, the Executive and the Judiciary only as a means of exercising governance and with the sole objective that such powers will be exercised in good faith for the benefit of the People of Sri Lanka. Public power is not for personal gain or favour, but always to be used to optimize the benefit of the People. To do otherwise would be to betray the trust reposed by the People within whom, in terms of the Constitution, the Sovereignty reposes. Power exercised contrary to the Public Trust Doctrine would be an abuse of such power and in contravention of the Rule of Law.”

 The Water’s Edge judgment also quoted a previous 1998 judgment by Justice Mark Fernando, Karunathilaka v Dissanayake which stated as follows: “The immunity conferred by Article 35 is neither absolute not perpetual….Article 35 only prohibits the institution (or continuation) of legal proceedings against the President while in office; it imposes no bar whatsoever on proceedings against him when he is no longer in office…To hold otherwise would suggest that the President is, in essence, above the law and beyond the reach of its restrictions. Such a monarchical/dictatorial position is at variance with (1) the Democratic Socialist Republic that the preamble of the Constitution defines Sri Lanka to be, and (ii) the spirit implicit in the Constitution that sovereignty reposes in the People and not in any single person.”

 

Keeping yahapalana overkill in check

 All these cases were heard long before the 19th Amendment. Thus the proviso to article 35(1) introduced by the 19th amendment enabling fundamental rights cases to be filed against the AG over actions taken by the President was clearly a case of yahapalana overkill. The removal of this proviso and the restoration of the pre-19th Amendment Article 35 does not turn the President into an autocrat. It just provides the executive branch of the government the leeway to exercise the powers vested in the executive. While it’s true that former presidents in Sri Lanka have been accused of being authoritarian, the same accusation has been levelled at former Prime Ministers like Mrs. Sirima Bandaranaike. Much the same thing was said about Mrs. Indira Gandhi as well.

 The person holding the title and functions of head of the government can be as authoritarian or as liberal as he or she is inclined to be. In fact it may be argued by some that Prime Ministers have even greater potential and incentive to be authoritarian because no Prime Minister in the world seems to have term limits whereas almost all presidential systems do have term limits. Even the 20th Amendment will retain the two term limit for the President. Lee Kuan Yew was a Prime Minister but he too was accused of being authoritarian. It just so happens that Presidents tend to attract more charges of authoritarianism than Prime Ministers even though everyone knows at the back of their minds that Prime Ministers who are heads of government can be as every bit as authoritarian as any President holding the position of head of government.

 It’s interesting to speculate on why this is so. Is it because the President sits and does his work in grand isolation whereas the Prime Minister sits in Parliament with everyone else and is available to be heckled and booed at? Is it because the President once elected, is very difficult to remove whereas the Prime Minister (at least theoretically) can be thrown out at any moment through a Parliamentary revolt? It has to be noted that under the presidential system introduced by the 1978 Constitution, the President cannot rule without the support of Parliament. In 2001, at a time when President Chandrika Kumaratunga possessed all the powers of J.R. Jayewardene’s presidency, her party lost a parliamentary election and lost her majority in Parliament. She gave all powers to the newly elected Prime Minister Ranil Wickremasnghe and took a back seat for a while. Despite all the hype about authoritarian Presidents, the fact is that both Presidential heads of government and Prime Ministerial heads of government that this country has had in the past, have been completely dependent on Parliamentary majorities to govern. No President can override Parliament even under the pre-19th Amendment 1978 Constitution.

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