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Draft 20A: The Urgent and not so Urgent

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by C.A. Chandraprema

The draft of the 20th Amendment has now been Gazetted. Formulating a completely new constitution instead of making interim amendments to the existing one, is undoubtedly what most prefer. However, there are one or two constitutional issues which cannot wait until a new constitution is drafted and have to be attended to immediately. The first such issue pertains to a matter that has gained very little public attention but was exclusively highlighted in this column in July this year. This has to do with the composition of the all-important Constitutional Council which has the final say in making appointments to high state positions such as that of the Attorney General and Judges of the Supreme Court and independent commissions such as the Elections Commission and the Public Services Commission.

 The Constitutional Councils appointed in 2015 and 2018 were aberrations because the yahapalana government made up of the UNP and the SLFP and the yahapalana opposition made up of the TNA and the JVP shared all the positions on the Constitutional Council among themselves. The CC established in 2018 is set to continue till October 2021. If this issue is not addressed immediately, the defeated yahapalana opposition will have complete and total control over the process of making appointments to important state positions and independent commissions until October 2021.

According to the 19th Amendment, the Constitutional Council is made up of the Speaker (Chairman) the Prime Minister, the Leader of the Opposition, one Member of Parliament appointed by the President,  five persons appointed on the nomination of both the Prime Minister and the Leader of the Opposition of whom two persons shall be Members of Parliament, and one Member of Parliament nominated by agreement of the majority of the Members of Parliament belonging to political parties, other than the respective political parties to which the Prime Minister and the Leader of the Opposition belong.

 

Yahapalana Constitutional Council

 

Accordingly, the present Constitutional Council is composed of the following persons. Speaker Mahinda Yapa Abeywardana (Chairman), Prime Minister Mahinda Rajapaksa, Opposition Leader Sajith Premadasa, President’s nominee Mahindananda Aluthgamage, nominees of the PM and the Opposition Leader R. Sampanthan, Thalatha Atukorale, Naganathan Selvakumaran and Javed Yusuf. Two seats are vacant. Bimal Ratnayake who represented the smaller political parties in Parliament was defeated at the Parliamentary election and has not been replaced, and Jayantha Dhanapala who resigned from the CC has not been replaced. If we assume for the moment that the two vacancies will not be filled, we see that of the remaining eight members, no less than five are yahapalanites and only the Speaker, the PM and the President’s nominee represent the ruling SLPP led coalition.  

 R. Sampanthan, Thalatha Atukorale, Naganathan Selvakumaran and Javed Yusuf are on the CC by virtue of the fact that they were appointed in 2018 by the yahapalana government and yahapalana opposition working in collusion. Sampanthan was appointed to the Constitutional Council in April 2019 as a concession granted to him when Mahinda Rajapaksa became the Opposition Leader. Thalatha Athukorale was appointed to the CC earlier in 2018 as one of the five nominees who are appointed jointly by the PM and the Opposition Leader. Now that they have been re-elected to Parliament, they are serving out the remainder of their three year fixed term which they are entitled to under Article 41A(8) of the Constitution. The CC is not a Committee of Parliament but a body that stands outside it even though it is made up mostly of parliamentarians. Members of the Constitutional Council appointed in 2018 who have fixed terms continue to function even if Parliament is dissolved and a new Parliament is convened and the Members of Parliament who survive the election can serve out the remainder of their terms in the new parliament.

 The nominee on the CC representing the President was Mahinda Samarasinghe. He too had a fixed three year term under Article 41A(8) and he has been re-elected to Parliament, but he has been replaced by Mahindananda Aluthgamage. The only way such a change can be made would be on the grounds that the President has changed so the individual representing the President on the CC also has to change. However no provision has been made in the Constitution to make such a change and one has to go by the wording of Article 41A(1)(d) which states that the CC has to have one Member of Parliament appointed by the President. By implication, such an appointee cannot be the person who was appointed by the former President.

 

But there’s no such luck when it comes to the five members of the CC appointed jointly by the Prime Minister and the Leader of the Opposition, two of whom should be MPs. All these appointees have fixed three year terms under Article 41A(8) and they cease to be members of the CC only if the member resigns or is removed from office on both the Prime Minister and the Leader of the Opposition forming an opinion that such member is physically or mentally incapacitated and is unable to function further in office or is convicted by a court of law or if he loses his civic rights. There is no provision for such an appointee to be removed from the CC when the PM and the Opposition Leader changes. Thus Thalatha Athukorale and Sampanthan continue to sit on the CC. The majority of MPs belonging to the smaller political parties in Parliament to which neither the PM nor the Leader of the Opposition belong are yahapalanites and if they nominate a replacement for Bimal Ratnayake, that nominee will be another yahapalanite.

 The replacement for Jayantha Dahanapala, since it will have to be made jointly by Prime Minister Mahinda Rajapaksa and Opposition leader Sajith Premadasa, may be a neutral person but it will not help to correct the imbalance in the CC. There will be just three SLPP members and one neutral person as against six yahapalanites. There is the danger that the yahapalanites on the CC will stuff the so called independent commissions full of yahapalanites as they did in 2015 and 2018, thus subverting the people’s mandate of 2019 and 2020. Under Article 41B (4), if the President does not appoint the members of the independent commissions recommended by the Constitutional Council within 14 days, they will be deemed to have been appointed automatically at the end of that period. It takes little imagination to see the immediate danger posed by these provisions.

 The Elections Commission will have to be reappointed in November this year, and it’s imperative that the present Constitutional Council be abolished by then. The 20th Amendment seeks to replace the present Constitutional Council with a five member Parliamentary Council made up of the Prime Minister, the Speaker, the Leader of the Opposition, a nominee of the Prime Minister, who shall be a Member of Parliament, and a nominee of the Leader of the Opposition, who shall be a Member of Parliament.

 

The President’s defence responsibilities

 

Another situation that should not be allowed to persist until a new constitution is drafted is the question whether the President can hold the defence portfolio or not. The drafting of a new constitution may take at least a year given some of the contentious issues like electoral reform that will have to be negotiated. There is no express prohibition in the 19th Amendment on the President holding portfolios. The supposed prohibition is by implication. Before the 19th Amendment, there used to be Article 44(2) in the Constitution which stated 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. That provision was dropped when the 19th Amendment repealed and replaced Chapter Eight of the Constitution. There was also a transitional provision in the form of Section 51 of the 19th Amendment Act which stated that Maithripala Sirisena, so long as he held office as President, may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment.

 The disappearance of old Article 44(2) and Section 51 of the 19th Amendment Act taken together are supposed to imply that the Presidents coming after Maithripala Sirisena cannot hold any portfolio – not even the defence portfolio. Yet as the Constitution stands even after the 19th Amendment, the President is the Head of the State, the Head of the Executive, Head of the Government and Head of the Cabinet of Ministers in a situation where Article 4(b) states that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President. We see that Article 46 of the 1946 Constitution named certain ministries that had to be established such as the Ministry of Justice, Ministry of Finance and the Ministry of Defence and External Affairs. Our present Constitution does not name any ministries that have to be established.

According to our Constitution, the executive is made up of the President and the Cabinet and the President appoints the secretaries to all ministries. So long as the President and Cabinet are of one mind, it may be possible to have a defence ministry run by its Secretary without a Gazetted Defence Minister as such. In such an instance, the defence secretary will be acting under the instructions of the President and the Cabinet. The only hitch will be when the defence minister is required by legislation to sign certain documents in his capacity as the minister of defence or the minister in charge of a certain function. But such areas can be assigned to the State Minister of Defence and theoretically, a patchwork arrangement of that sort can be continued until a new constitution is passed.

 But it’s a moot question as to whether it is advisable to carry on in such a manner for an extended period of time especially with regard to a matter as important as defence. The SLPP won the presidential and parliamentary elections on a public security and law and order ticket. Minister of Education Prof. G.L.Peiris has been addressing public gatherings arguing for the immediate rectification of this situation which has cast doubts on the President’s ability to hold the defence portfolio. This together with the Constitutional Council issue highlighted earlier can be named as the two issues that cannot wait until a new Constitution is drafted and needs to be resolved as soon as possible. The draft 20th Amendment has sought to resolve the defence ministry issue by restoring the old (pre-19th Amendment) Article 44(2) which stated 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.

 

Issues that can wait

 

In the medium to long term, the most dangerous aspect of the 19th Amendment is the total prohibition on the dissolution of Parliament until the lapse of four and a half years unless a resolution to that effect is passed by Parliament with a two thirds majority. Before the introduction of the 19th  Amendment, the old Article 70(1) of the Constitution stated that the President could dissolve Parliament at his discretion, and the only restriction on this power was if the last parliamentary election had been held as a consequence of the President having dissolved Parliament at his discretion, he could not dissolve the next Parliament until the lapse of one year from the date of that Parliamentary election. Moreover, under the old Article 70(1), Parliament could dissolve itself by a resolution passed by a simple majority and if the government cannot get the budget passed after two attempts, the President was mandatorily required to dissolve parliament. 

 But now, we have a Parliament that cannot be dissolved for four and a half years regardless of anything that may happen within Parliament, even if the government suffers repeated defeats at no confidence motions, if their budgets or statements of government policy are repeatedly defeated, there is no provision to dissolve Parliament to hold fresh elections unless a motion is passed by a two thirds majority in Parliament requesting dissolution. This can lead to a paralysis of the entire government. However, since the present government has an overwhelming majority in Parliament, rectification of this issue can wait till the new constitution is drafted, but since the rectification of this needs only the simple measure of repealing the yahapalana Article 70(1) and restoring the old article 70(1), there is perhaps no harm in doing that through the interim amendment.

 One of the provisions in the 19th Amendment that had a serious impact on the yahapalana government was the diarchy that it created by Article 43 which said that the President could at his discretion determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers, but was required to mandatorily consult the Prime Minister when appointing MPs to those ministerial positions. Thus the Prime Minister became the effective appointing authority of Ministers. Wimal Weerawansa described this as a situation where the President was wearing the shirt and the Prime Minister the trousers with neither of them having a full set of clothes!

For any political party other than the SLPP, this provision would have had serious consequences. But the SLPP will not have any issues so long as the Rajapaksa brothers hold those two positions. The recification of this issue could have waited till the new constitution was drafted, but the 20th Amendment seeks to rectify this by restoring the old Article 44(1) as it stood before the 19th Amendment – which will give the President the power to determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers and to appoint MPs to those positions after consulting the PM if he deems such consultation to be necessary.

There are other issues too that could have been put off till the new constitution is drafted, such as lifting the yahapalana ban on dual citizens contesting elections, and reducing the age limit for contesting presidential elections. Provision also has been made in the 20th Amendment to restore the urgent Bills procedure whereby if the Cabinet of Ministers certifies a Bill as urgent, the need to gazette the Bill 14 days before it is presented in Parliament can be dispensed with and the President can write to the Chief Justice, requesting a special determination of the Supreme Court as to whether the Bill is inconsistent with the Constitution and the Supreme Court is required to deliver their determination within 24 hours or a period not exceeding three days as specified by the President.

 One area where the new Article 122 differs from the old (pre-19th Amendment) Article 122 is the inclusion of a new sub-Article 122(3) which specifies that Bills to amend the Constitution cannot be deemed to be urgent Bills.  Another significant change to be made by the 20th Amendment is the dropping of the limit of 30 cabinet ministers and 40 non-cabinet ministers and deputy ministers introduced by the 19th Amendment. We see from the foregoing that what the 20th Amendment aims at is restoring the status quo ante, as things stood before the 17th, 18th and 19th Amendments. Some of these obviously can wait until the new constitution is drafted, but the first two issues mentioned in this column obviously need immediate attention. Going by the public pronouncements of members of the Cabinet Sub-committee on constitutional reform, such as Prof. G.L.Peiris, they too have prioritized certain areas such as the defence ministry issue which has wide ramifications for public security, the urgent Bills issue, and the Constitutional Council issue.



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Sumanthiran on what the budget does and does not do

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Speech made November 22

I have consistently recorded my opposition to Minister of Finance being the President. From 2010 onwards in this House, whenever the President in his capacity as Minister of Finance has presented a budget I have recorded that protest and I wish to record that today as well. When a person who is not a Member of this House presents the budget as the Minister of Finance, that seriously curtails this House’ ability to be in total control of public finance as the Constitution stipulates in article 148.

This also exposes another thing this time: And that is there’s a 21st amendment to the constitution that, was said to be going back to the 19th amendment – that is doing away with the 20th amendment – and that has been pointed out during that debate. It doesn’t really do that. Under the 19th amendment to the constitution the president could not hold any ministries; not even the ministry of defence.

For the tenure of that president at that time, personal to him, to President Maithripala Sirisena, three named ministries were permitted in the transitional provision. Thereafter the president couldn’t hold any ministries. But now the President actually can hold any number of ministries. In fact he can hold all the ministries. So this is another occasion on which we can expose that lie to the country that some reform was made that executive powers were curtailed through the 21st amendment. No! no such thing was done.

Even the one positive thing that is being touted is the re-establishment of the constitutional council. That also, we pointed out, is a political body, is not a 17th amendment constitutional council. More members are from this House which makes it political, and that body starts with the appointment, amongst others, independent commissions. And in the last couple of days we found how this supposed independent commission chairmen have behaved. We saw the National Police Commission Chairman going to the VIP launch to receive a person who was chased out of this country, for fraud, for large scale corruption. And who else but the chairman of the National Police Commission is there bowing in two, and welcoming him back.

A few days before that we heard the chairman of the Office of Missing Persons, saying that only a few people went missing and all of them are living abroad. Now that very office was established to investigate missing persons. And the government commissions, there are many, all of those commissions have reported that over 20,000 people have gone missing. That’s a conservative number. And the chairman of the office that is appointed, supposedly an independent office, says nobody has gone missing.

And then the Honourable Minster of Justice explains and says “No he’s wrong, because he hasn’t understood the Government’s priority. The government has prioritised reconciliation measures which must deal with the issue with disappearance also and unfortunately this chairman does not know that.” Now that creates another problem. Why should an independent office chairman know what the government’s priorities are? If he is independent, why should he comply with what the government wants to do today? The government will not want to do that tomorrow, the government changes its mind, day to day but if this is an independent office and he has been tasked by law to make investigations into this several thousands of disappearances in the country, and this is what he says.

So this 21st amendment was just an eyewash, really did not make anything independent in the country, nor did it strip the President of any executive powers. That said, let me turn to the budget proposals. I want to concentrate on one matter, and that is with regard to the EPF. The EPF is Sri Lanka’s single largest fund, this fund has been dipped into and there are serious allegations of fraud and corruptions in the way investments have been made out of this fund. There have been five forensic audits conducted, but no action has been taken to date. The last annual report of this fund is 2016, forensic audits have revealed massive frauds, into earnings and savings by the working force of this country, and not a muscle has been moved; nothing has been done to date with regard to taking action on this.

I am highlighting this because the economic crisis that we are facing in this country is primarily due to corruption. And that is why the IMF in its report have said “there are corruption susceptibilities” and that is one of the challenges for the IMF in implementing their programme in this country. The President or the Finance Minister in his budget speech said that’ll be dealt with; the corruptions, but where? Nothing has been done.

The other issue is with regard to the office of the Attorney General, who advises the government, who appears on behalf of the government, who defends the government even when the Right to Information Commission orders the Central Bank to divulge certain information the Central Bank appeals, and the Attorney General appears. Now these are pubic funds, these are monies of people of this country. There is absolutely no transparency; evidently large scale corruption and fraud and all that is covered up by the government, by the Central Bank , by the EPF and by the Attorney General gives absolute sanction to cover it up.

Now with that background, how do we get out this economic crisis? The government pays lip service, but every action of the Government demonstrates the opposite. Earlier this morning the Hon. Anura Kumara Dissanayake cited the case of a Minster who asked an Ambassador for a bribe, that was reported, he was suspended from the cabinet, and he got a committee of his choice appointed which exonerated him. And he is back in the cabinet, now to add insult to injury that very minister has been appointed as the President’s nominee on the Constitutional Council which is supposed to appoint independent commissions – handpicked , handpicked because there is no one who is up to that mark, in the cabinet.

Now who has the brass to go and ask an Ambassador for a bribe? I suppose the other ministers are a little less corrupt. So you have to pick the most corrupt, to appoint to the Constitutional Council. You have a convicted extortionist as a Chief Government Whip. So how do we then tell either the IMF or anyone else that we are dealing with corruption? The Government has really no intention of doing any of that sorts, the President has no intention. Because these are President’s appointments, so you say one thing but you do just the opposite.

here is a book written by V.P.Vittachi – a small blue colour book, I have read some time ago on President Jayewardene’s conduct – its called “Sri Lanka – what went wrong?” And Mr. Vittachi coins a word and calls it “plonking”.

He says President Jayawardene will say “I am turning right” this is the right way to go – I am turning right, and he will turn left. All the while he will insist, while travelling. “no ,no I am travelling right” that is plonking. Now the incumbent President learnt his political lessons from President Jayewardene. And one wonders whether that is what he is now practising, saying “we are dealing with corruption” but doing the very opposite to what will eradicate corruption.

The Tamil National Alliance’s Parliamentary group met today, and we took certain decisions with regard to this budget. We have highlighted various shortcomings, matters that are contrary to the well-being of this country, Particularly the high percentage of allocation to the defence sector. The country’s economy is contracting. Various fundamental service sectors are contracting, are reducing. Whilst in the last two years the allocation for the defence sector has been increased by 12 %.

Now this is not salaries and recurrent expenditure that is necessary. You must only visit one of the camps to see the high life that go on there. To test it out I went with the President and had lunch at the Vavuniya Air Force camp. The lunch is of a standard that is higher than what you can get in a seven star hotel. Nothing has come down. No one wants to touch that. The ceramicware, the food, everything. Nobody wants to touch that. You tell the country 70 % of our people have dropped one meal. 50,000 children are in danger of malnutrition. Government may deny it. But those are the real facts, and you want to keep the military happy. You don’t want to upset them. So that you can suppress dissent, so you can suppress people who protest that they don’t have food to eat. Now all of this is there and at a time like this one would have expected a programme through this budget to lift this country out of the economic crisis and it is not there, so we are opposed to this budget.

But for one reason, we took a decision today not to cast our vote on opposition. That is due to the reason that the President has in the last couple of days repeatedly said that he is taking steps to resolve the long standing Tamil National Question. Although we are sceptical – it is not because we trust it, but we don’t want to be blamed for opposing a President when he says “I want to solve this, come let’s sit down and talk” so for that very reason, we will today not cast our vote against this budget.

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The TNA’s position on Ranil Wickremesinghe

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By Uditha Devapriya

A Budget vote usually shows which parties support the government and which do not. Barring the Dullas Alahapperuma faction, the SLPP voted en masse for the second reading of the recent Budget. Except for MPs like Duminda Dissanayake, the SLFP voted against it. Despite some ambivalent, vague remarks from its MPs, the SJB also voted against it, with Sajith Premadasa outlining alternative policies that this government has not bothered to consider, let alone debate and discuss. For a while, it seemed as though the minority parties, especially the Tamil ones, would follow. Yet they have refused to do so.

The rationale of the mainstream Tamil parties is interesting. In recent weeks, President Ranil Wickremesinghe has signalled his intention to resolve the National Question. Some of his more recent moves, including the establishment of a Northern Province Coordination Sub-Office of the Presidential Secretariat, suggest that he is utilising the National Question to win favour and support from these parties. The fact that he located the Sub-Office, not in the fertile Jaffna District, but in the poorer Vavuniya District, shows that he is conscious about the cosmetics of what he is doing. Indeed, at the opening ceremony he observed that the government is seeking a solution in the North “that is acceptable to all.”

The minority parties have reacted accordingly. Having originally criticised the Budget and resolved to vote against it, the Tamil National Alliance soon reversed course. The TNA’s M. A. Sumanthiran declared that they would not oppose the Budget, stating that the President had repeatedly said that he wants to resolve the National Question and that he had invited Tamil parties to discussions. Sumanthiran did admit that they had “publicly expressed our scepticism”, but added that “nevertheless, when there is a hand that is stretched out from the President himself, we thought we must reciprocate in some way.” The TNA later elected not to take part in the voting process for the second reading.

Sumanthiran justified his party’s stance on the basis that it was a “signal of our bona fide on this matter.” Tamil parties have consistently flagged reforms relating to devolution and regional development. It is only understandable that they should revise their earlier position when the country’s President signals his desire to resolve these matters.

President Wickremesinghe’s record on minority rights is by no means clear-cut. Yet for the TNA, he appears to be a better bet, and a better deal, than the Rajapaksas. The issue here, which the TNA may be aware of, is that Mr Wickremesinghe is heading a government that is dominated by a party belonging to a family which most minorities view with disfavour. The flip side to this argument is that President Wickremesinghe calls the shots, and as such he is in a position to enlist the support of the party, and that family, for reforms relating to ethnic grievances and minority rights. So long as they think that the President will implement these reforms, Tamil nationalist parties will support him, however cautiously.

The Tamil National Alliance has had a long and tenuous history with Ranil Wickremesinghe. On two occasions, in 2010 and 2014, it supported a candidate fronted by Wickremesinghe’s party, the UNP. On both occasions, Wickremesinghe declined to contest and supported a common opposition candidate against the incumbent. In 2010 the TNA supported the army commander who led the war against the LTTE. The party did not mind this, given that they viewed the Rajapaksas as the bigger evil. In 2015 the TNA supported one of Mahinda Rajapaksa’s former Ministers, despite that Minister claiming in international media that should he become president, he would not immediately phase out the army or remove army camps from the north and east. There too, the party followed a strategy of siding with its enemy’s enemy.

The TNA has very few objectives which it shares with other parties. It wants devolution of power, regional development, and radical constitutional and structural reforms. Among these reforms is one objective that tallies with the aims of liberal and left-liberal parties, the abolition of the Executive Presidency and its replacement by a parliamentary system. This, too, the TNA views as crucial to its objective of greater devolution: once the Presidency is abolished in toto, so the reasoning goes, it will become easier to devolve more powers to the periphery. It helps that the UNP’s willingness to capitulate to these demands over the last quarter-century, since 1999, has turned the TNA into a cautious partner.

This is despite the UNP’s less than stellar record on ethnic relations. Certainly, as the recent election of a second-generation Indian immigrant as British Prime Minister shows that ethnic politics, however progressive it may be, can often camouflage class issues. That is what we are seeing here today. Other Tamil political formations have demarcated the TNA, and like-minded parties, as regressive and reactionary. The excuse that the TNA have trotted out for their past choices – such as their support for Sarath Fonseka – that they prefer the lesser evil, pales away when you consider that, when it comes to the political establishment in Sri Lanka and its record on minorities, there has never been a lesser evil.

I think the Tamil Left, and more so the Indian Marxist Left, were more prescient in these matters than bourgeois Tamil parties. Even Left parties like the LSSP got most of it right in their analysis of the upsurge of Tamil nationalist sentiment in the 1970s: their argument basically was that if they were not anchored in class politics, such sentiments would soon evolve into fascistic movements. This is what the LTTE eventually became: as The Economist put it, they were for all intents and purposes “classically fascist.” That these parties today prefer right-wing, neoliberal outfits to centre-left and social democratic alternatives shows that they are yet to escape their past. In that sense, their recent moves vis-à-vis the Budget, and President Wickremesinghe, reveals that they have a long way to go.

The buck doesn’t stop there, however. For decades, the TNA, together with sections of civil society, the liberal and left-liberal intelligentsia, and sections of the New Left, have dabbled in tinkering with the Constitution. The reforms they have proposed, such as the abolition of the Executive Presidency, have provoked predictable nationalist opprobrium, but also more thoughtful and constructive responses elsewhere. My criticism of these proposals generally tallies with those latter responses: I understand where calls for these reforms come from, but firmly believe they are not only impractical given the geopolitical situation we are in, but also not an urgent imperative for the country’s democratisation.

Indeed, if the recent electoral Pink tides in Mexico, Peru, Colombia, and Brazil should tell us anything, it’s that reforms should first address economic grievances before engaging in broader political and constitutional changes. At the end of the day, the National Question in Sri Lanka is an eminently economic one. If we are to consider it, address it, and resolve it constructively, we need to assess its material dimensions better. And yet, barring relentless talk of devolution and the abolition of the presidency, there has been very little discussion about, say, spurring industrialisation and manufacturing, or achieving growth with equity (the Premadasa paradigm) in the north and east.

It’s not the Tamil parties only, of course. The New Left’s actions, especially its isolationist tactics, are problematic too. But while the JVP and the FSP have declared that they want to walk it out alone, the TNA has, over the years, built a reputation for band-wagoning with right-wing parties which have failed to deliver any benefits for the country or its minorities. As Dr Dayan Jayatilleka has note in a recent essay, Marxist Tamil politicians, from Comrade Sanmugathasan to Pathmanabha, warned against allying with reactionary and pro-Western parties. But this is precisely what the TNA has been doing for the last quarter-century, going as far as to oppose the People’s Alliance government, despite the many ambitious reforms it proposed, like the merger of the North and East, in deference to the UNP.

To be fair by the TNA, its MPs have unequivocally stated that they will not support the government if it does not deliver on its promises. Yes, it seems something of a stretch to think that the present political setup is conducive to the reforms that minority parties want. Nevertheless, even if we grant that the SLPP and the UNP are sincere in their desire to address and engage with minority grievances, the TNA should know that the resolution of those grievances, relevant as they are to the resolution of Sri Lanka’s National Question, is by itself not enough. Whatever constitutional reform package the government has, even if it appeases minority parties, needs to be buttressed by cohesive, inclusive, and progressive economic policies. Whether the government has such policies in place remains to be seen. Its actions over the last few months suggest that it does not.

The writer is an international relations analyst, researcher, and columnist who can be reached at udakdev1@gmail.com

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Only a temporary reprieve

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The Supreme Court’s determination on the constitutionality of the Bureau of Rehabilitation Bill 

By Ambika Satkunanathan

The Supreme Court’s determination on the constitutionality of the Bureau of Rehabilitation Bill was met with relief last week. While the determination affirms many fundamental principles and constitutional protections, it provides only a temporary reprieve. Human rights activists and legislators who are concerned about the state’s attempts to restrict human rights through laws and institutions should maintain vigilance with regard to this proposed law.

The submissions of the Deputy Solicitor General reveal the government’s thinking on this issue; it exhibits contempt for basic legislative principles and highlight the absence of evidence based policy making that has the well being of the public at its core.

The Supreme Court, in no uncertain terms, found that vague provisions in the proposed law prevent the public from understanding the ambit of the law and stated that if government authorities are “cloaked with power under vague provisions” it can lead to arbitrary action since the officials themselves will not know the extent of their powers.

In response to the Deputy Solicitor General’s submission that the court should consider the provisions as they exist and not speculate whether the law can result in an arbitrary exercise of power during implementation, the court affirmed it has jurisdiction to consider the threat of potential abuse of proposed laws. The court stated it does not have to await actual or imminent infringements by the implementation of the law if the concerns are based on “plausible possibilities”.

At a time when the government is weaponizing the law to restrict fundamental rights, the importance of these assertions by the court, which reiterate that law is made for the public, and hence the public should be able to understand the extent of its application, cannot be overstated.The government justified the (over) broad definitions in the proposed law on the basis it was not possible to be specific because the rehabilitation provided would depend on the category of persons to whom it was being provided. This illustrates the government had little or no idea about who was to be rehabilitation or how when it drafted the law.

The court did not accept the Deputy Solicitor General’s argument that future specific laws would define the category of persons who could be subject to rehabilitation, and said that would be a “dangerous route” to take, thereby recognizing the need for certainty in the ambit of the law.

The government’s claim it will draft laws in the future to specify who will be rehabilitated sounds disingenuous because even at present, there are laws that the government can utilize to send persons to rehabilitation such as regulations issued under the Prevention of Terrorism Act for the rehabilitation of former LTTE combatants.

A few critical issues however remain unresolved even following the Supreme Court’s determination. Although the court examined whether the provisions of the Bill are clear and whether there are adequate safeguards “for the achievement of the objective of the Bill” to prevent arbitrariness in the decision making process, the objectives themselves are problematic.

For instance, the cabinet memorandum on the Bill, which the court referred to and seemed to accept, proposes (compulsory) rehabilitation instead of imprisonment. Yet the reality is that where drug dependent persons are concerned, neither method leads to impactful outcomes. The cabinet memorandum further presents (compulsory) rehabilitation as a solution to prison overcrowding.

In reality, the solution that will lead to meaningful outcomes is the decriminalization of personal drug use and treating it as a health issue by providing voluntary, community-based solutions; not the establishment of more places of detention at which human rights can be violated.

The court states that the Bill’s inconsistency with the constitution shall cease if references to ex-combatants, violent extreme groups and “any other group of persons” are deleted, and Bill is limited to “drug dependent persons” and “such other persons as may be identified by law”. The court proceeds to accept that consent to rehabilitation must be without “duress, coercion or undue influence” and not as “an alternative to protracted remand”. Yet, at the same time, it accepts a contrary position, i.e. that (compulsory) rehabilitation (without consent) is possible through a judicial order.

Globally, including in Sri Lanka, evidence shows that compulsory rehabilitation is counter-productive and leads to quicker relapse. Further, compulsory rehabilitation contravenes human rights standards. It is due to this reason, the UN has repeatedly called upon countries to cease compulsory rehabilitation. The violation of fundamental rights during compulsory rehabilitation is hence not a “fanciful hypothesis” as there is documented evidence to that effect, especially at the military run centers at Kandakadu and Senapura.

The court also does not recognize right of a drug dependent person to leave treatment whenever they choose. Instead, the court says that steps have to be taken to apprehend persons leaving without authorization. Moreover, the court states that the issue of leaving rehabilitation when a person wishes has to be dealt with in regulations issued under the law.

However, if rehabilitation is not punitive, as claimed by the state, persons should be able to enter and leave rehabilitation voluntarily and any law enacted should be only to regulate the functioning of such centers to ensure they adhere to standards related to conditions, maintenance of records and confidentiality, much like the regulation of private healthcare providers.

While the court cannot rule on existing laws, it’s view that the current law dealing with drug dependent persons, i.e. the Drug Dependent Persons (Rehabilitation and Treatment) Act, provides curative means to deal with drug dependence does not align with evidence. Both in principle and practice, the current law is punitive, not curative. The abusive nature of the current law has to be studied in the context of proposed amendments to the Poisons, Opium and Dangerous Drugs Ordinance as well, because it expands the powers of the police and empowers them to refer a person to rehabilitation bypassing a judicial process.

This illustrates the state’s insidious attempt to extend its abusive tentacles, which the court has found to be unconstitutional. Simply put, if rehabilitation is voluntary, there is no need to empower the bureau to rehabilitate drug dependent persons. All that is required is for the government to dedicate resources to establishing centers, as well as ensure that existing centers adhere to human rights standards. Any law drafted to enable this would have to focus on the standards to which the centers have to adhere to ensure the rights of persons entering treatment voluntarily are protected.

The state has proposed the inclusion of once a month visits by the magistrate to the rehabilitation centers as a protection against torture. While this appears progressive, in practice, given the everyday nature of violence at the military run centers in particular, a monthly visit will do little to arrest deeply entrenched abuse.

Further, the purpose of law and processes should be to prevent abuse, rather than only to detect and address it after the abuse has taken place. Although the proposed new section also requires the magistrate to refer the case to the Inspector General of Police to commence an investigation into any cases of alleged torture, the historical failure to hold the police accountable and entrenched impunity raise grave doubts whether this will be adequate protection in practice.

The court reiterates there can be no derogation from the protection against torture enshrined in the constitution. Nevertheless, at the same time, it allows the provision that permits the use of minimum force to compel a person to obey lawful orders to remain intact. Since a person who is drug dependent will not be able to perform many functions during the withdrawal process due to physical and psychological changes they experience, this provision will allow the use of force for behaviour that is normal and to be expected during a withdrawal process.

This provision hence undermines the protection against torture guaranteed in the constitution. Additionally, the denial of evidence based and effective treatment options, such as harm reduction, and instead forcing persons to perform labour, may constitute inhuman treatment according to international human rights standards.

The cabinet memorandum on the Bill does not set out the empirical evidence on which the Bill is based. Nor did the Deputy Solicitor General make submissions in this regard. The result of disregard for evidence based policy making leads to the adoption of regressive positions on rehabilitation, such as labelling persons undergoing rehabilitation as persons with disabilities, which the court rightly states is inappropriate.

Interestingly, the Deputy Solicitor General submitted that the decision to involve the military in rehabilitation is a matter of policy and hence not within the purview of the court. The court found that since the cabinet memorandum on the Bill does not mention the involvement of the military, the Bill is not in line with the policy objective set out in the memo. The court further pointed out  the lack of clarity regarding military involvement, i.e., are they employees of the bureau, will the same disciplinary procedures apply to them? It is pertinent to note that through its argument to defend the involvement of the military in rehabilitation, the government has acknowledged that militarization is a government policy.

The Bureau of Rehabilitation Bill is just one building block in the state’s attempt to label certain social groups deviant, criminalize them based on their status/identity, use the law to arbitrarily detain them and subject them to a process of supposed rehabilitation. This process is militarized and will result in grave human rights violations.  Though containing many positive elements, the Supreme Court’s determination still leaves room for the proposed law to be used in relation to persons considered drug dependent persons, as it contains many provisions that will result in grave human rights abuses.(Groundviews)

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