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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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Politics

The Burghers of Ceylon/Sri Lanka- Reminiscences and Anecdotes

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Remembered Yesterdays

by J. Godwin Perera

“The Burghers were a riotous lot With song and dance and many a ‘shot’ Were drivers, guards in the Cee Gee Ar For higher jobs were below par”

This is only partly true. It was a small segment of Burghers who worked in the CGR and as they would have said ‘did a bloody, damn good job.’ But, there were Burghers and Burghers. Let’s give credit where credit is due. Higher in the social hierarchy were the Planters. Many, having been ruggerites in their colleges, it was an easy jump to the central hills where they were appointed as ‘Sinna Dorays’ (SDs) and later Periya Dorays (PDs) in the tea plantations. They had the endurance and intelligence to rule their kingdoms (‘Thottams’), very, very, successfully. Some ended up as CEOs in the head offices of the agency houses which managed the estates in which they worked.

There were other Burghers who adorned the pages of our nation’s history with outstanding contributions in areas ranging from the academic to sports. In what follows there may be errors and there will be omissions. For both a sincere apology is given.

On February 4, 1948, our Lion flag fluttered proudly in the freedom of newly won Independence. On July 31 of that year the Lion flag fluttered proudly at the London Olympic Stadium when Duncan White skimmed over the hurdles (400M) to claim the Silver medal. It was only 52 years later in 2000, at the Sydney Olympics, that our country won another medal – But that is another story. In fact it’s a story within a story. It was also at the London Olympics that Eddie Gray, the first head of the Ceylon Mounted Police, boxed in the Lightweight Class.

But Eddie Gray has to be remembered with a very sad incident four years later. Early morning on March 21, 1952 our first Prime Minister D. S. Senanayake suffered a stroke and fell off his horse while riding on Galle Face Green. Eddie Gray who was also riding on Galle Face Green, was quickly at the PM’s side. He took him to Central Hospital where the ‘Father of the Nation’ passed away on March 22.

In the academic field there are two names which will always be remembered by generations, past, present and future. The first was Edmund Blaze, founder of Kingswood College Kandy, which started as Boy’s High School in 1891 with just 11 pupils. It was Blaze who introduced rugby to schools. The first ever inter-school rugby match was between Kingswood and Trinity on August 11, 1906. Fittingly it ended in a six- all draw. Kingswood was also the first school to introduce rowing. On the Kandy lake? And one of the first to have a cadet platoon.

The second name is that of Prof. E.O.E. Pereira. He was the Founder Dean of the Faculty of Engineering at the University of Ceylon and quite appropriately referred to as the ‘Father of Modern Engineering Education in Sri Lanka’. He was later appointed Vice- Chancellor of the University of Ceylon, Peradeniya. It was Prof E.O.E. who was responsible for moving the Faculty of Engineering from its cramped space in Colombo to a more spacious and salubrious place within the Peradeniya Campus.

Think of authors. Think of Carl Muller. Dismissed from three schools, he ended up at Royal College, barely avoiding dismissal. In later life he blossomed to become a prolific and award winning author. His writings were exuberant, witty, sarcastic with a prominent vein of sexuality. He was best known for his trilogy – Jam Fruit Tree, Yakada Yakka and Once Upon a Tender Time. The first was published by Penguin Books and won for him the Gratiaen Memorial Prize in 1993.The State bestowed on him the title ‘Kala Keerthi’.

More famous is the Sri Lankan born, Canadian domiciled, multiple award winning, editor, essayist, novelist and filmmaker, Michael Ondaatje. His best known work ‘the English Patient,(1992)’ won him the prestigious Booker Prize. It was out of this prize money that Michael Ondaatje founded the Gratiaen Trust named after his mother Dorris Gratiaen and from this Trust came into being the Annual Gratiaen Award for the best English literary work written by a resident Sri Lankan. And now the curtain rises for that vivacious, attractive, actress, Jacqueline Fernandez, much in demand in Bollywood. She together with another Burgher- Alston Koch starred in the controversial movie ‘According to Matthew’ which was based on the life story of an Anglican priest (his first name was Matthew) who was convicted of murder. Army Commander from November 1966 to September 1967 was Major General B. R. Heyn. He represented Ceylon in cricket and can best be remembered for the One-Day match against the Australians.

 

The Burghers…

 

The scoreboard read Donald Bradman caught R. L.. de Kretser bowled B. R. Heyn – 20 runs. A perfect Burgher combination ! Col. F. C. de Saram was the doyen of cricket both as player and coach. Playing for Oxford University he scored 128 against the Australians of which 96 came in boundaries. He captained the Ceylon team from 1949 to 1954. But alas! Like another all time cricketing great, better known as ‘Satha’ ‘FC’ too had a spell in the Welikada jail. This was because he led a coup in 1962. He and his co-conspirators were sentenced to 10 years imprisonment. But on appeal to the Privy Council the sentence was overruled. ‘FC’ will be always remembered for cricket. Not the coup. On the subject of cricket mention must be made of another record. The Reid brothers who played for St. Thomas’s College in the 1960s. There were five of them – Claude, Ronnie, Buddie, Barney and Johaan.

Commissioner General of Prisons – C. T. (Cutty ) Jansz was Deputy Commissioner General when the notorious massacre of Tamil political prisoners took place in Welikade on July 1983. He valiantly tried, but could not prevent it. Many years later after retirement as Commissioner General in an interview about execution of prisoners sentenced to death, he stated about the ‘gut wrenching’ experience of having to witness a prisoner being hanged. ‘The whole prison mourns. It becomes a funeral house.’ Moving on to Doctors. There was Dr P. D. Anthonisz the first Ceylonese to obtain both the MRCP and FRCS qualifications. As a member of the Legislative Council he was mainly responsible for the construction of the railway line from Colombo to Matara. The land-mark clock tower in Galle Fort was erected in his memory by a grateful public. Then there was Dr Noel Bartholomeusz who very graciously gifted his Colombo 07 residence to the College of Surgeons of Sri Lanka. In the late 1960s Dr Noel became a surgeon by day and a patient by night. He had to undergo a dialysis procedure for 12 hours, three days a week in his home. This was done by his wife Nora. Next we come to Dr R .L. Spittel – often misspelt as Spittle. He can best be described as a city surgeon, jungle doctor and author. His knowledge of the of the Veddha community about whom he wrote, is unrivalled to this day. Wycherley International School along Bauddhaloka Mawatha was originally Wycherley Nursing home in which Dr R. L. Spittel had his practice. Justices of the Supreme Court – In the post-independence era alone there were six of them. But let’s refer to two. Oswald Leslie de Kretser III has another claim to fame. A species of fish- the mulpulutta kretseri was named after him. The other is Noel Gratien. It was due to his inspiration that the Warden of St Thomas’s – Cannon R. S. de Saram introduced Rugger into the sports curriculum.

Photographers- Dedicated to wild-life photography, Eric Swan while on a photographic safari in Thamankaduwa in the Polonnaruwa district observed a single elephant detached from the herd. The elephant turned and curled its trunk. Eric Swan clicked. It was his last photograph. It was the last moment of his life. The elephant charged killing him on the spot. But let’s not end on a melancholy note. Let’s consider the tasty, savoury, Burgher contribution to our cuisine. There’s Lamprais, and Rich Cake also called Christmas Cake, and Love Cake and Patties and Frickadel (meat balls, similar to cutlets) and Breudher and Milk Wine and yes indeed there’s that delicious sweetmeat served during Sinhala Avuruddha called Kokkis. The Burghers alas ! have left our shores. There are more Burghers in Australia than in Sri Lanka. And yet we know that in every Burgher heart there is a place which will forever be Sri Lanka. Once the vicious tentacles of Covid 19 have been untangled and the second wave has been calmed, they will come. In droves. Let’s greet them and say ‘Ayubowan.’

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A budget presented amid celebrations and acquittals

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by Malinda Seneviratne

Over the last few weeks there has been a concerted campaign in social media attacking President Gotabaya Rajapaksa. The ‘Gota Fail Campaign,’ as it was, promoted a strong response questioning the success of the President’s detractors. The campaign was clearly targeting the President’s first anniversary celebrations and the impending reading of the budget. The campaign failed or rather, now that the moment has passed, the campaigners have taken a break.

It was a week marked by celebrations. We had Mahinda Rajapaksa celebrating his 75th birthday. President Gotabaya Rajapaksa completed his first year in office and addressed the nation to mark the occasion. The first budget of the Government that came to power in early August was presented. Secretary to the then President (Mahinda Rajapaksa) Lalith Weeratunga (also the ex officio Chairman of the Telecommunications Regulatory Commission) and Anusha Palpita (former Director General, TRC) were acquitted of all charges of misappropriation by the Court of Appeal.

Quite a week, to say the least.

Ranjan Ramanayake, predictably, ridiculed Prime Minister and Minister of Finance Mahinda Rajapaksa ‘for not standing while presenting the budget.’ Leader of the Opposition Sajith Premadasa rapped Ramanayake on the knuckles for doing so, in a gesture of good grace rarely seen in Parliament.

Obviously, Mahinda Rajapaksa is no longer the energetic man he used to be. This of course does not necessarily mean he is infirm in mind. He still remains one of the most effective communicators in our tribe of politicians. He’s had his good days and bad ones, like anyone else. He receives praise and blame, which again indicates strong passion, fierce loyalty and, on the part of his detractors, equally intense sentiments which include envy, fear and disgust.

That said, as ‘The Gadfly,’ a regular contributor to the website www.theleader.lk observed, when the post-independence history of this country is written, there will be a special chapter devoted to Mahinda, whereas the likes of Ranil Wickremesinghe, Sajith Premadasa, Rajitha Senaratne an Wijedasa Rajapaksha would get, at most, a line or two. Again, depending on who is writing the history, someone might say. However, Mahinda’s’s mark is unmistakable and certainly hard to brush aside.

Some argued that he should have gracefully retired in 2015. Maybe he should have. On the other hand, ‘Mahinda Rajapaksa’ is not just a man but a brand and moreover a name that’s etched in the political consciousness of the nation, and, as the August 5 results indicated remembered with gratitude that obliterates memory of his blemishes. If Gotabaya Rajapaksa was captain-designate and Basil Rajapaksa the man chartering course, Mahinda Rajapaksa was the name of the ship (with a tagline, ‘Sri Lanka Podujana Peramuna’) and ‘MR’ a signature that was on every element of the vessel.

So, let us wish him, belatedly (on account of circumstances), a very happy 75th birthday, good times ahead, good health, continued guidance of his younger brother the President in matters political and restraint in deference to changed times and more importantly the leadership and power that is constitutionally granted to Gotabaya Rajapaksa.

The budget is still being debated. Predictably Harsha de Silva has come down hard on it. He tweeted, ‘the most boring budget speech in years,’ adding ‘…a weak n inspiring (he probably meant ‘uninspiring’) budget w totally unrealistic revenue figures…a shift towards protectionist n failed ‘Import Substitution Industrialization’ model.’ Having opened the debate for the Opposition, he then tweeted ‘a short edit’: 1. Figures fudged. 2. No stimulus package. 3. About to explode foreign debt issue ignored. 4. Import Substitution Model has failed; need bridges not walls.’

Now de Silva is a fear-mongerer if ever there was one. There was a time when again he was in the Opposition, when he would issue dire predictions of imminent economic collapse almost on a weekly basis. The man had to keep quiet when the UNP regime he was a part of mishandled the economy. He had nothing to say on the Central Bank bond scam.

He might have been thrilled when that regime wagered on the West coming to Sri Lanka’s help, but he didn’t contradict his then leader Ranil Wickremesinghe who, when ‘Brexit’ happened, suddenly said ‘we will look East.’ This after badmouthing China in the run-up to the January 2015 presidential election. We remember Harsha posting selfies with the Port City construction in the background at the time when his party was swearing to put a stop to the project. Finally, his government signed an agreement even less favorable to Sri Lanka. This was to be expected; after all the Yahapalana Government cheered itself while compromising sovereignty by way of Resolution 30/1 in Geneva. Anyway, neither de Silva, Wickremesinghe, Premadasa and pretenders to various political crowns now in the Opposition seem to have cottoned on to the fact that the USA is no longer the big boss in the global economy and that the sun set on the British Empire a long time ago.

Nevertheless, the onus is on the Government to respond to the charge that figures were fudged. As for the revenue plan, we will certainly assess it, realistic or otherwise, as time goes by. The rest is obviously Harsha rattling off received (non) wisdom about things economic.

Stimulus packages hinge on the erroneous premise that the private sector is the one and only engine of growth, where ‘growth’ itself is a concept that is contentious at best in the development discourse and has by and large been rubbished considering what that model has done to the world, the health of the planet and of course the most vulnerable sections in the global population.

Pertinent here, as has been editorially pointed out in www.gammiris.lk is Harsha’s myopia about the Bretton Woods institutions. Here’s a quote:

 

He (Harsha) does not seem to have gone through Nobel laureate Joseph Stiglitz’s Globalization and its Discontents, which talks in succinct detail how these institutions operate, particularly in underdeveloping countries. A pity, because Stiglitz took the trouble of writing on Sri Lanka, and more to the point, of cautioning the then administration against hedging its bets on the IMF-World Bank paradigm of, what else, “globalizing and liberalizing.’

Siglitz, interestingly, observed, that if Sri Lanka is to progress, it should start “learning to produce, learning to export, and learning to learn.” Harsha of course can’t think beyond the outdated and erroneous neoliberalism model. The budget has sought to empower local production. This is not the same as import-substitution, though. All framed by Covid-19, one must add.

It must be pointed out that the strategy laid out doesn’t make sense if the banking institutions are not focused on development. The Bretton Woods institutions have always been against development banks. There has been talk of setting up a cooperative bank, but the details are still to be worked out. This was an opportunity to get it down in black and white.

Meanwhile a delegation of the European Union and the Embassies of France, Germany, Italy Netherlands, and Romania issued a statement slamming the government’s trade policy, ‘with an obligatory non-sequitur to human rights,’ again editorially observed by ‘gammiris.’

‘Thanks to the EU’s special Generalized System of Preferences (GSP+), Sri Lanka enjoys competitive, predominantly duty- and quota-free access to the EU market,” they said. Trade, they pointed out, ‘not a one-way street,’ and observe (gravely) that ‘a prolonged import ban is not in line with World Trade Organization regulations.’ They interjected the par-for-the-course HR reference (Resolution 30/1) and said ‘we are concerned.’

The hypocrisy of Europe crying foul over human rights is well known. But why talk of WTO rules here? Just last year Indonesia complained to the WTO over EU restrictions on palm oil imports. Both Germany and France blocked their own exports of crucial personal protective equipment (PPE) at the height of the COVID-19 pandemic. Hypocrisy much, eh?

Well, if the EU’s ‘concerns’ (threats?) do translate into action, it would only push Sri Lanka even further into the Chinese circle of influence. Sri Lanka would have no option but to promote domestic production and rebuild as per the demands of the home market.

Gotabaya Rajapaksa completed one year in office. Not given to pomp and pageantry, his first year has been relatively subdued. He promised ‘work’ and ‘systems.’ Covid-19 was an obvious dampener. And yet, in this one year, we saw a mandate overwhelmingly reiterated. We also saw the passage of the 20th amendment which resolved the confusion of the 19th Amendment with respect to who really rules the country. The 19th, let’s recall, as acknowledged by its authors themselves, is full of flaws. The Supreme Court shot it down and the then regime introduced what was almost a fresh document; and in clear contravention of established parliamentary procedure (in the UK, the House of Lords can make changes but only minor ones). Here, there were wholesale changes at the committee stage. In contrast, the 20th it a) retained certain elements of the 19th such as term limits and b) incorporated the observations of the Supreme Court).

The President’s anniversary speech was essentially a rehashed version of his ‘throne speech.’ He didn’t detail the modalities of getting the ‘One-Country, One-Law’ going. He probably should have explained the controversial circular on ‘Other State Lands’ over which he has been getting a lot of flak. It was a no-frills anniversary speech quite in keeping with the personality he has projected or even the person he is seen to be. The proof of everything is in the ‘works’. Work is where he will be judged eventually.

Given the announcement that the Government is planning to introduce a new constitution, the buzz over the 20th seems silly. The Government, of course, could have incorporated the 20th into a new constitution and seek passage in one go.

Covid-19 has framed the president’s first year. He has had to balance coping mechanisms with keeping the economy going. The Opposition, as pointed out in a television discussion on Thursday by Deputy Editor, The Island, Shaminda Ferdinando, was bailed out by Covid-19. Now they have something to talk about, he said. There are charges of mishandling. The rise in numbers is certainly worrying. The Government does have a plan and it is as reasonable as any given multiple constraints.

However, it is certainly ridiculous that so many government officials and healthcare professionals are commenting and contradicting each other on Covid-19. The Government should authorize a single person to do this. Others should obtain from what this person says and not act as though they are epidemiologists. That goes for the opposition and political commentators as well, of course.

In Canada, for example, according to a Sri Lankan who is a long time resident there, ‘there’s a chief medical officer giving daily recaps at the federal level with Prime Minister Trudeau offering a daily non medical brief. At the provincial level, the chief provincial medical officer gives a daily briefing. All financial assistance information is conveyed by Trudeau since it’s all federal at this stage. In Sri Lanka, in contrast, everyone except the Minister of Health is an authority on the pandemic!’

Finally, the court decision on Lalith Weeratunga and Anusha Pelpita. Now they were acquitted not by judges appointed by this government. The charge that the court was politically motivated is therefore silly. In this regard it is pertinent to point out that the President has nominated the six most senior judges for promotion to the Supreme Court. Seniority was spurned out of hand by the much-celebrated Constitutional Council of the previous regime. Friendship and loyalty were rewarded. Good move by the President but one which he ought to apply across the board in the matter of appointments/promotions.

The 62-page verdict notes, ‘There is no dishonest intention with which both accused appellants have acted. They were not actuated by men rea or actus reus. There has been a bona fide exercise of their powers and duties. Neither accused was enriched. Whilst the board authorized a transaction which is protected by law and corporate social responsibility, it is a travesty of justice that only two members of the TRC had to endure the traumatic experience of a selective prosecution at a prolonged trial, causing a senior public servant of long years of meritorious public service humiliation and anguish.’

Intention of course is always assessed subjectively. It’s the act that the court has to assess. The court was of the view that the prosecution failed to establish the ingredients of the offenses laid in the indictment. The court also determined that the circumstances in which the presiding judge came to hear the case created a serious doubt on the impartiality and validity of proceedings adopted. In other words, there was selectivity and deliberate maneuvering to obtain a pre-arranged outcome.

Weeratunga is a seasoned public servant. He probably knows the Establishments Code inside out. He probably knows not only what’s possible and what’s not but all the loopholes that can be used and abused. He was obviously following orders from the top on sil redi, but, as the Court has determined, in a legal manner. He didn’t benefit personally. Neither did Palpita. One can argue that had Mahinda Rajapaksa won in January 2015, whether or not the sil redi issue was a factor, both would have benefited. At the very least they wouldn’t have been subjected to the obvious harassment meted out by overzealous yahapalana operatives (who essentially turned the FCID into a kangaroo court and operated from the Prime Minister’s office). That’s however in the territory of speculation. Courts are not in that business.

The court has ruled. That’s that.

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Politics

The need for a new Constitution

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* Covid-19 continues to dominate headlines

* 20A now legally effective but inadequate

* Focus shifts from CC to Article 35(1)

by C.A.Chandraprema

As in March/April this year, Covid-19 has once again eclipsed everything else with a fresh outbreak more virulent than the previous one. As this issue hits the news stands, a curfew prevails over the Western Province. On a daily basis, anything between 250 to 500 or more new patients are being discovered. The quarantine centers are full and new systems are being introduced by requiring suspected cases to quarantine at home. The health authorities are keeping the public informed about what is happening. As fresh cases are confirmed, news alerts are going out even late at night obviously in the hope that the more awareness there is of the spread of the disease, the more precautions the people will take.

The encouraging signs that have emerged is that the Brandix cluster which started off the present wave of infections, now appears to be receding and hardly finds mention anymore. Now the center stage has been taken by the Peliyagoda fish market cluster. The high hundreds that were reported initially seem to have come down to mid-hundreds and as the days go by will obviously come down further as in the case of the Brandix cluster. Even though the entire Western Province is under curfew, even while the curfew was in force, the lock downs imposed on several villages in the Kalutara district were lifted because no more fresh cases were reported from those areas. Lock downs are being imposed on limited areas as and when necessary. The signs are that it may take the month of November to bring the latest outbreak under control. In the middle of all this, one feather in the cap for the government was the holding of the 2020 A/L examination.

 

Everybody was full of praise for the Elections Commission for the manner in which the parliamentary election of 2020 was conducted despite the Covid-19 situation. Similar praise is due to the Education Ministry and the health authorities for the manner in which the A/L examination was carried out without a hitch. As this is being written the examinations is now nearing the end with subjects taken only by a few students now being held. The very fact that nobody hears anything about the still ongoing A/L examination in the news is the measure of its success. Most people in this country have decided by now that life has to go on despite Covid-19 and things like elections and examinations and even marriages which cannot be postponed beyond a point have to be held in whatever way possible. That the A/L examination was held even in the midst of the most virulent Covid-19 outbreak, is undoubtedly a feather in the cap for the new Minister of Education Prof. G.L.Peiris and the education ministry.

 

There was an element of risk in deciding to hold the A/L examination despite unprecedentedly high daily infection rates. The government took the call, and has delivered. If the government manages to wrestle the present outbreak down as they did the previous ones, that’s going to put this country in the international spotlight. No country can remain Covid-19 free unless it’s a hermit kingdom like North Korea or Bhutan which has very little contact with the outside world. Sri Lanka in contrast is well connected to the outside world. When the number of patients in this country goes down, the repatriation of expatriate workers begins and every planeload brings dozens of Covid-19 patients into the country. So it’s not the presence of patients in the country that’s at issue but how well the pandemic is kept in check. This country has so far been able to overcome all outbreaks since March and the signs are that they will succeed once again. Compared to what has been going on in other countries, even the highest daily rate of over 900 patients counts for nothing. If this number looks large to us, that’s because we were so successful in containing the spread of the disease. Despite the virulence of the present outbreak, GMOA President Dr Anuruddha Padeniya has gone on record as stating that patients have been reported only from 28 of the 350 Health Officer’s Divisions in the country, and from 68 of the 490 Police Divisions. This also explains why curfew has been imposed only on one out of nine provinces. So the picture is not as gloomy as one would imagine.

 

Constitutional Damoclean sword

 

With the speaker appending his signature to the 20A ensuring that the country keeps running without paralysis of the system is not just the responsibility of the executive branch of the government. Even after the 20A, absolutely ANYTHING done or omitted by the President can be the subject of litigation before the Supreme Court – the sole exception being the declaration of war and peace which cannot be the subject of litigation before the SC. Under Clause 5 of the 20A, if the President appoints a judge of the Supreme Court or even the Chief Justice in this manner, under Article 35(1) it could be called in question in the Supreme Court itself. Some readers may recall that in 1997, when then President Chandrika Kumaratunga who had the full panoply of presidential powers including immunity from suit, appointed Ms. Shirani Bandaranayake to the Supreme Court, there was a generalized revolt within the legal fraternity and several fundamental rights suits were filed against that appointment in the Supreme Court. The list of lawyers who appeared in this case against Shirani Bandaranayake read like a who’s who of the Sri Lankan legal fraternity of that time.

 

The case was heard by a seven member bench headed by Justice Mark Fernando. Two separate judgments were delivered by the seven judges both refusing leave to proceed with the case, with Justice Fernando holding that the President in exercising the power conferred by Article 107 (appointment of Supreme Court and Appeal Court judges) had a “sole discretion” which means that the eventual act of appointment is performed by the President and concludes the process of selection. The other group of judges held that the appointment in question is a matter which falls within the purview of the President and that Article 35(1) provides that while any person holds office as President, no proceedings shall be instituted or continued against him in any Court or Tribunal in respect of anything done or omitted to be done by him either in his official capacity, or private capacity and this provides blanket immunity to him from having proceedings instituted or continued against him in any Court in

respect of any act or omission on his part.

 

Thus it was the then Article 35(1) which enabled President Chandrika Kumaratunga to appoint Ms. Shirani Bandaranayake to the Supreme Court. Today however, the old Article 35(1) lies defanged and any and every appointment made by the President can technically be challenged in courts, the only thing standing between the President and a flood of vexatious litigation being the power conferred on the Supreme Court to grant or withhold leave to proceed.

 

The SC’s 19A burden

 

However the Supreme Court itself is not insulated against a flood of politically motivated litigation which will overwhelm the court. No court can tell the public not to bring cases to it and whether the cases are frivolous or vexatious can be decided only by examining them. Arguments can always be found to make a case look important. The only thing that will act as a restraint on vexatious litigation against acts of the President will be the concern that if the SC refuses leave to proceed, the petitioners will end up with egg on their faces. One has to acknowledge that this will act as a powerful curb on vexatious litigation, and the SC may also start looking askance at litigants who appear once too often in courts with obviously frivolous and insubstantial arguments against everything that the President does. Such litigants may even lay themselves open to contempt of court charges. The danger however is that interested parties could always find third parties to put forward for such purposes.

 

Trying to illustrate this point by the use of Ms. Shirani Bandaranayake’s appointment in 1997 is perhaps a bad example to take because there would be so many people who would feel that it would have been better for everyone concerned if the Supreme Court had been able to shoot down Shirani Bandaranayake’s appointment when it was first made! Indeed given the way things finally turned out, it would have been better for her as well. However, it must be noted that it’s the duty of the President to make suitable appointments. If the President makes the wrong choices, he or she will have to face the consequences at the hustings. It’s a moot point whether good decisions by a President can be guaranteed by allowing presidential decisions to be challenged in courts and expecting the courts to keep the President on the straight and narrow.

 

Today the protection provided to the executive by old Article 35(1) as it stood before the 19A when 122 MPs in Parliament filed a parallel action in the Court of Appeal seeking a Writ of Quo Warranto Against Prime Minister Mahinda Rajapaksa and 48 others functioning as Cabinet Ministers, State Ministers and Deputy Ministers, the Court of Appeal issued an interim order restraining Prime Minister Rajapaksa from functioning in that position and all Cabinet Ministers and Deputy Ministers from functioning in their positions until the final hearing and determination of the suit. This would give us an idea of what may happen when the Executive does not have immunity from suit. When a matter comes up before courts, the courts naturally have to order that things be put on hold until they decide on the matter. It’s easy to see why the Ceylon Constitution Order in Council of 1946, the First Republican Constitution of 1972, the Second Republican Constitution of 1978 and the Indian Constitution all had provisions conferring immunity from suit on the Executive. When immunity from suit is conferred on a nominal Head of the Executive it provides cover for the actual wielders of executive power as well as we see in India.

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