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Enhancing the Constitution’s Rigidity

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SC on 22A – Part III

(Continued from yesterday)
by Dr. Jayampathy Wickramaratne,
President’s Counsel

In this, the final part of this article, the writer argues that while the Supreme Court’s determination on the Nineteenth Amendment Bill allowed some flexibility in reducing the powers of the President, its determination on the Twenty-first and Twenty-second Amendment Bills has further strengthened the Executive Presidency. In both its determinations on 21A and 22A, the Court did not consider the important fact that the provisions of Article 30, which made the form of government in Sri Lanka ‘presidential’, are not entrenched and, therefore, can be amended without a referendum.

SC on 21A and 22A: Steps backwards

The Samagi Jana Balavegaya’s Twentieth Amendment Bill sought to completely do away with the Executive Presidency. A three-member Bench (Jayasuriya CJ, Janak De Silva J and Obeysekere J) disagreed with the decision on 19A, stating that it is difficult to reconcile the statement that the President is not the sole repository of executive power with the unambiguous statement in Article 4(b) that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President elected by the People.

The Court adopted two tests to determine whether a violation of Article 4 leads to a violation of Article 3 as well. According to the delegation test, any change in the executive power delegated to the President by the People that brings in another person or institution must be with the approval of the People. The alienation test is that any transfer, relinquishment or removal of a power attributed to one organ of Government to another requires the approval of the People. Applying the delegation test, the Court held that the proposed amendment to Article 4(d) that executive power shall henceforth be exercised by the President and the Cabinet of Ministers required approval at a referendum. Applying the delegation test, the Court found that the proposed provision that the President shall act on the advice of the Prime Minister also requires such approval.

The Court also held that the proposal that the President would be elected by Parliament and not by the People violated Article 4(e), according to which the franchise shall be exercised at the election of the President as well.For the above and several other reasons, the Court concluded that the abolition of the Executive Presidency would require approval at a referendum.

However, the Court did not deal with two constitutional provisions that deal directly with the President and the manner of his election. Article 30 (The President of the Republic) originally read as follows: “(1) There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. (2) The President of the Republic shall be elected by the People, and shall hold office for a term of six years.” By the Nineteenth Amendment, the President’s term of office was reduced to five years.

That the President should be not only the head of the state and head of the executive but also the head of the government is what makes the form of government in Sri Lanka “presidential”. Under the 1972 Constitution, the President was the head of the state and head of the executive but not the head of government. Also, he was required to act on the advice of the Prime Minister. Thus, it is Article 30(1) that made the difference when Sri Lanka adopted the 1978 Constitution.

However, Article 30(1) is not entrenched. It is not in the list of provisions in Article 83 that triggers off a referendum. It is not only Article 30(1) that was left out of the list of entrenched provisions. The provision contained in Article 30(2) that “[t]he President of the Republic shall be elected by the People” was also left out of the list of entrenched provisions. What is most important is that only the second part of Article 30(2), that “[the President] shall hold office for a term of six years”, was entrenched to the extent that an extension of the term of the President to over six years would require a referendum. These omissions must be considered to be deliberate. This is fortified by the fact that Article 4 is not an entrenched provision.

In dealing with 22A, the Supreme Court followed its reasoning in the determination on 21A. Accordingly, it was held that to provide that the President should act on the advice of the Prime Minister in appointing Ministers and Deputy Ministers and removing them required approval at a referendum. The Court also determined that the proposed provision that if the President does not make appointments to the independent Commissions as recommended by the Constitutional Council within fourteen days, the appointments would be deemed to have been made also required similar approval. As discussed in Part I of this article, the Court held that the President must necessarily have the power to dismiss the Prime Minister.

The writer respectfully submits that the Court committed a serious error in determining in the 21A case that approval at a referendum is needed to provide that the President shall be elected by Parliament and that s/he should ordinarily act on the advice of the Prime Minister. The determination flies in the face of the non-entrenchment of Article 30 (1) and the provision in Article 30(2) that the President shall be elected by the People. While deciding not to entrench Article 4, the framers did not entrench Article 30(1) and the election of the President by the People. It is reasonable for one to expect the Court to have dealt with Article 30 and its non-entrenchment to the extent discussed above. The error was carried on to the determination on 22A.

The writer clearly prefers the Supreme Court’s determination on 19A and hopes that the Court would review its determinations in the 21A and 22A cases and also discuss the implications of the non-entrenchment of Article 30 in an appropriate case.

Constitutional Rigidity

A necessary consequence of the 21A and 22A determinations is enhancing the rigidity of our Constitution. The 19A determination allowed some flexibility in amending the Constitution with a two-thirds majority. It is easy for one to say that any amendment can be referred to the sovereign People, but the fact is that there has been an aversion to submitting amendments to a referendum. A referendum is costly in financial terms; it could also be costly in political terms for whatever the ruling party is.

During the recent Aragalaya, the need to bypass the procedure laid down in the Constitution was raised by several groups. Some even suggested invoking the controversial ‘doctrine of necessity’ used in Pakistan and elsewhere to legitimise military dictatorships. Most in the legal community, however, explained that it is in the interests of constitutionalism to follow the procedure laid down in the Constitution.

We must remember how dicta of the Privy Council in Bribery Commissioner v Ranasinghe and Ibralebbe v The Queen led to a belief that section 29 (2) of the Independence Constitution was unalterable. This, in turn, led to the 1972 Constitution being enacted, bypassing the procedure laid down in the Independence Constitution. The Constitution that emerged was one imposed by the ruling coalition. While the complete break from the British Crown, retention of the parliamentary form of government, the introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution.

Restrictive judicial interpretations that make a Constitution too flexible or too rigid must both be avoided. Delivering the Justice S. Sriskandarajah Memorial Oration in 2015, Professor N. Selvakkumaran emphasised the need to strike an acceptable balance between the rigidity of constitutional structures and the flexibility of constitutional interpretation. He considers this to be of vital importance if a Constitution were to endure real and functional democracy upholding the rule of law and fundamental rights and liberties of the people. In this respect, the judiciary plays a pivotal role in sustaining and promoting democratic governance in the country.



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Easter truth can be the beginning

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Bimal Rathnayake

There has long been speculation that the Easter bombing of April 2019 had a relationship to Sri Lankan politics. The near simultaneous bombings of three Christian churches and three luxury hotels, with a death toll of 270 and over 500 injured, by Muslim suicide bombers made no sense in Sri Lanka where there has been no history of conflict between the two religions. But a political motivation was suspected on the basis of who would be the beneficiary of an otherwise senseless crime. The bombing immediately discredited the government in power at that time, saw the nomination of the opposition presidential candidate soon after, and paved the way for the crushing defeat of the government at the national elections that followed in a few months.

In Parliament last week, Leader of the House Bimal Ratnayake revealed a political strategy to create the conditions for the change of government that took place. His remarks corresponded to suspicions that the attack was not just a failure of intelligence, but the result of deliberate manipulation by those in the political sphere. What is new is that these suspicions are now being stated clearly and officially at the highest level of government. Minister Ratnayake said, “They started this in 2013 by creating and maintaining Sinhala and Muslim extremist groups through intelligence agencies. The culmination of this was similar to the Cambridge Analytica incident.”

The Cambridge Analytica scandal involved the unauthorised harvesting of personal data from millions of Facebook users to build psychological profiles and micro-target voters for political purposes. The data harvested by Cambridge Analytica was used primarily to influence the 2016 U.S. presidential election in favour of Donald Trump and the 2016 Brexit referendum in the UK. The company also allegedly worked on elections in Kenya, Nigeria, India, Trinidad and Tobago, and several other countries, using psychographic profiling and targeted digital ads to manipulate voter behaviour.

Cardinal’s Consistency

If the allegations about the Easter attacks prove true, they would constitute one of the most unprincipled examples of violence being used for political purposes in Sri Lanka’s post-war period. To use fear, death, and destruction to pave the way for a political return is totally unacceptable and without conscience. What makes the current moment different from earlier efforts to deal with such unacceptable actions is that there now appears to be political will. There is a sense that the present government is committed to follow through with investigations, even if the implications reach to the highest levels of power.

It is significant that the government has taken the controversial step of reappointing retired officers Shani Abeysekera and Ravi Seneviratne, both of whom were known to be top class police investigators who were removed from the investigation process by previous governments, to once again lead the investigations. They are both controversial in that they briefly joined the government side’s political stage during the last presidential election campaign. Minister Ratnayake justified their reappointment on the grounds that Cardinal Malcolm Ranjith made the request. It is in this context that the current government’s willingness to act gains it credibility with the Catholic community, which bore the brunt of the attacks.

The role of the Catholic Church and Malcolm Cardinal Ranjith in consistently pushing for accountability in the Easter Sunday case is commendable. From the outset, the Cardinal was a vocal advocate for justice for the victims of the bombing. His calls for transparency, a credible investigation, and the identification of those truly responsible have been persistent and unwavering. Over the years, previous government leaders made promises to find the culprits and masterminds in response to this pressure which the Cardinal publicly welcomed. But those assurances, like many others before them, did not materialise in the form of tangible outcomes.

Ending Impunity

Progress in the investigation of the Easter bombings comes at a time when the government has already made forward movement in pursuing economic accountability. High-profile arrests and legal actions against formerly powerful politicians for corruption are being carried out in a way never witnessed before. For many decades, impunity has been the practice in government at the highest levels. Economic crimes and political violence in which the protagonists were suspected to be of government-origin were pursued only half-heartedly in the past. Charges were often framed, suspects were taken into custody, but invariably the process broke down mid-way and the suspects were released. This time around those who have been charged have had their cases taken to court where they have been given exemplary sentences.

In the case of the Easter bombing, the testimony of survivors and the documentation of intelligence failures are now being brought back into the spotlight. Investigations into key actors, including the alleged role of former paramilitaries turned politicians like Pillayan show that this is no longer a nominal exercise. The challenge for the government is to ensure that this momentum does not wane. The legal and institutional frameworks need to be allowed to function without interference. No matter how politically sensitive, the Sri Lankan people need answers, and more importantly, justice.

Sri Lanka has suffered for decades from a culture of impunity that has bred cynicism and mistrust. The present government has taken early steps to reverse that trend. It is too early to say whether this will lead to full justice. There are indications that the government is sequencing its priorities: first, economic crimes and now political crimes like the Easter attacks; later, possibly, war crimes. The wounds of the war years are deep and divisive. Pursuing accountability for wartime abuses may demand more political capital than the government currently possesses or wishes to expend, and it is likely that such steps will be undertaken more cautiously—and later.

In the case of the Chemmani mass graves the government seems to be allowing the judicial investigations to proceed independently, unlike in the case of the Mannar and Matale mass graves by previous governments. Permitting the Chemmani probe to proceed signals that the era of blanket impunity might finally be drawing to a close and the integrity of Sri Lanka’s democratic institutions is being secured. If a crime like the Easter bombing, which has defied a satisfactory conclusion for over six years is successfully investigated and prosecuted, it may open the space for deeper scrutiny of the past, including the war years. It is up to the independent institutions, judiciary and civil society to push this process forward.

by Jehan Perera

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Reflections on Cuba, BRICS and geopolitics

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Cubans marching in Havana against the blockade and the State Sponsors of Terrorism designation in December 2024. (Handout picture)

I returned to the US, from Cuba, just a few hours before Donald Trump signed a memorandum on 30 June, 2025, tightening the long-standing US economic blockade against Cuba. The memorandum includes a statutory ban on US tourism to the neighbouring island.

Despite a long fascination for the island nation, I did not volunteer for the Venceremos Brigade to Cuba during my college years. Finally, my wish to see the legendary island of anti-imperialist revolution—the so-called ‘last bastion of socialism in the western hemisphere’—came true.

I enjoyed Cuba’s resplendent land and waters, the vibrancy of its music and dance, and the warm hospitality of its racially integrated people. I visited the impressive places and monuments of its colonial and modern history, receiving a wealth of interesting and intriguing information from my wonderful Cuban guides and other sources.

The history of Cuba is one of struggle and transformation. The original Taino people were extinct due to the Spanish conquest. The Revolution of 1898 brought liberation under scholar-poet Jose Marti, only to be followed by US neocolonial rule from 1902 to 1959. During the latter part of this period, the Batista dictatorship and his American business and Mafia connections dominated the island.

The armed struggle, culminating in the 1959 Revolution, led by Fidel Castro, Camilo Cienfuegos, Che Guevara and others, transformed the nation. The Cuban Communist Party, under Fidel Castro’s rule (1959-2008), implemented widespread confiscation and wealth redistribution. Throughout this period and up to date, the US has maintained occupation of Guantanamo Bay (the first US overseas military base) under a 1903 perpetual lease agreement, following the Spanish-American War.

Cuba’s Present Crisis

Unfortunately, what I encountered in my homestays and travel around the island was far from the thriving socialist society I had hoped to see. The once magnificent buildings in Havana and other cities are dilapidated and the streets strewn with litter. Lacking reliable public transportation, people stand on streets around the island patiently waiting to catch rides from any vehicle that will stop—among them, the still widely used pre-Revolution American cars and horse-drawn carriages.

The island is currently facing its worst economic crisis, since the 1959 revolution. Long and daily power cuts, scarce internet connection, food and medicine shortages, and high prices, are the realities of present-day Cuba. Some staple items like beans are nowhere to be found; rice production has declined and much is now imported. Sugar, too, has become an import in Cuba, which, until recently, was the leading sugar exporter in the world.

People cannot make ends meet with their meager incomes—a doctor’s monthly salary is approximately US$50. Even by conservative World Bank estimates, 72% of all Cubans live below the poverty line. Beggars seem to be everywhere, with the African community descendant from slavery being the most economically victimised.

Young professionals, products of the island’s renowned free education and healthcare systems, are emigrating to the US, Europe, and elsewhere, leaving mostly the elderly behind. Cuba reportedly lost some 13% of its 11 million population between 2020 and 2024, due largely to emigration. Financial remittances from emigrants are essential for their families’ survival at home.

In private, people complain bitterly about government mismanagement and corruption, expressing concern about the island’s future and people’s survival. Given state authoritarianism and repression, there is no independent media, visible organised resistance, or public demonstrations.

The Cuban government blames US sanctions and blockade, operative since the early 1960s, for the island’s economic strangulation. In contrast, the US and its Cuban-American supporters blame socialism for Cuba’s failures.

Notwithstanding claims to be a leader of the international Non-Aligned Movement, Cuba withstood the 1961 CIA-backed Cuban-American Bay of Pigs invasion and the 1962 Cuban missile crisis by aligning itself with the Soviet Union, eventually becoming its client state. The dismantling of the Soviet Union in 1992 and the recent Covid crisis have dealt severe blows to the Cuban economy and society. The decline in tourism, one of the most important sectors of the Cuban economy, will be further impacted by Donald Trump’s recent statutory ban on US tourism.

Is the opening of Cuba to neo-liberal capitalism—including global finance capital, the IMF, international intervention by the US (and its Cuban-American supporters awaiting return of land and business confiscated by the Cuban Revolution)—the solution to Cuba’s current economic crisis?

The Path Forward

Government mismanagement, corruption, repression and authoritarianism, economic collapse, agricultural decline, lack of employment, shortages of fuel and food, rising prices, powerlessness, despair and labour emigration characterise much of the world following neoliberal policies today. These countries also face the threats of international intervention, regime change, sanctions and blockades if they attempt to strike out on independent paths of economic and political development outside western-dominated neoliberalism.

Is BRICS the alternative to both authoritarian socialism and neoliberal capitalism, the path to resolving the crisis in Cuba and much of the world?

The Global South-led BRICS constitutes Brazil, Russia, India, China, South Africa, Egypt, Ethiopia, Indonesia, Iran, and the United Arab Emirates, as well as 10 partner countries, including Cuba, Belarus, Bolivia, Kazakhstan, Malaysia, Nigeria, Thailand, Uganda, Uzbekistan, and Vietnam. Today, the BRICS countries together are estimated to account for 56% of world population, 44% of global GDP.

The BRICS alliance provides a much-needed platform to explore alternative mechanisms, like the New Development Bank and bilateral trade agreements, to reduce reliance on Western financial institutions, such as the IMF and currencies, specifically the US dollar. While BRICS rejects certain aspects of Western dominated geopolitics and hierarchical North-South relations, it upholds neoliberal economic principles: competition, free trade, open markets, export-led growth and globalisation, unfettered technological expansion.

BRICS aims to advance its members within the existing global capitalist order, rather than create a fundamental alternative to the capitalist paradigm which prioritizes profit-led growth before environmental sustainability and human well-being. As such, corporate hegemony, concentration of wealth by a global elite spanning the North and the South, as well technological and military domination, are not challenged. Neither does BRICS challenge political authoritarianism within its member countries or the possibility of the emergence of forms of authoritarian capitalism. Composed of countries unequal in size, economic and military power, BRICS may also easily reproduce unequal exchange and new forms of colonialism in south-south relations.

False Alternative

Although barely noticeable to a visitor, China is quietly replacing the former Soviet Union as Cuba’s benefactor, expanding its economic activities on the island. Since 2018, Cuba has joined China’s Belt and Road Initiative, the massive infrastructural project connecting some 150 countries around the world. While the US is tightening its trade blockade, China has become Cuba’s largest trading partner and the primary provider of technology for infrastructure, telecommunications, renewable energy sources, the tourism industry, and other important areas of Cuba’s development.

Some critics of US imperialism tend to see China as a benevolent alternative to US and western domination. There are claims that certain media outlets, promoting such perspectives, may be linked to a funding source, associated with China. Even if it is true, the political and military intentions of Chinese economic expansion can only be known in the future.

According to the Stockholm International Peace Research Institute, China has increased its nuclear arsenal by 20% from an estimated 500 to over 600 warheads in 2025. According to US government sources, China has also established satellite intelligence infrastructure or ‘spy bases’ in Cuba that can target the United States commercial and military operations. Cuba, located only some 90 miles from the Florida coastline, could well be drawn into the geopolitical confrontation between the United States and China as it was during the Cold War between the US and the Soviet Union, the Cuban Missile Crisis being a case in point.

Even though the world is moving towards an inexorable market and technologically controlled reality, the rationality of this trajectory must be questioned. The need for balanced ecological and social frameworks upholding bioregionalism, local control of resources, food self-sufficiency need to be considered. Freedom of expression, right to dissent, and collective organising undermined by both neoliberal capitalism and socialist authoritarianism must be upheld. This requires the awakening of consciousness to create a human society founded on wisdom and generosity over competition and exploitation.

The words of the great nineteenth century Cuban patriot, Jose Marti (1853-1895) are still applicable to the transformation needed in both Cuba and the world:

“Happiness exists on earth, and it is won through prudent exercise of reason, knowledge of the harmony of the universe, and constant practice of generosity.”(Courtesy IDN in-depth News)

(Dr. Bandarage  has served on the faculties of Brandeis, Mount Holyoke and Georgetown  and is the author of books, including Colonialism in Sri Lanka; The Separatist Conflict in Sri Lanka, Sustainability and Well-Being: The Middle Path to Environment, Society and the Economy, Crisis in Sri Lanka and the World and numerous other publications on global political economy and related subjects. www.bandarage.com)

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Multi-faceted Sri Lankan celebrity … checking out land of birth

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With Mirage in Dubai as a guest artiste

I was sent a video of Noeline Honter doing the song ‘Beauty and the Beast’, with Maxi Rosairo, live on stage.

The clip, I was told, was from The Island Music Awards, held in the late ‘90s … probably 1994.

Believe me, their performance was simply awesome … the vocals, the voices, the passion, the expression, the enthusiasm. Yes, that is what singing is all about. And no lyric-stands, planted in front, for guidance.

Well, the good news I have for you is that Noeline Honter will be in our midst next month (August) and she will be seen in action at three events, in Colombo.

Noeline will be featured at Gatz, Cinnamon Life, on Sunday, 24th August, and again on 20th of September.

Her first date at Gatz will be with the group Terry & The Big Spenders, while her 20th September performance will be with Mirage.

Noeline will also be performing at the BMICH, on the 30th of August, at a concert, ‘Vibes of Yesterday.’

The show, which is in aid of the Apeksha Hospital, Maharagama, will also feature several other artistes. The band in attendance will be the ‘Expressions.’

Noeline indicated to us that she is very much looking forward to her date with Mirage.

Noeline’s first band … her very own Galaxy

“It will be really exciting as I’ve performed with this wonderful outfit several times, as a guest artiste, touring the Middle East and other parts of the world, and also joining them on stage at their regular gigs in Dubai.”

In Sri Lanka, Noeline was not only known for her singing, she was also immensely popular as a TV presenter … winning several awards in both categories – singing and TV presenter.

In addition, she had her own Academy of Training, and she continues with her English training, Down Under, conducting several training programmes online to students, in many countries.

Noeline’s contribution to the field of television news, in Australia, commenced in 2008, in the role of Executive Producer and Presenter of ‘Sri Lanka News weekly,’ a news programme telecast on Channel 31, in Melbourne.

This multi-faceted Sri Lankan celebrity now presents interview programmes on Channel 31, where she features a gamut of mainly Sri Lankan musicians, resident in Sri Lanka and around the world. This is a chat show with musical clips by the featured artistes.

Noeline had her own band in the scene here … Galaxy, comprising Mohan Sabaratnam (drums), Kamal Perera (guitar), Joe Thambimuttu (bass/keyboards/vocals), Kumar Pieris (keyboards), and Ricky Senn (sax/trumpet /brass).

Noeline Honter: Three events in Colombo

Her trip to Sri Lanka, in August, she says, is mainly to be with her family, and to visit some of her favourite places, like Yala, Trincomalee, etc

“When I come over in August, it will be nearly three and a half years since I left the beloved land of my birth.”

Noeline is now based in Australia and says she is absolutely delighted to have the opportunity of sharing time with her son, Ryan, in Adelaide, and her daughter, Jaimee, in Melbourne.

Yes, a name that will never ever be forgotten, especially in the local Western music scene – Noeline Honter.

Go check her out at Gatz, Cinnamon Life, on 24th August and 20th September, 2025.

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