Connect with us

Features

Enhancing the Constitution’s Rigidity

Published

on

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.



Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Features

Italy: The Hard Right nears power

Published

on

By Gwynne Dyer

There’s an election in Italy next Sunday, almost exactly 100 years after Benito Mussolini’s ‘blackshirts’ marched on Rome and brought the first fascist dictator to power.Giorgia Meloni, the hard-right populist politician who is likely to win that election, rejects any comparison with that ugly past. The party she leads, Brothers of Italy, has some ‘nostalgic’ neo-fascists in its ranks, but she prefers to compare it to Britain’s post-Brexit Conservative Party or the US Republican Party as rebranded by Donald Trump.

She shares her hostility to the European Union with Britain’s Conservatives, her hatred of immigrants, gays and Muslims with the US Republicans, and her truculent nationalism with both those parties. She is also militantly Christian, and she dabbles in ‘Great Replacement’ paranoia. And just like them, she wages a non-stop culture war.

“There is no middle ground possible,” Meloni told a rally last June. “Today, the secular left and radical Islam are menacing our roots…Either say yes, or say no. Yes to the natural family, no to the LGBT lobbies. Yes to the universality of the Cross, no to Islamist violence. Yes to secure borders, no to mass immigration.”

The brutal simplicity of these slogans works just as well with lower-income, poorly educated Italians as it does with the same sort of people in ‘heartland’ America or ‘red wall’ Britain. The goal is to distract them from the fact that their populist heroes really govern in favour of the rich (which explains why those leaders must be shameless liars).

Giorgia Meloni lies, too, but when you compare her to populist peers like Viktor Orbán in Hungary, Jair Bolsonaro in Brazil, and Donald Trump in the United States, she actually doesn’t seem that bad.

Like them, she has no permanent political principles, just a bundle of cynical techniques for attracting distressed and desperate voters. But she needed to shift towards the centre ground to build her Brothers of Italy party up from 4% of the vote in the 2018 election to a predicted 25% this time – so that’s what she did.

She now claims to support both the European Union and the NATO alliance. Even before the Russian invasion of Ukraine, she avoided the pro-Putin stance that was common on the radical right in both Europe and the United States. With the fragile Italian economy teetering on the brink of recession, she is promising good behaviour to Brussels.

So not a complete disaster, then. Continued access to the EU’s Covid recovery fund, which has promised Italy 191 billion euros over the next six years, should keep Meloni from straying too far from orthodox economics. If the EU withholds those funds, her prospects of remaining in power would be slim.

Brothers of Italy will probably be the largest Italian party after this election, but with only 25-30% of the vote she will not be able to govern alone. The problem is that the two parties she will need to make a coalition with, Silvio Berlusconi’s Forza Italia! (Go Italy!) and Matteo Salvini’s Lega (The League), are direct rivals of her own party.

Berlusconi at 85 is still a big political player thanks to his huge media empire. Salvini is willing to bring any coalition down if it improves his chances of being prime minister in a different one. Both men will be trying to claw back the popular support that Meloni’s Brothers of Italy has stolen from them, so there will be tears before bedtime.

In normal times, their chosen tactic would be to undermine Meloni’s party by pushing for harsher policies on immigration and bigger conflicts with the EU. With the Russian energy blockade promising a hard time for Europe economically this winter, however, the obvious strategy for far-right parties is to advocate a softer line on Putin’s war in Ukraine.

Both men have been Putin fanboys in the past. Berlusconi sees the Russian dictator as a personal friend, and Salvini called him “the best statesman on Earth” three years ago. Now Salvini soft-pedals his admiration for Putin, but he demands an end to the sanctions against Russia because they are allegedly hurting Italy more than Russia.

Meloni can’t afford to play that game, and the expected post-election coalition of far-right parties is unlikely to last very long. She has sufficiently detoxified herself that she could lead a coalition with other parties instead, and that may well happen.Post-fascist parties in power in Italy are still bad news, but the damage to the European Union and the NATO alliance can probably be contained.

Continue Reading

Features

Why do we go to the IMF?

Published

on

By Shahid Mehmood

THE resumption of the IMF package, that was badly needed to avert an external payments crisis, has reignited passions. As most countrymen wrestle with the question of whether or not the Fund is a tool of neocolonialism to keep countries like Pakistan sedated and subservient, what is lost in the debate is why we always wind up at its door. Let’s take a peek.

Energy is the relevant sector to get this conversation going as it constitutes the largest portion of our import bill. Economic growth and economic mobility depend on energy, whose demand rises as economies expand (along with other factors like population growth). A large portion of Pakistan’s entire energy edifice is dependent on imported fuels, given our meagre internal energy sources.

Aside from raw material, the machines and equipment underpinning our power production are also imported — from turbines at hydel power plants to equipment at LNG, coal and furnace oil plants. So, not only are we importing raw materials, we are also importing services to sustain them over the long term. All these have to be paid for in dollars.

Read: Wanted — a non-partisan economic plan

Here, let me address a misconception, that ‘indigenous’ sources of power will take care of the matter. Think again. These can’t be utilised without outside help. Decades after the construction of the Mangla and Tarbela dams, we still need foreign experts to solve critical issues related to them. Consider the Neelum-Jhelum run-of-the-river hydel power project, which has extracted gazillions from Pakistanis under the label of ‘surcharge’. Meant to utilise an ‘indigenous’ source of energy, hardly a year later it is down due to a ‘fault’ that required the services of foreign experts because our own ‘experts’ could not identify it. (It meant inflicting losses in the billions on consumers due to power production from expensive, imported fuel).

We are importing not only raw materials, but also the services to sustain them over the long term.The case of other indigenous sources is somewhat similar: we cannot build nuclear power plants without foreign help; we had to hire foreign experts to determine whether our coal plants could use Thar’s indigenous coal, etc.

This is not a revelation: there has been recognition for long that Pakistan creates problems for itself that, in turn, generate a demand for dollars, which we are usually short of. The Economic Survey of 1980-81, for example, recognised that long-gestation projects under the public investment garb was the main reason for saddling Pakistan with an external debt of $9bn. Yet, PSDPs refuse to budge! It’s still about grand projects like roads that incentivise an increase in vehicular traffic, in turn creating more demand for dollar imports, as the main components of the products of our highly protected car manufacturers are imported.

Let’s move to the role of public regulations. A few of endless examples will suffice. We have this infinite fascination with horizontal sprawls, complemented by ‘housing societies’ in the public and private sector. Aside from cities becoming administratively difficult to govern, a result of these endless sprawls is the need for more vehicles, leading to greater demand for energy products such as oil and diesel. There has, arguably, never been an estimate of the increase in energy imports that accrued to the country due to this endless expansion. But if ever such an exercise is carried out, the results will make other import-related issues — like IPPs — look puny.

These endless sprawls have resulted in millions of acres of fertile agricultural land being gobbled up over time. Given that more than 100 agricultural ‘research’ institutes are producing little or nothing in terms of higher land and crop productivity, complemented by a rapidly expanding population, there is little choice but to import food staples to meet our food requirements — so much for being an ‘agricultural country’.

Another good example: the illogical fascination with uniform pricing. In terms of the ultimately imported energy products, it leads to waste. Pakistan’s fast-depleting natural gas reserves are an apt illustration of this phenomenon. First, it was Balochistan, and now it is Sindh whose natural gas reserves are dwindling fast. There has, historically speaking, always been an incentive to consume it inefficiently because they have been under-priced, primarily due to uniform prices that are way below the market prices. Had the pricing been market-based from the start, there might not have arisen the need for importing expensive LNG or coal, which severely taxes our dollar earnings.

Moving away from big-ticket items, even the micro level does not inspire much confidence. Consider the common office chair. Some time back, they were in short supply, carrying a premium. That’s because they are merely ‘assembled’ here from imported parts. Most other products fare little better.

To summarise, Pakistan’s economic edifice is built in a manner that, unless we import, our economic activity will come to a standstill. And as GDP inches up, we end up importing more — to the extent that our dollar earnings will never be enough to pay for our imports. So whether it’s the IMF or anyone else, Pakistan will sooner or later knock at their door for dollars.

How to change all this? Before someone presents ‘import substitution’ as the Holy Grail, God save us from that predicament. Our earlier experiments only ended up producing rent-seeking seths and the likes of the car industry that sells low-quality tin for millions — the promised ‘localisation’ never happened. For a start, enough of brick-and-mortar ‘plans’ that create more liabilities than assets, besides raising pampered generations of subsidy-sucking businessmen under the banner of ‘infant industry’ and ‘qaumi mufaad’ (national interest). Neither do we need NOCs or hundreds of regulatory agencies to scare away foreign and domestic investors.

The way out of our dollar cash-flow troubles lies in greater global integration and trade, promoting competition and developing our human capital base. For a change, take the government out of business and let Schumpeterian creative destruction prevail on a level playing field. (The Dawn/ANN)

The writer is an economist and research fellow at PIDE.

Continue Reading

Features

National Day of Saudi Arabia – 23rd September 2022

Published

on

Crown Prince Message- Custodian of the Two Holy Mosques King Salman Bin Abdulaziz Al-Saud

It is my pleasure to present Saudi Arabia’s Vision for the future. It is an ambitious yet achievable blueprint, which expresses our long-term goals and expectations and reflects our country’s strengths and capabilities. All success stories start with a vision, and successful visions are based on strong pillars.The first pillar of our vision is our status as the heart of the Arab and Islamic worlds. We recognise that Allah the Almighty has bestowed on our lands a gift more precious than oil. Our Kingdom is the Land of the Two Holy Mosques, the most sacred sites on earth, and the direction of the Kaaba (Qibla) to which more than a billion Muslims turn at prayer.

The second pillar of our vision is our determination to become a global investment powerhouse. Our nation holds strong investment capabilities, which we will harness to stimulate our economy and diversify our revenues.The third pillar is transforming our unique strategic location into a global hub connecting three continents, Asia, Europe and Africa. Our geographic position between key global waterways, makes the Kingdom of Saudi Arabia an epicenter of trade and the gateway to the world.

Our country is rich in its natural resources. We are not dependent solely on oil for our energy needs. Gold, phosphate, uranium, and many other valuable minerals are found beneath our lands. But our real wealth lies in the ambition of our people and the potential of our younger generation. They are our nation’s pride and the architects of our future. We will never forget how, under tougher circumstances than today, our nation was forged by collective determination when the late King Abdulaziz Al-Saud – may Allah bless his soul – united the Kingdom. Our people will amaze the world again.

We are confident about the Kingdom’s future. With all the blessings Allah has bestowed on our nation, we cannot help but be optimistic about the decades ahead. We ponder what lies over the horizon rather than worrying about what could be lost.

The future of the Kingdom, my dear brothers and sisters, is one of huge promise and great potential, God willing. Our precious country deserves the best. Therefore, we will expand and further develop our talents and capacity. We will do our utmost to ensure that Muslims from around the world can visit the Holy Sites.

We are determined to reinforce and diversify the capabilities of our economy, turning our key strengths into enabling tools for a fully diversified future. As such, we will transform Aramco from an oil producing company into a global industrial conglomerate. We will transform the Public Investment Fund into the world’s largest sovereign wealth fund. We will encourage our major corporations to expand across borders and take their rightful place in global markets. As we continue to give our army the best possible machinery and equipment, we plan to manufacture half of our military needs within the Kingdom to create more job opportunities for citizens and keep more resources in our country.

We will expand the variety of digital services to reduce delays and cut tedious bureaucracy. We will immediately adopt wide-ranging transparency and accountability reforms and, through the body set up to measure the performance of government agencies, hold them accountable for any shortcomings. We will be transparent and open about our failures as well as our successes, and will welcome ideas on how to improve.

All this comes from the directive of the Custodian of the Two Holy Mosques, King Salman bin Abdulaziz Al-Saud, may Allah protect him, who ordered us to plan for a future that fulfills your ambitions and your aspirations.In line with his instructions, we will work tirelessly from today to build a better tomorrow for you, your children, and your children’s children.

Our ambition is for the long term. It goes beyond replenishing sources of income that have weakened or preserving what we have already achieved. We are determined to build a thriving country in which all citizens can fulfill their dreams, hopes and ambitions. Therefore, we will not rest until our nation is a leader in providing opportunities for all through education and training, and high quality services such as employment initiatives, health, housing, and entertainment.

We commit ourselves to providing world class government services which effectively and efficiently meet the needs of our citizens. Together we will continue building a better country, fulfilling our dream of prosperity and unlocking the talent, potential, and dedication of our young men and women. We will not allow our country ever to be at the mercy of a commodity price volatility or external markets.

We have all the means to achieve our dreams and ambitions. There are no excuses for us to stand still or move backwards.Our Vision is a strong, thriving, and stable Saudi Arabia that provides opportunity for all. Our Vision is a tolerant country with Islam as its constitution and moderation as its method. We will welcome qualified individuals from all over the world and will respect those who have come to join our journey and our success.

We intend to provide better opportunities for partnerships with the private sector through the three pillars: our position as the heart of the Arab and Islamic worlds, our leading investment capabilities, and our strategic geographical position. We will improve the business environment, so that our economy grows and flourishes, driving healthier employment opportunities for citizens and long-term prosperity for all. This promise is built on cooperation and on mutual responsibility.

This is our “Saudi Arabia’s Vision for 2030.” We will begin immediately delivering the overarching plans and programmes we have set out. Together, with the help of Allah, we can strengthen the Kingdom of Saudi Arabia’s position as a great nation about which we should all feel an immense pride.

His Royal Highness Prince Mohammed bin Salman bin Abdulaziz Crown Prince, Deputy Prime Minister, and Chairman of the Council of Economic and Development Affairs.

History & Heritage

Saudi Arabia has long occupied an important role at the center of the Islamic and Arab worlds. Located at the heart of three continents, the Kingdom has served as an important ancient trade route and a vital link connecting East and West.

It also has a unique heritage landscape that has developed over the centuries, including 6 UNESCO World Heritage sites.

People & Culture

Saudi Arabia has a rich culture shaped by the diversity of its people, which has formed the basis of its cultural identity. The Kingdom has 13 regions across which 34 million people live who are united by the Arabic language, but each region has a unique dialect, traditions, heritage, and culinary identity.

The Kingdom has four official yearly celebrations; two Islamic celebrations, Eid al-Fitr and Eid al-Adha, Founding Day (February 22) and Saudi National Day (September 23).

The people of Saudi Arabia embrace many social values influenced by their Islamic values which preserve the Kingdom’s ancient customs and traditions, including generosity, courage, hospitality, and maintaining strong family relationships.

Economy & Business

Saudi Arabia has implemented structural economic and financial reforms since the launch of Vision 2030, which established a new economic system that prompts the creation of a diversified and robust economy that achieves sustainable growth for the Kingdom.

Investing in previously untapped sectors has supported the Kingdom’s economic diversification efforts and led to an improved business environment. Thus, strengthening the role of the private sector in the economy and creating the necessary environment for sustainable growth.

Continue Reading

Trending