By Austin Fernando
Prime Minister Mahinda Rajapaksa has recently said that the Provincial Council (PC) elections will be held when the ground situation is conducive. Minister Sarath Weerasekara insists on scrapping the PCs. Ambassador Nalin de Silva has opined that in the absence of elected PCs, the 13th Amendment to the Constitution (13A) stands abolished.
There are three competing standpoints: (a) Legally, the PM believes the 13A is intact; (b) Conceptually, Minister Weerasekara believes 13A is live, but must be “killed”; and (c) Cavalierly, Ambassador de Silva thinks it is already dead! Thankfully, sanity prevailed when Sagara Kariyawasam MP, following the PM’s statement said: “The 13A remains part of the Constitution, and elections will have to be conducted” and “PCs cannot be indefinitely run by Governors and officials.”
13A and devolutionary dynamism
Against this background, I read an article by my respected and adored guru, Professor Gerald Peiris. He urged abolishing the PCs and replacement by constitutional devices, to ensure: (a) genuine power-sharing, and (b) statutorily protect Sri Lanka’s sovereignty/ territorial integrity. He revisits the Dutch and British times, articulating a rich historical analysis of how the provinces evolved. There is other analysis as regards the provinces like that by Professor Madduma Bandara.
Although no government implemented the 13A in full, leading politicians and political parties, undecided or against or silent on 13A, attempted to reinforce devolution by creating Regional Councils (RCs) between 1997 and 2000.
President Mahinda Rajapaksa internationally validated 13A by incorporating it in the UNHRC Resolution in 2009, which the Yahapalana government repeated in the Co-sponsored UNHRC Resolution in 2015. Therefore, I hope PM Mahinda Rajapaksa and yahapalana leaders may not conscientiously demand the repealing of 13A.
These developments are not discussed by Prof. Peiris, while I consider them as important, because they are attached to international diplomacy, the All-Party Conference recommendations, and other influences and consequences.
Anyway, conceptually devolution has come to stay. It has also inputted political dynamism. The Tamil political parties, India, internationals and Diaspora groups, and our political leaders across the divide (excepting President Gotabaya Rajapaksa, who was apolitically inclined then) have virtually contributed to the creation of this status. However, due to the continuity requirement, President Gotabaya Rajapaksa’s stand is appreciated.
One formidable influencing factor is India. She has shown interest in our devolution under successive governments. This has been clear from the policies of Prime Ministers Rajiv Gandhi, Manmohan Singh, and now Narendra Modi, who has made his position clear to President Gotabaya Rajapaksa and PM Mahinda Rajapaksa. (See: “Crisscrossing 13A Abolition”- November 13th, 2020 – The Island)
These interventions are probably forgotten by our leaders who were instrumental in enhancing devolution. We hardly hear from them about such interventions nowadays. The younger generation of first timers in Parliament who support the 13A erasure proposition are either unaware of this past or being conformist.
That the aforesaid leaders did help enhance devolution does not mean that there were no hostile moves to undermine it. A case in point is the late President R. Premadasa’s Transfer of Power Act, through which the District Administration was disturbed, and the Divisions were institutionally brought under direct central control, at the expense of the powers of the PCs. Similarly, the lowest village level functionaries, i. e. Grama Niladharis were brought under the Ministry of Home Affairs by President DB Wijetunga.
One notable attempt to enhance devolution was the ‘Proposals for Constitutional Reforms’ of 1997, mooted by President Chandrika Kumaratunga. The then ministers Mahinda Rajapaksa, Chamal Rajapaksa, Nimal Siripala de Silva, GL Peiris and Susil Premjayanth were supportive of it. But they would not talk about it today!
The second attempt at the reinforcement of devolution was the Bill to repeal and replace the Sri Lankan Constitution in August 2000. The above-mentioned personages were in power and supported the changes proposed. Now, they are silent on that.
I wonder whether the former Chief Ministers who are MPs now, such as Susil Premjayanth, Chamara Sampath, Shan Wijaylal de Silva, CV Wigneswaram, and Nazeer Ahamad and former Provincial Governor Seetha Arambepola are supportive of reinforcing devolution.
Chandrika Kumaratunga, when she was the Chief Minister of the Western Province, having passed a PC resolution, ably supported by Susil Premjayanth, Felix Perera et al, vehemently demanded the devolution of police powers; but she did not care to grant the PCs police powers after becoming the President. Since there is no LTTE conflict now, I wonder whether Minister Susil Premjayanth will call for devolving police powers to the provinces now.
Before the Romesh de Silva Committee to formulate a new Constitution was appointed, there were proposals made to amend the Constitution. The 13A is material to devolution and PCs. Even 17A, 18A, and 19A which mostly dealt with governance did not attempt changes to 13A.
The constitutional reform proposals which took devolution seriously were the ones presented in 1997 and 2000, and the Steering Committee proposals (post-2015). The latter did not lead to a formal consensus. One important difference with the current exercise is that the yahapalana project had a Steering Committee of the Constitutional Assembly, whereas the current exercise is a government affair without any parliamentary participation. The worst way to formulate Constitutions! This could be due to the two-thirds majority of the incumbent government in the Parliament.
Out of the six Sub Committees appointed by the Yahapalana Steering Committee- some headed by currently pro-government politicians such as Ministers Premjayanth (Public Service Reforms), Bandula Gunawardena (Finance), and from the Opposition Sagala Ratnayaka (Public Security), MP D Siddharthan (Center – Periphery Relations), four were related to devolution. The other two were on Judiciary and Fundamental Rights. I believe the current committee deliberating on a new Constitution could gain from these Sub-Committee Reports, without reinventing the wheel if it so wishes.
Years 1997 and 2000 devolution proposals
The 1997 and 2000 constitutional reform proposals are available in print. Very recently, Professor Gerry Peiris has discussed the evolutions of Provinces, probably because he was concentrating on the historical progression. Since this evolution is dynamic, I may discuss some selected aspects (due to space constraints) of reinforcing devolution. It is because the 1997 and 2000 proposals are revolutionary as regards devolution. Although the 1997 document was an internal one, the 2000 document had Opposition inputs provided by eminent persons like KN Choksy.
I refer to the Table below which shows a comparison of a few selected aspects for reinforcement.
What concerns me is the stoic silence of seniors in the government, having agreed to support different devolutionary approaches, as evident from the Table. I do not wish to discuss the nitty-gritty of land powers for instance although there are questionable issues i. e. the attempt by the 1997 proposals to abolish the National Land Commission; it was corrected in the 2000 proposals. I will limit my presentation to the issues in the Table.
Let us look at PC boundaries. Some critics are against the existing boundaries of North and East Provinces, for reasons such as sovereignty and national security. But in 1997 the then government proposed to amalgamate two districts of Eastern Province with the Northern Province subject to approval by the people at a referendum in two districts. In 2000, they agreed to the creation of the North-East Province after a referendum, as proposed by Indians by way of an option, having staged street protests against it.
They were willing to establish a Muslim-dominated South-Eastern RC, pushing aside the Sinhala majority in Ampara Polling Division to the Uva RC, disturbing the demographic status of both RCs. They knew that the remaining Sinhalese and Tamil community, nearly 40% of the population in the Ampara District, would become a split minority in the new RC. The same fate would have befallen the North Trincomalee Sinhalese population, who were not offered the benefit of joining the North Central RC as in the proposed Ampara-Uva amalgamation. Having been the Governor of East, I am aware of such sensitivities. So much for the politicians who consider themselves the savior of the Sinhalese in the North and Eastern Provinces. In a way, one may expect the indigenous Eastern Muslim politicians to clamour for the South Eastern RC in return for the votes cast for the 20th Amendment.
The appointment of Governors is a presidential prerogative under 13A. But the 1997 proposals sought to dilute it by subjecting it to the advice of the Chief Minister. The Chief Minister’s involvement was one issue used by these politicians against devolving police powers to a Provincial Police Commission. The appointing prerogative was further restricted in the 2000 proposals by making it conditional to the concurrence of the Chief Minister, consultation with PM and approval of the Constitutional Council. That proposal, if implemented, would certainly have an averse to the powers of the incumbent President.
Of course, these changes in 1997 and 2000 will be attractive to minority party politicians. If the 2000 proposals were adopted, the names of those to be appointed Governors would have to be submitted to the Parliamentary Council, for its observations and endorsing the President’s choice. The removal of Governors in the 2000 proposals was the same as under 13A and 1997 proposals, but the setting up of another committee of inquiry was incorporated into the 2000 proposals [Art 129(d)(iv)] to check on the capacity of the Governor to perform his duties.
Provincial Executive Powers
Executive powers are given in one Article in the 13A and enlarged in 1997 and 2000 proposals. Extra responsibility for contracts is mentioned in Art 130(2)(a) and personal immunity from contract liability is given in Art 130(2)(b). The 1997 and 2000 proposals sought to introduce the Executive Committee system, which empowers discussion of subjects and functions assigned to an RC Ministry. More emphasis is given to the selection of the members than functioning in the proposed Article.
Committees are more powerful in the Indian States. The Committee system is preferred due to the time constraint for the members study the Bills, allowing an informed debate. Apart from scrutinizing legislation, Indian committees also examine budgetary allocations for various departments and other policies. These “mini-legislatures” provide a forum for lawmakers to develop expertise, engage with citizens, seek stakeholder inputs, provide a platform for building consensus on various issues, and strengthen policy management.
Of course, for a government that wishes to prevent committees from overviewing legislation in Parliament, such improvements at the PC level may be anathema. However, this discussion aims to highlight fact that positive and constructive propositions have been attempted.
There was no constitutional provision under 13A to support statute making. Therefore, the PCs had to depend on the generosity of expertise in the Attorney General’s Department. The two PCs in the North and the East, where devolution was to make an indomitable mark, we find slow progress in statute-making. The PCs in general did not have the expertise for statute-making. The clarification of any legal arrangement was always delayed.
A solution was found in the 1997 and 2000 proposals through the appointment of a Regional Attorney General (1997) and an Advocate General of the Region (2000). The provision in 13A for statute-making is reinforced with these two propositions.
Clamour for elections
I will not argue whether the PC elections should be held or not, or whether PCs should exist or not. I only attempt to show that the devolution concept has been expanded from 13A, and those who once agreed to reinforce devolution should not forget their past actions.
Of course, one may argue that the 13A was intended to resolve the armed conflict, which ceased in 2009, and therefore a new mechanism should be constructed to suit the present situation. However, their opponents may argue that the causes of the conflict have yet to be obviated and thus among other things, strengthening 13A is a prerequisite for national integration and reconciliation. Importantly, political commitments by leaders of the incumbent government should not be forgotten. Of course, this may create an issue for President Gotabaya Rajapaksa, who has not included national reconciliation and integration in the 20A.
The PC administrations have also been wavering as regards the powers they already have. I am reminded how all Peoples’ Alliance Chief Ministers challenged Land Minister Rajitha Senaratna’s attempt to pass land legislation and won. These PCs were silent when President Mahinda Rajapaksa once insisted that the centre held the land powers. It is noted that former PC Members supportive of the government have organized themselves demanding PC elections. They represent the government’s grassroots support like the Local Authority Members, who were responsible for the SLPP’s victory at the local government polls in 2018, which made the party’s electoral wins in 2019 and 2020 possible.
Some believe that the PC elections need not be held because its fate can be determined when the new Constitution is drafted. The very same commentators were silent when the 19A was replaced by 20A, without waiting for the new constitution!
This article has attempted to emphasise that we should not only consider the 13A as the basis for future decision-making as regards devolution.
Secondly, it aims to highlight the less-discussed issues that cropped up from 1987 (13A) to 2020 (20A). These are in the public domain and should be seriously considered by politicians as well as those who advise the government.
Thirdly, some of the incumbent government leaders have been exponents of devolution and were instrumental in the drafting of the aforesaid documents. Therefore, they need to remember the good they had done towards developing institutions and try to do something better. This is an exercise not only in politicking but also in bringing about reconciliation, which is necessary for the wellbeing of the country.
Fourthly, since there are measures that have received approval from the incumbent government leaders previously, the Opposition should look at them positively and contribute to further improvement instead of putting for political arguments.
Finally, the government should make a genuine effort to usher in reconciliation and reintegration, which will help it in Geneva come March 2021.
The Sandahiru event – celebrating failure
by Anura Gunasekera
A few days ago President Gotabaya Rajapaksa(GR), the first military man and, unarguably, the most ignorant in the ways of governance to occupy the presidential seat, celebrated the completion of two years as the eighth president of the Republic of Sri Lanka. The salutation coincided with the formal vesting with the Sangha, of the “Sandahiru Seya” in Anuradhapura, a project commenced during brother Mahinda’s last term as president. A towering stupa rising above the Jetawana and the Abhayagiri, ostensibly to honour the services rendered by the armed forces and the police in our ethnic conflict but, in reality, a monument to the Rajapaksa delusions of grandeur, aligns the Rajapaksa Family dynasty with the Sinhala Kings. A tribute to the heroic is justified but the supreme incongruity of conflating the quintessential Buddhist symbol, with success in a bloody military campaign, is inconsequential to a hegemonic mindset. The incompatibility was also ignored by the Rajapaksa-adoring Sangha, including the Anunayake Theros of both Asgiriya and Malwatte Chapters, who participated and enthusiastically endorsed its purpose.
Notwithstanding a grandiose commemoration, as Rajapaksa’s second year in the presidency ends and the year 2021 draws to a close, the country stands mired in calamities on every public front.
The economy is in disaster mode. Foreign reserves which were at USD 7.5 Billion in November 2019, when GR took office, had declined to USD 2.8 Billion by August 2021. Despite Central Bank Governor Cabraal’s blithe assurance that the economy can be restructured without IMF assistance, and that wildly reckless money-printing has no impact on inflation, banks are unable to provide importers with forex to import essentials, whilst prices of basic commodities are placing them beyond the reach of ordinary consumers. According to most economists, in the real world, when money printing increases in a background of stagnant or declining national output, all other factors being equal, hyper-inflation is the certain outcome. Recent historical examples are too numerous to quote here. However, Cabraal, who is one of the architects and, also, a highly privileged inhabitant of the Rajapaksa Dystopia, is obviously reading from a different text!
For the last few months, in every village, town and city across the island, for the first time since the Sirimavo Bandaranaike regime 50 years ago, desperate citizens have been waiting in queues to buy the most basic items. There are frequent shortages of sugar, rice, milk powder and cooking fuel; very recently, suppliers ran short of kerosene oil, the only convenient and affordable alternative to cooking gas. Gathering firewood is not an option, especially for the four million urban population of Sri Lanka.
The government has responded to the foreign exchange shortage by imposing drastic regulations to limit dollar usage, declaring over 600 imported items, including mobile phones, clothing, household appliances and a range of foods, as non-essential. Vehicles imports are also included in the restrictions.
Prices of essential foods, vegetables and staples have seen an astronomic escalation during 2021, due to low supply, either because of import restrictions or, in the case of locally grown items, a result of poor harvests due to denial- through unavailability- of basic nutrient inputs, and disruptions in the supply chain from distant growing areas.
The pandemic has contributed to the crisis, dismantling livelihoods with some of the monthly paid subjected to wage cuts or layoffs, whilst daily paid workers are denied earnings through inability to access places of work or, because the lockdown has compelled the closure of many small establishments, which rely mainly on casual labour. As in many countries in the developing world, in Sri Lanka, the informal, small and medium scale entrepreneurial sector collectively supports more livelihoods, than either the State or the corporate sector. However, the Covid pandemic is only a contributory factor to an escalating socio-economic disaster. The government, through the implementation of a series of imprudent and ill-conceived policies, has aggravated the situation to a degree beyond retrieval.
Immediately after assuming the presidency, GR ordered sweeping tax concessions, which resulted in the diminution of government revenues by about 30% in 2020. These concessions were beneficial to a minute proportion of the population, which actually needed no such relief. They did not cascade to the ordinary citizen. Soon thereafter, to bridge the cash supply deficit the money printing spree commenced, according to some sources injecting as much as an additional 35% – 40% in to the economy, by mid-2021.
The pandemic Task Force was led by a retired army commander, appointed by a president unable to distinguish between the scientific complexities of fighting a virus, and the tactical requirements of assaulting an enemy garrison. This mindset was also compounded by an inherent insensitivity to the suffering of ordinary people. The mismanagement of the project in its early, critical stages led to an escalation of infections and deaths, especially amongst the elderly who were denied vaccinations at the outset. Successive waves of infection even led to embarrassing State sponsorship of miracle cures- the ridiculous “Dhammika Elixir” and the casting of holy water pots in to flowing water!!
Whilst people were desperately scrabbling around to sustain themselves in a setting of loss of income, essential item scarcities and other privations, overnight, the president decreed a ban on the use of inorganic fertilizer and agro-chemicals. All professional agriculturists in the country (the writer was one for over 50 years) and scientists in related disciplines, have pointed out the certainty of the disastrous outcomes from the implementation of this irrational, unscientific and impractical policy; the adverse consequences are already visible in the case of short term crops, especially rice and vegetables, whilst the impact on the long-term plantation crops, particularly tea, will very soon be evident in the form of crop declines, diminished exports and shrinking foreign exchange earnings.
The island-wide uprising of despairing farmers, beating and burning effigies of senior ministers and demanding a reversal of the fertilizer ban, was met with the promise of organic fertilizer as an alternative. The imported organic nutrient, apparently a mixture of sea weed and faeces- a second virus from China after Corona- was found unsuitable, leading to imports from India of “liquid nitrogen”, a product untried on a large scale in that country. One of the President’s responses to the anguish of the farmers was to declare at a public meeting that he could, if he considered it desirable, use the army to seize the farming community by the scruff of its collective neck and compel them to use organic fertilizer!!
The ban on the slaughter of cattle is a similarly ill-considered directive. Alleviating animal suffering is a noble cause but the consequences of the ban will be dire for several hundred thousand people. The cattle rearing industry is multi-faceted and interconnected. Milk production, beef supply and the supply of animal skin to the tanning industry go hand-in-hand. Dairy industry, which is essentially a small farmer collective enterprise, becomes unviable unless unproductive animals are converted to meat. This ban will disempower around 200,000 individual farmers island-wide, many of them Muslims in the Eastern province. The certain consequences will be the decline of local milk production, scarcity of allied dairy products and the unpreventable escalation of illicit cattle slaughter. That proverb of unknown origin, that ” The Road to Hell is Paved With Good Intentions,” is an apt commentary on both the fertilizer and cattle slaughter ban.
Younger brother Basil, hailed by Rajapaksa acolytes as an economic genius of Einsteinian proportions- despite the absence of previous experience and known academic background – has produced a budget reinforced by bloated statistics and unrealizable dreams. His disgracefully incoherent Budget speech, delivered in Sinhala, justifiably lampooned in multiple forums, was not improved by his rambling, garbled contributions in a subsequent English language interview on the same subject, with Ms Indeewari Amuwatte on Ada Derana. The questions were intelligent, precise and designed to elicit clarity. The responses were vague, evasive and inarticulate, by a man struggling to defend the indefensible in a medium clearly unfamiliar to him; at best a cringe-worthy performance.
A frustrated electorate propelled GR in to power in justifiable disgust at the dysfunctional governance of the Sirisena- Wickramesinghe regime, only to be confronted, in less than two years, with an ineptitude of colossal proportions. The enormous parliamentary advantage of a two-thirds majority and a presidency with unlimited power, the two moving in parallel rather than in unison, has paved the way for an economic and social disaster. It is an inevitable consequence of the 20th Amendment, which has expanded the powers of the President, whilst encroaching on the authority of the parliament and the judiciary. When the individual so elected believes that he is the sole repository of wisdom in governance – despite a total lack of experience in the field and a wretched absence of ordinary commonsense – chaos ensues. That is what we see everyday, in mass protests against moronic directives.
The only visible success in governance in Sri Lanka today is the inexorable onward march of the Rajapaksa project, which commenced during Mahinda Rajapaksa’s first term and, after a slight hiccup during the abortive Sirisena regime, has gathered a terrifying new momentum since end 2019. It is conservatively estimated that about 64% of the country’s economy is directly controlled by the Rajapaksa family and those connected to it. In a country rapidly sliding in to an abyss where lies the bleak certainty of food and other essential item scarcities – including pharmaceuticals – widespread malnutrition, loss of employment and livelihoods, declining foreign exchange earnings, disruption to education at all levels and the disintegration of the society, the only glow in a leaden sky comes from the Rajapaksa comet. The State will surely fail but the First Family will surely prosper.
Unless a disoriented and vacillatory opposition quickly gathers its wits, firstly jettisoning the toxic Ranil Wickremesinghe and then rallying round Premadasa – not necessarily the best of men but the only possible alternative – the Rajapaksa dynastic succession, from elder brother to younger brother and from uncle to nephew, and thereafter to another sibling or relative, is a certainty.
Gotabaya Rajapaksa was elected President by the convergence of normally divergent political forces. But, once elected, by-passing the legislature and other democratic institutions, he has chosen to govern through the armed forces and a collection of “Task Forces”, staffed or led by ex-military men, and other disciples and profiteers, answerable to only him. A spineless, collusive and essentially corrupt legislature has become a rubber stamp to his will. A reading of the two year performance report establishes beyond doubt that the “Viyathmaga” is the road to certain ruin, and that the “Eliyamaga” will condemn this country to economic darkness before the Gotabaya presidency ends.
Very recently, parliamentarian Kumara Welgama delivered a speech at the Diyawanna assembly, amusing, but brutally frank, in its exposure of the venality of recent regimes and the familial considerations which overrode national interests in decision making at the highest levels of governance, whilst highlighting the aberrant mentality that pervades the current dispensation. It was also prophetic in the warnings sounded to the ruling regime. Not one of his statements were contested. It must now be clear to all that when madmen are allowed to run the asylum, lunacy becomes institutionalized and insanity infiltrates governance.
“Perspectives on Constitutional Reform in Sri Lanka”
Editors: Hiran W Jayewardene and Sharya Scharenguivel
Published by the International and Comparative Law Society 2021.
Reviewed by Neville Ladduwahetty
The publication of a book on Constitutional Reform containing the perspectives of eminent contributors recognized for their expertise on the subject at a time when there is an ongoing process set up to develop a new Constitution in Sri Lanka is a valuable and necessary contribution to the Constitution making process. As is usual, the book starts with a Foreword, followed by a Preface. However, what is unusual is the material in the Prologue that follows.
It starts with a personal background of the first Executive President of Sri Lanka, J.R. Jayewardene, as being a lawyer with a legacy of five generations of lawyers and proceeds to incorporate his “THOUGHTS ON CONSTITUTIONALISM”. This section covers the evolution of Constitutional Reform in Sri Lanka starting with the Donoughmore and Soulbury Constitutions, and explains the influences that made him an advocate of the presidential form of government in preference to the parliamentary system.
It then records the historical development associated with the adoption of a presidential system and how President Jayewardene defended its merits as being the most appropriate form of government for a developing country. The Prologue also gives the key features of the 1978 Constitution. Another noteworthy feature is the presentation of an overview of the perspectives of all the contributors to this volume, thus enabling the reader to gain a broad outline of their perspectives without having to labour through each contributor’s views individually.
One fact that should be borne in mind is that however progressive are the constitutional reforms and however independent institutions such as the judiciary and other key institutions are, their service to the public depends not on the written words in their respective instruments, but in the integrity and commitment of those who make them meaningful.
The perspectives of 22 contributors are presented under seven sections. The majority, if not all of them, are lawyers. I am not a lawyer. However, the majority of us are affected by the perspectives expressed by them when they become part of the constitution under which we are governed. Therefore, there is a relevance that the perspectives presented are reviewed from such a source.
PRESIDENTIAL v. PARLIAMENTARY SYSTEMS
Prior to addressing issues relating to Constitutional Reforms, there is a need to make the hard choice between the two fundamental Constitutional Systems, namely Presidential as at present or Parliamentary as it was in the past. It is only after making such a fundamental choice that one could proceed to explore the reforms that should be introduced to make its provisions best serve the interests of “We the People”.
Bearing in mind that the most cherished interest of the People is stability and security above all else, the choice that needs to be made is whether the Presidential or Parliamentary System would better equip the State to serve the primary interests of the People. While some contributors have addressed the pros and cons of each system and even gone to the extent of expressing their preferences, they have failed to take into account the context in which either system has to operate.
There are however, a few caveats that must be borne in mind when making the choice. The first is to recognize the context in which such a choice is made. The context in particular, is that although the United National Party and the Sri Lanka Freedom Party are the two major political parties to represent the People, neither is capable of mustering a majority to form a government. As a result, governments formed are invariably coalitions made up of several small parties that represent parochial interests. Consequently, policy decisions are compelled to operate within the constraints imposed by the narrow interests of these coalition partners.
The second is the recognition that the Legislative and the Executive are not separated under the parliamentary system of governance. Consequently, it is the supremacy of Parliament that makes the Executive represented by the Prime Minister and Cabinet of Ministers responsible to Parliament. However, the fact that both the Legislature and Executive need to function as one body, the stability of Parliamentary Systems is dependent on the solidarity of the Coalition; a fact which historically has not been known as an arrangement for stability, both in Sri Lanka and elsewhere.
On the other hand, the Legislature and the Executive are separate under the recognized principle of Separation of Powers in Presidential Systems. This separation of power reinforced by elections to each branch separately means that even if the stability of the Legislature is tenuous, the Executive remains intact to serve the urgent needs of the People even during a crisis. Despite this advantage as far as the people are concerned, the disadvantage is that fresh legislation is not possible if the political ideologies governing the Legislature are different to that of the Executive; a fact that was highlighted during the debates as the primary reason for rejecting Presidential Systems for governance. However, even under such circumstances compromises by each branch would not only make legislative outcomes more representative of the People, but also may even turn out to be more progressive.
The other criticism often cited is that presidential systems tempt authoritarianism arising from the fact that all Executive power of the People is exercised by one individual. While this is inevitable with presidential systems under separation of power, a rational way out is for Oversight Committees of Parliament to review Executive action through appointed Executives. However, authoritarianism could also exist under Parliamentary Systems as well, depending on the backing the Prime Minister has in Parliament as evidenced in other countries and admitted as a possibility in the Book.
An issue that has not received the attention it deserves and therefore should be part of the reform process is the uniqueness of the presidential system that exists in Sri Lanka. Despite the separation of powers enlarged in Article 4 of the 1978 Constitution, the accommodation of some Members of Parliament who essentially are members elected to the Legislature to also serve in the Executive as Members of the Cabinet of Ministers needs to be addressed. This anomaly needs to be addressed for the sake of clarity. In the absence of clarity, provisions exist where the Cabinet with an independently elected President as its Head is responsible to Parliament. Such contradictions are inevitable when the principles of separation of powers are compromised.
The need for an independent judiciary cannot be over emphasized. However, the selection and appointment of such a judiciary depends on the process, and the process in turn depends on the independence of those who recommend the appointments. Therefore, the institution and the mechanisms deployed need to be independent and free of influence in the exercise of their mandate. In order to achieve such an objective, current processes should be reviewed and reformed if the judiciary is to function as an independent body. In order to make the selection process more open and transparent, it may be necessary for the candidates selected by an Independent Commission to appear before a Parliamentary Oversight Committee for assessment, instead of limiting the process entirely within the judicial fraternity as recommended in the book.
Two others issues that should be part of Constitutional Reforms should be constitutional provisions for judicial review without any time constraints, and the other is the recognition given to the Preamble to the Constitution, because it is the Preamble that sets the broad principles of the Constitutional Framework for the judiciary to be guided in their deliberations whenever the ambiguities and limitations in the written law prevent the administration of justice. The recognition given to the Preamble is what would permit purposive interpretations thereby expanding the scope for administering justice without being bound by literal interpretations of the written word; a practice that could lead to justice being compromised.
The topic of Devolution as in the past, is addressed from a majority/minority perspective as if communities live in defined territories with specific and distinct identities, thus confirming the absence of a fresh perspective to devolution. The inability to accept that in reality this is not the case, is regretted. In reality the composition of the Sri Lankan State is not a collection of Sinhala, Tamil or Muslim monolithic communities living in defined areas. Instead, it is a collection of human beings often with similar aspirations living in politically demarcated areas with political powers assigned to Local Governments as the lowest peripheral unit.
Such areas may be exclusively Sinhala, Tamil or Muslim or even Sinhala, Tamil or Muslim majority areas. However, even within such areas there are gradations and hierarchies within them that challenge their homogeneity. The issues that bind them are common interests in civil, political, economic, social and cultural advancement as they relate to human development; an interest that is common to all, whatever the composition of the community in terms of race, ethnicity, religion or other identities that make one community different to another. Consequently, devolution should be perceived from the standpoint of human development since it is an aspiration common to all human beings within communities and addressed from a fresh perspective if the lives and livelihoods of all communities are to advance.
There is a common thread in the perspectives between the title, “Human Rights and Development – the Need for Indivisibility”, in the section on human rights and the comments cited above on devolution. However, the difference between the two perspectives is that the former is represented as a right whereas the latter is implied as a responsibility of the community within the peripheral political unit.
The Universal Declaration of Human Rights contains a total of thirty articles. The majority of the articles are devoted to human rights an individual is entitled to within a sovereign State. Only Article 29 makes reference to “duties to the community”.
Article 29 states: (1) “Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Therefore, Human Rights is not only about rights and entitlements an individual could expect from the State but also about duties and even more so, responsibilities an individual has to the community, and through it to the State. Devolution should be addressed from this perspective. If this aspect is to be given its rightful place, it should be incorporated in the Preamble.
Article 157 of the 1978 Constitution is the only article that addresses issues relating to International Treaties and Agreements. However, the provision in this Article that calls for a two-third approval of Parliament is required only in the case of Treaties and Agreements that are “essential for the development of the national economy…”. In view of this limitation and because any Treaty or Agreement is bound to have an impact on national interests, it is imperative that Constitutional Reforms address this lacuna and provide for ALL Treaties and Agreements between States to be subject to two-third approval of Parliament, because any and all commitments in such instruments become the responsibility of whichever government is in power. Furthermore, even non-treaty instruments such as Memorandums of Understanding should be subject to simple parliamentary majorities.
Dr. Hiran W. Jayewardene should be congratulated for taking the initiative to persuade an eminent group well versed in the complexities of Constitutional Reform to make public their views that could be of benefit to the ongoing process of Constitution making currently underway.
Are we heading for an unprecedented disaster like the Irish Potato Famine?
by Dr Parakrama Waidyanatha
When the potato crop, the staple diet then in Ireland, began to totally fail with a fungal infestation that lead to the historic Irish famine (1845-1852), the Irish leaders in Dublin turned to Queen Victoria and the British Parliament for redress. However, the British government under which Ireland was then a colony, acted negatively repealing certain laws and tariffs that made food such as corn and bread prohibitively expensive. Tenant farmers were unable even to produce enough food for themselves, and hundreds of thousands died of starvation and diseases caused by malnutrition!
The exact role of the British government in the Potato Famine and its aftermath—whether it ignored the plight of Ireland’s poor out of malice, or if their collective inaction and inadequate response could be attributed to incompetence—is still being debated. However, even during the famine some food items were exported out of Ireland. Our situation looks very comparable to the Irish fiasco except that our leaders are not acting with malice but with foolish obstinacy, not analysing the issues at stake, not consulting experts in the subject and sticking coherently to their policy of organic farming with unattainable goals.
Our rice farmers may yet not be starving because they have at least the last Yala rice crop which has been reasonable despite the fertilizer and other agrochemical shortages. On the other hand, tea and vegetable farmers appear to be the most hit. Many tea smallholders complain that without adequate nitrogen fertilizer their crops have declined immensely and some are not even harvesting the meagre flush as it can hardly meet even the workers wages. The seriousness of the situation is further aggravated by our losing the markets which the industry claims can be substantial.
At the same time, for the general public, sky-rocketing prices of food and other essentials are unbearable. Our women won’t be able even to emulate what the French women did during the days of the French Revolution due to inflation, carrying the money in the shopping bags and bringinging back the purchases in their purses, because they have no money to carry.
It is regrettable that the President did not consult the agricultural experts in deciding to rush to convert the country entirely to organic from conventional farming within one season.He has not positively responded to the current fiasco of neither chemical nor organic fertilizer being available. His main consultants on matter appear to be a pediatrician who wants to go back to traditional rice varieties which yield less than half the new improved varieties and a professor of agriculture who identified sorghum as a rice variety, Swayanjatha wee’, with which, he claims, King Dutugamunu fed his ‘Dasa Maha Yodayas.’ There are many other ‘yes men’ behind him nodding their heads to every thing he says.
The President should be mindful that the world moved away from organic farming from about the 1850s to conventional farming because even in that era organic farming could not meet the food demand. The writer hopes that he would at least look at Table 1 here which shows how chemical fertilizers and new high yielding varieties pushed production from essentially organic farming and traditional rice to chemical farming and new varieties by three to four fold across many countries. Distinguished Professor Vaclav Smil, University of Manitoba calculated that 40% of the global population in 1999 would not have lived if urea fertilizer had not been invented.
Table 1. Comparative Rice
Production (Million MT)
Country 1960 1999
China 48 170
India 46 112
Sri Lanka 1.1 3.4
The transition from traditional agriculture where fertilizer comprised essentially farmyard manure(FYM) and green manures, to conventional agriculture(CF), as we know it today, took place in the mid 19th century with two ground breaking inventions , the synthesis of soluble (super) phosphate(John Lawes,1814 to 1900) and the need for chemical nitrogenous fertilizer for crop growth (Justus von Liebig,1803-1873) by two great scientists. In 1909, another great German scientist, Fritz Haber (1868-1934) successfully synthesized ammonia by combining atmospheric nitrogen and hydrogen which revolutionized the production of urea and other commercial nitrogenous fertilizers.
These inventions and the rapidly growing knowledge then in plant chemistry led to the substitution of natural dung with chemical fertilizer. The third important element, potassium, was provided largely by potash, a substance that had been known from antiquity. It has been said that without these inventions, the industrial countries of Western Europe could not have supported the dense population growth of the 19th century. It is the same reason that later led to the Green Revolution. This is ironically the fundamental question that we should ask: is there adequate organic matter and associated technologies to “go green” fully, as the President calls it, now, if it was not possible then with much lower populations but more farmlands. Sir John Russell (1942), the reputed British soil scientist, in an article titled British Agriculture states that: “it is difficult for us in this distance in time to recapture the feelings with which the farmers received the information that a powder made in a factory and applied out of a bag at the rate of only a few hundred weights per acre could possibly act as well as farmyard manure put on the land as dressings of tons to meet the nutrient demands of crops’. The question then is if organic matter was inadequate to meet the fertilizer requirements then, can it do so now on a global scale?
The main blame of the President and his cabinet colleagues is on health hazzards of agrochemicals. There is no argument that there are risks largely due to misuse of agrochemicals. One serious problem recently has been phosphate pollution of the Rajarata water bodies due to excessive application of phosphate fertilizers in the upcountry vegetable farms. On the other hand, no comprehensive studies reveal pollution of water or soil with heavy metals or pesticides, a subject much spoken about. Farmer training on judicious use can greatly reduce the risk of agrochemical misuse which sadly is not happening with the very ineffective extension services of the day. Strengthening this service is matter of highest priority.
On the other hand hardly any politician utters a word about ambient air pollution, which is a far more serious problem than agrochemical pollution. Records reveal that it caused 3.5 million premature, non-communicable disease- deaths, globally in 2017. These were from stroke, ischemic heart disease non chronic obstructive pulmonary disease, lung cancer, respiratory infections, and diabetes. Local health records reveal that our situation is no better.
The President and many of his cabinet colleagues including the Minister of Agriculture continue to lay the blame on agrochemicals for the kidney disease in the Rajarata and other non- communicable diseases, apparently the main reason for the President ‘going green.’ At some public meeting the President was heard to say that if he gives ‘chemical fertilizer with one hand he will have to give a kidney’ to the farmer with the other. He was prompted to say so by one of his key advisors in agriculture, a pediatrician turned agriculture expert. Sadly he has not sought advice from the health authorities as to the causation of the kidney disease. Numerous knowledgeable scientists and publications have revealed beyond doubt that hardwater and fluoride are the cause of the disease, and a recent comprehensive report by the Health Ministry reveals that there is no evidence to implicate agrochemicals in the causation of the disease.
In this crisis situation, of diminishing food production, the President does not appear to have sought the advise of real agriculture experts. In fact a letter delivered to him over a month ago with some 140 signatures of qualified agriculture researchers and academics seeking an opportunity to discuss the current agricultural calamity has fallen on deaf ears. Let alone the local expert knowledge, he should have sought evidence from what happens elsewhere in the world. Many countries are only gradually expanding their organic crop cover which, however, yet stands at 1.5 % of the total global croplands expanding annually at a meagre 2% per annum.Only 16 countries have exceeded 10 % of the crop cover in organic farming, and in nearly all them the major extents are in pasture fertilized with farmyard manure.
Policy blunders continue to be committed. To meet the rice fertilizer needs the government claims importing 2.1 million litres of nano fertilizer at a cost of USD 12 per litre. It appears to be nano urea although the Minister of Agriculture vehemently claims that it is not nano urea but ‘nanonitrogen’ to give it an organic stance. Urea is not allowed in organic farming. The authorities claim that the cost of a litre is USD 12, and it has 4% nitrogen, meaning there are 40 grams nitrogen/litre. As average rice crop of 5 tons/ha removes over 100kg nitrogen , meaning to meet the crop demand the farmers should spray 2,500 bottles of which the theoretical cost should be USD 30,000. However, the government makes the ridiculous claim that five litres/ha of nanonitrogen is adequate to meet the crop demand. God save the farmers!
The global synthetic urea prices have soared to about USD 750 per metric ton from about USD500 last November. Assuming that a farmer applies 100kg nitrogen/ha with urea (46% N) his cost should be Rs 32,608 without subsidy; and assuming he sells his crop of five tons at Rs 60/kg, his gross income should be Rs 300,000, and the cost of urea alone should be over 10.6% of the gross income. On the other hand, with the huge fertilizer subsidy in previous years the total fertilizer cost for rice farming was a mere 2 to 3% of the total cost of production or about 1.5% of the gross return. Incisive thinking on fertilizer subsidy is another matter that needs state attention.
The need for a national advisory body like the one in India set up by Nehru in 1963, which still continues with a name change made by Prime Minister Modi to give it more emphasis on technologies. Modi also recently reported repealing antiquated regulations that are adversely affecting small farmers. Moreover, whereas we have rushed to ban palm oil imports (now reversed) and oil palm cultivation, promoting coconut cultivation to meet the national oil yields despite it yielding only 20% of oil as oil palm, Modi has engaged in a policy of expanding oil palm cultivation extending it to irrigated lands and replacing some of the low-yielding arable oil crops. His target is to expand the oil palm cover from the current level of about 400,000 ha to a million by 2025. This writer repeats that our leaders should look at what happens elsewhere in the world apart from listening to proven experts in the respective fields.
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