By Neville Ladduwahetty

The 20th Amendment (20A) to the Constitution has become a topic of spirited debate and discussion. Much of it is generated by misunderstanding the true intent of 20A. It should not be a durable amendment to the Constitution. Instead, it should be temporary, until a comprehensive new Constitution is developed and presented to the nation.

Until then, 20A should serve as a stop gap for the Executive President to address the unprecedented challenges the country has to face following the COVID-19 pandemic. With this in mind, the intent of 20A should be to either repeal those provisions that had been introduced by the 19th Amendment to seriously dilute executive powers as admitted by the framers of 19A or to repeal 19A altogether and restore the executive powers the President had under the 1978 Constitution. It is only by removing the constraints that exist under 19A that the President would be in a position to address the daunting challenges that lie ahead. Without strengthening the hand of the Executive, the formidable task of social and economic recovery that the country is compelled to face because of the global pandemic would be a near impossibility.

THE NEED for 20A

The two most formidable issues that should engage the full attention of the government and the nation are:

(1) The need to continue with the very effective measures adopted to contain COVID-19 in order to prevent the possibility of a resurgance.

(2) The absolute urgency to revive the seriously depressed economy, brought about nationally and globally by the pandemic.

As far as the first issue is concerned, the government has demonstrated very effectively that it has the capabilities and organizing abilities to implement procedures and practices to maintain the health of the nation to such a degree that the President and the Sri Lankan nation have received international acclaim. An equally encouraging aspect is the support extended by the public to the call of the government to practice the health safeguards recommended by the government. What the government and the nation have collectively achieved is a shining example to the world for which we as a nation could be proud of.

The elephant in the room is how to revive the depressed economy. While the measures that need to be adopted are bound to test the skills and ingenuities of the entire nation, an equally important factor that would have a direct bearing is the freedom for the government, in particular the President and the executive branch, to act without being constrained by the fetters introduced by 19A.

There is no denying the fact that 19A was introduced with the deliberate intent of diluting executive powers of the President. In fact, Dr. Jayampathy Wickramaratne P.C., (Dr. JW) referring to 19A, has admitted that the initial attempt was “to completely abolish the Presidential system of government”. This attempt failed because the Supreme Court ruled that the intended attempt would require a referendum. The end result was the compromised version of 19A. According to Dr. JW, “The experience under 19A clearly showed the need to completely abolish the Presidential form of government and move towards a Parliamentary form…” (The Island, September 8, 2020).

The approach should not be to analyze which Article should be amended and to what degree, since such an exercise would not only be time consuming but also would add to the confusion that already exists in 19A. Instead, the approach should be to undo the entirety of 19A, and for the executive power of the President that had existed under the 1978 Constitution to be restored, for the simple reason that tough measures are needed to overcome the economic black hole Sri Lanka is in, the likes of which the nation as a whole has never seen.

The argument that such an approach would restore what is often described as draconian executive power amounting to a Presidential dictatorship that had existed under the 1978 Constitution, is unfounded if one realizes the full impact of the economic catastrophe the nation is currently facing. The situation is so dire that the bulk of the nation is more concerned with the basics of existence and survival rather than about niceties of Democracy and Good Governance that only the fortunate few could afford to be concerned about.

THE NEED for a NEW CONSTITUTION

Having addressed the short term issues, the next is the long term issue of a new Constitution. The genesis for 19A and 20A is the 1978 Constitution. Therefore, any anomalies and contradictions that exist in amendments invariably are a result of anomalies and contradictions in the 1978 Constitution. Describing the system of government under the 1978 Constitution, Dr. JW quotes Dr. Colvin R. De Silva as having described the 1978 Constitution “as a constitutional presidential dictatorship dressed in the raiment of a parliamentary democracy’ (Ibid). The comment is justified because the 1978 Constitution has features of Presidential and Parliamentary systems, notwithstanding that each represents one of the two ideologically completely different systems of government by which practically all democracies are governed. If such contrasting systems are incorporated in a single constitution confusion is inevitable, as evident from the 1978 Constitution and its related amendments. Therefore, the framers of a new constitution should endeavour to base it on either one or the other, a Presidential or a Parliamentary system, but certainly not a mix of both.

PARLIAMENTARY and PRESIDENTIAL

FORMS of GOVERNMENT

Under a Parliamentary system, Parliament is supreme and as described in the 1972 Constitution is the “supreme instrument of State Power”. This means that Parliament is responsible for Legislative and Executive functions. A few members of Parliament are selected by the Prime Minister to form the Cabinet of Ministers to exercise the executive functions of the government. Consequently, the Cabinet of Ministers is responsible and answerable to Parliament.

On the other hand, under a Presidential system, the cardinal principle is the separation of Legislative and Executive power. This separation is underscored by the fact that each branch is separately elected by the people and responsible for the exercise of separate powers, namely Legislative and Executive. This separation is clearly outlined in Articles 4 (a) and 4 (b) respectively, of the 1978 Constitution.

Article 4 (a) states: “the legislative power of the People shall be exercised by parliament…”.

Article 4 (b) states: “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President…”.

Commenting on the executive power of the people, the Supreme Court in S.D. No. 04/2015 stated: “It is in this background that the Court in the Nineteenth Amendment Determination came to a conclusion that the transfer, relinquishment or removal of the power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of the sovereignty of the people, the ultimate act or decision of the executive functions must be retained by the President. So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and to others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President”.

On the other hand, Article 43 (1) states: “There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic which shall be collectively responsible and answerable to Parliament”.

Commenting on Article 43 (1) the Supreme Court in the same case, S.D. No. 04/2015 stated: “This important Article underscores that the Cabinet collectively is charged with the exercise of Executive power, which is expressed as the direction and control of the Government of the Republic and the collective responsibility of Cabinet of which the President is the Head. It establishes conclusively that the President is not the sole repository of Executive power under the Constitution. It is the Cabinet of Ministers collectively, and not the President alone, which is charged with the direction and control of the Government.

This Cabinet is answerable to Parliament. Therefore, the Constitution itself recognizes that Executive power is exercised by the President and by the Cabinet of Ministers, and that the President shall be responsible to Parliament and the Cabinet of Ministers, collectively responsible and answerable to Parliament with regard to the exercise of such powers…”.

It is evident from the opinions cited above that the powers of the President depend on whether he acts under provisions of Article 4 (b) or Article 43 (1). For instance, under provisions of 4 (b) the “President as the Head of the Executive is sovereign in the executive field”. However, if the President acts under provisions of Article 43 (1) the Court stated that “the Constitution itself recognizes that Executive power is exercised by the President and by the Cabinet of Ministers”. The potential for such contrasting interpretations that exist in the 1978 Constitution have been blindly repeated in 19A without regard for their relevance or irrelevance.

Another serious contradiction often overlooked is that a President elected by the People should be recognized as being co-equal with Parliament under provisions of separation of power. Therefore, the President cannot be responsible to another organ of government– the Parliament. Furthermore, if the Cabinet of Ministers derive their authority from the President as interpreted by the Supreme Court, the Cabinet cannot be responsible and answerable to Parliament either. Under the circumstances, Article 33A that calls for the President to be responsible to Parliament “for the due exercise performance and discharge of his powers, duties and functions” is a violation of the principle of separation of power.

The few examples cited above amply demonstrate that while the framework of the 1978 Constitution is essentially Presidential, it has sufficient elements of a Parliamentary Democracy to warrant the Judiciary from giving contrasting opinions depending on which Article it interprets. This ambiguity requires Sri Lanka to adopt either a Presidential or a Parliamentary system, but not a mix of both systems. Despite the fact that such contradictions have been brought to the attention of the public, confusion has reigned uninterrupted. Therefore, the need is for Parliament to vote on which system of government is best suited to govern Sri Lanka. Furthermore, when formulating a new constitution, it is also recommended that a fresh approach be incorporated to devolve power to the smallest practical workable unit in order to strengthen operations in the periphery.

CONCLUSION

According to media reports the intention of the government is to introduce the 20th Amendment. Indications are that each Article would be reviewed and amended where necessary. Such an exercise is bound to repeat the contradictions in 19A because the framers mechanically copied provisions from the 1978 Constitution without understanding what separation of power is all about in a Presidential system. Therefore, it is best to repeal 19A completely, and go back to the powers exercised by the President under the 1978 Constitution as a stop gap measure until a new constitution is formulated. Such an interim measure is vital in order to prevent a resurgence of COVID-19 and to equip the executive with necessary powers to revive the depressed economy.

Critics to such an approach may consider it to be the death knell to Parliamentary democracy. What such critics forget is that the country is in such dire straits economically, that drastic measures need to be introduced if the country is to get back to some degree of normalcy. Proof of the merits of such an approach is evident from the uncompromising measures successfully adopted by the government to contain COVID-19; a fact acknowledged internationally. The reversal to the past is intended to be only until such time that a new constitution is tabled and adopted by Parliament and the People at a referendum.

In summary, the essence of the recommendation is for the 20A to define a clear two-step approach. Step One is to repeal all of 19A and strengthen the hand of the President and the executive with necessary powers to address all issues relating to COVID-19, and to also adopt all necessary measures to revive the economy. Step Two is for Parliament to vote and give clear direction as to whether the new constitution should be based on a Presidential or Parliamentary system to address all issues relating to good governance in all respects. Adopting such a clear cut approach without ambiguities would enable Sri Lanka to be free of the current fog of confusion, and embark on a fresh Chapter in her history.

All this unwanted fuss about the author or drafter of the 20A has led to President Gotabaya Rajapaksa making it clear he is the leader of the Government and the Pohottuva. Let’s have no doubts about it anymore. Let’s stop asking about any role that the Justice Minister Ali Sabry or Law Pundit and Education Minister G. L. Peiris had in this.  

The five-member Cabinet Committee appointed by PM Mahinda Rajapaksa has also been pushed aside. This clearly shows the declining power-position of Rajavasala Mahinda himself. We are in the reality of a rising authoritarian rule, with a path to what the Pohottuva champions consider to be a “Democratic Dictatorship”.

It has all to do with the two-thirds majority in parliament. We are moving to the total sovereignty of the people-elected President … the stuff  of a monarchy of the past that is being revived more than 70 years after independence from British colonial rule.

The assurance of Democracy in the role of the 20A comes from our acting Permanent Representative to the UN in Geneva, Dayani Mendis, who told the 45th Session of the Human Rights Council that 20A would be discussed and debated in Parliament, following a complete democratic process, where all the stakeholders would have the opportunity to present their views.

What she did not say was that the final decision lay with the ruling majority of the Rajavasala Power Holders. She also said that the UN Human Rights High Commissioner’s comments on the 20A were unwarranted and pre-judgmental, based on presumption. What a wonderful diplomatic analysis of a rising threat to Democracy in this island. 

The democracy that we are telling the world today is about the great Hand Raisers or “Ath Ussanno” in our parliamentary politics. Many of them in today’s parliament raised their hands for the 17A. All of them cheerfully raised their hands for the 18A. All but one of them raised their hands for the 19A, with amendments to it too. And now they are waiting with impatience and restlessness to raise both hands, if necessary, for the 20A. You can’t stop this Ath Usssana promoters of a rising Family Power or Pavul Balaya.

This is a muddled collection of one-time Samasamajists, Communists, UNP players, SLFP  Bandaranaike shakers, MEP – Gunawardena performers, JVP culprits, Central Bank felons, EPF fraudsters, Royal Pavilion destroyers, and current rapists of the ever shrinking forest cover of Sri Lanka.

To think that any of these Hand Raisers have any understanding or belief in democracy is contempt for the entire democratic process. These are political hoodlums and delinquents who have moved far away from the callers and supporters of Democracy, in the fight against colonial rule. 

We are caught in the crooked politics of the Rajavasala Kelikarayas – Royal Family Players – to whom Democracy is the very threat to survival. The 20A is the core and cover of the rising Rajapaksa dictatorship, and nothing else. It is the trampling and burying of everything democratic of the 19A (certainly with its shortcomings) that all of these hoodlums raised their hands for, except one.

A country that obtained its democratic background, moving away from a local and foreign monarchic thinking and attitudes, from the British, we now seem to be moving back to the reality of current British or UK politics. This is the stuff of the Boris Johnson politics that is having its say in the UK today. They are proudly moving to the violation of international agreements and the very substance of the parliamentary process. 

If the UK can violate international agreements, what is wrong in Sri Lanka violating the very substance and reality of democracy, through the play of majority power in Parliament, which was the stuff of those who violated peace and the people through Nazism, and the Idi Amin realities of power?

The opposition to the 20A has to take on a process of public understanding of the crises that lie ahead, as we see the rising power of authoritarian dominance. There is much more than the SJB and Sajith Premadasa’s call for a revived 19A. The need is for the revival of the very substance of democracy. It has to be done throughout the country, moving away from ethnic, religious, caste and other divisions that are the reality of Sri Lankan society and politics. 

Just take a look at the politics of the wholly defeated UNP today. With Ruwan Wijewardene elected as Deputy Leader of the party, it has gone back to the Uncle-Nephew-Party it was known for in its early years in power. This is the stuff in local politics that can give a good playing hand to the Pohottuva activists.  

The Gotabhaya Rajapaksa leadership of the Government and the Pohottuva is the very substance of ruling politics and governance today! The Opposition seems to be playing a Joker with its moves to strengthen Mahinda Rajapaksa power. Mahinda will remain where he is and Gotabaya will be the ruler of the Rajavasala and the Lankadveepa.

Fighting the 20A is the beginning of a new call for a rescued and revived Democracy, whatever we tell the UN Human Rights bodies and the rest of the world about us.

It is the reality of the Downfall of Democracy, and the Rajavasala Rise!

By Shavini De Silva,

Programme Officer, Regional Centre for Strategic Studies

South Asia is home to 40% of the world poor, even though it is considered one of the fastest growing regions in the world. In the last 15 years, South Asia has also experienced the highest number of terrorist activity in the world. The impact of COVID-19 pandemic on multifaceted inequalities in South Asia is profound and it affects vulnerable and marginalized groups disproportionately. It tends to widen inequalities and deepen insecurities in society, particularly among marginalized sections. The paradox of the COVID 19 pandemic, on the one hand, has increased the amount of existing social inequalities and on the other hand it has subdued the vibrant social movements in the region. One of the defining features in social and political landscape in South Asia is the existence of a variety of social movements through history. During the pandemic period, the world also witnessed the resurgence of the Black Lives Matter Movement in the United States and the West. It was in this context Regional Centre for Strategic Studies held a webinar on the theme “Social Inequalities and Emerging Trends in People’s Movements in Post- COVID South Asia. The purpose of the webinar was to generate a discourse to identify trends in people and movements in post-COVID South Asia.

Four world-renowned scholars/social activists in South Asia spoke at the webinar. The distinguished panelists consisted of Prof. Kalinga Tudor Silva, former Professor of Sociology and Dean of the Faculty of Arts, University of Peradeniya, Dr. Umakant, a well-known social activists in New Delhi, Prof. Rasul Bakhsh Rais a Professor of Political Science in the Department of Humanities and Social Sciences, Lahore University of Management Sciences (LUMS), and Mr. Hari Sharma, the Executive Director of Alliance for Social Dialogue/Social Science Baha, Kathmandu. Professor Karori Singh the Emeritus Fellow/Professor of South Asian Studies and Former Director, South Asia Studies Centre, University of Rajasthan, Jaipur, INDIA, and Professor Keerawela, Executive Director of the Regional Centre for Strategic Studies. moderated the panel discussion.

In bringing Sri Lankan experience to the discussion, Prof. Kalinga Tudor Silva stated that Sri Lanka could be seen as an outstanding success in terms of control of COVID-19 during the past six months. The well-developed health infrastructure in the country also reflected in earlier success in malaria eradication and various other public health achievements including reduction in infant mortality and progressive increase in life expectancy and coordinated effort at COVID-19 control by a new political regime committed to the task of containing the disease at points of origin are among the factors contributing to the crisis management.

There are, however, some important concerns about the social inequality connected with the pattern of infection. During the early phase, the community infections were reported disproportionately in urban low income neighborhoods, typically with a notable minority presence. The worker returnees from other countries and the substance users and their contacts have been two groups of civilians most affected by the COVID-19 infections. The decision by the state to impose mandatory cremation on all deaths attributed to COVID-19 has been heavily criticized by the Muslim community, who believe in maintaining religious rituals of burying the dead. The National Operation Centre for Prevention of COVID-19 established by the president in response to the pandemic chaired by the military commander is conspicuous by the absence of any civil society representation or any persons with professional skills in understanding and responding to social and cultural issues related to handling the multifaceted social crisis inevitably resulting from the pandemic.

Discrimination and exclusion during COVID-19 Pandemic Lockdown in India was the focus of Dr. Umakant’s presentation. He stated that as the number of reported COVID-19 cases has surpassed 3 million in India. It is now high time to not only address the ways and means for ending the pandemic but also to highlight the caste based discrimination and exclusion faced by Dalits, Adivasis and Other Backward Caste (OBC) people in different parts of India during pandemic. Any disaster is not caste/race neutral, it affects the disadvantaged people quite adversely leading government officials along with society at large to maintaining colossal amounts of socio-economic inequality. The case of sanitation workers stands as a dehumanizing experience can be cited as a case in point. Having to eradicate dirt and filth along with the inhumane fact that society at large practices have remained an issue of great concern. Despite being the frontline warrior against Covid-19, they have not been provided with enough safety equipment and even parity with health personnel’s. The fact that migrant workers are been labeled as nowhere people stands at a critical issue. Within a four-hour notice, the national lockdown was announced by the government which led millions of migrant workers to a state of vulnerability. This in turn resulted them to walk thousands of kilometers back to their villages facing great hardships and misery. In recent research findings, it was also noted that the most marginalized sections of society namely, Dalits, Adivasis and LGBT had to endeavor extreme levels of suffering during the nationwide lockdown Furthermore the response of State has been completely dissatisfying as levels of inequality have risen which may take a long time to overcome. The question still lies at the necessary precautions that need to be exercised during the discourse of a pandemic. Social distancing within the South Asian context has its own connotations of discrimination and exclusion relating to cast which makes it more challenging to combat. More than anything else a sense of solidarity, empathy, generosity, warmth, compassion, share and care is needed, not only in helping the humanity but also to inculcate values in the younger generation. This could be distinguished as Ubuntu, a term popularized by Bishop Desmond Tutu during Anti-Apartheid struggle days. A society without Ubuntu is a dead society.

Traditional caste system, tribal identities and ethnic biases along with minority religion and economic class are the contributing factors that play a role in marginalization and discrimination against certain groups, Prof. Rasul Rais said. The issue of economic and social inequality spans to the vast portion of the countrysides as minority of big landlords own much of the agricultural lands, the rest of the remaining majorities work as peasants. The landowning class dominating the political parties and the electoral system have not allowed land reforms to take place. The urban areas that are growing rapidly, with the migration of landless and the rising middle classes show the same trend in housing, allocation of geographical spaces, access to educational facilities and categories of jobs, or joblessness. As an elite-dominated society, Pakistan runs an “elitist economy” and a hierarchical social order. The decades of economic growth and modernisation have not altered much the social structural reasons that continue to reproduce inequality in different forms. The poor have larger families, mostly illiterate and live in congested places and live on daily wages. By their economic circumstances, they have been exposed to the pandemic disproportionally more than the affluent sections of the society that have better education, living conditions and economic means.

The social movements in Pakistan against class discrimination, land reforms, social equality and equal right are weak or non-existent whereas the liberal sections of the civil society are more focused on political, gender and ideological issues replicating the agenda of political parties. The religious groups that have proliferated and have more means and street powers have greater interest in identity construction, Islamization and conservative social ethos while weak, fragmented and divided social movements, equality, rights, health and justice remain marginalized issues.

Dr. Hari Sharma of Nepali Social Science Baha paid attention to impact of political structures on social and political processes. It is of key importance to take political interests into consideration as it is a main factor in deciding how preventive and remedial measures should be exercised accordingly, especially in the face of social, economic and natural disasters. This could be viewed against the backdrop that populist politics has integrated with nationalism over the most recent years posing a grave threat to the democratic political practices and minority interests. The rational politics in Nepal stands at a critical juncture and the Nepalese people live in difficult times, despite unprecedented challenges created by COVID-19 pandemic. Dr. Hari Sharma emphasized that it is a vital fact that democratic elements reclaim political space which has been lost.

Professor Singh moderated the session by questioning what went wrong and how new form of inequalities came into existence. Those who want to stick to the status quo turn a blind eye to growing social inequalities emphasizing the importance of growth and development. One of the outcomes of this approach would be that society at large becomes less sensitive to social inequality and academics also play a very poor role in bringing real social issues to the discussion forums. Hence, it is necessary for new social movements to recognize emerging trends of inequality in post COVID South Asia. The discussion underscored the need to give priority to emerging inequalities in post CIDID South Asia in national and regional discourses.