Human rights groups local and foreign, the diplomatic corps of the west, (some of who usually and shamelessly interfere in the internal matters of this country), BASL, and everybody else have unreservedly and rightly so, condemned the dastardly and violent attack Podujana Peramuna goons perpetrated on peaceful protesters in front of the Temple Trees and at the GF Green. Many of them also have stated that the killings, violent attacks, torching of homes and other property had been triggered by the goon attack. For example, “European Union condemns the recent vicious attack against peaceful protestors in Colombo, which triggered further violence.” However, I have sensed a reluctance to condemn as clearly, absolutely and unreservedly the multiple killings, burning down of hundreds of homes, vicious attacks and all other human rights violations triggered by the initial Podujana Peramuna goon attack. I heard a well-known politician tell the media that he was personally happy that if it was only 3 politicians’ houses that were burnt down. To approve violence directly or indirectly or by implication or by omission is a huge mistake, for the sake of the future of our country. We all must condemn all of these acts against humanity clearly, absolutely and with no reservations whatsoever for the following reasons.
These mobs are acting as the prosecutor, the judge, and the jury. This is a very slippery slope. What is next? Who will be found guilty of what “crime”? Are you going to torch the looter’s brother’s house? His Parents’ house? Unfortunately, it is happening already; not only that, even people who have no involvement whatsoever have been “punished by accident”. Then there are the opportunists.
Will the householders of these burnt-down homes, their friends and relatives forget this in six months, and we will be a united country? After how many generations will they stop asking for retribution? We will be a deeply divided country and that will not help to develop this country, to say the least.
We need more foreign exchange immediately. Will more tourists and more investors come to a country where houses are torched and hotels looted by mobs?
Do the next rulers want to inherit such a lawless and deeply divided country to govern ?
This is lunacy and stupidity, pure and simple.
What should we do?
Let’s not talk about human rights only when it serves our interests. Let’s condemn clearly, absolutely and unreservedly and stop this lunacy and ask everybody around us to do so for the sake of our country and our children.
Let’s unite this country and not divide it.
Even if you are not interested in the wellbeing of the country, please consider your self-interest; you will never know when the goons will come to torch your home because they will be the prosecutor, judge and jury.
Let’s break this cycle of violence forthwith.
Let’s be smart.
Let’s spend our precious time creating a corruption-free leadership and supporting them.
Let’s spend our precious time planning how to bring the looted money home instead of spending time blocking the airport entrance day in, day out, scaring away tourists and creating a lawless society and making the law enforcement system impotent and demoralised.
Let’s be smart and find ways to convince the looters (maybe with kindness) to become good citizens. Even after making the desired system-change, we need a law enforcement system with high morale.
Let’s learn to agree to disagree.
We may not be able to become the number one in the world in terms of our material wealth. But we certainly can become the kindest people in the world right at this moment. To do that we have a great asset, teachings from all major religions and we all know the eternal law: hatred is never appeased by hatred but it is appeased only by non-hatred.
Aragalaya to Alimankada with PM’s first mistake
The Galle Face protests, dubbed an ‘Aragalaya’ by the left intellectuals, who gleefully interpreted it as the inexorable unfolding of the ‘process’ dictated by ‘historical materialism’, ended up in its very Hegelian antithesis. Surely, Ranil Wickremesinghe is the last ‘Aliya’ (the Elephant, the symbol of his party) of the free-market politics of JR JayEwardenE. He is the antithesis of the Aragalaya ideology. And yet, the Aragalaya made him the single-handed power behind the throne of the equally isolated Gotabhaya. He is today a patron of the ‘Aragalaya’ which is sheltered, fed and feted by Colombo businesses and Western NGO groups!
In converting the ‘Aragalaya’ into an Elephant Pass (‘Ali-mankada’), Gotabhaya achieved the one political master-stroke. As the government was already at the IMF and the World Bank, to redress the bankruptcy that Basil Rajapaksa and his economists had refused to acknowledge, Ranil was probably the perfect person for regaining the confidence of the Western Shylocks. The lost election had shorn him off his visible links to shady financial associates. To that extent, he is a cleaner man and destiny has given him a final chance to vindicate his remarkable political career.The new PM should have formed a Cabinet without the use of the same old pack of discredited MPs loathed by the public. He should have asked the President to demand that each party (other than the UNP!) get rid of a proportionate number of ‘National List MPs’ to clear up twenty seats. He could use the empty seats to appoint recognised professionals with administrative experience into the Cabinet. That would have enabled Sri Lanka to have, for the first time in history, a group of technically competent people with good track records of administration to run the country.
Instead, we see essentially the same old faces back in power.
The old elephant has made an elephantine mistake in formulating the new Cabinet. The PM should have insisted that just as the SJB, the JVP, TNA etc., remain out of the Cabinet, so should the SLPP. The respective parties should have been ASKED to nominate various suitable experts, men and women. The PM and the President could have selected those individuals that they felt were optimal for their team.As the GR government has established a reputation for gazette notifications that are annulled with equal ease, the new PM can easily cleanse his current list of appointed ministers and go for new names. It is still not too late.Let us ask how the political crisis unfolded to get some insight into what is relevant.When three Ministers, Gammanpila, Vasu and Wimalawansa (GVW) revolted against a midnight fuel contract given to a dubious US company, they hardly expected to trigger the fall of the SLPP itself. They, like the bureaucrats of SriLankan who were happily leasing new aircraft, probably thought that Lanka’s red balance sheet will soon get corrected ‘when tourism revived after the end of the pandemic. Their protest was against Basil Rajapaksa, the Finance Minister who ran every ministry.They, like the majority of the Cabinet ministers and party leaders, believed that ‘going organic’ was ‘good in principle’, and that the ‘initial teething problems can be solved’, so that they would soon have food ‘free of agrochemical toxins’. Given their adeptness at rackets, the MPs claimed to ‘save money’ by banning imported fertilisers, and looked forward to new racketd from the organic fertiliser bids.
Some of the well-fed upper-classes busy themselves in ‘environmental’ NGOs, while others, depending on their political colour, engage in various forms of ‘Chinthanayas’ or in political ‘dialectics’. However, there was remarkable consensus among these groups to ‘go organic’, just as there was clear scientific advice against it. The agricultural scientists were easily dismissed as ‘paid agents of multinationals’. Even those who claimed to talk with the Gods, be it the late Ms. Senanayake or ‘Gnanakka’, strongly supported the banning of agrochemicals. Powerful news media as well as Chamal Rajapaksa, the head monks of influential temples, Christian and Hindu prelates, all supported it. A ‘Hiru Govi Sangramaya’ heralded the expected dawn of the shift to ‘hela govithena’ done without the use of agro-chemicals (see Island, 13-March-2020; http://archive.island.lk/index.php?page_cat=article-details&page=article-details&code_title=220219).Furthermore, President Gotabhaya had got rid of the main-stream technical advisors and got himself a ‘ViyathMaga’ made up of intellectuals espousing various types of untested ‘Vikalpa’, a Sinhala word which could also mean ‘crazy ideas’. But the President’s error of judgment was in falling into such traps, debilitating the nation’s food security, while oblivious that his country was already in an economic free fall. So, the call for GOTA to go home was a natural and logical one, since even the misdeeds of his Finance Minister are the responsibility of the President.
However, the farmers who rose in protest were angry at all the MPs and wanted all 225 out. The public sentiment of disillusion was such that ‘THEY’ were all declared to be ‘crooks’. The banning of agrochemicals, selling of organic manure, biofilm-biofertilisers, nano-urea,etc., were all rightly judged as rackets by the common man.The Galle Face protest was launched by Marxist leaders to take advantage of the farmers’ discontent, and the division in the ranks of the government caused by the GVW trio. The urbanised middle class, inconvenienced by the lack of medicine, cooking fuel and petrol, willingly joined the protest that was launched, copying the model used by anti-vaccine groups in the West.It was this hijacked protest of the farmers that became known as the ‘Aragalaya’, ‘GotaGOgama’. The Aragalaya ignored the limited, realistic objective of the GVW trio, which was to get rid of Basil Rajapaksa’s domination. The Aragalaya ignored the general belief among the public that ‘all 225’ must go as they are ‘all corrupt’. The Aragalaya‘s demand that ‘Gota must Go’, was very similar to the unworkable demand of the anti-Vax anti-mask Truckers’ Convoy that set up a ‘Protest Village’ in Ottawa and demanded that ‘Justin Trudeau must Go’. The Truckers’ Convoy was tolerated for about a month. Then the Canadian authorities took steps to freeze bank accounts of the protest leaders, passed emergency legislation and called in the Royal Canadian Mounted Police, with the armed forces waiting in the wings.
Gota’s government could have used the law against misuse of public spaces to control the protest but failed to do so, once again establishing its inability to govern. That SLPP thugs would eventually move in, only to be attacked with disproportionate violence by the hidden hand of the Aragalaya, was an expected outcome.The unexpected result, i. e the ‘black swan’ of the escalation was the rise of Ranil within the political isolation of a President, humbled by bankruptcy and political violence. The President had to resort to the standard constitutional steps of offering the premiership to every appropriate candidate in forming an interim government. This was when the leadership qualities of contenders would be tested. Ranil was the clear winner, while Sajith proved as pusillanimous as ever. His conditions for acceptance, if they had been taken seriously, would have taken weeks of haggling and are inappropriate when the ship is on fire.PM Wickremasinghe can still reconstitute his Cabinet by cleaning out national list MPs, and bringing in unsullied professionals. He still has the upper hand, but perhaps not for long. Instead of launching 21A and such ad hoc constitutional amendments, he should call for the recently drafted constitution, formulated by a panel of eminent lawyers and scholars, and legislate it. After that, the country should go for elections in accordance with the new constitution.
An abomination at Museum
When the Museum’s work was completed, the British Governor of the day was very pleased with the building. While congratulating the contractor for the excellent work, he asked him if he had a request. The contractor was a devout Muslim and requested that the Museum should be closed on Fridays. This request was granted, and since then, all National Museums have been closed on Fridays. The best architects executed the building design, and it was holistic in all aspects. This included the perimeter walls, the gateposts and the gates as well.The museum is over one hundred years old and therefore is protected under the Archaeological Ordinance; it is a protected monument, and nothing could be done without the specific permission of the Department of Archaeology.
Today, the landscaping has been changed and the flag and flag post that should be flying at the central axis of the building, unfortunately, has been moved to a side.Even more disastrous is that the original gate has been removed and replaced with a hideous one, unimaginable and certainly qualifies to be regarded as the worst example in Colombo, or anywhere in Sri Lanka.In dealing with period buildings, there are basic principles to be followed. It is imperative that authenticity be preserved and maintained as an internationally-accepted principle. If one does not understand that basic principle, then the conservation of period buildings is not within one’s understanding. It is not easy to understand why the original gates have been replaced and on whose advice it has been done. The old gates worked perfectly.
In the conservation of period buildings, the old gate should have been repaired or if replacement had been necessary, another could have been made of the same material type, size, design configuration and working arrangement.Visitors to the Museum are now confronted with a set of gates that have no connection to the original period of the building. This crude first impression downgrades the quality of the exhibits within the Museum. It seems to be a figment of someone’s warped imagination, and qualifies as the most unfortunate and hideous gate in Colombo. Did the Department of Archaeology permit this atrocity? If not, who decided, and was there money to be made? This gate should be removed and the original gate repaired and reinstalled.
ASHLEY de VOS
Comments on President’s address to the nation
By Neville Ladduwahetty
Following the resignation of former Prime Minister Mahinda Rajapaksa and the Cabinet of Ministers, President Gotabaya Rajapaksa addressed the Nation, during the course of which he is reported to have stated that “a new constitutional amendment containing provisions of the 19th Amendment would be brought in” and furthermore, “some people have asked for the abolition of the Executive Presidency. I will make room for that after discussing with all stakeholders” (The Island, May 12, 2022).What is intended herein is to caution the President that while there are provisions in the 19th Amendment that are noteworthy, certain provisions need to be deleted and others completely revised, and still others included as fresh provisions.
For instance, Article 33A, which requires the President to be responsible to Parliament, and Article 42 (2) should be deleted because they contradict the very core principles of the separation of power enshrined in Presidential Systems. The provision contained in Chapter VIIA establishing “the Constitutional Council”, responsible for appointments to high posts and Independent Commissions needs to be replaced with a fresh arrangement for setting up Independent Commissions because it failed to comply with the specified constitutional obligations. A fresh provision is the one that relates to Article 42 (1) which states, “There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic”. However, there is no constitutional provision to ensure how this all-important provision works in practice.
Another issue addressed herein is the abolition of the Executive Presidency. The choices are between been referred to as semi-presidential. Each system has its merits and demerits. Therefore, it is critical that the choice between the two takes into serious consideration the context within which the system operates. For instance, the political structure in Sri Lanka is made up of a multiplicity of political parties representing a variety of interests, ideologies and communities. As such, it could be assured that the formation of any government is inevitably a coalition, which by its very nature is not known for stability. Therefore, in the particular context of Sri Lanka’s political formations, a presidential system should be the preferred option because the Executive and Parliament are elected separately by the people, thereby ensuring that at least, one branch – the Executive – is free of Parliamentary instability.
ARTICLES 33A and 42 (2)
Article 33A states: “The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution ….” AND Article 42 (2) states, “The Cabinet of Ministers shall be collectively responsible and answerable to Parliament.”
Both Articles were first blindly incorporated into the 1978 Constitution that was drafted for a presidential system of government, and later into the 19th Amendment, notwithstanding the fact that they are provisions applicable to a parliamentary system of government. Such serious contradictions reflect poorly on the drafters of the 1978 Constitution and the 19th Amendment.A Supreme Court bench of seven judges unanimously stated in (SC FR 351- 3612/2018), that “the first rule when interpreting Constitutions is that words in a statute must be given their ordinary meaning.” Based on this rule, while Article 3 states, “Sovereignty includes powers of government ….” and Article 4 (b) states, “The executive power of the People including the defence of Sri Lanka shall be exercised by the President of the Republic elected by the People”, how could one organ of government be responsible to another organ of government – the Parliament, which is also separately elected, but by the same People?
Commenting on how the Cabinet of Ministers derives its power, the Supreme Court in (S.D. No. 04/2015) stated, “The Court in the Nineteenth Amendment Determination came to the conclusion that the transfer, relinquishment or removal of a 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 for the form and manner of exercise 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 (sic) supreme or sovereign in the executive field and others to whom such powers are given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President.”
It is therefore crystal clear from the determination of the Supreme Court that the President or the Cabinet of Ministers cannot be responsible to Parliament, and that the Cabinet of Ministers derives its authority from the President and exercises its power as delegated power of the President. Therefore, if the intention is to incorporate provisions of 19 A, the above provisions should be deleted. The fact that they continue to exist despite the SC determination is because of flawed practices resorted to by Parliament.
CONSTITUTIONAL COUNCILS and INDEPENDENT COMMISSIONS
The Constitutional Council (CC) consists of 10 members with the Speaker as its Chairman. Of the 10 members in the CC, seven are members of Parliament and three are outsiders nominated by the Prime Minister and the Leader of the Opposition.Article 41 B (1) states, “No person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on the recommendation of the Council”.
Article 41C (1) states, “No person shall be appointed by the President to any of the Officers specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.” However, prior to the establishment of the Constitutional Council all appointments of public officers and the judiciary were made by the President in keeping with Articles 54, 55 and 107 of the 1978 Constitution.
Based on the SC Determination cited above, the establishment of a CC is a clear and deliberate attempt to remove and transfer power from one organ of government – the President – to another organ that is predominantly from Parliament. Therefore, the establishment of the CC should have warranted a referendum. However, the SC determined otherwise, based on a determination made by a previous Court in connection with the 17th Amendment.Notwithstanding such contradictions, the fact remains that at the end of the day, appointments to high posts and Independent Commissions are made either by the Executive or by Parliament. If the intention is to foster an independent Public and Judicial Services that is free of political influence, ALL appointments to Administrative and Judicial institutions should be made either by a Public Service Commission or a Judicial Service Commission, as was the practice prior to the politicisation of these institutions.
The need to politicise Administrative and Judicial institutions arose in order to politically control the manner in which these institutions functioned, because those who manned them became a law unto themselves. To overcome such possibilities, instead of attempting to exercise control by directly getting involved in their appointments and how they function, a more effective proposition would be to make the appointments to high posts by independent Public Service and Judicial Service Commissions, and monitor and review regularly their performance through Constitutionally strengthened Parliamentary Oversight and Sectoral Committees.The recommendation therefore is to delete Chapter VIIA that contain provisions for the establishment of a CC incorporated in the 19th Amendment. What is recommended instead is that a Constitutionally empowered Public Service and Judicial Service Commissions recommend for appointment by the President, ALL appointments to high posts stating with Secretaries to Ministries and Heads of Departments. Such a Public Service and a Judicial Service Commission should be vested with executive powers to promote, transfer, exercise disciplinary control and dismissal of public officers, including addressing grievances of the public. An arrangement close to what is recommended already exists with the Police Commission that handles only public grievances. All other functions of the Police Department have already been transferred to the Public Service Commission.
PARLIAMENTARY OVERSIGHT and SECTORAL COMMITTEES
At present, Parliamentary Oversight and Sectoral Committees function under provisions set up under Standing Orders. What is recommended is to make provisions for these Committees to function under provisions of the Constitution, thereby empowering them to fulfil the primary function of reviewing the performance of the policies of the Cabinet of Ministers in respect of the direction and control of the government and the administrative performance of the administrators implementing the policies. Such an arrangement permits Parliament through these Committees to review executive action since the Presidential system does not permit the Cabinet of Ministers to be responsible and answerable to Parliament as stated above. Furthermore, such empowered Committees should have the authority to review the performance of the administrators, notwithstanding the fact that they are appointed by independent Public Service and Judicial Service Commissions.
A significant fact overlooked is that it is the Separation of Power between Parliament responsible for Legislation and the Executive responsible for executive action, that permits the review of executive action by Parliament. However, it must be noted that the review of executive action by these Committees does not mean that the Cabinet of Ministers are collectively responsible and answerable to Parliament. Such a feature where executive action is reviewed by Parliament does not exist under a parliamentary system, because the latter does not recognize separation of power between Parliament and the Cabinet of Ministers.
ABOLITION of the EXECUTIVE PRESIDENCY
Does the slogan of the protesters calling “Gota-go-home” mean for the incumbent President to be replaced by another, or the abolition of the Presidential System? On the other hand, the Executive Committee of the Bar Association is very specific. They want the Executive Presidential System abolished. Having so stated, the President of the Bar Association during the course of an interview stated, “I think the abolition of the Executive Presidency and the reinstatement of the 19th Amendment are the key constitutional changes that should be dealt with” (The Sunday Morning, May 15, 2022).There is a contradiction in the above statement. Since the 19thA is an Amendment to the 1978 Constitution, which for all intents and purposes is a presidential system, how could its “reinstatement” exist if the Executive Presidency is abolished? If 19A is perceived as a weakened Executive Presidency, as some do, the fact remains that 19A has to function within a presidential system, weakened or not.
The perception that 19A weakened the executive powers of the President could be challenged because although the President “shall” act on the advice of the Prime Minister (Article 43 (2), Article 43 (3) states that the President “may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers”. This means the President “may at any time” undermine the “advice” of the Prime Minister. As for appointment of State Ministers and Deputy Ministers, 19A states that the President “may” on the advice of the Prime Minister make such appointments. Such discretionary provisions cannot amount to a weakening of Executive Power. On the other hand, the establishment of The Constitutional Council is a clear instance of transfer and removal of the executive power that should have required a referendum. Under the circumstances, the perception that reinstating 19A amounts to abolishing the executive presidency is seriously flawed.If the attempt is to abolish the executive presidency, what is it to be replaced with? If it is to reinstate a parliamentary system, it is absolutely critical that hard realities that currently exist in Parliament be recognized. For instance, the present Parliament is made up of 15 political parties. This means that the formation of any government must necessarily be a coalition representing a variety of interests, ideologies, and communities. The stability of such a conglomerate is tenuous, and since the executive and the legislature are represented by a coalition under a parliamentary system, the inevitable outcome would be the instability of the whole government. For instance, between the years 1948 to 1972, only one out of eight governments successfully completed the five-year term (Daily FT, January 30, 2018).
Such instability is not inherent under presidential systems because the sovereignty of the people is exercised separately by a President responsible for exercising the executive power of the People and a Parliament elected separately to exercise the legislative power of the People. Therefore, even if Parliament is made up of coalition governments that inherently are unstable, at least the Executive would continue, thus ensuring the stability of at least one branch of the government. Therefore, the Executive Presidential System should be retained. Furthermore, the attempt should not be a towards a weakened Presidency or one that is responsible to Parliament, but one that functions well under constitutional checks and balances exercised by Parliament.
The President during the course of his address to the nation following the resignation of former Prime Minister and the Cabinet of Ministers, stated that a new Amendment would be presented “containing the provisions of the 19th Amendment”. Furthermore, he stated that he would consider abolishing the Executive Presidency.The need to contain provisions of 19A in a new Constitutional Amendment is because of the popular belief that 19A diluted the executive power the President enjoyed under the original 1978 Constitution. How realistic is this belief? The claim that the executive power of the President was diluted under 19A is because Article 43 (2) states the Cabinet “shall” be appointed on the advice of the Prime Minister, whereas the original 1978 Constitution stated that the President would appoint the Cabinet “in consultation with the Prime Minister where he considers such consultation to be necessary”, which indeed is less obligatory than the wording in 19A. However, the 1978 Constitution as well as 19A contains the provision that the President “may, at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers….” Since this provision overrides the intended compulsion to dilute executive power, there is in fact no removal or transfer of power from one authority to another. If the interpretation is that power was in fact transferred, relinquished or removed, it would have required a referendum since it would be inconsistent with Article 3 read with Article 4, as determined by the Supreme Court cited above.
Other provisions that should be deleted from 19A are Article 33A, which states that the President is responsible to Parliament, and Article 42 (2), which states that the Cabinet of Ministers “are collectively responsible and answerable to Parliament” because they are inconsistent with Article 3 read with Article 4, that separate legislative and executive powers into two organs of government that are separately elected by the People. Therefore, one organ cannot be responsible to another of equal standing. Furthermore, since the Cabinet of Ministers operates on the delegated power of the President, it cannot be responsible to Parliament either. How such misreading of separation of power could have survived from 1978 and continue to exist in 19A reflects poorly on the framers of the Constitutions.A key provision that should be deleted is Chapter VIIA in 19A, which establishes the Constitutional Council. Prior to 19A, the Executive headed by the President was responsible for ALL appointments to high posts. In order to dilute the power of the President, 19A transferred the responsibility of recommending officers to high posts and Independent Commissions to the Constitutional Council, seven of whose 10 members are from Parliament. It is therefore apparent that appointments are subject to the influence of either the Executive or the Parliament.
Since such arrangements are not conducive to the independence of administration, what is recommended herein is to scrap the concept of the Constitutional Council making recommendations for appointment to high posts and Independent Commissions, and pass on such responsibilities to the Independent Public Service and the Judicial Service Commissions. The performance of personnel so recommended and appointed by the President would be subject to the review of Constitutionally empowered Parliamentary Oversight and Sectoral Committees. Furthermore, the reviews would also enable such Committees to oversee executive action. Thus, since such Committees would be fulfilling two functions, it is absolutely vital that the provision is constitutionally empowered so that these Committees are incorporated into the new amendment to the Constitution.As for abolishing the executive presidency and reinstating 19A, it is a contradiction because 19A cannot exist after abolishing the Executive Presidency; 19A exists within the framework of a Presidential System, weakened or not.What is intended herein are recommendations that should be given serious consideration if the intention of a new Amendment is to introduce a new and improved 19th Amendment.
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