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Musical Chairs – The Supreme Court of the USA

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by Vijaya Chanderasoma

According to Article III Section 1 of the United States Constitution, “The judicial power of the United States shall be vested in the Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The first Congress of the United States established a Supreme Court with six Justices in 1789. Supreme Court Justices enjoyed lifetime tenure then, as they do now. The Constitution empowers Congress to determine the number of sitting Justices, according to prevailing exigencies of the nation. The number of Justices on the Supreme Court changed six times before Congress settled on the present total of nine in 1869.

The framers of the Constitution expected that the Supreme Court be an independent body, composed of Justices who will interpret and adjudicate on any case before them according to the Constitution and the merits of the case. In short, the Supreme Court is not expected to make the law, it is supposed to interpret and adjudicate the law.

Unfortunately, the modern Supreme Court is not the independent, non-partisan body envisioned by the framers of the Constitution. It reflects the policies and values of the president in power at the time a vacancy occurred. So the composition of the Court depends, at any given time, on a game rather like Musical Chairs, where the incumbent president will appoint to the Court a Justice receptive to his political philosophy when the music stops at the death, impeachment or resignation of a sitting justice.

The music stopped last month when Justice Ruth Bader Ginsburg, a progressive Justice appointed by President Clinton in 1993, died after 27 years of distinguished service. President Trump gleefully nominated a Justice who is undoubtedly well-qualified and, more importantly, is in harmony with the radical right-wing values of the Republican Party.

It has long become a tradition, even a decree, for a sitting president to appoint Justices who are faithful to the values of his own party, and expect that those appointed will conform to party lines, conservative or progressive, in the future. While the tenure of the appointing president is restricted to two terms, Justices, appointed with lifetime tenure as they are, are not so constrained. Therein lies the anomaly that has plagued the independence of the Court in recent times.

Judge Barrett’s confirmation hearings before the Senate judiciary committee began on Monday, October 12, with the Republican controlled Senate hell bent on having Barrett confirmed before the election, and packing the Court with a right-wing majority which will endure during the next generation.

Republicans are using the Supreme Court not to benefit the future of the country but to ensure the survival of their party. The final confirmation vote of Judge Barrett, the result of which is already a foregone conclusion, will be scheduled for the week of October 26, well before Election Day on November 3.

Judge Barrett is an ultra-conservative jurist. She is a “handmaid” (a high ranking female leader) of a cult-like religious community, People of Praise, a Christian organization which opposes abortion, and holds that “men are divinely ordained as the ‘head’ of both the family and faith, while it is the duty of wives to obey them.” She endorses Originalism, “the judicial interpretation of the Constitution which aims to follow closely the original intentions of those who drafted it”.

Originalism demands a strict interpretation of the original Constitution which denies the inexorable progress of societal norms. If this principle is to be taken seriously, we would live in a very different society, one in which segregated schools under the law and governmental discrimination against women, gays and lesbians would be permissible; where a black man would be worth 3/5ths of a white man, and a woman of any color worthless.

Describing her legal principles, Barrett said in her opening statement to the Senate Judiciary Committee: “As a judge on the Seventh Circuit, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be.”

Judge Barrett has refused to answer hot button issues, posed by Democratic Senators and Vice Presidential Candidate Kamala Harris, throughout the Senate hearing. She protested vehemently that she has no political agenda, and denied she had been subjected to any political pressure by the President on her rulings on the Affordable Care Act (Obamacare), which will be the first case she will hear after her appointment, or on any other issue. She stated that the opinions contained in her papers and opinions in the past, which expressed her strong objections to Roe v. Wade, the landmark Supreme Court ruling of 1973 guaranteeing women’s right to reproductive freedom, and Obamacare, will in no way influence her rulings in the future.

Senator Feinstein pointed out that when Trump announced her nomination, he said that “the elimination of the Affordable Care Act would be a big win for the American people”, both in the short term and for decades to come. A “win” that would strip tens of millions of Americans of their healthcare insurance cover with a fast-approaching, cold, hard winter, in the throes of a pandemic showing no signs of abatement.

Responding to Democratic Vice Presidential candidate, Senator Kamala Harris via teleconference, Barrett made the incredible claim that she was not aware of the Trump campaign promise that he would nominate to the Court a Justice committed to repeal Obamacare. Her response: “I do not recall”. Trump’s anti Obamacare tweets have been, over the years, as self-serving as they have been numerous.

Trump has repeatedly lied that he has a replacement healthcare plan which will be immediately available after the repeal of Obamacare. This so-called “new plan” has been as diligently guarded as Trump’s tax returns. The difference being that Trump’s tax returns do exist and will not be divulged because they will incriminate the president and land him in prison, while a replacement healthcare plan exists only in Trump’s alternative universe.

Barrett concealed her virulent anti-abortion beliefs from the Senate Judiciary Committee in a questionnaire she completed before her confirmation hearings. She has also paved the way at the Senate hearing to repeal Roe v. Wade on the grounds that the 1973 ruling was not settled law, not a “super precedent” and so subject to challenge.

Barrett also maintained that she will make any decisions on potential disputes in the upcoming elections based on the facts of each case, and not on political grounds or presidential pressure.

Of course, every Justice, on nomination to the Court by Republican or Democratic presidents, swear that they will maintain their judicial independence during their tenure; that they will not be swayed by political pressure on the outcome of any case brought before them. And then every one of these Justices, Republican and Democrat, proceed blithely to base their rulings on political and party lines on the cases before them. Everyone knows that they have been appointed precisely because of their complicity of laws/rules dear to the appointing president. Barrett is no exception. She is a prime example of the sycophancy currently demanded of Supreme Court Justices.

Barrett will join the two other Trump Supreme Court stooges, Gorsuch and Kavanaugh, in impeding laws on gun control (Barrett is a darling of the National Rifle Association – the gun lobby), climate change, LGBTQ rights, the minimum wage, compassionate immigration reforms (sans caged children!), social and economic justice, and a host of other progressive, democratic socialist measures becoming increasingly popular, especially with the younger generation of Americans.

Most importantly, Trump needs a packed Court which will rule on his behalf on any cases he will bring in the event of a disputed 2020 presidential election, in the certain knowledge that a captive Supreme Court will gift him a disputed or even a lost election, a la Al Gore in 2000. In fact, Trump and McConnell are getting this confirmation approved at warp speed with this very purpose in mind.

The Biden/Harris ticket has studiously sidestepped responding to questions about changing the composition of the Court. However, packing the Court with Justices of independence and integrity may be the only path available to the Democrats to mitigate the deleterious effects of a partisan Republican judiciary for decades to come; and to combat an impending threat to a return to a pre-FDR America, Jim Crow, depression and all.

 

After all, Mitch McConnell packed the Court when he denied President Obama’s nominee for the Court, Merrick Garland, even a Senate hearing, even though the nomination was made a full eight months before the end of Obama’s term in 2016. While McConnell is rushing the nomination of Barrett even while a presidential election is in progress.

Trouble is, Democrats will have to win the presidency, flip the Senate and keep the House if they are to seize the power to address the existing inequalities in the Supreme Court. Not an unlikely scenario, given the evidence of current polls.

However, the real test would be to overcome fraudulent efforts by the Republicans to nullify/falsify election results, to legally/forcibly extricate Trump from the White House on his likely defeat, and to mitigate post-election violence which will inevitably follow a Trump defeat.

On an unrelated note, during the Senate hearings, when fatalities caused by a raging Covid19 reached 215,000, with up to 1000+ Americans dying every day, and 30 million Americans unemployed with no prospect of government relief, President Trump was dancing to the music of the Village People classic YMCA at a “super-spreader” campaign rally in Florida.



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Rev Fr. Eugene Herbert’s loss should result in breaking down societal imbalances

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The river we step in is not the river we stand on

By B Nimal Veerasingham

Years ago, when visiting New Orleans, Louisiana, I found myself wandering through the sprawling campuses of Loyola University. It is not far from the mighty Mississippi river flowing almost 6,000 km and economically powering significant parts of US Upper Midwest. In an unassuming quite corner under a well branched shady tree I noticed a memorial structure commemorating the killing of eight people in El Salvador, including six Jesuit priests in 1989. The six priests were also professors at the university of Central America in El Salvador at that time.

Peace memorial

This May, as per Loyola’s ‘Maroon’, at the memorial event held at the Peace Quad at Loyola university New Orleans, now dedicated as a memorial to this tragedy, Prof Alvaro Alcazar addressed the gathering. ‘The colonial power that is still very much in place in Latin America has created a ‘faith’ that is blind to or silent about injustice. It was this faith that inspired the Jesuit’s activism, but it cost them their lives’.The involvement of US in this tragedy was also addressed by Prof. Susan Weisher something the United States has never taken accountability for.

US Foreign Policy

The many contradictions and positivity of US foreign policy and its vast turns and switches in reaching many parts of the world is like the mighty Mississippi that prowls almost through or parts of 32 US States. The depth and power of this vast river cannot be estimated by mere width and length. Hurricane Catarina breaching the dikes nearly destroyed the entire city of New Orleans.

Fr Eugene Herbert memorial

Early this year a memorial statue of Rev Fr. Eugene Herbert SJ was declared opened by Rt Reverend Ponniah Joseph, Bishop of Batticaloa in the outskirts of Batticaloa town right by the shores of Batticaloa lagoon. The statue was placed midway between the Batticaloa town, where he lived and taught, and the town of Eravur, where he ‘disappeared’ along with one of his students at the Eastern Technical Institute, where he was a Director. He was on his way on the scooter to arrange a safe way for the nuns trapped in a convent in the nearby town of Valaichchenai engulfed by ethnic riots.

Rev Fr Eugene Herbert was born in Jennings Louisiana. He joined the Jesuits on 14 Aug. 1941, while still in his late teens. He volunteered to join the ‘Ceylon Mission’ and arrived in Sri Lanka in 1948. As in the traditions of Jesuits as providers of high-quality education from their founding of their first school in 1548, Rev Fr Herbert served particularly in two schools in the East, St. Josephs College Trincomalee and St. Michael’s College Batticaloa. It is well known that Education in the Jesuit tradition is a call to human excellence. It develops the whole person from intellect and imagination to emotions and conscience. It approaches academic subjects holistically, exploring the connections among facts, questions. Insights, conclusions, problems and solutions. It has succeeded in a variety of cultures because it adapts to the context of the learner.

Multi-talented

Rev Fr. Herbert was a multi-talented genius excelling in music, science, technical studies, vocational studies and to be outdone of it all, in the basketball courts. In all disciplines, he brought a stricter structure that is besides excelling in the fundamentals, incorporating situational strategies encompassing critical thinking and adaptation. This was greatly visible none other than in the basketball courts where he injected exuberance and counter strategies to conventional wisdom. Saint Michael’s College Batticaloa up until his arrival in 1974 just was crawling in all Island Championships more so maintaining the status-quo. But Rev Fr Herbert revolutionised the outcome when Saint Michael’s started winning All Island Championships almost in all age groups against much more resourced Colombo schools.

Excellence in Basketball

Human excellence as we all know is not rocket science but striving to be the best with practice, discipline and endurance. But Rev Fr. Herbert’s presence provided the boys from the East who often lacked a concentrated leadership with clear and precise roadmap. The structural imbalance whether it be not so well built or barefooted at matches, didn’t determine the outcome. Rev Fr, Herbert provided energy and leadership both morally and corporally to the boys of the East who faced systemic roadblocks by not getting the direction and leadership. This was further evidenced by Rev Fr. Herbert’s active and emotional coaching that led the College teams to ignore opponent’s big city environments and large support base, but to keep concentrated on the final execution, the championship.

The referees in matches, where Saint Michael’s played paid greater attention to their decisions something that became standard when dealing with someone who knew the rulebook top to bottom. Rev Fr. Herbert quite often, if not in all matches, where St. Michaels College played could be seen challenging the referees for their inaccurate or missed calls. He always carried a basketball rulebook and could be seen feverishly waving the exact page of the rule and exclaims at top pitch when the referees failed to observe especially when the game was heated, and the difference between was swinging by one or two points.

Reaching the stars

I can remember that Rev Fr. Herbert once refused to participate in a Consolation Finals of a tournament. The team wanted at least to bring home a Consolation Finals Trophy, having failed to reach the finals. Rev Fr, Herbert looked at it differently. ‘We came here for nothing else but for the Championship trophy. Now that we couldn’t, we are catching the 8.00 PM night train tonight back to Batticaloa – and by the way, the practice for the next tournament will begin tomorrow evening, be on time’.

Rev Fr. Herbert’s humanity was visible in practically everything he exemplified, calculating the speed of the travelling train to explaining the mechanism of automobiles and the melodies from his clarinet. Between the matches and practices in Colombo he said mass at the Jesuit residence at Bambalapitiya. As teenagers with expectations we got confused sometimes with his message from the pulpit. ‘We strive to become the best and win. But at times that is not possible, and we have to accept defeat gracefully. But we have to rise again learning from our mistakes’.On another occasion, the security person refused to allow us to sleep on the floor of an enclosed classroom.

The train was late, and it was late in the evening; there was no one to instruct the security to open the classroom. He was ready to allow only the priest to the reserved quarter upstairs. ‘I will stay with the team and do not need any special arrangement,’ said Rev Fr without blinking, sleeping the entire night with us on the ground of an open but roofed half basketball-court, using his cassock as the bedsheet.

Rev Fr. Herbert exemplified through his life the true meaning of his calling and forging a future full of hope to a population that was at the receiving end of things for a longest while.

Last letter

In one of his last letters to his fellow Jesuit in New Orleans he wrote,’ Enough for our trials. The Lord continues to take care of us. I had really planned to write to USAID for another grant. We are running rehabilitation courses for ex-militants and other youth. Every four months we train 20 boys in welding, 20 in refrigeration repairs and 25 in house wiring. Every six months we train 15 in radio and TV repair. This is in addition to our regular three -year course in general mechanical trades’.

‘Pray for us. God willing the current instability and disturbances will be changed by the time I write again. We are used to vast fluctuations in fortune’.

Rev Fr. Herbert’s letter foretells several aspects of humanity that he was called upon to uphold.

The US continues to provide resources to ensure economic wellbeing, stability and peaceful existence across the Globe. The rule of law cannot be simply behavioral codes or identifying the cause or the culprit but ensuring resources and direction for the citizenry in general to break the cycle and rise above injustice. The rule of law cannot be applied differently to different set of people or on a best effort basis.

Breaking down societal imbalances

El Salvador and Sri Lanka were victims of a vicious violent cycle, where Jesuits lost their lives in obeying to their calls from above in their attempt to remake what it ideally should be. Many lost their lives in these cycles of hatred and violence both ordinary and clergy, including my well-liked and ever smiling classmate Rev Fr Savarimuthu Selvarajah. Fr Herbert’s disappearance galvanizes the distrust in our own destiny; many thousands were killed by fellow citizens than in the nearly 500 years of combined occupation by the foreign colonial powers.

The mighty Mississippi River, which travels almost 6,000 km is hardly comparable to a mere 56 km-long Batticaloa lagoon. Yet the son who was born on the shores of Mississippi became the true son by the shores of the Batticaloa lagoon.

This August 15th marks the 32nd anniversary of Rev Fr. Eugene Herbert’s ‘disappearance’. Ironically, at the time of his disappearance he was a year less a day from celebrating his Golden Jubilee in joining the Jesuits (14th August 1941). No one has been brought to date to justice or rather under the clauses of the ‘rule of law’. The one who held the rulebook up above his head is still denied justice.Batticaloa and the entire Sri Lanka lost one of its true sons, and he just happened to be born in the United States of America.

 

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Vijaya Nandasiri : Losing it in laughs

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By Uditha Devapriya

Vijaya Nandasiri left us six years ago. The epitome of mass market comedy in Sri Lanka, Nandasiri belonged to a group of humourists, which included Rodney Warnapura and Giriraj Kaushalya, who redefined satire in the country. Nandasiri’s aesthetic was not profound, nor was it subtle. It was not aimed at a particular segment. Indeed, there was nothing elitist or pretentious about it; if you could take to it, you took to it. It was hard not to laugh at him, it was hard not to like him. Indeed, it was hard not to sympathise with him.

In the movies, Sri Lanka’s first great humourist was Eddie Jayamanne. Typically cast as the servant or bumpkin, Jayamanne could never let go of his theatrical roots. More often than not his laughs targeted a particular segment, so much so that when Lester Peries cast him as the father of the hero’s lover in Sandesaya, he still seemed stuck in those movies he had made and starred in with Rukmani Devi. Many years later he was cast as a close friend of the protagonist in Kolamba Sanniya, in many ways Sri Lanka’s equivalent of It’s a Mad, Mad, Mad, Mad World. Even there, he could not quite escape his origins.

In Kolamba Sanniya, Jayamanne played opposite Joe Abeywickrema. Hailing from a different background, more rural than suburban, Abeywickrema had by then become our greatest character actor. Dabbling in comedy for so long, he found a different niche after Mahagama Sekara cast him in Thunman Handiya and D. B. Nihalsinghe featured him as Goring Mudalali in Welikathara. Yet he could never let go of his comic garb. Cast for the most as an outsider in the cities and the suburbs – of whom the epitome has to be the protagonist of Kolamba Sanniya – Abeywickrema discovered his élan in the role of the man who falls into a series of absurd situations, but remains unflappably calm no matter what.

There is nothing profoundly or intellectually funny in Kolamba Sanniya. Like It’s a Mad, Mad, Mad, Mad World, the humour emerges from the characters’ imperfections and foibles: their way of looking at the world, their accents, their lack of polish and elegance. The dialogues are not convincing, and some of the situations – like the hero’s family discovering a bidet for the very first time – are downright silly, if not condescending. What strengthens the story is Joe Abeywickrema’s performance; specifically, his ability to convince us that, despite the situations he is being put through, he can stand on his own. Like the protagonist of Punchi Baba, left to take care of an abandoned baby, he is helpless but not lacking control. He often makes us think he’s losing it, but then gets back on track.

Vijaya Nandasiri was cut from a different cloth. In many respects he was Abeywickrema’s descendant, yet in many others he differed from him. Whereas Abeywickrema discovered his niche playing characters who could conceal the absurdity of the situations they were in, Nandasiri’s characters could only fail miserably. Abeywickrema convinced us that he was in control; Nandasiri could not. As Rajamanthri, the politician who for most of us epitomised the silliness and stupidity of our brand of lawmakers, he frequently parrots out that he’s an honest man. Abeywickrema could say the same thing and get away with it. Nandasiri could not: when he says he’s honest, you knew at once that he was anything but.

Nandasiri revelled in having no self-respect even when we ascribed to him some sense of honour and dignity. In Nonawarune Mahathwarune the ubiquitous Premachandra flirts with the woman next door (Sanoja Bibile), though we don’t get why the latter never returns his affections. As Senarath Dunusinghe in Yes Boss, the situation is reversed: he has to suffer another man flirting with his wife, the issue being that the man happens to be his employer who doesn’t know that they are married. The whole plot pivots on two things: the fact that his boss doesn’t like him, and the fact that he has to disguise himself as an older husband of his own wife to conceal their marriage from his boss.

In his own special way, Nandasiri went on to represent our contempt for womanisers, cuckolds, and politicians, by turning them into easily recognisable and easily mockable stereotypes. In Nonawarune Mahathwarune he was the womaniser, in Yes Boss he was the cuckold – though his wife only pretends to give in to their employer’s advances – and as Rajamanthri, easily the most recognisable comic figure here during the past 20 years, he was the politician. It was as Rajamanthri that he prospered, even when playing characters who only vaguely reminded us of him, such as the antihero of Sikuru Hathe.

Many years ago, I watched a mini series on Rupavahini revolving around a politician and his driver. Vijaya Nandasiri played the politician, Vasantha Kumarasiri’s driver. Early on I sensed something odd about them. Their voices were different. The dubbing team had synced one actor’s voice with the other, a trick that survived the first 10 minutes of the first episode, after which these two meet a horrible accident that (inexplicably) leaves onlookers and relatives confused as to whose body belongs to whom.

Both are near dying. A quick surgery is hence followed by a quick plastic surgery, in which the wrong face is placed on the wrong body. The voices now revert to the correct actor. In hindsight this was an unnecessary gimmick, but also a useful trick, since for the rest of the story the driver becomes the believer in authority and the politician the believer in Marxist politics. Crude, and rather one-dimensional, but fun. And it wasn’t just a change of voice: it was also a change of spirit, of two contradictory personalities transplanted to each other. That was Nandasiri’s charm. You could never anticipate anyone other than him when he was there. For the mini series to work, hence, he had to be himself.

If Joe was redeemable because he was at the receiving end of some confusing dilemma (like the baby he raises in Punchi Baba, or the lifestyle in Colombo he gets used to in Kolamba Sanniya, Vijaya was unredeemable because he was at the other end, always provoking if not unleashing some havoc. It’s not a coincidence that, in this respect, his characters were always middle class, consumerist, very often in professions that called for security, stability, and status: as a Junior Visualiser in an ad agency in Yes Boss, as the chief in a security firm in Sir Last Chance, and as a police sergeant in Magodi Godayi. These symbolised a lifestyle that Nandasiri’s antiheroes sought to subvert and to defy.

Where he was his own man – the magul kapuwa in Sikuru Hathe or Rajamanthri in so many movies and serials – he wasn’t a provocateur, but a lovable antihero. And like all antiheroes, he conceals goodness because he despises it: in Sikuru Hathe, for instance, he commits one deception after another for his family’s sake, especially his daughter’s.

Where he was paired with another actor, I think, Nandasiri failed. He was his man, so when in Methuma he and Sriyantha Mendis are mistaken for two lunatics by a veda mahaththaya in a village, he could not really shine the way he had in Ethuma. Even in Magodi Godayi, he was less than he usually was whenever he was opposite Gamini Susiriwardana. Yes Boss and Nonawarune Mahathwarune had him among a plethora of other actors, to be sure, but then he was on his own there. There are moments in Yes Boss when Lucky Dias nearly outshines him. But Nandasiri gets back on track; he exerts his dominance again.

In other words, Nandasiri could give his best only if his co-star was alive to his range, or if his character was of a lesser pedigree than his co-star. That is what happens in King Hunther, where he could be himself opposite Mahendra Perera for two reasons: because Mahendra was a fairly good comic actor himself, and because Nandasiri’s character, Hunther, hails from such a different world that the present (in which Mahendra is an escaped convict) appears outlandish to him. Hunther to get used to this world, and that means getting used to the first two people he befriends: Mahendra and Anarkali Akarsha.

Vijaya Nandasiri’s ultimate triumph was his gift at getting us to feel for unfeeling antiheroes. Sometimes he could trump us, as Abeywickrema often did, like in King Hunther, when he hears that the politician who befriends him to further his career has decided to kill him off, and surreptitiously escapes. You never thought he was capable of upping the antagonist, but he does just that, providing us with the final twist in the story.

He couldn’t behave this way as Rajamanthri because he was not reflecting our contempt for figures of authority, but downright embodying it. When, towards the end of Suhada Koka, he is killed off by an assassin acting on the orders of the second-in-command to the Prime Minister (the latter played by W. Jayasiri), the film preaches to us a homily on the corrupting influence of power, a warning for all politicians. But then, just as you come to terms with this conclusion, he wakes up; the whole scene, it turns out, was a nightmare.

Ordinarily, you’d think he would learn from such a nightmare. But he doesn’t. Even after that harrowing fantasy, he is soon back to being the pompous figure he always was. Yet in that brief sequence he told us everything that needed to be told about how the corrupt remain corrupt, and how irredeemable they are. Was it a cruel coincidence, then, that the only time Rajamanthri was killed off like that marked the last time Vijaya Nandasiri played Rajamanthri? We may never know, but perhaps it was more than a coincidence. Perhaps it was the only fitting end to such a career that could be filmed.The writer is an international relations analyst, researcher, and columnist who can be reached at udakdev1@gmail.com

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22A: Composition of CC problematic; ensures government domination

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By Dr. Jayampathy Wickramaratne
President’s Counsel

The Wickremesinghe-Rajapaksa government’s new Twenty-Second Amendment to the Constitution Bill was presented to Parliament on 10 August 2022. The earlier Bill, which was published in the Gazette in June 2022, lapsed as it was not presented before the recent prorogation of Parliament.

The August Bill is an improvement on the June Bill from a Nineteenth Amendment perspective. Under 19A, Ministers and Deputy Ministers were appointed by the President on the advice of the Prime Minister. This was done away with by the Twentieth Amendment. The June Bill sought to bring back the requirement of the Prime Minister’s advice, but that provision would not apply during the present Parliament. The August Bill does not have such an exception.

According to the June Bill, where the President is of the opinion that the Prime Minister has lost the confidence of the present Parliament, the Prime Minister can be removed. Such a provision is not found in the August Bill.

Under 19A, the Speaker, Prime Minister and Leader of the Opposition were ex officio members of the Constitutional Council (CC), while the President would nominate one MP. Five persons were nominated jointly by the Prime Minister and the Leader of the Opposition, two of them being MPs. In making such nominations, they were required to consult the leaders of political parties and independent groups represented in Parliament to ensure that the CC reflects the pluralistic character of Sri Lankan society, including professional and social diversity. One MP was nominated by the MPs belonging to parties other than those to which the Prime Minister and the Leader of the Opposition belonged. The three persons from outside Parliament shall be persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party. Parliament shall approve their nomination. In practice, such approval was a mere formality as they were nominated jointly and after a consultative process.

The August Bill, like the June Bill, proposes the re-establishment of the CC but makes a crucial change. The five persons referred to are not appointed pursuant to the joint nomination of the Prime Minister and the Leader of the Opposition. One MP is nominated by the Government Parliamentary Group, and the other MP is nominated by the party to which the Leader of the Opposition belongs. The three persons from outside are nominated not jointly by the Prime Minister and the Leader of the Opposition but by the Speaker in consultation with them. The smaller parties are not consulted.

This deviation from 19A gives rise to several issues. If the Speaker is partisan (and there have been several such Speakers), the Government could ensure that all three CC members from outside are their own nominees. The Government, by virtue of its majority, would have no difficulty getting Parliamentary approval. The smaller parties would have no say in the nomination of these three persons. Thus, in the current Parliament, parties such as the TNA, NPP, EPDP, TNPF etc., who together account for twenty-five MPs, would not be consulted.

The 22A Bill says that in nominating the two MPs and the three persons from outside Parliament, Members of Parliament shall ensure that the CC reflects the pluralist character of Sri Lankan society. This would be most difficult as they would be nominated by separate processes. Under 19A, on the other hand, that was ensured as the nomination was jointly by the Prime Minister and the Leader of the Opposition after consulting the leaders of all parties in Parliament.

The composition of the CC is of crucial importance for the achievement of a national consensus on high-level appointments. The approval of the CC is a pre-requisite for the appointment of judges of the Supreme Court and Court of Appeal and appointments to high positions such as the Attorney-General and the Inspector-General of Police. Appointments to independent Commissions are made on the recommendation of the CC. As the other seven members of the CC are all Members of Parliament and may be swayed by political considerations, the three members who are appointed from outside have a vital role to play. They should be persons acceptable to all and who can have a moderating influence on the politicians.

An argument that has been adduced by the Government is that the Prime Minister and the Leader of the Opposition may not agree on the to be nominated jointly. No such issue arose both under the Seventeenth and Nineteenth Amendments. Members of Parliament nominated jointly acted with responsibility. Distinguished personalities appointed by joint nomination included Justice Dr A.R.B. Amarasinghe, Professor Colvin Gunaratne, Dr Jayantha Dhanapala, A.T. Ariyaratne, Shibley Aziz, and Dr Radhika Coomaraswamy, Javid Yusuf and Professor N. Selvakkumaran.

That the Prime Minister and the Leader of the Opposition may not agree is no reason to give the power of appointment to the Speaker. The writer proposes that the 19A provisions be re-enacted with the addition that if the Prime Minister and the Leader of the Opposition do not agree on the nominees within a stipulated period, the Speaker will make the nominations in consultation with the Prime Minister, the Leader of the Opposition and the leaders of the smaller parties.

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