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NMSJ Proposals for New Constitution – Part II

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Constitutional Miscellany

By Dr. Jayampathy Wickramaratne
President’ Counsel

(Continued from Monday (13)

The National Movement for Social Justice (NMSJ) has proposed that Sri Lanka reverts to a parliamentary form of government. The NMSJ’s founder, Ven. Maduluwawe Sobitha Thera, who was a strong opponent of the Executive Presidency, frequently referred to the warnings of Madam Sirimavo Bandaranaike, Dr N. M. Perera and Dr Colvin R. De Silva against adopting a Presidential form of government.

Madam Bandaranaike said, in 1978: “The effect of this amendment is to place the President above the National State Assembly. Above the law and above the courts, thereby creating a concentration of State power in one person, whoever he might be. This has happened in other countries before, and history is full of examples of the disastrous consequences that came upon such nations that changed their Constitutions by giving one man too much power. We oppose this Bill firmly and unequivocally. It will set our country on the road to dictatorship, and there will be no turning back. This Bill will mark the end of democracy in Sri Lanka, as the late Dudley Senanayake realised when these same ideas were put to him in the United National Party.”

Dr De Silva had said: “There is undoubtedly one virtue in this system of Parliament (…) and that is that the chief executive of the day is answerable directly to the representatives of the people continuously by reason of the fact that the Prime Minister can remain Prime Minister only so long as he can command the confidence of that assembly. We do not want either Presidents or Prime Ministers who can ride roughshod over the people and, therefore, first of all, over the people’s representatives. There is no virtue in having a strong man against the people.”

The results of the Executive Presidency are all there to see. A President elected by a massive majority, supported by a two-thirds majority in Parliament, and strengthened by the 20th Amendment to the Constitution, has miserably failed and has given the lie to J. R. Jayewardene’s famous claim that “We need an executive freed from the whims and fancies of the legislators.” Collegial decision-making has again been proved to be better than decisions taken unilaterally in the Presidential Secretariat.

The Executive

The NMSJ has proposed that the President be elected by an electoral college, comprising, Members of Parliament and members of the Second Chamber. The electoral college shall also elect a Vice-President who shall be from a community other than the community to which the President belongs.

The President shall only be the formal Head of the Executive. Except where expressly provided by the Constitution, the President shall exercise powers on the advice of the Cabinet of Ministers conveyed to him by the Prime Minister. The Cabinet of Ministers shall be charged with the direction and control of the Government of the Republic. The Cabinet of Ministers shall be collectively responsible and answerable to Parliament.

The President shall appoint, as Prime Minister, the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament. However, the President shall not have the power to remove the Prime Minister.

The Prime Minister, appointed after a General Election, shall be deemed to have resigned if a vote of confidence in him is not passed at the first sitting of the new Parliament. A Prime Minister appointed after the first sitting of a Parliament shall be deemed to have resigned if a vote of confidence in him is not passed by Parliament within seven days of his appointment. The Prime Minister shall also be deemed to have resigned if a motion of no-confidence in the Government is passed, the Budget is defeated in Parliament or the Statement of Government Policy is defeated in Parliament.

Secretaries of Ministries and Heads of Departments shall be appointed by the National Public Service Commission in consultation with the relevant Minister.

Constitutional Council

Ven. Sobitha Thera strongly supported the Constitutional Council process and independent Commissions. The NMSJ has proposed that the Constitutional Council, abolished by the 20th Amendment, be re-established with powers not less than under the 19th Amendment. Apart from the Prime Minister, the Speaker and the Leader of the Opposition, the members of the Constitutional Council shall not be Members of Parliament.

The Right to Information Commission shall be added to the list of Commissions to which appointments could be made only on the recommendation of the Constitutional Council. The National Audit Commission and the National Procurement Commission, abolished by the 20th Amendment, shall be re-established. An agency to assist and advise state sector institutions in the matter of procurement shall be established by law. There is no need for a permanent Delimitation Commission. However, any commission, committee or person tasked with delimitation in relation to Parliamentary, Provincial or local authority elections shall be appointed on the recommendation of the Constitutional Council.

Members of any regulatory authority, established in relation to the electronic or other media, data protection, cyber security, public utilities, monetary and financial services, competition in trade and foreign trade, shall be appointed on the recommendations of the Constitutional Council.

The Governor of the Central Bank shall be added to the list of officials whose appointment must be approved by the Constitutional Council.

Devolution

Devolution introduced by the 13th Amendment has come to stay, and even the present Government, that came to power on a nationalist platform, is extremely unlikely to abolish Provincial Councils. If that be the reality, it is best that Provincial Councils be suitably empowered. Devolution must not be viewed only as a solution to Sri Lanka’s ethnic conflict but also as an instrument to develop the periphery. Sadly, successive governments have used every conceivable provision, literally speaking, every comma, or full stop, in the Constitution, to frustrate devolution.

The NMSJ has, accordingly, proposed that there be the maximum possible devolution, based on the principle of subsidiarity; that is, whatever could be more efficiently handled by the lowest tier should be vested in such tier. Local government shall be recognised as a tier of government. The allocation of subjects and functions between the three tiers of government shall be guided by the principle of subsidiarity. Such allocation shall be clear and unambiguous and shall not be overridden or encroached on, except by constitutional amendment.

The Province shall be the primary unit of devolution. The term of a Provincial Council shall be five years. Elections to all Provincial Councils shall be held on the same day. Appropriate constitutional provisions shall be made to ensure that elections are held regularly for all Provincial Councils, as in the case of Parliamentary elections.

If a Provincial Council passes a motion of no-confidence in the provincial administration, or the Budget, or the Statement of Policy, is defeated in the Provincial Council and a new administration formed does not win a vote of confidence within 14 days, the Provincial Council shall be dissolved, and the Governor shall be in charge of the Provincial administration until an election is held for the constitution of the Council along with elections for the other Provincial Councils.

Parliamentary legislation on matters in the Provincial Council List shall not have the effect of the Centre taking over the administration of such matters. In formulating national policy on matters contained in the Provincial Council List, the Central Government shall adopt a participatory process with the Provincial Councils. The Constitution shall provide the circumstances in which the Centre may prescribe national policy.

National policy, declared by the Central Executive, shall not override statutes enacted by a Provincial Council in respect of matters in the Provincial List. However, if central legislation is enacted to give effect to such national policy in accordance with the constitutional provisions relating to the enactment of legislation on devolved subjects, the relevant Provincial statutes shall be read subject to such national legislation. The approval of the Second Chamber would be necessary for such legislation. The formulation of national policy on a Provincial List matter would not have the effect of the Centre taking over executive or administrative powers with regard to the implementation of the said devolved power; the Provinces will retain executive or administrative powers in relation to the said devolved power.

Parliament may, by law, provide for the implementation of functions on selected subjects in the Reserved List by the Provinces. Parliament or Provincial Councils may by law/statute provide for the implementation of specified functions within their purview to be carried out by local authorities.

Regarding the Provincial Executive, the NMSJ proposes that the Governor of a Province should not have been politically active during the period of three years, immediately prior to appointment, and shall not be involved in politics during the period of office.

The Chief Secretary of a Province shall be appointed by the National Public Service Commission with the concurrence of the Chief Minister. Secretaries of Provincial Ministries and Heads of Departments shall be appointed by the Provincial Public Service Commission in consultation with the relevant Provincial Minister.

The appointment, promotion, transfer, dismissal, and disciplinary control of officers of the Provincial Public Service shall be by an independent Provincial Public Service Commission (PPSC) constituted for each Province. The members of the PPSC shall be appointed by the Governor on the joint nomination of the Chief Minister and the Leader of the Opposition of the Provincial Council concerned. Where there is no agreement between the Chief Minister and the Leader of the Opposition, the Constitutional Council shall make the nominations after consulting the Chief Minister and the Leader of the Opposition.

There shall be a Chief Ministers’ Conference, comprising the Prime Minister and the Chief Ministers of all the Provinces, which shall meet at regular intervals to discuss issues of common concern and to promote inter-provincial and Centre-Province co-operation. The Prime Minister shall preside at the Chief Minister’s Conference.

Community Councils:

Constitutional provisions shall be made to ensure that at various levels of government and in different geographical areas, the rights of communities that are minorities within such areas are protected.

(To be continued.)



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Trump’s tariffs, AKD’s gazette and Sri Lanka’s diplomatic slumber

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“We are rather respectable in Colombo. We go to bed fairly early, and we remain there till morning. “

According to Sri Lanka’s diplomatic folklore, the late S.W. R. D. Bandaranaike uttered these words while explaining the reasons for Sri Lanka’s abstention on the UN resolution condemning the Soviet invasion of Hungary. Apparently, SWRD’s foreign ministry officials were asleep at home when the diplomatic cable seeking instructions was received from New York. In those days, there were no cell phones, Internet, or even fax or telex machines. The diplomatic cables were sent through post offices. Decoding them was a slow and time-consuming process. Thus, the government could not provide appropriate instructions to our mission in New York in time, and the Sri Lankan delegation abstained on that sensitive UN vote.

Sri Lanka’s Absence from Section 301 Consultations

But then, how does one explain Sri Lanka’s absence from the crucial bilateral consultation held in Washington by the Office of the United States Trade Representative (USTR) during March-April on “Forced Labour” under the Section 301 of the US Trade Act of 1974? Didn’t our foreign and trade ministries send appropriate instructions to Washington in time? Even if the instructions from the foreign ministry were transmitted to our embassy in Washington by pigeon carriers, there was enough time for Sri Lanka to participate in those meetings.

In March, the USTR initiated these 301 investigations on 60 trading partners, and invited all of them for confidential consultations. Out of the 60, 46 participated in these consultations. Sri Lanka was not one of them. Other countries that didn’t participate in these consultations included China, Russia, and Venezuela! In addition to that, the Section 301 Committee conducted a public hearing with interested parties on April 28 and 29. Washington-based diplomats, representatives from few trade ministries as well as representatives from many foreign trade associations and chambers participated in these hearings. Sri Lanka was once again conspicuously absent.

As a result, when the USTR published the proposed forced labour tariffs on June 2nd, Sri Lanka ended up with a 12.5% duty. Pakistani and Indonesian diplomats participated in these consultations and took appropriate follow-up measures, and managed to enter the 10% duty category. As even a threat of a modest tariff hike could disrupt supply chains and reduce competitiveness, particularly in an industry such as garments, I discussed this issue on 15 June and underscored the importance of Sri Lanka’s participation at the next hearing, which was scheduled to be held from July 7th .

Awakening from Diplomatic Slumber and AKD’s Gazette

Fortunately, Sri Lanka finally awoke from weeks of diplomatic slumber, and Ambassador Mahinda Samarasinghe participated in the public hearing on 9 July, and promised, “…. · We have agreed to the text in our negotiations with the USTR on forced labour, …. The gazette as we speak is being printed and I’m getting the gazette tomorrow morning, and the gazette will be shared with USTR as I get it“.

As promised, President Anura Kumara Dissanayake issued a gazette on 10 July banning the imports of goods produced by forced labour. These new regulations are very similar to what Pakistan and Indonesia enacted in April, after their consultations with USTR in March. Why couldn’t we do it in April? Why did we wait till the very last minute?

Challenges ahead

“War is too important to be left to generals alone,” is a famous saying attributed to former French Premier Georges Clemenceau. Similarly, monitoring our main markets is too important to be left to diplomats alone. The United States is the largest single-country market for Sri Lanka. Therefore, Sri Lankan trade chambers and associations should become more proactive in these markets and participate in these events. For example, the chairman of the Pakistani apparel exporters association participated in the April hearings. Similarly, representatives from the Indian Agricultural and Processed Food Products Export Development Authority, the Federation of Indian Chambers of Commerce and Industry, the Confederation of Indian Industry, and Reliance Industries also participated in July hearings. At an event where each speaker is given only five minutes (strictly enforced), having a number of speakers from a country is an advantage. The presence of industry representatives in these kinds of events also help them understand the market dynamics and the future challenges. This is important, particularly because there will be many more challenges with Trump’s tariffs.

With the gazette issued on 10 July, Sri Lanka has imposed a prohibition on the importation of goods produced with forced labour. Now, the challenge will be to effectively enforce the prohibition. And what are the goods produced with forced labour? The USTR list only focuses on aluminum, cotton, electronics, lithium-ion batteries, rice, and tobacco. However, according to the U.S. Department of Labour, the list is much longer. Hence, this list may change continuously during the next two years and tariffs may fluctuate once again.

So, this is definitely not the time to slumber.

(The writer, a retired public servant, can be reached at senadhiragomi@gmail.com)

by Gomi Senadhira ✍️

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Tales of Mystery and Suspense 10 Casino for Sale

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After the overwhelming grotesquerie of J K Rowling’s latest Cormoran Strike novel (written, I should have noted, as the others were, under the pseudonym Robert Galbraith), I thought I should return to the world of fun, and also a much shorter description since this thriller moves quickly without the layers of detail that Rowling engages in.

I then move to the second comic thriller by Caryl Brahms and S J Simon. This, their second story to feature Vladimir Stroganoff and Adam Quill, was Casino for Sale, as lunatic a romp as the first, though without the emphasis on the ballet that characterized A Bullet in the Ballet.

This one begins with the impresario Stroganoff buying a casino cheap from Baron Sam de Rabinovich, only to find that it was a rundown place, not the grand casino of La Bazouche, a resort on the Frenc+h Riviera, as he had initially thought. The grand one belonged to Lord Buttonhooke, and Stroganoff could  not compete, until he thought of bringing the Ballet Stroganoff to the casino – which of course leads to Buttonhooke deciding to have ballet performances in his Casino too.

Stroganoff invites Quill to visit him, which Quill decides to do since he has left Scotland Yard, having come into a legacy. No one believes this, and he has to face questions as to what he did to have been sacked, with sympathy for having been found out.

Caryl and Simon

The day he arrives in La Bazouche there is a murder, of a vitriolic critic called Citrolo, in Stroganoff’s office. He had been going to write a damning review of the opening night of the ballet and Stroganoff, when he realizes Citrolo cannot be swayed, drugs him and dictates the review himself to the papers. He leaves Citrolo sleeping and finds him shot the next morning, whereupon he decides to muddy the waters and leave a suicide note and lots of other murder weapons. So much overkill, as it were, of course ensures that he is arrested.

But the excitable French detective who makes the arrest follows up his suggestion that Buttonhooke was also involved, and so the two casino owners find themselves in cells next door to each other, with the detective Gustave quite happy to provide creature comforts for a fee.

Quill decides he must investigate, and finds Gustave most cooperative, since he has a laid back attitude to work. So it is Quill that finds a notebook which makes it clear Citrolo is an accomplished blackmailer, and that there are lots of possible murderers, including Stroganoff’s croupier, who was crooked, Rabinovich, who was now working for Buttonhooke, a confidence trickster called Kurt Kukumber, whose prospectus for a dud gold mine was found in the office and Prince Alexis Artishok who was engaged in a deal to buy diamonds from the ballerina Dyra Dyrakova.

Stroganoff had been trying to get Dyrakova to dance for him, but having done so previously she had refused. But then to Stroganoff’s chagrin she agreed to dance for Buttonhooke. The clearly crooked Artishok had told Buttonhooke’s mistress Sadie Souse, who was not very bright, that Dyrakova possessed diamonds she was willing to sell cheap, and Sadie was determined to have them.

Quill meanwhile finds out that there was a secret passage to Stroganoff’s office, the obvious solution to what had begun as a locked room mystery, and that this was known by almost everyone apart from Stroganoff himself. And then Rabinovich is murdered, just after Gustave had released his two original suspects, leading him to blame Quill for having insisted on that and thus allowing them to kill again.

Soon afterwards Dyrakova arrives, and the town is full of posters announcing that she will appear in the casinos, elaborate posters for either one, since Stroganoff is determined that she will dance for him, and if she does not come willingly, he has devised a scheme to make her do so unwillingly. So, though Buttonhooke has her taken off to his yacht immediately she arrives at the station, Quill along with Arenskaya gets her into a launch and to Stroganoff’s casino, where she performs to tumultuous applause, not knowing for whom she is dancing.

When Quill asked her about the diamonds, she said she had sold them long ago, and that gave Quill the solution to the mystery. Rabinovich had known about this, and Artishok had killed him to prevent Sadie learning it from him, he had killed Citrolo who had recognized him for an accomplished card sharper, not a Russian prince at all. But before he is arrested, he gets away in a boat, and the police launch that pursues him is on the point of catching him up when it runs out of petrol.

Again, lots of excitement, and entertaining references  – Gustave grows marrows – and if not quite as brilliant as its predecessor, Casino was certainly a delightful read.

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The challenge of being positive about SAARC

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The RCSS forum addressed by SAARC Secretary General Ambassador Md. Golam Sarwar in progress. (Pic courtesy RCSS)

It was a few years back that a former President of Sri Lanka took it on himself to pronounce SAARC ‘dead’. Since then there have been other sections of Sri Lankan opinion that have joined the critics of SAARC and taken the solemn stance that SAARC has indeed died what may be called a natural death.

Their fatalism is understandable. SAARC has failed to meet at heads of government or state level for the past several years to take the SAARC process notably forward. Regional cooperation has more or less been only an appealing idea. No substantive concrete projects have taken off to make the idea a hard reality. ‘Inner paralysis’ seems to be SAARC’s lot. Hence the fatalism in these circles.

However, being one of the worst cash-strapped regions of the world and a teemingly populated one with people virtually left to their devices, what choices do the ‘SAARC Eight’ have other than to try their best to band together and continue with their cooperation efforts, however small they may be?

There is no escaping the mounting debt trap for many of these countries and bankrupt Sri Lanka is a glaring example, but ‘throwing in the towel’ and abandoning themselves entirely to the diktats of the strongest economies and their agencies will prove a ‘living death’ for many countries in the SAARC fold.

The gains may be meagre but giving-up on SAARC cooperation in full would prove self-defeating for the organization and South Asia. Right now, the collective intention ought to be to salvage what the region could from the tenuous cooperative efforts. Moreover, such initiatives could go some distance to generate a degree of goodwill among the Eight and help in sustaining a dialogue process.

Given this backdrop it proved ‘a stich in time’ for the Regional Centre for Strategic Studies (RCSS), Colombo, to recently host the SAARC Secretary General Ambassador Md. Golam Sarwar to a round table discussion on the unifying potential of SAARC and its future possibilities, besides other related issue areas.

Held on June 24th and moderated by RCSS Executive Director and former ambassador Ravinatha Aryasinha, the forum brought together a vibrant, wide ranging audience comprising academicians, diplomats, senior public servants, civil society activists and many others. Following the presentation by Ambassador Golam Sarwar titled, ‘Reigniting SAARC: Achievements, Challenges and the Way Ahead’, a lively Q&A followed.

The above forum could be described as an act of lighting the proverbial ‘candle’ rather than ‘cursing the darkness.’ It surely is a ‘darkness’ that could be seen as daunting considering that the region’s pivotal powers, India and Pakistan, are failing to act in a spirit of accord but are engaged in bitter finger-pointing on a number of questions of vital importance to SAARC.

On the other hand, what is the rest of the region doing to bring the above sides together? It is disappointing that to date the rest of SAARC has failed to launch a major diplomatic drive to bring peace between the feuding regional heavyweights. It needs to act without delay and establish its earnestness and this effort would need to prove SAARC’s staying power in the unfolding months and even years.

In assessing SAARC’s seeming failure local opinion in particular has failed to factor in what could be described as weak leadership. Since Sheikh Mujibur Rahman of Bangladesh, the founding father of SAARC, the region has failed to produce a visionary leader who could advance the SAARC cause with charisma and drive.

Among other reasons, weak leadership accounts considerably for the faltering and stuttering status, as it were, of SAARC. Badly needed are leaders who could go the extra mile, think less of narrow national interests and work diligently towards the collective well being of the region but SAARC’s millions of ordinary people have been made to wait in vain for leaders of such stature. Instead, they have been burdened with politicians who seem to be relishing the apparently moribund state of SAARC.

Looking back, it could be said that it was the dynamic leadership factor that led to the launching of the Non-Aligned Movement and for its sustenance for a few decades. True, it could be seen in some quarters that NAM is no more, but as in the case of SAARC, the former too has been unfortunate to be burdened over the years with politicians who lack the vision and drive to unflaggingly advance the fortunes of the South. NAM and SAARC lack the dynamism and vision of leaders of the stature of Jawaharlal Nehru, for example, to give them the required guidance and intellectual depth.

The reasons are complex for there not being among us currently political leaders with the vision and the steadfast commitment to advance the legitimate interests of the South. However, it could be stated with conviction that the majority of Southern leaders have too easily caved in to the demands of the global North and its financial agencies.

These leaders have failed to see, for instance, that the largely market economy oriented Northern governments would not view with favour a centrist economic model that attaches priority to the interests of the dis-empowered publics of the South. This realization ought to have dawned on the current government in Sri Lanka, for instance, some while ago but it has no choice but to abide by IMF dictates since economic survival at present is unthinkable without the latter’s succour.

Accordingly for SAARC this should be the time for some soul-searching. Priority needs to be attached to ending the feuding between India and Pakistan since at present the material fortunes of the region hinge largely on these regional giants giving peaceful relations among them a try. This is no easy challenge to meet but some daring, visionary diplomacy needs to take hold among the rest of SAARC.

There is some sense in SAARC bringing the peoples of the region together through programs that address their best collective interests. A meeting of minds among SAARC nations could enable SAARC and its agencies to build a region-wide people’s movement for progressive political and economic change that could in turn lead to the region’s political leaders sensitizing themselves more to the neglected needs of their publics.

However, the time is ‘now’ for the initiation of these progressive changes and the voice of SAARC well wishers would need to drown out those of their critics.

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