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SOME SERIOUS CONSTITUTIONAL ISSUES

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THE 20TH AMENDMENT BILL –

By Dr Nihal Jayawickrama

The author of the 1978 Constitution has never been officially disclosed. It was included in the report of a select committee of the National State Assembly appointed to consider amendments to the first republican constitution of 1972 without it ever having been considered by that committee. It was passed in the NSA with the requisite two-third majority and became law in September 1978. For the first time in our constitutional history, 12 of its Articles were declared to be unamendable except with a two-third majority in the Parliament that it established, followed by approval of the people at a referendum.

The first of these Articles changed the name of the Island from the “Republic of Sri Lanka” to “the Democratic Socialist Republic of Sri Lanka”, following the example of Chairman Kim Il-Sung who renamed his country as the Democratic Peoples’ Republic of Korea. Article 3 states that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. A Bill which is inconsistent with this Article becomes law only when it is passed with a requisite majority and then approved by the People at a referendum. Article 4, which is not among the twelve, explains how sovereignty shall be exercised and enjoyed.

 

The powers of government

The President of the Republic is described in Article 30 as “the Head of State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces”. The description of his title is identical to that in both the 1946 and 1972 Constitutions. In the exercise his powers and functions (except when appointing the Prime Minister), he is required to act on the advice of the Prime Minister and the Constitutional Council. Therefore, he is in every respect, a constitutional Head of State. Under the Constitution, the powers of government are vested in the Prime Minister who is the Member of Parliament who enjoys the confidence of Parliament, and in the Cabinet of Ministers who are all Members of Parliament chosen by the Prime Minister. The Prime Minister may be removed from office only through a vote of no-confidence passed in Parliament, and it is only the Prime Minister who may determine whether or not to remove a Minister from his or her office. The Cabinet of Ministers are collectively responsible and answerable to Parliament. The 20th Amendment Bill seeks to transfer all the powers of the Prime Minister to the President and empowers him even to remove the Prime Minister and the Cabinet of Ministers. It also seeks to abolish the Constitutional Council. Article 3 states quite emphatically that the powers of government, as set out in the Constitution, are “inalienable”.

 

The judicial power of the People

The Constitution has vested judicial power exclusively in the judiciary. The 20th Amendment Bill seeks to vest the President with the power to appoint not only the Judges of the two appellate courts, but also the members of the Judicial Service Commission which is responsible for the appointment of judges of original courts. Today, he may exercise these powers only with the approval of the Constitutional Council. In effect, therefore, the person who has absolute control of the executive, as well as the legislative programme in Parliament, will also be the person who will have absolute discretion is choosing and appointing the judiciary which is the institution vested with the power to determine whether the actions of the executive and the legislature are in accordance with the constitution and the law. Will this not infringe the judicial power of the People which is identified in Article 4 of the Constitution as being an element of the sovereignty of the People protected by Article 3?

The judicial power of the people includes the right of access to the judiciary. The Constitution now enables a citizen to invoke the jurisdiction of the Supreme Court to determine whether any provision in a Bill placed on the Order Paper of Parliament is inconsistent with the Constitution. The 20th Amendment Bill seeks to limit, if not deny, that right by permitting the Cabinet to certify that a Bill in “urgent in the national interest”. In such event the Bill will be forwarded by the President to the Supreme Court for a special determination on constitutionality to be made within 24 hours. That determination will be forwarded only to the President and the Speaker, and the Bill may be immediately passed by Parliament. The denial of access to the judiciary is surely an interference with the judicial power of the People protected by Article 3.

 

The fundamental rights of the People

The fundamental rights of the People are protected by Article 3. These are set out in Chapter III of the Constitution; in Article 126 which provides a remedy for the infringement of any fundamental right; and in Article 35 which provides a remedy for the infringement of a fundamental right by any act done or omitted to be done by the President in his official capacity. The 20th Amendment Bill seeks to abolish the fundamental right to a remedy in respect of the official acts of the President now provided in Article 35 and is clearly an infringement of Article 3.

 

The franchise

The integrity of the franchise is protected by the establishment of an independent Election Commission appointed by the President on the recommendation of the Constitutional Council. The 20th Amendment Bill seeks to empower the President not only to appoint the Commission, but also to remove any member of that Commission, thereby seriously compromising the independence of the body established by the Constitution to ensure the integrity of the electoral process. The franchise is an integral element of the sovereignty of the People protected by Article 3.

The C-in-C and Minister of Defence

There appears to be a misunderstanding of the President’s role as Commander-in-Chief. Under the 1946 Constitution, the Queen was the Head of State, Head of the Executive and the Commander-in-Chief of the Armed Forces, and these powers were exercised on her behalf by a succession of Governors-General who acted on the advice of the Prime Minister. When the 1972 Constitution replaced the Queen with a President as Head of State, Head of the Executive, and Commander-in-Chief of the Armed Forces, those high-sounding titles did not bring with them any special powers. The Commander-in-Chief is not a uniformed officer. In parliamentary democracies, the principle of civilian control of the military is established through the designation of the Head of State as Commander-in-Chief as well. It is the President who declares war and peace, subject to the provision of resources by Parliament. It is the President who invokes the Public Security Ordinance and declares a state of emergency, subject to the approval of Parliament. These powers are vested in the Head of State, and not in the Minister of Defence.

 

Provincial Councils

The Government appears to have overlooked the fact that the abolition of the Constitutional Council, which is seeks through the 20th Amendment Bill, also impacts on the chapter in the Constitution dealing with Provincial Councils. Section 41 of the Bill seeks to amend Article 154R, an Article in Chapter XVIIA (Provincial Councils) of the Constitution. The purpose of the amendment is to enable the President to appoint three members of the Finance Commission without seeking the recommendation of the Constitutional Council, since the Bill seeks to abolish that Council. However, Article 154G of the Constitution states that no Bill for the amendment or repeal of any provision in Chapter XVIIA shall become law “unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon”. That was not done because the Provincial Councils stand dissolved, and the new Provincial Councils have not yet been elected.

The Provincial Councils Elections Act imposes a duty on the Election Commission, within one week of the dissolution of a Provincial Council, to publish a notice of its intention to hold an election to such Council. That has not been done. Therefore, when the 20th Amendment Bill was placed on the Order Paper of Parliament two weeks ago, it was done in violation of Article 154G of the Constitution. It is a repetition of the notorious 2012 Divineguma Bill episode where the Supreme Court held that Parliament could not proceed with such a Bill even if it was only in one province that a new Provincial Council had not yet been elected. Moreover, the failure to consult the elected Provincial Councils also impinges on the franchise, an element of the sovereignty of the people protected by Article 3 of the Constitution.

 

An intractable problem?

Ordinarily, the solution would be to withdraw the 20thth Amendment Bill from the Order Paper, delete section 41, and place the Bill back on the Order Paper. However, adopting that course will not resolve the problem. For as long as Article 154R remains in the Constitution in its present form, the Constitutional Council will also need to remain in place since it is on the advice of the Constitutional Council that the President may make appointments to the Finance Commission. But the 20th Amendment Bill seeks to abolish the Constitutional Council. Therein lies an almost intractable problem.



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Features

Investigative Journalism?

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I usually end up totally exhausted when I finish reading the local newspapers from the Pearl. There are so many burning questions and so much is written about them but there are no conclusions and definitely no answers. For example, we seem to have three burning issues right now and this is not in order of importance.

We have a lengthy report that has been published on the Easter Sunday carnage. Everybody knows what I am talking about. However, no one, be it an editor, a paid journalist or a single one of the many amateurs who write to the papers, has reached a conclusion or even expressed an opinion as to who was responsible. At least not a believable one! Surely there are energetic and committed young people in the field of journalism today who, if asked, or directed properly will go out and find a source that would give them at least a credible hypothesis? Or do conclusions exist and has no one the courage to publish them?

At least interview the authors or should I use the word perpetrators of that report. If they refuse to be interviewed ask them why and publish an item every day asking them why! Once you get a hold of them, cross-examine them, trap them into admissions and have no mercy. It is usually geriatrics who write these reports in the Pearl and surely a bright young journalist can catch them out with a smart question or two, or at least show us that they tried? The future of the country depends on it!

We have allegations of contaminated coconut oil been imported. These are very serious allegations and could lead to much harm to the general populace. Do you really believe that no one can find out who the importers are and what brands they sell their products under? In this the Pearl, where everyone has a price, you mean to say that if a keen young journalist was given the correct ammunition (and I don’t mean 45 calibres) and sent out on a specific message, he or she couldn’t get the information required?

We are told that a massive amount of money has been printed over the last few months. There is only speculation as to the sums involved and even more speculation as to what this means to the people of the Pearl. Surely, there are records, probably guarded by extremely lowly paid government servants. I am not condoning bribery but there is nothing left to condone, is there? There are peons in government ministries who will gladly slip you the details if you are committed enough and if you are sent there to get it by a boss who will stand by you and refuse to disclose his sources.

I put it to you, dear readers, that we do not have enough professional, committed and adequately funded news organisations in the country. We can straightaway discount the government-owned joints. We can also largely discount those being run by magnates for personal gain and on personal agendas. As far as the Internet goes, we can forget about those that specialise in speculative and sensationalist untruths, what are we left with O denizens of the Pearl? Are there enough sources of news that you would consider willing to investigate a matter and risk of life and limb and expose the culprits for the greater good of society? Can they be counted even on the fingers of one hand?

In this era when we have useless political leaders, when law and order are non-existent when the police force is a joke, it is time the fourth estate stepped up to the mark! I am sure we have the personnel; it is the commitment from the top and by this, I mean funding and the willingness to risk life and limb, that we lack. Governments over the last few decades have done their best to intimidate the press and systematically destroy any news outlet that tried to buck the usual sycophantic behaviour that is expected from them by those holding absolute power.

Do you think Richard Nixon would ever have been impeached if not for the Watergate reporting? Donald Trump partially owes his defeat to the unrelenting campaign carried out against him by the “fake news” outlets that he tried to denigrate. Trump took on too much. The fourth estate of America is too strong and too powerful to destroy in a head-to-head battle and even the most powerful man in the world, lost. Let’s not go into the merits and demerits of the victor as this is open to debate.

Now, do we have anything like that in the Pearl? Surely, with 20 million-plus “literate” people, we should? We should have over 70 years of independence built up the Fourth Estate to be proud of. One that would, if it stood strong and didn’t waver and collapse under pressure from the rulers, have ensured a better situation for our land. Here is Aotearoa with just five million people, we have journalists who keep holding the government to account. They are well-funded by newspapers and TV networks with audiences that are only a fraction of what is available in the Pearl. Some of the matters they highlight often bring a smirk of derision to my face for such matters wouldn’t even warrant one single line of newsprint, should they happen in the Pearl.

Talking of intimidation from the rulers, most of us are familiar with the nationalisation of the press, the murder and torture of journalists, the burning of presses to insidious laws been passed to curtail the activities of Journalism. These things have happened in other countries, too, but the people and press have been stronger, and they have prevailed. We are at a watershed, an absolutely crucial time. It is now that our last few credible news sources should lift their game. Give us carefully researched and accurate reports with specific conclusions, not generalisations. Refuse to disclose your sources as is your right, especially now that the myopic eye of the UNHCR is turned in our direction.

All other ways and means of saving our beloved motherland, be it government, religion, sources of law and order and even civil society leadership seems to have lapsed into the realm of theory and rhetoric. Our last chance lies with the Fourth Esate and all it stands for. I call for, nay BEG for, a favourable reaction from those decision-makers in that field, who have enough credibility left in society, DON’T LET US DOWN NOW!

 

 

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Features

The world sees ugly side of our beauty pageants

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Yes, it’s still the talk-of-the-town…not only here, but the world over – the fracas that took place at a recently held beauty pageant, in Colombo.

It’s not surprising that the local beauty scene has hit a new low because, in the past, there have been many unpleasant happenings taking place at these so-called beauty pageants.

On several occasions I have, in my articles, mentioned that the state, or some responsible authority, should step in and monitor these events – lay down rules and guidelines, and make sure that everything is above board.

My suggestions, obviously, have fallen on deaf ears, and this is the end result – our beauty pageants have become the laughing stock the world over; talk show hosts are creating scenes, connected with the recent incidents, to amuse their audience.

Australians had the opportunity of enjoying this scenario, so did folks in Canada – via talk show hosts, discussing our issue, and bringing a lot of fun, and laughter, into their discussions!

Many believe that some of these pageants are put together, by individuals…solely to project their image, or to make money, or to have fun with the participants.

And, there are also pageants, I’m told, where the winner is picked in advance…for various reasons, and the finals are just a camouflage. Yes, and rigging, too, takes place.

I was witnessed to one such incident where I was invited to be a judge for the Talent section of a beauty contest.

There were three judges, including me, and while we were engrossed in what we were assigned to do, I suddenly realised that one of the contestants was known to me…as a good dancer.

But, here’s the catch! Her number didn’t tally with the name on the scoresheet, given to the judges.

When I brought this to the notice of the organiser, her sheepish reply was that these contestants would have switched numbers in the dressing room.

Come on, they are no babes!

On another occasion, an organiser collected money from the mother of a contestant, promising to send her daughter for the finals, in the Philippines.

It never happened and she had lots of excuses not to return the money, until a police entry was made.

Still another episode occurred, at one of these so-called pageants, where the organiser promised to make a certain contestant the winner…for obvious reasons.

The judges smelt something fishy and made certain that their scoresheets were not tampered with, and their choice was crowned the winner.

The contestant, who was promised the crown, went onto a frenzy, with the organiser being manhandled.

I’m also told there are organisers who promise contestants the crown if they could part with a very high fee (Rs.500,000 and above!), and also pay for their air ticket.

Some even ask would-be contestants to check out sponsors, on behalf of the organisers. One wonders what that would entail!

Right now, in spite of the pandemic, that is crippling the whole world, we are going ahead with beauty pageants…for whose benefit!

Are the organisers adhering to the Covid-19 health guidelines? No way. Every rule is disregarded.

The recently-held contest saw the contestants, on the move, for workshops, etc., with no face masks, and no social distancing.

They were even seen in an open double-decker bus, checking out the city of Colombo…with NO FACE MASKS.

Perhaps, the instructions given by Police Spokesman DIG Ajith Rohana, and Army Commander, General Shavendra Silva, mean nothing to the organisers of these beauty pageants…in this pandemic setting.

My sincere advice to those who are keen to participate in such events is to check, and double check. Or else, you will end up being deceived…wasting your money, time, and energy.

For the record, when it comes to international beauty pageants for women, Miss World, Miss Universe, Miss Earth and Miss International are the four titles which reign supreme.

In pageantry, these competitions are referred to as the ‘Big Four.’

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Better use of vanity projects; Cass apologises, and New Year graciousness

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A wise one, with the interests of the country at heart, calling himself ‘A Member of the Silent Majority’, wrote in The Island of Friday, April 9, offering an excellent solution for the better and genuine use of the Mattala Mahinda Rajapaksa International Airport which was built at a stupendous cost to both the Treasury, and wildlife abundant in the area, to satisfy an ego and sycophants’ cries of Hail to the King. Even sans Covid and lockdowns and shut downs of airports, the Mattala Airport was a white elephant, endangering and displacing the black elephants, roaming along their familiar corridors; receiving such few airplanes. Thus, as the writer Cass mentions says, convert the airport to a super hotel with excellent and sure-fire access to wildlife watching, like referred to hotels in Kenya and elsewhere. Yes, it will definitely be a bigger money earner than an airport waiting for a plane to land. Expensive equipment going rusty could be transferred to smaller airports being developed all over the island. There was such a hue and cry when storerooms, within the deserted airport, were used for paddy storage, but not even a whimper of concerted protest when the vanity projects were being built. We also heard that on the rare occasions a plane was to land/take off, peacocks in the area were shot at to prevent them flying into the planes. Aney, what a sin, just to have a name on a nameboard! Use the Suriyawewa Cricket Stadium too for a better purpose and less costly to water and maintain green in near desert climate conditions. What about a residential training institute for youth, perhaps in small industries? If the king-sized ego demands the name be present, OK, leave it. What’s in a name?

Any matter, financial or economic, with benefit to country buttressing it – refer to Dr Harsha de Silva and Eran Wickremaratne. Likewise, anything pertaining to fauna, flora and preservation of natural habitats ask Devani Jayathilake. Cassandra would give two years of her life (she does not have 10 left, she suspects) to know what the answers of the three wise and sincere ones mentioned would be to the proposal to convert the Mattala Airport, oops sorry – Mattala Mahinda Rajapaksa International Airport – to a 7 star hotel for wildlife watching and then tourists proceeding to Yala and other places that were touted to be reached easier if planes brimful of tourists, landed in Mattala. Pipe dream even sans Covid-19.

The thought of the millions, nay billions, our country was indebted to China to construct these vanity projects aka white elephants of the Rajapaksa fiefdom sends Cass’s blood racing in her contracting veins. And now another hair-brained scheme is being exposed, not new but re-exposed: that of the stupendous amount sent direct from the Central Bank with no nod, as reported, from the then Cabinet or Parliament, to an American-resident con-man to improve our appearance on the world stage or at least American stage. My word!! Cosmetics of creams and colours and such like can improve the face of an already beautiful woman. But a country that was once beautiful, glorified, accepted internationally and then politician-spoilt, cannot be redeemed by PR work, however expensively. Nivard Cabraal was the then Govenor of the CB. Of course, as every Banda, Singho and their women say, nothing will come of this. Powerful political sweeping under the carpet in the presence of cardboard administrators and sycophantic hosanna singers, makes the matter disappear and not merely hides it. Unless of course there are enough intrepid outers-of-truths and persistent protestors, brave and national minded enough to continuously tease the matter like a cat its caught rat. Ranjan is locked away in hard labour for four solid years, losing his Parliamentary seat for misusing the gift of his gab, while convicted murderers of the right colour attend Parliament, escorted and all.

Cass apologises

To the reigning Mrs World, Mrs Caroline Jurie, for crowning, uncrowning and recrowning of the winner of the recent Mrs Sri Lanka contest. Caroline Jurie took this stride because the winning contestant was four years on the way to being a divorcee, which status forbids a woman from attempting to wear the crown of Mrs…. (country) with a view to becoming Mrs World. This title and honour is bestowed on a woman who promotes, holds sacred the institution of marriage and is a married woman. Cass castigated Caroline Jurie without knowing then the fact that Jurie had protested about this candidate being considered due to her impending divorce; and allowed to contest. She said she withdrew from the panel of judges since her point was not taken by the others. WHY is the Q. Easy to answer. The new beauty queen of shaky married status was a loud speaker in favour of Presidential Candidate Gotabaya R in Polonnaruwa (captured on social media) and probably spoke on stages for SLPP Parliamentary candidates. So of course she was slated to win; vision impaired over rules and future probabilities, She has her height – one advantage. Beauty can always be dexterously rubbed and painted in. But honesty is important and cannot be cloned or grafted in.

Cass now definitely faults the new Mrs Sri Lanka. She should not have contested, having her papers sent in for divorce and not retracted. What happens when she wins the divorce (or her husband wins it, however the divorce was first mooted). Another local contest? And if the divorce was still pending and she went overseas at great expense and won THE crown or a lesser one. To be returned forthwith when she has to remove the present gold band from her third finger, which probably she has already removed but hastily wore for the contest and when preparing for it? This is why Cass avows that many young women particularly, are so very selfish and forward and uppity and even dishonest now. In Cass’ time and even a decade or two later, a girl would never do what this new beauty has done, flipped aside a core rule and necessity of the contest, just to win by honest means or foul. Way the country’s going, my friend.

Post – Aluth Avurudhu

Cassandra is stuffed gill-high with kavun, aluwa and crunchy kokis, preceded by kiributh and lunumiris. She is fending for herself because a dip in Covid numbers and having had the jab, her domestic wished to enjoy a family new year having missed the last one, locked down as we were. Cass made her own kiributh – tasting somewhat like it should, but the sweets were all gifted her. So, also the offers of help, sleep-ins at others’ homes and solicitous frequent inquiries of ‘how are you?’ Kind and gracious relatives and friends, acquaintances too are thanked; and the most appreciated being neighbouring kitchen helps and care givers. Three-wheeler drivers who spin Cass around on errands too make enquiries. And thus her thoughts when resuming work at the nekath time and word processing this article. Sri Lankans are such good people: kind, caring, willing to share and genuine. And then specters themselves on this very sunny landscape: the dishonest, selfish, revengeful and disgraceful. Shrug them off, clear the mental picture and pronounce thank goodness for goodness around.

May all of us (decent people) have a very good year to follow today –Subha Aluth Avuruddhak!

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