The 20th Amendment to Sri Lanka’s Constitution is now done and dusted and given the comfortable majority, though technically not the required two thirds by a whisker, it has all the support it needs for comfortable passage. Since its gazetting on Friday, a period of two weeks must elapse before it can be included in the parliamentary order paper. A legal challenge can also be mounted against it in the short term. But given the scale of the massive victories scored by the incumbent government, both at the presidential election last November and the more recent parliamentary elections, there will be little fire and thunder in whatever resistance is attempted.
Ever since the parliamentary election and the massive and unexpected two thirds majority it brought President Gotabaya Rajapaksa and his brother, Prime Minister Mahinda Rajapaksa, the country has been treated to a litany of how horrible the 19th Amendment was and more than an earful on everything that was wrong with it. But none of the pundits who have expounded long and loud against the amendment has explained why, if this were so, all but one of them (Rear Admiral Sarath Weerasekera) voted for it. Their lack of eloquence on this subject is truly deafening. True, despite the two third majority that the UPFA and its fellow-travelers enjoyed in the 2010 parliament, the stunning defeat of then President Mahinda Rajapaksa in 2015 left the whole caboodle of them in total disarray. This left ample room for the winner to take all and that’s exactly what happened.
Such was the situation when the 2015 election result was declared that the new President Maithripala Sirisena was able to instal a minority government under Mr. Ranil Wickremesinghe despite the fact that Prime Minister D.M. Jayaratne was yet in office. So also the reinstatement of sacked Chief Justice Shirani Bandaranayake, albeit for a day, before Justice K. Sripavan (who incidentally administered the oath of office of the new president as his predecessor was in the dog house) was appointed. The defeated president, who sought a third term in an endeavour that went sour, metaphorically placed the SLFP leadership crown on his successor’s head. No political or legal challenges were mounted and the winning side, flushed with a perhaps unexpected victory, did exactly as they pleased. And how!
The 19th Amendment certainly was not enacted for the good of the country. It was done to suit the needs and wishes of those who won the election as too many of our laws have been and will be in the future. However, 19A was not without some virtue with the best known plus factors including the restoration of the two-term limit on the presidency, which Mahinda Rajapaksa removed by virtue of a two thirds majority (necessary for constitutional changes) he did not win in the country but engineered through defections. Events proved that to be his undoing, but he to his eternal credit, was able to rise Phoenix-like from the ashes. He refused to lie down and die as most would have given his situation. Like the proverbial tortoise, he withdrew into his shell during the aftermath of his defeat, to return vigorously to battle as the tide began to turn. Mercifully the two-term limit will remain under the new order. We don’t know whether there is an intention of going back to the previous age qualification of presidential contenders which was in 19A, obviously with Namal Rajapaksa in mind. It is no longer a necessity for a Rajapaksa dynasty as the years have since rolled by. Let us not forget that Namal himself voted for that amendment just as much as his father voted for 19A.
The Right to Information Act has also been applauded as a major achievement of the 19th Amendment. This too will remain, the people have been told. That is cause for applause although the Act itself was not used as effectively as it might have given the appalling state of governance in the country. Opponents of the proposed 20A are on record saying that several major democratic gains achieved through a mechanism of checks and balances like the independent commissions, are being done away with. There is no argument that President J.R. Jayewardene, intoxicated with the five sixth parliamentary majority he won in 1977, crafted the 1978 constitution to make himself the uncrowned head of Sri Lanka. He was fond of saying there was nothing he could not do except to make a man a woman or vice versa. He didn’t try to undertake that mission impossible although he did try to have two Members of Parliament representing Kalawana! But even that constitution, providing for the executive presidency in the manner of de Gaulle’s as many say, made fundamental rights justiciable. To give the devil his due, that was an enormous democratic gain.
In terms of the draft amendment, we are going to have a Parliamentary Council, instead of the Constitutional Council introduced by 19A. But this too, just like the other one. will be packed with politicians who are not exactly a breed that has endeared itself to the people. But the people themselves keep electing undesirables as we have seen over the years; and party hierarchies keep anointing them with their tickets regardless of loud (and useless) professions on their desire for good governance that has eluded us through the 42 years when we have had as many as 19 amendments to our constitution with the 20th in the pipeline. A correspondent, of Sri Lankan descent living in Washington, writing to this issue of our newspaper says that the American constitution written over 230 years ago has just 4,543 words and 27 amendments to date. Amen.
It’s sovereignty, stupid!
Monday 19th April, 2021
Sri Lanka’s sovereignty has taken centre stage thanks to the Colombo Port City Economic Commission (CPCEC) Bill. The Opposition and its allies are all out to scuttle it, claiming that it will severely undermine the country’s sovereignty, which the government vows to protect at any cost. The UNP has joined others in challenging the Bill in the Supreme Court. This, it has done while seeking to justify its decision to appoint its leader Ranil Wickremesinghe to Parliament via the National List; he unsuccessfully contested the last general election from the Colombo District.
If the government, the Opposition and their supporters are so concerned about the country’s sovereignty, they must respect the franchise of the people in whom sovereignty resides. Sovereignty and franchise are inseparable. How could the aforesaid politicians reconcile their much-advertised campaign for protecting sovereignty with their endorsement of the practice of appointing as National List MPs unsuccessful candidates and others of their choice in violation of people’s franchise.
The situation took a turn for the worse, under the yahapalana government, which not only appointed a bunch of defeated candidates to Parliament as National List MPs but also made some of them Cabinet ministers! Almost all political parties with parliamentary representation have undermined people’s franchise in this manner. Even the JVP, which never misses an opportunity to take the moral high ground, failed to be different. The lame excuse that political leaders trot out for this blatant violation of franchise is that the law provides for such appointments. If this despicable practice is to be considered acceptable simply because certain bad laws can be interpreted to justify it, then the Executive President should not be faulted for exercising all dictatorial powers the Constitution has vested in him.
Moreover, it has now been revealed that the J. R. Jayewardene government smuggled some sections into the election law to enable the appointment of outsiders to Parliament as National List MPs. The Provincial Council Elections Act was amended in a similar manner in 2017 to postpone the PC polls indefinitely. Questionable practices and actions based on such rotten laws cannot be considered legitimate by any stretch of the imagination.
The National List mechanism, which was devised purportedly to bring in eminent persons as MPs, has in effect empowered political party leaders to violate the people’s franchise with impunity. Therefore, the legal provisions that allow defeated candidates and outsiders to enter Parliament via the National List must be abolished; they are antithetical to democracy and have a corrosive effect on people’s franchise and sovereignty. Strangely, not even those who undertook to usher in good governance, in 2015, cared to get rid of these bad laws.
It is being argued in some quarters that when the seats of appointed MPs fall vacant, only the National List nominees or those whose names appear on district nomination lists should be appointed to Parliament in keeping with Articles 99 and 101 of the Constitution. But we believe that only the National List nominees whose names are made public before parliamentary elections must be brought in as appointed MPs; the appointment of unsuccessful candidates as MPs is an assault on democracy.
Technically, people who vote for a particular political party/independent group also endorse its National List nominees, who arguably attract votes. In 2015, the JVP had, as one of its National List nominees, former Auditor General Sarath Mayadunne. A lot of people must have voted for the JVP to have him in Parliament to fight against corruption effectively. But no sooner had he been sworn in than he resigned, paving the way for the appointment of a defeated JVP candidate. What the JVP did was tantamount to taking the voting public for a ride. Other political parties, too, have done likewise unashamedly.
At present, the National List can be abused to appoint any party member to Parliament, and anyone can obtain the membership of a political party by paying as little as Rs. 10. One may argue that all it takes to render people’s franchise irrelevant is Rs. 10! What moral right do the politicians who unflinchingly make use of bad laws to defy the will of the people have to fight for democracy, sovereignty and franchise?
The finger on the spot
A television interviewer last week asked Fisheries Minister Douglas Devananda what is to be done when a robber enters your home? Is he not to be chased off? The program in which the minister appeared was dealing with the long festering problem of a South Indian fisheries fleet brazenly crossing the International Maritime Boundary (IBM) and entering Sri Lanka waters. These illegal fishermen are not just poaching in our waters. They engage in bottom trawling, using large vessels with powerful engines, destroying the marine environment and seriously eroding the replenishment capacity of this country’s fish stock, a process affecting the livelihood of our fishermen in the short, medium and long term.
The minister responded with a question of his own. What do you do when the robber is armed?, he countered. Devananda put his finger on the spot; perhaps not literally in that the Indian fishing fleet routinely crossing the IBM is not armed to its teeth though its quite probable that there are a gun or two in individual trawlers or boats. What he was in effect saying is that the poachers are backed by the might of India and there is very little that we can do about it. What the minister said evoked painful memories of Operation Vadamarachchi of May and June 1987 when the Sri Lankan forces were on the verge of defeating the Tamil Tigers waging war on the Lankan state.
What did India do? Alleging that the people living in the war-wracked area were starving, several Hercules transport planes escorted by Mirage jet fighters intruded into this country’s sovereign airspace for a claimed “humanitarian operation” – the infamous parippu drop as we came to know it. The signal was unmistakably clear. Either halt the military operation or face the consequences. That would be an Indian invasion of this country. Then President J.R. Jayewardene, fighting an insurrection in the South and a civil war in the North was in a tight bind from which there was no escape. The rest is history. The Indo – Lanka Agreement between Jayewardene and Prime Minister Rajiv Gandhi of India was signed and the so-called Indian Peace Keeping Force (IPKF) followed. But there was no disarming of the LTTE as promised. Thanks to what India did then, the civil war raged till 2009 when the Tigers were eventually defeated.
This country’s predicament over the rape of our marine resources, grievously affecting the livelihoods of our fishermen eking out a precarious livelihood, and also endangering the very existence of the fisheries industry in the North of this country, is very similar to the parippu drop of not so long ago.
During the decades of the war, the imperatives of fighting the separatist-terrorists required long periods where our fishermen were banned from venturing out to deep sea. They were confined to a coastal fishery and this left expanses of our territorial waters wide open to Indian fishermen to exploit. Those years and what happened then deeply ingrained in the Indians the conviction that they could fish as they like, wherever they would, regardless of the International Maritime Boundary and the Law of the Sea. There were rich picking to be had and the opportunity was seized.
After the war ended and normalcy – or at least some semblance of it – was restored, there was no keeping the Indian fishermen, often manning trawlers owned by Tamil Nadu politicians and their patrons, to their side of the IBM. For several long years efforts at resolving this problem have been made. There have been some placatory noises from the Indians but little attempt, leave alone a serious effort, to tackle this issue. Contacts have been made at the highest levels of government and all they have produced are platitudes about adopting a “humanitarian approach” to the problem. The humanitarianism is all about allowing Indian fishermen to enhance their livelihood, never mind the super profits made by capitalist politically-backed trawler-owners hiring those fishermen to crew their vessels. Nary a word about our own fishermen, long left to fend for themselves as best as they can while the Indians rob what is rightfully theirs.
No end to this situation is in sight. There are occasional reports of poachers and their vessels taken to custody by the Sri Lanka Navy. More often than not, after a little fuss, bother and diplomatic niceties, the fishermen and (emphasis ours) their craft are returned so that they can poach another day. Earlier this year there was was an incident when an Indian fishing vessel poaching in Lankan waters reacted aggressively to a naval craft attempting to arrest it. This resulted in the sinking of the trawler and the death of one of its crewmen. Predictably there was a blaze of publicity and protest in the Tamil Nadu press about the Sri Lanka Navy killing Indian fishermen. Such incidents are clear indications of the sensitivity of the problem at hand. We have to live with the reality that we cannot wield the big stick to protect what is ours. But the government is under pressure from fishermen North and South to do something about it. Devananda has talked about issuing passes for a limited number of Indian fishing vessels, excluding big trawlers, to enter our waters.
But as one northern politician said in a television program, 500 will come if 50 passes are issued. Indian fishery interests are saying “why exclude the trawlers?” In any case do we have the capacity (or the political will) to effectively police our waters, protect the interests of our fishermen and the sustainability of our marine resources against a monster predator from across the Palk Strait? D we always have to bow down to Big Brother?
SL in vortex of despair
Saturday 17th April, 2021
The Colombo Port City Economic Commission Bill has run into stiff resistance. The proposed law, which has even led to dissension within the ranks of the SLPP, is fraught with the danger of Sri Lanka being left with no control over the Colombo Port City, legal experts warn, insisting that the Bill has to be approved by the people at a referendum in addition to being passed with a two-thirds majority in Parliament to become law.
The Opposition has got something to hold onto. Besides political parties, several key organisations including the Bar Association of Sri Lanka have come forward to move the Supreme Court against the controversial Bill. This is a worrisome proposition for the government, which has many other problems to contend with.
External pressure is also mounting on the government over the Chinese project. The US has already said the Colombo Port City may end up being a money-laundering haven. The US, India and other enemies of China are shedding copious tears for Sri Lanka’s sovereignty, which, they say, China is subjugating to its economic and geo-strategic interests. But is China alone in doing so? India has been furthering its interests at the expense of Sri Lanka; it has even had the latter’s Constitution forcibly amended and Provincial Councils set up. Sri Lanka cannot even protect its territorial waters against rapacious Indian poachers; under pressure from New Delhi, it has to release the culprits taken into custody.
It is only natural that India and the US have not taken kindly to the mega Chinese ventures in Sri Lanka. But if they and/or the other partners of the strategic alliance they represent had cared to help this country instead of bullying it, China would not have been able to consolidate its position here.
The US and India stand accused of having had a hand in the 2015 regime change in this country. In fact, Prime Minister Mahinda Rajapaksa has publicly stated India’s spy agency, RAW, was instrumental in ousting him as the President in 2015. India and the US may have expected the yahapalana government to get tough with China and scrap the Port City project. They were disappointed when that administration, having initially suspended the project, allowed the Chinese to build their artificial island bigger, on a 99-year lease, and, worse, leased the Hambantota Port to China for 99 years. The yahapalana regime received no financial assistance from its foreign well-wishers and, out of sheer desperation, banked on Chinese support like its predecessor.
The Bill at issue, if enacted, would turn the Port City into part of China’s territory in all but name, according to legal experts. Dr. Jayampathy Wickramaratne, PC, critically examines the Bill, in his column published on this page today. SLPP MP and former Justice Minister Wijeyadasa Rajapakshe has said what the proposed law seeks to achieve will be worse than the Hambantota Port deal. There arguments are compelling. It, however, needs to be added that if Sri Lanka had given in to US pressure and signed the MCC compact complete with SOFA (Status of Forces Agreement), etc., in return for USD 450 million from Washington, it would have faced a far worse situation.
The hostility of the US and its allies has driven Sri Lanka into the arms of their mutual enemy, China. If the US and India had helped Sri Lanka rebuild its post-war economy and desisted from their human rights witch-hunt in Geneva, they would not have created conditions for Beijing to endear itself to Colombo in this manner.
If the US, etc., want to counter what they call Chinese expansionism, they have to win over the nations that are dependent on China for funds and protection. They must stop harassing these countries.
The enemies of China have warned Sri Lanka that it will become a Chinese colony, and they, too, would have to take part of the blame for such a fate ever befalling this country.
GL: Colombo Port City Bill received AG’s sanction
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