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Editorial

The baby and the bathwater

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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.

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Editorial

Puttalam land grab: Dig deep

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Thursday 24th September, 2020

An attempt is apparently being made to sweep the issue of land encroachment and forest clearing at Aruwakkalu under the rug. Encroachers cleared a vast extent of land belonging to the Sri Lanka Cement Corporation, in Aruwakkalu, Puttalam, in a bid to sell it, early this month. The area affected by encroachment is a part of land encompassing about 4,500 acres leased by the state. The original lessee was Thawakkal and the second one Holcim. The responsibility for ensuring the safety of state property under threat lies with Siam City Cement (Lanka) Ltd. (SCCL), the current lessee.

On Tuesday, SCCL published a newspaper advertisement, claiming that at an ‘emergency meeting,’ presided over by Forest Conservation Minister C. B. Rathnayake, an ‘urgent course of action’ had been agreed upon by ‘all stakeholders’ to address an incident of encroachment and forest clearing in a long-term leased land belonging to the Sri Lanka Cement Corporation’. Were the environmental groups, that exposed the incident, present at that meeting? They are also stakeholders, aren’t they? The SCCL also listed some measures it had undertaken to adopt to prevent the encroachment of the state property. It has only made a virtue of necessity. Will it explain why it did not care to take such action earlier?

The Minister under whose purview the Cement Corporation land at issue comes is Wimal Weerawansa, who holds the Industries portfolio. President Gotabaya Rajapaksa goes all the way from Colombo to Deniyaya to inquire into complaints of threats to the Sinharaja rainforest, which is under Rathnayake’s ministry, and Rathnayake goes all the way from Colombo to Puttalam to inspect the Cement Corporation land, which is under Weerawansa’s ministry!

The Minister of Wildlife and Forest Conservation cannot chair a meeting to discuss a vital issue concerning a Cement Corporation property simply because there is a dry zone forest on it. No sooner had the incident of encroachment and forest clearing in Aruwakkalu been reported than Minister Weerawansa rushed a team of Cement Corporation officials there; they conducted an investigation and took up the issue with the police, the Divisional Secretary and the SCCL. In fact, the presence of any politician was not required there, at all, and the matter should have been left entirely to the senior officials representing the lessor (the Cement Corporation).

Grama Niladaris (GNs) are required to submit reports to Divisional Secretaries, every two weeks, and mention therein the instances of encroachment of state land, etc., if any. Land grabbing and forest clearing have gone on, for years, at Aruwakkalu, and why haven’t the GNs concerned reported such illegal activities to the District Secretaries or the police? GNs spring into action only when ordinary people happen to be on the wrong side of the law. Villagers are hauled up before courts for felling jak trees on their own properties, without permits, but organised racketeers are free to grab state lands, which they clear and sell with impunity.

Those who grabbed part of the Cement Corporation land at Aruwakkalu, cut down trees and set them on fire, have gone scot-free to all intents and purposes. They would not have been able to do so without help from the ruling party politicians in the area. The government must have them arrested and prosecuted under the Offences against Public Property Act without further delay. That is the only way it can prove that its politicians had no hand in the land racket. The police must be made to explain why they have failed to arrest the culprits.

Legal action must also be taken against the serious lapses on the part of the lessee, for they led to the encroachment of state land and forest clearing. The SCCL has said, in its advertisement, that on some previous occasions it had brought the issue of encroachment of the Cement Corporation land to the notice of ‘relevant authorities’, which it has not named. Can it prove that it reported land encroachment to the police or the Cement Corporation?

The lease agreement at issue has no termination clause, we are told. Such agreements are money-spinners for venal politicians and bureaucrats responsible for signing them. The Thawakkal deal was struck under the Chandrika Kumaratunga government in the 1990s. (Most of the self-righteous SLPP heavyweights were powerful ministers in that administration.)

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Editorial

Numbers, power and brains

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Wednesday 23rd September, 2020

The SLPP juggernaut is bearing down on democracy. The 20th Amendment (20A) Bill was presented to Parliament, yesterday, amidst protests from the Opposition benches. The government has 150 MPs on its side, and is confident that they will vote for the Bill en bloc. Some of them are disgruntled because they have been left out of the Cabinet but they are likely to be appointed ministers when the Bill is passed and the Cabinet expanded.

The Old Fox would guffaw in his grave if he could see those who once condemned his Constitution and called him a dictator going all out to enhance the powers of the executive presidency; 20A would make him green with envy. What a political dog and pony show they put on, under UNP governments (1978-1994), to have the masses believe that the executive presidency was a scourge that had to be removed forthwith! They even undertook to abolish it, contested presidential elections and obtained mandates for doing that, but they reneged on their pledges. Most of the protesting SJB MPs were ardent supporters of the executive presidency while UNP leaders were wielding it and abusing its powers. There has been a role reversal.

Following the 2015 regime change, many thought that the former leaders, who later formed the SLPP, had learnt from their blunders. It looked as if the collective pratfall they suffered had had the desired impact on them, and they had realised the need to act with restraint, upholding democratic values. But, today, they are practising the very obverse of what they preached during their Opposition days. Power has gone to their heads. Those who were intoxicated with power while in the yahapalana government have taken up the cudgels for the people’s democratic rights. This is why we keep saying, ‘Mole thiyanakota bale ne, bale thiyanakota mole ne’—‘when one has brains one has no power’, and when one has power one has no brains.

Let the protesting Opposition MPs be told that they, too, are guilty of having raped democracy. They, as members of the yahapalana government, unflinchingly steamrollered bad Bills through. The Provincial Council Elections (Amendment) Bill of 2017 is a case in point. They stuffed it with sections sans judicial sanction, at the committee stage, to postpone the PC polls indefinitely and secured its passage. It is their arrogance and blunders that enabled the SLPP to win a two-thirds majority at the last general election hands down. Their ugly past and hypocrisy will make it difficult for them to drum up public support for their campaign against 20A, as we argued in a previous comment.

The Executive President, directly elected by the people, should have enough powers to carry out his duties and functions, but the sky is not the limit. He should be able to hold the Defence portfolio as he is responsible for safeguarding national security. The 19th Amendment reduced the Executive President to a virtual figurehead so that the then Prime Minister Ranil Wickremesinghe could reign supreme. The 20A seeks to make the President extremely powerful so that the PM will be powerless again. Both these extremes must be avoided and a via media found. One can only hope that the government will listen to reason and agree to amend the Bill.

There is much more to democracy than parliamentary majorities. If all laws ratified with two-thirds majorities are to be considered legitimate and acceptable, then one cannot find fault with the 1978 Constitution, which was passed with a five-sixth majority in the House; similarly, the SLPP leaders should stop complaining about 19A, which all MPs save one voted for in 2015.

Meanwhile, one may recall that the Enabling Act (1933), which paved the way for Hitler’s dictatorship, was also backed by the German lawmakers overwhelmingly. Only the Chairman of the Social Democrats, Otto Wels, had the courage to oppose that draconian law. If only others had emulated him.

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Editorial

‘Diyawanna Post Office’

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Tuesday 22nd September, 2020

Former Speaker Karu Jayasuriya has warned that the proposed 20th Amendment (20A) to the Constitution, if passed, will reduce Parliament to a mere post office. One cannot but agree with him that 20A seeks to strengthen the position of the President at the expense of Parliament, and everything possible should be done to prevent its passage in its present form.

However, it is doubtful whether the Opposition and the civil society outfits backing it will be able to drum up enough public support for their campaign against 20A by merely highlighting what is likely to befall the legislature, for people do not care whether Parliament will be reduced to a post office or not; such is their disillusionment with the national legislature. Parliament has not lived up to the expectations of the public. While people are struggling to find turmeric, which is in short supply, due to a ban the government has imposed on spice imports, among other things, to save foreign exchange, it has been reported that the MPs will be given duty free vehicle permits soon.

When the Prime Minister and the President happen to represent different political parties, the former becomes more powerful than the latter owing to flaws in the present Constitution. This, we have seen thrice since the introduction of the presidential system of government, in 1978. Prime Minister Chandrika Kumaratunga emerged stronger than President D. B. Wijetunge, in 1994. They, however, cooperated. But the country found itself in chaos when the Prime Ministers and the Presidents came from different political parties.

From 2001 to 2004, Prime Minister Ranil Wickremesinghe (UNP) undermined the position of President Chandrika Kumaratunga (PA). He went so far as to sign a disastrous ceasefire agreement with the LTTE without the President’s knowledge. The 2001 regime change also led to the divestiture of some state-owned cash cows such as Sri Lanka Insurance Corporation. The LTTE consolidated its power and made preparations for its final war.

The country suffered again when the Prime Minister became more powerful than the President, in 2015, owing to the 19th Amendment (19A) to the Constitution. PM Ranil Wickremesinghe and President Maithripala Sirisena were at loggerheads. The President’s position became so weak that the then Speaker Jayasuriya refused to carry out presidential orders during an abortive constitutional coup in 2018. The biggest ever financial crime—the bond scam—was committed while the legislature was stronger than the Executive. Then came the Easter Sunday bombings, which snuffed out more than 250 lives and left hundreds of others injured besides dealing a body blow to the economy. What has transpired so far before the Presidential Commission of Inquiry probing those terror strikes shows that national security was in the hands of a bunch of total misfits from 2015 to 2019. It was only natural that the people wanted a strong President to bring order out of chaos and elected Gotabaya Rajapaksa.

We do not argue that the people’s lot improves when the PM happens to play second fiddle to the President. The point we are trying to make is that even the PMs who could act independently succumbed to the arrogance of power and bulldozed their way through, giving the lie to the claim that the interests of the people are better served when Parliament is strengthened.

The success of any protest campaign hinges on the ability of its organisers to mobilise the public. Those who have taken it upon themselves to spearhead the campaign against 20A are the ones who had 19A tailored to further their political interests and, therefore, failed to convince the public that the powers of Parliament had to be restored to ensure checks and balances and better governance. The incumbent government is craftily using the bunglings of the previous dispensation to bolster its claim that the country needs an extremely powerful President, and 20A is the only way to achieve that end.

The ongoing campaign against 20A is characterised by a severe trust deficit, which the Opposition has failed to overcome. Sri Lankan intelligentsia is divided along party lines, and this has stood in the way of the formation of public opinion on some crucial issues. The government has managed to confine the issue of 20A to the political front, where it is strong. But let the SLPP leaders be urged to learn from their past mistakes and refrain from steamrollering 20A through. They had better remember that they employed the same method to secure the passage of the 18th Amendment but lost power about four years later, in January 2015.

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