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Why the yahapalana project failed

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by C.A.Chandraprema

When one reads the anguished outpourings of some yahapalanites about the restoration of the Rajapaksas to power, one thing that becomes obvious is that they are blaming everyone and everything else but themselves for their present plight. In reality however, they have only themselves to blame for the failure of their carefully planned and executed project. Viz. the following.

It was never about good governance to begin with

The yahapalana project despite its name was never about good governance. It was a conspiratorial power grab disguised as a campaign for good governance so as to mislead the public. The conspiracy to grab power by the UNP, JVP, TNA, SLMC and other elements took shape originally as an attempt to defeat the Rajapaksa led UPFA government in Parliament in 2007. At that time, there was no talk of yahapalanaya. It was simply a case of using the divisions in Parliament to defeat the UPFA government at the budget that year. If the budget had been defeated, a parliamentary election may have been held and the UPFA may not have been able to obtain a clear majority which would have enabled everyone else to gang up to run the parliamentary government. Thus even as a far back as 2007, the tendency was for everyone else to get together to defeat the Rajapaksas and grab power for themselves. It was only in 2014, that the name yahapalanaya was appended to that project to make it look like a quest for good governance and less like the cynical power grab that it was.

Even though some people portrayed this as a struggle to abolish the executive presidency, once the yahapalana President was elected to power, the rhetoric about abolishing the executive presidency diminished. Towards the end, some yahapalana political parties were saying that the executive presidency should be retained because it gave the minority communities a say and it enabled them to win the presidency by combining the overwhelming majority of the minority vote and a certain proportion of the majority community vote. Yahapalana ministers were openly saying that the presidential election was the easiest election for them to win. In fact after the 2015 parliamentary election, no yahapalana political party wanted to hold any election except the presidential election. So despite the yahapalanaya slogan, what happened in January 2015 was a power grab, a coup pure and simple albeit effected through the ballot.

Over-involvement of foreign parties

Even though what started as an attempted parliamentary coup in 2007 was largely a local affair, foreign parties got involved after the end of the war in 2009. It was the Colombo embassies that insisted that Ranil Wickremasinghe should stand down and make way for a common candidate. The involvement of foreign parties would have brought in money and influence into the project but it proved fatal to the yahapalanites by generating unrealistic expectations of more foreign largess after they come into power. Some ill-conceived actions that the yahapalanites did in expectation of a massive influx of foreign aid to the country following the coup such as stopping all Chinese funded projects and promising massive handouts to the public, finally proved fatal to the yahapalana project.

No plan on what to do after capturing power

Nobody had the foggiest idea as to what they were going to do after they capture power. It was as if a band of illiterate, unwashed pirates had boarded a ship and found it to be full of treasure and damsels. Rapine and the enjoyment of the fruits of power was the only item on the agenda. The UNP for its part, had been so envious of the achievements of the Rajapaksas that their only aim in life was to prove that the Rajapaksas had not done as well as they claimed. They changed the figures published by the Central Bank in a flat footed move to prove that the economy had not grown as fast as claimed under the Rajapaksas. They stopped all work on the projects initiated by the Rajapksas, stored paddy at the Mattala airport and stopped bunkering operations at the Hambantota harbor on the claim that it was making losses. If the UNP had taken over what the Rajapaksas had left and managed it judiciously, the story may have been different. But their inferiority complex over-determined everything else.

Pre-occupation with persecuting the vanquished

To say that the yahapalana government had an obsession with persecuting the Rajapaksas and their followers would be an understatement.  An Anti-Corruption Committee was set up under Prime Minister Ranil Wickremasinghe along with a specialized police unit the FCID which existed for the sole purpose of carrying out investigations referred to them by yahapalana politicians. From 2015 till 2019, what the public heard most often from yahapalana politicians was the pledge to put the Rajapaksas behind bars. Even today, many yahapalana leaders think their present plight is because they failed to put the Rajapaksas behind bars and end their political careers. They don’t seem to realize that the public backlash would have been much worse if their schemes had succeeded. The public reacts very negatively to leaders who show themselves to be unhinjed and demented and that is exactly how the yahapalana leaders presented themselves to the public.

Over reliance on lies and deception

From the very beginning, the yahapalana campaign against the Rajapaksas was based on lies and falsehoods. A factor which contributed immensely to the yahapalana campaign of lies and deception was that the decade of Rajapaksa rule was the very period in which social media like facebook made their appearance and the use of smart phones and computers became commonplace. The lies propagated by the yahapalana cabal over the new media took a toll on the Rajapaksa government. The tactics used to manipulate public opinion over such media was new to Sri Lanka at the time. Today however people are more aware of such manipulation. Almost everybody knows now that there are paid internet activists who make posts for a fee. The yahapalanites spent a lot of time and effort on their army of internet activists. Even in the run-up to the presidential election and the just concluded parliamentary election, the posts on all websites were mostly against the Rajapaksas. But the result of the election shows that such tactics do not work any longer. The people now know how to distinguish a fake comment from a genuine one.

Buying votes with handouts

One of the most self destructive acts of the yahapalanites was to buy votes with huge salary increases for government servants and reduction of fuel prices. They lied their way into power at the presidential election but could not hope to repeat that at the parliamentary election. So they followed through with some of the main pledges they had given at the presidential election in order to win the parliamentary election. This was something the yahapalana government never recovered from. Having increased government expenditure and reduced  government revenue at the same time, at some point they had to start collecting the money to offset those losses. Thus 2015 became the year of government largesse and 2016 became the year of increased taxes.

The first yahapalana finance minister Ravi Karunanayake became popular when he increased salaries and reduced the price of fuel and certain essential foodstuffs and he became unpopular when taxes were increased to meet that additional expenditure. After he was forced out of the finance ministry, his yahapalana colleagues sold him down the river, claiming credit for the increase in salaries and reduction in the price of fuel while palming off the blame for the increases in taxes on Ravi K. It was every man for himself and may the devil take the hindmost.

Gross economic mismanagement

It was clear that the yahapalana leaders were expecting huge injections of foreign money into Sri Lanka after the defeat of the Rajapaksas. Given the enthusiasm shown by foreign powers to overthrow the Rajapaksas and the amount of money spent by foreign powers for that purpose, it was perhaps excusable for the yahapalanites to expect that billions in foreign aid was to follow. The foreign powers that backed the yahapalana project for their part would never have thought that Sri Lanka would turn into a basket case overnight. At the time of the regime change in January 2015, Sri Lanka was the fastest growing economy in Asia after China. All that the new government had to do was to carry on from where the Rajapaksas were forced to stop and there would have been no need to bankroll Sri Lanka from overseas.

Gross economic mismanagement led to plummeting growth rates, a plummeting exchange rate, a vast increase of debt as the yahapalana government struggled to meet the costs of all the handouts they gave to get themselves elected. One of the most deleterious effects of yahapalan misrule was the vast increase in foreign currency debt. When no foreign aid was forthcoming from their foreign masters, the yahapalana government resorted to foreign commercial borrowings. Since the market was prepared to give, the yahapalana government took, with all restraint thrown to the winds.

The Central Bank bond scam shows the yahapalana government at its incompetent worst. By what stretch of the imagination did they think they would get away with it, when so many officials of the Central bank saw them doing it? Furthermore, in order to carry out a crooked deal they embarked on a course of action which would drive interest rates upward and have a negative impact on the entire economy. What drove the economy into the ground during the yahapalana years was sheer incompetence and nothing else. All other countries including India, Bangladesh, Germany and the USA were doing very well throughout those years from 2015 to 2019 and only Sri Lanka was going downhill.

Cynical disregard for propriety

The yahapalana government had little or no regard for the optics of what they were doing. They put off the local government elections for three years, regardless of the negative impression that such postponement of elections creates in the minds of the public. In 2017, just as the provincial councils were to stand automatically dissolved, they suddenly brought committee stage amendments to a Bill that had been introduced in Parliament earlier to increase women’s representation in the PCs and changed the system of elections to the provincial councils for no other reason than to avoid holding the elections. So desperate were they to prevent PC elections from being held that when the Attorney General said that the Bill had to be passed with a two thirds majority, the government bargained with the smaller political parties in the corridors of Parliament and agreed to increase the proportional representation quota from 40% to 50%.

Thus the local government elections system which was passed just weeks earlier, has a  40% PR quota while the PC elections system has a 50% PR quota. The system of elections to the local government institutions was also changed by committee stage amendments brought to a Bill that had been introduced in Parliament earlier, to correct some technical errors in the Local Government Elections Act. When President Sirisena dissolved Parliament, instead of taking on the challenge of an election head on, as any self respecting political party would have, the yahapalana government and their partners in the yahapalana opposition went to courts and got the dissolution annulled and hailed that as a triumph for democracy. They were oblivious to the fact that the people were watching all this. The people take a very dim view of the postponement of elections as was seen in 1977. Little wonder that every election held after 2015 was a landslide for the SLPP.

Gross abuse of the minority communities

From the very beginning, the entire yahapalana regime change project was predicated on organizing block votes against the Rajapaksas combining the vast majority of the minority vote with a minority of the majority community vote. The Tamil vote block was organized by giving them unrealistic pledges to the effect that if Sirisena is elected to power all Tamil aspirations will become a reality overnight. This was akin to the TULF slogan of 1977 – If you vote for the TULF today, you will have Eelam tomorrow! Until around 2012, many Muslims were with the Rajapaksa camp and they had to be got out of that marriage and lined up against the Rajapaksas. In 2012, a group of monks were taken to Norway at the expense of the Norwegian government and six months after they returned, an anti-halal movement materialized out of nowhere and transmogrified over time into a generalized anti-Muslim campaign which culminated in the Aluthgama clashes of 2014.

Former JHU activist Asoka Abeygunasekera in his book titled ‘Yuga Peraliya’ on the 2015 regime change project recounted how the JHU had sent Ven Hedigalle Wimalasara Thera into the Bodu Bala Sena to act as Gnanasara Thera’s handler and to get what they wanted done by the BBS. If the Tamil voters were deceived and organised, the Muslim voters were flogged and organized. One strategically taken photograph was used to convince the Muslim voters that Gotabhaya Rajapaksa was in league with the monks formenting anti-Muslim sentiments. The Mulsim political leaders knew fully well what was going on, but for their own parochial interests, they went along with the yahapalana project. The Tamils and Muslims were thus lined up for a power project and used for the purposes of others. Five years later, the end result of all this has been that the majority Sinhalese have consciously lined up to prevent such manipulation.

Lack of proper leadership

All of the above indicates that the yahapalana project did not have proper leadership. It was just a collection of unprincipled opportunists who got together to overthrow a successful government and grab power for themselves. No self respecting political leader would have engaged in the kind of underhand manoeuvers and charlatanism that led to the regime change project of 2015. Once they had grabbed power through various subterfuges, they thought they had discovered the way to remain in power for ever by combining the vast majority of the minority vote with a minority of the majority vote to win presidential elections.

The reason why some yahapalana ministers and leaders went out of their way to insult the Sinhalese and the Buddhists was to show the minority communities that they were with the minorities and against the majority community. When the Easter Sunday bombings took place in such a backdrop, that was the clearest sign to the people that the yahapalana government because of its politics was in no position to deal with any threat coming from within the minority communities or from overseas. The five years of the yahapalana nightmare were by far the blackest chapter in Sri Lankan politics. We may have faced adversity in earlier times due to world crises such as the food and fuel crises of the 1970s or the terrorism of the LTTE and the JVP, but never has the country suffered like this due to bad politics.

 

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Politics

Closer scrutiny of criticisms against 20A

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by C.A.Chandraprema

Over the past several days, we have been hearing various criticisms of the 20A by members of the opposition as well as from pro-government quarters. Some members of the government audit service too came out against certain provisions in the 20A. Are these criticisms valid or are we missing something? If we grade the criticisms that have got the most amount of media coverage from the most serious to the irrelevant, the most serious allegation relates to the issues concerning the Auditor General and the Audit Service Commission.

The decision of the government to abolish the Audit Service Commission and to make changes in the 19th Amendment provisions relating to the Auditor General are being portrayed as preparations for grand larceny on a hitherto unprecedented scale by the new Rajapaksa government. This is due to a misconception about the role of the Audit Service Commission. Many people are obviously under the impression that the Audit Service Commission is similar to the Elections Commission that the 19A created.

 We all know that the Elections Commission is the body that’s responsible for holding elections and after an election, all three members of the Elections Commission sign the Gazette announcing the names of those who have won seats. The Audit Service Commission that the 19A created was not a body like that. It’s not an Audit Commission but an Audit ‘Service’ Commission.  According to Article 153C(1) of the Constitution introduced by the 19A, the sole purpose of the Audit Service Commission is to preside over the appointment, promotion, transfer, disciplinary control and dismissal of the members belonging to the Sri Lanka State Audit Service. The only other task it has been assigned is to prepare the annual estimates of the National Audit Office, but you don’t need an Audit Service Commission for that.

 In other words, the Audit Service Commission was created simply to duplicate the work already being done by the Public Service Commission. The question that has to be asked is, why have a clone of the Public Service Commission just to cater to the rather limited number of employees in the government audit service? Furthermore, if the Auditor General’s subordinates come under a specially created Audit Service Commission, shouldn’t the subordinates of the Attorney General also come under an AG’s Dept. Service Commission? If taken to its logical conclusion, there will be as many ‘service commissions’ as there are divisions of the government service. The decision to abolish the Audit Service Commission is therefore obviously a housekeeping measure so as not to needlessly duplicate work already being done by other bodies such as the Public Service Commission.

 

Powers of the Auditor General

 

Changes have also been proposed to the provisions relating to the Auditor General. Under the 19th Amendment, the provisions relating to the powers of the Auditor General reads as follows:

 “154(1)The Auditor-General shall audit all departments of the Government, the  Office of the Secretary to the President, the Office of the Secretary to the Prime Minister, the Offices of the Cabinet of Ministers, the Judicial Services Commission, the Constitutional Council, the Commissions referred to in the Schedule to Article 41B, the Parliamentary Commissioner for Administration, the Secretary-General of Parliament, local authorities, public corporations, business and other undertakings vested in the Government under any written law and companies registered or deemed to be registered under the Companies Act, No. 7 of 2007 in which the Government or a public corporation or local authority holds fifty per centum or more of the shares of that company including the accounts thereof.”

 Under the proposed 20A, the above provision is to be replaced with the following:

 “154(1) The Auditor-General shall audit the accounts of all departments of Government, the Offices of the Cabinet of Ministers, the Judicial Service Commission, the Public Service Commission, the Provincial Public Service Commissions, the Parliamentary Commissioner for Administration, the Secretary-General of Parliament and the Commissioner of Elections, local authorities, public corporations and business or other undertakings vested in the Government under any written law.”

 We see that under the changes contemplated by the 20A, references to the Office of the Secretary to the President, the Office of the Secretary to the Prime Minister is being taken out of Article 154(1). We also see that companies in which the government owns more than 50% of the shares has also been taken out of Article 154(1) by the 20A Bill. These changes are being portrayed as moves by the President and Prime Minister to create an environment conducive to engaging in grand larceny with complete impunity. The removal of the reference to companies in which the government owns more than 50% of the shares in the 20A is also being portrayed as a situation where all these companies will be placed outside the ambit of the Auditor General. But is that true? It has to be understood that all that the 20A seeks to do with regard to Article 154(1) which deals with the powers of the Auditor General is to restore the status quo ante before the 19th Amendment was enacted – nothing more. Before the 19th Amendment was enacted, the old Article 154(1) was identical to that which is now being proposed in the 20A.

 Does this mean that before the 19th Amendment was enacted, the Offices of the President and Prime Minister and companies in which the state owned more than 50% of the shares, were exempt from the scrutiny of the Auditor General? To make any such assertion would be to be unfair to President J.R.Jayewardene and the UNP which promulgated the 1978 Constitution. The President’s Office and the Prime Minister’s Office were ALWAYS under the purview of the Auditor General under the 1978 Constitution. The reference to “all departments of Government” in the pre-19th Amendment Article 154(1) includes the Offices of the President and Prime Minister. Any pre-19th Amendment version of the Government Financial Regulations will bear this out. This writer is in possession of an old 1992 copy of the government Financial Regulations in which Appendix 10  on pages 411-43 lists the Presidential Secretariat under ‘A Class’ government departments and the Prime Minister’s Office and the Cabinet Office under ‘B Class’ departments. The Office of Former Presidents is also categorized as a ‘B Class’ government department.

 So all these bodies were always under the purview of the Auditor General. This writer can distinctly recall that there were exchanges between members of the opposition and the government regarding the Auditor General’s reports on the President’s Fund during the previous Rajapaksa government long before the 19th Amendment was enacted. All that the 19th Amendment did was to specify the inclusion of the Offices of the President and Prime Minister under Article 154(1) in a situation where they already came under that provision anyway. This a bit like the 19th Amendment repealing Article 42 of JRJ’s 1978 Constitution, and re-enacting it as Article 33A without changing a single word or comma and then claiming that it was the yahapalana government that made the President responsible to Parliament!

 The actual fact was that from the time the 1978 Constitution was first promulgated, the President had always been responsible to Parliament under old Article 42! (It may be stated as an aside that the 20A has sought to undo this piece of chicanery by repealing Article 33A and restoring JRJ’s old Article 42 to its rightful place.) If the yahapalanites fraudulently sought to claim credit for making the President responsible to Parliament by engaging in such blatant manipulation, it’s only to be expected that they would try to do the same when it comes to the changes made to Article 154(1).

 

Government owned companies

 Another criticism being made is that while the 19th Amendment brought companies in which the government owns more than 50% of the shares within the ambit of the Auditor General, the 20A seeks to abolish that provision. To be sure, the 19th Amendment has included under Article 154(1) “business and other undertakings vested in the Government in which the Government or a public corporation or local authority holds fifty per centum or more of the shares”. The 20A replaces this with the more general phrase “business and other undertakings vested in the Government”. Some members of the government audit service even went to see the Ven. Mahanayake Theras and complained that all the companies in which the government owns more than 50% of the shares were to be taken out of the ambit of the Auditor General. That too is a false assertion. Companies in which the government owns more than 50% of the shares refers to business undertakings like Lake House and Lanka Mineral Sands Ltd. The Auditor General did audit the accounts of such companies even in the pre-19th Amendment era.

 However both before and after the 19th Amendment, it was not mandatory for any business undertaking in which the government held shares over 50% to use the services of the Auditor General. Article 154 (2) of the Constitution as introduced by the 19th Amendment reads as follows:

 “154 (2) Notwithstanding the provisions of paragraph (1) of this Article, the Minister in charge of any such public corporation, business or other undertaking or a company referred to in paragraph (1) may, with the concurrence of the Minister in charge of the subject of Finance and in consultation with the Auditor-General, appoint a qualified auditor or auditors to audit the accounts of such public corporation, business or other undertaking or a company referred to in paragraph (1). Where such appointment has been made by the Minister, the Auditor General may, in writing, inform such auditor or auditors that he proposes to utilize his or their services for the performance and discharge of the Auditor-General’s duties and functions in relation to such public corporation, business or other undertaking or a company referred to in paragraph (1) and thereupon such auditor or auditors shall act under the direction and control of the Auditor-General.”

 Before the 19th Amendment, the old Article 154(2) read as follows:

 “154 (2) Notwithstanding the provisions of paragraph (1) of this Article, the Minister in charge of any such public corporation or business or other undertaking may, with the concurrence of the Minister in charge of the subject of Finance, and in consultation with the Auditor-General, appoint a qualified auditor or auditors to audit the accounts of such public corporation or business or other undertaking. Where such appointment has been made by the Minister, the Auditor-General may, in writing, inform such auditor or auditors that he proposes to utilize his or their services for the performance and discharge of the Auditor-General’s duties and functions in relation to such public corporation, business or other undertaking and thereupon such auditor or auditors shall act under the direction and control of the Auditor-General.”

 Readers will note that the content of the two provisions are identical. Both before and after the 19th Amendment, the Minister in charge of the subject may appoint an audit firm to audit the accounts of a government owned company. In doing so, he is required to obtain the concurrence of the Minister of finance, and to consult the Auditor General. After an audit company has been appointed to audit the accounts of a mostly government owned company, the Auditor General can write to that audit company and make them perform their duties under the direction of the Auditor General. Nothing has changed in this regard before and after the 19th Amendment. So if anyone claims that the 20th Amendment seeks to take companies in which the government owns more than 50% of the shares out of the ambit of the Auditor General, that’s a complete falsehood.  

 

Urgent Bills and dual citizenship

 

One of the changes made by the 19th Amendment was to amend Article 78 so that the time that had to lapse between Gazetting a Bill and presenting it to Parliament was increased from seven days to fourteen days. The 19A also repealed Article 122 which made provision for urgent Bills. Under the provisions of old Article 122, if the Cabinet certifies a Bill as being urgent in the national interest, the provision that a certain number of days has to lapse between the time a Bill is gazetted and presented in Parliament will have no application. The provision of Article 121 which enabled citizens to challenge the constitutionality of a Bill within one week of it being placed on the order paper of Parliament also ceased to apply. When Article 122 was invoked in the case of urgent Bills, the President could write to the Chief Justice requesting him to issue a special determination on the constitutionality of that Bill and the Supreme Court had to make their determination within 24 hours or a period not exceeding three days, as specified by the President.

 The 20A proposes to revive the provision for urgent Bills by re-enacting the old Article 122. The 20A also proposes to amend Article 78 so as to shorten the time between the gazetting of a Bill and its introduction in Parliament from fourteen days to seven days as it was in the pre-19th Amendment days. The proposed reintroduction of this provision for urgent Bills by the 20A has also run into much criticism. According to this writer’s recollection, nobody had any real issue with the provision for urgent Bills in Article 122 until for more than three decades until the 18th Amendment to the Constitution was brought forward as an urgent Bill in 2010. The NGO lobby which seeks to hit out at the government with everything they can lay their hands on, raised a hue and cry about the 18th Amendment being introduced as an urgent Bill. However in actual fact, even if the 18th Amendment had been introduced as an ordinary Bill, and gazetted seven days before it was presented in Parliament, as per the provisions of Article 78, the end result would be the same. 

 Even urgent Bills have to go before the Supreme Court. If there was anything unconstitutional in the 18th Amendment, it would have been shot down by the SC. If it was not shot down by the SC, then it was going to be passed anyway because the 2010 government had a steamroller majority in Parliament. The fact that it was brought as an urgent Bill had little or no impact on how things finally turned out. Yet the provision for urgent Bills itself became a target of those opposed to the Rajapaksas. As a matter of principle, every country should be able to introduce urgent legislation when the need arises. This is a necessary safeguard and a fallback position. The antipathy to the provision for urgent Bills stemmed from the fact that it was used to bring in a constitutional amendment. However the proposed Article 122 in the 20A has taken this into consideration and introduced a totally new clause 122(3) which states that the provisions relating to urgent Bills will not apply to any Bill for the amendment of the Constitution. If the 20A is passed into law, the provision for urgent Bills cannot be used to bring in constitutional amendments.

 The 20A also seeks to repeal Article 91(1)(d)(xiii) by which the 19th Amendment added dual citizenship to the list of disqualifications for election to Parliament. Nobody in this country had any issue with dual citizens contesting elections. This became an issue only because the yahapalana government wanted to remove Gotabaya and Basil Rajapaksa from politics. To countenance this will mean wholesale surrender to yahapalana thinking. The yahapalana side is trying to pass off one of the most egregious outrages they committed as a virtue. We have heard some people citing the instance of Arjuna Mahendran to justify the ban on dual citizens contesting elections. However, Mahendran was not a dual citizen. He was a Singaporean not holding any kind of Sri Lankan citizenship. 

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Politics

Draft 20A: The Urgent and not so Urgent

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by C.A. Chandraprema

The draft of the 20th Amendment has now been Gazetted. Formulating a completely new constitution instead of making interim amendments to the existing one, is undoubtedly what most prefer. However, there are one or two constitutional issues which cannot wait until a new constitution is drafted and have to be attended to immediately. The first such issue pertains to a matter that has gained very little public attention but was exclusively highlighted in this column in July this year. This has to do with the composition of the all-important Constitutional Council which has the final say in making appointments to high state positions such as that of the Attorney General and Judges of the Supreme Court and independent commissions such as the Elections Commission and the Public Services Commission.

 The Constitutional Councils appointed in 2015 and 2018 were aberrations because the yahapalana government made up of the UNP and the SLFP and the yahapalana opposition made up of the TNA and the JVP shared all the positions on the Constitutional Council among themselves. The CC established in 2018 is set to continue till October 2021. If this issue is not addressed immediately, the defeated yahapalana opposition will have complete and total control over the process of making appointments to important state positions and independent commissions until October 2021.

According to the 19th Amendment, the Constitutional Council is made up of the Speaker (Chairman) the Prime Minister, the Leader of the Opposition, one Member of Parliament appointed by the President,  five persons appointed on the nomination of both the Prime Minister and the Leader of the Opposition of whom two persons shall be Members of Parliament, and one Member of Parliament nominated by agreement of the majority of the Members of Parliament belonging to political parties, other than the respective political parties to which the Prime Minister and the Leader of the Opposition belong.

 

Yahapalana Constitutional Council

 

Accordingly, the present Constitutional Council is composed of the following persons. Speaker Mahinda Yapa Abeywardana (Chairman), Prime Minister Mahinda Rajapaksa, Opposition Leader Sajith Premadasa, President’s nominee Mahindananda Aluthgamage, nominees of the PM and the Opposition Leader R. Sampanthan, Thalatha Atukorale, Naganathan Selvakumaran and Javed Yusuf. Two seats are vacant. Bimal Ratnayake who represented the smaller political parties in Parliament was defeated at the Parliamentary election and has not been replaced, and Jayantha Dhanapala who resigned from the CC has not been replaced. If we assume for the moment that the two vacancies will not be filled, we see that of the remaining eight members, no less than five are yahapalanites and only the Speaker, the PM and the President’s nominee represent the ruling SLPP led coalition.  

 R. Sampanthan, Thalatha Atukorale, Naganathan Selvakumaran and Javed Yusuf are on the CC by virtue of the fact that they were appointed in 2018 by the yahapalana government and yahapalana opposition working in collusion. Sampanthan was appointed to the Constitutional Council in April 2019 as a concession granted to him when Mahinda Rajapaksa became the Opposition Leader. Thalatha Athukorale was appointed to the CC earlier in 2018 as one of the five nominees who are appointed jointly by the PM and the Opposition Leader. Now that they have been re-elected to Parliament, they are serving out the remainder of their three year fixed term which they are entitled to under Article 41A(8) of the Constitution. The CC is not a Committee of Parliament but a body that stands outside it even though it is made up mostly of parliamentarians. Members of the Constitutional Council appointed in 2018 who have fixed terms continue to function even if Parliament is dissolved and a new Parliament is convened and the Members of Parliament who survive the election can serve out the remainder of their terms in the new parliament.

 The nominee on the CC representing the President was Mahinda Samarasinghe. He too had a fixed three year term under Article 41A(8) and he has been re-elected to Parliament, but he has been replaced by Mahindananda Aluthgamage. The only way such a change can be made would be on the grounds that the President has changed so the individual representing the President on the CC also has to change. However no provision has been made in the Constitution to make such a change and one has to go by the wording of Article 41A(1)(d) which states that the CC has to have one Member of Parliament appointed by the President. By implication, such an appointee cannot be the person who was appointed by the former President.

 

But there’s no such luck when it comes to the five members of the CC appointed jointly by the Prime Minister and the Leader of the Opposition, two of whom should be MPs. All these appointees have fixed three year terms under Article 41A(8) and they cease to be members of the CC only if the member resigns or is removed from office on both the Prime Minister and the Leader of the Opposition forming an opinion that such member is physically or mentally incapacitated and is unable to function further in office or is convicted by a court of law or if he loses his civic rights. There is no provision for such an appointee to be removed from the CC when the PM and the Opposition Leader changes. Thus Thalatha Athukorale and Sampanthan continue to sit on the CC. The majority of MPs belonging to the smaller political parties in Parliament to which neither the PM nor the Leader of the Opposition belong are yahapalanites and if they nominate a replacement for Bimal Ratnayake, that nominee will be another yahapalanite.

 The replacement for Jayantha Dahanapala, since it will have to be made jointly by Prime Minister Mahinda Rajapaksa and Opposition leader Sajith Premadasa, may be a neutral person but it will not help to correct the imbalance in the CC. There will be just three SLPP members and one neutral person as against six yahapalanites. There is the danger that the yahapalanites on the CC will stuff the so called independent commissions full of yahapalanites as they did in 2015 and 2018, thus subverting the people’s mandate of 2019 and 2020. Under Article 41B (4), if the President does not appoint the members of the independent commissions recommended by the Constitutional Council within 14 days, they will be deemed to have been appointed automatically at the end of that period. It takes little imagination to see the immediate danger posed by these provisions.

 The Elections Commission will have to be reappointed in November this year, and it’s imperative that the present Constitutional Council be abolished by then. The 20th Amendment seeks to replace the present Constitutional Council with a five member Parliamentary Council made up of the Prime Minister, the Speaker, the Leader of the Opposition, a nominee of the Prime Minister, who shall be a Member of Parliament, and a nominee of the Leader of the Opposition, who shall be a Member of Parliament.

 

The President’s defence responsibilities

 

Another situation that should not be allowed to persist until a new constitution is drafted is the question whether the President can hold the defence portfolio or not. The drafting of a new constitution may take at least a year given some of the contentious issues like electoral reform that will have to be negotiated. There is no express prohibition in the 19th Amendment on the President holding portfolios. The supposed prohibition is by implication. Before the 19th Amendment, there used to be Article 44(2) in the Constitution which stated that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister. That provision was dropped when the 19th Amendment repealed and replaced Chapter Eight of the Constitution. There was also a transitional provision in the form of Section 51 of the 19th Amendment Act which stated that Maithripala Sirisena, so long as he held office as President, may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment.

 The disappearance of old Article 44(2) and Section 51 of the 19th Amendment Act taken together are supposed to imply that the Presidents coming after Maithripala Sirisena cannot hold any portfolio – not even the defence portfolio. Yet as the Constitution stands even after the 19th Amendment, the President is the Head of the State, the Head of the Executive, Head of the Government and Head of the Cabinet of Ministers in a situation where Article 4(b) states that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President. We see that Article 46 of the 1946 Constitution named certain ministries that had to be established such as the Ministry of Justice, Ministry of Finance and the Ministry of Defence and External Affairs. Our present Constitution does not name any ministries that have to be established.

According to our Constitution, the executive is made up of the President and the Cabinet and the President appoints the secretaries to all ministries. So long as the President and Cabinet are of one mind, it may be possible to have a defence ministry run by its Secretary without a Gazetted Defence Minister as such. In such an instance, the defence secretary will be acting under the instructions of the President and the Cabinet. The only hitch will be when the defence minister is required by legislation to sign certain documents in his capacity as the minister of defence or the minister in charge of a certain function. But such areas can be assigned to the State Minister of Defence and theoretically, a patchwork arrangement of that sort can be continued until a new constitution is passed.

 But it’s a moot question as to whether it is advisable to carry on in such a manner for an extended period of time especially with regard to a matter as important as defence. The SLPP won the presidential and parliamentary elections on a public security and law and order ticket. Minister of Education Prof. G.L.Peiris has been addressing public gatherings arguing for the immediate rectification of this situation which has cast doubts on the President’s ability to hold the defence portfolio. This together with the Constitutional Council issue highlighted earlier can be named as the two issues that cannot wait until a new Constitution is drafted and needs to be resolved as soon as possible. The draft 20th Amendment has sought to resolve the defence ministry issue by restoring the old (pre-19th Amendment) Article 44(2) which stated that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister.

 

Issues that can wait

 

In the medium to long term, the most dangerous aspect of the 19th Amendment is the total prohibition on the dissolution of Parliament until the lapse of four and a half years unless a resolution to that effect is passed by Parliament with a two thirds majority. Before the introduction of the 19th  Amendment, the old Article 70(1) of the Constitution stated that the President could dissolve Parliament at his discretion, and the only restriction on this power was if the last parliamentary election had been held as a consequence of the President having dissolved Parliament at his discretion, he could not dissolve the next Parliament until the lapse of one year from the date of that Parliamentary election. Moreover, under the old Article 70(1), Parliament could dissolve itself by a resolution passed by a simple majority and if the government cannot get the budget passed after two attempts, the President was mandatorily required to dissolve parliament. 

 But now, we have a Parliament that cannot be dissolved for four and a half years regardless of anything that may happen within Parliament, even if the government suffers repeated defeats at no confidence motions, if their budgets or statements of government policy are repeatedly defeated, there is no provision to dissolve Parliament to hold fresh elections unless a motion is passed by a two thirds majority in Parliament requesting dissolution. This can lead to a paralysis of the entire government. However, since the present government has an overwhelming majority in Parliament, rectification of this issue can wait till the new constitution is drafted, but since the rectification of this needs only the simple measure of repealing the yahapalana Article 70(1) and restoring the old article 70(1), there is perhaps no harm in doing that through the interim amendment.

 One of the provisions in the 19th Amendment that had a serious impact on the yahapalana government was the diarchy that it created by Article 43 which said that the President could at his discretion determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers, but was required to mandatorily consult the Prime Minister when appointing MPs to those ministerial positions. Thus the Prime Minister became the effective appointing authority of Ministers. Wimal Weerawansa described this as a situation where the President was wearing the shirt and the Prime Minister the trousers with neither of them having a full set of clothes!

For any political party other than the SLPP, this provision would have had serious consequences. But the SLPP will not have any issues so long as the Rajapaksa brothers hold those two positions. The recification of this issue could have waited till the new constitution was drafted, but the 20th Amendment seeks to rectify this by restoring the old Article 44(1) as it stood before the 19th Amendment – which will give the President the power to determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers and to appoint MPs to those positions after consulting the PM if he deems such consultation to be necessary.

There are other issues too that could have been put off till the new constitution is drafted, such as lifting the yahapalana ban on dual citizens contesting elections, and reducing the age limit for contesting presidential elections. Provision also has been made in the 20th Amendment to restore the urgent Bills procedure whereby if the Cabinet of Ministers certifies a Bill as urgent, the need to gazette the Bill 14 days before it is presented in Parliament can be dispensed with and the President can write to the Chief Justice, requesting a special determination of the Supreme Court as to whether the Bill is inconsistent with the Constitution and the Supreme Court is required to deliver their determination within 24 hours or a period not exceeding three days as specified by the President.

 One area where the new Article 122 differs from the old (pre-19th Amendment) Article 122 is the inclusion of a new sub-Article 122(3) which specifies that Bills to amend the Constitution cannot be deemed to be urgent Bills.  Another significant change to be made by the 20th Amendment is the dropping of the limit of 30 cabinet ministers and 40 non-cabinet ministers and deputy ministers introduced by the 19th Amendment. We see from the foregoing that what the 20th Amendment aims at is restoring the status quo ante, as things stood before the 17th, 18th and 19th Amendments. Some of these obviously can wait until the new constitution is drafted, but the first two issues mentioned in this column obviously need immediate attention. Going by the public pronouncements of members of the Cabinet Sub-committee on constitutional reform, such as Prof. G.L.Peiris, they too have prioritized certain areas such as the defence ministry issue which has wide ramifications for public security, the urgent Bills issue, and the Constitutional Council issue.

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Reconsidering the 13th Amendment

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by C.A. Chandraprema

The government has made an official statement to the effect that it’s reconsidering the 19th Amendment but no such official statement has been made with regard to the 13th Amendment. However opposition politicians have expressed the view that the government is trying to use its two thirds majority to do away with the 13th Amendment as well.

The government does not have to take the trouble to do anything to get rid of the 13th Amendment. It has been tied up in knots by the yahapalana political parties including the Tamil National Alliance so effectively that all that the government has to do to get rid of it for good, is to do nothing. If the government is to restore the provincial councils system, they will need a two thirds majority to do away with its predecessor’s 2017 Act which sent the PC system into the limbo that it is in at present.

 When the provincial councils system was functioning there was the oft heard complaint that it had not been made fully functional i.e. that the police and land powers of the provincial councils had not been implemented as originally intended. This has been a major bone of contention during the past three decades with the Tamil National Alliance calling for its full implementation and even demanding that the Sri Lankan government should go beyond the 13th Amendment in order to satisfy Tamil aspirations. One thing that we have to realize is that like so many other aspects of the 1978 Constitution, the 13th Amendment is a very badly drafted piece of legislation. When police and land powers were included in the 13th Amendment, they were copied wholesale from the Indian constitution with no consideration for its practicability in Sri Lanka.

 Land powers

In India, what has been said in the text of the Constitution in relation to the powers over land of the center and the states has been defined and interpreted by the Supreme Court. In the landmark 1962 case, State Of West Bengal vs Union of India, a majority judgment concluded that the structure of the Indian Union is centralized, with the States occupying a secondary position. Hence the Center possessed the requisite powers to acquire properties belonging to States. The Indian SC observed in this case that even under Constitutions which are truly federal and full sovereignty of the States is recognized, the power to utilize property of the State for Union purposes is not denied. Therefore the power of the Union to legislate in respect of property situated in the States remains unrestricted. This judgment was delivered in 1962. The provincial councils system was introduced in Sri Lanka in 1987. If the text dealing with land powers in the 13th Amendment had been formulated on the lines laid down in State of West Bengal vs Union of India, the Northern Tamil political parties would have had more realistic expectations with regard to powers over land. Instead, the text of the 13th Amendment on land powers followed the text of the Indian Constitution thus making it necessary for Sri Lanka to reinvent the wheel as it were.  

In 2013, Sri Lanka finally got its own version of State Of West Bengal vs Union of India which defined the extent of the land powers mentioned in the 13th Amendment. The 2013 case of Solaimuthu Rasu, vs The State Plantations Corporation was heard by a three member bench of the Supreme Court made up of Chief Justice Mohan Pieris, K.Sripavan, and Eva Wanasundera and each judge delivered separate judgments while coming to the same conclusion. Justice Sripavan observed in his judgment that ‘land’ is a Provincial Council subject only to the extent set out in Appendix II (of the 9th schedule of the Constitution). The Constitutional limitations imposed by the legislature shows that in the exercise of its legislative powers, no exclusive power is vested in the Provincial Councils with regard to the subject of ‘land’… a Provincial Council can utilize ‘State Land’ only upon it being made available to it by the Government. It therefore implies that a Provincial Council cannot appropriate to itself without the government making state land available to such Council. Such state land can be made available by the Government only in respect of a Provincial Council subject.

Justice Sripavan explained further that the only power cast upon the Provincial Council is to administer, control and utilize such state land in accordance with the laws passed by Parliament and the statutes made by the Provincial Council… Even after the establishment of Provincial Councils in 1987, state land continued to be vested in the Republic and disposition could be carried out only in accordance with Article 33(d) of the Constitution read with 1:3 of Appendix II to the Ninth Schedule to the Constitution. Despite such Supreme Court interpretations given in India and Sri Lanka, the Tamil lobby in Sri Lanka continues to demand exclusive land powers that even Tamil Nadu does not possess. They may point to the text of the 13th Amendment, but never to the interpretations given to that text in India or even in Sri Lanka. People pretend that they have neither seen nor heard of any interpretation given with regard to land powers and we keep going round and round in circles.

Police powers

When it comes to police powers however, what the 13th Amendment has is what India actually has in practice. The first item on the Provincial Council List of powers is Police and Public order. The extent of these powers are set out in an Appendix to the 13th Amendment according to which the Sri Lanka police force was to be divided into a National Division (including Special Units) and nine Provincial Divisions. The National division would have jurisdiction only over 11 specified areas such as offenses against the State, election offenses, offenses relating to currency, offenses committed against a public officer, a judicial officer, or a Member of Parliament, offenses relating to state property and international crimes etc. Other than such specified offenses, all other day to day police work such as crimes, traffic, drugs, fraud and maintenance of public order etc. were to be carried out by the provincial police forces.

Thus what we were to have under the 13th Amendment were in effect nine different police forces combined with a national police force all crammed into an area the size of one of India’s smaller states. A police system designed for a sub-continent is applied to a country only a little bigger than Himachal Pradesh. Furthermore the creation of separate police forces for each province would have given rise to a Tamil police force in the north, a Muslim and Tamil police force in the east and Sinhala police forces in the rest of the country – a sure recipe for disaster given Sri Lanka’s history of ethnic conflict. No leader in the past three decades since the 13th Amendment was passed has even considered implementing the police powers laid down in the 13th Amendment. Moreover, these police powers have been included in the 13th Amendment in a situation where some of the most important safeguards in the Indian Constitution against separatism have been left out.

 

The missing safeguards         

 

The Indian President’s veto power over state legislation: Even though some Indian states are much bigger than most nation states in the world, the Indian President can veto any legislation that comes to him from the states. According to Articles 200 and 201 of the Indian Constitution, When a Bill has been passed by the Legislative Assembly of a State it has to be presented to the Governor for assent. The Governor can either give his assent or reserve it for the consideration of the President. The President can either assent to the Bill or withhold assent therefrom and he does not have to give any explanation as to why he withholds assent. He does not have to consult the Supreme Court or any other authority. This veto power is exercised entirely at the discretion of the Indian President.  

 In terms of Sri Lanka’s 13th Amendment however, every statute made by a Provincial Council has to be presented to the Governor for his assent, and the Governor may either assent to the statute or reserve it for reference by the President to the Supreme Court, for a determination on the constitutionality of the statute. If the Supreme Court determines that the statute is consistent with the provisions of the Constitution, the Governor is mandatorily required to assent to the statute. The Sri Lankan President is thus only a post box through whom the Governor sends the statute to the Supreme Court and receives its opinion! The Sri Lankan Executive President has no discretionary power over statutes passed by the provincial councils even though the supposedly ceremonial Indian President has such powers.

 

Taking over state legislative power in the national interest: According to Article 249 if the Indian Constitution, if the Council of States (the upper house of Indian parliament – the Rajya Sabha) has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. Such A resolution shall remain in force for a period not exceeding one year, and so long as a resolution approving the continuance in force of such resolution is passed, it can continue in force for a further period of one year. This takeover of legislative power can continue indefinitely for as long as is required. (It’s important to note that it’s only the upper house of parliament that needs to vote on this matter and that too only with a two thirds majority of Members who may be present on that day, and not a two thirds majority of the whole number of Members of the Rajya Sabha.)

 Take over of state legislative power when a state of emergency is in operation: According to Article 250 of the Indian Constitution, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. A law made by Parliament under this provision will lapse six months after the Proclamation of Emergency has ceased to operate.

 We have to recognize that what has been dished out to us in the form of the 13th Amendment is something of a much lower order than that which exists in India. For example, under Article 353 of the Indian Constitution, when a Proclamation of Emergency is in operation, the executive power of the Union extends to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised and further, the power of Parliament to make laws includes the power to make laws with regard to matters that are not on the Union list (i.e. items on the State list). However according to Article 154J of the Sri Lankan Constitution introduced by the 13th Amendment which is the equivalent of Article 353 of the Indian Constitution, when a state of emergency is in operation, the President may give directions to any Governor as to the manner in which the executive power exercisable by the Governor is to be exercised; but Parliament will not have the power to legislate on matters coming under the provincial councils list!

 

Shortchanged at every turn

 

It’s only with regard to the ‘President’s rule’ provisions that we appear to have got what the Indian Constitution has, but even that is merely an appearance and we have been shortchanged there was well. Article  356 of the Indian Constitution states that if the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the President may by Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers exercisable by the Governor and (b) declare that the powers of the Legislature of the State shall be exercisable by the authority of Parliament;

 The equivalent provision in the Sri Lankan Constitution which was introduced by the 13th Amendment – Article 154L – states that if the President, on receipt of a report from the Governor of the Province or otherwise, is satisfied that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution, the President may by Proclamation – (a)  assume to himself all or any of the functions of the administration of the Province and all or any of the powers vested in, or exercisable by, the Governor and (b) declare that the powers of the Provincial Council shall be exercisable by, or under the authority of Parliament. Thus we see that the President’s rule provisions in the Indian Constitution and Sri Lanka’s 13th Amendment are almost identical. The difference however is that in India, President’s rule can remain in force continuously for a maximum period of three years, but in Sri Lanka President’s rule can remain in force only for a maximum of one year.   

 What was stated above was just the most obvious instances where Sri Lanka has been shortchanged. Closer scrutiny of the Indian Constitution and the way it operates, will reveal many more instances. If the Sri Lankan President had veto power over all statutes passed by the provincial councils, if the declaration of an emergency automatically gave the Sri Lanka Parliament the power to legislate on any matter coming under the provincial councils list, and if there was a system whereby Parliament could take over the legislative power of any province in the event of perceived danger as stipulated in Article 250 of the Indian Constitution, the entire attitude towards the devolution of power in this country would have been very different. As of now, people in Sri Lanka see devolution as a kind of creeping separatism, and they are right because the demands that we hear most often are for powers that even the Indian states do not possess.

 The 13th Amendment was drafted before India got into a confrontation with the LTTE and before Rajiv Gandhi was assassinated. That was a time when some officers of the Indian army even thought that the LTTE would not turn on them because the latter had been trained and given refuge in India. Furthermore, because Sri Lanka was a small country, some would have thought that fewer safeguards would be required here. The Sri Lankan side may have thought that because India was guaranteeing the implementation of the peace accord, nothing can go wrong and they may have thought that a downsized version of India’s President’s rule provisions was all that was needed in terms of constitutional safeguards against separatism.

 Both India and Sri Lanka have learnt many new things since then. Even though the provincial councils system is supposed to be based on the Indian system, we don’t have any of the safeguards that India has. To expect police powers to be implemented in such circumstances is unrealistic. In the opinion of this writer, if legislation is to be passed with a two thirds majority in Parliament to revive the provincial councils system, the same legislation should be used to remove all references to police powers from the provincial councils list in the Ninth Schedule of the Constitution for the reasons given above.

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