Features
Building a future and forgetting the past
by Professor Savitri Goonesekere
At the ceremonial opening of out first Parliament on February 4, 1948 the late Mr. SWRD Bandaranaike addressed the nation with theses words. “It is true that no people can live on memories alone. It is equally true that history often provides a source of strength and inspiration to guide them in the future. It is only against the background of the past that the present and the future can be viewed in their correct perspective”
The new political ideology of “thinking out of the box” in governance seems impatient with the idea that history and experience has any value. This may be the “new normal” in a country where history was not taught in our schools for decades. The 20th Amendment that has just been gazetted and will go before Parliament for adoption demonstrates that the newly elected government is embarking on the important task of constitutional reform without reflecting on our experiences of governance under the 1978 Constitution.
Most nations in South Asia have not had to carry out frequent changes to the basic law of their country, the Constitution. It is true that our country has not in general experienced illegal power grabs. Yet electoral politics has also encouraged ad hoc amendments to the Constitution. In debating the cost of recent exercises in constitutional reform, the 20th Amendment, we should reactivate our collective memories on governance over the years. In doing so we should reflect on SWRD Bandaranaike’s statement of 1948 giving due consideration to the kind of governance we deserve and want for our country in the future.
The SLPP campaign for repealing the 19th amendment and adopting a new constitution.
The opposition and the media did not ask them to clarify their rationale for doing so or their vision. Within a month of taking office the 20th Amendment is being brought to Parliament to give supreme powers to the President without the system of checks and balances on distribution of powers between the three agencies of government in a Parliamentary democracy – the Legislature, the Executive and the Judiciary (courts). It is true that strong leadership in governance is essential for national development. However Parliamentary democracies create institutions and systems to help great leaders govern without forgetting the responsibilities of office and accountability, heeding not just electoral majorities, but all the people.
The 1978 Constitution provided the framework of governance for our country for 42 years. A Constitutional amendment that gives supreme power to an elected popular leader without institutional checks and balances can determine governance in a country long after he has left office.
The 19th amendment 2015
The 19th Amendment continues to be demonized by politicians in the government and others as a conspiracy of the previous regime to cunningly increase the powers of the then Prime Minister and undermine the President’s powers in governance. Yet the consensus within and outside Parliament in 2015 was that the dismantling of the Executive Presidency of the 1978 Constitution done in stages pending a new Constitution was a worthwhile objective and in the public interest. It was agreed at that time and up to mid 2019 that the Executive Presidency was a demon that had to be destroyed.
That agenda itself had a long history that we have all forgotten. President Chandrika Kumaratunga, when she took office pledged to dismantle the “bahubootha” 1978 constitution which she said was responsible for decades of bishanaya and dooshanaya (violence and corruption). Prof. GL Pieris and the late Dr. Neelan Tiruchelvam were tasked with giving leadership and drafting a new Constitution that would transfer executive power to an elected Prime Minister and a Cabinet responsible to Parliament and the people. When taking Cabinet office in that government Prof. Pieris said “a Parliamentary executive model must be re-introduced. The Peoples Alliance has received an overwhelming mandate … for the abolition of the Executive Presidency.” (Sunday Times September 13, 2020, page 14).
The 2000 Constitution that Prof. Pieris brought to Parliament had strong provisions on the appointment and removal of judges to prevent political interference. It had a stronger bill of fundamental rights and a carefully thought out system of power sharing between the central and Provincial governments. This 2000 Constitution was rejected because there was no consensus on its adoption within Parliament.
President Mahinda Rajapaksa assumed office in 2005 on a mandate to dissolve the Executive Presidency. His Mahinda Chinthanaya policy for national development called for strengthening the Bill of Rights in a new Constitution. The National Action Plan on Human Rights was drafted and adopted. The President also appointed an Expert Committee to assist the All Party Conference (APRC) on constitutional reform and asked them to work towards maximum devolution to resolve the “national question” with power sharing. Yet in 2010 after giving leadership in ending the armed conflict in 2009 President Rajapaksa seized the moment to bring an 18th Amendment to the Constitution that would enable him to become a President for life. He acquired full powers on appointment and removal of holders of high office and Public Commissions without the scrutiny of a Constitutional Council and procedures introduced by the 17th amendment.
When President Sirisena was elected in 2015 he assumed office with a pledge to the nation to dismantle the Executive Presidency. He repeated this pledge on the passing of Rev. Maduluwave Sobitha who had led an election campaign to eliminate the executive presidency reinstating the checks and balances on abuse of executive power through institutions such as Parliament and the courts and independent commissions. It was in this environment that the 19th amendment was adopted by consensus and the two-thirds majority without challenge within the Parliament or in the Supreme Court.
A comparison of the 19th and 20th amendments.
A comparison of these two amendments clearly demonstrates that the cores principles of government in the 19th Amendment has been removed by the 20th Amendments in areas of great significance for the governance of the country.
The term of the Office of President and
Eligibility for office
The 19th Amendment repealed provisions in the 18th Amendment, and set a term of office of five years, and a two term limit on the period in which he could serve in this office. These provisions have been retained in the 20th Amendment .However, the President holding office under the 20th Amendment will have all the powers of the Executive President in the 1978 Constitution, and some more powers.
When the 19th Amendment introduced limitations on the President’s terms of office, it also REDUCED Presidential powers to accommodate the concept of a transfer of powers from the President to an elected Prime Minister in Parliament. The changes in the Presidential term of office were combined with what Parliament agreed was a first step in LIMITING the executive powers of the President, to ensure accountable exercise of these powers.
The 19th amendment prohibited a dual citizen from being elected to office as a Member of Parliament, or as the President. These prohibitions have been repealed by the 20 Amendment and such persons can be Members of Parliament or President.
There is a perception that this prohibition will prevent dual citizens from holding ANY public office. This is incorrect. The prohibition in the 19th Amendment only applied to the public offices of President and Members of Parliament, recognizing the potential for a serious conflict of interest should such a person be called upon to “carry arms” for another country, or support controversial policies of that country. An ordinary holder of public office may have choice and can resign. However resignation for conflict of interest has Constitutional implications, if a person is the President of the country, or a member of its legislative body, Parliament.
Presidential Powers and Accountability to other organs of Government and the People, in the Exercise of these Powers.
Significant changes to the 1978 Constitution were made by the 19th Amendment in keeping with the overall objective of reducing the powers of the Executive Presidency, in the interests of accountable governance .
a) Duties of the President.
The 19th Amendment defined powers and also introduced a principle of “duties” that had to be fulfilled by the President. Some of the significant duties were, to:
i) ensure that the Constitution is respected and upheld
ii) promote national integration and reconciliation
iii) create a proper environment for the conduct of free and fair elections, on the advice of the Election Commission
The 20th Amendment retains provisions on Presidential powers and REPEALS the provisions in the 19th Amendment on Presidential duties under the Constitution, and to the People, and the other organs of government.
b) Accountability for Violation of the Fundamental Rights of the People by Presidential Acts and Omissions in Governance
The 19th Amendment removed the blanket immunity of the President that was incorporated in the 1978 Constitution. The 19th Amendment recognized that the President was immune from liability in criminal or civil proceedings for anything done or omitted to be done in his official or private capacity. However, it placed a limitation, by permitting actions for violation of fundamental rights in the Supreme Court. This was to ensure that the exercise of Presidential powers, in his official capacity, could not involve a violation of fundamental rights guaranteed to all by the Constitution, or by the provisions on the use of Official Languages in the Constitution.
The declaration of war and peace was excluded from this limitation.
The 20th Amendment repeals these limitations on Presidential immunity. It goes back to the principle of complete Presidential immunity from liability for his acts and omissions.
There is a provision in the 20th Amendment on the right to bring actions against the Attorney General in respect of the President’s acts as a Minister, his /her impeachment, elections and a referendum, but the scope of this liability is not clearly stated.
The Presidents Relationship to Parliament
a) Responsibility to Parliament in the exercise of Presidential Powers
The 19th Amendment gave prominence to the President’s responsibility to Parliament in the exercise of his powers and functions, as a core principle of governance, in the Chapter of the Constitution on the President’s powers and duties. This principle was originally stated in the 1978 Constitution in the Chapter on the President and the Cabinet – the branch of the executive also represented in Parliament. The 20th Amendment brings this principle back to the part of the Constitution that deals with the Cabinet, denying it the importance given in the 19th Amendment.
The change can be interpreted as limiting the President’s responsibility to Parliament. It is significant in a context where the 20th Amendment gives total presidential powers in regard to appointments to “High Posts,” defined by the Constitution, and the Public Commissions defined in the 20th Amendment. The Constitutional Council that was given oversight responsibility by the 19th Amendment had a significant majority of Parliamentarians on the Council. The Constitutional Council has been abolished by the 20th Amendment, and the Parliamentary Council that replaces it has the Speaker, the Prime Minister and the Leader of the Opposition, and two Parliamentarians nominated by the latter, who are appointed by the President, and who can also be removed by the President at his discretion!
The Parliamentary Council under the 20th Amendment is under the control of the President, and there is only a token role for Parliamentarians, including the Speaker the Prime Minister and the Leader of the Opposition. They have no contribution to make in their official capacity as members of the Parliamentary Council.
b) Dissolution of Parliament
Presidential powers on the Dissolution of Parliament, and the provisions on presentation of urgent Bills, also erode the role and responsibility of Parliament, and the capacity for oversight and scrutiny of legislation.
The 20th Amendment empowers the President to dissolve Parliament one year after a General Election. This places the country in a situation where a costly General Election can be held in a very short time , and with no assurance that this decision will be made in the public rather than the rulers’ interests.
c) Other changes of concern relate to the Presidents capacity to refer legislation that has been rejected by Parliament for a referendum.
This provision in the 1978 Constitution was repealed by the 19th Amendment and has been brought back by the 20th Amendment. A new provision on legislation states that “any amendment to a proposed Bill in Parliament must not deviate from the merits and principles of such Bill.” This sweeping provision can restrict debate and modifications of legislation in Parliament, and will encourage greater passivity and disinterest in serious discussions.
The President, Prime Minister and Cabinet,
as the Executive in Governance
The agreed objective of the 19th Amendment was to reduce the executive power of the President and transfer some of these powers to a Prime Minister and Cabinet from Parliament. Consequently, the provisions in the 1978 Constitution were changed significantly. The 20th Amendment has repealed all these provisions and gone back to the concept of supreme executive powers given to the President.
The President has complete discretion in determining the number of Ministries and the topics allocated to Ministries and State Ministries. “Jumbo Cabinets” can hold office without regard to national resources, at the discretion of the President. More importantly, the office of Prime Minister, Cabinet Minister and State Minister, will be held at the “will and pleasure” of the President, with the full power of appointment, removal, and selection of Ministries left entirely to the discretion of the President. He can also assign any subject to himself, and take away Ministries allocated to any Minister, without even consulting the Prime Minister, exercising these powers in any manner that pleases him.
There are no checks and balances at all on the exercise of Presidential powers in relation to the Prime Minister and Cabinet, under the 20th Amendment. Can this not encourage complete servility to the President, within Cabinet?
The changes ignore the fact that the Prime Minister and Members of Parliament have been elected by vote to Parliament with separate responsibilities to voters. Having permitted voters to exercise choice, the 20th Amendment disempowers them completely, and makes them accountable to a single individual – the President. The Prime Minister has been reduced to an ” peon (office orderly),” as one holder of the office described himself, when he held the position under the 1978 Constitution. Yet ironically the provision that the ‘Cabinet has the direction and control of government and that they are answerable and responsible to Parliament” has been retained in the 20th Amendment.
(to be continued in The Island tomorrow)
(The writer, a highly accomplished academic in law, is a former Vice Chancellor of the University of Colombo)
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There’s an ill more dangerous and pervasive than the Coronavirus that’s currently sweeping Sri Lanka. That is the fear to express one’s convictions. Across the public sector of the country in particular many persons holding high office are stringently regulating and controlling the voices of their consciences and this bodes ill for all and the country.
The corrupting impact of fear was discussed in this column a couple of weeks ago when dealing with the military coup in Myanmar. It stands to the enduring credit of ousted Myanmarese Head of Government Aung San Suu Kyi that she, perhaps for the first time in the history of modern political thought, singled out fear, and not power, as the principal cause of corruption within the individual; powerful or otherwise.
To be sure, power corrupts but the corrupting impact of fear is graver and more devastating. For instance, the fear in a person holding ministerial office or in a senior public sector official, that he would lose position and power as a result of speaking out his convictions and sincere beliefs on matters of the first importance, would lead to a country’s ills going unaddressed and uncorrected.
Besides, the individual concerned would be devaluing himself in the eyes of all irrevocably and revealing himself to be a person who would be willing to compromise his moral integrity for petty worldly gain or a ‘mess of pottage’. This happens all the while in Lankan public life. Some of those who have wielded and are wielding immense power in Sri Lanka leave very much to be desired from these standards.
It could be said that fear has prevented Sri Lanka from growing in every vital respect over the decades and has earned for itself the notoriety of being a directionless country.
All these ills and more are contained in the current controversy in Sri Lanka over the disposal of the bodies of Covid victims, for example. The Sri Lankan polity has no choice but to abide by scientific advice on this question. Since authorities of the standing of even the WHO have declared that the burial of the bodies of those dying of Covid could not prove to be injurious to the wider public, the Sri Lankan health authorities could go ahead and sanction the burying of the bodies concerned. What’s preventing the local authorities from taking this course since they claim to be on the side of science? Who or what are they fearing? This is the issue that’s crying out to be probed and answered.
Considering the need for absolute truthfulness and honesty on the part of all relevant persons and quarters in matters such as these, the latter have no choice but to resign from their positions if they are prevented from following the dictates of their consciences. If they are firmly convinced that burials could bring no harm, they are obliged to take up the position that burials should be allowed.
If any ‘higher authority’ is preventing them from allowing burials, our ministers and officials are conscience-bound to renounce their positions in protest, rather than behave compromisingly and engage in ‘double think’ and ‘double talk’. By adopting the latter course they are helping none but keeping the country in a state of chronic uncertainty, which is a handy recipe for social instabiliy and division.
In the Sri Lankan context, the failure on the part of the quarters that matter to follow scientific advice on the burials question could result in the aggravation of Islamophobia, or hatred of the practitioners of Islam, in the country. Sri Lanka could do without this latter phobia and hatred on account of its implications for national stability and development. The 30 year war against separatist forces was all about the prevention by military means of ‘nation-breaking’. The disastrous results for Sri Lanka from this war are continuing to weigh it down and are part of the international offensive against Sri Lanka in the UNHCR.
However, Islamophobia is an almost world wide phenomenon. It was greatly strengthened during Donald Trump’s presidential tenure in the US. While in office Trump resorted to the divisive ruling strategy of quite a few populist authoritarian rulers of the South. Essentially, the manoeuvre is to divide and rule by pandering to the racial prejudices of majority communities.
It has happened continually in Sri Lanka. In the initial post-independence years and for several decades after, it was a case of some populist politicians of the South whipping-up anti-Tamil sentiments. Some Tamil politicians did likewise in respect of the majority community. No doubt, both such quarters have done Sri Lanka immeasurable harm. By failing to follow scientific advice on the burial question and by not doing what is right, Sri Lanka’s current authorities are opening themselves to the charge that they are pandering to religious extremists among the majority community.
The murderous, destructive course of action adopted by some extremist sections among Muslim communities world wide, including of course Sri Lanka, has not earned the condemnation it deserves from moderate Muslims who make-up the preponderant majority in the Muslim community. It is up to moderate opinion in the latter collectivity to come out more strongly and persuasively against religious extremists in their midst. It will prove to have a cementing and unifying impact among communities.
It is not sufficiently appreciated by governments in the global South in particular that by voicing for religious and racial unity and by working consistently towards it, they would be strengthening democratic development, which is an essential condition for a country’s growth in all senses.
A ‘divided house’ is doomed to fall; this is the lesson of history. ‘National security’ cannot be had without human security and peaceful living among communities is central to the latter. There cannot be any ‘double talk’ or ‘politically correct’ opinions on this question. Truth and falsehood are the only valid categories of thought and speech.
Those in authority everywhere claiming to be democratic need to adopt a scientific outlook on this issue as well. Studies conducted on plural societies in South Asia, for example, reveal that the promotion of friendly, cordial ties among communities invariably brings about healing among estranged groups and produces social peace. This is the truth that is waiting to be acted upon.
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By Sanjeewa Jayaweera
It was on 3rd January 1972 that our family arrived in Karachi from Moscow. Our departure from Moscow had been delayed for a few weeks due to the military confrontation between Pakistan and India. It ended on 16th December 1971. After that, international flights were not permitted for some time.
The contrast between Moscow and Karachi was unbelievable. First and foremost, Moscow’s temperature was near minus 40 degrees centigrade, while in Karachi, it was sunny and a warm 28 degrees centigrade. However, what struck us most was the extreme warmth with which the airport authorities greeted our family. As my father was a diplomat, we were quickly ushered to the airport’s VIP Lounge. We were in transit on our way to Rawalpindi, the airport serving the capital of Islamabad.
We quickly realized that the word “we are from Sri Lanka” opened all doors just as saying “open sesame” gained entry to Aladdin’s cave! The broad smile, extreme courtesy, and genuine warmth we received from the Pakistani people were unbelievable.
This was all to do with Mrs Sirima Bandaranaike’s decision to allow Pakistani aircraft to land in Colombo to refuel on the way to Dhaka in East Pakistan during the military confrontation between Pakistan and India. It was a brave decision by Mrs Bandaranaike (Mrs B), and the successive governments and Sri Lanka people are still enjoying the fruits of it. Pakistan has been a steadfast and loyal supporter of our country. They have come to our assistance time and again in times of great need when many have turned their back on us. They have indeed been an “all-weather” friend of our country.
Getting back to 1972, I was an early beneficiary of Pakistani people’s love for Sri Lankans. I failed the entrance exam to gain entry to the only English medium school in Islamabad! However, when I met the Principal, along with my father, he said, “Sanjeewa, although you failed the entrance exam, I will this time make an exception as Sri Lankans are our dear friends.” After that, the joke around the family dinner table was that I owed my education in Pakistan to Mrs B!
At school, my brother and I were extended a warm welcome and always greeted “our good friends from Sri Lanka.” I felt when playing cricket for our college; our runs were cheered more loudly than of others.
One particular incident that I remember well was when the Embassy received a telex from the Foreign inistry. It requested that our High Commissioner seek an immediate meeting with the Prime Minister of Pakistan, Mr Zulifikar Ali Bhutto (ZB), and convey a message from Mrs B. The message requested that an urgent shipment of rice be dispatched to Sri Lanka as there would be an imminent rice shortage. As the Ambassador was not in the station, the responsibility devolved on my father.
It usually takes about a week or more to get an audience with the Prime Minister (PM) of a foreign country due to their busy schedule. However, given the urgency, my father spoke to the Foreign Ministry’s Permanent Sectary, who fortunately was our neighbour and sought an urgent appointment. My father received a call from the PM’s secretary around 10 P.M asking him to come over to the PM’s residence. My father met ZB around midnight. ZB was about to retire to bed and, as such, was in his pyjamas and gown enjoying a cigar! He had greeted my father and had asked, “Mr Jayaweera, what can we do for great friend Madam Bandaranaike?. My father conveyed the message from Colombo and quietly mentioned that there would be riots in the country if there is no rice!
ZB had immediately got the Food Commissioner of Pakistan on the line and said, “I want a shipload of rice to be in Colombo within the next 72 hours!” The Food Commissioner reverted within a few minutes, saying that nothing was available and the last export shipment had left the port only a few hours ago to another country. ZB had instructed to turn the ship around and send it to Colombo. This despite protests from the Food Commissioner about terms and conditions of the Letter of Credit prohibiting non-delivery. Sri Lanka got its delivery of rice!
The next was the visit of Mrs B to Pakistan. On arrival in Rawalpindi airport, she was given a hero’s welcome, which Pakistan had previously only offered to President Gaddafi of Libya, who financially backed Pakistan with his oil money. That day, I missed school and accompanied my parents to the airport. On our way, we witnessed thousands of people had gathered by the roadside to welcome Mrs B.
When we walked to the airport’s tarmac, thousands of people were standing in temporary stands waving Sri Lanka and Pakistan flags and chanting “Sri Lanka Pakistan Zindabad.” The noise emanating from the crowd was as loud and passionate as the cheering that the Pakistani cricket team received during a test match. It was electric!
I believe she was only the second head of state given the privilege of addressing both assemblies of Parliament. The other being Gaddafi. There was genuine affection from Mrs B amongst the people of Pakistan.
I always remember the indefatigable efforts of Mr Abdul Haffez Kardar, a cabinet minister and the President of the Pakistan Cricket Board. From around 1973 onwards, he passionately championed Sri Lanka’s cause to be admitted as a full member of the International Cricket Council (ICC) and granted test status. Every year, he would propose at the ICC’s annual meeting, but England and Australia’s veto kept us out until 1981.
I always felt that our Cricket Board made a mistake by not inviting Pakistan to play our inaugural test match. We should have appreciated Mr Kardar and Pakistan’s efforts. In 1974 the Pakistan board invited our team for a tour involving three test matches and a few first-class games. Most of those who played in our first test match was part of that tour, and no doubt gained significant exposure playing against a highly talented Pakistani team.
Several Pakistani greats were part of the Pakistan and India team that played a match soon after the Central Bank bomb in Colombo to prove that it was safe to play cricket in Colombo. It was a magnificent gesture by both Pakistan and India. Our greatest cricket triumph was in Pakistan when we won the World Cup in 1996. I am sure the players and those who watched the match on TV will remember the passionate support our team received that night from the Pakistani crowd. It was like playing at home!
I also recall reading about how the Pakistani government air freighted several Multi Barrell artillery guns and ammunition to Sri Lanka when the A rmy camp in Jaffna was under severe threat from the LTTE. This was even more important than the shipload of rice that ZB sent. This was crucial as most other countries refused to sell arms to our country during the war.
Time and again, Pakistan has steadfastly supported our country’s cause at the UNHCR. No doubt this year, too, their diplomats will work tirelessly to assist our country.
We extend a warm welcome to Mr Imran Khan, the Prime Minister of Pakistan. He is a truly inspirational individual who was undoubtedly an excellent cricketer. Since retirement from cricket, he has decided to get involved in politics, and after several years of patiently building up his support base, he won the last parliamentary elections. I hope that just as much as he galvanized Sri Lankan cricketers, his political journey would act as a catalyst for people like Kumar Sangakkara and Mahela Jayawardene to get involved in politics. Cricket has been called a “gentleman’s game.” Whilst politics is far from it!.
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Believe me, seeing certain videos, on social media, depicting action, on the dance floor, at some of these entertainment venues, got me wondering whether this Coronavirus pandemic is REAL!
To those having a good time, at these particular venues, and, I guess, the management, as well, what the world is experiencing now doesn’t seem to be their concerned.
Obviously, such irresponsible behaviour could create more problems for those who are battling to halt the spread of Covid-19, and the new viriant of Covid, in our part of the world.
The videos, on display, on social media, show certain venues, packed to capacity – with hardly anyone wearing a mask, and social distancing…only a dream..
How can one think of social distancing while gyrating, on a dance floor, that is over crowded!
If this trend continues, it wouldn’t be a surprise if Coronavirus makes its presence felt…at such venues.
And, then, what happens to the entertainment scene, and those involved in this field, especially the musicians? No work, whatsoever!
Lots of countries have closed nightclubs, and venues, where people gather, in order to curtail the spread of this deadly virus that has already claimed the lives of thousands.
Thailand did it and the country is still having lots of restrictions, where entertainment is concerned, and that is probably the reason why Thailand has been able to control the spread of the Coronavirus.
With a population of over 69 million, they have had (so far), a little over 25,000 cases, and 83 deaths, while we, with a population of around 21 million, have over 80,000 cases, and more than 450 deaths.
I’m not saying we should do away with entertainment – totally – but we need to follow a format, connected with the ‘new normal,’ where masks and social distancing are mandatory requirements at these venues. And, dancing, I believe, should be banned, at least temporarily, as one can’t maintain the required social distance, while on the dance floor, especially after drinks.
Police spokesman DIG Ajith Rohana keeps emphasising, on TV, radio, and in the newspapers, the need to adhere to the health regulations, now in force, and that those who fail to do so would be penalised.
He has also stated that plainclothes officers would move around to apprehend such offenders.
Perhaps, he should instruct his officers to pay surprise visits to some of these entertainment venues.
He would certainly have more than a bus load of offenders to be whisked off for PCR/Rapid Antigen tests!
I need to quote what Dr. H.T. Wickremasinghe said in his article, published in The Island of Tuesday, February 16th, 2021:
“…let me conclude, while emphasising the need to continue our general public health measures, such as wearing masks, social distancing, and avoiding crowded gatherings, to reduce the risk of contact with an infected person.
“There is no science to beat common sense.”
But…do some of our folks have this thing called COMMON SENSE!
