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SOME SERIOUS CONSTITUTIONAL ISSUES

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THE 20TH AMENDMENT BILL –

By Dr Nihal Jayawickrama

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

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

 

The powers of government

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

 

The judicial power of the People

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

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

 

The fundamental rights of the People

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

 

The franchise

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

The C-in-C and Minister of Defence

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

 

Provincial Councils

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

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

 

An intractable problem?

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


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Islamophobia and the threat to democratic development

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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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Pakistan’s love of Sri Lanka

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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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Covid-19 health rules disregarded at entertainment venues?

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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!

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