Constitutional amendment includes free hand to appoint justices and police chiefs
Asia regional correspondent
Sri Lanka’s political pendulum is swinging toward a strong, centralized state in the grip of an executive president with sweeping authoritarian powers, fulfilling a goal of the Rajapaksas, the South Asian nation’s most influential political clan.
The government of the ruling Rajapaksa siblings — President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa — has now set the stage for an imperial presidency. It did so by introducing a constitutional amendment in parliament, where the Sri Lanka Podujana Peramuna, the brothers’ political vehicle, enjoys an invincible majority.
The amendment, which would be the 20th, seeks to enshrine absolute presidential powers, complete with legal immunity for the hawkish Gotabaya, the younger of the two, during his term in office. The change would also free Gotabaya of existing parliamentary checks on executive authority and reduce the role of the prime minister to that of a rubber stamp for presidential decisions.
Other clauses would give the executive president a free hand to appoint the chief justice and judges of the Supreme Court and other high courts; he would also choose the police chief.
In addition, the amendment paves the way for a Sri Lankan who has dual nationality to be a parliamentarian. This would enable Basil Rajapaksa, another sibling and U.S. national, to become a lawmaker and a minister in the Rajapaksa administration.
Rajapaksa allies argue that an all-powerful executive echoes the political mood in the country, where the brothers have tapped into an ultranationalist, majoritarian sentiment to win two decisive electoral victories, in November’s presidential balloting and in August parliamentary elections.
The SLPP won the backing of the Sinhala-Buddhists, the country’s majority ethnic community, with a campaign for a centralized government anchored by a strongman president to succeed a right-of-center administration that was divisive, dysfunctional and prone to backstabbing to settle political scores.
“The people have given [Gotabaya] a huge mandate, and after that are we to clip his wings so that he can’t do the job?” asked Gamini Lakshman Peiris, education minister and head of the ruling SLPP. “Is it right that we do not empower the president as that is what the people wanted?”
Peiris was asking his rhetorical questions last week during a news conference.
His jabs came ahead of a Supreme Court session that will hear 39 petitions filed by opponents of the 20th amendment. Since the nation’s legislative and judicial systems do not accept any court challenges on laws passed by parliament, most of the petitioners — ranging from opposition lawmakers to political activists — are rushing to push the justices to rule that the amendment needs to be approved by a national referendum, in addition to it needing to win a two-thirds majority in the 225-member parliament.
Lawyers expect the judges to examine the amendment’s potential to undermine entrenched clauses in the constitution that protect the sovereignty of the people. “The problem with the 20th amendment,” said Sudarshana Gunawardena, a Sri Lankan human rights lawyer, “is that certain clauses give the president powers, such as when to dissolve the parliament, that will affect the people’s sovereignty. The court may also take note of the concerns expressed by a group of retired judges and the Bar Association [of Sri Lanka] about the amendment because they are knowledgeable about constitutional matters.”
History favors the Rajapaksas. Previous amendments to the 1978 constitution have not been subject to a national referendum. Parliament’s makeup also favors the brothers, whose political juggernaut has given the SLPP 145 seats. The party is confident of attracting five more votes from smaller parties to meet the two-thirds threshold.
Sri Lankans have had a taste of Rajapaksa political dominance before, during elder-brother Mahinda’s nearly 10-year presidency, which ended with his shock defeat in January 2015. That decade was marked by an authoritarian character and by the brothers presiding over an administration that saw government troops defeat the Tamil Tiger separatist, ending a nearly 30-year ethnic war. The tough-talking Gotabaya served as Mahinda’s defense secretary during the term.
The proposed amendment has generated a heated debate in the mainstream media, led by liberal and progressive-minded academics, legal experts and civil society activists. They have expressed alarm at the country regressing 40 years, to a period that gave Sri Lankans their first taste of the 1978 charter — a blueprint for an elected autocrat written by Sri Lanka’s first executive president, Junius Richard Jayewardene.
“It appears that the framework of 20A has sought inspirations from wrong constitutional models, at home and abroad, that are devoid of any democratic normative content,” wrote Jayadeva Uyangoda, a former professor of political science at the Colombo University. “The lessons that seem to have been learned are all partisan, narrow-minded, politically shortsighted, and therefore, wrong ones.”
In taking this route, the Rajapaksas are expected to face questions from India over the 13th amendment, which New Delhi shaped during the early stages of the Tamil separatist struggle. That amendment secured devolution of power and established provincial councils, enabling the Tamils, Sri Lanka’s largest minority who live in the north and eastern provinces, to elect regional leaders.
“By further entrenching powers in the executive president, 20A undermines democracy in a major way, and by omission or commission it will undermine 13A,” said Ahilan Kadirgamar, a senior sociology lecturer at Jaffna University in northern Sri Lanka. “Minorities already took a stand about their concerns of rising authoritarianism by their massive number of votes against the president at the November elections.”
The constitutional tinkering comes as the Rajapaksa administration struggles to breathe life into the anemic economy it inherited. On Monday, Moody’s Investors Service made the Rajapaksas’ job more difficult by downgrading Sri Lanka’s ratings two notches, to Caa1, from B2. The global ratings agency pointed to wide budget deficits and external pressures from ballooning foreign debts.
Moody’s already considered Sri Lanakan government debt speculative and high risk before the downgrade.
The $88 billion economy, drained of income by the pandemic, is expected to shrink by 0.5% this year after growing 2.3% in 2019, its worst showing in nearly two decades. Sri Lanka’s foreign debt is $55 billion. “Combined with slower nominal GDP growth and a weaker exchange rate, the government’s debt burden will rise to around 100% of GDP, above the Caa-rated media of 86% of GDP,” Moody’s wrote.
The Rajapaksas’ allies argue that turning around the economy requires a strong president. “Foreign investors ask us if Sri Lanka has a 10-year plan and if it can guarantee 10 years of political stability and policy consistency,” Anura Fernando, general secretary of Viyathmaga, a network of professionals shaping Gotabaya’s policies, told Nikkei Asia. “We need one strong person making executive decisions as a way to build confidence and make Sri Lanka attractive for foreign investors.”
Local businesses share a similar sentiment in the wake of the “chaos and policy inconsistency” of the previous government. “A strong president and policy stability has worked thrice before after the ‘78 constitution,” said a well-connected business insider. “Those years we saw steady growth and foreign capital flowed in. It does where there is stability and opportunity. … That is a fact.”
Gotabaya is not waiting for the amendment. Frustrated by bureaucratic red tape that has come in the way of his plans for efficiency, he launched a broadside against officials who refused to act on his orders.
“President Gotabaya Rajapaksa has directed the officials to treat all verbal orders issued for the common good of the people as circulars to be implemented,” the president’s office said in a statement. “Those who neglect this will face stern action.” (Nikkei Asia)
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AG not bound by its recommendations, yet to receive report
PCoI on Easter Sunday attacks:
By Shamindra Ferdinando
Attorney General Dappula de Livera, PC is not bound by recommendations made by the Presidential Commission of Inquiry (P CoI) into the 2019 Easter Sunday carnage, or presidential directives in that regard, according to authoritative sources.
They said that the AG couldn’t under any circumstances initiate legal proceedings until he had received the full PCoI report.
President Gotabaya Rajapaksa received the PCoI report on Feb 1. The President’s Office delivered a set of PCoI reports to Speaker Mahinda Yapa Abeywardena on Feb 23, a day after the report was presented to the cabinet of ministers. The Island raised the matter with relevant authorities in the wake of a section of the media reporting the PCoI recommending punitive measures against former President Maithripala Sirisena, Defence Secretary Hemasiri Fernando, IGP Pujitha Jayasundera, Chief of State Intelligence Senior DIG Nilantha Jayawardena, Chief of National Intelligence retired DIG Sisira Mendis and All Ceylon Makkal Congress (ACMC) leader and Samagi Jana Balavegaya MP Rishad Bathiudeen et al over the Easter Sunday carnage.
Sources pointed out that due to the inordinate delay in sharing the PCoI report with the AG, the department hadn’t been able to take preliminary measures required to initiate the proceedings. Sources said that a team of officers would take at least six weeks or more to examine the report before tangible measures could be taken.
With the AG scheduled to retire on May 24, 2021, even if the AG Department received the P CoI it would be quite a tough task to initiate proceedings ahead of retirement, sources said. However, in terms of the 20th Amendment to the Constitution enacted in last October, both the AG and the IGP could receive extensions beyond 60 at the President’s discretion.
Dappula de Livera received an Acting appointment as the AG a week after the Easter Sunday carnage whereas his predecessor Jayantha Jayasuriya, PC, was elevated to Chief Justice.
Responding to another query, sources said that the Attorney General two weeks ago requested Secretary to the President for a copy of the P CoI. However, the AG was yet to receive one, sources said. In spite of the AG not receiving a P CoI copy, the AG had instructed the IGP to obtain a copy of the report when he requested the police to complete investigations into the Easter Sunday carnage. The AG issued specific instructions after having examined police files pertaining to the investigations.
The IGP, too, hadn’t received a copy so far though some sections of the report were in the public domain.
Agriculture Minister Mahindananda Aluthgamage displayed at a live political programme on Derana a copy of the P CoI report he received at the cabinet meeting earlier in the day.
Sources said that the Attorney General’s Department couldn’t decide on a course of action in respect of the Easter carnage on the basis of a section of the report. In terms of the Commission of Inquiry Act (Section 24), the AG enjoyed significant powers/authority in respect of investigations; sources said adding that the Department urgently required both the P CoI report and police investigations report. The Attorney General’s Department has raised the delay in receiving a P CoI report amidst the Catholic Church attacking the government over the same issue.
Sources said that ministerial committee appointed to study the P CoI report couldn’t decide on how to proceed with the recommendations and the matter was entirely in the hands of the AG. Sources pointed out that the delay on the part of the government to release the report had received the attention of sections of the international media, including the New York Times. Public Security Minister retired Rear Admiral Sarath Weerasekera having met Malcolm Cardinal Ranjith at the Bishop’s House on Dec 8, 2020 said that the AG would get a copy of the P CoI report once the President received it. Minister Weerasekera said that the CID had handed over the relevant files after having completed investigations into eight blasts. Referring to the Parliamentary Select Committee (PSC) report on the Easter Sunday carnage, the former Navy Chief of Staff said that all such documents would have to be brought to one place and considered before initiating legal proceedings. Acknowledging that there could be delays, lawmaker Weerasekera said that on the instructions of the Attorney General a 12-member team of lawyers was working on the case. The minister vowed to expose the mastermind behind the Easter Sunday attacks. Investigations continued while some of those wanted were overseas, the minister said.
The minister acknowledged that the Attorney General couldn’t proceed without the P CoI report. Minister Weerasekera reiterated that once the President received the P CoI report, it would be sent to the Attorney General. The minister said that there were documents two to three feet high that needed scrutiny. The minister assured comprehensive investigation. The minister said that investigations pertaining to eight blasts had been completed and the reports handed over to the AG. However, the Attorney General had found shortcomings in those investigations.
JVP picks holes in PCoI report
By Saman Indrajith
The Presidential Commission of Inquiry on the Easter Sunday bombings had failed to identify the mastermind of , the JVP said yesterday.
Addressing the media at the party headquarters in Pelawatte, JVP Propaganda Secretary MP Vijitha Herath said that the PCoI report had levelled accusations against former President Maithripala Sirisena, former IGP and head of intelligence for their dereliction of duty, shirking of responsibilities and not taking action to prevent the attacks and negligence. There were reference to the causes of the terror attacks and actions to be taken to avoid such attacks and the influence of extremist organisations. “However, there is no mention of the mastermind of the attacks, the handlers of the attackers and those whose interests the carnage served. It is also not mentioned whether there has been any foreign or local organisation behind those attacks. As per the PCoI report the attack took place as a result of culmination of extremism.
“According to the PCoI the extremist activities were a result of the prevailing political situation then. The entire nation was waiting to see who was responsible and who masterminded those attacks. The PCoI has failed to identify the true culprits responsible for the terror attacks. The report says that the leader of the suicide cadres killed himself in the attacks and it was a puzzle. That means those who are actually responsible for the attacks are still at large. The report does not provide exact details of the sources of the attacks. The PCoI had sittings for one year and five months. It summoned various persons and got their statements but it has failed to shed any light on the terror attacks. Everybody knows that the top leaders of the government and heads of security and intelligence establishments failed in their duties. Ranil Wickremesinghe was the second in command and he too is bound by the responsibility but the PCoI report fails to identify him as one of the persons against whom legal action should be instituted. The PCoI has treated Wickremesinghe and former President Maithripala Sirisena differently. We are not telling that this report is a total failure but we cannot accept this as a complete report. The PCoI handed over its report to the President on Feb 1. After 23 days it was sent to Parliament. Now, a copy of the report is there in the parliamentary library for the perusal of MPs.”
Herath said that the PCoI did not have powers to take punitive action. “It only has powers to name those responsible and recommend action to be taken against those named.
TNA MP faults govt. for delay in answering questions, gets under Johnston’s skin
By Saman Indrajith
It did not matter whether the MPs were wearing pressed clothes or had travelled long distances when their questions were answered, Chief Government Whip Johnston Fernando told Parliament yesterday.
The Minister said so in response to a complaint by Batticaloa District TNA MP Shanikyan Rasamanikkam, who expressed his dismay for government taking time to answer a question raised by him.
MP Rasamanikkam has raised a question whether the Minister of Health is aware that the Dikkodai ospital, located in the Batticaloa district is not used for public purposes and the patients who visit the hospital for receiving services, face inconveniences, owing to that. On behalf of the Minister of Health, the Chief Government Whip and Minister asked for additional two weeks time.
MP Rasamanikkam: I come to parliament from Batticaloa, which is 422 km away. To attend Parliament we take great care including pressing our clothes. After taking so much trouble to come there braving the pandemic threat we do not get answers. There is a Health Minister and Acting Health Minister and neither of them is here. I saw Minister Dr Sudarshini Fernandopulle in the House this morning. She too has gone out. I travel more than 800 km. We could attend to many other problems. It is because the government does not give answers we are conducting protest marches, but when we do so we are hauled up before courts.
Chief Government Whip Minister Johnston Fernando: Every MP comes here wearing pressed clothes. But that has nothing to do with questions and answers here. I have been requested by the subject minister to ask for two weeks’ time. The MPs have a right to ask questions and in the same way the ministers have the right to ask for time. On the other hand, whether you cover 400 km to reach parliament does not matter. The majority of MPs travel 200 to 250 kilometers to come to Parliament. It is for that purpose they contest elections and get elected. Once elected the distance is not an issue you have to come to Parliament. The government has answered all your questions. This is the first time the Minister has asked for additional time. It is unfair for you to level charges. A more responsible conduct is expected of you as an upcoming political leader.