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The 20th Amendment:

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Building a future and forgetting the past

Continued from Sunday Island (20)

by Professor Savitri Goonesekere

The Judiciary

The judiciary is an important organ of government in a system of Parliamentary democracy, often expressed in the concept that institutions engaged in the administration of justice must be “independent” or free of political interference. Certain measures are incorporated in Constitutions, in a Parliamentary democracy, to ensure that there is no political interference in the matter of appointment and dismissals of judges.

The long history of political interference and the experience with the impeachment of Chief Justices after 1978 led to pressures for a system of appointment that would prevent such interference. The 19th Amendment failed to incorporate changes in regard to dismissal of judges of the Supreme Court and the Court of Appeal. However it went back to the norms of the 17th Amendment and created a Constitutional Council that was responsible for oversight on appointments to the Appeal Courts, and also in regard to the two judges (apart from the ex officio Chairman, the Chief Justice), who serve on the Judicial Services Commission. This is the body entrusted with the appointment dismissal and disciplinary control of other judicial officers.

The 20th Amendment has repealed the provisions on the Constitutional Council. The President is required to obtain the “observations” of the Parliamentary Council that has replaced the Constitutional Council,  but he is not required to consider their views  in making  appointments to the Supreme Court and Court of Appeal. Appointments are at his complete discretion. He can also (as in the 1978 Constitution) dismiss the two judges who serve on the Judicial Services Commission at his discretion. Both the 19th and 20th Amendment have retained the procedures of impeachment in the 1978 Constitution for  dismissals of  judges of the highest Appeal Courts.

The Attorney General is the chief prosecutor and plays an important role in the administration of justice. The 20th Amendment provides for this appointment to be made  at the complete discretion of the President. The oversight of the Constitutional Council that functioned under the 19th Amendment has been removed.  The views obtained by the Parliamentary Council that replaced this body are only “observations” and can be ignored by the President. This Council  has no oversight responsibility .

However the Attorney General’s  removal  from office will be, as under the 1978 Constitution and the 19th Amendment, according to a specific law that covers this matter- the Removal of Officers Act 2002. This Act provides for a Parliamentary system of investigation and decision making for removal of the Attorney General.                            

High Posts and Public Office

The 20th Amendment has repealed the provisions on appointments to designated high posts with the oversight of the Constitutional Council. Appointments to the posts of Commanders of the Armed Forces have been a Presidential prerogative under  the 1978 Constitution and the 19th Amendment, and this position has been retained in the 20th Amendment. However the post of Inspector General of Police has been omitted from the high posts coming within the purview of the new Parliamentary Council that has replaced the Constitutional Council. It is not clear how the Inspector General of Police will be appointed, though the Removal of Office Act 2002 determines the procedure for removal and, as in the  case of the Attorney General, involves  a Parliamentary procedure.

The Auditor General’s post is retained as a high post in the Constitution by the 20th Amendment.  But he is appointed by the President, and can be removed by him at his discretion, holding office during “good behaviour.” The oversight of the Constitutional Council on his appointment and removal, mandated  by  the 19th Amendment, has now been removed. This in a context where both the Audit Services Commission and the Procurements Commission established by the 19th Amendment have been abolished by the 20th Amendment. The serious negative implications of these changes for auditing key public institutions have been placed in the public domain by professional associations of auditors.     

“Independent ” Public Commissions and the 20th Amendment

When the 19th Amendment was passed by consensus, it was agreed within and outside Parliament that important public Commissions recognised in the Constitution should be independent of Presidential control. This principle, clearly recognised  in the 17th Amendment   had been repealed by the 18th Amendment, but  was  incorporated once again  in the 19th Amendment.

Consequently the system of appointment and removal was by the President, but subject to the oversight of the Constitutional Council. The 19th Amendment also had detailed provisions aimed at strengthening the work of the Commissions.  It  established an Auditing  Services and Procurement Commission to facilitate oversight, in use of public funds,  and  financial and management accountability, of important public institutions and offices.

It is now stated by those who demonise the 19th Amendment that the Commissions were packed with “NGO Karayas”, because the Constitutional Council was dominated by the same people. This point of view has also been expressed by Prof GL Pieris in public fora and the media (see The Island 13. 9. 2020), and by the Minister of Justice. They should know that this assessment is based on fiction rather than  facts.

The Constitutional Council had a very strong majority of Parliamentarians, and was chaired by the Speaker. There were only three persons representing “civil society.” At no time were all of them from NGOs. Several had an established national and international reputation, as required by the 19th Amendment, and none of these appointments were objected to in Parliament. The previous Human Rights Commission of Sri Lanka was delisted from regional and international bodies of National Human Rights Commissions, for non-conformity with the Paris Principles that set standards on the method of appointment. Professor GL Pieris and the Minister of Justice must be aware that the Human Rights Commission appointed under the 19th Amendment has received national, regional and international recognition for its work.

The 20th Amendment has abolished the Auditing Services Commission and the Procurement Commission. It has also repealed the detailed provisions in the 19th Amendment relating to other Commissions. There are new provisions relating to the Public Service Commission and the National Police Commission. The provisions on the Elections Commission limit their powers to monitor and set guidelines for the conduct of elections. A new provision provides for public complaints   against the Police and for redress “according to law”. It is not clear how this procedure will be implemented.

The 19th Amendment provided for Presidential appointments and removal of members of the Commissions, but subject to oversight by the Constitutional Council. This procedure has been abolished. The President has full powers in regard to appointments and removal of members of the Commissions referred to in the 20th Amendment.

The transitional provisions on the continuity of Commissions and High Post appointments under the 19th Amendment, give the power of removal to the President. This would include removal of   members of the current Human Rights Commission referred to above, at the discretion of the President. The drafters of the 20th Amendment have disregarded the standards set by the Paris Principles on National Human Rights Commissions, once again.

A Post 20th Amendment Future  on   Governance

The 19th Amendment was to be a temporary initiative for reducing the powers of the Executive Presidency and re-establishing governance with an elected Prime Minister, Cabinet and Parliament, pending the adoption of a new Constitution. The 19th Amendment therefore changed what can be described as “the grund norm” or the foundational principles of the 1978 Constitution. This significant modification to the system of governance was not challenged from within  or outside  Parliament, or by litigation in the  Supreme Court, because there was consensus that the change was good for the governance of the country.

 The 20th Amendment is a dramatic turn around and has changed the “grund norm” again. The 20th Amendment  that was  in the public domain in  2019 as a strategy to eliminate the Presidential system of governance, has now emerged as a Constitutional change that will create an even stronger executive Presidency. This time there is no consensus within or outside Parliament. We do not know whether in this context, a 2/3 majority in Parliament and a referendum will be required for the 20th Amendment to become the Constitutional bench mark for the governance of the country in the years to come.

We speak of the possibility of drafting a new Constitution to replace the 1978 Constitution, and it is said that the 20th Amendment is an interim measure. But what has been our experience on Constitution making? When the Constitution of South Africa was adopted after a fully participatory drafting process, Nelson Mandela said that “a Constitution is a law that embodies a nation’s aspirations.” Our nation’s aspirations for a new Constitution have never been realised because of adversarial politics, and a failure by politicians to recognise  that a Constitution is for the People and not for them.

 The 19th Amendment could have contributed to good and accountable governance, pending  a new Constitution to achieve the   agreed  objective of  dismantling  the Presidential system of governance. The two centres “of power” in the executive, created as an interim measure, could have functioned effectively in the nation’s interest, if the President and the Prime Minister had not torn each other apart by their narrow and partisan political agenda. Excellent position papers on key areas of governance were prepared in 2015- 2017, in a consultative manner, and another report was prepared on the basis of public consultations. The Parliamentary drafting process collapsed because our political leadership  became enmeshed in adversarial politics.

Political interests have once again dominated the drafting of the 20th Amendment. The lack of consensus even within the government is manifested in the fact that no one is taking ownership for drafting the document. The drafting of the 20th Amendment reminds us of the words of a great justice who suggested   that it is in the public interest that  “laws are not conceived in secrecy and brought forth in obscurity”.

Why is there such lack of transparency in regard to the drafting of the 20th Amendment? The public was informed that a Cabinet Sub Committee chaired by Prof GL Pieris, and consisting of the Minister of Justice and others were authorised by the President to draft the 20th Amendment. We are now informed through media that the Justice Minister does not know who prepared the 20 Amendment Bill that has been gazetted to go before Parliament. Another Committee appointed by the Prime Minister also chaired by Professor GL Pieris with the participation of the Minister of Justice and others, will now  “report ” on the 20 A. This hardly inspires public confidence in Professor Pieris public statement that Constitutions are not authored by any one, but represents the thinking of the whole government.

The adversarial approach by politicians to Constitution drafting is because of the failure to appreciate that democratic governance which is accountable to the People  demands  accommodation of both majority and minority points of view in the country, on governance. Giving priority to “sweeping election mandates” and confusing that kind of populism with democracy, denies the responsibility to respect the views of all citizens, on their aspirations for peace and progress. Election majorities are at best temporary phenomenon. The long term interests of the People in accountable governance go beyond electoral politics.

We are at a point in history where a large majority of citizens are tired of democracy and want governance to be the sole responsibility of a single popular leader, who commands confidence. They sincerely believe that handing over the country on a “bulath hurulla” to a strong and popular leader will lead Sri Lanka into a glorious  future of “kiri and pani”. They are not aware of or have forgotten the lessons of history, and the manner in which a government elected by the people through  the Franchise, (the “heart and soul of democracy” as eloquently described by Professor  GL Pieris) transforms itself into a totalitarian dictatorship.

This is a point of view that is understandable, even if one may disagree with it. What is more difficult to understand is  how professionals and academics who should lead the nation towards good governance  can   describe authoritarian dictatorial exercise of executive power by a single individual,  without any checks and balances by other institutions as  the quintessential  form of “democratic ” governance. 

This country has experienced and witnessed abuse of political power, in the last few decades. They have seen how governance and the administration of justice has been impacted by abuse of power. Need they be reminded that we have an international record of installing three different Chief Justices in three days- one was “disappeared” from office because of politics,  another impeached because of politics, and brought back to office by the successor government for one day, and a third appointed to hold the  vacant post. The People have witnessed serious violence and intimidation at elections because of confrontational politics, prosecution or non prosecution of offenders in emblematic cases because of political imperatives , and a person in remand for murder nominated as a candidate for Parliament. Can they be convinced again  by  Constitutional lawyers speaking eloquently on electronic media, that we have a perfect system of governance and administration of justice, which will be strengthened by going back to a more  powerful executive Presidency.?

At this critical time it is wise to reflect on what his Lordship HNJ Perera, the last Chief Justice of this country said in the unanimous decision of all the judges of  Supreme Court (a Full Bench) in the Dissolution of Parliament case 2018. Citing earlier precedents, and the changes in governance in the 19th Amendment, His Lordship said that ” since 1972 ( when we broke the link to a British sovereign)this country has known no monarch, and the President has not inherited that mantle”. The 20th Amendment is seeking to clothe the President with that mantle. The President and the People must reflect on our national experience on governance, and ask whether a ” monarchy” created by a 20th Amendment to our Constitution, is in the long term interest of the People and the President.

Perhaps the then Mahinda Rajapaksea and Professor GL Pieris can reflect on the wise words of their former leader, in 1948 and bring back into governance the values of the 2000 draft Constitution’s system of governance based on parliamentary democracy. They should, with their long experience in governance, give leadership, and save this nation from the crisis and risks inherent in a “single powerful leader” form of governance.   


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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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