by Harim Peiris
The proposed 20th Amendment to the Constitution is currently being challenged in the Supreme Court of Sri Lanka, on various legal grounds. With oral arguments finishing with the Attorney General’s submission early this week and only written rebuttals accepted thereafter, the determination of the Court is likely to be communicated to Parliament within the week. However, this article does not seek to examine the various legal issues being argued before Sri Lanka’s Supreme Court, but rather to examine the political dynamics which enabled the Government to engage in this complete overhaul of Sri Lanka’s state structures.
The proposed 20th Amendment seeks nothing less than the creation of an elected leader with all the powers of an absolute monarch, baring the need to be periodically re-elected. Sri Lanka is clearly nostalgic for its days of pre-colonial absolute monarchy. In fact, our 1978 constitution with its proposed 20th Amendment would be more centralizing than ancient Ceylon’s pre-colonial monarchies, set in another day and age, which had feudal structures with powerful nobles. In contrast the 20th Amendment will reestablish, a Prime Minister with no powers and Cabinet and state ministers with even less powers. The President will in essence appoint everybody, decide on every matter and would be beyond legal challenge, even on fundamental rights. The central argument of the government is that the 20th Amendment merely takes the country back to where it was with the 1978 Constitution and accordingly there is no problem. However, the reality is that the anti-democratic features of the 1978 Constitution and especially that of its overbearing executive presidency were so apparent that every president elected since 1994 has pledged to reform it and its lack of inclusion and democratic space, alienated large swathes of the population, from Sinhala rural youth to the Tamil community.
The UNP as the great enabler of the 20th Amendment
The UNP or rather its essential leader for life, former Prime Minister Ranil Wickremesinghe has been the great enabler of the 20th Amendment. Firstly, his steadfast refusal to cede the presidential nomination until days before the November presidential elections and then subsequently in the run up to the August parliamentary elections, scuttling the efforts to have a unified opposition alliance, so dented the political credibility of the opposition, that what would have been a close defeat, along the lines of the February 2018 local government election results, led instead to a complete route and a constitution changing two third majority in parliament for the SLPP.
The parliamentary elections resulted in the end of the United National Party (UNP), as a serious, national political entity, losing to its successor the Samagi Jana Balawegaya (SJB), by a resounding and unequivocal margin of 10 to 1, in the popular vote. The SJB garnering 2.7 million votes and fifty-four Members of Parliament, while the UNP got a little less than one tenth of that at about 250,000 votes country wide and going from being the largest party in parliament, to no district representation and a single national list seat, on which it cannot agree as to who would be the nominee. The refusal of Mr. Ranil Wickremesinghe, even at this late stage, to gracefully leave the field when the umpire has ruled him out and the third umpire has also concurred after review and perhaps busy himself with some international commitments, or an elder statesman’s role, for which he is eminently suited, has meant that Opposition Leader Sajith Premadasa has struggled to unify the opposition and create and present a cohesive and united opposition to the government. Resulting in the Rajapakse Administration indulging in significant political overreach in its proposed 20th Amendment.
The real political dynamics in the country are worse, from an opposition standpoint. What currently exists is a unified government and a divided opposition which enables government inflexibility and rigidity, even in the midst of some internal dissent. An internal dissent regarding the 20th Amendment exists from some very Sinhala nationalist sources, including Minister Wimal Weerawansa’s National Freedom Front, which stated that if its views expressed and the resultant recommendations of the Government committee, on which it leader served and which examined the 20th Amendment were ignored, it would not hold itself responsible for the political consequences.
The SJB needs to broaden
The SJB and Opposition Leader Sajith Premadasa did incredibly well under difficult circumstances, post the presidential election to annihilate the UNP at the ensuing general elections held recently and essentially capture the party in all but name, symbol and head office, none of which are the essence of politics. Sajith Premadasa’s great strengths are similar to that of his late father’s; the common touch, a strong grassroots appeal, a good sense of the Sinhala polity and boundless energy, all of which were lacking in the old UNP and hence his appeal within that party and its allies. However, those skills were complemented by the UNP’s entrenched strengths, such as extensive media interests of the Wickremesinghe / Wijewardena clan, considerable financial support from the Colombo business community as well as political allies within and good relationships with the international community. The SJB as a new party and the chief opposition alliance needs to create this network and extend its outreach to the different segments of society, so that in their disquiet of the Rajapakse Administration’s policies, the SJB is seen as an effective check and balance as well as a viable and credible future alternative government. The SJB and Opposition Leader Sajith Premadasa needs his own equivalent of “Eliya” and “Viyath Maga”, except resolutely civilian and absolutely inclusive and pluralistic.
The opposition to the 20th Amendment has been fairly spontaneous and widespread. From the Retired Judges Association, to Government Auditors, from the UN Human Rights Commissioner to Sri Lankan civil society, from the Bar Association to young lawyers, a record number of plaints were filed against the said Amendment. However, the SJB has not quite been able to harness all this raw energy against the amendment and to hugely increase the political costs of the same to the Government. All political indicators are that some slightly amended version of the 20th Amendment will soon become the law of the land. The only hope is that in its adventurism and political overreach of the 20th Amendment, the subsequent and ultimate objective of a new constitution will likely be denied the SLPP, notwithstanding its super majority in parliament.
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Take Human Rights seriously, not so much the council or office
By Dr Laksiri Fernando
The 46th Session of the UN Human Rights Council started on 22 February morning with obvious hiccups. The Office, to mean the Office of the UN High Commissioner for Human Rights, finally decided to hold all sessions virtually online, only the President of the Council and the assistants in the high table sitting at the UN Assembly Hall in Geneva. The President, Ms. Nazhat Shammen Khan, Ambassador from Fiji in Geneva, wearing a saree, was graceful in the chair with empty seats surrounding.
In the opening session, the UN General Assembly President, UN General Secretary, UN High Commissioner for Human Rights, and Head of Foreign Affairs, Switzerland (as the host country), addressed remotely the session. In fact, there was no need for Switzerland to have a special place, as the UN is independent from any host country. Switzerland is fairly ok, however, if this tradition is followed, the UN General Assembly may have to give a special place to the US in New York.
UN General Secretary, Antonio Guterres’ address could have been quite exemplary if he gave a proper balance to the developed and developing countries. He talked about racism and fight against racism but did not mention where racism is overwhelmingly rampant (US and Europe) and what to do about it. Outlining the human rights implications of Covid-19 pandemic, he made quite a good analysis. It was nice for him to say, ‘human rights are our blood line (equality), our lifeline (for peace) and our frontline (to fight against violations).’ However, in the fight against violations, he apparently forgot about the ‘blood line’ or the ‘lifeline’ quite necessary not to aggravate situations through partiality and bias. He never talked about the importance of human rights education or promoting human rights awareness in all countries.
His final assault was on Myanmar. Although he did not call ‘genocide,’ he denounced the treatment of Rohingyas as ethnic cleansing without mentioning any terrorist group/s within. His call for the release of Aung San Suu Kyi and other civilian leaders undoubtedly should be a common call of all. However, he did not leave any opening for a dialogue with the military leaders or bring back a dialogue between Aung San and Min Aung, the military leader. With a proper mediation, it is not impossible. Calling for a complete overhaul as the young demonstrators idealistically claim might not be realistic.
High Commissioner Michelle Bachelet’s address was brief and uncontroversial this time without mentioning any country or region. It is clear by now perhaps she is not the real author of the Report against Sri Lanka, but someone probably hired by the so-called core-group led by Britain. Her major points were related to the coronavirus pandemic trying to highlight some of the socio-economic disparities and imbalances of policy making that have emerged as a result. The neglect of women, minorities, and the marginalized sections of society were emphasized. But the poor was not mentioned. As a former medical doctor, she also opted to highlight some of the medical issues underpinning the crisis.
Then came the statements from different countries in the first meeting in the following order: Uzbekistan, Colombia, Lithuania, Afghanistan, Poland, Venezuela, Finland, Fiji, Moldova, Georgia, Kazakhstan, Equatorial Guinea, Vietnam, Belgium, and Morocco. The obvious purposes of these statements were different. Some countries were apparently canvassing for getting into the Human Rights Council at the next turn perhaps for the purpose of prestige. Some others were playing regional politics against their perceived enemies. This was very clear when Lithuania and Poland started attacking Russia.
But there were very sincere human rights presentations as well. One was the statement by the President of Afghanistan, Mohammad Ashraf Ghani. He outlined the devastating effects that Afghanistan had to undergo during the last 40 years, because of foreign interferences. The initial support to Taliban by big powers was hinted. His kind appeal was to the UN was to go ‘beyond discourse to practice’ giving equal chance to the poor and the developing countries to involve without discrimination.
China’s Foreign Affairs Minister, Wang Yi, made his presentation almost at the end of the first day. This is apparently the first time that China had directly addressed the Human Rights Council. Beginning with outlining the devastating repercussions of the coronavirus pandemic he stressed that the world should face the challenges through ‘solidarity and cooperation.’ He broadened the concept to human rights solidarity and cooperation. His expressed views were quite different to the others, particularly to the Western ones.
He frankly said that what he expresses are the views of China on human rights without claiming those are absolute truths or forcing others to believe or implement them. There were four main concepts that he put forward before the member countries. First, he said, “We should embrace a human rights philosophy that centres on the people. The people’s interests are where the human rights cause starts and ends.” Second, he said, “we should uphold both universality and particularity of human rights. Peace, development, equity, justice, democracy, and freedom are common values shared by all humanity and recognized by all countries.” “On the other hand,” he said, “countries must promote and protect human rights in light of their national realities and the needs of their people.”
“Third,” he said, “we should systemically advance all aspects of human rights. Human rights are an all-encompassing concept. They include civil and political rights as well as economic, social, and cultural rights.” He then emphasized, “Among them, the rights to subsistence and development are the basic human rights of paramount importance.” Fourth, “we should continue to promote international dialogue and cooperation on human rights. Global human rights governance should be advanced through consultation among all countries.”
It was on the same first day before China, that the United Kingdom launched its barrage against several countries not sparing Sri Lanka. The Foreign Secretary, Dominic Raab, delivered the statement from top to bottom attacking alleged violating countries on human rights. But there was no mentioning of Israel for the repression of Palestinians or the systemic racism rampaging in the United States, including the 6 January attacks on the Capitol by extremist/terrorist groups.
His first sermon was on Myanmar without acknowledging the British atrocities or mismanagement of this poor and diverse country during the colonial period. He was quite jubilant over implementing sanctions and other restrictions over the country. Many sanctions, in my opinion, are extortions. Undoubtedly, Aung San Suu Kyi and other leaders should be released, and democracy restored. This is a task of the whole council and when one or two countries try to grab the credit, there can be obvious reservations of others.
His further scathing attacks were against Belarus, Russia, and China. Some appeared factually correct but not necessarily the approach or the motives genuine. The following is the way he came around Sri Lanka. He said,
“Finally, we will continue to lead action in this Council: on Syria, as we do at each session; on South Sudan; and on Sri Lanka, where we will present a new resolution to maintain the focus on reconciliation and on accountability.”
‘Action’ to him basically means repeatedly passing resolutions, of course imposing economic and other sanctions. He said, “as we do at each session”; like bullying poor or weak countries at each session. Can there be a resolution against Russia or China? I doubt it.
What would be the purpose of presenting a resolution against Sri Lanka? As he said, “to maintain the focus on reconciliation and on accountability.” This will satisfy neither the Tamil militants nor the Sinhalese masses. But it might satisfy the crafty Opposition (proxy of the defeated last government). This is not going to be based on any of the actual measures that Sri Lanka has taken or not taken on reconciliation or accountability. But based on the ‘Authoritarian and Hypocritical Report’ that some anti-Sri Lankans have drafted within the Office of the High Commissioner for Human Rights. This what I have discussed in my last article.
In this context, successful or not, the statement made by the Sri Lanka’s Minister of External Affairs, Dinesh Gunawardena, in rejecting any resolution based on the foxy Report of the Office of the UN High Commissioner for Human Rights, in my concerned opinion, is absolutely correct.
President’s energy directives ignored by the Power Ministry: Another Point of View
Dr Tilak Siyambalapitiya
Dr Janaka Rathnasiri laments (The Island 19 Feb 2021) that the Power Ministry has ignored the President’s directive to draw 70% of energy from renewable sources by 2030. I saw the approved costs of electricity production for 2019, published by the Public Utilities Commission (PUCSL).
PUCSL has also approved the prices to sell electricity to customers. Although various customers pay at various “approved” prices, the average income from such “approved” prices in 2019 was Rs 17.02 per unit. It is not only the Ministry, according to Dr Rathnasiri, ignoring the President; PUCSL is also breaking the law, which says prices and approved costs should be equal.
So there is already an illegal gap of Rs 21.59 minus 17.02 = Rs 4.57 per unit of electricity sold. If electricity prices are not to be increased, as stated by many in the government and PUCSL, let us say the following: Distribution costs should decrease by 0.57 Rs per unit. Generation costs should decrease by Rs 4.00 per unit.
PUCSL also published the approved cost of purchasing or producing electricity from various sources for 2019. The actual energy values were different to what was approved, but let us stick to PUCSL approved figures:
I suggest Dr Rathnasiri fills-up the following table, to show how much electricity will cost in 2030 to produce and deliver, if the President’s 70% target is to be achieved and for PUCSL to abide by the law. Let us assume that electricity requirement in 2030 will be double that of 2019.
Since PUCSL has to save Rs 4 from 13.92, the average selling price for energy should be Rs 13.92 minus 4.00 = Rs 9.92. With a target network loss of 7% (in 2019 it was 8.4%), the average cost of production has to be Rs 9.27 per unit. Eight cages have to be filled-up by Dr Rathnasiri.
In 2012, PUCSL approved the energy cost of electricity produced from coal power to be 6.33 Rs per kWh. In 2019, PUCSL approved 9.89 (56% increase). For renewable energy, it was 13.69 in 2012, and 19.24 in 2019 (a 40% increase, but double the price of electricity from coal fired generation). In 2012, rooftop solar was not paid for: only give and take, but now paid Rs 22, against Rs 9.89 from coal. There seems to be something wrong. The price reductions of renewable energy being promised, being insulated from rupee depreciation, are not happening? Either Sri Lanka must be paying too little for coal, or it may be renewable energy is severely over-priced?
On coal we hear only of some corruption every now and then; so Sri Lanka cannot be paying less than it costs, for coal.
Enough money even to donate
Another reason for the Ministry of Power to ignore the President’s directive may be the Ministry’s previous experience with similar Presidential directives. In 2015, the President at that time cancelled the Sampur coal-fired power plant, and the Ministry faithfully obliged. That President and that Prime Minister then played ball games with more power plants until they were thrown out of power, leaving a two-billion-dollar deficit (still increasing) in the power sector. Not a single power plant of any description was built.
Where is this deficit? You do not have to look far. In the second table, replace 24.43 with 9.89, to reflect what would have happened if Sampur was allowed to be built. The value 12.79 will go down to 8.55, well below the target of Rs 9.27 per unit to produce. Not only would CEB and LECO report profits, but the government too could have asked for an overdraft from CEB to tide over any cash shortfalls in the treasury. All this with no increase in customer prices. Producers of electricity from renewable energy could enjoy the price of 19.24 Rs per unit. And that blooming thing on your rooftop can continue to enjoy Rs 22 per unit. The Minister of Power, whom Dr Rathnasiri wants to replace with an army officer, would have been the happiest.
In the absence of Sampur (PUCSL’s letter signed by Chairman Saliya Mathew confirmed cancellation and asked CEB not to build it), PUCSL approved electricity to be produced at Rs 21.59 and sold at Rs 17.02 per unit. The annual loss would be Rs (21.59 – 17.02) x 15,093 = Rs 69 billion per year of approved financial loss. Sri Lanka has a Telecom regulator, an Insurance regulator, a Banking regulator, who never approve prices below costs. Sometime ago the telecom regulator asked the operators to raise the prices, when operators were proposing to reduce prices amidst a price war. But the electricity industry regulator is different: he approves costs amounting to 27% more than the price, not just once but, but continuously for ten long years !
That is 370 million dollars per year as of 2019, the economy is spending, and for years to come, to burn oil (and say we have saved the environment). Did the Minister of Health say we are short of 160 million dollars to buy 40 million doses of the vaccine? Well, being a former Minister of Power, she now knows which Presidential “order” of 2015 is bleeding the economy of 370 million dollars per year, adequate to buy all vaccines and donate an equal amount to a needy country.
Prices are the production costs approved by PUCSL for 2019. The selling price approved by the same PUCSL was Rs 9.27 per unit.
Confusion on NGOs and NSOs in Sri Lanka
If you listen to politicians and journalists here, you will hear of that curious creature rajya novana sanvidane, a Non-State Organization (NSO). Where do you get them? In the uninstructed and dead minds of those who use those terms. In the real world, where politicians and journalists have developed minds, there are Non-Governmental Organizations (NGO). The United Nations is an organization set up by state parties, not by governments. It is true that agents of states, governments, make the United Nations work or fail. Governments may change but not the states, except rarely. When Eritrea broke away from Ethiopia, a new state was formed and was so recognised by the United Nations. However, the LTTE that tried to set up another state was crushed by the established state that it tried to break away from, and the UN had nothing to do with them.
This entirely unnecessary confusion, created out of ignorance, is so destructive that organizations completely loyal to the existing state, are made to be traitorous outfits, for they are ‘non-state organizations’ within the state. There are citizens of each state, but no citizens of any government. Government is but an instrument of the state. In most states there are organizations, neither of the state nor of government: religious organizations including churches. But none of them is beyond the pale of the state.
Those that speak of rajya novana sanvidane give that name partly because they have no idea of the origin of non-governmental organizations. NGOs came into the limelight, as donor agencies, noticed that some governments, in East Africa, in particular, did not have the capacity and the integrity to use the resources that they provided. They construed, about 1970, that NGOs would be a solution to the problem. Little did they realize that some NGOs themselves would become dens of thieves and brigands. I have not seen any evaluation of the performance of NGOs in any country. There was an incomplete essay written by Dr. Susantha Gunatilleka. NGOs are alternatives to the government, not to the state.
Our Constitution emphatically draws a distinction between the government and state, and lays down that the President is both Head of Government and Head of State (Read Article 2 and Article 30 of the Constitution.) It is as head of state that, he/she is the Commander of the Armed Forces, appoints and receives ambassadors and addresses Parliament annually, when a prorogued Parliament, reconvenes. He/she presides over the Cabinet as head of government. The distinction is most clear, in practice, in Britain where Queen Elizabeth is the head of state and Boris Johnson is the Prime Minister and head of government. However, in principle, Johnson is the Queen’s First Minister appointed by the sovereign, and resigns by advising her of his decision to do so.
In the US and in India the term ‘state’ has special significance. In India there is a ‘rajya sabha’ (the Council of States) whose members represent constituent States and Union Territories. Pretty much the same is true of the United States. In the US, executive power is vested in the President and heads the administration, government in our parlance. The Head of State does not come into the Constitution but those functions that one associates with a head of state are in the US performed by the President of the Republic. The US President does not speak of my state (mage rajaya) but of my administration, (mage anduva). Annually, he addresses Congress on the State of the Union. Our present President must be entirely familiar with all this, having lived there as a citizen of the US for over a decade. It is baffling when someone speaks of a past state as a traitor to that same state. It is probable that a government was a traitor to the state. ‘Treason against the United States, shall consist only in levying war against them, or in adhering to their (States’) enemies, giving them aid and comfort’. That a state was a traitor to the same state is gobbledygook.
Apart from probable confusion that we spoke of in the previous paragraph, it is probable that a president and other members of a government, including members of the governing party here, find it grandiloquent to speak of his/her/their state (mage/ape rajaya), rather than my government (mage anduva) or Sirisena anduva’ and not Sirisena state; it was common to talk of ‘ape anduva’ in 1956; politicians in 1956 were far more literate then than they are now.
When translating from another language, make sure that you understand a bit of the history of the concept that you translate. A public school in the US is not the same as a public school in the UK.