The 19th Amendment: get over it already!

 

There are all kinds of yahapalanists. There are those who cannot be in denial simply because they were right in the middle of the yahapalana project or rather a project by that name (for good governance was certainly not their cup of tea as history showed and practice demonstrated). Then there are those who opted for a change of clothes. Name change, symbol change, address change etc., didn’t make them unrecognizable. SJB and UNP, telephone and elephant, it’s the same. All yahapalanists. The praise and blame accrue to one and all. Well, add to this the Yahapalana Fan Club made of sideline politicians who are double-headed and double-addressed, i.e. rights advocates and professionals.

Now these worthies are big fans of the 19th Amendment. It was great, they say. And they add, ‘the 20th is draconian and dictatorial; it rolled back the gains of the 19th and is even worse than what JR initially instituted in 1978.’  

Where’s the substantiation, though? Let’s take a look.

Let’s start with the brag. The brag of course had to do with the 18th. It also had to do with a peculiar political context where the champion and the intended beneficiary (Ranil Wickremesinghe) led a party that had minority representation in Parliament whereas the man whose powers were to be clipped, Maithripala Sirisena had just assumed office with a majority of the national vote.

The 18th would be effectively repealed, they bragged. It was. The 19th would embody the Yahapalana promise(s). We would have accountability and transparency. Democracy would be enhanced. Good governance assured. Cabinet would be limited to 30 ministers. That was part of the brag. Seniority and meritocracy will mark appointments and promotions, they told us. We know how that fell by the wayside! The independence of the judiciary would be restored, they promised. Well, they made a mockery of the last by turning the Supreme Court into a political circus almost immediately after Sirisena was sworn in as President.

Let’s get to the process which includes the passage of the amendment. It was drafted. Nothing wrong with that. The Supreme Court was petitioned. Nothing wrong with that. The Supreme Court offered a determination. Essentially, important elements of the draft were shot down. Now what did the Yahapalanists do?  Did they follow yahapalana practice to the letter?

Well, the objections were of an order that amending the document in ways that took these into consideration would have violated established parliamentary procedure. Typically, at the committee stage, only minor corrections are made. In other words, yahapalana theory would have required the yahapalanists to withdraw the amendment, get back to the drawing board and come up with a fresh draft.

They didn’t do that. They produced an amendment that was very different to what was tabled. That’s giving a finger to established procedure. Not very yahapalana-like, was it? It only demonstrated (and rather early in the tenure of that regime) that ‘yahapalanaya’ was a lie. A hoax.  It was voted on in the dead of the night by clearly irresponsible and perhaps tired and sleepy MPs. Sarath Weerasekera voted against it. Only he. Kudos to him.

The substance. As mentioned it was about giving power to a man who, at that point, did not have the trust and confidence of the people. One must mention that Wickremesinghe’s swearing-in was also a travesty of established procedure. The incumbent was sacked by way of the newly sworn in President signing a letter. Immediately, i.e. before the letter was delivered, President Sirisena appointed Ranil Wickremesinghe

So it was done. It was done in such a way that no one knew who really called the shots. Ball-passing between the Prime Minister and the President became a common occurrence. Finger-pointing was frequent. It was the easy out for a bunch of people lacking imagination, suffering innovation-lack and who were absolutely incompetent. Things were so confusing that it took the  Supreme Court to say what was what and that too only with respect to dissolution-power. This was when Sirisena joined forces with Mahinda Rajapaksa in late 2018.

Cabinet-size. This was a joke. On paper, we got the number 30. It was cheered. It was bragged about. On paper also was this neat device called ‘National Government’ which the amendment-drafters left undefined. ‘In a “National Government, cabinet size would be determined by Parliament. The matter finally hit the ‘constitutional experts’ in the yahapalana camp only when it could no longer be hidden. When Sirisena took the SLFP out of the coalition, Jayampathy Wickramaratne, the big boss behind the drafting, unashamedly said that since the SLMC (Sri Lanka Muslim Congress) was with the UNP, it remains a ‘national government.’ In other words, in his mind, a bloated cabinet was still constitutional! The yahapalana braggarts maintained a dead silence on the matter.

Much was made of the Constitutional Council (CC) which, the braggarts claimed, corrected the clauses of the 18th that crippled independent institutions. However, in reality, it was Ranil Wickremesinghe’s whims and fancies that held the day. The composition of the CC, naturally and understandably tilted in favor of the regime. It was politician-heavy, which of course wasn’t quite yahapanish. However even the non-politicians (non-political only because they weren’t in Parliament, let’s keep that in mind!) were partisan. Check the names of those ‘civil society’ people in the CC, the names of those appointed to various commissions and the appointments and promotions recommended by the commissions themselves. Friends and loyalists. That’s it. Why else would some of these ‘independents’ resign the moment Gotabaya Rajapaksa was elected President?

So now we have the 20th. Much of the confusion has been sorted out. Some of the better elements of the 19th have been retained. Are we ok now? Of course not. Cabinet size is still not cleared, although President Rajapaksa has kept it within the ceiling mentioned in the 19th. The CC just rubber-stamped Wickremesinghe’s wishes. President Rajapaksa has far more sway and that’s not necessarily a good thing.  Nevertheless, unlike the yahapalana braggarts, he has recommended that the six senior most judges be promoted to the Supreme Court. The yahapalana regime didn’t do that, not even with the so-called democracy-safeguards instituted to ensure independence of the judiciary. If it was Sirisena, Wickremesinghe or even Mahinda Rajapaksa, this might not have been the case. That itself shows the flaw. It should not be dependent on whether or not the incumbent values meritocracy.

Sri Lanka has a long way to go to resolve a simple issue: what’s best for us, a parliament-led system or an executive presidential system of governance? The proposed new constitution might sort this vexed issue out and hopefully in a way that effectively blocks the possibility of abuse.

That said, the 19th is nothing like its champions make it out to be. A piece of trash that did away with another piece of trash (the 18th). Stank. Get over it already.

malindasenevi@gmail.com

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The forgotten 13th bears upon the 19th and 20th

Draconian. A plan for self-aggrandizement. The death of democracy. In violation of established parliamentary procedure. These are some of the terms and lines being used by those opposed to the 20th Amendment.

What’s funny is that most of the objectors played deaf-dumb when the 19th Amendment was brought in and were cosy with the executive presidency for decades or else supported the party that had absolutely no objection to it. For decades.

Ideally there should be balance between the executive, legislative and judicial branches of the state. The 1978 Constitution wrecked that balance. Ideally, then, any regime that has secured a two-thirds majority or is confident of getting the arithmetic right at voting time should go for a new constitution rather than fixing anomalies through amendments. This government is confident of the numbers obviously; otherwise it wouldn’t go for an amendment. Why then an amendment and not a new constitution is a question that the government needs to answer.

That said, if the discussion is about the merits and demerits of the 20th Amendment in terms of the fears/whines expressed by the politically compromised and/or regime-loyalists who throw in issues such as executive powers when in fact their objection is limited to the dual-citizenship issue, then we need to consider the 13th, 19th and 20th amendments together.

Why the 13th, one might ask. Well, of the 13th Amendment the following must be mentioned: illegally instituted, an example of abject cowardice on the part of the then regime and a necessary building block for the Eelam case. The one thing that stood in the way of the separatists was, ironically, the executive presidency. A weak obstacle, but nevertheless a spanner in the works.

The 19th, whether or not the architects and approvers appreciated the above, was in effect a blow that targeted this obstacle. We are referring to the pruning of executive powers here. Sure, it was an exercise to transfer power to the office of the prime minister. Personal/party agenda obviously blinded people to the dangers. That is, if indeed such issues were important to them. My hunch is they were clueless and didn’t care either.

However, the 19th, by diminishing the executive presidency, effectively laid the foundation for another push for separatism, perhaps in ‘happier’ overall conditions. Now a strong government where there’s no confusion regarding who is in charge, where there’s ‘the executive’ is not split between two political groups, there’s nothing to worry about, one can argue. One can also interject ‘what if we have a president who is in line with the separatist agenda and chooses not to exercise executive options?’ Yes, that’s a problem, but then again, it stands to reason that such an individual can only become president if the voters themselves are generally agreeable to a division of the country, a weakening of the state etc., etc., in their wisdom or ignorance, as the case may be.

As things stand, however, the focus should be on the role of the executive, the power vested in the office etc., in relation to the real dangers embedded in the 13th Amendment. This, in addition to correcting the hideous and obvious confusion caused by the 19th regarding the various residences of executive power, which, among other things, facilitated the Easter Sunday tragedy.

Of course, if one is for separatism this is not a problem, and indeed many of the objectives are fixated on devolution-beyond-the-13th (at least the NGO personalities making noises these days). It's not a position that the allegedly horror-stricken objectors in the Opposition articulate, however.

Is the President going to be vested with dictatorial power upon the possible passing of the 20th Amendment? That’s a question that must be addressed. The Supreme Court determination on the matter is clear. The Supreme Court has recommended an amendment to Clause 5 (which is about immunity for the president) that would allow for the people to invoke jurisdiction of the SC under Article 126, where there’s alleged violation or alleged imminent violation of a Fundamental Right due to an act of the President. The Government is now forced to incorporate this suggestion or else go for a referendum on the matter.

[That is if this government doesn’t do a yahapalana number with the Supreme Court determination; the yahapalanists, contravening all established procedure, made sweeping changes to the draft 19th Amendment. It was virtually a different document. Here’s an aside within the aside: those who talk of procedural impropriety today were dead silent back then.]

So, in other words, if the correction is made, in conjunction with the retaining of term limits, the executive presidency would revert to the pre-2010 status or less. Note, that back then, i.e. before the 18th Amendment was mulled, few if any had drastic issues with the executive presidency. There was some noise, but certainly no shouting.  Sarath Fonseka, for example, didn't talk of abolishing or pruning the executive presidency and neither did his backers at the time.

Back to the 13th. The 13th Amendment is about provincial councils, at least in the operationalization of it. Provincial council elections haven’t been held in years. No one seems to mind, not even the diehard devolutionists, not even the democracy-or-death types who wake up whenever their political darlings are in trouble. So, one can ask, ‘what’s the issue then; if we don’t have the PCs, then this business of weak powers or no powers for the president is a non-issue, surely?’

Well, the problem is in the fact that illegally enacted though it is, the 13th is a part of the constitution. If it goes, we could even do away with the executive presidency and perhaps return to a pre-1978 Westminster system of government. It hasn’t gone away. It is there. Sleeping, for now, but can be roused; if roused in a context where there is an impotent or crippled executive presidency, it would be a beast.  

the drafting of a new constitution could sort out the matter, of course, but those in the opposition who are opposed to the 20th Amendment haven’t uttered a word about such an exercise. Ideally, as mentioned, the government would just move to shelve the 20th and go for a new constitution. There’s talk of a new constitution six month from now, but that’s just whisper as opposed to the shout that is the 20th Amendment. In the here and now, it’s about the 20th and if ‘executive’ is the bone of contention, then those who want a chew of it should take a few licks at the 13th. Unless of course they are doing nothing more than petty politicking (at which they have considerable experience, let us note). 

[This article was first published on October 22, 2020]

 malindasenevi@gmail.com

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The 19th, 20th and sanctimonious humbuggery

There were voices. Loud voices. The end of democracy is at hand, we heard them say. Sovereignty is at stake, they said. All about the 20th Amendment. So they petitioned the Supreme Court in their hordes. And the Supreme Court heard what they had to say, listened to the observations of the intervening petitioners as well as the Attorney-General, including amendments to the Bill that are expected to be made at the Committee Stage. The Supreme Court determined.

The Supreme Court essentially said that the proposed amendment by and large complies with the provisions of Article 82(2) of the Constitution and can be passed by a special majority, except for Clauses 3, 5, 14 and 22 which would require in addition a referendum unless proposed committee stage amendments are incorporated.

The clauses refer to the duties of the president (Clause 3), immunity of the president (Clause 5), dissolution of parliament (Clause 14) and guidelines of the Elections Commission (Clause 22). The last requires approval by the people through a referendum, it was determined. Court agreed that dissolution of parliament by the president two and a half years after a General Election, as mentioned in amendments to be interjected at the committee stage would address concerns regarding sovereignty. Court agreed that inconsistency regarding the duties of the president would cease with the proposed committee stage amendment. Court recommended an amendment to Clause 5 that would allow for the people to invoke jurisdiction of the SC under Article 126, where there’s alleged violation or alleged imminent violation of a Fundamental Right due to an act of the President.

So what do we have here? A government mulls amendment and drafts a bill. Objections are raised. Perhaps taking into consideration the objections and/or anticipating court ruling on the same, the government comes up with amendments to be introduced at the committee stage. Court, except in the case of one clause (22) gives a green light, subject to the incorporation of amendments pledged through submissions.

So what’s all the noise about? Some people were horrified about the powers of the president. Mark that ‘A.’ There were livid about dual citizenship. Mark that ‘B.’ They were livid about a parliamentary council replacing the Constitutional Council (of the 19th Amendment). Mark that ‘C.’

Let’s talk A, B, C now.

Here’s the story of ‘A’. The 19th, from A-Z, was about Ranil Wickremesinghe. It all began with the unprecedented and unceremonious dumping of a sitting Prime Minister. D.M. Jayaratne was not informed of his imminent sacking. Maithripala Sirisena, immediately after being sworn in as President, signed a ready-to-sign document sacking him. He then went on to swear in Ranil Wickremesinghe as Prime Minister.

That was not enough. The man, whose party was a minority in Parliament, needed power. That was what the 19th was supposed to do. It all resulted in a mess about who has what powers and directly and indirectly contributed to the Easter Sunday tragedy, among other things. So, the 19th was about splitting power between president and premier. Political expediency.

The dual citizenship issue was pushed through by the same need. Obviously, the yahapalanists were looking ahead to a possible presidential battle between Wickremesinghe and one of Mahinda Rajapaksa’s brothers (Gotabaya or Basil) since the former president was ruled out (they though) from contesting. The Rajapaksa-bheethiya prompted the clause regarding dual citizenship. Nothing else. The yahapalana hordes worked overtime and probably lost a lot of sleep regarding the matter. They did their damnedest to shoot down Gotabaya Rajapaksa’s candidacy and were trumped at every turn.

Now it is never a good thing to make laws for political convenience. The UNP has a long history in all this, from J.R. Jayewardene’s time. It was almost like a cardinal party principle, in fact. Amendments 1-16 were basically about obtaining an edge for the party, save the 6th (prompted by the rise of the LTTE) and the 13th (thrust down Sri Lanka’s throat by India at gunpoint). In fact several were passed by the Premadasa government in the face of imminent loss of the ‘special parliamentary majority.’

Now, if the clause that seeks to remove the block on dual citizens was about facilitating the political ambitions of an individual, it is bad. The word in certain circles is that it is an interjection to help Basil Rajapaksa. Basil has stated he’s not interested, for the record. Sentiment notwithstanding, the shoving of a dual citizen to a lesser status seems fundamentally wrong (and the Supreme Court determination affirms this view). If allegiance is the issue, then we must point out that we’ve had proud Sri Lankan citizens who have acted as minions of foreign powers (the yahapalana government was chock full of such people). In short citizenship is no safeguard against treachery.

That’s ‘B.’ Now to ‘C,’ and the most beloved Constitutional Council (along with the vilification of the proposed Parliamentary Council). It boils down to two thing: composition and accountability. The regime retained sway in the CC and will have it in a PC too. The idea that civil society reps somehow make it ‘independent’ is balderdash. The reps appointed were without exception yahapalana loyalists. Furthermore, they are not accountable to anyone. ‘Civil society’ is a label they wear for convenience. They typically represent a particular class of people with more or less similar political loyalties. In a PC, every member would have to face the voting public, sooner or later. They can shrug off accountability at their own risk.

That’s the A, B and C. There’s a D in this story or rather a ‘P’: process.

The draft 19th Amendment was essentially ripped to pieces by the Supreme Court following several petitions. The draft 20th was supported by further amendments pledged by the Attorney General. The SC has given the go ahead except for specific objections. The government has pledged to abide strictly by the directions given by the SC.

How did the yahapalanists respond to the SC determination? Well, at the Committee Stage they brought in massive amendments, absolutely in contravention of established parliamentary traditions, leaving absolutely no opportunity for the citizens to read, digest and if necessary object. And those who maintained a deafening silence during that period now whine about the clause on urgent bills!

Those who brought in the 19th were unceremoniously rejected by the people on three different occasions (February 2018 at the local government elections, November 2019 at the presidential election and August 2020 at the parliamentary elections). That’s civil society (real — as opposed to civil society [fake]) having a say.

The 20th is not a done deal. Politicians, regardless of party name and color are by and large cut off the same cloth. The initial assurances offered by government spokespersons are encouraging, but it would be folly to blindly trust politicians based on what’s said. Let’s await the ‘doing.’

However, as things stand, the 19th was a piece of garbage and it was brought in, pushed and defended by political stooges. The entire process stank. The 20th is not exactly an amazing piece of work, but as a garbage-disposal corrective, it has its merits. There’s going-overboard which the SC has noted and commented on. Established procedure has been followed so far. And that has essentially undressed the whiners, almost exclusively Kolombots such as Born Again Democrats, Candlelight Ladies, Funded-Voices and Rent-a-Signature Petitioners.

[This article was first published in the DAILY MIRROR, October 15, 2020]
malindasenevi@gmail.com

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The Constitutional Council and its discontents

naduth-baduth....

The 17th Amendment to the Constitution was passed in October 2001. It took more than a year for it to be implemented, perhaps because lawmakers suddenly realized that they had in their haste in fact legislated against their own interests.

It was all about the Constitutional Council and Independent Commissions. It came with flaws, but the intention was good. In short, it was a mechanism designed to curb the powers of the executive president since the abolition of that office was proving to be difficult, even if such a move was advisable given the reality of the illegally passed 13th Amendment to the Constitution.

The ill-advised 18th Amendment wrecked all of that with the then President, Mahinda Rajapaksa, replacing the Constitutional Council with a Parliamentary Council. The 19th Amendment, if one goes by the rhetoric of its advocates, was about restoring the ‘independence’ of the various commissions and re-curbing the powers of the executive president. In theory. In a nutshell there were four key elements: a) presidential powers to dissolve parliament, b) the appointment and removal of the prime minister, c) the notion of a national government d) the institution of a constitutional council mandated to recommend appointments to independent commissions.

Now, let us mention, parenthetically, that the Supreme Court pointed out serious flaws in the draft amendment and that the lawmakers rather than amending it essentially rewrote it, effectively giving the proverbial finger to the judicial arm of the state.

Later, both ‘a’ and ‘b’ above were brought into question and led to wrangling over interpretation, throwing the country into confusion for several months. The third element, that of a national government was essentially a device to circumvent limitations on cabinet-size. We will talk of ‘f’ shortly. Suffice to say that from draft to legislation and implementation the Yahapalanists turned the 19th Amendment into a classic case of how not to engage in legislation. It was an unadulterated example of classic constitutional tinkering.

The fourth. The Constitutional Council. Now this body is, in theory, the key to the affirmation of the idea of independence when it comes to the various commissions. Obviously the level of independence as evidenced by composition and of course the individuals that make the Council would be what reflects the level of independence in the commission it helps constitute. Composition, then, was key.

This is what Chapter VIIA, Article 4 gave us: the Speaker, the Prime Minister, the Leader of the Opposition, the President’s appointee/representative (from Parliament), five persons nominated jointly by the Prime Minister and the Leader of the Opposition (of whom two would be Members of Parliament) and one representing political parties or independent groups in Parliament to which neither the Prime Minister nor the Leader of the Opposition belong (not necessarily a Member of Parliament).

In effect then, at best, we would have six politicians and four independents. How a body in which politicians make the majority reflects ‘the diversified character of society’ is obviously something that the lawmakers weren’t worried about.

Let’s consider the composition of the Constitutional Council. In 2015, we had the ex-officio members. The President nominated Champika Ranawaka (a serving minister, no less!). The Prime Minister and the Leader of the Opposition decided they will each pick on and then come up with three names jointly. So the Prime Minister nominated Wijeyadasa Rajapaks (yes, also a serving minister) and the Leader of the Opposition nominated John Seneviratne. The ‘independents’ were Dr. A.T. Ariyaratne, the well-known leader of the Sarvodaya Movement, Radhika Coomaraswamy (a well-known operative in the advocacy industry) and Shiby Aziz (former Attorney General).

In 2018 we had the following apart from the ex-officio members: Mahinda Samarasinghe (President’ nominee), Thalatha Athukorala (Prime Minister’s nominee), Chamal Rajapaksa (Opposition Leader’s nominee), Bimal Ratnayake (representing ‘Other Parties’) and the three ‘independents’ — Jayantha Dhanapala (a strong backer of the then regime operating in forums ostensibly to further the cause of democracy but typically remember the term when the UNP is in political trouble), Javed Yusuf (with SLFP roots but politically compromised much like Dhanapala) and Naganathan Selvakkumaran (whose loyalties are unknown and therefore gets the benefit of the doubt).

So we’ve had constitutional councils that were politician-heavy and political compromised, effectively mangling the idea of ‘independence’ in related institutions. Add to this ‘independents’ whose independence is nothing more than not being official members of political parties. Track records reveal however the extent of their independence, politically and ideologically. The same is naturally reflected in the commissions that they set up with the difference that the members of such bodies are neither politicians nor have stated political loyalties. ‘Stated’ is an important word here, let us not forget. It deceives more than clarifies, hides more than reveals.

If the 19th doesn’t work and if we still want ‘independent’ commissions, then the 19th should be amended. That’s obvious. An alternative course of action would be to do away with independent commissions which have, over the past 18 years, proved to be ineffective in affirming the ideal of independence. It would be better to have accountability. In a word, representation. In other words let the executive branch of the state and the relevant protocols of appointment and promotion prevail. The Parliamentary Council (as per the 18th) is far more honest and its effectiveness as good or bad as the Constitutional Councils that followed.

What’s fundamental here is what underlines the need for such commissions, namely the ineffectiveness and even corruption of systems. In other words, the lack of safeguards regarding the same. It’s like the Financial Crimes Investigation Division (FCID) and of course the many Presidential Commissions of Inquiry we’ve had over the years. Their constitution clearly imply that existing systems (courts and police) were and are (as the case may be) ineffective. The logical course of action would be to institute systemic reform. While the need for quick action is understandable, system-fixing should not be supplemented by such ad hoc measures, one would think. However, such fixing has been abandoned altogether and the remedies have been marked by one thing and one thing alone. Political expedience. Victimization, yes. Vendetta, yes.

And so, if we were to go with the commission of the moment, if you will, we need to talk of the Election Commission. We have that ‘august’ body telling us that distributing relief in the form of a Rs 5000 hand-out is wrong since it gives a political edge to the ruling party, even as it argues in court that it is unable to conduct elections! That’s having the cake and eating it. The proverbial raevula as well as the keenda. Mahinda Deshapriya is washing stuff, immersing it all in muddy water and washing it. Again and again. As per hoda hoda madey daanava.

He has hand-picked public officials with known political loyalties to say ‘we can’t help you conduct elections.’ Arguably, even if one Divisional Secretary, for example, says ‘no can do,’ then the doing of it has to be postponed. The reasons may be mischievous of legitimate. I would assume it’s the latter. However, if just three say ‘can’t’ and 253 say ‘can’ then it would seem clear that elections can be held. Special measures can be put in place to sort out the problems in the problematic three divisions, surely? But Deshapriya hangs on to the ‘three’ and says ‘no.’


And then we have Ratnajeevan Hoole, who is now a member of the Election Commission and now an independent citizen. Officially above politics and political parties, but in reality politically and ideologically committed to the line taken by the Tamil National Alliance. He slips and flounders often, like when he wrote about M.A. Sumanthiran’s take on federalism (‘we will go for it without naming it’). Does anyone know the third member of that commission, one should ask? The third member is present more in absence, given the penchant that the other two have for issuing statements, Deshapriya as per official requirement obtained from being Chairperson and Hoole because he is, well, Hoole, a maverick and confused political creature if ever there was one.

Who appointed these people? Why, the CC, the Constitutional Council! How so? Why, the 19th Amendment!

Obviously this is not the moment to go for constitutional reform with respect to the 19th Amendment and all its flaws. Matters relating to the holding of parliamentary elections is before the courts. The court will determine in its wisdom, so let us not presume anything here. However, sooner or later, we need to go for system-fix and not sticking-plaster solutions. Integrity, clearly cannot be obtained from constitutional article and relevant caveat. Efficiency, on the other hand, can be the issue of a robust institutional arrangement with a clear procedural regime.

So what can we say about the Constitutional Council as per the 19th Amendment? It’s easy to say ‘the less said, the better.’ We should talk about it and such a discussion will certainly not cover with glory its architects, those parliamentarians who voted for it or their relevant cheering squads.

 

 

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Towards a Primer on the 19th for Confused UNPers

There’s dissension in the ranks, people. Not that it’s something new. We are talking about Sajith and Ranil. A few weeks from now we will all see who laughs last and then we will see the last-laugher laughing long.  That’s for later.  

For now, let’s focus on the 19th Amendment because there’s been words exchanged about the prime minister or rather the post of prime minister should Sajith ‘Baby’ Premadasa become President. 

Baby Premadasa says this is a presidential election and not an exercise to elect a prime minister. He’s correct. He has ‘appointed’ a National Security Minister however, even though this is not about electing one.  It brings us to the 19th Amendment.

Many who are supporting Sajith these days cheered the 19th Amendment. Mind you, not too long ago, they were saying that the 225 MPs and the President ‘should go!’ They also said the main political parties should be dumped! They, in all probability and like most MPs, haven’t read the document: not the draft (as the Supreme Court did) nor the document finally presented to Parliament (as the Supreme Court did not). 

They claimed that the President’s executive powers had been clipped (yes, they were) and that the Prime Minister (that’s Ranil Wickremesinghe) now called the shots (not exactly true).  Well, not just them.  Leftists, liberals, Born Again Democrats, Funded Voices, Candlelight Ladies, Colombots and other Kolombians said it. Believed it.  

They all discovered a sudden love for Sajith Premadasa after he expressed presidential ambitions. Perhaps they thought ‘anyone is better than Ranil’.  They forgot that Baby Premadasa was part of the Yahapalana Regime, from President Sirisena’s nepotism immediately after being elected, through the Central Bank Bond Scam and even now when the country’s sovereignty is about to be squandered via the Millennium Challenge Corporation (MCC) Compact. Sajith uttered not a word of protest. 

ANYWAY.  Those who thought the PM called the shots (and who expressed disgust at the incumbent), all of a sudden saw ‘hope’ in Baby Premadasa.  He would set things right, they claimed and still claim. Well, Old Man Ranil is not buying any of that. ‘I will be Prime Minister when Sajith is President’ he said. Sajith for his part said ‘I haven’t made any statements regarding any posts except that of the Minister of National Security (Sarath Fonseka).’ Now, wasn’t it the PM who decides on cabinet portfolios as per the 19th? Funny isn’t it? But Baby Premadasa disagrees obviously. So hasn’t he read the 19th or is it that their noises about prime ministerial powers being greater than those of the president just one big fib?  

On the other hand, these very people claim that if Gotabhaya Rajapaksa wins, it will be Big Brother Mahinda who will call the shots. Why?  ‘The 19th, stupid!’ They claim.  

So it seems that the UNPers are confused. In one instance (if Baby Premadasa wins) the President is the boss, but in another (if Gotabaya wins) then the PM has sway. As per the very same piece of legislation, the 19th Amendment!    

And they are upset also about Ranil Wickremesinghe’s status should Baby Premadasa win. ‘Maybe Sajja Boy, contrary to rhetoric, agreed to let Ranil be PM,’ they worry. ‘In any case, Ranil can’t be removed until Parliament completes 4.5 years as per the 19th,’ they sigh. In this case, it’s not about Ranil’s power vs Sajith’s power but Ranil as a thorn.

Well, if they actually read the 19th, they would know that under certain circumstances the Prime Minister can be removed and that Parliament could also be dissolved. If they had even a basic understanding of the political culture in this country and the behavioral patters of politicians, they would know that dynamics can change very fast immediately after a major election (remember January 2015?). 

But no, they’ve not read the 19th. They are confused about the 19th. They are letting outcome preferences conjure all kinds of billas (no, not the kind that were used to pick out ‘insurgents’ who would be later be summarily executed outside of judicial process, often by being burnt alive, following torture of course during Papa Premadasa’s time, a time that Baby Premadasa vows to take the country back to!).  They are anxious about a Prime Minister Mahinda Rajapaksa having sway over a President Gotabaya (as per the 19th) even as they claim that a President Baby Premadasa would have at his beck and call a Prime Minister Wickremesinghe.

Maybe Baby Premadasa himself has no clue. He seems to be in a zone unto himself in Silliness Land and therefore could be as ignorant and/or confused as the UNP’s various mouthpieces in this electoral season.

The Yahapalana Regime was marked by incompetence. What Baby Premadasa is promising therefore is incompetence compounded by confusion. And he wants our vote. Really? Really, really?   

malindasenevi@gmail.com.  www.malindawords.blogspot.com

  

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19 වන ව්‍යවස්ථා සංශෝධනය, 'පඹ අගමැති' සහ එජාප පඹගාල

මණ්ඩලේ කචල් මචං. කචල් කියන්නේ මම කරුණාවන්ත නිසා. කල්පනා කරලා බලන්න. සජිත් කියනවා මේක අගමැතිවරණයක් නෙවෙයි ජනාධිපතිවරණයක් කියල. හී ඉස් කරෙක්ට් මචං. බට් ද එජාපය ඉස් කන්ෆියුස්ඩ් මචං.

[වැඩේ තියෙන්නේ සජිත් කියන්නේ හොඳ එජාප කකුලක්.  2015 ඉඳල අද වෙනකල් එජාපය ප්‍රධාන යහපාලන ආණ්ඩුව කරපු කිසිම මෝඩ, ජඩ, තක්කඩි වැඩකට සජිත් නෙවෙයි විරුද්ධ වුනේ. අර්ජුන මහේන්ද්‍රන් එක්ක, රනිල් වික්‍රමසිංහ එක්ක, රවී කරුණානායක එක්ක, මෛත්‍රිපාල සිරිසේන එක්ක කෙලින් හිටගෙන හිටියා. කොටින්ම ජනපති වුන වහාම මල්ලිට ටෙලිකොම් එක දීලා 'ඥාති සංග්‍රහයට' තිත තියන වෙලාවේ ඉඳලා රනිල්, රවී, මහේන්ද්‍රන් එකතු වෙලා මහා බැංකුවට විදින මොහොත හරහා ඇමරිකාවට රට විකුණන මේ මොහොත දක්වා සජිත් හිටියේ සීරුවෙන් හිටං!]

හරි. දැන් කතාකරමු අගමැති ගැන. කතාකරමු ජනපති ගැන. 19 වන ව්‍යවස්ථා සංශෝධනය ගැන. 

'ජනපති බලතල අඩු කෙරුවා. දැන් ඉතින් අගමැති අතේ තමයි බලය තියෙන්නේ.'  19 උඩ දාන කාලෙ එජාපයේ ලොක්කෝ වගේම එජාපයට හොරෙන් ලව් කරපු සහ ලව් කරන වම්මු ගල්ලිබ්බෝ ඇතුළු (ෆේක්) ටොයියෝ කිව්වේ එහෙමයි. එහෙම කියපු අය දැන් කතා හරියට කරන්නේ අගමැති කියන්නේ පඹ තනතුරක් වගේ. රනිල් තුමා එක පැත්තකට වෙලා පපුවට් ගගහ කියනවා 'සජිත් දින්නොත් මමයි අගමැති' කියල. සජිත් අනිත් පැත්තට පක්ෂයේ ලොක්කව දෙකේ කාසියට දාල කියනවා 'මම තනතුරු බෙදල දීලා නැහැ' කියල. ඒ කියන්නේ තනතුරු බෙදන්නේ ජනපති. ඒ කියන්නේ 19බොරුවක්. 

ද?

එයාලගෙම තර්ක වලට අනුව ගෝටා ජනපති වුනත් මහින්ද අගමැති වන නිසා 19 වන ව්‍යවස්ථා සංශෝධනය ප්‍රකාරව රට පාලනය කරන්නේ මහින්ද. ගෝටා නෙවෙයි.  ඒත් සජිත් දින්නොත් රනිල් අවුට්. රනිල් විතරක් නෙවෙයි, මොකා අගමැති වුනත් ඒකා පඹයෙක්.  ගෝටා දින්නොත් ගෝටා පඹයෙක් (අකෝඩින් ටු ද 19ත්), ඒත් සජිත් දින්නොත් රනිල් පඹයෙක් (අකෝඩින් ටු ද 19ත්). කැන යූ මේක් අප් යුව මයින්ඩ් මචංලා? 

කාරණය මේකයි. මෙයාල ව්‍යවස්ථාව ගැනවත් රට ගැනවත් රට පාලනය කරන එක ගැනවත් බොරුවක් ගොතන්නවත් දන්නේ නැහැ. කොටින්ම පඹයෝ. කොන්දක් මොලයක් නැහැ. පඹ ගාලක පැටලිලා ඉන්නේ ඒක නිසා වෙන්න ඕන, ලේඩීස් ඇන්ඩ් ජෙන්ටල්මන්.


  

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The National (sic) Government

The Government was planning to increase the size of the cabinet by claiming it was forming  a ‘national government’. The 19th Amendment, following mandate sought and given, expressly states that the cabinet would be limited to a maximum of 30 ministers. The 19th Amendment, in contravention of mandate sought, includes wording that permits an enlargement subject to the caveat of there being ‘a national government’ in which case Parliament decides the size of cabinet. 

Assurances were made in Parliament at the time by the then Minister of Justice Wijedasa Rajapaksha regarding the definition of ‘a national government,’ i.e. a government made of the parties or independent groups represented in Parliament having the largest and second largest numbers. This position was reaffirmed by Prime Minister Ranil Wickremesinghe. However, when the bill was passed very late that night, the definition had been altered. Only Sarath Weerasekara objected and the Amendment was passed. Those who voted were possibly misled, but those who authored and approved the text (and this has to include Wickremesinghe and Jayampathy Wickramaratne and possibly M.A. Sumanthiran of the TNA), clearly knew what they were doing.

At the time, part of the SLFP was in the Government and the rest of that party were in Opposition. This strange arrangement was replayed after the general election in 2015. Perhaps because the SLFP was the party that had the second largest number of MPs, the ‘national government’ idea still held some credibility. When the majority of the SLFP left the government, however, that credibility was lost. The Speaker, Karu Jayasuriya, proceeded to divest himself of credibility by refusing to recognize the Joint Opposition as a separate political entity, citing the technicality of the JO MPs having contested under the SLFP banner. 

With the final fracture of the arrangement with the SLFP and of course it’s leader President Maithripala Sirisena, UNP tried to take the technicality-route in claiming it could form a national government. Interestingly and not surprisingly it was the UNP’s apparently designated constitutional-tinker, Wickremaratne who first floated the red herring. He claimed, unabashedly and shamelessly, ‘since the SLMC is with the UNP, we can still form a national government.’  Wickremaratne is a lawyer and he obvious cites only those points that favor his client (the UNP and himself in this instance).

Obviously, then, the amendment of caveats regarding cabinet size was deliberate and was akin to an umbrella kept handy in anticipation of a political rainy day. But then again, the SLMC, except for one individual, contested WITH the UNP led coailtion. And even if we take the SLMC to be a separate political entity that’s absolutely independent of the UNP-led coalition, the UNP, by even considering UNP+1 definition of ‘national’ betrays utter idiocy, not to mention making a complete mockery of all rhetoric bemoaning the bloated cabinets of previous regimes!

Then again, the shameless are often bold and tend to overestimate strength. Then again, the foolish will not see realities that hit them between the eyes (e.g. the UNP’s popularity plummet at the local government elections a year ago). So they tried a fast one. 

They tried to get standing orders suspended to circumvent stipulated procedures, hoping this would give them some kind of edge in getting the national government motion passed. Unfortunately, Speaker Karu Jayasuriya, who himself suspended his neutrality AND standing orders a few weeks ago, refused to accede on this occasion.

The UNP has a long history of itching to sell national assets (e.g. fanatical privatization) , subvert national interest in favor of (imagined) political profit, sloth or cowardice (Indo-Lanka Accord) and an unholy readiness to genuflect before foreign powers, especially the West (UNHRC resolutions). The word ‘national’ sits right in the middle of the party’s name, but it doesn’t belong to the UNP’s ideological heart but rather some rear-end body part.  

The term ‘national GOVERNMENT’ was doomed considering a) the long history of enmity between the UNP and the SLFP, and b) the nature of the respective party leaders. It was a deformed child and was ailing from birth. It’s dead now. The attempt to resurrect it has nothing to do with national interest and everything to do with the desperation of the UNP in reduced and disarrayed circumstances.  

Should we be surprised, though? The short answer is ‘no’. History casts long shadows. The SLFP and the UNP have long histories. Sirisena and Wickremesinghe have long histories. The observant voter can read the relevant shadows. 

Those who expected miracles or let’s say teeny-weeny miracles from the Sirisena Presidency and the yahapalana governement were and are (at best) naive. However, many of them who were willing to ignore Sirisena’s vangu (or, un-yahapalanish acts) as long as he was seen as the UNP’s man (yes, not even as someone who was in a coalition WITH the UNP), are now at him, hammer and tongs. They are dead silent about attempted constitutional tinkering of the UNP. 

Funded-voices, born-again democrats and candlelight ladies who came out of the woodworks in late October last year have gone silent. When the UNP pulls a UPFA or Wickremesinghe pulls a Rajapaksa, they play ‘I am sleeping’.  You can’t wake up those who pretend-sleep.  

Perhaps it’s a good thing. The UNP’s antics has effectively silenced these hypocrites. That however is just a small consolation for people have to be deluded to vote not only for the UNP, but the SLFP, SLPP, JVP, SLMC and the TNA. 

Time for a new political-think, perhaps? Time for a truly NATIONAL ‘National Government,’ then, and one that is not tarnished by the kind of constitutional hanky-panky that the likes of Wickremesinghe and Wickramaratne indulged and indulge in, perhaps?

RELATED ARTICLES

Sophomoric legislators cannot fix constitutional flaws

What of 'nation' and 'national' in this 'national government'? 

malindasenevi@gmail.com. www.malindawords.blogspot.com

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The ‘Honorable’ Speaker and the Spirit of Democracy

The United National Party (UNP) has informed Speaker Karu Jayasuriya of the party’s intention to move a resolution on forming a ‘National Government’. The UNP has in doing so identified a UNP-Sri Lanka Muslim Congress (SLMC) coalition as satisfying constitutional conditions for such an eventuality. The SLMC has just one member in Parliament, Seyed Ali Zahir Moulana, the others having contested under elephant symbol at the 2015 general election. 

Two words. Hilarious and preposterous. Oh! There are another couple of words: expected and scandalous. 

Let’s walk through the process. When the 19th Amendment was tabled in Parliament, the authors (who did a lot of hanky-panky after the Supreme Court determined that sections were unconstitutional) they ensured (yes, it was deliberate) that ‘national government’ would be ill-defined. 

On April 28, 2015, MP Chandrasiri Gajadheera demanded a definition and the then Minister of Justice, WIjedasa Rajapakshe responded thus:  for a determination of the ‘national government’, then Minister of Justice Rajapakshe responded: “When the recognised political party or the independent group obtaining the highest and the recognised political party or the independent group obtaining the second highest number of seats in Parliament agrees to form a Government.” Prime Minister Ranil Wickremesinghe affirmed this position when others raised the question. 

Indeed, this is how the text of the draft read (with respect to the size of the cabinet): Article 46 (3) a ‘National Government’ as ;“If at the conclusion of the General Election held immediately after the coming into force of this Article, the recognised political party or the independent group obtaining the highest and the recognised political party or the independent group obtaining the second highest number of seats in Parliament agrees to form a Government of national unity, then, notwithstanding the provisions of paragraph (1), the number of ministers of the Cabinet of Ministers and the number of Ministers outside of the Cabinet of Ministers and the Deputy Ministers, may be increased up to forty-five and fifty-five, respectively.

However, late that night, when the bill was passed (while most the MPs were probably half-asleep), the constitutional ‘experts’ involved, Jayampathy Wickramaratne certainly and possibly M.A. Sumanthiran of the TNA, the wording had been amended in favor of vagueness and making for multiple interpretations. The ‘second highest number of seats’ section had been replaced by ‘other parties or independent groups represented in Parliament.’  

The subterfuge even escaped Asanga Welikala of the Centre for Policy Alternatives (CPA) who edited a collection of essays on the 19th Amendment. Well, we are being generous here, for Welikala has scholarly credentials and one assumes that when compiling such a text basic homework would be done!   

So we have the four words: hilarious, preposterous, expected and scandalous. Hilarious because there’s nothing ‘national’ about the UNP and because the UNP plus a single SLMC MP is an insult to the word ‘national’ when there’s the SLFP, the SLPP, JVP and TNA making up more than 50% of the parliament. Preposterous because it goes against the grain of all sentiments associated with ‘good governance’ and is antithetical to pre-election rhetoric of the UNP regarding cabinet size, doing things differently, being decent etc. Expected because the UNP has a long history of letting political expediency wreck national interest in such matters, dating back to J.R. Jayewardene’s constitutional tinkering starting with the 1978 constitution, through all amendments until the 17th including the unconstitutional and treacherous 13th. Scandalous because the Speaker hasn’t as of now thrown the motion out.

The Speaker. Karu Jayasuriya. He didn’t cover himself in glory during the recent ‘constitutional crisis’ except of course in the eyes of the UNP and it’s support cast of funded-voices, candlelight-ladies and born-again democrats. A simple comparison on the motions against Ranil Wickremesinghe (April 2018) and Mahinda Rajapaksa (October-November 2018) in terms of adherence to procedural norms, time frame and of course how the vote was counted would put all doubts to rest. 

Now Karu Jayasuriya, ‘the democrat,’ has a decent enough history, especially compared to the vast majority of parliamentarians past and present. And yet, apart from the ungainly and partisan conduct mentioned above, he was also complicit in another piece of constitutional skullduggery engineered by the UNP, that which related to the Provincial Councils. The UNP, was loud about legislation to ensure better female representation but quietly slipped in a bunch of procedural obstructions to make it hard to hold provincial council elections. Karu Jayasuriya chose to ignore objections raised at the time.

The non-holding of long overdue PC elections is another matter about which the ‘democracy-loving’ self-appointed civil society watchdogs are quiet about. Indeed, even the devolution-mad ‘democrats’ including that arch word-twister M.A. Sumanthiran don’t seem upset that these bodies are non-functional. In effect they’ve cast a damning vote against constitutional amendments that seek to wreck the unitary nature of the state. 

That’s an aside, by the way.

What we have is, let us reiterate, a hilarious, preposterous, scandalous and nevertheless expected attempt at constitutional tinkering on the part of the UNP. What it does to ‘the spirit of democracy’ is something that should upset the more democratic elements in the UNP, for example, Eran Wickramaratne and, well, that’s about the only name that comes up! 

Karu can do a ‘Recent Karu’ and let Kiriella’s motion hold. He could do an ‘Old Karu’ and ensure that the flicker of that thing called the spirit of democracy prevail. If he does the former, there’s bound to be objection from within parliament and it would be interesting to see how the TNA and JVP respond. There would be litigation and we can have a new season of courtroom teledrama.

The Speaker is a seasoned politician. A year ago I would have been convinced that he would not allow this kind of nonsense. Now I am not sure. Who knows, though, maybe he will surprise one and all once again! 

RELATED ARTICLES

Where is the 'national' in this 'national government'?

Re-size the cabinet to fit specific subjects in the national interest

The 19th Amendment as a plaything of the UNP

The 19th should be revisited

The 19th Amendment: blessing or curse?

So who is cheering the 19th Amendment now?

malindasenevi@gmail.com. www.malindasenevi@gmail.com.

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Some new projects for Born-Again Democrats, Funded-Voices and Candlelight-Ladies

The year 2018 ended with political uncertainty being shelved. I say ‘shelved’ because the ‘restored’ UNP regime no longer has the President’s support nor that of his party, is being held to ransom by the Tamil National Alliance and does not have a stand-alone Parliamentary majority. Moreover, the flaws of the 19th, apart from those pertaining to dissolution, still remain and could come to haunt the ruling party. 

Thirdly, the government remains unpopular and is widely perceived to be corrupt and inept. The fact that its political opponents cannot boast of a superior track record in terms of wrongdoing is hardly comforting given that credentials of would-be replacements matter less than the need to get rid of governments when it comes to elections. Fourthly, the UNP-led Yahapalana regime has bungled so much with constitutional reform that it is likely that the people would view the proposed 20th Amendment with suspicion and will watch closely the UNP’s position on the new constitution that the TNA plans to table shortly.  

Despite all this, less confusion and less uncertainty in terms of who is running the country is obviously makes for a much healthier situation that what we had in the last quarter of 2018.  

Stability in this sense, nevertheless does not translate to democracy and good governance being in the box seat. But do we have democracy now, people? Is everything hunky dory? Do we have good governance now, finally?

We can safely relegate the ongoing spat between Sarath Fonseka and Palitha Thewarapperuma as a humorous diversion. So too Palitha Range Bandara’s threats and predictions. It’s nothing more than disappointment and ire on the part of individuals who’ve lost out in the apportionment of cabinet posts. 

But here’s something to think about. The man at the centre of the Central Bank bond scam, Arjuna Mahendran is evading arrest. Ranil Wickremesinghe, the key approver of Mahendran and the scam, who also, according to Mahendran, proffered relevant instructions, is back as Prime Minister. The suspected go-between, Ravi Karunanayake, is back in the cabinet. The principal  beneficiaries, Arjun Aloysius and Kasun Palisena, are out on bail.

Now it was reported that their bail application was accepted by court because a) the main suspect cannot be apprehended, and b) their families were falling ill. Such ‘reasons’ if applied across the board would help clear the prisons!  

None of this is surprising. These are politicians and crooks doing what they’ve always done, after all. What’s interesting here is the action or rather the apathy of people who barely a few weeks ago were shouting themselves hoarse ‘for democracy’. Yes, ‘not for Ranil but for democracy’ was the slogan; that’s why they took to the streets, they told the world.  

Well, the Born-Again Democrats, the Funded Voices and the Candlelight Ladies who were appalled by President Sirisena’s moves in October 2018, but had been quiet when he did the hanky-panky from January 2015 until he sacked Ranil Wickremesinghe, appear to have retreated to comfy quarters of apathy after Wickremesinghe was reinstated. 

It’s as if they were deliberately lying when they said ‘It’s not about Ranil’ and ‘It’s not about the UNP’. They were lying when they said they were fighting to reestablish democracy and good governance. They were, in fact, utterly unconcerned about such things. They were, in fact, only concerned about ‘their people’ being in power.  

Why haven’t they issued statements regarding Wickremesinghe’s choices for cabinet portfolios? Why have they (and also the governments of the USA, UK, France, Australia and Canada, and top people in UN agencies) been silent over the sacking of ITN employees? Why didn’t any of these people cry in horror over Buddha statues being smashed in Mawanella?  Why not, indeed! 

They would know best, but we can hazard a few guesses. They were protecting their people, their turf; democracy and justice were easy and convenient alibis in this project. 

However, we could be generous here. Maybe they are taking a breather. They are just tired, perhaps, from sleepless nights. They are recovering from being forced to spend some time outdoors and being bombarded with noice, smoke, dust and of course the unpalatable matter of having to rub shoulders with the ‘riffraff,’ made mostly of people who are not like them,  would love to be like them and probably have deluded themselves into believe that they would get membership in this ‘exclusive’ and (in their minds) elusive club if they ‘mimicked the gentry’ in action and by embracing their pet antipathies.

Yes, maybe they are exhausted. Maybe they will catch their breath one of these days. Maybe they’ll shake off the dust of placards and cut-paste status updates in social media one of these days.

If they were serious about democracy and good governance (a big if, that!) and they also want to use the old placards with the legend ‘it’s not about Ranil’ there are some projects they could take up.  

First. Check the draft 19th Amendment (which elicited much concern from the Supreme Court) against the amendment itself. It can’t be difficult to ascertain the gap, the magnitude of which would help them figure out how much the authors (principally the UNP) respect the concerns of the Supreme Court. 

Second: Check the draft 20th Amendment. Go through each and every word. Refer all articles in the constitution that would be repealed or amended (Articles 30, 31, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 46, 48, 50, 51, 52, 65, 70, 80, 85, 88, 89, 92, 111, 129, 130, 153 and 156). Read Article 3 (sovereignty), study the word, meaning and usage. Study the 13th Amendment and see what the draft 20th, if passed without repealing the 13th, would do to the unitary status of the constitution and indeed reconciliation.

Third (and this would necessarily be an ongoing project that ought to outlast the tenure of various governments). Be alert to actions and non-action, statements and silences. Ask the question: ‘does this enhance or diminish things which we cherish such as democracy and good governance or even basic decency?’

Born-Again Democrats, Funded-Voices and Candlelight Ladies: your work is not done, sorry.  

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Justice delayed is justice affirmed, apparently

Justice delayed is justice denied. We’ve heard that adage often enough.  We also know that justice delayed makes for buck-making. Who makes the bucks? Well, the lawyers of course. And who or what are the accessories after the fact of buck-making courtesy delays? Why, the entire judicial system including laws, procedural culture and the judges. Let us add to this the tiny matter of mandatory court vacations, originally put in place for British judges to have holidays back in the ‘Mother Country’ but which defy all logic in this day and age. 

Of course, we must acknowledge that certain cases drag on account of factors outside the ones mentioned above. That also happens. It’s certainly no justification for the gross injustices wrought by (habitual) delays. 

In November 2009, then then Minister of Justice, Milinda Moragoda shared with me some horrifying data which I summarized as below in an article published in the ‘Sunday Island’ titled ‘Childhood is made of innocence and adult traps’:

‘Out of 14,966 cases pending before the High Courts, 4,032 (26.94%) were trials concerning child abuse. The data set indicates that close to 20% of all pending cases before the High Courts are of offenses committed before 1999 but there’s no category-wise break down. We can assume however that a significant number of cases are more than 10 years old. The implications for the abused child are obvious; there is bound to be a serious impact on that child’s overall development and that kind of scarring, exacerbated by inordinate delay in some form of closure, cannot be healthy for society either.’

The numbers would probably have changed over the past nine years, but probably not for the better. In terms of delay, cases in general are as bad or even worse. Recently the salaries of judges were upped considerably, in some cases by over 250%. If this was only about correcting some remuneration-related injustice, then no one should complain. However, if the ‘salary-uppers’ thought of it as an incentive for better service, they would be disappointed. Cases are not seeing quicker conclusion, let’s say.  

Put it down to habit, put it down to profit, put it down to anything you like, but there are certain cases of such national import that delays are inexcusable. 

Yes, this is about the recently determined case pertaining to the dissolution powers of the president.  The President, in his wisdom, took the entire country by surprise when he sacked Ranil Wickremesinghe. The President, for obvious reasons, issued a gazette notification dissolving Parliament. This was the move that was contested. The Supreme Court, in its wisdom, took weeks to pass judgement on the relevant objections. The political and even administrative system almost came to a standstill. Uncertainty ruled. 

It was important and the decision, either way, would have far reaching repercussions. Indeed the decision, some have pointed out, would be mandatory reading for law students for years to come. As such the argument can be made that for this very reason it was necessary to peruse carefully the arguments for and against the constitutionality of dissolution as per the 19th Amendment.  

On the hand, what was there to peruse? The lawyers on either side presented strong cases, yes. Still, in the end, all that had to be determined was which of the two key articles in the 19th Amendment could stand alone. It was determined that the restrictions placed on dissolution in the draft 19th Amendment superseded those permitting dissolution. The restrictions, let us remember, were considered by the Supreme Court in an earlier deliberation to be unconstitutional and required two-thirds support in Parliament as well as in a referendum. Such things happen of course. The point here, however, is that the Supreme Court had to consider the weight of two articles for five to seven weeks? 

It’s not just the two articles of course. Constitutions have many cross-references. The proposed 20th Amendment, for example, seeks to repeal or amend no less than 30 articles of the Constitution. On the hand, one would expect judges of the Supreme Court to be well versed in the Constitution. 

Today, even after that decision, when it is apparent that despite the rhetoric pertaining to and the spirit of the 19th Amendment, the President retains enormous powers, when it is clear that any situation where the party that a President belongs to does not command a Parliamentary majority there’s bound to be numerous conflicts given the distribution of constitutional powers between the President and the Prime Minister, we can can anticipate continued litigation. In fact that is one of the glaring flaws of the 19th Amendment. The authors did not anticipate the obvious: disagreements between the President and the Prime Minister. The 19th is silent on this. The other glaring error in the text is that it gives a non-elected body, the Constitutional Council, the power to overrule the opinion of the President in approving individuals to the independent commissions. That’s a clear disavowal of sovereignty as embedded in Article 3 of the Constitution.

In any event just imagine the worst-case-scenario of the Supreme Court being asked to interpret on multiple issues on account of irresponsible, incompetent and incorrigible legislation! 

First of all, this calls for a review of the Constitutional and subsequent ‘cleaning up’. With respect to the thrust of this article, however, it calls for a greater degree of efficiency on the part of the Supreme Court simply because dilly-dallying compromises governance or even renders it untenable.  

For all the accolades showered on the Supreme Court by born-again democrats, funded-voices and candlelight-ladies (they’ve gone silent on the UNP veritably giving the finger to democracy since the ‘landmark’ decision on dissolution; and one suspects that they would have cried ‘foul’ had the determination gone the other way), this delay is worrisome, to put it mildly.  

Sure, one can make an argument that it is better to take time and get it right rather than risk erring on account of haste. Some have argued that the bench had to consider examples across time and space; that’s ridiculous because the bench just has to determine on a specific text (certain articles in an amendment) in terms of a larger text (the Constitution) that includes all relevant articles in the said amendment. In any case, people are supposed to be competent, knowledgeable and therefore efficient. 

Efficiency, however, is not something associated with Sri Lanka’s justice system. It showed in the last two months of 2018. That’s certainly not something to cheer about. Indeed, those who do not find any issue with delay on this occasion, might well live to suffer at the very hands of tardiness. Systems, when flawed, can work for you but flaw can also work against you in different circumstances. Boots do get worn on other feet, one notes. 

For now, given a certain ‘tiding over,’ the nation can be pleased. For now. Perhaps we might have to regret that we did not question the length of time taken in this matter and indeed that we don’t question judicial delay in general.

RELATED ARTICLES

The 19th Amendment: blessing or curse?
The before and after of the Supreme Court decision on dissolution

Citizens as 'suckers'

'ප්‍රජාතන්ත්‍රවාදය උදෙසා සටන් කරන ප්‍රජාතන්ත්‍රවාදීන්' වෙත ආදරයෙනි

So who's cheering the 19th Amendment now?

Democracy is alive, ladies and gentlemen

How about some sovereignty for a change?
Sri Lanka's democracy-deficit
Who the &^%$ is Maithripala Sirisena
Karu Jayasuriya: A man besieged 
Hypocrisy in the name of democracy
From DS to RW: The Decline of the United National Party
Selective tear-shedding in seasons of demagoguery

The Supreme Court and Constitutional Clarity

The 19th Amendment should be revisited

Constitutional Reform Poisons: personalities, parties and outcome-preferences

malindasenevi@gmail.com. 

Read more