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Maithripala Sirisena became the President of Sri Lanka, winning the Presidential Election held on January 08, 2015. As he promised before the election, he introduced the Nineteenth Amendment to the country’s Constitution within a brief period, making a favourable ground for the functioning of democratic system, which had collapsed during the previous regime. Unfortunately, some regressive elements in Sri Lankan politics have somehow managed to insert a particular legal provision to this remarkable Amendment, which can be identified as a law inconsistent with the vision of the constitutional reforms.

Under this legal provision, some citizens of the country have become second class citizens, as they have been deprived of their right of becoming national law-makers in Parliament. This imprudent law stops some Sri Lankans from entering Parliament, if they posses citizenship of another country. This article attempts to explain not only the extent of unfairness of this legal provision but also disadvantages of introducing this unnecessary law.

Dual citizenship after the World War II

Civilization opened a new chapter at the end of the World War II; nations agreed to stop interfering in internal affairs of each other, and people determined to respect all rights of individuals on equal basis, after understanding the reality that colonial policy of territorial acquisition was no longer possible in the nation-state system. In parallel to this understanding, inclusivist liberal and socialist ideas based on internationalism spread throughout the world, undermining the influence of exclusivist conservative and fascist notions, and liberal minded leaders and people in many countries influenced the processes of policy-making at global and domestic levels upon the belief that individualism must be the basic concern of national and international law-makers. That is why world leaders agreed on December 10, 1948 to document the Universal Declaration of Human Rights purely upon the belief that every individual is entitled to be treated on equal basis within any national political unit.

PassportDual citizenship after the collapse of liberalism

It is a well-known fact that the socio-economic system based on Keynesian liberal theories collapsed in the early 1970s, giving space to neoliberalism that was mainly theorized by Milton Friedman of the Chicago School of Economics. Under this new system, the global economy expanded, demanding massive circulation of expertise and labour across national boundaries in the late 1970s and afterwards. Many countries introduced new laws and regulations, allowing people to hold more than a single citizenship in parallel to transnational flow of capital and technology in the early years of neoliberal development.

Democracy and dual citizens

It is very difficult to construct a general theory in support of the belief that democratic countries always promoted the concept of dual citizenship, while non-democratic countries followed restrictive practices in regard with citizenship policy. Citizenship policy has been overlapping; it is sometimes very regressive in democratic countries, while some authoritarian countries progressively practice more inclusive citizenship policies. For instance, democratically advanced Norway has a very restrictive practice in regard with the concept of dual citizenship, while many dual citizens enjoy equal rights in Central African Republic, even though this country is ranked as one of the worst authoritarian states.

Dual citizenship in Sri Lanka

The concept of dual citizenship was introduced in Sri Lanka in the late 1980s, giving opportunity for members of the educated middleclass, who completed their degrees in Sri Lankan universities, to retain their Sri Lankan nationality, when they become citizens of developed countries. However, a vast majority of the limited number of Sri Lankan dual citizens have roots in lower social strata, and most of them have earned this privilege by working hard and showing professionalism in both Sri Lanka and the foreign country they belonged to.

Advantages of granting dual citizenship

It is not difficult to explain various advantages of practicing an inclusive policy about dual citizens, even though it is very hard to justify the stand of politicians who suggest depriving the Sri Lankans with citizenships in other countries of some of their basic rights such as the right to contest the General Elections. Sri Lankan dual citizens have directly and indirectly brought enormous benefits to Sri Lanka, even though they appreciatively received nothing from consecutive governments; the advantages of dual citizenship cannot be measured only by monetary means.

An attempt to cripple wings of Sri Lankan dual citizens

Before or during the election campaign, neither politicians nor voters said that the dual citizenship has become an impediment to the advancement of the country and suggested to introduce laws to deprive Sri Lankan dual citizens of some of their fundamental rights. It was mentioned nowhere in the election manifesto of the Common Candidate. But, many people were surprised to hear the comments made by some leaders of the Janatha Vimukthi Peramuna (JVP), a political party with an attractive superficial analysis of the country’s crisis, regarding the political involvement of dual citizens, immediately after the presidential election held in January 2015.

According to the comments made by these leaders, there is a direct cause-effect relationship between dual citizenship and corruption. As they further explained, Sri Lankan politicians with citizenships in other countries steal public money and flee the country as they can find protection there. Therefore, they suggested introducing laws to stop Sri Lankan dual citizens from contesting general elections in Sri Lanka without renouncing foreign citizenship.

On one occasion, the leader of the JVP said that ‘even a doctor has to resign his job to contest the general election, but dual citizens do not have to do so,’ and he suggested to cripple the wings of the Sri Lankans who hold citizenships in foreign countries by introducing laws to prohibit them from contesting to become national law-makers. It is however difficult to understand why the JVP-leader cannot see the very clear difference between a doctor and a dual citizen.

A progressive amendment with a regressive law

Surprisingly, people came to know on the day of passing the Nineteenth Amendment that architects of the reforms have inserted this anti-democratic suggestion to the document. Shocked by the message, liberal-minded people suddenly detected the contradiction and questioned themselves why the architects of the Amendment put a blob of cow faeces to the pot of milk filled by themselves, amidst continued disturbances caused by political opportunists.

Intention of crippling wings of dual citizens

 People began to interpret the motive behind introducing this law; most of them said that the Government had the intention of stopping some members and confidants of the Rajapaksha-family from contesting the forthcoming parliamentary election. If this interpretation is true, the Government has taken a very wrong decision, because this is not the correct way of defeating a political opponent. Such decisions indicate ideological bankruptcy, and they compel people to ask why the Government cannot politically defeat key figures of the previous regime by revealing the failure of Rajapaksha-strategy.

Nineteenth Amendment and UN Charter

It is certain that this disgraceful law came through the process without careful consideration of the top leadership, but it can further damage the humanitarian image of the country, as it contradicts a number of Articles included in the Universal Declaration of Human Rights. This unfair law is directly contradictory with the Articles 1, 2, 7, 21 and 29 of the Declaration, because some citizens of the country have become second class citizens, as a result of introducing this law, but an extended discussion is unnecessary to point out the contradiction.

It is adequate paying attention merely to the Article 2, which is read as ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Among the categories in this Article 2, Sri Lankan citizens with foreign citizenships come under the category other status, and they have been discriminated against their citizenship status by this draconian law, creating a very thin stratum of second class citizens on the island for the first time after Independence. It is important for any political party learning how to solve problems in the country without depriving fellow citizens of their basic rights.

How to rectify it?

Unfortunately, this short-sighted suggestion has become not merely an ordinary law but a part of the master law, which cannot be changed without a two-thirds majority in Parliament. Therefore, it is required drawing attention of country’s leadership to rectify this mistake by introducing another amendment to the Constitution. It is also important opening a discussion on this matter and sending petitions to the political leadership. Meanwhile, Sri Lankan authorities must be reminded that the time has come to facilitate overseas Sri Lankans to cast their vote at country’s foreign missions at times of national elections.

By  : Asela Jayanath

Source: https://www.colombotelegraph.com/index.php/the-19-amendment-dual-citizenship/

Excellencies of the diplomatic community, Mr Abeykoon, Secretary to the President, officials of the Presidential Secretariat, ladies and gentleman,

It may sound as if I am repeating what has already been said when I say that I share the sentiments expressed by both Mr. Dhanapala and Prof. Munasinghe. To me, as a citizen, the 19th Amendment brings new beginnings. I say that because, sometimes we suffer in this country from a collective sense of amnesia. We also know that this country has many good laws. But our problem is that even when we have the law in the books and we do not implement it. However when we look at the 1978 constitution we note the fact that law was not in place because we had many restriction on the democratic process and it was a law that needed to be changed. It was distressing to see the debate on the 19th amendment and I think that is why I said we have a collective sense of amnesia, because we know as citizens what happened and how the constitution is interpreted and particularly through the 18th amendment how we saw how a government which had come into power with massive peoples power eventually dismantled democracy. It was distressing to see in parliament what should have gone through with absolute consensus, as an opportunity for democracy had to be negotiated in a process that in my view, undermined some of the opportunities for Constitution making. As a lawyer I have to say that the 19th amendment is a reflection of new beginnings, but as a lawyer I want something more, I want for this country fundamental constitutional change and constitution making because that is a challenge of a country that has emerged from a period of armed conflict. That has been the experience of nations. A new constitution in a participatory consultative environment which is not top down, can address the need to heal wounds, and to really make for fresh beginnings. And I certainly hope therefore, as a citizen of this country, every single party that is seeking our votes will come forward with an agenda of complete constitutional reform. Having said that I also recognize the difficulties of doing that in the kind of adversarial political environment that we have. And it is therefore in that context that we have to see the 19th amendment, as Dr. Jayantha Dhanapala said, as creating the opportunities for democratic culture and for addressing the democratic deficit that we have seen in this country. It is that context that I would like to make a few comments to add to what has been said by the other speakers.

The first point is that this amendment provides us with an opportunity to connect the whole development process and the discourse on development with a human rights based approach. That focus has not been there in the past. And the strengthening of the democratic deficit comes with the idea that here you have a concept of the people’s sovereignty and of people’s rights. We talk people’s sovereignty but we didn’t talk people’s rights. The 19th amendment connects the concept of people’s sovereignty and people’s rights through establishment of some of the key norms of democratic governance associated with the democratic process. And I think this is very important because it provides a vision for development where there will be public accountability and scrutiny of development processes. Hopefully, the process of achieving development goals will also be based on the need to really address the issue of people’s rights. And this is why the restraints on presidential power are key. The concept of presidential power has been enshrined in this article because there was so much controversy. People were feeling that they have to have an executive presidency, if you don’t have executive presidency with power, you have a diminished national security. Even though President Sirisena says “I have given up power,” the constitution gives him power. He is: Head of State, Head of the executive, Head of the Cabinet, Commander in Chief, all of it. What about the scope and substance of the power? There are limitations that encourage responsible use of these powers. The limited term is as crucial to accountable governance. There are other provisions which have been built in here which take away that concept of an unaccountable strong executive. And so you have a new provision for instance, apart from the old provisions, of the concept of duties of the President. Duties were not specified anywhere in the constitution. The duty to respect the constitution, the duty and the duty to ensure that the constitution is respect, the duty to promote national reconciliation and ensure proper functioning of the constitutional council and to ensure that the elections commission would function in such a way as to ensure the creation of proper conditions for the conduct of free and fair elections. I think these statements of duties are very important, and not very symbolic. They give a process for questioning the exercise of power and ensuring some accountability. I am not sure the provision in the amendment that he cannot dissolve parliament up to four years is a good provision. It is, perhaps, a protection from the reality that Sri Lanka has experienced where parliament has been dissolved arbitrarily. We are a country with a history of a strong and accountable judicial system. And what we have witnessed over the years is political interfearance that has contributed to a lack of public confidence in the independence of the judiciary. The 19th amendment addresses the crisis of confidence.

The President’s powers of appointment are limited by the setting up of the constitutional council and various other provisions. And in the very appointment of the judges of the Supreme Court and the Court of Appeal there’s a procedure for consultation. Now this was actually argued out in a case where under the former constitution also it was argued that there was a duty of consultation with the Chief Justice. This has now been put into the constitution. So there is that concept of the Chief Justice having a voice. However one of the limitations in the 19th Amendment is that it has not addressed very unfortunately the critical issue of the removal of judges of the Supreme Court. I see that this is an omission. There is no change in the provisions for removal of Chief Justice and as many of you know these were extremely controversial during the time of the impeachment of Chief Justice Bandaranayke. The constitution council provisions are also important because they create independent commissions and as you have heard there are several of those in key areas of administration. The constitutional council also becomes an institution responsible for the key high posts in this country. And most importantly even the constitutional council has a very good provision which gives guidelines of whom they should appoint. It is incorporated in the constitution. For example it states, that they must appoint people by taking into account the pluralistic character of Sri Lankan society including gender. That’s perhaps the first time the constitution has referred to the concept of gender and this is extremely important because it is a guideline to the constitutional council on its responsibilities. The decisions of the constitutional council are backed by a provision which says they cannot be challenged by court of law, except for violation of fundamental rights. In this context it is interesting that there is also a reference to respect for pluralism and gender in the guidelines for the commission.

With regard to fundamental rights, references have already been made to the inclusion of a right to information, the jurisprudence of this country incorporated a right to information through the right to freedom of expression and speech but here is a specific reference to the right to information and this is a important. It has taken Parliament a long time to legislate in this area and now the constitution gives a clear mandate to introduce the legislators reorganizing that the right to information is essential to the democratic process. However the focus is essentially here on state accountability and there is no reference to private, non- state actors who are playing an increased role in public services like health and education. On independent commission there is an interesting new clause which provides legislature to establish a new bribery commission which will replace the old commission. And the guidelines and mandate for that commission are set in a very specific way and this is also very interesting because one of the specific provisions is that the in taking legislation will also have to incorporate the standards set internationally on preventing corruption. And specifically there’s a mention of the international standards and international conventions. That’s very unusual in this country because we have no reference in the constitution to any other international standard. In fact, there is no provision with regard to treaties in the constitution or a specific provision to cover the President’s powers with regard to treaties. However the provision on the Bribery commission introduces that international standard. And that hopefully will create an environment and a context later for the understanding the importance of international standards in the process of governance and can become even a guideline to the judiciary in trying to harmonize international and national law.

The cabinet and the executive again try to address the issue of jumbo cabinets which are all concerned about. The provisions are fairly generous and they also might eventually lead to a semi jumbo cabinet hopefully depending on the numbers that are being restricted. There is also the constitutional incorporation of cabinet and state ministers, and as a citizen, that is something I question. Why do we need the concept of cabinet ministers, state ministers and deputy ministers. And as citizens we can ask whether this does not discourage political patronage. Do we need that? As Professor Mohan Munasinghe said this Buddhist text as incorporated at the end of our Constitution “May the rains fall in season, may there be a good harvest and may the ruler be righteous” comes from a Buddhist text. If we interpret righteousness in the context of modern language we could say that righteousness is protecting the rights of the people. I believe that text incorporates that concept. Protecting the rights of the people which ultimately amounts to accountable good governance in the interest of the people. Our politicians lose sight of the fact that the concept of rights and the human right based approach to development is of the essence of the wellbeing of the people. And the essence of making rulers accountable to the people. If we achieve this goal and if we walk towards that goal through the 19th amendment and hopefully we can create a consensus on the need for new constitution making based on those values integrating the best of national norms with the international. If we achieve such a consensus, I think the future of this country, one could say, has begun with the 19th amendment.

By : Prof. Savitri Goonesekere

Source: https://www.colombotelegraph.com/index.php/the-future-of-the-country-has-begun-with-the-19a/ 

The 19th Amendment to the Constitution sought to reduce the President elected by the people to a mere rubber stamp; except on the appointment of the Prime Minister. The President had to ask the Prime Minister what to do and what not to do and, therefore, it was an affront to the President elected by the people, Counsel Manohara de Silva, PC told the Supreme Court yesterday.

De Silva supporting the petition filed by Provincial Councillor Udaya Gammanpila said the President elected by the people should be able to decide on his own. The Bill sought to make the President a rubber stamp. He had to seek the advice of the Prime Minister. If the President did not agree with the Prime Minister on something, he had to ask the Prime Minister to reconsider it. The PM could refer it to Parliament. Then the President would act according to the decision of Parliament. But, Article 4 of the Constitution which vested executive power in the President was not being amended in the impugned Bill. It sought to dilute the executive power of the President without amending Article 4 of the Constitution of Sri Lanka.

In the 1972 Constitution the President was only figurehead.

The Executive Power was vested with the Prime Minister and the Cabinet of Ministers who were responsible to the National State Assembly, which had the representatives of the people, but according the 1978 Constitution the President was elected by the people. Article 4 of the Constitution vested executive power in the President, the counsel submitted.

He said the impugned Bill on the 19th amendment was unconstitutional.

The petitioner Gammanpila had petitioned the Supreme Court against the 19th Amendment to the Constitution.

The petition was heard before Chief Justice K. Sripavan, Justice Chandra Ekanayake and Justice Priyasaath Dep.

Counsel Manohara de Silva P.C. said the country needed a working government and not a theoretical one. The President must be allowed to act on his own. 

The President exercised executive powers in respect of the Defence, Mahaweli Development and Environment Ministries only, according to the impugned bill. Even if the present President wanted to do something for the Buddha Sasana, he could not take over the Buddha Sasana Ministry. If the present Bill was passed the President would be worth nothing more than a rubber stamp, the counsel argued.

Counsel de Silva added that several sections in the Bill, sought to erode the power of the elected President.

The impugned Bill would have the effect of the Prime Minister becoming the Head of the Government, instead of the elected President. Hence Counsel objected to Section 42(3) of the Bill which, he said, eroded the powers of the elected President.

In the 1972 Constitution, the Cabinet of Ministers had executive powers of the people. In the 1978 Constitution, the executive powers were vested in the President. The President could decide. According to Article (3) of the Constitution sovereignty in the people was not alienable, the counsel argued.

According to Section 41 a/b/c of the Bill without the concurrence of the Constitutional Council no appointment could be made. If the Constitutional Council was appointed it must be subordinate to the President to protect the sovereignty of the people, the Counsel said. The country could not be allowed to be managed at the will of the NGOs, he said.

Section 41 a/b/c, of the Bill violated Article 4(b) of the Constitution of Sri Lanka, he added. 

When the Bill was enacted several Commissions would go out of office. They would be re-appointed. It was aimed at leaving out some public officers. It was like leaving out some judges when the 1978 Constitution was promulgated, Counsel de Silva said.

Counsel M. A. Sumanthiran, supporting the 19th amendment said the present President, according to the 1978 Constitution was responsible to Parliament, even with respect of public security President was answerable to Parliament. The Cabinet was answerable to Parliament even now. The proposed 19th amendment was not inconsistent with the Constitution.

Attorney-at-Law Gomin Dayasri in a petition against the 19th Amendment told the Supreme Court that the right to information should be restricted to the citizen. The wide access of the right to information to foreigners could have drastic effects on the state.

Attorney-at-Law, Suren Fernando, supporting the 19th amendment, said that as long as the national security of the State and the territorial integrity of Sri Lanka were taken into consideration even foreigners might be given access to information within the law.

By Chitra Weerarathne

 Source: http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=122462

Article 19 welcomes the proposed inclusion of a right to information provision as the Sri Lankan Parliament amends the country’s Constitution. However, the London based freedom of expression watchdog urges Parliament to make sure that constitutional rights are available to all, not just citizens.

 “It’s encouraging that the Sri Lankan government is serious about protecting the right to freedom of information and is joining the other countries of South Asia in having a full constitutional provision. However, the proposed provision only protects this right for citizens, so we urge the government to change the proposal to ensure that the right is available to all,” said Thomas Hughes, Article 19 Executive Director.

“According to international law human rights belong to all, not just those with citizenship. Rules restricting rights so that they only apply to citizens have been used elsewhere to prevent marginalised and economically disadvantaged people – many of whom cannot afford or are prevented from becoming citizens – from exercising their rights,” he added.

“Given that the Sri Lankan government is amending the Constitution, it should make sure that the provision on the right to freedom of expression is expanded to apply to everybody, not just citizens” he concluded.

The proposed amendment creates a new article (Article 14A of the Constitution) which states: ‘every citizen shall have the right of access to any information’. It goes on to say that for any organisation to be able to request information, over three-quarters of its members must be citizens. This provision unnecessarily restricts the right to information to those people with citizenship of Sri Lanka.

The Constitution also currently limits the rights to freedom of expression, assembly, association and belief so that they are only protected for its citizens. However, freedom of expression and the right to information are fundamental rights for all. This is recognised by numerous international instruments, including:

• the Universal Declaration of Human Rights
• the International Covenant on Civil and Political Rights
• the regional charters of the African Union, the Organization of American States, the Council of Europe, and the European Union.

In addition to this, the UN Human Rights Committee clearly stated in its General Comment 34 in 2011 that these rights apply to everyone.

Under international law, all human rights are universal, indivisible, interdependent, and interrelated. No fundamental and universal right can be applied solely to citizens. Therefore, constitutions that give rights only to their citizens are in contravention of international legal standards.

By Executive Director Thomas Hughes

Source: https://www.colombotelegraph.com/index.php/sri-lankas-proposed-constitutional-amendment-needs-improvement-article-19/

The proposed amendments give effect to the changes to the 19th Amendment agreed to by the Cabinet after the 19th Amendment Bill was Gazetted. According to the new amendment, the executive presidency will be abolished but the President will have certain powers. The President will no longer be the Head of Government. The phrase “Head of Government” will not appear in the Constitution, which was the case during the Soulbury and First Republican Constitutions too.

Where the President does not agree with advice given to him by the Cabinet through the Prime Minister, he can ask the Cabinet to reconsider advice given. If the Cabinet does not change the advice given, the Prime Minister must inform the Parliament. Thereafter, the view of the Parliament will prevail.

Also, the President will have the power to summon the Cabinet to discuss any matter of national importance and will chair the Cabinet so summoned.

President Maitripala Sirisena will preside over the Cabinet during his term of office. He will work in accordance with the decisions made by the Cabinet.

Read the full text here

Source: https://www.colombotelegraph.com/index.php/full-text-amendments-proposed-to-the-gazetted-19th-amendment-shared-with-leaders-of-political-parties/

The Bill for the Nineteenth Amendment to the Constitution has been drafted, published in the Gazette and placed on the Order Paper of Parliament without any opportunity for public consultation. Once more, a government has arrogated to itself the sole power to draft a constitution, ignoring the fact that the constitution belongs to the whole country and all its inhabitants. It is a social contract between the citizens and the state, whereby the people agree to submit themselves to the power of the state, and agree to the manner in which that power will be distributed, exercised and limited among the institutions of government. A constitution should not be the product of political bargaining between competing political parties; nor should it result from the application of the party whip.

The proposed Nineteenth Amendment to the Constitution appears to have been drafted with care to reflect some of the commitments made in the common programme of the common candidate for the presidency which received the overwhelming support of all ethnic and religious groups of this country. However, a reading of the Bill reveals several provisions which, if enacted, could impede the governance of this country, and interfere with the lives of ordinary Sri Lankans as well.

Access to Information

The proposed new Article 14A seeks to introduce a new fundamental right, namely, the right of access to information, notwithstanding the fact that the right to seek, receive and impart information is an element of the “freedom of speech and expression including publication” which is already guaranteed in Article 14(1)(a) of the Constitution. What is now required is a substantive law that gives practical effect to that fundamental right. Instead, what is being offered is a constitutional provision that reflects a serious misunderstanding of the concept of access to information. Article 14A seeks to grant every citizen the fundamental right of access to any information held by “any other person”, “being information that is required for the exercise or protection of that citizen’s rights”. As far as I am aware, there is no legislation in any country in the world that gives a citizen the right of access to information in the possession of another “person”.

The draftsman has apparently borrowed this provision from the 1996 Constitution of South Africa which was drafted in the context of the “secretive and unresponsive culture” that had prevailed under the apartheid regime. The draftsman appears to have ignored the fact that when substantive legislation was enacted in that country, that error was rectified and the term “private bodies” was substituted for “persons”. In the absence of any such implementing legislation in Sri Lanka, will my neighbour now acquire a constitutional right to intrude into the privacy of my home in search of information (perhaps my research material !) that may be useful to him for the purpose of vindicating his rights in a court of law?

Access to information means a right of access to information in documentary form in the possession, custody or control of departments of government or other public bodies constituted under the law for any public purpose. It is about open government and accountability and the strengthening of democratic processes. It is not about access to information in the possession of private individuals. Nor should the exercise of that right be restricted under an omnibus clause that includes grounds such as “the protection of health or morals” as stated in the Bill. Exempt documents are usually those that may prejudice a pending criminal investigation, information communicated in confidence by the government of a foreign state, trade secrets, yet incomplete scientific research, and such like.

Presidential Immunity

The proposed new Article 35 continues to provide the President with immunity from civil or criminal proceedings. An examination of comparative constitutions, including those of France, South Africa and the Republic of Korea, will reveal that such immunity is enjoyed only in monarchical states and not in democratic republics (where everyone is equal before the law and subject to the equal protection of the law). Even the President of the United States has not been granted any such immunity under the Constitution of that country, although the Supreme Court has declined to issue judicial directions in respect of his official acts. Under the existing and proposed provisions of the Constitution, even a president’s spouse is prohibited from instituting a civil action for divorce or for maintenance!

Acting President

The proposed new Article 37 states that whenever the President is absent from Sri Lanka or is otherwise unable to perform the functions of his office, the Speaker shall act in that office. This is a departure from previous practice in regard to the office of the constitutional head of state. Under both the 1946 and 1972 Constitutions, provision was made for the Chief Justice (or the chief judge of the highest court) to assume that office during such a period if no other person was appointed to act. If the office of President is expected to be non-political, it would be inappropriate for an elected politician belonging to a political party even to act in that office. Moreover, in terms of Article 66 of the Constitution, the seat of a Member of Parliament becomes vacant if he becomes subject to any disqualification specified in Article 91, and one of these disqualifications is “if he is the President of the Republic” – even for a day!

In 1975, when President Gopallawa was due to leave the Island on an official visit, the then Speaker, Stanley Tillekeratne, staked a claim to be appointed to act. At the request of the Prime Minister, I sought the opinion of the Attorney General on this matter. Mr Raja Wanasundera was of the view that the combination of the offices of Speaker and President would be against the whole spirit of the Constitution. He wrote:

Both as the Speaker and as a Member of the National State Assembly, he is part of the legislature which does not directly exercise executive and judicial powers. The office of President is one of the most important offices contemplated by the Constitution. The President is the head of the Executive. Having regard to the functions and duties reposed in these offices, it seems to me that the nomination of a person who is a Member of Parliament and the Speaker of the National State Assembly, to act in the office of President, would tend to negative the distinctions drawn in section 5 of the Constitution.

The incompatibility would clearly arise if the person concerned is deemed not to vacate the office of Speaker or Member of Parliament, or both, on acting for the President. If, on the other hand, we take the view that the Speaker vacates office on acting for the President, then it seems that a new Speaker will also have to be appointed. The provisions of the Constitution seem to indicate that the office of Speaker and Deputy Speaker are different, and the Constitution contemplates that both offices should be filled.

The Attorney General concluded that having regard to the incompatibility referred to above, it was not desirable that the Speaker should be nominated to act in the office of President. Accordingly, Chief Justice Victor Tennekoon assumed the office of President, and Mr Justice Samarawickrema was appointed to act in the office of Chief Justice.

The Constitutional Council

The proposed new Chapter VIIA provides for the establishment of a Constitutional Council. However, that chapter does not appear to have taken note of the unfortunate experience of the previous Constitutional Council. Five persons are required to be appointed on the nomination of both the Prime Minister and the Leader of the Opposition. What would happen if these two opposing politicians are unable to agree on five or lesser number of persons? Similarly, what would happen if the Members of Parliament of other political parties and independent groups are unable to agree on one member to be appointed? Surely, provision ought to be made for the President to make such appointments on his own initiative in such situations.

Secretary to a Ministry

In the proposed new Article 52, provision is made for the appointment of a Secretary for each Ministry who shall “subject to the direction and control of his or her Minister” exercise supervision over the departments of government and other institutions in charge of the Minister. In the 1946 Constitution, the Permanent Secretary exercised such supervision “subject to the general direction and control of his Minister”. In the 1972 Constitution, the word “general” was deleted. “General direction” related to matters of policy only; “direction” on the other hand could be case specific if the Minister was so inclined. Thereby, the Minister, and through him numerous Members of Parliament and constituents whom he wished to humour or accommodate, became directly involved in the routine administration and decision-making processes of government departments.

This change appeared to have considerable support at the time among the Ministers since many of them believed that Permanent Secretaries who had been appointed by the President on the recommendation of the Prime Minister, sometimes with no prior consultation with the Minister to whom the Ministry had been assigned, were a channel through which the Prime Minister exercised oversight and influence, if not control, over those Ministries. That change stripped the Permanent Secretary of his independence, and transformed that office into that of a political agent who could be required to carry out the specific directions of the Minister even on matters where independent action was desirable. Having served as a Permanent Secretary under the 1946 Constitution and as a Secretary under the 1972 Constitution, I would strongly urge that the independence of that office (and thereby of the public service as a whole) be restored by permitting only “general” direction.

Dissolution of a Ministry

The proposed new Article 52 also states that the Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers, which is an event that would ordinarily happen at the conclusion of a general election. It is precisely at such a time that a Ministry should continue to function under a Permanent Secretary until a new Ministry is created or a new Minister is appointed. The conclusion of a general election should be the time for an orderly transition, and the Permanent Secretary should be the link between the past and the future.

Dissolution of Parliament

To curtail the power of the President to dissolve Parliament during the first four years and six months of its five year term (except on a resolution passed by not less than two-thirds of the whole number of members – including those not present – voting in its favour) as is sought to be done in proposed new Article 70, is a recipe for anarchy. What would happen in a Parliament in which no single party has a clear majority, and each government that is constituted is defeated after a few months, or a budget is repeatedly rejected, and members are unwilling to vote for a dissolution until they have qualified for their pension at the end of the fifth year? Surely the President must have that reserve power to dissolve Parliament and call a general election to ensure that stability returns to governance.

Head of Government

Much has been made in certain political circles about the lack of a reference to the “head of government”. There was no reference in either the 1946 or the 1972 Constitutions to a “head of government”. As in both those Constitutions, the President (or Governor-General in the 1946 Constitution) is the head of the executive (i.e. the government), while the Prime Minister is the head of the Cabinet of Ministers which is charged with the direction and control of the Government of the Republic.

The Issue of the Referendum

The proposed new Article 3 provides for the President of the Republic to be “elected by the People”. A national election of a constitutional head of state is a luxury that Sri Lanka cannot afford. This provision is probably being retained in the Nineteenth Amendment for fear that any other, more rational, form of election (such as by Parliament) may require approval at a referendum. It is time that this unreal fear, unleashed by a 2002 judgment of former Chief Justice Sarath Silva, is finally laid to rest.

Following the general election of 5 December 2001 at which the UNP secured a comfortable majority in Parliament, President Kumaratunga invited her principal political opponent, Ranil Wickremesinghe, to form a government. In mid-2002, fearing that President Kumaratunga may exercise her power of dissolution at any time, the UNP Cabinet decided to seek parliamentary approval to amend the Constitution, inter alia, to make the President’s power to dissolve Parliament subject to parliamentary control whenever the majority of members belonged to a political party of which the President was not a member.

Chief Justice Silva constituted a seven-judge Bench, from which he excluded the three most senior judges, to examine the constitutionality of the Bill. This Bench held that the proposed amendments to the Constitution infringed Article 4. A Bill that is inconsistent with Article 4 may be passed by a two-thirds majority and does not require approval at a referendum. The Chief Justice, however, went beyond his judicial role, and trespassing into legislative territory held that Article 4 was “linked” to Article 3 which is one of twelve Articles of the Constitution which require both a two-third majority in Parliament and approval by a majority at a referendum for the adoption of any inconsistent legislation. He thus retained for President Kumaratunga the power to dissolve Parliament at a moment of her choosing, a power that she exercised a few months later.

Article 83 of the Constitution specifies twelve “entrenched” Articles. These, apart from Article 83 itself, are Articles 1 (The State), 2 (Unitary State), 3 (Sovereignty is in the People and is inalienable), 6 (The National Flag), 7 (The National Anthem), 8 (The National Day), 9 (Buddhism), 10 (Freedom of Thought, Conscience and Religion), 11 (Freedom from Torture), 30 (Term of Office of the President), and 62 (Duration of Parliament). Article 4, which describes the manner in which the Sovereignty of the People is exercised – i.e. legislative power by Parliament, executive power by the President, judicial power through courts, fundamental rights, and the franchise at elections, is not one of them.

It is interesting to recall that in the original draft Constitution prepared by the Select Committee of the National State Assembly, Article 4 was also included as an entrenched provision. However, on 16 August 1978, when the Bill containing the draft constitution was being considered in committee, Justice Minister Devanayagam moved that the reference to Article 4 be deleted, and it was so agreed. Therefore, what the legislature deliberately omitted is what Chief Justice Sarath Silva sought to re-introduce. It may be that other judges before him have also shared his view, but it is Parliament, and not the Supreme Court, that can add or delete provisions of the Constitution. The sooner that Parliament asserts its authority to do so, the better it would be for the governance of this country.

By Nihal Jayawickrama

Source: https://www.colombotelegraph.com/index.php/the-proposed-19a-a-critique/

The announcement that 26 MPs of the former Rajapaksa regime had been sworn in as eleven cabinet ministers, five state ministers, and ten deputy ministers, made a great many independent members of the public and veteran UNPers openly declare their utter disgust, revulsion and exhibiting nauseating reactions.

Such ordinary people had been at the receiving end of that regime for a near decade and when Maithripala Sirisena broke ranks, declared his intentions of contesting presidency, teamed up with the UNP led by Ranil Wickremasinghe, they saw it as the way to liberation from the dictatorial family rule they were being encircled.

The hard core of the regime may have comprised the ‘kitchen cabinet’ but the ‘people’s representatives’ too were very much a part of the regime exploiting the people devoid of political, police or judicial protection. These representatives were the ladies and gentlemen who sang ‘bakthi gee’, telling the people of the ‘rising GDP’ and the patriotic tasks performed by their government in exposing and protecting them from  ‘international conspiracies’. They grew richer and richer while some of the people kept their heads above water with remittances of their near and dear slaving in the desert sands. Others got temporary respite from easy loans of ‘laysiyeng leasing’ companies at ‘Chinese rates’ of interest while the poorest of the poor pawned their meager jewellery, probably never to be redeemed.

Not one word was spoken of the plight of the working class or the abjectly poor by these ‘people’s representatives’. They had their perks and privileges and were living far beyond even these means.

When Mahinda Rajapaksa was defeated at the last elections, the wrath of those who voted against him was not only directed against him but his party MPs who were enjoying the ‘la dolce vita’ (the good life) solely at state expense.

For some inexplicable reason last week President Maithripala Sirisena and made some 26 such MPs cabinet, state and deputy ministers. Some of these ‘new’ ministers were targets of criticism by Maithripala Sirisena and UNPers themselves during the election campaign. They singled out such representatives who made uncouth statements on those supporting candidate Sirisena such as former President Chandrika Kumaratunga. Some of the latest ‘cross- overs’ were veteran double and treble ‘cross- overs’ from party to party and back. Shamelessly these people’s representatives had not cared two hoots for those people who had elected them on another party ticket.

Veteran politicians President Maithripala Sirisena and Prime Minister Ranil Wickremasinghe must be well aware that they have the great potential of jumping back to the other side when the occasion suits them.

These ‘cross-over’ ladies and gentlemen are supposed to comprise the ‘National Government’ with others envisaged by President Sirisena and PM Wickremasinghe.  How such disparate and desperate individuals will get together to form a government in the interests of the nation, we leave it to the imagination of Sirisena and Wickremasinghe.

Perhaps developing political circumstances and political expediency may have compelled President Sirisena and Premier Wickremasinghe, whose political integrity has been beyond question, to temporarily resort to the formation of such a cabinet. There are instances in Sri Lankan politics when such seemingly absurd and illogical political moves have been resorted to. But it is important to keep in mind that this present government, unlike any previous government, was elected on a call for a return to moral righteousness (Yahapalanaya), restoration of human rights, establishment of law and order, eradication of corruption and dispensation of justice for political assassinations, particularly of journalists. It is a government elected on high political morality and not party loyalties. It simply cannot resort to political skullduggery for survival or expediency.

President Sirisena obviously did not have enough time to plan out the just form of governance he envisaged. He had only a month between nomination day and being elected president. No politician has been bestowed with power in so short a time.

On being elected, he attempted to bite much more than he can chew. His 100-Day Programme, which calls for radical reform of the Presidential System of government and change in the system of electoral representation, requires much more time than a mere 100 days. The Opposition points out that the short-cuts envisaged to amend the constitution clearly violates the constitution.

The system of National Government President Sirisena envisages is not even clear to constitutional pundits. The electorate is still confused on what he hopes to do and how they are to vote at the forthcoming parliamentary election close at hand.

There is still enough time left for a parliamentary election to be held and the tight time table President Sirisena has set need not be followed to the letter.

Those knowledgeable about constitutional making as well as those with smattering knowledge of such matters, attribute much of this country’s misfortunes to the constitutions we have had. Let it not happen to the constitution that can take us out of the woods that we are desperately trying to formulate.

Source: http://www.thesundayleader.lk/2015/03/29/constitutional-reforms-dont-need-tainted-discards/

The Sri Lankan constitutional reform process has been ebbing and flowing, but in recent weeks, the promise of 8^th January seemed to be more ebbing than flowing in the usual morass that our political class is uniquely capable of producing. But if some reports are to be believed, then it seems as if the ‘Troika’ of President Sirisena, Prime Minister Wickremesinghe, and former President Kumaratunga, are rallying to save the reform mandate from dying an inglorious death. One can only hope that bringing the SLFP into government serves the dual purposes of ensuring the success of the reforms and marginalising the forces of chauvinism and authoritarianism. If the political centre, which represents the vast majority of Sri Lankan voters, can be so reconstituted that the UNP and SLFP can together deliver democracy reforms, then it bodes exceedingly well for the future of this country, and for the co-operation that must follow in ensuring devolution reforms in the future. Everyone concerned must remember that if they succeed in these collective efforts, they will be making history. If not, and if the collaboration merely provides a fig leaf for the continuation of the squalid politics as usual, the judgement of history will be commensurately harsh.

It appears the Nineteenth Amendment Bill published last week may well be modified before it is passed, and that such changes, whether embodied in a fresh Bill or moved on the floor of the House, are intended to further democracy rather than retain the bloated executive. While all this is most heartening, if the government is committed to making the democratisation of the state truly irreversible, I would suggest that the following matters must also be considered in any constitutional reform bill to come. This is, no doubt, a liberal wish list, but many of them would find broad acceptance in our society. Indeed, if more time is taken to negotiate far more contentious issues such as electoral reforms, then there is no reason why these matters could not also be included in the reform agenda.

Abolish not Reform the Executive Presidency

The government must unequivocally commit to the outright abolition of the executive presidency and return to the parliamentary form of government. Piecemeal tinkering will not do. The 1978 Constitution is so deeply founded on an authoritarian philosophy that the amendatory approach is always bound to leave some provision or other that can be used by some future President to unravel the delicate balance of a bicephalous executive. The power to prevail in political decision-making must return to a collegiate executive and ultimately to Parliament, and must never again be entrusted to a single individual.

Since January, those who have publicly argued for presidentialism in whatever form are unreconstructed Rajapaksa acolytes trying to preserve their own self-interests; or Sinhala-Buddhist chauvinists who see the state as a control mechanism against the minorities; or are crypto-fascists whose conceptual arguments in favour of the presidential state are – with startling candour – drawn from Nazis like Carl Schmitt and totalitarian mass murderers like Stalin and Mao. These are not arguments for the retention of presidentialism; they are advertisements for its abolition.

These views about the nature of the state draw from the worst and most intolerant aspects of our history, rather than the liberal, pluralist, and ecumenical potential that we can glean from both, our colonial constitutional inheritance as well as our South Asian cultural heritage. The social democratic SLFP and the liberal conservative UNP can construct, together with the Trotskyite Left and the minority parties, a formidable reformist platform for the reconstitution of a parliamentary state that is both centrist and decentralist. This is the moment for that grand and historic achievement that has eluded us throughout our post-colonial history.

The Bill of Rights and the Limitation Clause

Our bill of rights may have been a great improvement from what prevailed under first republican constitution, but it is now almost forty years old and reflects the constitutional technology of that era. It is ripe for a revision and upgrade. Among many available models and proposals, there is a draft bill of rights drawn up by a committee of experts under the auspices of the Ministry of Constitutional Affairs that can serve as the basis for replacing the present chapter on fundamental rights. This draft reflects contemporary international and comparative human rights standards far better than what obtains in the 1978 Constitution.

As important as the enumeration of rights in the design of the bill of rights is the framework for their limitation and derogation. The overriding purpose of a limitation clause is to ensure that the essence of fundamental rights is not extinguished, while recognising that in certain defined circumstances, their exercise may need to be restricted. A good framework for this is now found in the limitation clause that has been attached, exclusively and incongruously, to the new right to information in the Nineteenth Amendment Bill. This must be extended to the bill of rights as a whole.

Supremacy of the Constitution and Comprehensive Judicial Review

The principle that the constitution is the supreme law of the land must be expressly inserted in the constitution, and all law, conduct, policy and practice inconsistent with it must be void. This means that both Parliament and the government are subject to the supremacy of the constitution, and it follows that the judiciary must have the power to review any legislative or executive action for constitutionality at any time and in any proceeding. Consistently with this, the ‘Urgent Bill’ procedure for constitutional amendments must be repealed.

A Second Chamber

The recent proposal for a ‘Council of State’ was a half-hearted and rather purposeless nod in this direction, but it is clear that we will benefit hugely from a well-designed second chamber in the central legislature. This has principally two rationales. First, we need a second chamber as a reviewer of legislation and a scrutineer of executive action. This in turns requires a major infusion of expert knowledge into the legislative process. In a political culture where the electoral process is manifestly unable to produce the quality of legislator that is required for these purposes, it follows that a component of the second chamber’s membership will have to be appointed. The procedure proposed in the Nineteenth Amendment Bill for the appointment of the Constitutional Council can be usefully replicated here.

Secondly, we need a territorial chamber to represent the provinces within the central legislative process. This not only invests the provinces with a stake in the centre but also ensures respect for devolution. The Chief Ministers ex officio and a number of other representatives elected by the Provincial Councils should therefore constitute the other component of the membership of the second chamber.

In general, the second chamber need not have financial powers; it could only have a delaying power in the legislative process (relatively short in the case of Money Bills, longer for other categories of Bill, and longest for constitutional amendments); the Minister of Justice must be a member of the second chamber appointed for his or her eminence in the field of law; and other Ministries requiring expertise may also have Ministers or Deputy Ministers appointed from the second chamber. It must possess a strong committee system aimed at producing maximum scrutiny and deliberation.

The Electoral System

The reform of the electoral system features heavily in current debates but for all the wrong reasons, in the sense that parties are using the issue tactically to fulfil other objectives. There is a wide range of options to choose from in the design of the electoral system, but the basic aim must be to preserve the fundamental principle of proportional representation, which is critical in our plural polity, while re-introducing a first-past-the-post element to restore the connexion between the voter and the representative. It cannot be the other way round, viz., that the electoral system becomes essentially a simple plurality system that is partially balanced by a minor element of proportional representation. This is what is envisaged in the Dinesh Gunawardene Committee proposal. This kind of system promotes majoritarianism, reduces Parliament’s representativeness, and produces large governmental majorities which permit ‘elective dictatorship.’ The instability potential of minority or small-majority governments can be addressed with the principle of fixed-term parliaments, which has already found expression in the Nineteenth Amendment Bill.

Sri Lankan liberals have long advocated the German mixed system as a model, but there are newer and more modern systems from which we can now draw. The electoral system used for the election of members to the Scottish Parliament is a particularly good example to follow in achieving the aims outlined above. It also has the advantage over the German system of providing a fixed-membership legislature, whereas for the logic of the Niemeyer method used in the German case to work, the number of seats in the legislature cannot be fixed.

Devolution: A Sunrise Clause

The anti-Rajapaksa coalition could not have been built if minority issues were included in the common programme, but the minorities voted en blocfor the President nonetheless. The new government therefore has a strong obligation to address the fundamental constitutional anomalies that have prevented the realisation of minority political aspirations to autonomy and dignity ever since independence. If the moral force of providing a proper settlement for this historic injustice is not sufficient, then let it be remembered that the ‘peace’ that has prevailed since the end of the war is unlikely to last over the long duration unless and until the Sri Lankan state can better constitutionally reflect the fundamental pluralism of the Sri Lankan polity.

To this end therefore, a ‘devolution sunrise clause’ should be added to the amendment bill. A sunrise clause in the sense I use it here is a constitutional device by which particularly contentious issues may be postponed without derailing a wider process of reforms, but which guarantees that the issues so postponed will be taken up again at some identified future point. In this case, the sunrise clause should have the declaratory purpose of articulating at least the intention to address the issue of devolution in a fair and reasonable way, to formalise the interim policy of the government to fully implement the Thirteenth Amendment to the maximum extent of devolution permitted by it (including through statutory reforms), and to set out the procedures and timelines during the next Parliament by which the process of negotiations will be conducted. This will reassure minorities that their aspirations are not forgotten and it will strengthen moderate minority politicians in delivering their constituencies to the reform process.

Referendum

For the enactment of the reforms I have mentioned above by proper constitutional procedure, and in particular for the abolition of the executive presidency, it is clear that the approval of the people at a referendum would be needed. The government is hamstrung by the commitment it gave, in the different political context of mounting a plausible campaign against the Rajapaksa regime, that the reforms it was proposing would not touch any entrenched clauses of the constitution. The situation is now radically different, and with the broadening of the reform platform with the entry of the SLFP into government, there is no reason that a referendum cannot be offered

The only forces opposing reform in a referendum campaign fought by the reconstituted political centre I have outlined above would be the racist rump in the South (the reverse-racist rump in the North would likely boycott everything as is their wont). There is no doubt that such a referendum can be won handsomely in favour of reform, and this will invest an unassailable legitimacy for the new constitutional arrangements that will prove far more durable, and make it far more difficult if not impossible for ethnonationalists and populists to hijack the state as the Rajapaksas did. It would also be the more honest and forthright way to treat the republican polity that, after all, cherished its democratic traditions enough to throw the Rajapaksas out of office.

 By Asanga Welikala

Source: http://groundviews.org/2015/03/24/constitutional-reform-a-liberal-wish-list/

Since the opening up Sri Lanka’s economy to the world in 1977, the country may have achieved some targets set out by previous governments. At the same time there was a cancer also generated with the open economy which has gradually spread to the smallest veins of the economy, and today, it is fully diagnosed as the cancer of bribery and corruption. The time has come to eradicate this cancer before it spreads to the present and future governments. ‘Bribery and corruption’, ‘mega deals’, ‘commissions’ are buzz words today which are increasingly talked about by all sections of the communities in Sri Lanka. Allegations of bribery and corruption are pointed at members of Parliament, Provincial Councils and Local Government as well as some  government officials, politically appointed officials and close associates of politicians’ henchmen who are business people. They robbed money through several means, government budgetary allocations which use private contractors for contracting out government projects, internationally-funded government projects (mainly loans) and influence of political power.

Transparency International Sri Lanka has a categorization on who should be held responsible for increase of corruption in Sri Lanka; government officials, politicians, general public and the judiciary. Corruption has been the easiest and safest way to earn quick money for politicians in Sri Lanka during the past few decades. At the end when, any financial crimes are committed by those sets of powerful people, the loss is borne by the ordinary people, mostly those the of the pyramid of the economy. 

Today, corruption is linked to the international money laundering networks which operate in a heavily organised manner. In some cases, directly or indirectly international terrorist networks link with the international money-laundering business. When the government and its sponsored networks did such hideous financial crimes, people did not go against them since they do not like to go against their favourite politicians or the State which use their maximum powers to muzzle the voices of people against such corruption. Interestingly sometimes ordinary citizens are not interested or do not give any attention to over millions or billions of dollars worth of deals carried out by their favourite politicians. But their only worry is to meet their day-to-day living expenses. When the poor people meet day-to-day living expenses, indirectly they re-pay such loans (with high interest rate) borrowed by the government. This is mainly through high taxing on essential goods and services. Politicians do not pay any single amount to repay such loans since their expenses are looked after by the government. Indirectly the public look after them and in the mean time they indulge in highly corrupt deals. The New Democratic Front (NDF) government came into power in early January this year promising that the previous United People’s Freedom Alliance (UPFA) regime’s financial frauds would be revealed, recovered and the perpetrators brought before justice. As reported, the seriousness of this predatory corruption amounting to millions and billions of dollars public money is being diverted abroad via money laundering.

Since the opening up of the economy in Sri Lanka in 1977 no politician has been found guilty of committing any financial fraud or even were they brought before the law. It seems that the NDF government’s election promise crackdown of bribery and corruption has now been put into work and action. This may be the beginning of an end to this notorious exercise of bribery and corruption carried out by the politicians and others.  The new NDF Government must work on a system which empowers the ordinary citizens to know that each cent of government funds is working in a very transparent and accountable manner on any government project.  For this the government must have a strong system or a mechanism to monitor how such funds work at each stage of the project cycle (initiation, planning, execution and closure). The Auditor General’s Department, the Bribery and Corruption Commission or the proposed Audit Service Commission only looks into any suspicious financial fraud or to investigate them  if there are complaints after the completion of any project. Before any project can get off the ground there should be an independent thorough screening process which helps to prevent not only any financial frauds but also socio, cultural and environmental issues as well. Prevention is better than cure can be proved in this regard. This way the project can achieve its set target and does not need to have any post-mortem on whether there had been any corruption since the government and citizens engage throughout the project cycle until it getting completed. The previous UPFA Government carried out certain mega infrastructural projects  such as highways, roads, bridges, power plants, air port, harbours, housing schemes, building projects which should have been tested before an independent evaluation team.

Now it seems that many of them became failed projects in all aspects. Such mega infrastructural projects carried out by the previous UPFA government with the support of Chinese loans not only reported the levels of corruption but also low quality of completion, projects inability to recover its initial Return on Investment (RoI), what is more there is no technology transfer for Sri Lankans or jobs created as well as severe environmental concerns.  This should not be repeated by any government in the future at any cost. If this continues Sri Lanka will become a failed state in terms of the high levels of bribery and corruption and in the meantime accumulating huge amounts of international and local debt to repay. This will certainly reduce Foreign Direct Investments (FDI) to the country. Currently Sri Lanka is ranked 85th in the Corruption Perception Index of 2014 of the Transparency International. The draft 19th Amendment to the Constitution has suggested a new commission on procurement, the National Procurement Commission (NPC) (Chapter XIXB).The functions of the proposed NPC mentions that; it is to formulate fair, equitable, transparent, competitive and cost effective procedures and guidelines, for the procurement of goods and services by all government institutions 156C(1).   The NPC should also carefully study projects in terms of social, cultural and environmental issues before it gives its approval. The existing legal instruments and other for curb on bribery and corruption in Sri Lanka will directly supplement the work carryied out by the NPC. The Bribery Act, No.11 of 1954, The Commission to Investigate Allegations of Bribery or Corruption Act, No.19 of 1994, The Prevention of Money Laundering Act, No.5 of 2006, The Financial Transaction Reporting Act, No.6 of 2006 and The Committee on Public Enterprises (COPE) of Parliament. Since 2004 Sri Lanka is signatory for United Nations Convention Against Corruption.

In future the Right to Information (RTI) Act will further empower the citizens of Sri Lanka to question of any irregularities, suspicion on such projects carried out by the government. Good governance can be more meaningful when the people-centred development takes place with the direct participation of people. This will break new ground for Sri Lanka’s development drive and enhance the need to study other countries where such systems are available, how they work and their good practices in this regard.  This will directly help ordinary citizens to meet their day-to-day cost of living and achieve a higher quality of life as set out by the UNDP’s Human Development Index (HDI).   

By Vidya Abeygunawardena

Source:http://www.dailymirror.lk/67145/future-government-projects-need-independent-commission-approval-for-implementation

With the Gazette notification on the 19th Amendment to the Constitution being published last Tuesday, March 17 there have been varying responses from the political parties and many have viewed this hurried move with skepticism.  However, the Tamil National Alliance (TNA) is quite satisfied with the 19^thAmendment and claims that the government wants to transfer the executive powers to parliament and create independent institutions like the judiciary, independent election commission and independent police commission and various other commissions, which is a move for the betterment of the country.

“These are important matters in good governance and another important factor is that the executive powers of the president will be transferred to parliament. So I think these are positive signs and we are on the right track. Whoever wants good governance needs to support this amendment. Hence the TNA is in favour of the 19^th Amendment,” said TNA parliamentarian Suresh Premachandran.

Azath Salley of the Muslim Tamil Alliance however feels that the 19^thAmendment should be implemented only with the completion of President Maithripala Sirisena’s tenure.

“The UNP wants the executive powers of the president abolished so that the Prime Minister can acquire those powers himself. However, that cannot happen as this is a minority government and therefore as the people voted for President Sirisena, he should govern till his tenure ends in five years. What we have suggested is that President Maithripala remains as the executive president. We cannot let the UNP rule the country according to their whims as the people did not vote for them. Therefore we have no objection to the implementation of the 19^th Amendment as long as the executive presidency is only abolished after President Sirisena’s term,” he said.

Meanwhile, the Janatha Vimukthi Peramuna (JVP) expressed satisfaction over the Government succeeding to gazette the 19th Amendment to the Constitution, expressing their satisfaction that at least certain dictatorial powers of the executive presidency would be trimmed. However, addressing a press briefing in Colombo, the JVP general secretary Tilvyn Silva said that his party is in agreement concerning the amendments that have been gazetted. “However we learned that after trimming powers from the executive presidency, the President will still possess certain powers. Therefore, we are of the view that those powers should only be restricted to the tenure of current  President Sirisena and that when he leaves his post after his term, the Constitution should be amended in a manner that cancels these powers,” Silva said, adding that President Sirisena should dissolve Parliament and go for a general election after April 23 as promised by him in the run-up to the presidential election and seek a fresh mandate for Parliament.

The Jathika Hela Urumaya (JHU) said they had rejected the initial draft of the 19th Amendment to the Constitution as they did not want to transfer the powers from President Maithripala Sirisena to Prime Minister Ranil Wickremesinghe. Speaking to The Sunday Leader the spokesman of the JHU Nishantha Warnasinghe said that the Prime Minister had suddenly decided to gazette the 19^th Amendment on the 13^th of this month.

“At that point we objected to this move and told them not to be in a hurry to gazette it. It was then that the government decided to meet on Sunday the 15^thand initially the party leaders met and discussed the implementation of the 19^thAmendment. Then in the evening the cabinet met and discussed the draft of the 19th Amendment to the Constitution. At this meeting there were various agreeable and opposing views expressed. In the end we all reached a consensus and agreed to go ahead with the draft of the 19th Amendment. Accordingly it was sent to be gazetted, but to our surprise, when the gazette notification was put out, it did not contain any of the amendments that we had all agreed upon.

“Further in addition to the totally opposing contents of the gazette notification, even the date was wrong and instead of the 15^th, the notification had printed the date as the 13th. This is a huge problem and raises the question as to why the gazette notification did not include the amendments that was agreed upon by all on the 15^th. Who violated the agreement? This issue has also tarnished the trust we had on the government. They are the ones responsible for breaking that trust. Therefore, we are compelled to believe that there is some sort of conspiracy here, and the draft has many contradictions. Hence this has become a big joke. We now suspect that the changes could have been made accidentally, or due to it being done haphazardly or it was altered deliberately. Hence this whole fiasco has created a certain amount of distrust in our minds about the government,” said Warnasinghe.

He noted that the drafted 19th Amendment to the Constitution contains many points that his party cannot agree with, hence he said that it will have to be discussed again and an agreement will have to be reached. The General Secretary of the JHU, Minister Patali Champika Ranawaka has already put forward an observation paper to address the issues in the draft 19th Amendment.

“We called a pressa briefing in Colombo and told the people of the shortfalls in the draft of the 19th Amendment to the Constitution.  We certainly do not want to abolish the powers of the executive presidency and then create an executive prime minister. We need to carefully see what sort of powers the president will hold and the prime minister and the cabinet.

However, with this breach of trust by the UNP, it is clear that they are simply power hungry and want the executive powers for the prime minister and they are not willing to work cordially with the other parties,” he added.

According to the draft of the 19th Amendment to the Constitution, once it is passed in parliament, it will be implemented from the 22nd of April. “Hence our point is that if it is going to be implemented so soon, then all the details must be discussed comprehensively and all parties must agree upon the changes that will be made. Next, even the electoral reforms and independent commissions should all be done as one package. These cannot be done separately as these are all interconnected. Therefore, we insist that the priority is not to dissolve parliament but what is needed are amendments to the constitution. After that, we can go for a general election, but right now we are not agreeable to the draft of the 19th Amendment to the Constitution which has been published,” added Warnasinghe.

 By Camelia Nathaniel

Source: http://www.thesundayleader.lk/2015/03/22/19-a-rattles-government/