Editorial - Rajapaksa shifts up a gear

28 September 2020

Sri Lanka’s president has wasted little time in getting to work. Within weeks of his party sweeping parliamentary polls, Gotabaya Rajapaksa rapidly produced the long-promised 20th Amendment to Sri Lanka’s constitution, which seeks to further concentrate power into the executive presidency he occupies. As expected, there are few checks on his power and with a super-majority in parliament, a determined Rajapaksa looks set to steamroll it through. Despite protests lodged in Sri Lanka’s Supreme Court, it seems there is little that can stop him. As drama over the amendment continues, it is clear the Rajapaksas have shifted up a gear. The island is now entering a new era – one where any pretence of liberalism and respect for human rights has been dropped and military rule is in place, particularly across the Tamil homeland where repression has intensified. A brash, militarised, racist and authoritarian regime is in power. And it looks set to stay. 

Rajapaksa’s hawkish extremism has never been under question. As Sri Lanka’s defence secretary, he furiously defended the military’s shelling of hospitals, oversaw the assassination of journalists and threatened to hang those who exposed war crimes. The massacre of tens of thousands of Tamils took place explicitly under his direction. Indeed, his previous tenure shows why the trajectory of his current rule is not to be taken lightly. The military is now becoming an ever more present force, from pre-schools to tea plantations. The rising hate speech by Buddhist monks in recent months - warning of rivers of blood in the North-East - is the mainstream. Sinhala nationalism, which for decades has wrought violence on the island, has been given a new lease of life. 

The state of Sri Lanka’s politics is unsurprising. The defeat of the LTTE more than a decade ago did not pave the way for the island to become a liberal bastion. Instead, it cemented Sri Lanka’s shift to the opposite end of the spectrum, as a triumphalist Sinhala nationalist regime ruled with an international carte blanche. In the years since there has been feeble international resistance to Colombo’s repressive policies. Dogged Tamil resistance and dedication towards accountability and justice, in the diaspora and in the homeland, helped bring in early moves at the UN Human Rights Council, but with no tangible consequences for failing to fulfil resolutions, which Sri Lanka has openly flouted for years, the state has repeatedly been let off the hook. Even the previous regime’s short-lived liberal façade produced no accountability, no justice and still no peace. And now the current regime is teaching the international community a lesson. Left unchecked, toxic Sinhala nationalism will fester and continue to bring more instability and even more violence.

The future of the island is indeed bleak. Not just for the Tamils of Eelam, but for Muslims, human rights activists, journalists and civil society. The past year alone has seen all suffer under Colombo’s grip. Repression of the North-East, in particular, has stepped up, with activists being summoned for questioning and facing arrests. Just this week, Sri Lanka’s security forces and judiciary attempted to halt commemorations of Lt. Col. Thileepan’s sacrifice, even passing a ban on a planned hunger strike. Despite this, Tamils braved the intimidation and engaged in peaceful protests, remaining resolute in their call for demilitarisation, the return of land, release of political prisoners and accountability for disappearances and for genocide. These are all demands that have been echoed throughout the decades, including from Thileepan. And as we publish today, it is those calls that will resonate again throughout the North-East as a hartal across the region showcases that spirit of resistance once more. Now more than ever, those across the island must join their call and unite against an unbridled and toxic Sinhala chauvinism.

This ultra-nationalist regime is a product of decades of failure to fix Sri Lanka’s deeply racist institutions. It cannot continue to be normalised. As history has shown attempting to coax the Rajapaksas towards reform brings no dividends. Instead, their rule brings militarisation, corruption and human rights violations. There is only one way to deal with war criminals in Sri Lanka. Hold them accountable. Or else they will roam free, perpetuate more cycles of violence and may rule the island with more power than ever before.  

 

Need to support President’s commitment to development

By Jehan Perera-September 29, 2020

President Gotabaya Rajapaksa’s statement that his verbal orders should be considered as circulars to be implemented has generated considerable interest. There has been much commentary on it, not all of it positive. The president issued this directive at a meeting organised for him in one of the country’s most underdeveloped areas. His desire to cut through layers of bureaucracy could be based on his previous experience as a serving military officer and later as Defense Secretary. The large number of requests made by the residents of the village of Vilanwita in the Badulla District could have been the reason the president made this announcement to ensure that the decisions he was making on the spot would be implemented.

Velanwita which was the focus of the president’s attention will be a fortunate beneficiary of the president’s visit. It was clear that the president was not satisfied with the findings he made regarding the living conditions of the people who had voted for him in very large numbers. He visited the homes of people and also their agricultural lands to get a firsthand experience of the problems that needed the government’s attention. While in Velanwita he issued another directive that if a written inquiry from one institution did not receive a reply within fourteen days from another institution, it would be deemed to be approved. While this may solve the problem for those who seek the approval, the potential to adversely affect the rights of others needs to be considered.

Among the decisions taken by the president to improve the life of the people was to upgrade the road, provide drinking water and to provide electricity to the village within three months. In addition, he ordered that the village school be provided with a new building and to increase the number of teachers. As there were also people from neighbouring villages who attended the meeting they too presented their problems which received solutions. All of these people can consider themselves to be fortunate as they will be getting first priority among all other villages when it comes to obtaining funding from the government budget which is presently in deficit due to the shortage of financial resources.

 

PRESIDENT’S COMMITMENT

Ideally, the presidential intervention in Velanwita village needs to be replicated in many thousands of other villages whose people continue to lag behind in development. As the president cannot be involved in developing each and every village there is a need to rely on the government administrative services to deliver these results. There is also a need to release more financial resources for development and to increase the efficient administration of those resources. This calls for a holistic approach in which accountability for the use of scarce financial resources needs to get adequate priority. This brings up the need for the government to consider the lacuna in the 20^th Amendment, which significantly reduces the role of the state audit mechanism which is there to ensure that resources are not misallocated or misused.

Reforming the state administration system so that it delivers better results is important if the country is to develop to its full potential. This requires a process of consultation with its members. Many if not most of them are highly capable officers and would wish to work in a system that delivers the best results to the people. There are multiple motivations that cause people to apply for state sector jobs. These include obtaining stable and pensionable employment. But those are not the sole motivating factors and a strong spirit of service and patriotism is also there which needs to be supported and encouraged.

For any system to work, those in it should know what is expected of them and possess the authority and resources to deploy to deliver the result. A verbal directive may be the first indication of what is to be done. But it cannot be the only indicator as verbal communication can be misheard, misunderstood and misinterpreted. Written communication that follows the initial verbal directive will therefore be necessary for efficient delivery of development objectives. An exercise that is often given in management training programmes is when a message passed to one person by word of mouth is passed down a chain of persons. It is invariably the case that what emerges down the line is something significantly different from what was passed down at the outset.

 

STRENGTHEN SYSTEMS

The challenge is for the government to ensure that the mandate received by the president and government is successfully implemented in a manner that benefits the whole country and not only sections within it. This requires constructive engagement with the public administration system as a key partner in the development effort. The president’s resolve to speed up decision making in the government bureaucracy needs to be appreciated. There are a large number of examples that can be given where development initiatives at the local level do not progress because of objections on the part of individuals with legal rights or by others who have environmental considerations. This is seen as a setback to development when it needs to be seen in a wider perspective as protecting the rights of all, including the environment.

The need to show results on the ground, and to improve the life of the citizenry, is looming large in President Rajapaksa’s priorities as demonstrated by his surprise visits to government departments in the capital and now to the most rural villages in the country. This desire to show results may result in the advocacy of short cut methods to speedier implementation of development activities. But this must not be at the cost of the integrity of the system as a whole and the top-down system that functions effectively in the military is not appropriate to civilian governance. The president’s directives regarding his verbal orders is one example where the needs of civil governance need to be met. Another area of concern would be the reduction in audit scrutiny of government institutions as proposed by the 20th Amendment.

Best practices in the military are where speedy decisionmaking is provided by having rigorous systems in place. Those in the military cannot step outside of those systems which have been developed through long years of national and international experience. This same efficiency now needs to be brought to the civilian administration system in regard to delivering state-led development to the people. This requires strengthening the civil administration system which is based on consultation and assessing the needs of multiple parties. There are both national and international standards here that need to be met in regard to accountability for funds used and responsibility for decisions made that are fundamental to governance.

 Constitutional Safeguards Essential For Protecting & Promoting Peoples’ Freedoms, Rights & Prosperity

By Lionel Bopage –SEPTEMBER 29, 2020

Dr. Lionel Bopage

We as a nation should be extremely concerned about the potential of an adverse political and legal transformation that would be caused by the adaptation of the Twentieth Amendment to the Constitution Bill (20A) currently being debated in the Parliament. The current move to get rid of vital constitutional safeguards pause a serious threat to the peoples’ sovereignty and freedoms. While it is true that the people have given the government a mandate to work for their prosperity, it does not mean the head of state had been given carte blanche to do whatever he wants at will.  

A parliamentary democracy would be better served by staying away from and not allowing predatory politics. It is a sad historical and political reality that, without any checks and balances, human nature has driven many an individual to use political affiliations and office to maximise private benefits, usually to the detriment of the public interest. That is why constitutional controls are crucial potent tools in a parliamentary democracy; they serve as checks and balances on executive. 

These checks and balances become even more critical, when a religiously majoritarian ruler decides the laws and rights of the people. With a single autocratic head of state for the country, decision making will favour enhancing the well-being of the autocrat, their family, clan and cronies. Absence of such constraints would hinder the advancement of a pluralistic society. Governance systems based on majoritarianism – headed by an autocratic ruler – have more often than not demonstrated that when their eccentric and skewed ideologies prevail, the potential exists for the suppression of political opponents and the oppression of the people, just as our country’s history sadly attest to.

20th Amendment will provide the President with authoritarian powers and immunity from lawsuits. He/she will have power to dissolve Parliament and appoint or remove Ministers and junior Ministers at will, thus it disempowers Parliament. The President will have power to appoint members to all independent commissions; Chief Justice and the Judges of the Supreme Court; the President and Judges of the Court of Appeal; Members of the Judicial Service Commission (other than its Chairperson); the Attorney-General; the Auditor General; the Parliamentary Commissioner for Administration (Ombudsman); and the Secretary-General of Parliament. Urgent bills will be rushed through if Cabinet of Ministers view those as urgent. 20A replaces the Constitutional Council with a weakened Parliamentary Council – in effect a rubber stamp.

Among the key victims of 20A are: the Audit Service Commission and the National Procurement Commission to be dismantled; the Right to Information Commission’s framework and operability critically compromised; the powers of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) severely restrained; the Election Commission of Sri Lanka’s ability to conduct free and fair elections seriously curtailed; and the Office of Missing Persons tasked to bring closure to suffering victims will soon fade away with perpetrators of enforced disappearances and other heinous crimes given immunity from prosecution.

Parliamentary majorities presided over by an autocratic ruler have the power to dislodge the rule of law with the backing of popular opinion. It is in this sense, 20A is anti-pluralistic, anti-participative and anti-democratic. In its present form, 20A strategically serve to restore an authoritarian governance structure that would brutally compromise the ‘constitutionally enshrined framework of oversight and accountability’. Despite the citizens being the source of the country’s wealth and people’s well-being, their necessities and interests will be at the very bottom of the regime’s political priorities. If the Amendment is adopted as proposed, majoritarianism will determine the law of the country.

Rule of law based on constitutionally guaranteed rights implies that the government cannot bend the law. If applied consistently and in an accountable manner, the application of the rule of law does not need to be opaque and vague. Politics and law are distinctly different, but history has demonstrated that politics has increasingly displaced the rule of law in determining how people interact with governments. Popular majoritarian sentiment, not evidence-based research or science or equity, determines public policy. The will of the majority without checks and balances have become the political paradigm of the day. Those who are not in the majority sacrifice their rights as a people and community and become subservient to the whims of the majority. 

Parliamentary democracy can encourage and strengthen maintaining the basic law of a country as defined in its Constitution. Yet, without the appropriate checks and balances that restrain majoritarianism, democratic processes can be manipulated to undo democracy itself. This has been amply demonstrated in many countries including in Germany, Italy and Spain. Unstable political situations provide circumstances for opportunistic individuals and regimes to acquire and hold onto power. Such individuals and regimes use political processes to transfer resources to themselves and create a rent-seeking political culture.

In a democratic set-up such attempts can be and should be challenged by the accountability mechanisms incorporated in the country’s basic law. But in an authoritarian or totalitarian set up, political interest groups manipulate the system to generate wealth not through creation, but pillage via subservient crony political activity. They perpetuate and solidify their cronyism-based support networks by providing ever more monetary benefits at the expense of the public purse. Such crony networks can extend from villages to cities, within the bureaucracy and the civilian and military administration. Introduction of the current amendment will only enhance this culture by making it immune to the rule of law.

One of the unsung virtues of democracy is that it relies on collective decision-making and prevents an individual making decisions on behalf of the peoples of the country. It operates as a check on the power of those who are in authority and offers a mechanism for the orderly succession of power. Thus, it ensures the sovereignty of people by allowing those in authority to be replaced following free and fair elections. In addition, democracy allows for competition among many leaders who wish to challenge those in authority by pledging to do better than those in power. Hence, in general, democracy allows for an orderly succession of power without conflict.

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THAJUDEEN MURDER CASE: HC ADJUDICATES CASE AS KEY SUSPECT DEAD

29/09/2020

The case involving the suspicious death of rugby player Wasim Thajudeen was adjudicated in the Colombo High Court yesterday as former Chief JMO of Colombo Prof; Ananda Samarasekera who was the suspect in this case, had passed away.

High Court Judge Manjula Thilakaratne considering the submission made by the counsel who appeared in court on behalf of the relatives of the former JMO asserted that Prof Ananda Samarasekera had passed away.

Consequently the Judge closed further proceedings of the case.

The Attorney General had indicted the former JMO for covering up forensic evidence into the suspicious death of rugby player Thajudeen who died under suspicious circumstances near Shalika Grounds, Narahenpita. (By. T. Farook Thajudeen)

Daily Mirror

 

Triskaidekaphobia and Indo-Lanka economic ties

GR-MR equation works on a simple formula: harder they hit the Tamils stronger would be the support to the regime from Sinhala Buddhists, and harder they hit Muslims happier and more beneficent would be Modi – Pic by Shehan Gunasekara 

 Wednesday, 30 September 2020

One of the most unsettling international impacts of the global COVID-19 pandemic is the rise of an anti-China coalition led by Trump’s America. In the Asian region India is the most powerful member of this coalition, and it is through India that US is trying to checkmate China’s regional challenge and her economic dominance through her One Belt One Road strategy. 

With mounting economic difficulties at home, as illustrated by Moody’s downgrading of the economy by three notches from B2 to Caa1, and pressure from the West, Sri Lanka has no choice but to keep its relations with China unchanged at present level at best, while boosting its ties with neighbouring India. This explains why GR flew to meet Modi immediately after his victory, and why MR is now bending backwards and doing everything possible to please his Indian counterpart to seek more economic assistance. Economically therefore, Sri Lanka is too vulnerable a nation. 

Already, the country is in debt to India to a total of $ 960 million, and only recently the two central banks entered into a currency swap arrangement for $ 400 million. Negotiations are now under way for another bilateral currency swap worth $ 1.1 billion. Lately, Prime Minister Modi has also promised $ 15 million to promote ‘Buddhist ties’ between the two countries. 

A couple of months ago he invited Buddhist pilgrims from Sri Lanka to visit Kushinagar, the new airport in Uttar Pradesh, the state from where Modi built his political capital by engineering a pogrom against Muslims, massacring 2,000 of them in Gujarat in 2002. Modi’s India, through increasing economic ties under the ‘neighbourhood first’ policy is tightening its hold over Sri Lanka. Behind India of course is US. GR-MR power cartel has no choice but to succumb to Indo-American pressures. 

Unfortunately, in this growing friendship, the long-awaited implementation of the 13th Amendment is quietly being ignored by both parties, India and Sri Lanka. Among the rulers and their backers in Sri Lanka in particular, there is a growing triskaidekaphobia or fear of number 13, because of the perceived dangers of losing to Tamils by implementing the 13th Amendment, which was originally inserted under Indian pressure. 

On the Indian side, why didn’t Modi, in spite of the betrayal by the Sri Lankan President, who undertook to implement that amendment but reneged after returning to Colombo, at least show some urgency or make its implementation conditional upon further economic assistance in his recent discussions with MR? Instead, his almost ethical advice calling GR-MR regime to address the “aspirations of the Tamil people for equality, justice, peace and respect within a united Sri Lanka, by carrying forward the process of reconciliation with the implementation of the 13th Amendment to the Constitution”, and MR’s dismissal of that advice but couching it diplomatically under a non-committal undertaking to “work towards realising the expectations of all ethnic groups, including Tamils, by achieving reconciliation nurtured as per the mandate of the people and implementation of the constitutional provisions” (Sunday Times, 27 Sept. 2020), illustrates that Modi is prepared to downplay its implementation for the sake of gaining greater strategic and economic benefits to his country.

First of all, Modi’s own position as Prime Minister is not going to be affected even by an iota by sacrificing the interests of Sri Lankan Tamils. Tamil leadership at home expects Tamil Nadu to be the broker between Delhi and Colombo. But Modi had demonstrated at the last election that he could capture Delhi without the support of Tamil Nadu. Tamil Nadu is therefore no more a trump card to pressure Delhi by Sri Lankan Tamils. 

Secondly, Indian capitalists would be too happy to welcome Modi’s Indo-Lanka negotiations, if they open more opportunities for the moneyed class to enter Sri Lankan market, and acquire tangible assets through investment. Sri Lanka’s current economic plight and desperation for Indian economic assistance obviously opens a window of opportunity for Indian recolonisation. Why should the Tamil factor be allowed to be an obstruction to this imperial objective? Even geo-strategically China could be checkmated in the Indian Ocean with the assistance of America and its Western allies. It would be suicidal for Sri Lanka to ignore this reality. 

Thus, with a disunited opposition unable to win the Sinhalese Buddhist masses to its side, and with ‘native informers’ among Tamils and Muslims, who are prepared to work with the GR-MR power cartel, the 13th Amendment is fated to be buried under the ashes of the current battle over constitutional amendments. This battle will be another win to the regime, unless the five Supreme Court judges decide otherwise. Of course, there is a referendum to go through even after clearance by the judges. To win that referendum GR is working overtime to maintain his populist image among Buddhist voters. His last visit to Haldumulla, one of the most backward villages in Uva Province, is an example of this populist exercise. 

The net losers are the Tamils. Perhaps, it was with this outcome in mind that GR said, soon after he was elected as President, that the solution to the Tamil issue is not devolution of power but economic development. How could Modi and his capitalists quarrel with that when development would open opportunities for Indian penetration and investment? 

A footnote to the Tamil problem is that of Muslims. If Tamils could be subdued, Muslims could be enslaved to please Modi. GR-MR equation works on a simple formula: harder they hit the Tamils stronger would be the support to the regime from Sinhala Buddhists, and harder they hit Muslims happier and more beneficent would be Modi. MR’s ban on cow slaughter, the celebrated One Law One Country mantra targeting the so-called sharia laws particularly in relation to Muslim marriage and divorce, controversy over madrasas and Muslim religious education, and the overall anti-Muslim sentiment nurtured by Buddhist supremacists, are all instruments to hit the Muslim community and cripple its economy. 

To the Tamils at least there is a vibrant transnational community that is prepared to voice their grievances at international fora. To the Muslims, there is none. The much talked about Islamic brotherhood and universal Muslim umma are just historical fictions without any practical benefits to Muslim minorities everywhere.

Thus, as Modi-GR-MR relations improve the two minorities stand to suffer. However, everything depends on how long would Sinhala Buddhist masses are prepared to put up with the economic costs of religious ethnic discontent kept burning by the current regime. With worsening economic difficulties arising out of a flat bottom, dish-shaped growth curve the regime will find it impossible to deliver its promise of ‘prosperity and splendour’. Of course, there is no time limit set to deliver this 

promise. 

However even to maintain the status quo will be a challenge within the current recessionary environment. Indian generosity through currency swaps, moratorium on debt servicing and investment can only postpone the day of reckoning but cannot avoid it. Without twin surplus in budgets and balance of payments over successive years, Government will have no funds to invest in economic development. 

To raise Government revenue through taxes and to increase exports while rationalising imports will be a great challenge. Import substitution is no permanent cure and to borrow more is suicidal. In short, the economy will remain the number one enemy of this regime. The regime may fool some people all the time and all people some time, but not all people all the time. 

 Easter Sunday bomber met intel agent moments before he blew himself up?

29 September 2020 

The political and intelligence bungle leading up to the Easter Sunday Attacks is one of its kind of miscarriages of national duty. Much of that oversight is public knowledge, but not all of that is officially chronicled. Now the bits and bytes are being revealed before a Presidential Commission that was appointed to look into the Easter Sunday Attacks.

Last week, former IGP Pujith Jayasundara made an explosive revelation before the commission. He said Abdul Latif Jameel Mohammed, one of the Easter Sunday suicide bombers, had met with an intelligence agent 45 minutes before he blew himself up at the Dehiwala Tropical Inn lodge. 

Abdul Latif Jameel Mohammed tried to explode his explosive-laden rucksack at the Hotel Taj Samudra in the coordinated attack on churches and hotels in the morning. But the switch of his bomb malfunctioned, forcing him to abort the mission. He left the hotel in a three-wheeler and arrived at the Dehiwala lodge, where he left his belongings and went to pray in a nearby mosque. He blew up later in the day though it is not known whether the bomb accidentally exploded while he was trying to fix it. 

Hailing from a well-to-do family in Kandy, he studied aerospace engineering at Kingston University, England in 2006-7, but did not complete the degree. He later went to Australia for studies, before returning to Sri Lanka. In 2014, he tried to travel to Syria, and reached Turkey, but failed to proceed. On his return to Sri Lanka, he was not investigated by the security agencies.  Unlike other common sensual states that make attempting to join a foreign terrorist group a criminal offence, Sri Lanka, as former Prime Minister Ranil Wickremesinghe proddly paraded his folly, does not have such laws.  

Latif struck at home. Officials have not revealed whether he was also used a double agent, though, he was interviewed by the CID at least once.

 

President wanted Pujith Jayasundara to take responsibility in exchange for a full pension and a diplomatic posting

 
Known Zaharan’s associates such as Badurdeen Mohamed Mohideen, alias Army Mohideen, an ex-army soldier was used as an informant by the CID. The poorly-thought-out strategy effectively helped terrorists to dupe the intelligence apparatus into underestimating the nature of Islamic extremist threat. 

However, the latest revelation by the former IGP was a new twist and official sources have not commented on it. 
Last week, the commission reprimanded the private secretary of the former President Maithripala Sirisena, and three auxiliary bishops of the Archdiocese of Colombo for making public statements that challenged the evidence revealed before the commission. Considering this as a precedent, others would likely to keep mum. Which would mean only if the commission probes into the evidence given by the former IGP and summons the relevant individuals that the country would know the full story. 

During the last two weeks, the spotlight of the proceedings is on ex-President Maithripala Sirisena. The former Defence Secretary and the IGP have alleged that the President should take full responsibility for the Easter Sunday attack. Former IGP Pujith Jayasundara told the commission that President Sirisena instructed him not to conduct a public inquiry into Islamic extremism in the country. “Sri Lankans have died in Syria. This is an Islamic issue and it could get worse in the future. There are Muslim ministers and members in the government. They might get aggrieved. Therefore, this should be done with utmost caution.” the President told IGP. He then instructed State Intelligence Service (SIS) Director Nilantha Jayawardene to monitor extremist activities. 

Earlier Defence Secretary Hemasiri Fernando told the commission that the president instructed him to not to invite IGP Jayasundara to the National Security Council (NSC). Jayasundara, as the IGP, is also a member of the NSC, but was not invited after he fell foul with the President over a memo he wrote to the  National Police Commission over the transfer of the former CID IP Nishantha Silva. That was after the Chief of Defence Staff Ravindra Wijegunawardena complained at the National Security Council that Nishantha Silva was trying to arbitrarily arrest him. The President ordered the IGP to immediately remove him from investigations - notwithstanding the President is not supposed to meddle with police transfers - which is a matter under the purview of the National Police Commission.  

“Three days later, the President called me and asked who had transferred Nishantha. I told he did. “I did not say to transfer him,” President said and hung up the phone,” Hemasiri Fernando said.

A few days later, when I went to see the President, the latter told me, “Look what he (IGP) has done. He also wrote to the Police Commission making a reference to the Security Council.” I ordered not to bring the IGP to the Security Council.” 

“Accordingly, I informed the then IGP Pujith Jayasundara of the President’s order. Senior DIG Ravi Seneviratne, who was in charge of the CID, was brought to the Security Council instead of the IGP.”

By then the President had already not invited Prime Minister Ranil Wickremesinghe and State Minister of Defence Ruwan Wijewardene from the National Security Council meetings, after the Constitutional coup in late 2018.  He did not even invite Prime Minister Mahinda Rajapaksa, though he in a rush swore in the latter as the PM, triggering a constitutional crisis. When all the hell broke loose and the country was reeling from the Easter Sunday attacks, the President wanted IGP Jayasundara to be the fallen guy and take responsibility in exchange for a full pension and a diplomatic posting anywhere in the world of his choice. 

Critics of Yahapalanaya have habitually blamed the tug-of-war between the President and the Premier for prolonged dysfunction in the government, including the security lapses leading to the terrorist mayhem. They are right on many counts, but the national security, and by extension,  the Easter Sunday attacks are not among them. The President, as the Commander-in-Chief of the armed forces was in full control of national security, even to the extent he could prevent his Prime Minister, State Defence Secretary and IGP, from attending the national security council meetings.  Unfolding evidence before the commission reveals a president who is jealously guarding his authority over the national security, but, seemingly not fully competent in discharging his responsibilities. A President who is petty-minded, insecure and clueless of the nature of national security challenges of Islamic extremism. The NSC, a National Security Advisor and a horde of advisors and experts exist in most countries to advise the elected officials on the complex decision making on national security. However, they can do only to the extent that the leaders are willing to listen. Some leaders, especially the Third World ones have huge egos and their countries lack tradition and institutions, that make them less welcoming of saner counsel. Constitutional provisions have not held back the president from acting in defence of national security. Nor did the 19th Amendment dilute his powers over national security, nor would the 20th Amendment would especially enhance it.
It would be the personalities of the individuals in the office that would make the difference. Then and now Sri Lankans have elected presidents they deserve. 

Would the 20A - a personalized wish list for the concentration of powers of the state at hands of the executive-  make national security extra-precarious under a wrong person as the commander in chief? Probably not, the current constitutional provisions provide enough powers for that to happen. But,  it would surely make much of other areas of governance hither too protected from absolutism becoming a mirror image of the holder of the executive office.

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Opposition asks govt. to make new Constitution

September 30, 2020

Instead of adopting piecemeal measures

By Shamindra Ferdinando

The Samagi Jana Balavegaya (SJB)-led Opposition, yesterday (29) pledged to work with the National Movement for Social Justice (NMSJ) to scuttle the proposed 20th Amendment to the Constitution.

General Secretary of the SJB Ranjith Madduma Bandara made the pledge on behalf of its leader Sajith Premadasa, at a meeting chaired by NMSJ Chief former Speaker Karu Janasuriya at Hotel Janaki in Colombo 5.

The Opposition grouping reached a consensus on a common action plan to oppose the 20th Amendment both in and outside parliament.

The SLPP commands a two-thirds majority in Parliament whereas the main Opposition consists of 54 members.

The Opposition held the meeting as the Supreme Court began hearing petitions filed against the 20th Amendment. The audience was informed that as many as 39 cases against the government had been filed.

Jayasuriya declared that they had the backing of the Tamil National Alliance (TNA), Thamil Makkal Thesiya Kuttani (TMTK), the Sri Lanka Muslim Congress (SLMC), All Ceylon Makkal Congress (ACMC) as well as the Jathika Hela Urumaya (JHU).

However, the JVP wasn’t represented at the meeting. Defeated Gampaha District candidate Arjuna Ranatunga represented the UNP, while lawmakers Mano Ganesan and Gajendrakumar Ponnambalam addressed the gathering on behalf of the Democratic People’s Front and Ahila Illankai Thamil Congress, respectively.

The former Speaker recently succeeded Prof. Sarath Wijesuriya, who took over the civil society organisation in late 2015 following Ven. Maduluwawe Sobitha Thera’s demise.

Alleging that the 20th Amendment would grant dictatorial powers to President Gotabaya Rajapaksa, Jayasuriya strongly criticised the proposed law on six specific reasons, namely (1) the parliament would be reduced to a puppet in the hands of the President (2) the executive wouldn’t be answerable to the parliament, the judiciary and the people. Those institutions coming under the purview of the President wouldn’t be subjected to the auditing process (3) politicisation of the entire election process (4) facilitating waste, corruption and irregularities by abolishing the Audit Service Commission and the National Procurement Commission (5) weakening of the judiciary and (6) enabling dual citizen to enter parliament.

Both Jayasuriya and Maddumabandara pointed out that the government project faced unexpected opposition with growing protests against the proposed law.

SJB MP Rajitha Senaratne told the gathering that they would conduct a countrywide protest campaign on Oct 5 against the 20th Amendment. It would be followed by a rally at Hyde Park on Oct 8, where all political parties represented in parliament and civil society groups were scheduled to participate.

MP Senaratne found fault with the media for not vigorously campaigning against the 20th Amendment.

Jayasuriya led the call for the government to abandon the hasty bid to enact 20th Amendment and take tangible measures in consultation with all stakeholders, both in and out of parliament to introduce a new Constitution acceptable to all communities.

The government was warned of dire consequences of unilateral efforts to enact 20th Amendment that would deliver a knockout blow to democratic way of life. Dr. Senaratne alleged that President Gotabaya Rajapaksa’s recent declaration that public servants should accept his verbal directives as circulars, signaled an extremely dangerous trend.

MP Mano Ganesan said that the urgent requirement today was to address the national question. Declaring that the national issue couldn’t be addressed by enacting the 20th Amendment, he urged the government to abandon the project. Instead of 20th Amendment, the government should initiate immediate action to bring in a new Constitution, he added.

Among those present on the occasion were civil society activists Constitutional Council member Javid Yusuf and Prof. Rohan Samarajeeva.

The Opposition fiercely attacked the SLPP bid to do away with State auditing process. “How could the SLPP justify abolishing the audit process?” MP Ganesan asked, claiming that many government members were disappointed at the way the ruling party handled the 20th Amendment. Opposition speakers insisted the SLPP couldn’t justify 20th Amendment by claiming the 19th Amendment had been introduced to keep the Rajapaksas at bay.

The NMSJ said that it was ready to lead a high profile campaign similar to the one which had paved the way for the change of government in 2015. The NMSJ said that the SLPP shouldn’t misrepresent the mandates it received at presidential and parliamentary polls, in Nov 2019 and Aug 2020 to bring about a dictatorship.

 

Political Prudence Versus Constitutional Jurisprudence

By Mass L. Usuf –SEPTEMBER 28, 2020

Mass Usuf

“Every man interested with power is apt to abuse it, and to carry his authority as far it will go” ~ Montesquieu, The Spirit of the Laws

The dissection of the 20th amendment bill is already in the public domain. This write up is not another addition to that. The purpose of this column is to appeal to the conscience of the politicians. Some may laugh. Never mind. 

It is natural in every society for there to be no general agreement in all matters. At the time of the abolition of Slavery in the United States, there were many who still supported slavery. Prudent politicians with a minimum of social conscience, self-integrity and morality should be able to see and judge the value of the 20th amendment to the country and its future.  

The challenge that the 20th amendment presents rests more on principled politics and less on juridical intervention. The thin line defining the judicial challenge of this bill is divided between a requirement to go for a referendum or passage of the bill by a 2/3rd majority. If there is a clause or clauses in the proposed amendment which require a referendum, the easy way out is to remove that impediment and pass the rest by the stipulated majority. The judiciary cannot do much. The government claims it has the 2/3rd majority. Therefore, it is a matter of principled politics (a rare commodity but need to be said) that has to be engaged in for the greater benefit of the country and its people. Since the legislators are answerable to the people who elected them, the burden is on the people who must influence their representative either way.

Social Contract

Sovereignty of the people means government by the people, vide Article 3 of the constitution. For this, there has to be system of governance. To facilitate the running of the government, the constitutional document has laid down the directives, structures, procedures and limitations. People cannot be directly involved in the state operations. Therefore, the exercise of the sovereignty of the people is affected by the three vital structural organs as stated in Article 4 namely the Legislature, Executive and, the Judiciary. The constitution is the social contract by which the people in a country are governed.

By this process, the functioning of the governmental organs and their respective subsidiaries can be monitored for efficiency, performance, corruption, abuse of authority and so on. It is said that “The Constitution is not just a set of discrete political decisions allocating power in different ways but a system of principle.” (Jurisprudence and Constitutional law, Encyclopedia). While traditionally what is scrutinized is the efficiency and performance of the institutions, judicial thinking has furthered the notion of ‘exercise of the people’s sovereignty’ in governance. It has been stated that in the context of the modern world and expansion of divergent interests, part of the scrutiny and monitoring procedures must include even the ‘non-performance’ or ‘omission to act’.  

The following observation was made in the Supreme Court of India in this regard. “… traditionally the checks and balances dimension were only associated with governmental excesses and violations. But in today’s world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. (Dr. Ashwini Kumar vs Union of India Ministry of Home (619, para 83) (2019).

Two Options for Politicians

The Supreme Court of India has clearly articulated the urgent need to enlarge the field of checks and balance. Remember, this is a new addition to the scope of checks and balances, despite having several limitations already in place.  The judicial willingness to expand the embrace of modern constitutional jurisprudence to greater transparency, accountability and dispersal of power is a positive development. What is the role of our politicians in keeping with this change vis a vis the 20th amendment? They have two options to choose from. Firstly, the progressive approach.  Secondly, the retrogressive path.

The progressive approach is in harmony with the above interpretation of constitutional restrictions. Taking cognizance of the urgent need to enlarge the scope of restrictions even to include the oversight functions of inaction (a case in point may be the inaction prior to the Easter Sunday attack). If there are shortcomings in the 19th amendment, it is suggested to make changes to ensure its administration, implementation and co-ordination efficient. The integrity on limitations in the 19th amendment is not to be rewritten in a manner which will lose its purpose and compromise the sovereign intent.

The retrogressive path is to revert to arbitrary rule and unchecked authoritarianism behind the façade of democracy. This can be done by removing, as is seen in the bill, the in-built limitations and the checks and balances which are already in place. Thereby, weakening the supervisory role of the institutions specifically designed to prevent abuse of power and authority. These institutions were created to establish an environment free from fear, threats and intimidation so that the Police, Public Servants and the Judiciary can do their respective tasks without interference. Learned Jurists have opined that “separation of powers should not be understood as a pure instrument of restraining political power. It is also an instrument that constitutes this power.” 

Concentration of Power

The elected members of parliament, the Prime Minister and the President must appreciate that they are the government. They must recognize that although they wield power and authority, they may be perceived as the agent or fiduciary of the sovereign people. Therefore, the exercise of powers of government have to be within the parameters guaranteeing the protection of a constitutional democracy. Moreover, safeguarding the trust reposed on them by the people.  

The problem is, unified authority under one single Office introduces the risk of tyranny and potential abuse of power. The solution for this is the dispersal of power in a workable format and not the extreme action of effectively removing the existing checks and balances. Prof. Aileen Kavanagh, is of the view that ‘if the sole purpose is to ensure that powers are checked and monitored, then we can satisfy this goal by putting institutional checks in place, without worrying about the basis of the original power-allocation.’ (The Constitutional Separation of Powers, Oxford Law Faculty). Beginning from Montesquieu, the emphasis to avert the concentration of power has today become part of the principles of constitutional jurisprudence.  In the inspiring words of Statesman and Philosopher James Madison, “In order to avert the risk of abuse of power we must ‘so contrive the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places:” (‘No. 51; in C. Rossiter (ed), The Federalist Papers).

Constitutional Obligations

Though not justiciable, look at some of the Directive Principles in the Sri Lankan Constitution in Chapter VI. Article 27 (1) refers to ‘laws and policies’ that will guide the establishment of a ‘just and free society’.  How can this be achieved under the proposed bill? For example, the President has the power to directly make appointments to the Human Rights Commission of Sri Lanka and the Commission to Investigate Allegations of Bribery or Corruption. Will the Commissioners feel free and independent to inquire into any complaints involving the government or officials close to the authorities?

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