19 September, 2018

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20th Amendment? Probably Too Late & Confused

By Laksiri Fernando

Dr. Laksiri Fernando

What is categorically defective in the 19thAmendment is that it failed to rationally demarcate the powers between the President and the Prime Minister/Cabinet, or in other words, the State and the Government (the links included). We have this conundrum at present.

The 19thAmendment created an ambiguity by retaining the President as the Head of Government while curtailing most of the functional powers. Some of the powers were handed over to the PM, but not fully. President is responsible for the government, but no power to remove the Prime Minister clearly. The President however has many other powers to control or even ‘manipulate’ the ministerial portfolios and their assignments with or without the consent of the PM.

It is these ambiguities and logjam that has created largely the inefficiency of the present government in addition to policy defects/inadequacies and political party and personality rivalries within the coalition. The coalition has largely disintegrated today.

Probably Too Late?  

Therefore, if the intention of the 20th Amendment is to correct that ambiguity, it is logical, but too late. It is unlikely to receive consensus among main political parties for a major constitutional change towards the end of a parliamentary term. The aborted new constitution in August 2000 is one example. There is barely 18 months left for the next presidential election. The election preparations have already started.

It is not clear why the JVP or those who realized that there were major ambiguities in the 19thAmendment didn’t attempt to bring the 20thAmendment before. There can be a lame excuse that when the 19thAmendment was brought in, the government didn’t have the required two thirds majority. But this cannot be said after the parliamentary elections and after the coalition agreement between the UNP and the SLFP. It can be argued that the President and the SLFP didn’t like further curtailment of powers. But there is no proof. There were no known efforts on the part of the JVP or the constitutional reform advocates to bring a further amendment/s sooner.

The proposed constitutional change therefore is like trying to close the stable after the horse has bolted. It requires a two thirds majority in Parliament and then a referendum. Although the JVP is arguing that it might be passed only through parliament without a referendum that cannot be the case. A fundamental change to the constitution which affects the sovereignty of the people in respect of electing the President has to be endorsed by the people. It is wishful thinking to think otherwise.

To Prevent GR?    

It is also argued that the 20thAmendment is the surest way of preventing a person like Gotabaya Rajapaksa winning the next presidential election and grabbing power to be an all-powerful executive president again. It is true that even after the 19thAmendment, given the ambiguities so far exposed, that a person like GR could grab all powers and revert back to the full executive presidential system.

Even on that count it is too late now and in any way that is not the way constitutional reforms should be proposed. Constitutions should not be changed to suit or deprive personalities. This has been one of the curses of constitutional making in Sri Lanka since 1978 including the 19thAmendment. There can be other ways of preventing GR coming into power and those have to be political and not constitutional.

It has been proved correct that when the state power and the government power are concentrated in one person or institution that tends to be abused. In developed democracies the state power is highly institutionalized and therefore even under a presidential system, democracy is fairly safe. However in underdeveloped democracies, when these two powers and institutions become combined, the abuse and authoritarianism emerge. This is the experience in Sri Lanka in addition to countries like Russia.

JVP Proposal?  

The problem of constitutional reform at present is fundamentally rests on how to demarcate these two powers, the State and Government. The question of the Head of State is only one aspect.

There is no question that the 20thAmendment apparently has a clear answer to this problem while the 19thAmendment failed to do so. However, the question is whether that is the correct answer. The JVP answer is to subordinate the Head of State to the elected Parliament. This was not the case even under the 1972 constitution. The amendment proposes that after a parliament is elected, the Members of Parliament elect a President who should not be political. By proposing such, the JVP has shown  a peculiar kind of republicanism bordering on anarchism.

Although the appointed person might not be ‘political’ according to the JVP proposal, he/she can be susceptible to political manoeuvres by political parties and politicians. The JVP apparently has a liking for cultivating ‘independent’ personalities close to their policies. Even at the last parliamentary elections, they nominated some independent personalities as national list candidates. This thinking is there in the JVP proposal, although the proposed President is elected by the whole Parliament.

Judging by the experience, one could wonder however whether something similar would happen to such an elected President like what happened to Chandrasiri Mayadunne after the last parliamentary elections?

It is true that the present JVP proposal is not completely on those lines, but on the lines of the Indian constitution, particularly after the 42ndAmendment in 1976. Indian President is the Head of the State, but not the Head of the Executive today. It is like the British Monarch with only symbolic value and functions. But this is only one model. There can be other models or reasoning how to institutionalize a Head of State and what would be the functions.

Past Lessons

As we all know, all present day states evolved on the basis of past monarchies, continuously or with discontinuities. Unfortunately no state has evolved on the basis of ancient republics which were limited and rare. British monarchy might be the best example for the general evolution. It has evolved finally into a symbolic Head of State.

When America broke away from the British monarchy, it combined the executive as well as the governmental power in the elected President. In other words, it brought about the system we know as the presidential system but with checks and balances. When Ireland broke away from the British monarchy, it opted for parliamentary democracy but elected the President as the Head of State. That is a different model.

In Sri Lanka, when we finally broke away from the British monarchy, we remained as a parliamentary democracy then the Head of State was appointed by the Prime Minister. But this didn’t last for long and we opted for a Presidential system, without much checks or balances. In addition to the lack of checks and balances, the people by and large wanted to go back to the Westminster system nostalgically. But it is not clear whether the people completely wants to give up electing their President or not.

Any Worth of the Presidency? 

The JVP has argued that almost all parties and leaders have promised the abolition of the presidential system. But they have always hesitated to do so. Power is the popular explanation for this hesitation. However, it is not only the incumbents and aspirants who have hesitated to totally abolish the system, but there are different views on the subject from different quarters. No one has done a proper public opinion survey. While there are valid criticisms, there are also some liking for the institution.

Therefore, the best consensus would be on a middle path so to say. Why not allow the people to elect their own Head of State? It is more democratic than a President elected by the Parliament. Even in India, the President is not elected by the house of representatives alone but by an electoral college composed of both houses, upper and lower. It is more democratic than what is now proposed.

An elected President is the only person whom all communities and all sections of society can elect collectively. From the past experiences, this is the most tangible national institution that the minorities can influence. Abolition of the popularly elected president would possibly succumb to majoritarianism.

Of course the elected President should not be the Head of the Government. The President should represent the State and the nation. The Prime Minister and the Cabinet should handle the day to day governance or the Government. Nevertheless, there can be some executive functions or responsibilities that an elected President could handle. Those can be limited to:

1. National Security.

2. National Reconciliation.

3. Provincial Councils.

4. Anti-Corruption.

On these matters, the President should be answerable and responsible to the Parliament and should coordinate with the Prime Minister and the Cabinet. Sri Lanka desperately needs cooperative governance.

If to Avoid a Reversal?  

There can be many worthwhile suggestions in the JVP proposal in reducing the excessive powers or unnecessary functions of the President even as the Head of State. No one can figure why when a Deputy Speaker resigns he/she should inform the President for that resignation to be effective as it was required recently! However those detail rectifications could be postponed to the future.

If the intention of the proposed 20thAmendment is to prevent a reversal back to the oppressive Presidential system under an undesirable person getting elected in 2019, the effort is too late and that is also not the way to go about constitutional reforms. A common democratic candidate might be the best way to prevent such an eventuality.

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Latest comments

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    The 20th amendment is “I said so thingy” for future use.
    PS: The coalition governments shows that a mixed team has checks and balances. Took us nearly to stumble on this enlightenment!

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      Prof. Laksiri:
      US Citizen Gota. is CIA’ and Trump’s great asset in Lanka! His family and bank accounts are in LA.. JVP should know this!
      Why do you think US citizen Gota set up Avant Guard – also to gun run from Israel and Ukraine, and privatized SL Navy’s most lucrative Indian Ocean marine security operation which brought income for cash strapped SL Govt?
      Avant Guard is a SL National Security scam on the behest of Gota’sUS CIA handellers who also took Lanka to UNHRC for “war crimes”, to keep Manchurian Candidate Gota in Line! What a game! JVP will like this..

      JVP is stupid, to try this to stop Gota!

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    1. National Security.

    2. National Reconciliation.

    3. Provincial Councils.

    4. Anti-Corruption.

    This is how the Sinhala intellectuals defeat themselves. The above is not put together with any kind of thoughts and worse than 19A. The 4th is completely out of context here. There is an Independent Bribery Commission to look after the Bribery. When one political man /woman control this commission, right away its independency is gone. It would, in that case, better to dissolving the commission and appointing a Minister would function better than President controlling it. A minister is answerable to cabinet and thus to parliament. In US, all the ministries are under President. This should collide with Congress and should become dysfunctional. But their political maturity is avoiding that kind of problems practically happening. Another example is any senators can filibuster the bills if there is no 60:40. But the party leaders get together and avoid any filibustering. So even though there is a loophole, they while maintaining the democracy, still are keeping out the chaos.
    Other than the defective 4th one, all others are shortcuts to control Tamils. Even a country like India, which is with constant war threat from Pakistan and China, has left National security to with a defense minister. But the Learned professor, like as he earlier too advocated in his book, designing techniques to control Tamils. In all multi ethnic communities there is nothing as Reconciliation President but as the equal rights. I am not a constitutional expert. But after 10 years end of the war, suggesting a Reconciliation President is really cheating on minority matters. In US the affirmative Action laws were many times suggested by Presidents offices, but all Laws were passed by the congress. Now the provincial councils are managed by EP. But when the EP is removed, either they have to be independent or Managed by respective Central government Ministers. Otherwise, it is going to be managed by two masters of the central government or no one is responsible for the PCs, i.e. neither PC ministers nor central government is responsible answering to people.

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      Mallaiyuran,
      You begin by referring to ‘Sinhala intellectuals’ and goes on to say that my proposals are ‘shortcuts to control Tamils.’ This is unfortunate, to say the least. Multi-ethnic societies do not necessarily need Presidents to handle reconciliation, but in Sri Lanka’s case reconciliation has become a national priority because of the past civil war and the issues created. All minorities should be happy to have an elected President in charge of (1) national security (2) national reconciliation and (3) provincial councils where they can have a major say in electing such a person. The minority parties can easily negotiate with such an elected President than Ministers in a majoritarian government, elected in different constituencies.

      By Anti-corruption, I am not implying that the present independent commission should be under the President or it should be abolished. In respect of corruption, there are several tasks and the present commission primarily handles investigations leading to prosecution. An elected President can have overall supervision and particularly strategic preventive measures. It is a check on the government, administration and even the corruption in the private sector.

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        Only in Colombo Telegraph Dr Laksiri Fernando can find space for his regular quasi -intellectual long-winded, nonsensical diatribes. He, of course, has time and again showed no pretence on his bias to the current government’s neoliberal policies dictated by IMF and the neocolonialist yankees.
        Besides, his logic and reasoning are lopsided and lack depth or a coherent message.
        No student of political science or sociology will be wiser after reading this.

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        LF,

        1). First thing, when an independent commission is installed, a higher authority should not try to tweak into that. Period. That is how 17A went dead. What practically happened with 19A is New King fired director Dilrukshi. Later he said some people were come by the other way when he had stopped all legal action against War Crime Accused, but defused all that techniques. It was taken as he was referring Lasantha Thajudeen like cases. Constitution has to be in few pages, without ambiguities and authorities respect each other in practice. Repeated word here again and again is UK doesn’t have a formal constitution.

        2). EP introduced in Lankawe is not reconciling with Tamils. Never used in that way. The removal of EP is opposed by those who oppose are not seeking reconciliation but only trying to ensure if another war start, a president will have power to wipe out another 150,000. Writers, when they write they should be honest. India is having continuous war in many states. They are still going with PM. Britain set example how to reconcile, in Ireland and it is with PM. PM Cameron promised referendum to Scots and implement at great personal loss for him. His sacrifice brought reconciliation and referendum was defeated.

        3). The minority parties can easily negotiate with such an elected President than Ministers in a majoritarian government, elected in different constituencies.
        Can this be further elaborated with examples from 1948 with negotiations went with PMs of Don Stephen, Solomon West Ridgeway Dias, Dudley Senanayaka, Sirimavo, Junius Richard, and elected presidents Junius Richard, Richard P. Chandrika Kumaratunga, Percy, Mercenary Albert’s son New King. Only two PMs, SRWD and Dudley gave a bit to at least to negotiate. Old King took Sampanthar in and physically threatened him. Why Ranil replaced Mangala with Tilak from FAM? Is that because Mangala gave troubles in UNHRC and Tilak directly coming under New King going easy? What a gimmick to say it is easy to negotiate with EP instead of ministers when they all are hell bent on destroying Tamils?

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    “If to Avoid a Reversal? “
    “A common democratic candidate might be the best way to prevent such an eventuality.”
    Any suggestions Laksiri?…….. I’ve got one for you. That will be the ‘Maithree Buddha’, none before that.

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    Dr Laksiri F
    The main argument raised against the JVP proposal is it is silent on the 13A. Will this lead to a free floating 13A without presidential override as many fear. Your valuable opinion is solicited.
    Soma

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      Soma,
      To be fair, the JVP proposal is not silent on the provincial councils or 13A. What they say is the present powers/functions should be with the President but elected by Parliament. The counter argument put forward is that those would be ineffective/ambiguous, under a mere nominal President. However, it is true that the JVP proposal is weak on this point.

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    Is UNP, I mean Twentieth century Fox Ranil W interested in abolishing EP? I don’t think so.
    Soma

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    Some commenters here still address the seventy year old grievance with a frozen mind. Will might-repairs do?
    I share Laksiri’s line of thinking for a different reason. Unlike some one-eyed, I can feel the rough ride. A coalition seems to have some semblance of checks and balances which may turn out to be our saviour. OR do we want the SLPP language/religion-divide and one man rule?

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    Ranil may get interested in abolishing EP only if it will destroy Tamils. Ranil refused to counter the Slap Party motto of “You want one country or you want two countries” in the LG election only because he wanted to teach a lesson to UNHRC. He set up the Constitutional Steering Committee draft to come at that time and he fixed the election following the report. These all are happing publicly; they don’t attempt to hide these. Setting election in this manner put Ranil into hell of troubles. But he sacrificed his election victory to defeat Tamils in UNHRC.

    (Our talks cannot be interpreted as against or for EP. In our talks simply we tell we don’t believe Lankawe politics and thus we don’t want to do anything with them. As we are a nationality with state, we have the right to go on out path. Lankawe offered to China many benefits to secure the veto in UN SC. We don’t have anything in our hand to give countries to enter in our favor. Britain, hoping to get Trinco harbor, made constitution o Sinhalese favor. Britain did know Pakistani Muslims are not the original inhabitants of that land. But it created a country for them. In Lankawe, Tamils and Muslims are one race. In Bangladesh West and East was one nation. But Britain split it. China denying extracting favors to help keep Tamils suppressed. If Lankawe War crime accusation considered sending to ICC, China will be using Veto; this only because China wants to enjoy continued pampering from Lankawe. Other than that by Land connection, by Language, by trade relation, by religion, by political aspects China and Lankawe are not connected.)

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    I am commenting late; but, I am not late to comment. Seldom do I find Laksiri Fernando’s articles inspiring; even less, exciting. Yet, I read it a little while ago because it is on 20th Amendment.
    *
    Sri Lanka has no desire to make the RIGHT Constitution. Proof. What are amendments? Amendments are second thoughts!
    *
    Why do our Constitutions fail us. Answer. Simple. Our politicians have priorities that supersede a good and effective Constitution.
    *
    Now, let me go to Dr. Laksiri Fernando. He is of the opinion that the inefficiency of the present government is due to the defects in the 19th Amendment. He declares that it is good to correcting that ambiguity but it is too late. He surmises that it is unlikely to receive consensus of the main political parties when barely 18 months is left for the next presidential election.
    *
    Has Dr. Laksiri Fernando pointed out what the defects in the 19th Amendment are, at any time prior.
    Isn’t his view that the timing of the next presidential election should be factored in in introducing changes to the Constitution speaks of the priorities of our parliamentarians. Will those priorities be ever different?
    *
    Now on, ‘The proposed constitutional change therefore is like trying to close the stable after the horse has bolted’. There was no horse ever Dr. Laksiri Fernando, there was never a horse in that barn!

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    Comment of Mr Nathan,
    JVP was born anarchist political roots of by that Wijeweera and click by childish mentality of lift-wing political of terrorism in 1965 . It was Party of anti- Establishment of political extremism not that working on that of democratic stage of Ceylon.
    JVP has been replace bullets that instead of ballot against will of People’s sovereignty of democracy norms accepted by ruling classes in Island. JVP launch two armed revolts in 1971 April lost of life 15,000 thousands of youth and then second revolts was 1988/89/90 lost of life was over 70,000 thousands or more.
    No accountability which that claim by AI Or Asia Watch Or UNO -Human Rights Commission in Geneva since last 50 odd years.
    Even that JVP not made single comment of lost of life and their accountability has been not address by current JVP leaders or past leaders at any time! Dead bodies has been buried without honor of Normal funeral cernormany by JVP or Other as well.
    The such political party seek 20th amendment of change that Presidential power for more democracy governances in Lanka? JVP want discard power of President system and give more powers to Parliament members of chamber!
    Is that illusion of constitutional change politically advocated by JVP leadership .This childishly of political extremism of that helpless formulation by JVP outbreak of that corrupted governess of regime change in 2015 January 8th? There want be any form of “democracy” for the people even you proposal been accepted by UNP, SLFP, TNA or SLLP MC JHU in Island time being ?
    Last 70 years look-back that it is still democracy is Weak ,People are Voiceless, that Constitution of Republic is not working at all in every two Monsoons!@

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