By Rajiva Wijesinha –
Reconciliation: Looking Forward Xiii – Constitutional Irresponsibility
I have noted previously that I think the 18th amendment is a vast improvement on the 17th. Interestingly, when I first began explaining my views on the 17th amendment, there was little comprehension amongst Sri Lankans about my fundamental objection, that it was inappropriate for an elected Head of Government who was also head of State to simply rubber stamp appointments recommended by another body, let alone a nominated one.
This was understood immediately however by the Canadian Senator who visited us in I think 2007 on behalf of the IPU. I suppose it could be argued that attention to process and constitutional consistency is unnecessary, and whatever works is acceptable, but I fear that such an approach leads to problems – as with our confusion of an Executive Presidency with a Westminster style Cabinet – and it is tragic that we continue to suffer the consequences without understanding the reasons.
I should add though that the 18th amendment has its flaws, just as the Local Government Elections Bill had. In both cases however there was such an improvement on what we had had before, that I did not think we should have allowed the perfect to be the enemy of the good.
What I did not anticipate was the sheer contempt with which the opposition would treat the Constitution as amended. I suppose this is not surprising from a party that voted so consistently to subvert the Constitution it had introduced, through the first and second and abortive third amendments, but it is surprising that no one has drawn attention to the irresponsibility with which the UNP has treated the provisions that provide some sort of check on the absolute power of the President to make appointments to important positions.
I have expressed regrets about Mr Sumanthiran’s refusal to accept appointment to the Parliamentary Council created by the 18th Amendment because I believe he could contribute a lot in a small and serious Committee – as I saw when he and I served on the Committee to amend Standing Orders. He would have been both forthright and polite in comments he would have made in the Council on nominees put forward, and if government had reciprocated, there could have been rethinking in cases of obvious unsuitability.
The purpose of such a Council is not, I should add, to select persons to appoint, but to advise on the suitability of those selected by the Executive. Experienced Parliamentarians such as the government representatives on the Council would surely have understood this and worked in a positive way to avoid embarrassment to the government from unsuitable persons. Indeed it is conceivable that, had Mr Sumanthiran served on the Council along with the Leader of the Opposition, Mrs Bandaranayake would never have been appointed Chief Justice.
Mr Sumanthiran at least refused appointment. The Leader of the Opposition and Mr Swaminathan, having accepted, have completely abandoned the responsibilities they are committed to fulfil. Had they commented conscientiously on any nominees – as government representatives too are bound to do – the President would then have an obligation to reconsider.
When there is no system of review, the President would usually go ahead with appointment of those who first come to mind. It is also more difficult for him to refuse requests, whereas if he could say that those importuning him might be adversely commented upon by the Council, and that would cause embarrassment, he could tactfully turn down those to whom he might otherwise feel obliged.
That is one reason why we need checks and balances, but unfortunately the Parliamentary Council, boycotted by the Opposition, does not serve any purpose. The responsibility for that lies totally with the UNP, but on that matter too they have escaped scrutiny, let alone criticism.
justice / January 30, 2013
There was the instance of an ‘ambassador aspirant’ who was interviewed by a few members of the Committee on High Posts,on a day when a meeting of the committee was NOT scheduled, and approved for the post.
The guy was a tea taster who became a tea trader which business he is allowed to carry on even now,while being ambassador.
He hires outsiders to write reports on behalf of the government and his own embassy,as he does not have not the ability to write them himself.
His appointment was headlined as a ‘Diplomatic Disaster’ by a popular sunday paper,and he remains one even now.
With cancellation of the 17th,by the 18th amendment,persons unfit for High Posts are now approved by the three members of the ruling party in the Constitutional Council of five members.
This is big farce, and, a part of the 18th amendment.
Rajeeva W approves this!!!!
Maybe he looks forward to one such appointment in the future !!!
Ramani Nanayakkara / January 30, 2013
//I have noted previously that I think the 18th amendment is a vast improvement on the 17th. Interestingly, when I first began explaining my views on the 17th amendment, there was little comprehension amongst Sri Lankans about my fundamental objection, that it was inappropriate for an elected Head of Government who was also head of State to simply rubber stamp appointments recommended by another body, let alone a nominated one.//
Indeed, it is faaaaar more appropriate, nutty professor for the executive, under the 18th to have SOLE jurisdiction over all appointments. So much more democratic than the 17th Amendment appointed Constitutional Council.
prasad abeysinghe - Sydney / January 30, 2013
Rajiva says: “The purpose of such a Council is not, I should add, to select persons to appoint, but to advise on the suitability of those selected by the Executive.”
We have no doubt that the President who ignored the constitution to impeach Ms Bandaranayake will have the utmost respect for the advise of a toothless parliamentary council.
Easton Scott / January 30, 2013
This chap seems to be once again sitting on the fence, after having abstained from voting (rather than vote ‘no’) to impeach the CJ. Now, he is saying that the 18th amendment is ‘a vast improvement’ on the 17th (I suppose to curry favour with the powers that be) and is having a go at the UNP (blessed as it has been for so long by a total incompetent as a leader; thereby setting himself up for one of those much yearned for ‘high posts’ as “justice” has stated!!!).
He is a disgrace to academia and should be ashamed of himself for his pathetic track record of self-aggrandising behaviour.
Jayantha / January 30, 2013
I think you know how 18th amendment was passed in the parliament.If I jot down a few such as….
First, it was due to two third majority in the parliament.
Second, it was due to ex.CJ Sarath N. Silva’s forced influence on newly appointed CJ Shirani Bandaranayake to pass the 18th amendment.
Third, Soon after winning the LTTE war MARA was in a stronger position both with Public and the Parliament which gave MR more powers to introduce 18th amendment.
Fourth, in order to face UN war crimes MR was looking additional powers and while obtaining additional presidential powers with the 18th Amendment, MR also included president for life,oppostion MP’s to cross over and obtain Ministry posts,police powers, judiciary, press freedom,prisons, freedom of speech, unreasonable arrests all under taken under President and for him to get away from war actorities locally etc…Please see following web.
Now the monster has woken with evil powers appointing unlimited number of Ministers and creating phony ministries when ever he wants.
The recent appointment of phony cabinet ministers and sub ministers cost 400 million rupees addition to already burdened taxpayer.
While every ministry run by ministers who have absolutely no knowledge at all creating billions of rupees of losses every month…..the more phony ministers MARA create….the more additional burden to already burdened tax payers.
All these corporations would not have made these colossal losses if these ministers are not there.
It’s time Prof.Wijesingha talk about this issue in Parliament where not only world’s biggest parliament in the world, but also the worlds biggest loss making corporations that are run by these so called uneder eucated political Goons.
Piranha / January 30, 2013
This man has lost his marbles.
The amount of power endowed on Rajapaksa by the 18th amendment to the constitution can never be good for the country or its people. Rajapaksa is using it to his very own benefit and to the detriment of the country and its people. Rajiva supported it and has seen the results of it but refuses to say he was wrong. He may be educated but appears to be an educated fool.
Silva / January 30, 2013
What a load of rotten ..
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kamal nissanka / January 30, 2013
I opposed in the Liberal Party Party Committee meeting the unlimited opportunities of a “Sri Lankan President” to contest for Presidential Election paving the way for Mr M. Rajapakse to contest the next Presidential election.
I have keenly followed why this is restricted in advanced democracies.
This debate has not evolved in our political discourse.
The idea of a “Constitutional Council” was first introduced by Dr Chanaka Amaratunga in late 1980’s. Later the idea was loosely discussed at the All Party Conference” initiated by Mr R. Premadasa in early 1990’s pioneered by the Liberal Party delegation.( Mr Tyrone Fernando(UNP) admitted this later at a TV discussion)
However when UNP and later the JVP had grabbed the idea both these parties did not have the advice of an erudite political scientist. (Lawyers alone can not understand ups and downs of a polity). Both these parties poor in ideology quickly took steps to introduce the 17th amendment which lacked the prescriptions of an accepted political scientist.Once introduced it created lots of problems. In some instances important appointments were delayed as there was no agreement in the council. Election Commissioner had no way out to retire himself.
In ” Law of Interpretations” there is a principle that an “Act must be interpreted in totality” to understand the intention of the Legislature”. Rajiva in his article here has only dealt with one aspect. I genuinely feel that the opportunity allowed MR to contest in the next Presidential Election and further while remaining in the seat
is so much bad for the country though it is beneficial for the family.
Park / January 30, 2013
Parliamentary committees are only there to hoodwink the world and the masses. This is just a delaying tactic of the President. Every time there is international pressure or significant local pressure a committee is appointed. Only those recommendations from these committees that are beneficial to the President are implemented others are just forgotten. What a sham.
Peter / January 31, 2013
Another example of waffle from the master hypocrite. Stop wasting your time – you have exposed yourself ages ago, and the picture is hideous!
Don Quixote / January 31, 2013
Welcome back with another column of balderdash ! I guess you were worried there for while but you must have got your old man to speak to his protege’ , Mara and shape things up.
What a waste of a life !
Srikrishna / January 31, 2013
Rajiv! you are correct,” that it was inappropriate for an elected Head of Government who was also head of State to simply rubber stamp appointments recommended by another body, let alone a nominated one.
The replacement of Constitutional Council with the Parliamentary council is also an appropriate move for reasons adduced by you in the above article.
However there is no reason for allowing the President to contest any number of times for the Presidency.
Even the two-six year terms is too much-two four year terms is much more desirable as in the US.
Rajiv why are you silent on this issue in the same 18A?
Truth / January 31, 2013
Rajiva, you know very well that the Supreme Court was influenced to pass the 18th Amendment, which is the beginning of the end of Democracy in Sri Lanka. It was also the beginning of the realisation by the judges of the Supreme Court and the Appeal Court that they should not descend to the level of sycophants in the parliament, to make the judiciary subservient to the Executive. It is better for you to say that Democracy has been an impediment to the rapid economic growth and justify the end of Democracy in Sri Lanka than blame UNP for this sad state of affairs.
Saman Wijesiri / January 31, 2013
To say that the 18th Amendment is an improvement on the 17th Amendment this professor must have gone raving mad! Or is he trying to warm his way into the Lokka’s graces?
ari / February 2, 2013
You are so intelligent but act like very naive.Take one point in the 18th amendment,the clause that president can contest more than 2 terms.Do you agree for this?Simple yes or NO…Even Bank Manager is not allowed to sit in one branch more than certain number of years cause of the power base he can expand for himself which can easily be lead to corruption.There are reason why these rules are there all over civilized world.Let alone a president who hold election with all the powers vested on him including the police,Army,election commission and name it all.Our so called intelligent people like Gamini Disanayake, Lalith Atulatmudali made a monster out of JRJ by voting for the presidential system.Now you talk about improvement in the 18th amendment.please get your promotion in any way you want but do not betray the country you are born to..
Jayantha / February 2, 2013
Could you please explain the following sentence you wrote.
“When there is no system of review, the President would usually go ahead with appointment of those who first come to mind. It is also more difficult for him to refuse requests, whereas if he could say that those importuning him might be adversely commented upon by the Council, and that would cause embarrassment, he could tactfully turn down those to whom he might otherwise feel obliged”.
What I gather from above is, when President is sleeping….suddenly someone comes to his mind…..or some new ministry, a minister or a deputy minister’s post that comes into his mind……..and he goes ahead and create one, similar to the Minister of Sugar he created.
How do you know if this minister of Sugar is another “Andrae” who finished eating coir mat full of sugar deceiving the King.
How does this pissu hu…a good for nothing MARA President know which minister is good for which Ministry…….Also you say that it is difficult for him to refuse a request. That menas he is more concern on pleasing a party goon than thinking of the benefit to the country and it’s people.
Take my word very soon this hambanthota Gas gem…ba will ruin our country and it’s economy to the bone.
Already people are walking like brethless skelletons and very soon will start dying in streets while this Gas bem…..ba and his parliament crooks ever getting fat eating loads and loads of Peoples blood sugar at the expense of poor people and tax payers money.
While I am a Sinhalese I feel that British did a mistake by handing over the governance of the country to ever uneducated uncultured bunch of Sinhala thieves of politicians when they gave Independence.
I demand that British should take over Sri Lanka and give it only to educated and qualified professionals equally from all communities, so the false Sinhela hora gas gem….bas could no longer govern according to the way they want.
The ever invalid ala….paluwa do nothing Prime Minister is doing what……other than while doing nothing, getting the biggest paycheck.
Also UNP leader Ranil Wickremasinghe should get into road and should go to each lane, road, village, town and all communities while holding meetings to get peoples vote for next election.
Ranil mama’s boy has to get his arse into the road from his air conditioned party headquarters and the parliament and onto the road to win next election as the way he said during last party convention.
Prof. Rajiv, please clarify on your above sentence and give me your thoughts on what I have written.
Lanka Liar / February 10, 2013
Prof there is a problem with meta data