Dr Jayampathy Wickramaratne PC
Is Going Back to 19A Sufficient? – Part II: Contradictions in 19A Must Be Resolved
The Nineteenth Amendment to the Constitution (19A), though now abolished, is an important milestone in our constitutional history. With the experiences under the Twentieth Amendment, there is growing support for going back to 19A.
President still powerful
The main changes made by 19A relevant to this discussion may be noted. The term of office of the President and the duration of Parliament were reduced to five from six years. The President could dissolve Parliament during the first four and a half years only if a two-thirds majority in Parliament requested a dissolution. The President appoints Ministers, Ministers who are not members of the Cabinet of Ministers, and Deputy Ministers on the advice of the Prime Minister. The President has no power to dismiss the Prime Minister. It is only Parliament that can remove the Prime Minister by rejecting the Statement of Government Policy or the Budget or passing a vote of no-confidence in the Government, resulting in the Cabinet of Ministers standing dissolved. The President shall not hold a Ministry. The incumbent President may assign to himself the subjects and functions of Defence, Mahaweli Development, and Environment and determine the Ministries to be in his charge for that purpose.
Despite reduced powers, the President remained quite powerful. He continued to be the Head of the Government and Head of the Cabinet of Ministers. The President would determine the number of Ministers and the Ministries and the assignment of subjects and functions to Ministers. In doing so, he would consult the Prime Minister only where he considered it to be necessary. He could also, at any time, change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Secretaries to Ministries would also be appointed by the President without any consultation.
Emulating Hanuman
During the period of his Presidency, Sirisena used his powers to the fullest, especially after 2016 when his relationship with Prime Minister Wickremesinghe had broken down. He even refused to appoint Ministers as advised by Wickremesinghe, the best-known case being his refusal to appoint Sarath Fonseka as Minister of Law and Order.
Several names for approval by the Constitutional Council were sent by President Sirisena without any consultation. He surprised the legal community when he recommended a Judge of the Court of Appeal to be appointed to the Supreme Court over several senior Judges. When Sirisena recommended his Additional Secretary (Legal) for appointment to the Court of Appeal, the Bar Association of Sri Lanka took the unprecedented step of writing to the Constitutional Council to say that “the higher Judiciary requires a blend of academic and professional career Judges” and urged the Council to consider nominees suggested by the Chief Justice and the Attorney General. The Constitutional Council wasted no time in refusing approval in both cases.
One need not recount in detail the constitutional crisis resulting from the unconstitutional removal of Prime Minister Wickremesinghe, the appointment of Mahinda Rajapakse in his place, and the dissolution of Parliament. When Rajapakse was defeated in Parliament, resulting in the Speaker not recognizing him anymore as Prime Minister, he did not budge mainly because he had the backing of the President. Then, 122 MPs challenged Rajapakse and his “Ministers” in the Court of Appeal on the ground that the Cabinet of Ministers stood dissolved, and the Court of Appeal issued an interim order restraining them from functioning. Meanwhile, the Supreme Court declared the dissolution of Parliament unconstitutional. Yet, Sirisena would not appoint Wickremesinghe as Prime Minister. It was only after the Supreme Court refused to stay the interim order of the Court of Appeal that Rajapakse “resigned”. Yet, Sirisena refused to appoint Wickremesinghe, in flagrant violation of the Constitution, instead offering Speaker Karu Jayasuriya and Sajith Premadasa the position. He finally relented and reinstated Wickremesinghe.
Sirisena was quoted as saying that if he had to go, he would go as Hanuman did, setting fire to Lanka. He almost did.
Competing powers at the apex of the State
The above shows that while 19A reduced the powers of the President, it also created two “competing centres of power at the apex of the State”, a phrase used by Dr. Colvin R. De Silva in the Constituent Assembly on 02 July 1971. Responding to the proposal made by J.R. Jayewardene that executive power be vested in a President directly elected by the people, Dr. De Silva warned against the danger of counterposing the Prime Minister chosen by the people who are sovereign against a President who is directly elected: “Let me put it directly and more strongly. You have the Prime Minister chosen by the people who are sovereign. Then, if you have a President, chosen also by the sovereign people directly through the exercise of a similar franchise, you have at the heart and apex of the State two powers counterposed to each other, each drawing its power from the same source, the sovereign people, but each drawing the power independent of the other.” No Constitution will be able to define adequately and satisfactorily the relationship between the two, he explained.
Apart from the personality traits of Sirisena and Wickremesinghe and the breakdown of relations between them, what contributed to the events described above was clearly what Dr. De Silva warned against, namely, the existence of two centres of power, both elected. Speaking in Parliament on 25 July 2019, the writer referred to Dr. De Silva’s warning and added that while what was happening was to be expected because of the competing powers of the President and the Prime Minister, the breakdown of relations of such magnitude was never envisaged. (Anti-government media distorted the speech to say that the writer had said that it was never expected that 19A would be so bad, but that is another matter.)
To go back to 19A as it was is to go back also to two competing powers at the heart and apex of the State. That would be the case to some extent even if we are to go back to the Draft 19A Bill (which provided that the President would act on the advice of the Prime Minister) because the President would still be directly elected. If not shackled by Sirisena’s undertaking to the JHU that no amendment necessitating a referendum would be presented, 19A would have provided for Sirisena to continue as President and the complete abolition of the Executive Presidency at the end of his term in 2020.
Resolving the contradiction
As to the form of government, whether it should be parliamentary, presidential, or semi-presidential, renowned political scientist Arend Lijphart states that in countries with ethnic and other cleavages, the choice should be based on the relative potential for power-sharing in the executive. He prefers a parliamentary system, which is a collegial decision-making body, to the presidential one-person executive. Presidential elections are necessarily majoritarian in nature, and the system encourages the politics of personality and overshadows the politics of competing parties and their programs. He considers semi-presidential systems to be only a slight improvement, and such a system can make an even more powerful President as has happened in France. In a parliamentary form of government, the head of the state should not be elected by popular vote but preferably by Parliament. A popularly elected President, even with limited powers, may be tempted to be an active political participant, claiming to have a direct mandate which even the Prime Minister does not have, potentially transforming the system to a semi-presidential one. (Arend Lijphart, ‘Constitutional Design for Divided Societies’ (2004) 15: 2 Journal of Democracy 96).
Thus, going back to 19A is clearly not sufficient. The inherent contradiction in 19A must be resolved in favour of Parliament, even if that would require a referendum to be held. A referendum is no doubt costly, but the political costs of retaining the Executive Presidency and that of going back to 19A without resolving its inherent contradictions are greater.
Related posts:
Is Going Back to 19A Sufficient? – Part I: The Legislative History of 19A
Captain Morgan / March 15, 2022
I had always known that our past president Sirisena was a truly rotten character but after reading this piece I came to know more about the extent of the mischief and damage he has caused to this country, both directly and indirectly. This man has always been an arsonist at heart and would have caused far more damage had it not been for the intervention of various bodies like the Supreme Court and the Constitutional Council.
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old codger / March 16, 2022
“He even refused to appoint Ministers as advised by Wickremesinghe, the best-known case being his refusal to appoint Sarath Fonseka as Minister of Law and Order.”
Those who blame Ranil for “not locking up the Rajapaksas ” can see who was really responsible. Ranil should have known better than to make such a slimeball President. Monkeys and razors…..
But our Sinhala Buddhists are capable of electing the Rajapaksa again. I am sure half the protesters at Galle Face yesterday voted for Gota. Those who vote knowingly for crooks aren’t victims but accomplices.
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Native Vedda / March 16, 2022
old codger
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“I am sure half the protesters at Galle Face yesterday voted for Gota.”
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I am sure half of those who voted for the clan will vote for them in the next elections.
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leelagemalli / March 17, 2022
Continuing,
Essential needs of the people were totally neglected. What a govt ?
It is high time to rewine and check how RW warned and made very clear that the govt has to go to IMF . Getting restructured the debts was his main proposal. President and cabinet ministers behaves as if they were blind and deaf.
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It is high time to rewine and check what Dr Harsha De Silva made every effor to convince Rajapakshe Wandibattaya aka Ajith Cabral about the need to asking the assitance of IMF….. how many times he repeated it in every public speeches he made to this nation
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5) Ironically, even if their LOVELY ones would be raped and murdered, yet today, Rajapakshes are not attacked by anyone – Not just RAJAPSKHES even whole lot of this nation are stupidier than appeared to be. This is the wonderland in entire world, where people s indifference is the highest.
6) What happend to the powerful – YELLOW PETS and ARTISTS in this country today ? They dont utter a single world in today’s context, because they were the ones MISLED the vulnerable in this country
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ABHAYATHISSA MUDALALI over to you, come out of your nest…. you the kind of fake monks and the other sons of bitches should take the responsiblity of today’s mess.
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Dinuk / March 15, 2022
Jayampathy, no one is interested in your useless constitutional proposal when the rupee is crashing and people have nothing to eat. Your proposals are meant to Divide, Distract and enable the US citizen Rajapaksa Brothers to form a National Government with US puppet Ranil of the UNP! We do not need US puppets running this country and selling it to Adani, Blackrock and other Hedge funds, nor do we need IMF fake advice and experts that have kept Sri Lanka a colony of the US and EU since 1948.
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Dinuk / March 15, 2022
Desperate times need creative thinking out of the Box Solutions. Send US citizens Goat and Basil back to LA!
Sri Lanka needs to Dump the US dollar – De-dollarize, rather than devalue the Lankan rupee against the USD and beggar the people and magnify the national debt. The USD is crashing as the US has printed 9 trillion in the past 2 years as “Covid Bailouts” and is the most indebted country on the planet – but asset striping in the global south using its Global Reserve Currency status .But the deeply unequal and colonial Euro-American Global financial and security order based on the USD as the Global Reserve Currency is collapsing fast. The war in Ukraine is surely its death knell. Hats off to Mr. Putin for fighting the Euro-American West that has colonize us for so many centuries! Mr. Putin is fighting for the Rest of the World and Global South that has been debt trapped and colonized, while valuable minerals and ocean resources are LOOTED by US_EU who promote Fake development though their Economic Hit Men.
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Native Vedda / March 15, 2022
Dinuk
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“Desperate times need creative thinking out of the Box Solutions. “
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Therefore consult Anuradhapura Gnana Akka (perhaps the female Rasputin) on a 24/7/52 basis.
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Plato / March 15, 2022
A very clear exposition of the negative features of the 19thA by Dr.JW.
Dr.Colvin.R.de Silva in his characteristic style has warned of the dangers of Competing Centres of Power at the Apex of the State way back in 1971.His prophesy was witnessed by the country in 2016 between Sirisena and RW elected President and the Prime Minister just one year into Yahapalanaya. True,there was a personality problem based on background. Sirisena was a Bumpkin and he could not stomach the ways the refined PM-Ranil.W..That of-course is another story.
Sirisena did end up like Hanuman setting fire to the people who elected him…………….
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Native Vedda / March 16, 2022
Plato
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Please listen to Weera who explains how ministers were insulted by the clan :
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https://www.youtube.com/watch?v=7LCMua8RKhs
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It is divide the ministries, marginalise and rule the clan’s …. carriers.
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Simon / March 15, 2022
There is no support for going back to the already abolished “19A”. It (19A) was weakened and made barren by both the then President MY3 and the then PM Ranil W with the backing of their lackeys in Parliament. We need an “Amendment” that makes the Legislature the “Supreme” authority to make laws for the country and make the Judiciary, Law Enforcement, National Audit, and such other bodies “Independent” to work within the framework of the Legislative Enactments. If any of these “State” and “Government” machinery fail to function as directed and to the detriment of the people, the “PEOPLE” must be empowered to take all of those “Responsible” and “Accountable” to task.
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srikrish / March 15, 2022
19A leads to a hybrid system and is unworkable even after necessary amendments.
What we need is a parliamentary democracy with a figurehead president and with extensive power sharing, democracy, human rights and powerful oversight committees.
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Raj-UK / March 16, 2022
SL does not need a President. Period. We will not be bickering about the 19th Amendment, 20th Amendment & with, most probably, more amendments to come to replace the other. The joke is when the President is also the leader of the party that is in the opposition but what happened in yahapalanaya is no laughing matter. CBK has to take the blame for nominating the loyal pet dog, MR, to save the party, only he become rabid once in power. Then she nominated a slimy yob who she probably thought could control, thereby, the party, but the worm also turned. Sirisena undermined every effort of the ruling party, the UNP, & the rest is history. So why do we need 2 people squabbling over leadership, all while enjoying the good life at the poor tax payers’ expense?
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Eagle Eye / March 17, 2022
Raj-UK,
“…only he become rabid once in power.”
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Good that MR became rabid and eliminated Tamil terrorists who massacred Sinhala Buddhists for three decades. Otherwise, still Tamil terrorists could be playing hell in this country.
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Raj-UK / March 19, 2022
Eagle Eye
MR & his family were infected & now the entire country is affected. It would have been humane to shoot a rabid dog (although I am against killing of any animal) than to let it loose to eliminate your enemies. A rabid dog bites everyone in its path.
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Black Lankan / March 16, 2022
Only way is to rid of the Royal Family, get back all their wealth abroad and send them to Siberia. No more presidential immunity. If any of them have houses of their own no more mansions in Colombo. No more security, no more perks. May be an allowanace reasonabale they compelete their terms. MPs be given smaller cars and may be some fuel allowance. Pensions on a merit basis having compeleted 10 years. No free food. Basic food items prices to be controlled including fuel for public transport. No one can release murderers and crooks after courts have found them guilty. Any politician speaks racism in or out of parliament to be sacked at once. Control the rabid buddhsit monks who are now damaging not only Buddhsim but the country as well. If they want politics then remove their robes. If they are caught with women or under alcohol their robes to be removed at once too. When they appear in public let these guys not to chew betel. No official positions for them except that invloves Buddhism. Anyone who contest election must have some predetermined education and also should not run businesses such as taverns, brothels, massage parlours, etc.
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Eagle Eye / March 17, 2022
Black Lankan,
“Only way is to rid of the Royal Family, get back all their wealth abroad and send them to Siberia.”
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That could be the wish of guys suffering from ‘Defeat-Syndrome’ but not the wish of people who got the opportunity to live without fear from terrorist activities of Tamils who terrorized the people in Sinhale for three decades.
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Native Vedda / March 19, 2022
Eagle Dumbo Eye
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Did it occur to you your finance minister Basil received an emergency loan of $1 billion from toilet Nadu Hindia. Its so happened both the Finance minister Nirmala and Foreign Minister Jayshankar are Tamils from Tamil Nadu.
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You ungrateful beggars are now obliged to Tamils and their India forever, this loan is meant to feed the people not to fill your pockets.
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Your racist Sinhala/Buddhists should apologize to your distant cousins in South India. I wonder why you still have your proud lion flag? Why not an ant flag?
Do you still believe that yours is Sinha Le?
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soma / March 19, 2022
What about Wahabists?
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Soma
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nimal fernando / March 16, 2022
I’m not a great believer in constitutions ………. the worth of a constitution depends on who the constitution is written for ………. if not, it’s not worth the paper it’s written on.
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In the 70s …….. Nigeria adopted the American constitution word for word ……….. A world of good it did them!
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Then the American constitution itself was torn to tatters by the president himself ………. got hordes to attack the seat of government, The Capitol itself ………. without held accountable …….. or much consequences ………. might even get another chance to finish the job.
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Such is the human-condition we are all bogged down in …….. knee-deep ……
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To hell with constitutions ……….. but I raise my hat to the previous Yahapalanya government for stopping commercial flights from taking off from Katunayake and landing in Mattala 5 minutes later.
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The smartest thing any government has ever done in the entire 73 years of post-independence Lanka!
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I wouldn’t ……… but perhaps EE might even go as far as to say the smartest thing ever done in the entire 2500 year history of “Sinhala-Buddhism.”
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nimal fernando / March 16, 2022
continued
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Slowly but surely we are getting somewhere ……….. gotta have patience …..
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We always find out the hard way ………. now gotta go and stand in the queue …….. for 4 days ………… day by day its slowly dawning on me ……… perhaps, Gota is not all what he was cracked up to be …….
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Perhaps, the next guy with the best “Sinhala-Buddhist” credentials might be better ………. I’m sure …….. or am I?
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It’s almost the end of life ………. what a life!
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One Day in the Life of Ivan nimal fernando …………..
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Eagle Eye / March 17, 2022
nimal fernando,
“…but perhaps EE might even go as far as to say the smartest thing ever done…”
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Certainly that was a smart move but not the smartest thing done by Sinhalayo. Dumbos who cannot understand strategic planning ridicule such decisions. The dumbest thing done in the history of Sinhale is dumping paddy in Mattala airport by Ra-Blue.
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Eagle Eye / March 17, 2022
nimal fernando,
“Sinhala-Buddhism.”
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Can you please tell Sinhala Buddhists what is ‘Sinhala Buddhism’. This sounds like a term coined by anti-Sinhala Buddhist mafia started by S.J. Thambiah to ridicule Sinhala Buddhists?
As far as Sinhala Buddhists are concerned there is no such thing called ‘Sinhala Buddhism’. Sinhalayo follow Buddhism taught by Siddhartha Gautama.
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soma / March 17, 2022
Dr JW
All this time I was under the impression that your were leading the team that drafted the 19A.
I am sorry.
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Soma
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Good Sense / March 17, 2022
The norms dictate that I should respect the author’s freedom of speech. Yet and yet again my thoughts are directed towards the image that the author is a constitutional humbug. The author must take a good amount of the responsibility in bringing in 19A. As a proclaimed expert it is naïve to say that he was not aware of the shortcomings of 19A. He had a limited amount of time to fulfil his contract, namely, to transfer the so-called powers of MY3 to Ranil, so that Ranil becomes the effective President from the backdoor without facing a presidential election. But Ranil did not get everything he wanted because the Supreme Court ruled that the passage of certain parts of the original 19A requires a referendum on addition to the two thirds majority and in parliament Ranil cursed at it casting aspersions to the Chief Justice of the day. Passage of 19A, like the passage of 20A, was done quickly reminiscing “Make hay while the sun shines”. Both the governments promised a new constitution, spending a lot of money on experts after passing both 19A and 20A. Country is bleeding from kleptocracy, and the author aided the crook’s survival.
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deepthi silva / March 17, 2022
Old codger you are so bias.
Would you say these things if Ranil was President and a parliament led by PM Sirisena obstructed all knowing ( and honest) Ranil !
Ranil thought of 19 amendment only when finally convinced that he will never become the president. What an intellectual fraud !
Are you saying jack in the box army man SF would have made a good defence minister ? Just after winning the war, SF recommended raising two more army divisions! Big talkers like him are empty vessels ( yes just like the Rajapakses-in reality empty as Gota has shown-I concede)
In this land of zombies there are no humans ! I hate it when you say Gota is bad but Ranil is good. That is bias and mental slavery, Two sides of the same coin. They invest different ways of trapping us mentally.
If not for Sirisena, Ranil would have made Mahendran Central Bank Governor for life.
There were moves to make homosexuality compulsory too !
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old codger / March 19, 2022
DS,
If you are criticising me, be a man and post where I can see it. Don’t hide like a mouse at the bottom of the page.
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chiv / March 17, 2022
Nimal, I am with you, Silly Lanka’s constitution is a CONSTIPATION, not even worth the paper it’s written. Come another 75 years so called experts will still (provided we are not a colony of China or India) be discussing amendments and +/- of 38 A.
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Ajith / March 17, 2022
Sri Lanka’s constitution need a complete change recognising the problems faced by this country and the failure of the constitution to protect the people, protect the rule of law, protect the justice, protect the unity, protect the identity of communities and protect the civilisation. The law of the country should be equal to all irrespective of race, colour, language, religion, position, status, gender etc. Democracy should not end with elections but make sure the elected members or appointed ministers, from political institutions are not above the law.
So, it is no point of talking about 19th amendment or 20th amendments and even 1972 constitution and 1978 constitution. All these are created based on political parties, political leaders or families, one race, one religion and one language. For the past 75 years, only three or four families ruled this country. Why cannot this country produced a Tamil speaking Muslim or Hindu or Christian person from the major political parties?
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Pamankada Pedo / March 18, 2022
How short are our memories, and how stupid people think they are still relevant when they are clearly not!
The author of this article, if the world remembers right, is the man who offered the most ridiculous constitutional draft for SL! He proposed that we divide the country in to nine independent ‘states’, giving them full control (including land, police and foreign policy control), without Colombo maintaining any central control.
Now, this is even more stupidly radical than the Indian system where the Centre can dismiss ‘naughty’ provincial governments.
At the base of his stupid proposal was his misunderstanding about the so-called Federalism in US, Canada and Australia, which were formed as Federations to fight the natives. This genius wanted to ‘break up’ SL to ape the same model!
Fortunately, his own leader Ranil Wickremesinghe had enough sense to bury this stupidity, and its creator is now a refugee in the ‘meddling’ Switzerland.
Now he seems to be offering us advice that we should bring back 19A that made unelected dollar vultures like Pakiasothy Sarawanamuttu and Radhika Kumaraswamy the de facto rulers of our country.
Shouldm’t this man go to sleep in the comforts of his new refuge, and leave us alone? He has no credibility on the issue.
He should at lest have enough intelligence understand it.
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deepthi silva / March 19, 2022
When Chandrika had two thirds in parliament we could have amended the constitution. That would have been a more liberal constitution.
Who scuttled it ?
OC, you say Sarath Fonseka will make a good Defence minister ?
Who tortured journalist Keith Nohayer ? Even Lasantha murder, do we know who was really behind it ?
As soon as Ranil became PM in 2015 he stopped the work on our great hope, the Port city project . Ranil showed what an unstable government we have. His appointee as Governor Central bank was selling sovereign bonds his son in law. Ranil’s finance minister was Ravi K, a man with a very dubious reputation. . A banana Republic !
The Chinese demanded compensation for the work stoppage .Ranil with his tail between the legs ( yes between the legs !) went to China and agreed to pay compensation to the Chinese.
Yes the Rajapakses are very bad, but do you say that Ranil is different ?
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old codger / March 19, 2022
DS,
If you are criticising me, be a man and post where I can see it. Don’t hide like a mouse at the bottom of the page. I don’t have the time to search out every idiotic rant that is put up by offended paid trolls.
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