Important but imperfect.
This is how some have described the draft of the proposed 21st Amendment to the Constitution Bill (the framers of which are Justice and Constitutional Reforms Minister, President’s Counsel Dr. Wijeyadasa Rajapakshe, Prime Minister Ranil Wickremesinghe, and lawyers associated with the latter), which has been presented to the Cabinet of Ministers and the political parties represented in the Parliament, but is yet to be gazetted as it awaits amendments in the form of additions and omissions of text from the aforementioned groups prior to resubmission to the Cabinet for approval.
A lot has been made of the fact that the objective and purpose of the proposed 21st Amendment to the Constitution is to restore the provisions of the 19th Amendment to the Constitution and to enhance its overall intent (a ‘19/19th plus’ so to speak) which is to curtail the powers of the Executive Presidency, provide for a more democratic mechanism for the process of making apex public appointments, and to improve accountability, financial independence and transparency, and also to repeal the 20th Amendment to the Constitution.
Be that as it may, anything (the Kantian [reference to German philosopher Immanuel Kant] ‘thing-in-itself’ if you will) – in this case, the draft 21st Amendment to the Constitution Bill – must stand on its own merits and demerits. Hence, to rectify its flaws, address its shortcomings and perfect its imperfections, one is required to refer to the philosophical amuse-bouche proffered by the piquant fulltime forensic psychiatrist and part time cannibal, Dr. Hannibal Lecter in The Silence of the Lambs who cites the Roman Emperor and stoicist Marcus Aurelius. In Meditation X, found in Book Eight of Aurelius’s Meditations, we are told how to “examine all things that present themselves” by inquiring into “This, what is it in itself, and by itself, according to its proper constitution? What is the substance of it? What is the matter, or proper use? What is the form, or efficient cause? What is it for in this world, and how long will it abide?”
The draft of the 21st Amendment to the Constitution Bill proposes the repeal of Chapter VII A of the Constitution on The Executive – The Parliamentary Council. The Parliamentary Council is comprised of the Prime Minister, the Speaker of the Parliament who is also the Chairperson of the Parliamentary Council, the Opposition Leader, a Parliamentarian nominated by the Premier and a MP nominated by the Opposition Leader. It is tasked with making observations – note that it is not with making recommendations or approvals – to the President, on the making of apex appointments, namely the Chairpersons and Members of independent Commissions and the Chief Justice (CJ) and the Judges of the Supreme Court (SC), the Court of Appeal (CoA) President and the Judges of the CoA, Members of the Judicial Service Commission, the Attorney General, the Auditor General (AG), the Parliamentary Commissioner for Administration (Ombudsman), the Secretary General of the Parliament and the Inspector General of Police (IGP). The Commissions in question include the Election Commission, the Public Service Commission, the National Police Commission (per the said draft Bill is to be tasked with the appointment, promotion, transfer, disciplinary control and dismissal of Police officers in consultation with the IGP), the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption (per the said draft Bill is to be given suo motu powers), the Finance Commission, and the Delimitation Commission.
The Parliamentary Council is to be replaced by a Constitutional Council including in addition to the Premier, the Speaker (Chairperson of the Constitutional Council) and the Opposition Leader, a MP appointed by the President, two MPs and three non-MPs nominated by the Premier and the Opposition Leader, and a MP nominated by majority Parliamentary consensus but one who does not belong to the parties to which the Premier and the Opposition Leader belong to. Additionally, when nominating the aforementioned two MPs and three non-MPs, the Premier and the Opposition Leader have to consult the leaders of political parties represented in the Parliament, so as to ensure that the Constitutional Council reflects the pluralistic character, professional and social diversity in the society. Also, the three non-MPs should be persons of eminence and integrity who have distinguished themselves in public or professional life, and who are not members of any political party whose nomination can be approved by the Parliament.
Moreover, the Constitutional Council is vested with the power to recommend appointments, and sans such recommendations from the Constitutional Council of fit and proper persons, the President cannot appoint any Chair or Member of a Commission. Here too, the Constitutional Council should endeavour in their recommendations to reflect the pluralistic character including gender within the society. All removals of Members of Commissions can only be done per the law and in the absence of such, the approval of the Constitutional Council.
The Commissions that have been added anew in the draft Bill include the Audit Service Commission (to be comprised of the AG who is also the Chair, two officers of the AG’s Department who retired as Deputy AGs or above, a retired SC, CoA or High Court Judge, and a retired Class I Administrative Service officer) and the National Procurement Commission (to formulate fair, equitable, transparent, competitive and cost effective procedures and guidelines, for the procurement of goods and services, works, consultancy services and information systems by Government institutions).
The additional apex appointments to be made concerning which the Constitutional Council is to be empowered under the said draft Bill include the Governor of the Central Bank. Furthermore, the Constitutional Council is to obtain the CJ’s views concerning the recommendations for Judges of the SC and CoA including the CoA’s President.
It has also been provided for the Constitutional Council’s decisions to be challenged on Fundamental Rights (FR) related grounds.
It is hereby recommended that the Constitutional Council’s composition be changed to include a 50:50 ratio of MPs to non-MPs, with five MPs and five non-MPs, with the process for the appointment of the non-MPs being the same as that which is proposed for the appointment of two MPs and three non-MPs, with the Premier and the Opposition Leader together consulting the Parliament and reflecting the pluralistic character, professional and social diversity in the society. Since enacting and implementing this recommendation would involve the reduction of two MPs from the Constitutional Council, the MPs that remain can be the Premier, the Speaker (Chairperson of the Constitutional Council), the Opposition Leader, a MP appointed by the President, and a MP nominated by majority Parliamentary consensus but one who is not affiliated to the parties to which the Premier and the Opposition Leader belong to.
Importantly, the Constitutional Council should, at the outset of commencing work on its mandate, specify objective criteria that is to be adopted when vetting nominations and approving recommendations of persons to be appointed to the said Commissions and apex positions, and publish such officially.
Also, it is echoed herewith, as recommended by the private and unofficial bar (the Bar Association), that the Constitutional Council also approve of the appointment of the rest of the Members of the Monetary Board, the latter which is Chaired by the Central Bank Governor.
The Bar Association has also called for the said draft Bill to provide for the appointment of Ministry Secretaries, Provincial Governors and heads of overseas diplomatic missions to be done on the advice of the Premier in consultation with the Cabinet. It is hereby recommended that the Constitutional Council plays its mandated role also with regard to the appointment of heads of overseas diplomatic missions and President’s Counsels.
At present, there is an absence of legislative safeguards against the kind of court packing (refer to the Judicial Procedures Reform Bill of 1937 of ‘New Deal’ United States [US] President Franklin D. Roosevelt) taking place on Presidential prerogative, that involves manipulating the people’s and the Parliament’s sovereignty by creating a Judiciary that is in the President’s own ideological persuasion; this must be Constitutionally remedied.
Ministries, subjects and functions
The draft Bill proposes to amend the provision that states that with regard to the appointment and the changing of the Cabinet and its subjects and functions, the President only needs to consult the Premier where he/she considers such consultation necessary, by instead making it mandatory for the President to do so on the advice of the Premier with regard to all Ministers – Cabinet and non-Cabinet (Deputy and State) – and their subjects and functions.
Also, the draft Bill proposes to delete the provision which holds that the removal of the Prime Minister from office is a ground for the dissolution of the Cabinet in the interim period between the dissolution of the Parliament and the conclusion of a General Election.
However, the President still retains the power to assign to himself any Ministerial subject or function. This should be done away with.
The President also has the power to dissolve the Parliament two and a half years after the General Election. This should only be permitted four and a half years following the Parliamentary Election as was the case under the 19th Amendment to the Constitution, unless the Parliament by majority, requests the same prior to the lapse of the said period.
Presidential pardon: Recommendations
With regard to the Presidential power to grant a pardon, it is also recommended hereby that special legal rules and guidelines be formulated to govern the exercise of the power of pardon by the Executive President in order to ensure that it is exercised in a transparent and accountable manner, and following publicly disclosed, specified, objective criteria, while duly recognizing the rights of victims.
The draft Bill proposes to make being a Sri Lankan citizen who holds citizenship in any other country disqualified from being elected as a MP. This is vital considering the havoc that an “ugly American (a euphemism for former Finance Minister cum Sri Lanka-US dual citizen Basil Rajapaksa)” wreaked. In a departure from the norm (rule against enacting retrospective and retroactive laws) necessitated by dire national circumstances (the need to clip calamity’s wings), it is hereby recommended that a clause be inserted making this have a retrospective application and retroactive effect, thereby relegating the said Rajapaksa to a status of un-eminence grise.
While the opportunity for politico-legal reform that has presented itself, may not, given the present political volatility, be conducive to undo every wrong visited upon the body politic by the Second Republican Constitution of 1978, the Legislature should however, seriously consider the repeal of Article 16 of the Constitution which provides for all existing written and unwritten law to remain valid and operative notwithstanding any inconsistency with the provisions of Chapter III of the Constitution on FR, and by doing so, pave the way for the SC to follow in the path of the US SC in Marbury vs. Madison (post-enactment judicial review), and provide therefore for equality and non-discrimination to not just be relegated to the shadowy liabilities of the black letter of the law but for such to be tangible assets possessed by the disenfranchised.
The draft of the 21st Amendment to the Constitution Bill is a start; it is certainly not an end. There is much to be added to its text to ensure that the pith and substance of its intent, which is the transfer of some of the excessive and arbitrary powers of the Executive Presidential system to a more democratic framework of the Parliament and the Constitutional Council, whilst maintaining a system of checks and balances on both arms of governance – the Executive and Legislative branches, comes to fruition.
In theory, vesting the powers of the Executive Presidency – particularly one that is ‘booster-ed’ (to use a Covid-19 pandemic related metaphor) by the 20th Amendment to the Constitution, and which, as the local Founder of the system, late President J.R. Jayewardene quipped, only cannot perform a sex change – with the Parliament, is certainly democratic, if not particularly progressive, as it is obvious to all but a few despots in waiting and in training for the role. However, Parliamentary supremacy, especially in the absence of simple legislative changes such as the power of post-enactment judicial review being afforded to the Judicial arm of governance (the Judiciary), the option of recall elections afforded to the electorate, measures related to dealing with crossovers and defections, and the abuse of the national list being put in place, and campaign finance reforms being effected, comes with its own pitfalls which if the state of affairs of Parliaments as far back as the mind can recall is any indication, and this is true also of the incumbent 17th Parliament, would result in a deleterious, albeit somewhat pernicious, impact, that would, with time, be wholly inimical to the people’s sovereignty and the interests of democratic governance.
This is the question to be pondered when taking into consideration the draft Constitutional Amendment Bill proposed to the House.
Perfecting the important.
Mahila / May 30, 2022
R L Jayakody,
Why do we need non-citizens and dual citizens to represent us in Parliament!!
Are we incapable to call out ‘KAPUTTAS?’
This is the Sri Lankan Parliament, to govern Sri Lanka!
Why on earth is somebody from another country trying to represent Sri Lankans??
Is it because we do not have people of eminence in our schools to represent us in Sri Lankan Parliament???
That is the biggest Joke of our times?
t the behest of Uncle Sam!!
Black Lankan / May 31, 2022
Non citizens drama is made to help Rajapakshas ONLY and for nothing else. Now that Pakshas a withering away this becomes redundant. The main issue for SL is to get rid of Rajapakshans, recoiver all the stolen wealth and punish them for all the misdeeds. Along with them deal with the corrupt cronies who made use of the Rajapaksha curse. We must have special courts to deal with these guys quickly and effectivley. This is where we need foreign judges as our judiciary, like our economy, will take years to become effective after eradicating Paksha menace.
Champa / May 31, 2022
I don’t understand this nonsense about the 21 Amendment. Sri Lanka is in a self-made economic crisis and the suggestion of the government to overcome the crisis is an amendment to the Constitution!
Who wants the 21A? Foreign Ambassadors based in Sri Lanka! Sri Lanka’s Foreign Minister has briefed the US Ambassador on the proposed 21A. For what? She is not a Sri Lankan. The other day, she met with the Speaker to stress the need for political reforms in Sri Lanka! Name one Sri Lankan who wanted this 21A? Any discussion about Sri Lanka’s Constitution is an INTERNAL MATTER and foreign Ambassadors should be asked to stop meddling in Sri Lanka’s internal politics.
Champa / May 31, 2022
The biggest problem in Sri Lanka is the lack of leadership qualities in politicians. When violent protests erupted in the country, instead of declaring emergency law and issuing a presidential order to the Army Commander to restore peace, the President ran away and hid himself at an army camp!
I invite Sri Lanka’s politicians to learn how President Vladimir Putin handles issues pertaining to his country. He is unperturbed by even 6000 sanctions against Russia as he has prepared his country for such eventualities. There is absolutely no sign of stress or exhaustion in him. Despite wild claims by Western media, he is in perfect health. His mind is razor-sharp. Every time he appears on TV, he looks as fresh as the morning sun. He has a creative way to show hand gestures to indicate agreements and disagreements, and to my utter amusement, those hand gestures were misinterpreted as ‘some kind of illness’.
The imminent food crisis in Sri Lanka could be avoided easily. I don’t understand the reason why rice farmers are not engaged in farming. What are they waiting for? Rice can grow without fertilizer. The only thing is, to get a good harvest, extra labour is needed.
Champa / May 31, 2022
Sri Lankan men are the laziest in the world. They waste precious time chatting, boozing, complaining and idlying. They have now found a creative way to waste time by protesting for anything and everything.
Without being lazy and waiting for the government for instructions, rice farmers should take the initiative to increase harvest without fertilizer. One way to increase the harvest is to plant single young seedlings by hand, keeping a distance of two ‘Viyatha’. If available, liquid or dried cow dung can be used. A home-made, V-shaped small tool with a long handle can be used to pull weeds. (As suggested by Mr. Tilak Kandegama, there are other easy methods to remove weeds in one go) And, no pesticides at all. We must accept the fact that insects are also a part and parcel of our nature. This method is time consuming and hard labour, but I guarantee a bumper harvest without expensive fertilizer. In order to overcome labour issues, farmers can form a community society to help each other. If farmers can grow super-nutritious Sinhala Rice varieties which are in high demand, they can make a fortune by selling their rice at retail price.
Ajith / May 31, 2022
Agricultural professor Champa,
“I don’t understand the reason why rice farmers are not engaged in farming. What are they waiting for? Rice can grow without fertilizer. The only thing is, to get a good harvest, extra labour is needed.”
It is good that you don’t understand the reason why rice farmers are not engaged in farming. Do you think that farmers are there to produce rice according to your instruction and feed you in your bed in your hotel. Are they slaves to you?
Do you know how long the fertilizer and agro chemicals are used in rice production in Sri Lanka? Why didn’t you stop the use of fertilizer when they started in rice production or other crops? Why did you turn into mechanization instead of using traditional ploughing methods? Do you know what is the population in Sri Lanka before 1970 and in 2022? Do you know what was the yield per acre in 1970 and 2020? Do you know fertilzer is imported from Russia and fertilizer is used in Russia for crop production. Russia is a super power and Sri lanka is a begger country. Don’t compare Russia and Sri Lanka.
Champa / June 1, 2022
Sri Lanka imports fertilizer from Russia? That’s news to me. Anyway, I strongly suggest Sinhalese rice farmers grow Sinnala rice varieties.
The good news is, the US Ambassador to the UN has confirmed that there are no sanctions on Russian food and fertilizer exports.
MyView / June 1, 2022
…Sri Lanka imports fertilizer from Russia? That’s news to me…
The news is that Sri Lanka has always been importing about 85% of its requirements of the all important Muriate of Potash (MOP) from Russia through Black sea ports. Also sizeable quantities of Nitrogen based fertilizer have been from Russia.
Believe me because I knew this trade.
Champa / June 3, 2022
I still doubt it. Russian products are of excellent quality. Remember, how Sri Lankan farmers rejected imported fertilizer a few months ago for their poor quality.
My interest in Russia-NATO no, actually, Russia-US conflict is not normal. Why should I be bothered about it? Well, I can’t stop wars. But, I enjoy sharing my opinion. Let’s see the latest news.
The USA’s decision to send HIMARS to Ukraine on the condition that “Ukraine does not use it to attack Russia” is hilarious. The only reason for sending HIMARS is to use Ukraine as a cat’s paw to attack Russia, and, whether Russia will agree with me or not, Mr. Putin is a legitimate target. As reported by Reuters last month, the US has provided intelligence that had helped the Ukrainian forces kill Russian Generals. What is the guarantee that the US will not provide intelligence to attack certain targets in Moscow?
What will Russia do? Hard to tell. Russia may attack Kiev before the HIMARS reaches Ukraine or destroy the HIMARS in Ukraine or use jamming GPS. This is a war of technology and Russia has the upper hand.
leelagemalli / June 3, 2022
Russian products are high quality ? To my info, Russian products are low quality even when comparing with those of the chinese. In fact the chinese have quality levels for their products. Those exports to Europe, they produce high quality products, be them electronic accessories of any others, but low quality products to asia and asia-pacific.
Champo, where have you been living ?
Russians are highly dependent on ” Made in Europe” -products.
As is the case with your knowledge based on HISTORY, you seem to be observing things – sitting on your little brain.
No wonder our people have to face almost famine situation, with senior citizens of your nature being the majority in our HELL.
MyView / June 3, 2022
You are free to : “I still doubt it.”
As I said I was the Agent for sales ex-Russia for Muriate of Potash (MOP) and at least 50000 MT of it comes to Sri Lanka annually, and other countries like Germany and Canada are expensive and only supply very much smaller quantities under Aid programmes from these countries.
Feel free to ask any Fertilizer import company in Sri Lanka.
SJ / June 1, 2022
“…fertilizer is used in Russia for crop production.”
What do others use it for mostly?
I know that NH4NO3 was responsible for the massive deadly blast in Beirut not long ago.
It is also used to make laughing gas I hear.
The LTTE may know some special uses for that fertilizer I guess– you will know more on that, and please educate us.
Champa / June 1, 2022
Learn the history of rice cultivation in Sri Lanka.
In ancient times, rice was first grown wild on our hills. Then, our Sinhalese ancestors had started planting rice on hill slopes and flooded fields which were called ‘land rice – ගොඩ වී’ and ‘field rice – මඩ වී’. In the 19th Century, British invaders destroyed all our land rice fields on hill slopes and planted Chinese tea. They used the same local fertilizer for tea cultivation that had been used by the Sinhalese for land rice cultivation. The Sinhalese lost almost 200,000 hectares of land rice fields for tea plantations, and that is the reason we couldn’t meet the demand for rice. The loss of livelihood and personal wealth caused by the British invasion resulted in the poverty of the Sinhalese. In 1965, a ‘Green Revolution in Rice’ was launched to introduce new rice varieties and chemical fertilizer to artificially increase the harvest. I insist Sinhalese farmers start planting indigenous Sinhala rice varieties to overcome fertilizer and insect pest issues.
What Sri Lanka is currently facing is a leadership crisis, not an economic or political crisis. With the right leadership, guidance and hardwork, we can overcome the economic disaster.
Champa / June 2, 2022
I understand your fear of the world’s superpowers. Russia will initiate WWIII and finish it at its own time. Western media says Russia’s President has only three years to live. Well, that means, within the next three years, the US and Britain will disappear from the world map. Amen! There is a lot of talk about blood cancer too. What’s the big deal? Sinhalese indigenous doctors (village veda mahaththayas) can cure cancer. 16th Century Portuguese writers who lived in Ceylon have written about the ability of the Sinhalese to cure cancer within 6 days! I don’t see Mr. Putin facing any life threatening health issues. Even if he had, I bless him to recover in no time.
On a separate matter, how will Russia react to the decision of the US to send Ukraine long range multiple-rocket systems? Well, when Russia can erase any country from the world map within seconds, why should they bother about rocket systems?
My question is, which terrorist outfit requested long range rocket systems? Polish weapons have ended up in Africa. Where have the weapons sent by the US and Britain ended up? Many countries will need Mr. Putin’s help to eliminate future terrorist threats.
old codger / June 1, 2022
“Sri Lankan men are the laziest in the world. They waste precious time chatting, boozing, complaining and idlying”
You are being unfair. Not all Sri Lankan men. Maybe about 72 %.
leelagemalli / June 3, 2022
Unfortunately, Champa collected the experience only with Rascals and the laziest men in SL.
Best example of all would be -WIMAL BURUWANSE – a person to have shared the bed with such a bastard – low life, how can she/he have a clear knowledge about generalities?
Poor Champa was narrowly escaped from not being part of the RASCALS/CRIMINALS to put to Baira Lake.
old codger / June 1, 2022
“they can make a fortune by selling their rice at retail price”
Isn’t food supposed to be cheap?
Champa / June 1, 2022
Yes, you have a point. What I meant was, instead of begging the government to buy their rice at wholesale price, rice farmers can start selling rice by themselves at retail price and make a reasonable profit. Currently, there is a high demand for nutrient-rich Sinhala rice varieties due to short supply. If all farmers opted for indigenous rice varieties, then the supply would increase resulting in a price drop while the demand remains unchanged.
leelagemalli / June 2, 2022
Entire world is turning against Putin the biggest dog of the era but our women to fall in love with him and his leadership qualities ?
What else can we expect from Champa the clown who fell in love also with Wimalweerawansim until few years ago.
CT readers, over to you – please go and check how Champa acted then…
Champa / June 2, 2022
“The tongue of slander is too prompt with wanton malice to wound the stranger.”– Aeschylus
FYI, I am immune to paid-slanderers like you. What can we expect from an incredibly stupid Rajapaksa offspring who conspired with his uncles to humiliate and ousted his own father? Why did none of the protesters target him? It is his paid mobs who attacked Rajapaksa museum, ancestral house, a hotel in Sinharaja, Gotabhaya’s soothsayer’s house, hotel & Devale and the houses of Ministers & MPs. Ordinary citizens dare not do such violence. The proposed 21A is for whom? He even advised the Ukraine’s President. I dare say he is responsible for several assassinations carried out under the guise of Covid-19 including the assassinations of Venerable Puliadde Sudhamma Thero, Dr. Chandana Gunawardena, former Minister Managala Samaraweera, Singer Sunil Perera, DIG Ajith Rohana (a failed attempt), and many other Buddhist monks. Many ‘fake prophesiers’ are on his payroll. He is worried about a prophecy that said a ‘reborn Rawana’ will rule the country/world. A number of people have already claimed that they were the ‘reborn Rawana’. (Interestingly, the ‘reborn Rawana’ could be Mr. Vladimir Putin. We can only confirm if his earth-penetrative ICBMs repositioned the earth!)
leelagemalli / June 3, 2022
Who can afford to pay me ?
Do you think that LM or the like TRUE BUDDHISTS (not buddhagama adherents for cheap gains) would ever let the soul be cheated by Medamulala ballige puthas ?
I now know I was one of the very few that identified Ma-Ra, your former bed partner -Wimal Buruwanse and the like criminal clan long before anyone on CT did it.
I AM SO GLAD TO SEE IT- MEETING ALL MY PREDICTIONS BE THE REALITY – AFTER MEDAMULANA ANIMALS ARE BROUGHT BACK::::::: IT WAS BEYOND HELPING HAND – people are to be blamed. Among them you too are on the top of the list CHAMPA.
Your last moments would not be DIFFERENT to that of MARA – for sure.
Jit / June 1, 2022
“………….Important But Imperfect: Recommendations On The Draft 21st Amendment To The Constitution Bill………….”
We call ourselves a very intelligent nation full of whizkids who can run the economy……..!!!
For 74 years we are still scrambling to pen a ‘proper’ bloody constitution……!!!!
Starving….in gas queues…petrol queues…..
While waiting for parippu and diesel from Tamil Nadu!!!
I rest my case here.
SJ / June 1, 2022
Can you name a country with a ‘perfect’ constitution?
MyView / June 1, 2022
Japan is the nearest to best if I may put it that way.
The Japanese constitution is the oldest unamended constitution in the world. It has not had any amendments to its text in more than 70 years.
Then in a way, Russia and China also qualify to near perfection in that their Constitutions are what Putin or Xi Jinping will interpret and people are “happy” with that.
Jit / June 2, 2022
I do not know! Because that is up to the people of those countries, not you and me, to feel whether it is perfect or not. What I know is, Sri Lanka is the only country in this planet that made 22 changes to its constitution within 50 years!
leelagemalli / June 3, 2022
So, how powerful the English should be to act without written constitution ?
They can be the best scale to compare with uncivilized dominated Srilankens or the like countries.