26 September, 2020

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The 19A: Centrepiece Of Good Governance

By Jayantha Dhanapala

Distinguished members of the Diplomatic Corps, Ladies & Gentlemen,

On behalf of His Excellency Maitripala Sirisena and my colleagues in the Presidential Secretariat, I have great pleasure in warmly welcoming you to this afternoon’s briefing on the Nineteenth Amendment to the Constitution of Sri Lanka. It is just over a month since this important Constitutional amendment was formally certified by the Speaker of our Parliament although it was passed on 28 April. In a 225-member legislature this revolutionary piece of reform was adopted with 212 voting in favor, one against, one abstaining and 10 being absent. We undertake this task out of a conviction that the significance of the amendment should be conveyed to you in the context of the revitalization of democracy in Sri Lanka since the Presidential Election of January 8th this year.

Jayantha DhanapalaMy colleagues and I will describe the Amendment from different perspectives all of which is intended to accomplish a task of transparency fulfilling the obligation to acquaint the international community – of which Sri Lanka is a responsible member – of a fundamental change in our system of governance and in our constitutional architecture. We are in our 60th year as a member of the United Nations Organization and a founder member of the Non-Aligned Movement apart from being a member of a number of international and regional organizations with their interlocking obligations to a shared set of universal values. The adoption of the 19th Amendment is thus symbolic of Sri Lanka’s re-integration with the mainstream of democratic countries reaffirming the sovereignty of Parliament and complying with the Latimer House Principles of the Commonwealth at a time when, appropriately, Sri Lanka holds the Chair of the Commonwealth.

The set of norms fundamental to human dignity, human security and human development are what we collectively refer to as Human Rights. They were codified in the historic UN Declaration of Human Rights in 1948 and, subsequently, in a series of legal instruments to which most countries subscribe and have their adherence to these treaties and conventions regularly monitored by peer mechanisms such as the Human Rights Council. This codification followed the horrendous carnage and violence of two World Wars in the last century engulfing civilian populations and making the 20th century the bloodiest in the history of humankind. Prior to that while all cultures and religions had norms and practices relevant to human rights, their non-enforceability as domestic and international law permitted the exploitation of human beings within countries and among nations. This enabled autocracies, dictatorships and feudalism to thrive in domestic situations and for colonialism, imperialism and hegemonism to hold sway internationally. Many empires were built on the exploitation of the human rights of other peoples. Respect for human rights and its enforceability led to democracy in national situations and to decolonization and freedom internationally.

The Constitution of any country is its basic fundamental law and the bedrock of its system of governance. Following our independence in 1948 the country adopted the so-called Soulbury Constitution from the erstwhile colonial power which established a bicameral parliamentary democracy in our island nation. With some changes like the abolition of the Senate, this Constitution continued till 1972 when the Republican Constitution was adopted through a Constituent Assembly with an elected Parliament and an appointed President. In 1977 with the landslide electoral victory of the United National Party its leader, Mr.J.R.Jayewardene, interpreted this as a mandate to fulfill a long cherished personal ambition of enacting a new Constitution with an Executive Presidency and an elected Parliament. There was no referendum and as Prime Minister he was deemed to be the first Executive President for a term of six years. The combination of elements from the French Constitution led to this new Constitution being called a “Gaullist Constitution” with none of the checks and balances which the US model of an Executive Presidency contained. The vital separation of powers among the Legislature, the Executive and the Judiciary was not maintained. Jayewardene was both Head of State and Head of Government and was elected in 1982 for another term. Recent tributes paid to the late Dr.N.M. Perera – the Lanka Sama Samaja Party leader and former Finance Minister – referred to his prophetic warnings on the dangers of the 1978 Constitution and its undermining of democratic institutions.

Jayewardene was succeeded by President Premadasa who was assassinated by the LTTE and in the ensuing election Chandrika Bandaranaike Kumaratunga was elected President. She and her successor Mahinda Rajapaksa were elected on a pledge to abolish the Executive Presidency which was by then widely perceived to be a totalitarian form of government. In the case of the former, she lacked the two-thirds majority needed for a change of Constitution. With the latter, even with a two-thirds majority constructed through crossovers, on 9th September 2010 his Constitutional change was the infamous 18th amendment which repealed the 17th Amendment and the independent Commissions it set up plus abolished the two-term limit of the Presidential office.

Since 2010 the cry for the abolition of the authoritarian Executive Presidential system and a return to the system of parliamentary government gathered momentum. The final adoption of the 19th Amendment, although not fully satisfying that demand, has to a large extent rectified the democracy deficit in the Executive Presidential system. Civil society was especially forceful and influential in its advocacy of the abolition of the Executive Presidential system and the Ven. Madulwawe Sobitha Thero at the head of the National Movement for Social Justice was at the vanguard. As I have written elsewhere Ven. Sobitha by identifying the Executive Presidency as the root of much of Sri Lanka’s political, economic and social malaise succeeded in attracting a broad range of support from politicians, intellectuals, trade unionists, religious leaders from all religious persuasions, lawyers, retired public servants, civil society activists and many others who wanted a fundamental constitutional change.

The search for a Common Candidate to espouse the cause of the abolition of the Executive Presidency ended with the emergence of Mr.Maitripala Sirisena. His dramatic campaign against enormous odds and his success paved the way for the adoption of the 19th amendment which featured prominently in the election manifesto and the “Hundred Days” programme.

It was anticipated that with a 2/3 rd majority only and no referendum possible in the circumstances, a total abolition of the Executive Presidency could not take place. Whether the glass is now half full or half empty will continue to be debated and not only by constitutional lawyers. Certain requirements in the proposed amendment were stipulated by the Supreme Court and were adopted accordingly. As the Amendment was discussed at various stages it was subject to changes right up to the Committee stage in Parliament. The composition of the Constitutional Council was the subject of much debate until a compromise was forged. A striking feature during the negotiations was the patience displayed by the President himself and his unswerving commitment to achieving the objective of the change willingly sacrificing the powers which he had assumed through his election. Indeed his voluntary abbreviation of his own term of office from six to five years and his decision not to run for a second term set a shining example to inaugurate a new political culture of humility before the people.

The well-known Commonwealth principles setting out the relationship among parliament, the judiciary and the executive in member countries launched at the Commonwealth Secretariat in London on 12 May 2004. Called the “Latimer House Principles”, as the Commonwealth states, “they govern issues such as the harmonious balancing of power and the interaction among parliament, the executive and the judiciary in democratic societies. They set out in detail the consensus arrived at by representatives of the three branches of government in the Commonwealth on how each of their national institutions should interrelate in the exercise of their institutional responsibility. The Principles specify restraint in the exercise of power within their respective constitutional spheres so that the legitimate discharge of constitutional functions by other institutions are not encroached on.” There has to be equilibrium among the different parts of government for democracy to flourish. We have moved our constitution from a state of disequilibrium to a state of democratic consonance.

Among the many changes brought in by the 19th Amendment are –

  • The effective repeal of the 18th Amendment and in particular the absence of term limits on holding Presidential office by the specific disqualification of persons who have been twice elected to such office, who are under 35 years of age and dual citizens;
  • The term of the President and of Parliament is reduced to 5 years;
  • While the duties of the President are outlined, and includes the promotion of national reconciliation and integration, it is clear that the President is responsible to Parliament and cannot dissolve Parliament at his own discretion during the first four and a half years;
  • The President cannot remove the Prime Minister at his discretion;
  • The re-establishment of the independent Commissions and they include the Election Commission, the Public Service Commission, the National Police Commission, the Audit Service Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery and Corruption, the Finance Commission, the Delimitation Commission and the National Procurement Commission insulating these vital arms of government from politicization;
  • The establishment of a Constitutional Council to approve persons for important public offices and to recommend persons for appointment to the office of Chairman and members of the above Commissions;
  • The inclusion of a citizen’s right to information upholds democratic principles of transparency and accountability;
  • The limitation of the size of the Cabinet to 30 except for the transitional “government of national unity” in the next Parliament which may go up to 45 for Ministers;
  • The unsatisfactory phenomenon of hasty legislation through urgent bills is rectified by the requirement of 14 days notice for the public to consider a Bill by way of a Gazette before it goes to Parliament;
  • The establishment of a National Procurement Commission and an Audit Commission helps to prevent corruption restoring public confidence in the handling of public finance and ensuring a rule based investment climate.

The cumulative impact of the above features and more has been to restore the confidence of the international community in Sri Lanka as a democracy. As a pluralist society the Amendment has reinforced inter-ethnic and inter-religious trust and confidence making democracy more meaningful and effective. Indeed just yesterday the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein in his opening statement to the 29th session of the Human Rights Council said, and I quote, “The new Government in Sri Lanka has passed a Constitutional Amendment if implemented appropriately brings renewed hope for democracy and the rule of law.”

The shared values set out in the United Nations Millennium Declaration adopted by the General Assembly serve as a common ethical base. They comprise six of the most basic aspirations of humankind – freedom, equality, solidarity, tolerance, respect for nature and shared responsibility. From each of these fundamental values we draw our guidance for the specific action plans to which the international community must commit itself. It is a moral compass for us all. Individually these values represent powerful forces that have inspired and motivated humankind throughout millennia of history. They have been the accelerators of human progress. Collectively, they also represent the benchmark against which we must judge our performance as individual nations and collectively as the world community in taking humankind forward to a better and safer world.

Six years after the brutalizing conflict imposed on our nation by a secessionist-terrorist group we are only just beginning to undertake the sincere task of reconciliation and development recognizing that asphalt, brick and mortar are not enough to repair the damage of war. President Sirisena himself expressed it in these words on May 19 at Matara – “Though the damaged buildings, destroyed roads and other physical resources were being re-built there was no reconciliation process during the post-war period to rebuild the broken hearts and minds. Therefore, as the new government we clearly state that our policy is that of development and reconciliation. We cannot fulfill our expectations for reconciliation only through development. The reconciliation process includes investigating the truth, carrying out justice, eliminating the fear and mistrust and building trust among every community and re-building physical resources which were devastated by the armed conflict. Hence, with the experience of the war, we must understand the requirement of priority for the reconciliation process. “

Truth seeking, justice, and the repair of wrongs that led to conflict are fundamental. For that democratic space has to be created and a new atmosphere of candour and confidence has to be established. The adoption of the Nineteenth Amendment is a milestone in that process. You have all been a witness to the making of history in Sri Lanka and we value your understanding and good wishes on our democratic nation-building journey.

Thank you!

*Jayantha Dhanapala made this keynote address at “19 A: Landmark of Democratic Revival” a panel discussion and Q & A for the diplomatic community of Sri Lanka on the 19th Amendment on June 16, 2015, 4pm at Jaic Hilton. The transcript of the speech was provided by the President’s Media Division.

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Latest comments

  • 4
    0

    The issue in Sri Lanka has not been about the law itself (although it does have a very partisan, majoritarian constitution), but it has largely been about the political will to implement the law when crimes (even on a massive scale) occur to non-sinhala ethnicities, and in particular the Tamils. Impunity is widespread and it has a history of ineffectual commissions, that due little other than bolster the facade of democracy. Sri Lanka will not be able to hold its head up high, until it begins effective implementation of its laws, something that has been missing since independence as far as the Tamils are concerned.

    • 1
      1

      Dear Alex,

      You say “although it does have a very partisan, majoritarian constitution”

      You are repeating RACIST propaganda of Racist Tamil Politicians

      The North elected 15 MPs with a registered vote base of 988334 in the last General Election (2010), although only 285462 voted.

      Thus 65888.9 Tamil votes gets to elect one MP.

      Lets have a look at the Central and Southern provinces on the same basis.

      Central
      Registered voters—1770277
      Entitlement——–26.9
      Actual————-24
      Shortfall———-3 MPs

      Southern
      Registered voters—1761859
      Entitlement——–26.74
      Actual————-25
      Shortfall———-2 MPs

      Under the present Constitution, the electoral system allows the Tamils to be OVER REPRESENTED in Parliament. Is that MAJORITARIAN? Facts prove that it is PARTISAN towards the Tamils!!!

      I hope Tamils such as you, learn to use your BRAINS, instead of repeating the Racist Tamil Political Propaganda adnauseum.

      Please explain your RACIST statement.

      Kind Regards,
      OTC

      • 0
        0

        ”You say “although it does have a very partisan, majoritarian constitution” You are repeating RACIST propaganda of Racist Tamil Politicians”:

        Judge Weeramantry told LLRC that he asked former President Jayawardene twice and former President Rajapakse twice each to change the constitution to give equality to all citizens.
        More than 15 months ago http://www.llrc/lk was converted into http://www.llrc.lk/en. The former had most LLRC submissions but the latter has ”lost” them and has now the National Action Plan that remains mostly unimplemented.
        http://www.groundviews has fortunately saved most submissions and can be visited by any.

    • 0
      0

      The author started calling for Good Governance in 2010:

      Jayantha Dhanapala’s submission to lessons Learnt and Reconciliation Commission (LLRC), 25 August 2010:”The lessons we have to learn go back to the past – certainly from the time that we had responsibility for our own governance on 4 February 1948. Each and every Government which held office from 1948 till the present bear culpability for the failure to achieve good governance, national unity and a framework of peace, stability and economic development in which all ethnic, religious and other groups could live in security and equality.
      Our inability to manage our affairs has led to the taking of arms by a desperate group of our citizens. We need to rectify this bad governance and the first and foremost task before us is to undertake constitutional reform in order to ensure that we have adequate devolution of power. We need to have State reform; we need to have rule of law established; we need to ensure non-discrimination amongst our citizens; we need to have devolution of power and a tolerance of dissent and a strengthening of democratic institutions.”

      • 0
        0

        mmhhh……….

        LLRC was then told: ”Each and every Government which held office from 1948 till the present bear culpability for the failure to achieve good governance, national unity and a framework of peace, stability and economic development in which all ethnic, religious and other groups could live in security and equality. Our inability to manage our affairs has led to the taking of arms by a desperate group of our citizens. We need to rectify this bad governance and the first and foremost task before us is to undertake constitutional reform.”

        That was at the end of a job in the UN.

        Diplomatic community is now told:”brutalizing conflict imposed on our nation by a secessionist-terrorist group we are only just beginning to undertake the sincere task of reconciliation and development recognizing that asphalt, brick and mortar are not enough to repair the damage of war.”

        This is ”presenting” the government as a Presidential Advisor.

  • 4
    8

    19 A has certainly made this lot happy.

    # President can not remove the PM at his discretion.#.

    No wonder the unelected PM is staying put, while Mahendran is signing LKR 5000 notes for the Elite, And Ravi is giving plum jobs to the in laws.

    Then you have Hirunika Nangi telling the Papperazi that the Prez should have disciplined the SLFP MPs soon after Nugegada.

    And it is not late even now.

    This comes after Duminda Aiya praised the President like hell and Siripavan’s HC as well,and expressed his confidence that they will look after him.

    Dr Mervyn has become the Chief Informer of Ranil’s F……CID.

    Wonder where Ranil will fit Vass Gunawardana..

    And just now hot off the Press, BBS has joined the Yahapalanaya , praising FM for admitting the BTF. to the UNP and TNA alliance.

    And BBS emphasized that the Diaspora must be there ( in Srilanka ) to give us Yahapalanya.

    How cool….

    These Elite, Anglican ,Vellala and the Wahabi mob are a Blessed Lot .. Aren’t they !!!!

  • 5
    1

    Yes, the 19th amendment is a welcome and desirable step. However, it could have been better. We were so close to have it so. It has been deprived of a vital element that could have isolated our public services from the political interference and over lordship that has almost decimated them. This situation needs to be corrected in the new parliament. Many other aspects of the 19th amendment as proposed have been subsequently amended at the committee stage. The details and implications are not public knowledge yet.

    The 19th amendment, with reference to the Constitutional Council, even as sapped, is yet paralysed due to shenanigans in our present parliament. The 20th amendment may also turn out to be not what we need and desire. It will be compromise to political expediency and vested interests.

    Should we prolong the burden the present parliament has been and is?

    Dr.Rajasingham Narendran

  • 0
    0

    The 19A: Centrepiece Of Good Governance OR a centrepiece of good “Dilution”?

    This was something MS desperately wanted to show the masses, oh! I kept my promise & I got it done. But there is nothing much to crow about in that as the Government party had to aceed to all the ammendments submitted by the opposition.

    MS wanted a feather in his cap & nothing substantial.

    As for the impunity, it is further compunded by the gazette of P.O Sec 55 and directing selected candidated to the FCID for investigation by a cabinet Sub Committee led by the PM.

  • 3
    4

    Can our President Bodhi Sira still prorogue Parliament?..

    It is good to see our new Yahapalana dispensers all dressed in at least two piece suits addressing the distinguished guests in Queen’s dialect.

    What a contrast.. What a turn around just in 6 months.

    Not even one Baiya to represent the great majority of the inhabitant population which is close to 70 % of the total.

    What have they got from these you beaut re jigging of uncle JR’s Constitution?.

    Sweet bugger all .

    And in fact made their lives even more miserable.

    No road works, no new factories, no new bridges, no new nothing.

    And the Foreign Investors don’t even want our LKR anymore according to the FT

    Worst of all even ones which employed thousands of our Dalilts in the South have been stopped.

    And Yahapalana Boss Ramil even sacked a whole lot of them to make room for Bathgottas.

    Perhaps the Finance Minister would disagree, after giving a plum Jog to his retired BIL, to take care of the Life run Insurance Policies of the Dalits.

    Do our Dalits have Life Cover, Travel Insurance, Trauma Insurance Income Protection Insurance and Property Insurance?..

    Because they may have to depend on these, if this Yahapalanaya continues for long..

    • 4
      3

      Sumane, you really are a miserable bug*er, aren’t you?

      Are you just incapable of ANYTHING else but to brown-nose the criminals who ruled the roost for the past 9+ years?

      What a pathetic loser you are – hope your pistol only fires blanks; the world will be the better off if your genes die with you!

  • 3
    0

    A very eloquent speech indeed. Why you forgot to mention the aspect of the President being made liable to be questioned in a “Court of Law”? Anyway on the whole this 19A was a welcome gift and let us move forward. However, we have so far failed to appoint our “Constitutional Council” that goes to make those appointments to various “Independent Commissions” and that itself shows how “corrupted” our Legislators are.

    As per the “100 Day” promise the proposals for the 20A would have commenced on January 28th 2015. Then an “Ethical Code of Conduct” would have been introduced legally for all representatives of the people on February 02, 2015. On February 18th and 19th, 2015 “Independent Commissions” and “The National Audit Bill” would have been established and appointments made respectively. On March 20th 2015, “The Right to Information Act” would have been passed by Parliament. On March 23rd 2015 “The Constitutional Council” would have been set up and the process of making appointments to an establishing “Independent Commissions” would have began. WHAT HAPPENED TO ALL OF THESE? Having conceded your eloquence in the presentation to the eminent audience referring to the “Centerpiece of Good Governance” what would have been your position and fate, if at least ONE among that congregation questioned you on the LAPSES and FAILURES of the Present Government in bringing into being all of those “CENTERPIECES OF GOOD GOVERNANCE” that I have referred to above. Do you NOT think that those that were promised and so far not implemented are the “CENTERPIECES OF GOOD GOVERNANCE”? If NOT, something is wrong terribly with you and the so called “Good Governance Team”. Or else, all of you are FOOLING us; but this time NO MORE.

  • 3
    0

    Waxing eloquently now !
    Would have more credibility if you had resigned from the dialog board when MR was in power and blocking CT. Oh no, went silent then when questioned by CT and continued to enjoy the dialog perks !

  • 2
    1

    The speaker’s motive is anybody’s guess. Beware! wolf in sheep’s clothing?

  • 0
    0

    ARMEN!

    For going is the Satan’s Bible!

    1948 Soulbury Constitution is still much better for Sinhalese Sri Lanka. A master piece of democracy for people not muddied by the Kunu Sinhala Intellectualism. One based on simple democratic principle, not manipulated by Sinhala Intellectualism, as an start, how to flex the law to deport Tamils to India. Tamils will have their one written adherence to the Post UN cultures. We do not want even Dhanapala, Radhika, Nambiar, Ban-Ki-Moon…. like UN Intellectuals, the counter parts of the Sinhala Intellectuals in UN, who corrupt that organization.

  • 0
    0

    The adoption of the 19th Amendment has to a large extent rectified the democracy deficit in the Executive Presidential system, is what Jayantha Dhanapala said. That statement, leads us to conclude that the Executive Presidential system of Sri Lanka, as is, even after 19A, is deficient on democracy.

    The greatest deficiency is in,

    *** The establishment of a Constitutional Council to approve persons for important public offices and to recommend persons for appointment to the office of Chairman and members of the ‘above’ Commissions.

    = The Constitutional Council was made ineffective when the House decreed that the Council would be constituted largely of members of the House.

    That defeats the whole purpose of the Constitutional Council.

    The shattering silence on the part of Jayantha Dhanapala and others on this vital aspect of 19A makes a mockery of the Amendment itself.

    The country has a long way to go before we could claim that we are also a democratic nation.

  • 1
    0

    I am pretty sure Jayantha dhanapala is thinking that UN had the same thing. Then Mr. Dhanapala also ha d a chance there to be the top.

  • 0
    0

    Very good introduction afforded by the absence of Rajapaksa. Bensen

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