20 August, 2019

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The 20th Amendment – A Flawed Determination? 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

When Maithripala Sirisena vacates office in January next year, the President of the Republic will revert to be the ceremonial Head of State, an office that was held with great dignity and distinction for 15 years by the late William Gopallawa. This is because under our Constitution, as amended in 2015, only a Member of Parliament may hold office as a Minister or Deputy Minister.  In a transitional provision, the 19th Amendment allowed Maithripala Sirisena, for as long as he holds the office of President, to assign to himself the subjects and functions of Defence, Mahaweli Development and Environment.  Of course, he also assigned to himself, without any constitutional authority whatsoever, and with such tragic consequences, the subject of Law and Order as well. 

A constitutional Head of State

The ceremonial (or constitutional) Head of State is not a mere figurehead.  He or she is a non-partisan, non-political, individual who symbolizes the unity of the State.  For over 24 years since Independence, the President (and previously the Governor-General) was also the Commander-in Chief of the Armed Forces and Head of the Executive.  However, the governance of the country, as in India, Canada, Australia and the United Kingdom (to name only a few functioning democracies) was the responsibility of the Cabinet of Ministers, chosen from among the Members of Parliament and collectively responsible and accountable to Parliament. The strength and efficacy of that form of governance was demonstrated by the remarkable speed and efficiency with which the January 1962 military and police Coup was foiled, and the April 1971 Insurgency was dealt with and normalcy restored throughout the country.  In contrast, the Presidency vested with full executive powers failed the people of this country in 1983, in 1989, and again in 2004 when the tsunami struck this Island.

Objectives of the 20th Amendment

It was obviously in that context, and in anticipation of the impending change in the constitutional role of the President, that the JVP presented the Bill for the 20th Amendment. That Bill had two principal objectives. One was to make certain consequential amendments following the enactment of the 19th Amendment. In the tumultuous circumstances in which the Bill for the 19th Amendment was debated and passed at a late-night session in April 2015, especially at the committee stage, several errors were made.  For example, while requiring that the President should always act on advice (of the Prime Minister or the Constitutional Council) before exercising his power of appointment, whether of Ministers, other important officers of state or independent commissions, the 19th Amendment had omitted two categories of public officers, namely, ambassadors and ministry secretaries. The Bill for the 20th Amendment sought to rectify that omission.  

The other principal objective was to provide for the President to be elected by Parliament. Almost all the executive powers of that office are now required to be exercised on advice.  The office of omnipotent President created by President Jayewardene in 1978 no longer exists. Therefore, it does not appear to make sense that a national countrywide divisive election, similar to a general election, at great financial cost and with attendant violence, should be conducted to choose the future incumbent of that office.  In India and elsewhere, the constitutional Head of State (i.e. a President who exercises most of his or her powers on advice) is usually elected either by an electoral college or by the legislature. Under the 1972 Constitution, the President was nominated by the Prime Minister.

The 19th Amendment Determination

To any student of constitutional law it would have been evident that the Bill for the 20th Amendment was within the power of Parliament to enact with a two-third majority of all its members.  In April 2015, a three-member Bench of the Supreme Court headed by Chief Justice Sripavan had unanimously held that Parliament could, without the approval of the people at a referendum: (i) reduce the term of office of the President elected by the People from six years to five years; (ii) prohibit a President from seeking election by the People for a third term; (iii) remove the legal immunity enjoyed by the President; (iv) repeal the absolute power which the President enjoyed of appointing the Chief Justice and Judges of the Supreme Court and of the Court of Appeal; the Attorney General, the Auditor General, the Inspector-General of Police, the Ombudsman and the Secretary-General of Parliament, and require him to do so only upon the recommendation of the Constitutional Council; (v) repeal the absolute power which the President enjoyed of appointing the independent commissions such as the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission, and the Bribery Commission, and require him to do so only upon the recommendation of the Constitutional Council; (vi) repeal the absolute power which the President enjoyed of dissolving Parliament at any time, and enable him to do so only at the request of Parliament by a resolution passed by two-thirds of its members, except during the final six months of its term; (vii) repeal the absolute power which the President enjoyed of appointing Ministers and Deputy Ministers, and require him to do so only on the advice of the Prime Minister; (viii) repeal the absolute power which the President enjoyed of removing a Minister or Deputy Minister, and require him to do so only on the advice of the Prime Minister; and (ix) to repeal the absolute power which the President enjoyed of removing the Prime Minister from office.

Rectification of an omission

Apparently inadvertently, the draftsman of the Bill for the 19th Amendment overlooked the fact that the Constitution also empowered the President to appoint two other categories of public officials, namely, heads of diplomatic missions and secretaries of ministries.  The Bill for the 20th Amendment sought to rectify that omission by requiring the President to act on the advice of the Cabinet of Ministers when appointing these officials.  In October last year, a three-judge Bench of the Supreme Court determined that such an amendment could be made only if the Bill was passed, not only with a two-third majority in Parliament, but also with the approval of the people at a referendum.  

It is submitted that that Determination was not only flawed in law but was also made per incuriam.  No reference whatsoever was made by the Court to the Determination of the three-judge Bench headed by Chief Justice Sripavan on the Bill for the 19th Amendment in which the identical issue had already been decided.  That Determination was not distinguished on any ground, nor held to be wrong.  If Parliament, with the approval of the Supreme Court, was able by a two-third majority of its members to require the President to act on advice when appointing Ministers, Judges, high state officials and independent commissions, why is approval by the people at a referendum required if he has to act on advice when appointing the remaining two categories of public officials who were obviously inadvertently omitted in the Bill for the 19th Amendment?  If the President could have been required, by a two-third majority in Parliament, to act on the advice of the Prime Minister when appointing a Minister, why is approval by the people at a referendum necessary to require him to act on the advice of the Cabinet of Ministers when appointing a Secretary to a Ministry? As a student of constitutional law, I find that inexplicable.

Election of the President by Parliament

The Bill for the 20th Amendment also sought to provide for the President to be elected by a majority vote in Parliament instead of at a nationwide election. For that purpose, it sought to amend Article 4 of the Constitution by deleting the words within brackets below, and by inserting the words in italics:

a) The executive power of the People, including the defence of Sri Lanka, shall be exercised by the President (elected by the People) and the Cabinet of Ministers as provided for in the Constitution.

b) The franchise shall be exercisable at the election of (the President of the Republic and) the Members of Parliament and at every Referendum by every citizen . . .

The Court held that these amendments to Article 4 were required to be passed not only by a two-third majority in Parliament, but also with the approval of the people at a referendum.  It is submitted that this determination is also flawed in law because an amendment of Article 4 does not require approval at a referendum.

The Constitution states quite explicitly in Article 83 that certain provisions may be amended only if a Bill for that purpose is passed by a two-third majority in Parliament and then approved by the people at a referendum. These entrenched provisions relate to the name of the state (Art.1), the unitary character of the state (Art.2), the sovereignty of the people (Art.3), the national flag (Art.6), the national anthem (Art.7), the national day (Art.8), the foremost place of Buddhism (Art.9), the right to freedom of thought, conscience and religion (Art.10), and the right to freedom from torture (Art.11). Also requiring approval at a referendum is a Bill that seeks to extend the life of Parliament (Art.62.2). In respect of the office of President, a referendum is required only if Parliament seeks to extend his term of office (Art.30.2).  Article 4 is therefore not an entrenched provision of the Constitution.  In fact, in the Draft Constitution that was presented in Parliament in 1978, Article 4 was included in Article 83, and had it remained there, any amendment of that Article would have required the approval of the people at a referendum.  However, at the committee stage, Justice Minister Devanayagam moved to delete Article 4 from Article 83, and it was accordingly deleted. 

The Full-Bench Determination of 1987

In 1987, in the Determination of the Supreme Court on the Bill for the 13th Amendment, Chief Justice Sharvananda (with Justices Percy Colin-Thome, E.A.D. Atukorale and H.D. Tambiah agreeing, and Justice Parinda Ranasinghe agreeing in a separate opinion) had this to say:

“It was submitted that Article 4 which sets out how the sovereignty of the People is to be exercised, has to be read with Article 3 as an integral part of Article 3, and as such is entrenched along with Article 3 by Article 83. The Constitution expressly specifies the Articles which are entrenched. Article 4 is not one of those Articles. The legislative history of the 1978 Constitution shows that Article 4 was deliberately omitted from the list of entrenched Articles. . . 

Article 4 sets out the agencies or instruments for the exercise of the sovereignty of the People, referred to in the entrenched Article 3. It is always open to change the agency or instrument by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the People.  Article 4(a) prescribes that “the legislative power of the People shall be exercised by Parliament consisting of the elected representatives of the People and by the People at a Referendum.” Article 4(a) can be amended to provide for another legislative body consisting of elected representatives, so long as such amendment does not affect Articles 2 and 3. Similarly, an amendment to Article 4(b) can be enacted by providing for the exercise of the executive power of the people by a President and a vice-President elected by the People.

. . .In our view, Article 4 is not independently entrenched but can be amended by a two-third majority, since it is only complementary to Article 3, provided such amendment does not impinge on Article 3.  So long as the sovereignty of the People is preserved as required by Article 3, the precise manner of the exercise of the sovereignty and the institutions for such exercise are not fundamental. Article 4 does not define or demarcate the sovereignty of the People. It merely provides one form and manner of exercise of that sovereignty. A change in the institution for the exercise of legislative or executive power incidental to that sovereignty cannot ipso facto impinge on that sovereignty.”

That was the authoritative Determination of five Judges of the Supreme Court.  Justice Wanasundera dissented.  In his view, 

This Court has in fact ruled in a series of cases that Article 4 had to be read with Article 3. . . I think it is too late in the day to argue that this is not so.”.

While Justice Wanasundera’s view appears to have received the concurrence of three other Judges, (Justices O.S.M. Seneviratne, L.H. de Alwis and H.A.G. de Silva), it was the majority determination of the five Judges that prevailed.  In our legal system, the doctrine of precedent means that, in the matter of the interpretation of a law, the majority view is binding.  However, in respect of the Bill for the 20th Amendment, the Court cited the minority opinion of Justice Wanasundera and chose to follow it.  It did not explain why it chose to ignore, or why it considered it was not bound by, the authoritative 1987 Determination of five Judges of the Supreme Court.  In fact, the Court made no reference to the majority view at all.

The Supreme Court in its determination also cited an opinion expressed by Chief Justice Sarath Silva in 2002 when examining the constitutionality of a Bill presented by the short-lived UNP Government that sought to restrict the power of President Kumaratunge to dissolve Parliament.  Heading a seven-member bench, Chief Justice Silva had held that the provisions of Article 4 were inflexible.  He made no reference to the previous 1987 Determination of five Judges on the same issue.  It was as if that Determination did not exist. It was as if the issue had been raised for the first time in the Supreme Court.  In that respect, Chief Justice Silva’s statement of the law may also be said to have been made per incuriam.  Incidentally, notwithstanding Chief Justice Silva’s definition of the scope of Article 4, the 19th Amendment did in fact introduce a provision to the same effect, restricting the President’s power to dissolve Parliament.

Misapplication of Article 3

It is Article 30(2) of the Constitution that prescribes the manner of election of the President. It states that “The President of the Republic shall be elected by the People and shall hold office for a term of five years”. The 19th Amendment had reduced the term of office of the President from six to five years. The Bill for the 20th Amendment sought to substitute the word “Parliament” for the word “the People”. A consequential amendment that the Bill sought was to delete the words “the President of the Republic” in Article 4(e), so that it would read: “the franchise shall be exercisable at the election of the Members of Parliament and at every Referendum.” 

In its determination, the Court observed that:

“If the election of the President of the Republic by the People (Presidential Election) is abolished, the franchise of the people that would be exercised by the People at the said election would be removed. Therefore, removal of the franchise of the people that would be exercised by the People at an election to elect the President of the Republic would violate article 4(e) of the Constitution.”

The Court concluded thus:

“When we consider Articles 3 and 4 of the Constitution, we feel that the Sovereignty is: 

  1. The legislative power of the People,
  2. The executive power of the People,
  3. The judicial power of the People and
  4. The franchise of the People.

that would be exercised at Presidential Election, Parliamentary Election and Referendum. Therefore, it is correct to say that the franchise of the People that would be exercised at Presidential Election, Parliamentary Election and Referendum is part of Sovereignty and the executive power of the People which would be exercised by the President of the Republic is also part of Sovereignty. For the above reasons, we hold that if a Bill violates executive power of the People and franchise of the People that would be exercised at a Presidential Election, and a Parliamentary and a Referendum, it would violate the Sovereignty of the People and thereby would violate Article 3 of the Constitution.. . and therefore should be approved by the People at a Referendum.”

Interpreting Article 3

It is a matter for regret that while the Supreme Court had on innumerable occasions invoked Article 3, it had never attempted to ascertain its genesis.  It first appeared in the 1972 Constitution in the following form:

“Art. 3: In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable”.

In that autochthonous Constitution, which was adopted and enacted outside the existing constitutional and legal framework, Article 3 served to assert that sovereignty flowed, not from “The King’s Most Excellent Majesty in Council” who had provided the then existing Constitution in the form of an Order in Council, but from the People who, at the general election of 1970, had given a mandate to the members of parliament they elected “to function as a Constituent Assembly to draft, adopt and operate a new Constitution that will declare Ceylon to be a free, sovereign and independent Republic”.  It was in the exercise of that sovereignty that the elected representatives of the people proceeded to draft and enact a new Constitution outside the existing legal order.  That sovereignty of the people was declared to be inalienable in the sense that it could not be transferred, for example, to a foreign power, the military, or a political party, or indeed restored to the British Crown.  That was the intention of the Drafting Committee in which I served as a member.  That was the rationale for its inclusion for the first time in a constitution of our country.

In the 1978 Constitution, Article 3 was reproduced, but with the addition of an explanatory sentence:

“Art.3: In the Republic of Sri Lanka, sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.

The Constitution thus provided examples of the components or elements (or, in the words of Chief Justice Sharvananda, agencies or instruments) of the concept of sovereignty which are inalienable.  Sovereignty in all its aspects remains vested in the people of Sri Lanka, and, whether in its entirety or partially, may not be exercised or enjoyed by agencies or instruments beyond the control of the people of Sri Lanka.  Accordingly, the powers of government may not be usurped by the military; fundamental rights may not be abolished, and the franchise may not be restricted only to the members of a political party.  That, in my view, is the purpose and scope of Article 3.

A per incuriam Determination?

The exercise of sovereignty by a particular agency or instrument is, as Chief Justice Sharvananda held, always open to change by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the people.  Therefore, when the Bill for the 20th Amendment sought to provide for the President to be elected by Parliament, instead of through a nation-wide election, the fact that Parliament is itself elected by the people at a general election in the exercise of their franchise was a very relevant factor which the Supreme Court appears to have failed to consider.  It meant that the people, through the Parliament which the people had elected, elects the President.  It is an indirect exercise of the franchise; not the denial, abolition or alienation of the franchise.  Indeed, if the Prime Minister and the Ministers who now exercise executive power are chosen from Parliament, it can hardly be unconstitutional for the ceremonial (or constitutional) President to be elected, not directly by the people, but indirectly through the Parliament elected by the people.  The failure of the Court to take note of the binding Determination of five Judges led by Chief Justice Sharvananda on the interpretation of Article 4, has resulted, in my submission, on rendering its Determination also per incuriam.

Conclusion

The Bill for the 20th Amendment is not free of a few logistical flaws.  However, it seeks to fulfil a promise made to the country on numerous occasions since 1989 by a succession of presidential candidates, but which they failed to honour after they were elected to office.  If only for that reason, it deserves to be revised and re-introduced.  Perhaps a fuller Bench of the Supreme Court ought to be invited to conclusively determine whether the country should shortly be subjected to further debilitating divisions in choosing its ceremonial (or constitutional) President, or whether that task should be performed by the people through a Parliament elected by the people.

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Latest comments

  • 3
    2

    Dear Dr.Jayawicreme ,
    The ‘rule of law’ presumes that Courts of justice have an inherent power to punish all persons for contempt of their rules, orders and for disobedience of their process, and also for disturbing them in their proceedings.
    That is what the monk did and that is what he was punished for.
    Can the president exercise his presidential prerogative of pardon in this instance without the concurrence of the bench that affirmed the conviction and sentence on appeal?
    Has the president violated his oath of office which binds him to uphold and protect the constitution.

    • 9
      1

      Dear Sarath,

      Article 34 of the Constitution provides that the President may grant a pardon or remit the whole or any part of the punishment imposed for an offence. Except in the case of a person sentenced to death, where the President is required to obtain reports from the Judge, the Attorney General and the recommendation of the Minister of Justice before exercising this power, he may act on his own in respect of all other prisoners.

      A pardon is usually granted if evidence has later surfaced which indicates that there has been a miscarriage of justice. A person granted a pardon is deemed never to have been convicted. The usual relief granted to a prisoner is the remission of the balance portion of his sentence to enable him to be released from prison, and this is done through a general amnesty. I do not know which method was adopted in the case of the priest.

      To release a prisoner who has been convicted of contempt of court and sentenced to a long term of imprisonment is a direct challenge to the authority of the court. To do so after he has served only nine months of a six-year sentence of imprisonment demonstrates a total lack of respect for the Rule of Law. Having regard to the evidence on which this priest was convicted, and especially the absolute contempt he showered on the judge and state counsel, and the threats he uttered on a woman who was present in court, and the fact that the conviction and sentence were confirmed by the Supreme Court, I do not know of any previous instance when the authority of our Judiciary was challenged, undermined and ridiculed by a Head of State in this manner.

      • 2
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        Dear Dr,Jayawickreme,
        I am not a lawyer. Thank you for the cogent summary . If virtue is to be cultivated we need institutions that give a better accounting of good and evil. Thank you again.

      • 0
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        Nihal Jayawickrama replying to Sarath says, {“……A person granted a pardon is deemed never to have been convicted……..”} and follows up with strong words.
        The ‘man’ has not been pardoned but name included in the ‘Amnesty List’.

      • 1
        1

        Excellent explanation.

        In light of what happened on Easter Sunday, we know now that the Monk was not just carrying on for nothing.
        Besides didn’t every one who do not follow Dr Ranil’s Politics know that it was a Political witch hunt to fix the Monk.

        What bothers me is one of the current Ministers who is under siege after the Easter Suicide attacks was accused of manhandling a Magistrate in Mannar.

        And a Yahapalana Governor who is also under siege for the same incident told the Media that a Judge released a suspect who was connected with the Easter Bombers,,
        Don’t those actions undermine the authority of the Judiciary and the Judges?.

        • 2
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          Yes it does but not to the extent of how MaRa interfered with the whole system of judiciary!

      • 2
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        Dr.jayawickreme
        “I do not know of any previous instance when the authority of our Judiciary was challenged, undermined and ridiculed by a Head of State in this manner.”

        you must be suffering from amnesia.What about when JRJ granted pardon to his UNP thug pardon after he had raped a doctors daughter,that too a gang bang at galle face.Sothi upali was supposed to take her to her home in a trishaw from galle face after a party,but took her to galle face instead.Not only that he was made a JP.

        what about mahinda pardoning milroy fernando’s wife afetr she got his mistress and her servant tortured,killed and burnt.

        All this shows that power corrupts and absolute power corrupts absolutely.

        When we transfer power to those who govern us we automatically transfer the power of the people.So we have to be careful that we give only adequate power to those who govern us,otherwise they will trample us with that power as you saw with white vans etc and censorship of the media.There fore it is high time we just abolish this presidency.Look at switzerland for example,the power is concentrated within the people.Many do not know even the name of the PM.Self governance is the best without overly relying on uneducated,uncultured clowns to govern us.

    • 0
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      Crime is explained by or expressed by the punishment rendered to the criminal. So those who have received equal sentences committed equal crimes. Contempt of court could is not be the ultimate crime one court commit. Elevating a crime for fancies and whimsies does not serve justice. If child molester needs to have registered his name his entire life that tells the nature of the crime. President’s pardoning authority is determined by the constitution, the chief law of the land. There, the People are determining who and when will be pardoned. Outside the court, the judge is an ordinary citizen. Is there is a need to elevate the judge who delivered the judgment to reverenced Kandy Ayatollah? For what the heck is that? Is it something like PS chief can demand the teacher to stand on her knees to plead an excuse from him for punishing his daughter? From where the judge or the court is getting the additional elevated authority or the unwanted respect beyond the one delivered in the constitution? Court is not a man or woman- a system for people’s need. It does not have ultimate binding authority, either. People have the authority have anything changed through the parliament. How many times the judgements are Sinhala Jury only verdict? How Many times courts miscarried judgements? How Many times DNA test exonerated one, a rapist-killer, by the court designation? How many times lawyers and judges were convicted?

    • 0
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      I’m not a lawyer but from what I learned by casual reading, the constitution doesn’t state limits for presidential pardon. In general practice, however, presidential pardon usually follows the trend in public opinion mainly b’cos they are politically motivated. It is very clear that politics of following public opinion played huge role in this particular case. In any case, expecting the man who keep violating the constitution almost daily since Oct 26, 2017 to pay attention to a seemingly hairsplitting constitutional argument is like expecting the Sun to rise from west tomorrow!
      At the same time, I also believe that president is trying to use this pardon as a “sacrificial lamb” to escape from his guilt of the massive security failure by hoping that this pardon will make S/B majority stand by him! In other words, president will try to out maneuver any legal challenge against lying to the public by agitating S/B support in his favor.
      This will create a dangerously heated racial tension of unprecedented level. I think that the intellectual community has to be united and get ready to face this challenge head on before it is too late. The challenge is to use the law to hold the president responsible for his lies and his attempts to evade liability by finding two escape-goats possibly via Malalgoda report. President’s selfish behavior designed to hold on to the job is harming all the efforts to put down the fire of racial tension in SL. Therefore, the intellectual community must get together for two prong attack:, on one hand, to start a public awareness program to nullify president’s efforts to invoke S/B support while on the hand to mount a strong legal battle!

    • 1
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      Sarath de alwis,
      \
      What is the basis of your questioning of the president’s decision on the rediculos reasoning that he should have consulted the ‘bench’. The judgement (a ridiculously long sentence ofsix years RI) for alleged contempt of court was given by a magistrate with a dubious record.
      \
      Read the American constitution (that you worship) and find out your master’s procedure you would rather emulate. The pardon power is granted to the President of the United States under Article II, Section 2 of the Constitution. Just to remind you of your masters’ process in action, Barack Obama’s last act as president in 2017 was pardoning Chelsea Manning, the Army intelligence analyst who was serving a 30 year sentence convicted of a 2010 leak of illegal and disgraceful American military and diplomatic activities to WikiLeaks.
      \
      You seem to have trouble with our president releasing a monk . Despite that, the president’s pardoning of Gnanissara seems to have angered you like a yellow robe to an Anglican’.
      \
      You, like all yahapalana hacks seem to have a habit of discarding the actions of your masters even, for reasons of domestic political advantage. (Or is it pure ignorance?).

  • 0
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    I observe the following: Para 1-Presidency reverting to ceremonial state after the vacation of office by MS. Oh! No! As long as it is possible for a member of a political party to contest the presidency elected by the people and the elected continues to be a member of a political party then he can pinch if and when required. Consider the following extreme possibility. PM names individuals to the Cabinet. Yes! They are ministers but the assignment of subjects and functions lies entirely in the hands of the President. MS took Law and Order. Are you sure? All that was done was to assign the Police Department under the Ministry of Defense which even the President after MS can do and the Ministry titled Law and order ceased to exist. What was done unconstitutionally for a long time but corrected recently was to keep the Telecommunication Regulatory Commission under him directly as the President. Now he has placed it under the Defense Ministry. Para 2 – It is true that the previous system operated very well BECAUSE THE INDIVIDUALS HAD SOME SENSE OF VALUES. The executive presidential system started from 1977 bread all kinds of other individuals. Convicted rapists were pardoned and made JPs. That too could have been done under the previous system but WAS NOT DONE BECAUSE THE SENSE OF GOOD VALUES PREVAILED. The basic question is must a President directly elected by the people be a figurehead? On the other hand if the President and Premier who get elected either directly or indirectly by the people are from different political parties and they continue to be so, what is the safeguard to prevent in fighting and thus paralyzing the state as seen today? However, the current setup caused the exposure of the Bond, Scam not otherwise.

    • 0
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      Many those who lost election are made ministers. Many of these guys are criminals. Rishard is minister but accused in Old Royals government for raiding Mannar court. Hakeem is associated with Kamari’s death. None of these are solved. New King is himself an accused war criminal. Why shouldn’t he pardon Gnanam? Because certain people adore some war heroes (criminals) but Gnanam is not one of them?

  • 2
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    It may be appropriate to include the provincial governors to the list of public functionaries to be cleared for appointment by the Constitutional Council. Some present incumbents of office are alleged to have had links to extremists and terrorists.

  • 3
    10

    “When Maithripala Sirisena vacates office in January next year, the President of the Republic will revert to be the ceremonial Head of State, an office that was held with great dignity and distinction for 15 years by the late William Gopallawa.”

    Given that President Sirisena who coexisted uneasily with a coalition partner, then ruptured with that partner as did President CBK in 2003, and coexists uneasily with a Cabinet and Parliament dominated by that erstwhile partner, is nonetheless hardly a ceremonial Head of State a la William Gopallawa, it is hard to imagine how a freshly elected President, who may not feel so hamstrung, will play such a self-effacing role.

    Perhaps in the current climate of security consciousness on the island and high octane nationalism in the neighborhood (and the world), such a President, who is also Defense Minister and Commander-in-Chief, and may enjoy the support of powerful allies in the House, will be the most robust we have seen in a while.

    • 1
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      If you read beyond the first sentence (which you have cited), you will learn that my article has nothing to do with President Sirisena or the manner in which he has handled the affairs of state. It is about the correctness of a determination made by the Supreme Court on the Bill for the 20th Amendment. I have addressed questions of law.

      • 1
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        Dr Nihal Jayawickrema – It is extremely difficult for a person with poor comprehension to understand the nature, effect and content of your article. This is what happens when a bogus Dr, warmonger and public racist#1 puts in his two cents’ worth.

    • 1
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      Ah! The realist school speaks. The freshly elected president will be the commander in chief but not minister of defence. If the President is Honorable Gotabaya Rajapaksa it will be a distinction without a difference.
      Any other successor will be what the 19th amendment with all its flaws makes of the presidency. He will not be defense minister. or for that matter any other minister. As for powerful allies in the house we will have to wait for the next general election.

    • 0
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      “ Given that President Sirisena who coexisted uneasily with a coalition partner, then ruptured with that partner as did President CBK in 2003, and coexists uneasily with a Cabinet and Parliament dominated by that erstwhile partner, is nonetheless hardly a ceremonial Head of State a la William Gopallawa, it is hard to imagine how a freshly elected President, who may not feel so hamstrung, will play such a self-effacing role. “
      Given the fact the man is a war criminal by OISL report and must have been on the UN electric chair long ago for white flag murder, ate the Judas Aappa and dumped his partner in War Crime, attempted to threatened his partner that he has files on his partner, then dismissed the parliament in April 2015 to save his new partner from CB looting, then naively let his old partner to lead the general election, hoping to throw away his butterfly new Partner away and control his old partner though the party leadership so he can manipulate EP and PM positions, then his old partner started to break up SLFP to create Slap party, but being not able to do anything, sitting and goofing fearing to take away his MP position, then in LG election cut the branch he was sitting and defeated himself against the Old Partner, then used a runaway minister to patch him and Old partner to stage a Coup, then seeing his Old Partners changing in favor of America to become EP on the next election he used ISIS to bomb Tamils churches to threaten the West & UNHRC while hiding in Ezhumalaiyan temple, , then let the NWP riots to flare and ran to China to have him protected…………

    • 0
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      What do you mean by powerful allies, Yopu mean Mangala <Ashu Marasinghe, Sarath Fonseka, Milinda Moragoda, Ranil, Raajitha Senarathne, KAtu Jayasooriya, Nimal siripala De silva and all those whose children are naturalized in the UK, USA etc., etcf.

    • 0
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      That may depend on which party wins. If the new president is from UNP, he will try to self-efface for it will be helpful for Gvt’s economic plan & its intention of abolishing the presidency altogether!

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    To Mr. Sarath de Alwis and the writer’s reply: One of the affected parties, i.e. Mrs Eknaligoda has already indicated that she would CHALLENGE the decision of the President to pardon Gnanasara in the SC. That is the way FORWARD. Let us wait and see the OUTCOME. If this application do come before SC, I believe , Attorney General must refrain from appearing for the President in “Defense”, because, if he does so, that would indicate he himself is “defending” and “upholding” the grave injustice and INSULT brought on the Judiciary and the Rule of Law of the country by the highest Executive.

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    The ceremonial Head of State is not a mere figurehead.

    He or she is , non-political,but has to make political decisions when called upon to do so in terms of the constitution.

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    Dr Nihal Jayawickrama discusses {“The 20th Amendment – A Flawed Determination?”}
    The layLankans using only common-sense concluded that there were selfish motives in the ‘Old Constitution’, more of it in the ‘New Constitution’ giving “Pride of place to Buddhism” and even more in the JR J ‘Newer Constitution’. The amendments were-crass selfishness.
    No wonder these benefit only the Lankan Elites.
    The Constitution must be interpreted with the heart.

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    “Article 4 sets out the agencies or instruments for the exercise of the sovereignty of the People, referred to in the entrenched Article 3. It is always open to change the agency or instrument by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the People.
    …………………
    …………………
    1. The legislative power of the People,
    2. The executive power of the People,
    3. The judicial power of the People and
    4. The franchise of the People.

    that would be exercised at Presidential Election, Parliamentary Election and Referendum. Therefore, it is correct to say that the franchise of the People that would be exercised at Presidential Election, Parliamentary Election and Referendum is part of Sovereignty and the executive power of the People which would be exercised by the President of the Republic is also part of Sovereignty. For the above reasons, we hold that if a Bill violates executive power of the People and franchise of the People that would be exercised at a Presidential Election, and a Parliamentary and a Referendum, it would violate the Sovereignty of the People and thereby would violate Article 3 of the Constitution.. . and therefore should be approved by the People at a Referendum.”
    “Art. 3: In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable” (1972).
    “Art.3: In the Republic of Sri Lanka, sovereignty is in the People and is inalienable. “ (1978)

    My question where is article3 is existing in Lankawe. Is it in the blue sky? Is it a mirage? My understanding is, in Lankawe there is no sovereignty or inalienable sovereignty is existing with Sinhala Buddhists (May it is with Chinese or New Colonial Master Abdul Aziz, who manage the affairs of Lankawe, sublet to them by Ranil, New King and Old King. BTW Tamils didn’t give any consent to Sirimavo as per SLV) .

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    I don’t think the judges’ augment goes well.

    The important components to people are Legislative and Franchise Judicial is not with in the hand of people and it one of the most corrupted and extremely subordinated to parliament and executive. So brining it here as 3rd element is pointless. The EP election process is important in Lankawe because it is being with the executive power. But, whether the Executive power is with EP or with parliament and cabinet, Legislative body’s election is important to people. Unfortunately, in Lankawe electing legislative body is not within the hand of people, but within the hand of political parties and how the parties will have determined its members is manipulated, yearly, by election laws, which is altered in all way the parliament likes (to majority rule). So none of the parliamentarian in the house is someone people wanted and the legislative process is out of people’s hand. This flouted by PR system and too many nominated MPs. Half of cabinet ministers are MPs lost in the election and half of the MPs less than minimum education level. The people cannot delicate their legislative and executive part of the sovereignty by any kind of election process. So practically this makes, even the Franchise part is not available to people. So, in that condition, people are able to exercise their sovereignty is only one way that is they directly electing the EP. That is the reason justices should have cited, i.e. by allowing to abolish the current EP and the election process, the people are shut off all their ways of exercising their sovereignty. It might need a completely new Constitution, not an amendment, to abolish EP & return stolen election system & the peoples’ franchise sovereignty. The current situation is a referendum is enough to bring the MPs, then MPs can bring the EP, EP controls the court and the cabinet. There is no need for election at all.

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    I am not comfortable with the 2/3 majority in Kotte.
    This is not 1971 or even 2004.

    Kotte Politikkas now trade their Votes up to LKR 500 Million each.
    That is the figure which the Prez himself mentioned .
    LKR now fetching nearly 200 , the Diaspora Dollars can afford that sort of money quite easily.-

    Don’t forget Dr Ranil’s mates collected LKR 34 Million each with in 12 Months of Yahapalanaya just by selling their Car Permits.

    Dr Ranil by converting all Politikkas in to a CA made the preparations for that 2/3 to change the constitution and make it Federal.
    Thank God Sira was able to pulled the Plug because he was still not just Ceremonial..
    -.
    Just imagine Dr Ranil was the all powerful Executive Head of our Motherland
    With all the Jihadis and the Wahabis spread around the nation among our great majority who are Sinhala Buddhist and Catholics..

    While the Tamils and the other Muslims are living in their own Homelands with Police and the Land under their Belt.

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    More patch work of the failed constitution .

    People need to decide now of completely doing away with this constitution that only waste large sums of money on unwanted elections and nourishing the politicians , while the some poor can not even afford to have a simple roof above their heads, feed their children with a little good healthy meal., educate them and buy them simple dresses and healthcare.

    If The politicians want to continue patchwork this miserably failed constitution , the people need to ask.themselves do we continue being sheep so the wolves continue feasting on us or do we demand for 100% peoples constitution.

    Untill.this constitution is done away compleyely and a 100% peoples constitution is introduced that provides 100% transparency in everything the government does from borrowing foreign loans,grants , developments , government job appointments ,housing distribution ,investments, building roads and highways, permits to trade in our natural.resources and yes most importantly tender board should become independent one single body with.members elected by the public and 100% transparent .

    That is a lot to expect from politicians & with it there is no other way to move forward.

    People should study how our tenders , job appointments , foreign grants and waste of public funds on elections rather than becoming unintentional tools to politicians spreading rumours and hate on social.media .

    Instead use this powerful.platform.to stop the wastage and change the constitution and tender proceeding and proper use and distribution of grants .

    Only the people can do it.

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    Correction
    Without it there is no way we can move foward

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    Btw a goose walked over my GRAVE when I heard that some ISIS members have left Sri Lanka Shores by a boat to kerala, but of its true am sure the final destination is not Kerala.

    Does this mean ISIS just got their first set of recruits with the blessings of The mob violence ?

    What have the mob violence got us into this time ?

    If houti rebels have advanced missiles and sophisticated Drones .

    Well.I fear to even want to think.about it .

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    When we speak of the constitution, why is that plundering of the treasury is not identified as violation of the trust placed on the executive and legislature by the sovereign rights of the masses? Any explanation?

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    NIhal :

    The 20th Amendment – A Flawed Determination?

    *** Yes it is a Flawed derermination. There is a song ” Pathinarum Niraiyatha Paruvamankai”.
    We ( the Tamils) have now passed the teenage years 19th being the last one and it wasnt FIT for PURPOSE like the Consumer Law. We are now into adulthood and about to get married so we need to move out into a seperate roof and have a Family. We can always revisit the IN LAWS MS & RW for lunch and baby sitting. .

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      Nihal!
      What is the punishment available for Judges who commit Contempt of
      Justice and there after confess to it. (Sarath N.Silva) and to those Judges who fail to Give Judgement within a reasonable time after conclusion of hearing.

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    Waiiiiiiit a minute!

    Does it mean that under the 19A if Herr Gotler, EC American citizen, darling of undereducated defenders of race and religion in Asgiriya, patron saint of Eliya, purchaser of MIGs from ghost companies, were to win the presidential election, he would be a ceremonial head of state like President Gopallawa with only the additional powers of appointing ambassadors (who will of course be crooked first cousins) and ministry secretaries?

    Ha, ha, ha,ha! Why this fuss about who will be the presidential candidate?

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    no matter what law you formulated and draft and approved,still we have system ,criminals,drugs dealers and public cheaters can be member of the parliament like today majority are same shed. in addition to monks whose are do not believe any path to enlightenment under the Gautama buddha had selected politis and coming to parliament make it more difficult situation because people have to double respect these guys.
    look our history, in 1956 Bandaranayake’s policies which make entire nation into communal divided and until 1071 in which year it make more worse ,them using that opportunity JR power and make most dangerous and useless constitution ,now we are again making constitution to address current issues but LTTE AND SISI brutal terrorists action make new direction. so our politicians look more selvery job in middle east and more labor jobs in south korea for young people ,now it is better we teach arabic and korean languages in the school better than sinhala because it helps people to improve communication skill where they have to be selvery

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