16 April, 2024

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The 22nd A (Now 21A) Could Lead To Another Constitutional Cum Political Crisis

By Mahinda Pathirana

Mahinda Pathirana

22nd amendment to the constitution was approved by the parliament on 21st October 2022, with 179 for, 1 against and more than 40 Members of Parliament abstaining. Modelled on the controversial 19th Amendment, enacted in 2015 following the victory of President Maithrepala Sirisena, 22A is substantially not different from the former in its outlook and purpose, except some restrictions imposed by the Supreme Court on curtailing the powers of the executive. In marked contrast to the view of the Supreme Court back in 2015, this time the highest court seemed to have acted more rationally while determining bill’s constitutionality regarding the presidential powers delegated by the people. 

The objective of introducing both 19th and 22nd amendments to the constitution was limiting or restraining presidential powers, assigned to it by 78 constitution, while purportedly delegating such powers to the parliament. In order achieve this mission, both amendments proposed to set up a constitutional council (CC), comprising members of parliament and those of civil society, appointed by the speaker. In that sense, it is not delegating power to the parliament, rather to a committee, comprising also of non-parliamentarian.  This extra parliamentary council is created in a way that lies between the legislature and the executive, and acting as intermediary between the two organs. 

At the very outset, it should be highlighted that the name “constitutional council” itself is misleading in terms of its mandate. We find constitutional councils attached to constitutions of several countries in the world. For example, in France, such a council is operational since 1958, with the advent of so called fifth Republic in that country. We have similar mechanisms in the same name in the republic of Camaroon and Cambodia too. Objective and purpose of all these constitutional councils are completely different from that of what the CC here in Sri Lanka proposes. They play the role of what the supreme court of Sri Lanka does i.e interpreting the constitution, when demanded to do so and settling legal disputes between the government and the legislature. No constitutional council interfere with the executive to perform petty things such as appointing commissions etc, as the CC of Sri Lanka does.  So the basic idea of thinking behind this mechanism is fundamentally flawed.  

Having said so, let us now go onto principal discrepancies that the piece of law create. The main issue with the council is its role in distorting the doctrine of separation of power between the executive and the legislature. In adhering to the doctrine of separation of power, authors of constitutions anywhere in the world seeks to smartly separate powers assigned to it from the other, so that each pillar of democracy can discharge its duty without being unnecessarily hindered by the other. In the 78 constitution too, this rule has been reverently followed and has been in existence up to the adoptions 20th Amendment in 2020, with the exception of the principle being briefly disrupted by the 19a. Even the 13th Amendment, which introduced provincial council by devolving power to the periphery did not want to disturb the equilibrium. This doctrine is closely followed by framers of constitutions, for the violation of the same can create a constitutional deadlock or impasse. Such a deadlock leads to a constitutional crisis. 

This is exactly what happened in Sri Lanka, after the adoption of 19th Amendment in 2015. The amendment swiftly put the President Sirisena and Prime Minister Wickramasinghe on a collision course, culminating in former sacking the latter following a series of ugly political battles. The reason for such a debacle is that both leaders seemed to have claimed the executive powers in governing the country. As well-known German philosopher correctly put it, the will to power is an inherent quality of beings, including that of human. Triggered by this inclination, the President and Prime Minister tended to run two parallel governments in one, pitting one against other. The dire consequences were to be borne by the people in this duo. In the backdrop of attempt to consolidating power by one party over the other, the victim was the smooth functioning of the governance. The economy took the highest toll, growth rate taking a nose dive, had fallen from a rate of 5.01% in 2015 to as low as 2% by the 2019. The lackluster growth rate could clearly be traced back to the economic crisis that the country is in today, with the economy being unable to cushion the shocks created by the pandemic. 

While economy was suffering for the want of political stability and coherent economic policy, the sphere of national defense was already in disarray, again due to the split of state into two factions, giving no one definite responsibility of the vital area. Security forces, including the police and intelligent agencies were at a loss getting guidance, direction and command from neither faction of the government. The crisis gradually seeped down into all relevant sections of the security machinery. The uncertainty that prevailed among the security apparatus gave extremists and other anti-state elements the opportunity to plan and execute any kind of attack in the country. The result was the unfortunate death of some 250 people in the so called Easter Sunday suicide attack by Islamic terror in the month of April, 2019. The commission set up to investigate the attack heard that, there have been more than 95 warnings by various intelligence agencies local and foreign, the latest such warning being just 10 before the attack by a famous intelligence wing in a neighboring country. No warnings were heeded and taken note of. All those in the highest positions of the government and security passed the blame on the other. 

Such are the direct consequences of so called democratic reforms introduced by the 19th Amendment. The total opportunity cost of this constitutional blunder could only be ascertained by taking stock of economic stagnation during the period from 2015 to 2019, complete loss of Tourism industry following the Easter Attack, depriving the country billions in dollars and the loss of livelihood for some 2 million people.

Coming back to the 22nd Amendment, the Supreme Court has, this time, decided to deviate itself from the position it took back in 2015. Apparently they were of the view that, by diluting the powers of the executive vis a vis the PM, the country could have once again fallen back to the constitutional crisis as in 2019, prompting the intervention of the apex court. So they were kind of acting in practical sense of the operation of the constitution in their determination on 22A. In line with that sense of pragmatics, the court changed the proposed wording of bill of 22A with regard to appointing ministers and deputy ministers from “on the advice of prime minister” to “in consultation with prime minister where it deemed necessary” giving the President his choice. The Supreme Court also held that the President can dismiss the Prime Minister at his will, implicitly ruling that power as an essential part of the executive. 

The court also intervened to dilute the powers of the constitutional council by not making it mandatory for the President to make appointment to independent commissions upon the recommendation of the CC. In other words, the President can delay or withhold making such appointments indefinitely. According to the original bill of the 22a, as was also found in the 19th Amendment, if the President does not appoint persons recommended by the CC within the stipulated period, appointments would be deemed to have been made. The court ruled that all the above changes require a special majority and the approval of people at a referendum.  

It is commendable that, the Supreme Court, restoring the powers of the executive back to its former glory, has once again been conscious of the foundational value of our constitution that the “sovereignty is in the people and is inalienable” (article 3 of the constitution). 

Counter argument to the SC determination on “inalienable power of the people delegated to the President” is that, even if the decision to appoint Ministers or members to independent commissions are made by the Prime Minister and the Constitutional council respectively, the final act of making appointment is made by the President, suggesting that the power of people enshrined in the executive is not taken away from him. There is a serious problem with this line of reasoning.  It is an act of deception of people’s power. One does not need rocket science to understand the fact that the sovereignty of people delegated to the President goes far beyond the mere act of putting the signature and rubber stamping by the President. 

In spite of all the changes made to the original bill of 22A in the right direction through the judicial review, one should not forget the fact the restriction imposed by the SC on curtailing presidential power is like a suspended sentence by a court of law. Even if one does not serve the sentence in a prison, s/he is made to be seen as a convict. Thinking along the same line, the appointments recommended by the CC are seen as proper ones by the society, even if they are actually not, in contrast to the persons chosen by the President at his own discretion. In that case, society will polarize along the lines of administration of the commissions, making these institutions looking untrustworthy to the people.   

Moreover, not complying with the recommendation of the CC in making appointments could lead to a conflict between the President and the Parliament. The mutual trust between the two organs is lost and fighting follows. Not long ago that the former President Sirisena accused the CC of his times under the 19A of neglecting the concerns of the executive. He further said that this state of affairs escalated to a conflict between the legislature and the executive. The same thing could happen in a new round with non-compliance with the recommendation of the CC. 

All in all, the functions of the constitutional council, set up in between the legislature and the executive, is very much prone to become the Trojan horse disrupting the smooth functioning of both institutions from inside. It is not the romanticized rhetoric of democracy as suggested by MPs during the debate on the bill.  Weather the President honor or dishonor CCs recommendations is immaterial. In both cases, the conflict could become the rule of the day. 

The only exit route out of the impending crisis lies in totally doing away with the existing constitution, not tinkering with it. We can think about whether we retain the presidential system or go for a parliamentary system. The danger in tinkering with the existing constitution, introduced in1978 is due its design being fundamentally a presidential system. It is framed in a way that executive, elected directly by the people has power of execution of operation of the government. The other two organs are created to support the executive and hold it check. By trying to weaken the executive is hampering the proper discharge of presidential discretion. It will only distort the system and lead to unintended consequence.,  

 *Mahinda Pathirana, Chairmen, Sri Lanka Press Council

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Latest comments

  • 4
    0

    Rumors are few SLPP party members tried physically assaulting party Sec Sagara K. During party discussion on 22 A, prior to voting state Minister cum street thug Prasanna Ranaweera tried attacking and Dinesh’s timely intervention prevented further escalation and potential brawl. Reportedly pathological liar Mahindananda verbally abused Sagara in filth and threatened to assault him.

    • 4
      0

      Ranil may have won the first round but he lost his SLPP majority. Is that a warning signal from Mafia family?? Or will Ranil manage to break the Rajapaksas party. If that happens, I will be the happiest because The Mafia family, time and again has done it to the rest for their survival. It will also be the true beginning of Rajapaksas versus Ranil’s political ( dirty) chess game

      • 5
        0

        I don’t know how old the author is, but he looks young. And he is chairman of the Press Council. The general drift of the article is in support of a strong executive Presidency.
        This should enlighten those naive souls who think that all the educated young people in the country want a “system change”.

        • 0
          0

          Dear old codger,
          Your attempt to use a chairman of the Press Council to validate your opinion doesn’t appear fair.
          Whatever name you may want to use, what matters is a change.
          Those who sincerely believe in change needed to pull us out of the rut we are in need not be young or educated, but caring.

          • 1
            0

            Nathan,
            See Simon’s reply below.
            I doubt that what we expect from system change is what Pohottuwa appointees expect.
            There are still many young and educated Pohottuwa supporters.

            • 1
              0

              old codger,
              Pohottuwa is not a political party. It is a circus company.
              The ring master is Mahinda; The buffoon is Namal.
              The young men you are looking at are schooled, not educated.
              The need their employment in the circus company.

        • 3
          0

          os: He was a Lecturer at the University who ganged with “Viyathmaga” to bring Gota to be the President. For his services, Gota appointed him the Chairman of the Press Council. He is also one of the arch-supporters of the “20A’ of Gota and still continues to be in the service of the “Mafia” Rajapakse & Co.

          You are absolutely correct – He has no Democratic system in mind other than an “Executive Presidency” type of Governance.

    • 2
      0

      “Reportedly pathological liar Mahindananda verbally abused Sagara in filth and threatened to assault him.”
      The biggest question is that, why does the emancipated “cultured” (backed by 2500 years of Buddhism for good measure) voted this gang, THEIR PREFERRED RULERS THAN OTHERS!!??
      LEADERS PEOPLE GET IS WHAT THEY DESERVE, WELL AND TRULY!!
      This Nawalapitiya or Gampola origin, Mee Harak type Punnakku man has demanded a response from Ranjith S (State Minister of Finance for Revenue) why the IRS does not question Chartered accountant certified accounts and balance sheets for TAX WRITE OFFS!!?? MEE HARAK HORA DETACTIVE does not realise that this scam started principally during the 2005 – 2015 era when the great Messiah was “MASTER AND ALL HE SURVEYS” in new Sri Lanka in that time, likened to ‘Napoleon Bonaparte’ of France!?? Hos, HoG, and FM when all the well laid out administrative process were abused and mismanaged to the utmost.
      People and administrators who upheld administrative processes were ridiculed and insulted as reactionaries!!?? Who will, “stick their neck out” for these ‘Mee Harak Horus’ and challenge the Chartered Accountant Certified Balance Sheets, even if, for COMMON MAN PERERAS’ ‘CASINO OR RACE JOINT’!!??
      TOM BUFFOONERY!! SOLE PERFIDY OF PARLIMENTARIANS – exemplified!!??

    • 3
      0

      This country woul dnot be changed so long MAHINDA would stay in active politics.

      https://www.youtube.com/watch?v=mukcxP04R3M
      .
      Why does Mahinda Rajapaksa behave naked? For me he deserves to be awarded as “the most shameless man of the nation”.
      Just please look at whether the DONKY audience applase them or their reactions are similar to that of North Koreans.
      .
      Can someone please tell me what you think about this?
      :
      He continues to say that he is ready to hold an election at any time and win the next elections. The man, lately known as ” donkey of chilaw” aka SANATH nishantha, is flanked to Mahinda in today s political stage.
      .
      A good immediate answer is that Mahinda is well aware that many people in this country are slaves. If they are asked to eat cattle fodder they will eat without leaving anything to the cattle.

      • 3
        0

        Leelagemalli.

        The crowds came for two reasons.
        a] Buriyani parcels were distributed at the meeting. This was shown in the media.
        b] Curiosity of people to see the new Gundoos of the Rajapakse clan.

        Besides MaRa was told by the Kurunegala voters not to step in there notwithstanding the fact that he is an MP from the Kgala district.
        You may have noticed that the crowds do not appear to be jubilant of the speakers and their speeches………

        • 3
          0

          Dear Plato,

          As I told you, the lotus flower was turned into a “kidaram flower” (stinking flower) by Mahinda Rajapaksa and his criminals.

          Our people have largely lost the olfactory receptors in their nasal region, similar to those live in garabage dumps in Manila, Kalkutta and Wanathamulla or the like areas.
          and are therefore quite familiar with pollution and injustice.

          I tried to talk to all incl TUK TUK driver, Prof, and other professionals, unfortunately, I was not satisfied with any of their responses.

          However, until now, this type of crook still doesn’t understand the smell.

          Mahinda Rajapakshe abused the nation through actors and artists for his power gain tactics. Media scammers and prostitutes are hired/hired based on the amount of funds invested. How did they earn these funds without such records of assets when Mahinda Rajapaksa came to power in 2005?

          I question today, what happened Alle Baluwansa, Madagoda Abhayathissa, Iththakande cheewaraya and others that were blessed by ” V 8 Vehicle Saranan Gacchchami” ?

      • 2
        1

        Dear LM. Is it not obvious to all that the Messiah RW restored, resuscitated and guaranteed a vigorous new life to the plunderer Family?

    • 3
      0

      https://www.youtube.com/watch?v=mukcxP04R3M

      Please study the mimics of the MR audience. They are no different to mourning AUDIENCE of north koreans… when would these sons of bitches get it ?

      https://www.youtube.com/watch?v=4BDz4rFPTqY

      • 3
        0

        The dogs of the nation abused until the place reserved for the “lotus flower” became a “kidaram flower”. Those who don’t know about “kidaram flower” refers to a flower that has a stench that spreads its fragrance for meters.

        https://www.youtube.com/watch?v=j9ILKaAkDok

  • 5
    0

    ‘The result was the unfortunate death of some 250 people in the so called Easter Sunday suicide attack by Islamic terror in the month of April, 2019’.
    Not really. The masterminds of Easter Sunday attack were wildly fortunate!

  • 6
    1

    I wonder if the views expressed in the article have anything to do with the Press Council.

    • 3
      0

      SJ,
      It seems the Press Council is different from the Press Commission.

      • 0
        0

        OC
        Thanks.
        We learn things anew each day.

  • 2
    0

    old codger

    What is the Minister of Agriculture, Wildlife, and Forest Resources Conservation going to do about political brat(s) destroying Yala forest with high performance cars?

    https://www.youtube.com/watch?v=UxxS03AjNzw

    එන්න එන්න යාල යන්න රේස් පදින්න
    https://www.facebook.com/watch/?v=878039406512939&extid=WA-UNK-UNK-UNK-AN_GK0T-GK1C&ref=sharing

    • 0
      0

      NV,
      Rajapaksa created crony capitalists and their criminals dont respect law in this country.

      The question arises, how were these vehicles transported to a country where 60% of the population lives below the poverty line? Auditors General is on big stages, but if the work was done properly, the media would have taken it to the nation.

      I am fully against sharia law, but such provocative scenes force me to agree with it.

      These men should be hung and executed publicly before a public gathering.

      Only then will everyone else realize the dangers of their deliberate actions.

      The usual text of the met minister was heard in the media, “If someone proves that my son is involved in that matter, I will resign from my political life” and this was introduced by Rajapakshes ( remember, if anyone would prove that I have stolen a dollar, I will cut my belly before you …. BP s acts are like elephant in the room, nobody talks,… however MaRa and his politics promoted thug culture in this country. in the midst of irresponsible but misleading slogans.

      Apart from social media, the mainstream TV media is still not interested in revealing the truth. Every TV channel has so-called “investigative journalists” but most of them behave like street women and men.

  • 6
    0

    old codger

    What is the Minister of Agriculture, Wildlife, and Forest Resources Conservation going to do about political brat(s) destroying Yala forest with high performance cars?

    https://www.youtube.com/watch?v=UxxS03AjNzw

    එන්න එන්න යාල යන්න රේස් පදින්න
    https://www.facebook.com/watch/?v=878039406512939&extid=WA-UNK-UNK-UNK-AN_GK0T-GK1C&ref=sharing

    Where were the Wildlife, and Forest Resources Conservation officials?
    In the North and East they are too busy helping land grabbing Saffron thugs and others looters.

    • 7
      0

      Dear Native Vedda,
      .
      I found the two videos posted by you shocking in the extreme. I hope that other readers will join in the outcry, and that there will be proper programmes on this exposé . All this has happened.
      .
      Two aspects of the outrage that boils within me:
      .
      The content confirms that the vulgar ostentation that I had heard of is real. The behaviour of these “political brats” leaves me in no doubt that we have to draw the attention of the majority of our own people to how our country is being run. It will probably shock all. Why aren’t there more vociferous outcries?
      .
      This is proof that the ruffians have not only robbed the country of its money, but (as many keep saying) are continuing to rob. It looks as though I had under-estimated the extent of the problems. I had imagined that the stolen money was being surreptitiously stashed away in secret accounts. What these videos show is that the vile hoodlums who have gained control of our country feel sufficiently secure to behave outrageously. My attempts are inadequate; younger people in whose veins the blood courses more strongly must take over.

    • 7
      0

      NV, this is not something that we should leave to some Minister to solve. These phenomena offend all that is sacred; the future of our planet is what is at stake.
      .
      I spoke of a second aspect. That is the tone of the conversation between Nayanaka Ranwella and Chamuditha Samarawickrama. I forced myself to listen to the entire half hour. Others also have commented adversely about Chamuditha’s YouTubes. We need somebody else to compete with this man. Are there any others? I may be unaware. His aggressive attitude seems designed only to draw attention to his imagined virtuosity.
      .
      Many species of wild life seem doomed to extinction. The island’s endemic life forms seem to be valued only as a means of generating income for our society by bringing in tourists. The main concern appears to be that certain “laws” promulgated by the State have been infringed. Please, first read what I have written, and then see the two videos, noting the number of subscribers. This seems to be the only sort of muck that draws audiences.
      .
      To be continued.

    • 7
      0

      Continuing:
      .
      Nayanaka Ranwella
      (hitherto unknown to me) tries repeatedly to draw attention to the issues. His performance here is encouraging, but he gets swamped by Chamuditha. I googled for information about him. He is an authority, but in the present context it looks as though he has to seek support from politicians:
      .
      http://newscenter.lk/2021/04/08/senior-journalist-and-leading-environmentalist-nayanaka-ranwella-joins-sjb.html
      .
      It is the State that has to fund not only the security of the sanctuaries, but also publicity and education. The problem is that State and the Government are indistinguishable.
      .
      Schools are more closed than open, and in any case they, too, are politicised. Education ignores the development of critical thinking on fundamental issues.
      .
      We’re back to Square One. I have myself been drawing attention to a handful of politicians who are conscious of of ethics and values. Are there people who can rise above party politics? Rohan Pethiyagoda holds views of his own. I fear that I’m too insignificant to say much more.
      .
      Panini Edirisinhe of Bandarawela

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