22 April, 2019

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The Future Of The Country Has Begun With The 19A

By Savitri Goonesekere

Prof. Savitri Goonesekere

Prof. Savitri Goonesekere

Excellencies of the diplomatic community, Mr Abeykoon, Secretary to the President, officials of the Presidential Secretariat, ladies and gentleman,

It may sound as if I am repeating what has already been said when I say that I share the sentiments expressed by both Mr. Dhanapala and Prof. Munasinghe. To me, as a citizen, the 19th Amendment brings new beginnings. I say that because, sometimes we suffer in this country from a collective sense of amnesia. We also know that this country has many good laws. But our problem is that even when we have the law in the books and we do not implement it. However when we look at the 1978 constitution we note the fact that law was not in place because we had many restriction on the democratic process and it was a law that needed to be changed. It was distressing to see the debate on the 19th amendment and I think that is why I said we have a collective sense of amnesia, because we know as citizens what happened and how the constitution is interpreted and particularly through the 18th amendment how we saw how a government which had come into power with massive peoples power eventually dismantled democracy. It was distressing to see in parliament what should have gone through with absolute consensus, as an opportunity for democracy had to be negotiated in a process that in my view, undermined some of the opportunities for Constitution making. As a lawyer I have to say that the 19th amendment is a reflection of new beginnings, but as a lawyer I want something more, I want for this country fundamental constitutional change and constitution making because that is a challenge of a country that has emerged from a period of armed conflict. That has been the experience of nations. A new constitution in a participatory consultative environment which is not top down, can address the need to heal wounds, and to really make for fresh beginnings. And I certainly hope therefore, as a citizen of this country, every single party that is seeking our votes will come forward with an agenda of complete constitutional reform. Having said that I also recognize the difficulties of doing that in the kind of adversarial political environment that we have. And it is therefore in that context that we have to see the 19th amendment, as Dr. Jayantha Dhanapala said, as creating the opportunities for democratic culture and for addressing the democratic deficit that we have seen in this country. It is that context that I would like to make a few comments to add to what has been said by the other speakers.

The first point is that this amendment provides us with an opportunity to connect the whole development process and the discourse on development with a human rights based approach. That focus has not been there in the past. And the strengthening of the democratic deficit comes with the idea that here you have a concept of the people’s sovereignty and of people’s rights. We talk people’s sovereignty but we didn’t talk people’s rights. The 19th amendment connects the concept of people’s sovereignty and people’s rights through establishment of some of the key norms of democratic governance associated with the democratic process. And I think this is very important because it provides a vision for development where there will be public accountability and scrutiny of development processes. Hopefully, the process of achieving development goals will also be based on the need to really address the issue of people’s rights. And this is why the restraints on presidential power are key. The concept of presidential power has been enshrined in this article because there was so much controversy. People were feeling that they have to have an executive presidency, if you don’t have executive presidency with power, you have a diminished national security. Even though President Sirisena says “I have given up power,” the constitution gives him power. He is: Head of State, Head of the executive, Head of the Cabinet, Commander in Chief, all of it. What about the scope and substance of the power? There are limitations that encourage responsible use of these powers. The limited term is as crucial to accountable governance. There are other provisions which have been built in here which take away that concept of an unaccountable strong executive. And so you have a new provision for instance, apart from the old provisions, of the concept of duties of the President. Duties were not specified anywhere in the constitution. The duty to respect the constitution, the duty and the duty to ensure that the constitution is respect, the duty to promote national reconciliation and ensure proper functioning of the constitutional council and to ensure that the elections commission would function in such a way as to ensure the creation of proper conditions for the conduct of free and fair elections. I think these statements of duties are very important, and not very symbolic. They give a process for questioning the exercise of power and ensuring some accountability. I am not sure the provision in the amendment that he cannot dissolve parliament up to four years is a good provision. It is, perhaps, a protection from the reality that Sri Lanka has experienced where parliament has been dissolved arbitrarily. We are a country with a history of a strong and accountable judicial system. And what we have witnessed over the years is political interfearance that has contributed to a lack of public confidence in the independence of the judiciary. The 19th amendment addresses the crisis of confidence.

The President’s powers of appointment are limited by the setting up of the constitutional council and various other provisions. And in the very appointment of the judges of the Supreme Court and the Court of Appeal there’s a procedure for consultation. Now this was actually argued out in a case where under the former constitution also it was argued that there was a duty of consultation with the Chief Justice. This has now been put into the constitution. So there is that concept of the Chief Justice having a voice. However one of the limitations in the 19th Amendment is that it has not addressed very unfortunately the critical issue of the removal of judges of the Supreme Court. I see that this is an omission. There is no change in the provisions for removal of Chief Justice and as many of you know these were extremely controversial during the time of the impeachment of Chief Justice Bandaranayke. The constitution council provisions are also important because they create independent commissions and as you have heard there are several of those in key areas of administration. The constitutional council also becomes an institution responsible for the key high posts in this country. And most importantly even the constitutional council has a very good provision which gives guidelines of whom they should appoint. It is incorporated in the constitution. For example it states, that they must appoint people by taking into account the pluralistic character of Sri Lankan society including gender. That’s perhaps the first time the constitution has referred to the concept of gender and this is extremely important because it is a guideline to the constitutional council on its responsibilities. The decisions of the constitutional council are backed by a provision which says they cannot be challenged by court of law, except for violation of fundamental rights. In this context it is interesting that there is also a reference to respect for pluralism and gender in the guidelines for the commission.

With regard to fundamental rights, references have already been made to the inclusion of a right to information, the jurisprudence of this country incorporated a right to information through the right to freedom of expression and speech but here is a specific reference to the right to information and this is a important. It has taken Parliament a long time to legislate in this area and now the constitution gives a clear mandate to introduce the legislators reorganizing that the right to information is essential to the democratic process. However the focus is essentially here on state accountability and there is no reference to private, non- state actors who are playing an increased role in public services like health and education. On independent commission there is an interesting new clause which provides legislature to establish a new bribery commission which will replace the old commission. And the guidelines and mandate for that commission are set in a very specific way and this is also very interesting because one of the specific provisions is that the in taking legislation will also have to incorporate the standards set internationally on preventing corruption. And specifically there’s a mention of the international standards and international conventions. That’s very unusual in this country because we have no reference in the constitution to any other international standard. In fact, there is no provision with regard to treaties in the constitution or a specific provision to cover the President’s powers with regard to treaties. However the provision on the Bribery commission introduces that international standard. And that hopefully will create an environment and a context later for the understanding the importance of international standards in the process of governance and can become even a guideline to the judiciary in trying to harmonize international and national law.

The cabinet and the executive again try to address the issue of jumbo cabinets which are all concerned about. The provisions are fairly generous and they also might eventually lead to a semi jumbo cabinet hopefully depending on the numbers that are being restricted. There is also the constitutional incorporation of cabinet and state ministers, and as a citizen, that is something I question. Why do we need the concept of cabinet ministers, state ministers and deputy ministers. And as citizens we can ask whether this does not discourage political patronage. Do we need that? As Professor Mohan Munasinghe said this Buddhist text as incorporated at the end of our Constitution “May the rains fall in season, may there be a good harvest and may the ruler be righteous” comes from a Buddhist text. If we interpret righteousness in the context of modern language we could say that righteousness is protecting the rights of the people. I believe that text incorporates that concept. Protecting the rights of the people which ultimately amounts to accountable good governance in the interest of the people. Our politicians lose sight of the fact that the concept of rights and the human right based approach to development is of the essence of the wellbeing of the people. And the essence of making rulers accountable to the people. If we achieve this goal and if we walk towards that goal through the 19th amendment and hopefully we can create a consensus on the need for new constitution making based on those values integrating the best of national norms with the international. If we achieve such a consensus, I think the future of this country, one could say, has begun with the 19th amendment.

Thank you.

*Prof. Savitri Goonesekere made this speech 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
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    Prof Savutri Goonesekere
    Thank you for your frankness to question the government its various improprities, eg political patronage by creating various horizontal and vertical levels of ministers.

    Democratic way to democracy.

    • 2
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      Prof. Savitri Goonesekere

      RE: The Future Of The Country Has Begun With The 19A

      “To me, as a citizen, the 19th Amendment brings new beginnings. I say that because, sometimes we suffer in this country from a collective sense of amnesia. We also know that this country has many good laws. But our problem is that even when we have the law in the books and we do not implement it.”

      Thank you very much Professor Savitri Goonesekere for pointing out why Democracy and Law and Order are critical for a uncivilized society on the way to civilization.

      Amarasiri used the term, uncivilized to describe Sri Lanka, because based on many ratings, Sri Lanka is uncivilized mostly after independence.

      19A, gives an opportunity and path to civilization for Sri Lanka.

      However, will Sri Lanka remain uncivilized bt not implements its civilized Laws?

      Will the rule of law prevail?

      Need to hang most of the murders for a start, and put the crooks and criminals in jail, hard labour.

  • 0
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    The fuel of 19 A should be the collective effort all communities to set aside their petty politics and focus on research, development and increase their individual productivity.

    Democracy is a sinking ship heading towards the bottom and here we have the people around the world who have virtually come to lose their trust and confidence in their game of democracy. So you see them searching for an alternative to the oppression of capitalism whilst you O Muslims are those who possess that alternative.

    Sri Lankans have to choose a system that produces results.

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    “……….and specifically there is a mention of the international standards and international conventions. This is very unusual………”

    The International Covenant of Civil and Political Rights were enshrined in the constitution in 2007.

    http://www.documents.gov.lk/Acts/2007/International%20Covenant%20on%20Civil%20&%20Political%20Rights%20(Iccpr)%20-%20Act%20No.%2056/English.pdf

    If all provisions of the ICCPR had been enforced, there would have been enforcement of all concepts of justice in practice, in this democratic socialist republic.
    But, this did not, and is not, happening.

    Instead, the obnoxious PTA which negates the provisions of ICCPR, is rigorously enforced, only in the case of a certain ‘class’ of citizens.

  • 2
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    Prof. Sa

    Thanks for discussing the potentials in te 19th amendment and the need for new consitution. I hope Q

  • 1
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    Prof. Sa

    Thanks for discussing the potentials in te 19th amendment and the need for new consitution. I hope QQ1[QQQ_

  • 0
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    “The Future Of The Country Has Begun With The 19A” prof.Savithri

    YEAP !!!!! WITH 82 MINISTERS AND DEPUTIES AND MANY MORE IN THE WINGS.

    Come Ranil to be appointed PM the 02nd time, all members of the parliament are going to be Ministers, D/Ministers and State ministers.
    Including a Minister to oversee the FRIDAY FORUM.

    How do we implement the law in the statutory books when Sirisena was elected President

    a) existing Prime minister of the majority party was replaced by appointing a Prime Minister from the Minoirity party DESPITE WHAT IS STATED IN THE CONSTITUTION. earlier PM is yet to resign from the post.

    B) Mohan Pieris CJ removed and Shirani.B appointed at the STROKE OF A PEN.

    FUTURE OF THE COUNTRY HAD BEGUN EVEN BEFORE THE 19A. WHERE WERE YOU PROF. SAVITHRI ?????????????????? Is this intellectual nonsense or adultarated Colombo vinegar in the Achcharu ?????
    19A was a mere hog wash similar to the Western promoted ICCPR.
    Where is the ICCPR statutes imposed? IN THE WEST ?
    ICCPR IS FOR THE WERTERN MAFIA AND THE INGOS TO THROTTLE THE WEAK.

  • 2
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    Prof. Savithri Gunasekera,

    Thanks for highlighting the potential of the 19th amendment . The greater potential originally built into it, has been diminished by our parliament. It remains to be seen if our politicians will kill its spirit first and thereafter ignore it. I hope it also does not become another lost opportunity in our history, brought about by ‘ Small’ men, we seem to have in plenty.

    I am glad that you have outlined it as a beacon of hope, rather than an absolute reality. Further, I am glad that you have underlined the need for a new constitution and the point that it will not be imposed on us by our politicians. There should be a Constitutional Commission of eminent persons which should propose a constitution after in-depth study of various aspects and wide consultation, to our parliament. The politicians too can present their views to this commission. What the commission proposes finally should be adopted by parliament.

    Dr. Rajasingham Narendran

  • 1
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    BS.

    Laws can not change people. It is the people who implement laws. What ever the law it will be smart people use it for their advantage.

    How did ancient kings in Asia have very just societies ?

  • 1
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    All the Legislation and that get passed in Parliament and get added to the Statute Book would never get implemented unless and until those in the Administrative Machinery are well “Disciplined” and act with “Honesty” and “Integrity”. We saw during the last regime how public funds were spent on “unethical” and “wasteful” expenditure in conducting meetings for large gatherings at Temple Trees by the then President. Even he undertook to “hand over” letters of appointments to various groups who successfully secured such employment. That we saw as “Bribes” or “Indirectly Influencing” the voters. What is happening today? The same thing is repeated by the present Prime Minister, who yesterday “distributed” letters of appointments to 1200 candidates who secured employment in Banks. All of them were summoned to Temple Trees and the Prime Minister was handing over the letters of appointment. Have we learned anything or made an attempt to get out of this “Syndrome” of posing to be the “God Mighty” in regard to disbursement of employment? This is worth noting by the people who are campaigning for that “MARCH 12” education of the masses on how to select the representatives to the Parliament. This whole lot must be sent home and there is no other option for the people.

  • 0
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    The title and context of the speech by SG reminds me of Bob Dylan singing, Blowin’ in the wind.
    How many beginnings should a country have
    Before it can call it a State
    The answer my friend is blowing in the wind! I hear it. “Infinite”.

    We keep writing constitutions and adding Amendments and writing new constitutions for the purpose of writing more new constitutions. All of the past constitutions, may be with the exception of the first one which the State violated. 2/3rd majority elect one or the other party and then they elected a despot and then a new leader only because two of the three communities with less numbers supported a minority of the 2/3rd majority to throw the despot out.

    It will be interesting to see whether the 2/3rd of the majority community can elect a parliament that would support MS and RW. Or will they bring the despot back.
    The answer my friend is blowing in the wind. The Tamil community is not going to have their rights restored unless they dance to the tune of the majority community. Such is “democracy” what “One Person One Vote” in a country where there is one community with 2/3rd of the voters. Where are the checks and balances? I don’t think the 2/3rd majority want any checks or balances on their actions.

    How long will it take before we repeat the bloody past? The answer my friend is blowing in the wind. The answer is right in front of our eyes that does not see.

    • 0
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      Too true, Ethir.

  • 0
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    [Edited out]

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    ”As a lawyer I have to say that the 19th amendment is a reflection of new beginnings, but as a lawyer I want something more, I want for this country fundamental constitutional change and constitution making because that is a challenge of a country that has emerged from a period of armed conflict.”

    In 2010 Justice Weeramantry told LLRC(please look under LLRC archives in this website) about the need for constitutional Change He also told them that he told former Presidents Jayawardeneand Rajapakse twice each why the constitution must be changed to give equality to all citizens. Many eminent Sinhalese have spoken about the urgent need for constituional change for decades. Even Lord Soulbury was hoping for it after the simmerings of the 50s and early 60s:

    For the benefit of our lawmakers-to-be and the voters I wish to quote the following from Lord Soulbury’s Forward to the book, Ceylon: A divided nation written by B.H.Farmer(1963):

    “…. A Commission, of which I had the honour to be the Chairman, was appointed by the British Government in 1944, to examine and discuss proposals for the constitutional reform of Ceylon. It did not take long to discover that the relations of minorities to majorities, and particularly of the Tamil minority in the northern and eastern provinces to the Sinhalese majority further south, were in the words of the Commission’s report ‘the most difficult of the many problems involved’. The Commission had of course a cursory knowledge of the age-long antagonism between these two communities, but might have been less hopeful of a solution had Mr. Farmer’s book been available to underline the deplorable effect of centuries oftroubled history upon the Ceylonese of today.

    The Commission devoted a substantial portion of its report to this minority question, and stated that it was satisfied that the Government of Ceylon was fully aware that the contentment of the minorities was essential not only to their own well-being but to the well-being of the island as a whole. And to quote the Commission’s report: ‘If it were otherwise, no safeguard that we could devise would in the long run be of much avail.’ Recent years have shown that this observation was only too true…

    …. Needless to say the consequences have been a bitter disappointment to myself and my fellow Commissioners. While the Commission was in Ceylon, the speeches of certain Sinhalese politicians calling for the solidarity of the Sinhalese and threatening the suppression of the Tamils emphasised the need for constitutional safeguards on behalf of that and other minorities… As Sir Charles Jeffries has put it in his admirable book, Ceylon -The Path to Independence, ‘The Soulbury constitution . . . had entrenched in it all the protective provisions for minorities that the wit of man could devise’. Nevertheless, in the light of later happenings, I now think it is a pity that the Commission did not also recommend the entrenchment in the constitution of guarantees of fundamental rights, on the lines enacted in the constitutions of India, Pakistan, Malaya, Nigeria and elsewhere.

    Perhaps in any subsequent amendment of Ceylon’s constitution those in authority might take note of the proclamation made by the delegates at the African conference which met in Lagos two years ago: ‘Fundamental human rights, especially the right to individual liberty, should be written and entrenched in the constitutions of all countries’. Nevertheless the reconciliation of Tamils and Sinhalese will depend not on constitutional guarantees but on the goodwill, common sense and humanity of the Government in power and the people who elect it.”

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