The 18th Amendment to the Constitution: Process and Substance

The President has proposed to make changes to the constitution via an urgent bill.  The changes known as the 18th Amendment to the Constitution, seek to remove the two term limit on being elected to the office of the President and the Constitutional Council under the 17th Amendment.  As required under the Constitution, the President has referred the urgent bill to the Supreme Court.  Supreme Court heard the Government’s arguments and the arguments of six intervening petitioners on Tuesday 1 September 2010.  These changes have not been discussed in the public domain and they are sought to be made in secret.  It is important to note that even at the Supreme Court hearing the intervening petitioners were only given copies of the proposed changes after the government started making its submissions.  This article explains how the Constitution can be amended, what the key changes are and the legal arguments advanced in favor of and against the changes.

Procedure for changing the Constitution

The Constitution can be amended by passing a bill with a two-third majority of Parliament.  However any constitutional changes that affects certain entrenched Articles of the Constitution needs a two third majority and approval at a referendum.  For example a change that affects Article 13 (which devolves power to provincial councils) or Article 3 (which establishes the sovereignty of the people) would require a referendum.  A referendum is only successful if the total number of ‘Yes’ votes amount to an absolute majority of the total valid votes cast at the referendum.

If Parliament seeks to amend the Constitution via an urgent bill, the President is required to seek the opinion of the Supreme Court.  In its opinion, the Supreme Court is required to state a) whether the bill actually changes the Constitution and b) whether a referendum or whether a simple a two third majority is sufficient to make the proposed changes.

On Monday, 30 August 2010, the President and Cabinet of Ministers introduced an urgent bill to make changes to the Constitution.  On Tuesday, 31 August 2010, the urgent bill was referred to the Supreme Court.

Key Proposed Changes to the Constitution

  • Removal of the two term limit: There will no longer be a limit on the number of times an individual can be elected to the office of the President.
  • Repeal of the 17th Amendment: the Constitutional Council will be replaced with a new Parliamentary Council. The President will seek the ‘observations’ of the Parliamentary Council in making appointments to key governments posts.  However where the Parliamentary Council fail to communicate its observations to the President within the specified time, the President can proceed to make appointments solely at his discretion.
  • Restricting the role of the Election Commission: The Election Commission will no longer have the power to issue directions to prevent political parties from using state resources to advance their campaigns during elections.  Further the private media will be under a duty to comply with guidelines issued by the Election Commission.

Proceedings before the Court

The reference by the President was heard by a special Supreme Court bench comprising of Justices Bandaranayake, Sripavan, Ratnayake, Imam and Suresh Chandra.  The Attorney General advanced arguments on behalf of the Government, and explained the proposed changes to the Court.  A summary of his arguments is as follows:

  • Changes enhance the franchise. Removal of the two term limit is in fact an enhancement of the franchise of the people.  It will introduce a “galaxy of choices” in terms of presidential candidates.  “The people’s choice will be unfettered.”
  • Improve accountability: Mandatory attendance at Parliament by President will bring the President more in to the process of the Parliament, and thus make him more accountable to the People.
  • From the outset it was clear that 17th Amendment could not work.  In its original 17th Amendment judgment, the Supreme Court “prophesized” that the 17th Amendment would not work.  The 17th Amendment is directory and not a mandatory provision of the Constitution.  Therefore the current proposal to repeal it, would not affect the sovereignty of the people.  [That is 17th Amendment does not affect ‘sovereignty’ which consists of fundamental rights, franchise and powers of government]
  • The Constitutional Council was inherently flawed. It was impossible to reach a consensus on who should be appointed to the Council.  Further, the Constitutional Council consisted of members outside the Parliament; therefore, it was impractical for the members to reach a consensus.  The new Parliamentary Council would consist only of members within the Parliament.  Therefore, it is bound to work better than the Constitutional Council.

Intervienients’ Arguments

In proceedings like this, there is a process for interested parties to intervene and raise their objections to the proposed amendments.  There were six intervening parties representing different interest groups, including the Centre for Policy Alternatives and Ravaya newspaper. The six intervening parties were as follows: Jayamapthy Wickramaratne appeared for Lal Wijenayake and Chandra Jayaratne, Saliya Peiris appeared for K W Janaranjana of Ravaya, J C Weliamuna appeared for Janatha Vimukthi Peramuna, Viran Corea appeared for the Centre for Policy Alternatives and Rohan Edirisinha on behalf of himself.  We have summarized the key arguments raised by the intervening parties.

  • Manner in which these amendments are sought to be made violate the first principles of Constitutionalism. The manner in which these changes are sought to be made demonstrate a shocking disregard for basic internationally accepted norms of Constitution making.  These changes affect the independence and integrity of democratic institutions of this country.  Yet these proposed changes were hatched in secrecy with no public consultation.  The Constitution is meant to protect and empower the people from those who wield political power.  If the Constitution can be changed by the wielders of power without participation of those whom a constitution is designed to protect the basic rationale for having a Constitution is undermined.
  • What is the urgency? The Bar Council of Sri Lanka has passed a resolution stating that amendments to the Constitution ought not to be rushed through as ‘urgent bills’.  Bill are deemed urgent, when the Cabinet decides they are ‘urgent’ in the national interest.  The Attorney General has not made clear why these changes have to be made ‘urgently’.  It is difficult to escape the conclusion that the changes are being rushed through to avoid proper judicial scrutiny and consideration by civil society.   It is important to note that the intervening parties only received their copy of the bill AFTER the Attorney General started to make submissions to the Court.  The Supreme Court should use this opportunity to lay down guidelines and criteria for the introduction of urgent bills.
  • Supreme Court has a special responsibility.  The Basic Structure Doctrine as developed by the Indian Supreme Court requires that even with a two third majority basic features/ values of the Constitution can not be amended.  The rational of the Basic Structure Doctrine requires that when those who wield power want to introduce amendments to benefit themselves, and NOT the people, the Supreme Court has a special responsibility to protect the people.  Similarly in the United States there has long been a thought that even if the Supreme Court was to be deferential to the political branches when it comes to political matters, the Court had to accept a special responsibility to ensure the integrity of the democratic process.
  • Survey of Constitutions from around the world reveals necessity of term limits. It’s important to see what the practice in other countries is with regards to term limits on the head of government.  First, there are no term limits on countries with parliamentary forms of government.  This is because of the nature of Parliamentary system, you elect a party not a person, and the presence of the Prime Minister is always balanced by the presence of an opposition in Parliament.  Further, the Prime Minister can at any time lose his position if he does not have the support of a majority of Parliament.  Term limits are always found in countries with an executive president.  If you look around the world the following countries do not have term limits:  Azerbaijan,  Singapore,  Syria,  Turkmenistan, Vietnam,  Venezuela, Yemen,  Belarus,  Costa Rica,  Cuba,  Niger,  Algeria,  Burkina Faso,  Libya, Uganda.  Except for Costa Rica, all of these countries are one party states or dictatorships.  Singapore is often portrayed as a model of development, but it is important to remember that it is a one party state.  In its 94 member parliament, 82 are from the ruling party, 9 are appointed members and only 3 are from the opposition.  Only a few countries have removed term limits and still managed to avoid being a dictatorship: Peru, Chile and Uruguay.  In these countries a President can hold office for unlimited number of terms, but the terms can’t be consecutive, thus providing for an important safeguard.  With this proposed 18th Amendment to the Constitution, Sri Lanka will be joining ranks of one party-states and dictatorships.
  • Term limits provide an important check on the concentration of power.  First, the longer a President holds power, the line between the ruling party and the state becomes blurred.  Second, the longer a president holds office; the balance of power between the three arms of government will tilt to the Executive.  Third, term limits allow for those aspiring to power to wait for their chance to run for office.  Thus, it prevents aspiring candidates form resorting to unconstitutional action to get in to power.  Fourth, the term limits promote a party based as opposed to a personality based form of democracy.  Fifth, defeating a long sitting president is a very difficult task.  The sitting President has unrivaled and unfettered access to public resources and campaign funds.  Even in the most consolidated multi-party democracies, there are always flagrant abuses of state resources during elections.  Therefore, having a President that can run for an unlimited number of terms, will significantly weaken the chances of other candidates to wage successful election campaigns.
  • Removal of the two term limit violates the mandate of President Rajapaksa. The proposal to remove the two term limit violates the mandate given by the people at two successive presidential elections.  In 2005, Mahinda Chinthanaya 1 promised to abolish the Executive Presidency before the end of the first presidential term.  Mahinda Chinthanaya 2 promised to a) reduce the powers of the executive presidency, and b) make it more accountable to Parliament.  The proposed changes are totally contrary to these promises contained in the Mahinda Chinthanaya.
  • This change requires a referendum because if affects the sovereignty of the people.  [As noted above a referendum is only required when any proposed amendments to the Constitution affects certain provisions.  On the surface the proposed changes don’t affect any of those provisions]. However it was argued that these special provisions need to be interpreted more broadly.  For example, the referendum clause doesn’t say that a referendum is required if the writ jurisdiction of the Court of Appeal is to be taken away.  But surely, if the propose amendments tried to take away the jurisdiction of the Court of Appeal, then that would require a referendum?  Similarly, the proposed changes need to be seen in a broader context and how they undermine the sovereignty of the people.  Any change that affects the sovereignty clause (Article 3) requires a referendum.  Sovereignty includes the powers of government and fundamental rights of the people.  The removal of the two term limit will affect the balance of the three branches of government; in particular it will remove an important safeguard against arbitrary government action.  Similarly, the 17th Amendment strengthened the sovereignty of the people by providing an important check on arbitrary executive action.  Further the 17th Amendment, served to enhance the independence, legitimacy and efficacy of the institutions that facilitate the realization the fundamental rights of the people. (For example, the judiciary, the Human Rights Commission, the Elections Commission, the Public Service Commission and Police)  Therefore, as these changes affect the fundamental rights of the people, the balance of powers of government, they ultimately affect the sovereignty of the people, and requires a referendum.
  • This change requires a referendum because if affects the provincial councils. One must read the Constitution as a whole.  The proposed amendments seek to significantly do away with the powers of Finance Commission and the National Police Commission.  Such amendments requires further special procedure set out in 154G (2) – (3), that is, the change must be gazetted and referred to all the Provincial Councils, so they can express their views on the proposed changes.
  • Attorney General is incorrect to submit that the 17th Amendment is directory.  The text of the Constitution, the intention of the framers, the rationale or purpose of the 17th Amendment and the determinations of the Supreme Court (in the 17th, 18th and 19th Amendment cases) show that the 17th Amendment to the Constitution is mandatory.  The Hansard proceedings of the debate on the 17th Amendment especially the speeches of Prime Minister Ratnasiri Wickremanayake an Mr Wimal Weerawansa, make it absolutely clear that the intention of the framers, the intention of the legislature was that the provisions of the 17th Amendment were to be mandatory.
  • Toothless Parliamentary Council The proposed alternative to the Constitutional Council would result in the politicization of key government posts. The proposed alternatives would curtail the freedom of thought and conscience of key public officers and Commissions.
  • Reducing the powers of the Electoral Commission will undermine the future of free and fair elections. The proposed amendments will do away with a key safeguard that prevents the abuse of state resources by the ruling political party.

Oppression of Private Media The proposed amendments allows the Election Commission to impose guidelines on Private Media during elections.  The private media ought to be able to function freely, enabling voters to freely decide at an election.  This would undermine the general public’s right to information.  The right to information is the staple of their right to through and conscience (protected by Article 10 of the Constitution).

18th Amendment to the Constitution

The table below in summary form compares the existing provisions of the Constitution and the proposed amendments.

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Editors’ note: Download a PDF of the above table here. An interview with Rohan Edrisinha, a lecturer at the Law Faculty of the University of Colombo and Director of the Centre for Policy Alternatives, on the outrageous process and substance of the Eighteenth Amendment to the Constitution can be viewed here.

  • eeurekaa

    This government is allergic to the seventeenth amendment. Hence it likes to have an alternative amendment !!

    A government that put on the drama of APRC(esp. during the time Lord Naseby last visited Sri Lanka with Pathirana sent a note asking for a photo-shoot with the ”proposal”), a government that cordoned off a peninsula and let the poor starve to death(It was reported in December 2007 and it was heard from relatives when the peninsula was ‘opened’ in January this year), a government that bombed its citizens from Trincomalee to Batticaloa and from Mannar to Mullaitivu, a government that severely restricted aid agents from detention camps holding people who have been variously battered over years of bombing and shelling and economic embargo, a government that held an election two years ahead of due date when hundreds of thousands have been detained in the camps, a government whose first lady flew over the camps(which are too hot when it is sunny and which are soaking with dirty water when it is rainy) to lay foundation for a Buddhist temple, a government whose Presidential Adviser tells the EU in September 2009: ”de-militarization had been successfully achieved”
    http://www.slmfa.gov.lk/index.php?option=com_content&task=view&id=2168&Itemid=134

    a government whose President told journalists in January 2010 that there are no camps and no barbed wire:
    http://www.youtube.com/watch?v=pzGj2hYoymo&feature=youtube_gdata

    ….there are thousands of instances …..

    what else do you expect from this government?

  • Post DJBS Scenario

    Thank you for summarizing the proposed 18th amendment in an easily digestible format and for providing thoughtful analysis.

    The CPA Is doing a GREAT service to the people of SL and i hope they get the recognition they deserve from the common man.

    A couple of questions
    1. Who are the other 5 petitioners?
    2. What is the reaction of the average Singhalese to the proposed amendment?

  • sinhala_voice

    To remove the limitation on the number of times a candidate can run for presidency is a good thing and should be supported and passed.

    But other changes should not be passed.

  • hoysmuk

    This is a double edged sword. It gives the president the possibility of unlimited terms and then gifts him unchecked ability to make sure that he is elected.

    When JR’s infamous referendum took place I was 20 years old.Felt it in my gut it was wrong but did not know how the wrong would play out.I am 47 years now. I had lived through the innings of that referendum, its effect on me, my family, my work, my play and most importantly my community, and my nation.

    This amendment goes beyond the gut feeling, and makes me throw up. I am deeply saddened to think what the innings of this amendment would mean to us all.

  • nadie

    The media in Sri Lanka seems to be not interested in the Constitutional Reforms which strangle the last weak breath of democracy in this unfortunate country. I was very depressed about the way media behaves in this decisive moment. It is the responsibility of the media to reveal what these reforms are to the people.

    If we pass this moment even without giving a try to make the people aware of the horrible repercussions of these amendments, the future generation will curse on us forever!!

    in this context, Groundviews has done a great job! Nowhere I have seen a clear explanation of the reforms like this one. This is something that all the mainstream media should have done. At least now they can do it. I hope that Groundviews will generously let mainstream media to republish this chart.

    Thank you Groundviews!

  • Dark Lord

    Just wondering, how did the 13th and 17th amendments got through without a referendum?

  • http://srilankalandoftheblind.blogspot.com/ PresiDunce Bean

    This “Government” has now become a government ‘OF the Jilmarts…BY the Jilmarts…FOR the Jilmarts!’ May God help us!

  • Sie.Kathieravealu

    An alternative system of governance where power of an individual is DILUTED to the maximum extent possible. A system where PEOPLE ARE EMPOWERED to govern the country and themselves is given below for the perusal, consideration and comments of everyone.

    It is humbly requested that the Editor of Groundviews be good enough to consider publishing these suggestions as an article for the readers to express their views.

    Respected Sir,
    Greetings,
    Please find below some suggestions which are being put forward by just an ordinary person who is not a constitutional expert, political scientist, leader of a political party or trade union BUT one of the persons among the vast majority, who have experienced and suffered in life due to the effects of the misrule of the country by those elected by the people to govern the country, from the date of independence from the much criticized colonial rule. The trust of the vast majority has been betrayed. So, an Alternative System of Governance based on PEOPLE’S SOVEREIGNTY is submitted for your kind perusal and comments.

    I DREAM OF THE DAY THAT NO BODY WANTS TO DO PARTISAN POLITICS BECAUSE IT HAS SO LESS FINANCIAL BENEFITS.

    01) Redefine the earlier Village Headman Divisional boundaries and the Provincial boundaries as they existed on 04.02.1948 (the date of independence) with slight adjustments here and there so as to define the boundaries on ground as natural and definite say at least by a bye-lane, stream, bund etc, etc so that it does not divide a house
    into two Village Headman Divisions or two Provinces.

    02) Create four regions by grouping the existing provinces as given below:

    A. Northern + Eastern Provinces – North-East Region
    B. Southern + Western Provinces – South-West Region
    C. North Central + North Western Provinces – North-Central Region
    D. Uva + Central + Sabragamuwa Provinces – South-Central Region

    03) Establish seven different bodies at seven different levels to govern the affairs of the country by separating the legislative and executive functions now exercised by one body – the Parliament – and distribute (not merely decentralizing or delegating the functions),
    the responsibilities and duties to the seven bodies so that the power of any one body would be diluted to such an extent that would, to a great extent, deter the power-hungry politicians from competing in the elections for the different bodies. This action will really pave the way for sincere and service loving personalities to come forward to honestly serve the people at large. The seven bodies suggested are as follows:

    A. Legislative Council – National level (for the country as a whole)
    B. Executive Council – National level (for the country as a whole)
    C. Regional Council – Regional level (for the proposed regional area)
    D. District Council – District level (area of one G.A.)
    E. Divisional Council – Divisional Level (area of one D.S.)
    F. Sub-Divisional Council – Village Head-man Level (area of one former V.H.)
    G. Grass-root Council – Grama-Sevaka level (area of one G.S.)

    04) Duties of the above councils:

    A. Legislative council as the word implies would enact Legislations and lay down policies (foreign and internal) and all connected there with, in the interest of good governance that would evolve a just and fair administration with responsibility, accountability and transparency to maintain a clean and democratic system of governance for the benefit of the society in this country.
    B. Executive council as the word implies would be responsible for the proper execution of all works in accordance with the Legislation and policies approved by the Legislative Council and other duties conferred on it by the Legislative Council and Regional Council, such as preparing of the national budget, administration of finance, postal, railway and other functions not specifically entrusted to the Regional Councils,
    implementing foreign policy, etc.
    C. Regional council would be responsible for the proper administration and development of the region, laying down the policies specific and special to the region, preparing the regional budget, making byelaws and such other matters connected thereto and directing the district councils within the region for the proper execution of all works within the district.
    D. District councils would be responsible for initiating the necessary planning for the proper execution and administration of all works within the district and other functions allocated to it by the regional council. These councils would be the executive wing of the Regional Council.
    E. Divisional Councils elected and empowered or entrusted to monitor the functions of all groups for transparency, accountability and irregularities with an eye on the elimination of injustice, discrimination, corruption and oppression (Groups functioning at Divisional level and elected on village basis).and would be responsible for the supervision of all works executed and administered by the District Councils within its
    (Divisional Council’s) area including the “COPE” and “PAC” of the present Parliament.
    F. Sub-Divisional Councils would be responsible for coordinating with the Grass-Root level Councils in the preparation of proposals for all development works within its area for submission to the Regional Councils for approval and all actions necessary for the proper implementation of the proposals.
    G. Grass-Root Councils would be responsible for the preparation of all proposals connected with the development of its area and reviewing and accepting any proposal submitted by any other Council or institution for the development of its area and submitting these to the Sub-Divisional Councils for further scrutiny, acceptance and onward transmission for necessary action. Development proposals submitted by any other Council or institution that have an impact on its area must have its approval.

    05) Election and Composition: Every administrative area would be a multi-member electorate electing a minimum of two members as specified below. Members of the various Councils would be elected from among those residing within that area and having an interest in that area on “first passed the post” basis subject to gender and age group conditions being fulfilled and where necessary and possible trade, political ideologies and ethnicity being considered. The number of members of any one gender or age group shall be a minimum of 20% of the total to be elected from that area to a Council and at least one member from other ethnic minorities if they form more than 10% of the eligible voters. The members so elected would be considered as independents.. The number of elected members in a given Council – other than Groups 1, 2 & 4 – would vary from Region to Region depending on the number of sub-administrative areas in that region, governed by the principle of equal number of members to the same or similar councils from similar areas – irrespective of the size and population of the area concerned. (Similar to the principle applied in the election to the Senate in the US – two members per State and in the UN one member per country/administrative area).
    A. Legislative council would consist of ten members elected from each District Council area, plus 100 members elected on trade basis who are in and practicing that trade. (one member for each trade or group of trades, to be defined) plus fifty members appointed by recognized political parties on the present National List basis without any cut-off points being imposed.
    B. Executive council would consist of fifteen members elected collectively by the members of the various Councils within that Regional Council area from among those residing within that area and not having stood for election to any Council making a total of 60(4 x 15) members.
    C. Regional councils would consist of four members elected from each Divisional Council area within that Region.
    D. District councils would consist of three members elected from each
    of the Divisional Council areas within that District Council area.
    E. Divisional Council would consist of two members elected from each
    of the Grass-Root Council areas within that Divisional Council area.
    F. Sub-Divisional Councils would consist of three members elected from
    each of the Grass-Root Council areas within that Sub-Divisional
    Council area.
    G. Grass-Root Councils would consist of five members elected from
    those residing within its area.

    06) The Heads and Deputy Heads of the Councils would be elected in the following manner. The Head and the Deputy Head shall not be of the same ethnicity in any Council provided there are more than 10% of eligible voters of other ethnicities. The Deputy Head has to be assigned sufficient powers and duties to make that office meaningful
    and would act for the Head when necessary. The actions of the Head and Deputy Head shall have the approval of the respective Councils.

    A. Legislative Council: by the members of the Legislative Council from
    among them-selves and would be known as the Speaker and Deputy Speaker.
    B. Executive Council: elected by the members of the Council from among themselves
    and would be known as the Chairman and Vice-Chairman respectively. The Chairman with the concurrence of the Vice-Chairman would appoint the Council of National Ministers from among members of the Executive Council. All actions of the Chairman would be in consultation with the Vice-Chairman.. The National Ministers – in equal numbers for each Region and not exceeding five for a Region – shall be fairly distributed among the regions. The Chairman and in his absence the Vice-Chairman would preside at all meetings of the Executive Council and the Council of Ministers. The Chairman and Vice-Chairman should not be of the same ethnicity and not from the same region. It would be advisable to change the Chairman and Vice-Chairman on a yearly basis as well as the National Ministers similarly with the functions of the Ministry remaining stagnant.

    C. Regional Councils: collectively elected by the members of the various Councils in the Region plus the members elected to the Legislative Council and Executive Council from that Region and would be known as the Governor and Deputy Governor of the Region respectively and would not be of the same ethnicity. The Governor with the concurrence of the Deputy Governor would appoint the Council of Regional Ministers – in equal numbers for each District and not more than two from a district – from among members of the Regional Council. All actions of the Governor would be in consultation with the Deputy Governor. His actions are subject to the approval of the Regional Council.
    D. District council: collectively by the members elected directly to that District Council and members of the Regional council and Legislative Council who have been elected from that District Council area and would be known as Chairman and Deputy Chairman respectively. His/Her actions are subject to the approval of the District Council.
    E. Divisional Council: collectively by the members elected directly to
    that Divisional Council and members of the Regional Council who have been elected from that Divisional Council area and would be known as Chairman and Deputy Chairman respectively. His/Her actions are subject to the approval of the Divisional Council.
    F. Sub-Divisional Council: collectively by the members elected directly to that Sub-Divisional Council and the members who have been elected to the District Council from that Sub-Divisional Council area. They would be known as the Coordinator and Assistant Coordinator respectively. Their actions are subject to the approval of the Sub-Divisional Council.
    G. Grass-Root Council: directly elected by the voters of that Grama Sevaka area in addition to the members of that Council. They would be known as the Head and Deputy Head. Their actions are subject to the approval of the Grass-Root Council.

    07) Salaries/ Allowances to the members elected to the various Councils

    From the above it would be seen that there would be
    1 No. Legislative Council with 400 Members
    1 No. Executive Council with 60 Members
    4 Nos. Regional Councils with 1072+8 Members
    25 Nos. District Council with about 3000 members and in addition a further number of Councils – Divisional Councils, Sub-Divisional Councils and Grass-Root Councils – with a large number of Members, the grand total of which would be a staggering figure of about 140,000, which would naturally raise the immediate question of a payment of a large sum of money by way of salary, allowances etc. considering the present way of
    payment to M.PP. It is suggested that these members be not paid any salary since they had come forward to serve the people and not to earn or make money. They may be reimbursed with a part of the actual expenditure incurred by them monthly. The amount reimbursement shall not exceed the maximum salary drawn by a SLAS Class 1 officer for the National Minister, and the others substantially lower. In the case of the Heads and Deputy Heads of the Councils, the reimbursements shall not exceed the salary of a Class 1 officer in the judicial service for the Heads of the Legislative Council, Executive Council and the Regional Councils and substantially lower for the Heads of other
    Councils. No traveling allowances are payable except the actual ordinary bus-fares, if there are no train services available. Foreign trips, if it becomes absolutely necessary, only economy class airfare on the national carrier plus 50% the most economical travel fare that might have been actually incurred within that country shall be provided. All other expenses including board and lodging shall be borne by the persons concerned

    08) No person shall be eligible to contest or to become a member of a
    Council if he had been a member of that council within the last two
    years immediately preceding the date of election. He may contest to any other Council.
    09) The term (period) of all councils and their Heads and Deputy Heads shall be four years and elections should be held every four years only and dates to be fixed in the constitution itself as in the U.S.A.

    10) The person who was next in line in the last election shall fill in any vacancies caused by persons directly elected by the voters.

    11) The responsibilities, function and duties of the National Executive Council would be defined as those that cannot be properly distributed exclusively to a particular region such as Postal, Railway, Currency, National Budget, Import, Export, Immigration and
    Emigration, Foreign, Affairs etc, etc,. But all development works in respect of the above falling within the area of any District Council, shall be entrusted to that District Council. All other functions such as education, police, land, ports of entry etc., etc., shall be
    entrusted to the Regional Councils.

    Other suggestions

    12) Articles for the following purposes have to be incorporated into the Constitution (a) that the environment is the foundation of economic growth and poverty reduction and that the government is legally responsible for providing a clean and healthy environment for its citizens, (b) provision for public interest litigations against any body or personally against an official of a body for actions taken or not taken or delaying to take action that would adversely affect the interest of anyone, during the course of his/her duty, even if
    done in good faith, if it could have been avoided had he/she taken an alternative course of action on the lines that is available in India
    (c) provision be made for the ordinary person to obtain any information that he/she wants which shall include photo copies of minute sheets or the like on payment of the usual charges which shall not be higher than the cost of photocopying charges in the market (at
    a minimum cost) provided such information will not hamper the security of the country on the lines of the Act that has been made law in India (d) discrimination on any grounds by anyone shall be made a punishable penal offence similar to what is available in Canada and a greater punishment if that person happens to be a public servant (e) for
    controlling the exploitation of our natural resources including fishing by the multinational companies as is being done in China. (f) devolving decision-making powers over the use and management of natural resources to the local communities – Sub-Divisional Councils – would create greater food security and more equal power relationship, (g) civil society organizations that represent public interest be given due place in policy debates

    13) a. No Law shall be initiated, amended or repealed by the Legislative Council and the Regional Councils and become operative until a 2/3 majority in all the four regional councils has accepted it.

    b. No laws, motions, byelaws, regulations that affects it’s minority shall be deemed to have been accepted by a Regional Council unless a majority of the minority members in that Regional Council supports it.

    c. No loan can be negotiated by the Executive Council for any purpose without the prior approval of all four Regional Councils.

    d. Regional Councils shall not be permitted to obtain loans except from the Executive Council but be permitted to negotiate directly with foreign institutions to obtain aids and grants for the development of their Regions.

    14) The District Councils would be responsible for the submissions of development proposals for its area to the Regional Council, in consultation with the Sub-Divisional Councils within its area, for consideration and if approved request for the allocation of necessary funds for execution.

    15) The Regional Councils would be responsible for the submissions of the proposals for the development of their Region to the Executive Council for approval stating the source of funds through which it is intended to be executed be it allocation, loan, aid, or grant by foreign institutions.

    16) A person while holding a ‘post’ in the government or government controlled institutions or public limited liability companies quoted in the Colombo Stock Exchange shall not be eligible to seek election to any Council.

    17) Three months before the date fixed for election in the constitution, canvassing of any nature shall be forbidden including the announcement of any beneficial programs and the incumbents in any Council shall not in any way assist the contestants for any Council or in the alternative if the date of election is not fixed in the constitution and the incumbents are permitted to contest, then a caretaker government shall be in office on the Pakistan and Bangladesh model – consisting of persons not directly involved in party politics, with the Chief Justice as the Head of the State and elections be concluded within a period of six months at the maximum. The care-taker Government shall NOT be permitted to initiate any reforms or other measures leading to it.

    18) Independent Commissions shall be appointed for the administration and control of the various services that have to function without any political interference by anyone including the Heads of Councils such as public services, police, election, armed services etc., etc.. It shall consist of one member from each of the Regional Councils elected jointly by the members of the various Councils of each Region. The members of the Executive and Legislative Councils shall elect the 5th member of any Commission, who shall be the Chairman, jointly.
    19) The Head of State: The Head of one Region will act as the Head of State along with the Deputy Head of another Region as the Deputy Head of State for a period one year with the Heads and Deputy Heads/Assistant Heads of the other Regions taking their turns in rotation. If the Deputy Head of one Region happens to belong to the same ethnic group as that of the Head of Region who is acting as the Head of State then the Assistant Head of that Region would act as the Deputy Head of State. The Head of State and his/her Deputy would be guided by the Executive Council in their actions and would have the powers and responsibilities similar to that of a Head of State of a country where the Parliament is supreme. (India and Malaysia might be quoted as examples.). The Head of State is accountable to the Executive Council (Group 2). In any Region, the Head of Region and the Deputy Head of Region shall not belong to the same ethnicity IF that region has a population of more than 10% belonging to different ethnicities.
    The constitution has to be amended to include the above suggestions as modified. Please feel free to comment or request for any clarifications. Many suggestions that need consideration have been left out herein but would be included as the discussion proceeds.
    Clarifications, comments, opinions and questions, if any, on the above
    suggestions are welcome and may please be addressed to the under-mentioned email address: [email protected]
    Also please be good enough to let me know whether any of my suggestions are incorrect/wrong and your corrective measure for same. Also please suggest any new suggestions that have to be incorporated in this set of suggestions
    Thanking you in advance for favour of an early response,

    Yours in Service,
    Sie.Kathieravealu

  • Arosha Bandara

    @sinhala_voice (and all others who think that term limits on the presidency should be abolished):

    Even without all the changes to the constitutional council and the elections commission’s powers, the situation in Sri Lanka today is that incumbent presidents don’t lose elections. Why? Because the incumbent takes advantage of all the state apparatus to make sure they win. From election hoardings on state property, to use of civil servants and state resources for election campaigns, to blatantly partisan coverage by state media, the incumbent has every advantage at a presidential election. If you look at the history of presidential elections, every president (except R. Premadasa) has had two terms in office due to this advantage. Even R. Premadasa would have been ‘elected’ to a second term if he hadn’t been assasinated by the LTTE.

    So all this talk about the removal of the term limit actually empowering people to vote for the person they want, and the term limit actually limiting people’s ability to do this, is all eyewash. Removing the term limit, even without the other provisions of the 18th amendment, together with the track record of presidential elections in Sri Lanka suggest that Mahinda Rajapakshe will be president for life. The additional provisions proposed in the 18th amendment just make this ‘life presidency’ a certainty.

    The just governance of a country should not depend on a personality cult around a single individual. Other institutions such as parliament and the judiciary should provide a balance that protects the people (and by this I mean *all* the people – particularly the minorities) from the excesses of the executive. Unfortunately Sri Lankan governance has been moving away from this model for a number of years. The tragedy of the 18th amendment would be to legitimise the personality cult by making it part of the supreme law of the land.

  • http://[email protected] Random Australian

    This was quite an interesting article, thank you. I had no idea that the Sri Lankan government was on this sort of verging towards Authortarianism as it now seems to be.

    Hopefully with proper movements, including leafleting, demonstrations and alike you can get a mass popular movement going against such changes, This would help the referandum going a vote of ‘No’ that seeks to instill these what I see to be quite dangerous changes.

    Good luck.

  • http://magerata.wordpress.com magerata

    Term Limits are a necessity, no arguments necessary. Thank you.

  • http://www.groundviews.org Groundviews

    Comment sent via email by Mr. RMB Senanayake:

    There is a clear difference between the Presidential system and the Westminister system. Under the Presidential system therre is a separation of powers of the three different organs of the State. In France which is the model closest to our Presidential system the Executive Ministers ( including the President and even the Ministers have no vote in Parliament although they can attend the sittings of Parliament). In USA the Cabinet is appointed from outside Congress and the Secretaries of State appear before the Committees of Congress to answer queries of the Congressional Committees. So the appointment of the President to Parliament is against the fundamentals of the Executive Presidential system. It smacks of totalitarianism

    The President has no right to violate the provisions of the Constituion and any citizen can take him to court if he does so. But here citizens cannot do so because of the anti-democratic Judgment of former CJ Sarath Silva who did not abide by the judgment of Mark Fernando and a full bench that Presidential judicial immunity is not absolute but qualified.As a result the President is practically not accountable to the Law or the Constitution and the Judical arm has no power to hold him accountable even if he commits murder.So with the present juudicial immunity for the Presdient neither the Judiciary nor the Parliament can hold him accountabel to observance of the Law and the Constituion. A corrupt Parliament is useless to safeguard democracy.

    Raja

  • http://na SRINATH FERNANDO

    Executive President or the Executive Prime Minster? The idea of dismantling the roots of authoritarianism
    (The Island)
    The enactment of 1978 constitution was brought about by the JRJ Government in an effort to re-structure the battered economy inherited from the coalition government led by late Mrs Sirimavo Bandaranaike. Late Mrs Bandaranaike lost her civic rights for abusing her Prime Ministerial powers which she was enjoying under Westminster style government/ parliament. Pertinent question that begs an answer is what guarantee will there be that the Office of the Executive Prime Minister would be a sacred Office devoid of any authoritarian tendencies.

    1978 constitution was a culmination of an absolute power handed over to the JRJ on a platter by the people of this country. It has taken almost 3 decades but the idea of dismantling the authoritarian tendencies of the Executive President is still being debated. The constitution provides a clear procedure as to the mechanism by which the constitution can be changed. The major obstacle is the mechanism through which this is achieved. JRJ Government also introduced the Preferential Representation system of electing legislators which effectively padlocked the efforts to change the constitutional order neither from inside nor from outside. It is said in common parlance that the padlock so designed that it could never be opened unless it is broken. How, when and by what mechanism the constitutional order can be changed in the future is still an illusion. However it is high time all parties got together and devised a mechanism that would pave the way for a constitutional change which should encompass the remedies for all ills that beset the people of this country. We should not go far enough to study the constitutional law. A closer examination of the norms and niceties of the Constitution of India and how the Indian economy and democracy worked since independence would be a worthwhile exercise.

    The major economic milestones so far achieved under the Executive Presidential system were the massive economic activity brought about by the JRJ Government, poverty alleviation under Janasaviya program and the complete annihilation of LTTE on the battle ground. By the same token one cannot ignore the equally massive damage it caused to the society at large. Dictatorial tendencies and the evil of corruption, plunder and pillage also took root on a grand scale during the time the Executive Presidential system was in vogue. History provides us ample examples of how dictators are born. The origins of authoritarian tendencies are analogous to such systems in others parts of the world. It would be pertinent to examine how a dictator carries out his command. A dictator becomes weak only when he finds out that his command has not been carried out or has not been effective. This then allows him to use the command with a fear attached to it that if his command is not executed it will have consequences. So a dictator is always under the illusion that there may be people who may resent his rule or in common parlance there may be conspiracies to topple him.

    Prof. Ronald Wintrobe an authority on dictatorships has stated in his book The Political Economy of Dictatorship that “the people have good reason to fear the ruler but this very fear will make many among them to look for ways to get rid of the dictator. So the ruler has every reason to suspect that there are plots against the regime and one common method of removing the dictator from office has indeed been assassination. If the regime is to have any permanence, institutions must be created or maintained which deal with this problem by regularizing payments to its supporters and by providing for the systematic marginalization or elimination of its enemies” or even potential enemies. Now we have understood the psyche which drives a dictator. If the constitution has legitimized the actions of the Executive President how could it be interpreted as being dictatorial or authoritarian? Even the judiciary will have to interpret the executive action as being consistent with the constitution. Could we now examine honestly that the root cause of authoritarianism is the very constitution from which such orders are issued under a garb of executive action ?. How could we have allowed such a system to prevail for more than three decades?. Are people genuinely aware of the powers vested in the executive and the abuses the people have been subjected to? Are people so engrossed in their day to day chores not knowing the social responsibility of taking the authorities to task for violating the basic rights of people? Why has discipline in the Police Department relegated to that of a private army? Why are people being killed and tortured when they are under police custody? Why do police resort to extra-judicial actions ( Police officers have been provided with training in law enforcement techniques and criminal intelligence gathering but resorting to extra judicial methods are in negation of the professional standards of such officers) ? Why have the so called learned people in our society turned a blind eye to what’s happening under their very noses? The 17th Amendment was introduced with the blessings of all the major political parties in Sri Lanka but it had been in abeyance for the last couple of years. Where is the peoples initiative to press for its effective implementation.

    An effective democracy which takes care of the well being of the citizens must have in the first place the respect for Rule of Law, media freedom, and access to health, education and welfare programs. If the government in power is unable to provide none of the above it is considered as being a failed state. A critique may argue that since independence Sri Lanka has had all these in ample measure. History provides how successive Executive Presidents have resorted to extra constitutional methods of suppressing dissent. The supremacy of the legislature has to a large extent been reduced by the Presidential system of government. The legislature should be made supreme as that is the place where the Constitution and Laws of the Country are enacted. Accountability in government action has completely been eroded by the diktats of the Executive Presidential system. This is tantamount to meddling with the independence and integrity of public service which is a corner stone of democracy and good governance. Without accountability democracy cannot flourish. Above all a constitution must have the legitimacy and it should be a people friendly constitution with adequate checks and balances to protect encroachment of powers that would influence the will of the Legislature and Judiciary and the Public Service.

    We have overlooked a serious issue as to why the implementation of the 17th Amendment was in limbo. It was meant to bring sanity to the otherwise politicized public administration. The Constitution Council, Independent Elections Commission and Police Commission are not in operation. Critiques believe that this amendment was to a certain extent watered down the powers of the Executive President. The incumbent president has not given the due consideration it deserves to implement the 17th amendment. This may be due to his immense popularity with the masses. In the absence of his unwillingness to implement a section of the constitution the opposition is duty bound to build up public opinion in favor of its implementation. There seems to be a serious lapse on the part of the Opposition to bring adequate pressure on the government to get the constitutional order in place. This is a task the general public would have expected the opposition to have spearheaded vigorously. Unfortunately, the prosecution of the war against LTTE took precedence over all other considerations and people, too, were carried away by the emotional appeal over military success over the LTTE. An interesting remark came from Supreme Court Judge Justice Saleem Marsoof when addressing the Kamalasabayson memorial oration in August 2008. Justice Marsoof said that “sadly, the 17th Amendment to the constitution has become a dead letter due to the failure to appoint the members of the constitutional council, which has, for instance, compelled a fast aging commissioner of elections to continue in office ad infinitum and beyond even the compulsory age of retirement. In the absence of a properly Constituted Constitutional Council, elections are now held without the salutary oversight of the independent Elections Commission sought to be established by the said Amendment, and major appointments to the public service and the judiciary are made without complying with the mandatory provisions of the constitution. It is therefore essential to bring about changes in polity and attitude to create the climate for the appointment of the Constitutional Council so that it can begin to function once again. This is extremely important for the preservation of the rule of law”.

    It would be difficult to fathom the logic that that 1978 Constitution is harmful to society. Of course there are areas that need further refinement but the 1978 Constitution per se is a unique constitution. Only time would prove the future Executive Prime Minister (with limited powers) would be able to wriggle Sri Lankan society out of its current mess.

    Srinath Fernando is a Freelance Journalist and Political Lobbying & Government Relations Consultant

  • Critical Thinker

    Thanks for posting this. Is there a Sinhala version of this comparison document? It would be nice to have something to use with people who do not read English well.

    Also, do you have any links to documents where the government has laid out their rationale for the changes, other than the generic “for development” reason? Would be nice to be able to have all the information from both sides in order to present a sound case against this.

  • http://- Pandukabaya

    Dear Random Australian,

    Thank you for your suggestion that there should be a popular movement against the proposed 18th Amendment. Let me however assure you that a popular movement of this kind will not be seen in Sri Lanka because our intellectuals, activists and our professionals are not genuinely interested or perturbed about these things. There is no culture of non political mass movement or an insistence on principle. Even the large number of big NGOs are politically linked. So is the media. There is actully no culture of activism, only of earning big bucks. So in this environment, how can you expect a dicator like Rajapakse to be opposed with any success? Ultimately the defiance to the ruling family will need to come from the ordinary people. Until then we can kiss democracy goodbye and say hello, Burma!.

  • Sohan Fernando

    Referring to Random Australian’s suggestion and Pandukabaya’s response to that suggestion; i.e., referring to “leafleting, demonstrations, … ” and “mass popular movement”. As I see it, the reasons that such actions will have only little useful result, are:

    a. Such things don’t really attract much attention any more, mainly because all too often people demonstrate and take to the street about absurd or petty issues; therefore, oftentimes people will walk or drive past a protest without giving it a second glance.

    b. But, in the case of important matters when such information dissemination (such as leaflets) or such protests are carried out, if these efforts ARE likely to have good benefit, then usually they’re quelled. Possible examples may be: tear gas; false accusations of the protest being non peaceful; allowing pro-govt supporters to attack protesters and then trying to blame or arrest the innocent protesters, etc. Rarely would any such protest have the chance to reach much of the intended audience.
    Additionally, there is often great risk in participating in any such activity. Random Australian, see what happened to these efforts to use leaflets (posters) : http://www.dailymirror.lk/index.php/news/6318-jvpers-arrested-.html

    c. Another reason for poor results: often crafty counter propaganda is used (by guess who, of course), such as by using public mass media to give false distortions to the rest of the gullible or easily-swayed populace, often by charismatic and eloquent speakers (Good Luck, Please!). for example, the populace may be told that such and such a protest was with the connivance of foreigners and traitors who want to destroy our “territorial integrity”, or (sometimes falsely) claiming that it was just a sour-grapes ploy by the disgruntled opposition, and any excuse to somehow try to connect the supposed defeat of terrorism; or — well I don’t remember all the absurd instances, but certainly craftily the general population has been fooled time and again, and made to ignore and reject truthful information.

    d. I agree to a large extent but not fully, with Pandukabaya ‘s opinion that “intellectuals, activists and our professionals are not genuinely interested or perturbed about these things. There is no culture of non political mass movement or an insistence on principle.”
    I think it’s true of some of these people but nowhere near all. Also think there is much more to the reason for this, than simply disinterest, but can’t quite get my thoughts into words to expand upon that. (Apathy based on past experience, is one reason.)

    I’m certainly not saying that we should therefore give up on such expressions of free speech and so on; but just pointing out why it’s not so easy as perhaps in (some) other countries, to use this tactic effectively.

    Critical Thinker said “Is there a Sinhala version…”, “…something to use with people who do not read English well.” I think that is very important to do (both independently of as well as parallel to protests/leaflets/other information dissemination), to reach the unreached (or “brainwashed”) large number of the population. What do I mean by brainwashed: well, just for an example, why on earth dont the large masses see how obviously crafty is the way that this “Urgent Bill” process was done? Why can’t they see what a huge lie, twice, there was in the election promise to abolish the Exec. Pres’y?

    And not just a matter of Sinhala documents, but i also feel it’s important that — well, again, I’m unable to expand and put into words what i mean, but briefly: I strongly feel it is very very essential that the various religions’ leaders and teachers play a much larger role in conveying a lot of the things that need to be firmly rooted in the people’s hearts and minds.

  • Heshan

    As a side note: the Mahinda Rajapakse administration has recently announced its intentions to pursue legal action against former incumbent, Chandrika Kumaratunga. This cannot be a mere coincidence. Mahinda is counting on another landslide election victory. Yet the fact that he fears the possibility of CBK running against him (the only explanation for the aforementioned judicial proceedings) implies that he is counting on a weak Opposition, come election time. Moreover, he is counting on a UNP/DNP/JVP Opposition that is even weaker than CBK, assuming the two are mutually exclusive.

  • Heshan

    *DNA, not DNP

  • niranjan

    Well said Pandukabaya. I am in agreement with you. The SL professional class is interested in earning money and looking after their jobs. They are not interested in demonstrating against the regime.
    On the other hand even if one demonstrates against the regime nothing is going to change.
    In SL regime change is not possible by resorting to demonstrations.

  • sinhala_voice

    The reason that we are in this position is not ONLY the executive presidency.

    One of the main reason for this is the ELECTORAL SYSTEM that we have in Sri Lanka.

    The MULTI PARTY PROPORTIONAL SYSTEM with the District as the electorate.

    Because of this system A MP (member of parliament) has NO representative value. That is he is not going to lose his electorate if he does something stupid.

    This system is what keeps politicans in power election after election and this is exactly what needs to be changed.

    Also VOTING MUST BE MADE COMPULSORY and the voting age should be 21.

    Till 21 people MUST learn vocational skill and part take in the ECONOMY OF THE COUNTRY.

  • http://- Pandukabaya

    Dear Sohan and Niranjan,

    Thank you for your comments. I believe that first of all, change has to take place within ourselves, in the way that we think and act. For example, for many, the media is responsible for many of the problems that we face. But I find this critique to be onesided even on a site such as Groundviews.

    It is interesting that critiques never touch on the failures of intellectuals too to stand up, to make a difference.

    The media is a easy hit. One good example of media misdeameanours is perhaps the manner in which the Island ‘misquoted’ ex-UN diplomat Jayantha Dhanapala’s submissions to the LLRC, which continues to be cited, most recently in an article written by Dr Rajan Hoole. But, as i have said repeatedly, the Island was never called upon to retract from that story by Dr Dhanapala which, if it had been done, would have cleared many of the wrong perceptions at the start. Today, the Island has published a follow-up to this first news item, reproducing the relevant transcripsts from the oral hearings before the LLRC where Dr Dhanapala had called for a reform of the laws of war to cater for situations where govt forces fight non state actors such as the LTTE.

    Both in his written submission as well as in his oral answers, the stress on civilian protections is nothing compared to the total emphasis on the need for reform of humanitarian law. Was such a submission, before a politically motivated tribunal such as the LLRC, wise, Sir?

    What about all the other intellectuals who stayed quiet when Tissanaiayagam was accused and sentenced? When judges were coerced to give judgments in a particular way? When we had a former Chief Justice throwing out international human rights law in the Singarasa decision four years back and intellectuals were mum for fear of contempt? Why were bodies like the Civil Rights Movement silent for the better part of this decade, apart from issuing occassional – and useless- statements? Why were jurists and retired judges silent when a former Chief Justice ran roughshod over the judiciary and what we were taught at law school was trampled under in the court room? Why are these people silent now when injustice is so obviously apparent against former Army Commander Sarath Fonseka? Are they guilty of abandoning principle due to the personality?

    At least in the media, journalists have died for the truth. Lasantha was one example. Many continue to speak out bravely despite the threats and dangers. As commented upon recently by a columnist in the Sunday Leader, some of the bravest are women; Kishali Pinto Jayawardene(Sunday Times), Frederica Jansz (Sunday Leader), Shanie (Island) and Tisaranee Gunesekera (Sunday Leader). These women should make many men ashamed of themselves. They have not allowed even vile abuse directed at them, to stop them, including attacks based on the fact that they are women.

    On the other hand, has a single intellectual braved the government the way that some writers have done and are still doing? Have they at least stood up to loose their jobs when the Vice Chancellors of their Universities came out in support of the president or when their Universities conferred doctorates on the president, his brother and the IGP?

    Criticisms must be applied fairly and across the board, not selectively. Perhaps organisations such as the University Teachers for Human Rights (UTHR) of which Dr Hoole is a prominent member, should devote its next Report to a critique of intellectual society in Sri Lanka as being also responsible for the mess in which we find ourself? This would be very pertinent as the UTHR was formed by university teachers itself!

    This would be a good contribution to the self critique that we should engage in FIRST without talking superficially of demonstrations and the like. Otherwise demonstrations, like what happened over Lasantha’s death, which I also attended, would be just a political sideshow! I was ashamed of myself for having gone for that when seeing the way that it was captured by vested interests. Let me say that after that experience, I would be very shy to attend another demonstration again! Maybe I will abandon my law and take to independent journalism! Advice welcome!

    • http://www.groundviews.org Groundviews

      @ Pandukabaya,

      “Today, the Island has published a follow-up to this first news item, reproducing the relevant transcripsts from the oral hearings before the LLRC where Dr Dhanapala had called for a reform of the laws of war to cater for situations where govt forces fight non state actors such as the LTTE. Both in his written submission as well as in his oral answers, the stress on civilian protections is nothing compared to the total emphasis on the need for reform of humanitarian law. Was such a submission, before a politically motivated tribunal such as the LLRC, wise, Sir?”

      See our response to the Island story here.

  • http://- Pandukabaya

    Groundviews. Thank you for drawing my attention to the update.

    Yes, it is quite true that the Island had misrepresented Dr Dhanapala which is what I also said earlier. But my post and several before) were based on a number of further conclusions instead of merely accusing the media of selective and erroneous reporting. One, that a submission of this nature was unwise before a political tribunal as the LLRC and that Dr Dhanapala should have been prepared for media misrepresentation and gone ready for that. Two, that to have been surprised and disappointed at the Island coverage after three, four days (did he expect such statements attributed to him to pass bye without comment ?) and then say that he is waiting for transcripts showed that he was not sure at what he himself had said. Third, that he should have issued a formal demand for a correction without letting the matter rest for three, four days. Fourth, that, his praise of the Commissioners, in particular the Chair who was responsible for the failure of the Udalagama Commission, was surprising, even given the allowance that we may make for the niceties of these ocassions.

    The remaining underlying question was why these people waste time in going before such Commissions as if expecting good to come out of it? Have’nt we learned anything better during the past years?

    My point was also that the nature of the our interactions need to change with those who are all out to destroy our systems. Though sites such as Groundviews do a good function at a time when the mainstream media is under pressure, many people do not access these sites and are not familiar to converse in a language as English. So, the lasting impression is what is conveyed through the print newspapers and the electronic media. This is what makes opinion – UNFORTUNATELY! The initial reporting of Dr Dhanapala’s submission in the Island and its repeated publication yesterday is what will stick in most peoples’ minds. This has been the naure of propaganda by which the government has been successful in turning pubic opinion to its side. We need to directly challenge the mainstream media to publish corrections, to acknowledge misreporting and to take the media before its own disciplinary forums to publicise the matter. This will make the media sit up. Getting on a high horse or taking the moral high ground when one is misrepresented may be satisfying but not very fulfilling.

    • http://www.groundviews.org Groundviews

      @Pandukabaya, well said and we agree.

  • ha_wi 2000

    In my humble opinion SriLankans’ do not deserve democracy, and it has not worked for the country so far. Feudalism, and a benovelent ‘regal’ is what people need and understand. Democracy needs participation, education, honesty, and love towards the others in the society. We have cultivated greed, hatred, and nepotism, ever so fast during the past half a century. Politics has transformed from social service to profession to business and thuggery. One reeps the crop of the seeds they sow!

  • SRINATH FERNANDO

    Legitimacy of constitution making
    Island Newspaper June 29, 2010, 5:57 pm
    By Srinath Fernando
    Jeremy Bentham, an English philosopher, said that ‘public good ought to be the object of the legislator; general utility to be the foundation of his reasoning. To know the true good of the community is what constitutes the science of legislation; the art consists in finding the means to realize that good’. Contemporary politics amply demonstrates that politicians are no way concerned about the good of the community but rather their conduct and actions are proved to have been to amass wealth and other benefits for their own good, leaving the citizens in the lurch. It is a very sorry state of affairs that there is a considerable erosion of morals and values in our society despite the fact that Buddhism has survived almost 2300 years in Sri Lanka. We hear of some efforts by the Government to introduce some constitutional amendments and no citizen seems to be aware of what is in store for them, whereas the very process of constitutional making should have been an inclusive exercise. Unfortunately there does not seem to be any semblance of pressure being exerted by the civil society to make the process more transparent.

    President JRJ was swept into power in 1977 after a period of hard economic conditions and this resulted in a protest vote where the voter turn out was approximately 80% of the registered voters and the result was astounding 5/6th majority in parliament. The economic conditions necessitated more power to bring about drastic changes sought by the people. The result was in the shape of an all powerful president with tentacles extending to all sectors of the country, a monster recognised only in 1982, when late President JRJ decided to extend the life of parliament by a referendum. Executive action of the UNP regime was able to annul a Judgement of the Court of Appeal, concerning Late Mrs. Srimavo Bandaranaike, through an act of parliament, a clear encroachment on the judicial independence. It is almost 60+ years since we gained independence still the governance of the country is being experimented. It is rather the style of governance that is most needed not the constitutions. The constitution is meant to consolidate the power base of the ruling regimes in the past.

    It was very regrettable indeed that Government willingly kept the institutions that came under 17th Amendment in limbo, which was at the time of its adoption, was considered to be an exercise in good governance, as had been accepted by all the political parties. According to Rohan Edirisinghe, lecturer in constitutional law, the implementation of the 17th Amendment would have strengthened the sovereignty of the people as had been affirmed by the Supreme Court when it delivered its judgment on the 17the Amendment. (refer – interview by Sanjana Haththotuwa on YATV ). This argument is meant to debunk the theory advanced by Prof. GL Peiris that 17th Amendment violated the sovereignty of the people.

    Let us ponder for a moment the process of constitutional making in India. India has made mammoth strides in economic and social development and is on the path to becoming a super power. The Constitution of India was drafted through a process of a Constituent Assembly (CA) which comprised elected members of the provincial assemblies. The CA comprised leading political figures of the caliber of Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee and Nalini Ranjan Ghosh. There was adequate representation of members of the scheduled classes. The minorities such as Anglo-Indian community, the Parsis, and the Gorkha community too represented at CA. There were also prominent jurists like Alladi Krishnaswamy Iyer, B. R. Ambedkar, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankar. The interests of the women were represented by leading female activists such as Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh and Rajkumari Amrit Kaur. Before the constitution was officially adopted there were sessions open to the public for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the constitution. After many deliberations and some modifications, the 308 members of the Assembly signed two hand-written copies of the document on 24 January 1950. Two days later, the dream of adopting a unique constitution was realized. There have been around 100+ amendments to the Constitution of India since it was enacted 60 years ago.

    In the year 2000, the Government of India, constituted the National Commission to Review the Working the Constitution to make suitable recommendations. The resolution to constitute the National Commission to Review the Working the Constitution says that it “shall consist of a whole-time Chairperson who shall be a person of distinction with knowledge and expertise of constitutional issues and in the working of the democratic institutions of the nation.

    It was further stipulated that besides the Chairperson, the Commission shall have not more than ten other Members who shall be selected on the basis of their proven expertise and knowledge in the field of constitutional law, economics, politics, law, sociology, political science and other relevant subjects. The Commission shall have a Secretary of the status of a Secretary to the Government of India to assist the Commission”. The terms of the reference was to “examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of parliamentary democracy and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features.”. This is a clear people friendly attempt by the Indian Government to review the constitution not just to change it, but to look into the working of the constitution. How nice, legitimate and democratic was the process!.

    Srinath Fernando is a Freelance Journalist and a Political Lobbying & Government Relations Consultant.

  • http://www.groundviews.org Groundviews

    “The timeline… reflects both the genesis of the heinous 18th Amendment and also the occasions mainstream press reported that the President attended / “visited” Parliament.

    It was no easy task to compile this. Only a handful ordinary citizens would have the expertise to search for this information online, or elsewhere. There is no easy record retrieval of the President’s attendance in Parliament on its official website. But what is immediately obvious when the scattered media reports are taken as a whole is that the 18th Amendment has in no way at all contributed to a more accountable Executive. ”

    Excerpt from ‘Months after the 18th Amendment: Is the Executive really more accountable to Parliament?’, http://groundviews.org/2011/06/11/months-after-the-18th-amendment-is-the-executive-really-more-accountable-to-parliament/