Columns

Maithripala Sirisena rode to the presidency on the silver swan of a sacred promise: to set in motion a revolution that would result in a real change for Lanka within hundred days of taking office.

Well brace yourself. The revolution is round the corner and will be upon us soon. If all goes to plan the 19th Amendment to the Constitution, which was gazetted last week, will be presented in Parliament in April and, as President Sirisena announced on Wednesday, general elections will be held shortly after it has been passed. Thirty seven years of presidential rule that had become anathema to a nation, will become history as Lanka returns to her past to find in the old Westminster model of government, the way ahead to a better future. It is an old system of government known only to those over 55 years.

Only the senior citizens of Lanka have seen a parliamentary democracy in action, and participated in the voting process, where executive power had laid reposed in the prime minister and the Governor General or the President had been but the mere ceremonial Head of State. For the vast majority of those who are still below the age of 55, it will take some time in getting used to the idea that the new look President of Lanka will not be one adorned with all the trappings of near dictatorial power but is one who will soon be reduced to a cardboard cut out of the previous president they knew and held in awe not even three months ago.

Apart from the repeal of the obnoxious 18th Amendment and the restoration of the 17th Amendment which will see the establishment of independent commissions to act as the pillars of Lanka’s democratic edifice with a Constitutional Council at its pinnacle, the most important change in the proposed 19th Amendment will be to turn the President into the nation’s mascot, to be the living embodiment of national unity.
And that’s not all. The man elected by the nation to be the country’s executive president just two months ago, empowered, as the father of the 1978 constitution President J. R. Jayewardene once said in a moment of vainglory, “to do anything except make man a woman and woman a man,” will now have not powers to exercise but duties to discharge.

And what are these onerous duties that Maithripala Sirisena at great personal risk to his life and liberty came forth from the shadowy wings to bear? What indeed are the duties encumbering the holder of this highest office in the land that have turned the jewel crusted crown of his predecessors into one of prickly thorns?

For starters, by virtue of the new amending Article 33(1) he is to be the symbol of national unity and shall be duty bound to ensure that the Constitution is respected and upheld by all organs of Government. His custodianship of the Constitution is also coupled with his duty to be the religious policeman of the realm, to ensure that religious and ethnic harmony prevails in the land. He is also required as a matter of duty to promote national reconciliation and integration and to see that the constitutional councils properly function. He is also under a duty to ensure, on the advice of the Elections Commissioner, the creation of proper conditions for the conduct of free and fair elections and referenda. Amongst other tasks he shall perform is to play the nation’s host and receive and recognise, and to appoint and accredit, Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents.

These then will be some of the tasks that will wait the attention of all future presidents, including the present incumbent. But even whilst the aim and purpose of the 19th Amendment has been to enrobe the Lankan President with the royal paraphernalia to be the incarnate symbol of national unity, like the born-to-reign Queen of England is in Britain, the wide powers of the elected to rule president have not been merely pruned but entire branches lopped off with a parliamentary chain saw. With the presidential canopy of power cleared of the dense foliage, the sun’s rays will now burst through to shine gloriously on the Prime Minister’s garden bed and make its furrowed turf bloom a thousand roses.

The president will no longer be the head of the Cabinet. That title will now belong to the Premier. Like the majority shareholder of a public company, the President’s sole task will be to appoint a chief executive, the PM, to run the conglomerate, with the president having no right thereafter to interfere in the day-to-day management. Gone will be the day when the Prime Minister was nothing more than a glorified peon at best or a careless clerk signing request letters to clear heroin shipments at worst.

The Prime Minister, once appointed by the President will become his own man. He can freely decide on his cabinet team. And the ministers so appointed will hold office only as long as the prime minister remains prime minister. If he goes, they go. This makes his position stronger and his task to secure their loyalties easier for their fates will be inexorably entwined with his. The President cannot remove any minister. He can only do so on the advice of the prime minister.

Again there is no explicit provision for the removal of the prime minister, except during the period intervening between the dissolution of Parliament and the conclusion of the general elections. Whereas the present Constitution states that the prime minister shall cease to hold office by removal, resignation or other cause, the 19th Amendment only states that the prime minister shall cease to hold office by death, resignation or otherwise and thus leaves the possibility of his removal purposely vague.

Under the present 1978 constitution all appointment of ministers were done by the president in consultation with the prime minister only if the president thought that such consultation was necessary. Now it is the prime minister who determines the composition of the Cabinet. The president merely ratifies the premier’s choice. In fact, under the new proposed amendment, the President is not even a member of the Cabinet.
While the President under the new amendment (as he is under the present constitution) is still ‘responsible to Parliament for the due exercise, performance and discharge of his or her powers, duties and functions, he can only appoint, in many instances, ‘on the advice’ or ‘in consultation with’ or ‘in concurrence’ with the prime minister; or act ‘on the recommendation’ or appoint ‘on the recommendation’ or remove a person ‘with the prior approval’ of the Constitutional Council.

The 1978 Constitution states that in Lanka sovereignty is in the people and is inalienable, that it cannot be transferred to another. The executive power of the people is to be exercised by the President elected by the people. The new amendment seeks to limit the president’s executive powers to a single right to appoint as prime minister the Member of Parliament who, in the President’s opinion, is most likely to command the confidence of Parliament who will then also become the Head of Cabinet.

Thereafter the Prime Minister will be a loose cannon. The President will cease to have any control over his actions. The Prime Minister will have complete freedom to determine the number of members in his Cabinet within the allowed limit. He will have complete freedom to decide who the ministers will be, both cabinet and non cabinet ministers and their deputies. The President will not even be a member of the Cabinet and will not be regarded as one even if he chooses to be the Minister of Defence, or Mahaweli or Environment, the only three ministerial posts he is expressly allowed to lord over under the proposed 19th Amendment

The President will have no right to hold the all important Finance Ministry portfolio or any other portfolio even if he wishes to. The new amendment effectively rules him out. Doesn’t this implied prohibition infringe upon his executive powers vested in him directly by the people in whom lie the sovereignty of Lanka?

The President’s only function will be to act as a mandatory rubber stamp and place the privy seal on the Prime Minister’s decision. And to underscore the fact that the presidency has been reduced to purely a ceremonial role it is important to note that the 19th Amendment stipulates that, in the event of the President being temporarily indisposed or absent from Lanka and is unable to discharge his duties, the ceremonial head of Parliament the Speaker or failing him the Deputy Speaker and not the Prime Minister of the Government, will act for him in the office of President.

Is this, by any stretch of imagination, a proper delegation of executive power which is within the ambit of sovereignty or is it an actual transference of executive power to members of the legislature, which is not, permitted on the basis that sovereignty which lies in the people is inalienable? The President has the right to delegate his executive powers vested in him by the people but not the right to transfer it?

Can a stale parliament, fast reaching its sell-by-date shelf life of its six-year term, whose members were never elected by the people in April 2010 to do a hatchet job on the supreme constitution of the land, be the recipient of such executive generosity even if its benefitting members pass it with a two third majority?

Did over 6 million Lankans go to the polling stations on January 8 this year and vote for Maithripala Sirisena to turn him into the nation’s mascot and to be presented as the endearing symbol of national unity? Did they elect him to rule as a hand on executive president and find solutions to the many troubles besetting Lanka or to shuffle off his powers and responsibilities on to another to do the job? Did they wish to encumber him with the pressing task of battling the cost of living, cracking the whip on corruption, bringing the Rajapaksa regime rogues to justice, winning the rewards of peace or to wrap him up in the mink of ceremonial cosiness and leave him on the mantelpiece of state as an auspicious symbol of a nation’s svasti?

When the people of Lanka have collectively elected one man as their executive president and embodied in him the executive sovereignty of the people; and empowered him with the authority to exercise the executive powers of the people which the present constitution holds as inalienable; can the self same powers be delegated to another – even though he may command the confidence of Parliament – to be exercised in a manner that is expressly declared to be devoid of any control by the delegator?

Does such a delegation not tantamount to transference of power in actual fact and make the delegatee the de facto president, exercising presidential powers without restraint, as if it were his own? Even if he commands the confidence of the House, would it not be impudent of him, representing as he personally does only the voters of his own electoral district, to exercise the executive powers given by the entire nation to the elected president?

These are questions for the people to answer. Not for a parliament at the tail end of its term to decide, however loud its majority roar maybe. Only a referendum can determine the fate of the 19th amendment which in its present form strikes at the very core of the people’s sovereignty.

Travesty of justice: Free Sigiri Uthenie SUNDAY PUNCH 2 A fun factory trip with friends to see Sigiriya has landed a young girl in jail for two years. The Mirror Wall: Graffiti wall on which Uthenie scribbled her name with a hair pin Twenty -nine-year old Uthenie Sinnathamby never imagined a small scratch with her hair pin on the massive Sigiriya rock would leave a permanent scar on her life when a Dambulla Court sentenced her to imprisonment for two years early this month. Her ‘ghastly’ crime was to have scribbled her name with her hair pin on a section of the rock known as the Mirror Wall of Sigiriya. She was arrested, produced in court and jailed on March 2. Pleading for release Uthenie’s mother said, “My daughter went with her friends on a tour to Sigiriya. Seeing several names had been scratched on the wall, out of ignorance, she had scratched the name of her friend also on it. She did not know that the wall should not be scratched. Had she known that, she would never have scratched the wall.” Perhaps the authorities did not know the history of the Mirror Wall either. Sigiriya is not a sacred place of religious worship and as such no sacrilegious acts, short of vandalism, can be done here. Discovered accidently, not even two hundred years ago, by a British Major out on a hunting trip on horseback, it is popularly known as the lofty refuge of a parricide king who killed his father by walling him and fled to this rocky lair to escape the wrath of his brother. The Mirror Wall on which the girl had scribbled her name is a brick masonry wall, covered originally in polished white plaster. It is now partially covered in local graffiti, with verses scribbled by visitors on the rock. In fact the scribbling dates back to over 1200 years. Though writing on it is now banned, still the verses written on it reveal the thoughts and emotions of a people from all walks of life who lived in Lanka in an age long past. Eminent archaeologist Dr Senerath Paranavithana was so fascinated with the scribbling that he deciphered 685 verses written before the 10th century. In fact one writer has written, “I am Budal. Came with hundreds of people to see Sigiriya. Since all the others wrote poems, I did not!” It shows that rocks were not the sole preserve of kings to engrave their edicts and etch the periods of their reigns but also served as the papyrus for the common man to stamp his mark on nature and record his existence in time. Unbeknown to Uthenie who scribbled her name in ignorance that such acts were banned today, she may have been following in the hand writing style of her forefathers. Uthenie’s act was neither an ISIS attack nor a Taliban style destruction of hallowed works of art. It was simply a hair pin scratch on a plastered brick wall which a load of hair brained brick heads thought amounted to a capital crime. Thankfully an appeal has already been made by the Deputy Foreign Minister to President Sirisena to free Uthenie . The president should use the powers conferred on him under Article 34 of the Constitution and immediately pardon Uthenie. Past presidents have used this power even to free Indian drug smugglers. Freeing Uthenie would not only be an act of loving kindness but would also send a message to those responsible for this travesty of justice that the punishment must fit the crime. If its two years jail for scratching one’s name with a hair pin on a Sigiriya wall already covered in graffiti, what do you suppose one would get if one drew pictures of topless dames as a fresco on the western face of Sigiriya rock?