Columns

• The proposed amendment’s fate in the hands of SC, Errors in Committee stage amendments
• Opposition to intensify protest campaign from tomorrow; lacklustre support for Karu’s effort to revive NMSJ

Senior journalists invited for Tuesday’s breakfast meeting with Prime Minister Mahinda Rajapaksa are seen engaging in a lively discussion with him. With the Prime Minister were Ministers Keheliya Rambukwella, Udaya Gammanpila, Wimal Weerawansa and Douglas Devananda.

As the Supreme Court adjudicates on 20A, both overt and covert moves are afoot by the Sri Lanka Podujana Nidahas Sanvidanaya (SLNPS) government to ensure a majority for the bill’s passage in Parliament.

The Government now holds 149 seats. With the Speaker, who has a casting vote, it would be 150. That would be adequate but the leaders do not want a nervous photo finish. More so with rumblings from less than a handful who have been expressing reservations though the vast majority are in favour. Parliamentarian Vidura Wickremenayake has publicly declared that he was opposed to 20A. Asked about this, he told the Sunday Times, “This is my private opinion. We actually do not need an amendment. What is needed is a new constitution. We do not need patch-up amendments.”

Wickremenayake, (SLPP–Kalutara district), son of onetime Prime Minister, Ratnasiri Wickremenayake, said “20A has just been tabled in Parliament. It is now being examined by the Supreme Court. I have not completely studied the amendments. We will decide whether to vote or not after the SC ruling.” He added that a new Constitution should lay down the number of Ministers, deputies, and state ministers. “It should safeguard the people and their rights. National policy in respect of transport, health and education should be enshrined in it,” he pointed out.

Another, who is miffed due to his non-inclusion in the Cabinet of Ministers, and one more holding extreme views are also known to be expressing reservations. The latter has openly expressed his views at government parliamentary group meetings. There is little doubt that defying the party line would compel them to face disciplinary action.

Government leaders do not want to be taken by surprise. Behind the scenes moves are afoot to have members of opposition parties to vote in favour. The main thrust in this regard is being spearheaded by Basil Rajapaksa, the key strategist of the Sri Lanka Podujana Peramuna (SLPP), the predominant partner in the alliance. One of the main conditions he had laid out — there would not be any quid pro quo in the form of official positions like ministers, deputy, or state ministers. The Sunday Times learnt that three each from two smaller parties are most likely to vote for 20A. In addition, there were indications this week, that one of the leaders now in the news may throw in his support “unconditionally.” He has been making several overtures to senior government leaders but with little success so far. He has thus conveyed to leaders about his stance, perhaps in the hope he could clinch a meeting and work out a deal. That involves pending legal action against him too.

That the draft 20A has been made hurriedly drafted without detailed study is becoming increasingly clear. Just this week, SLPP Chairman and Minister G.L. Peiris told his regular news conference at SLPP headquarters in Battaramulla, that the amendments were being introduced to ensure the defence portfolio came under President Gotabaya Rajapaksa. His argument was that a person who had received an overwhelming mandate of the people should not be denied that portfolio. Those remarks, no doubt, place President Rajapaksa in an awkward position and tend to mislead the public. The President has not been impeded by the absence of the defence portfolio to the point of urgently bringing in 20A. That is laughable.

The President has told his Cabinet and government MPs that he would take the “full responsibility” for the amendments which were necessary for governance. He is Commander in Chief of the armed forces and continues to exercise the functions of a Defence Minister. That was how he was able to deploy the armed services to counter the Covid-19 pandemic. He was able to keep the outbreak to exceptionally low levels compared to other countries. Besides, the setting up of a Parliamentary Council, appointment of judges, the power to dissolve Parliament or appoint an unrestricted number of Cabinet ministers — some highlights of 20A — are not functions that come under the defence portfolio. Not surprisingly, Prof. Peiris chaired a committee appointed by Prime Minister Mahinda Rajapaksa to study the features of 20A. He is also an intervenient petitioner at the Supreme Court hearings on the amendments. The other is Sri Lanka Freedom Party (SLFP) senior Vice President Minister Nimal Siripala de Silva. Others included, Minister Gamini Lokuge and SLPP General Secretary Sagala Kariyawasam,

There are 20A issues which are now engaging the attention of government leaders. One is when 20A, after the Supreme Court findings are known, should be introduced in Parliament. One aspect under consideration is whether there should be a special session after the upcoming sittings from Tuesday October 6 to 9 are over. In the alternative, it is expected to be when Parliament meets again on October 20. This date is the deadline for the SC to forward its ruling to the President and the Speaker. Another matter on which the Government is seeking legal advice is on the transition. From when 20A would become effective and forms a part of the Constitution? This is to ascertain how a Cabinet, expanded by a few, should be constituted. This has become necessary in the light of its first budget on November 17. Financial allocations to new ministries would have to be provided for and programmes of policy would have to be spelt out.

Protests against 20A

The main opposition Samagi Jana Balavegaya (SJB) will hold a protest at Hyde Park on (Thursday). “We are already educating the people through leaflets about the dangers caused by 20A. We will continue with this in the coming week too,” SJB General Secretary Ranjith Madduma Bandara said. He added that the SJB had not yet spoken to the UNP so far but declared “they would be welcome to join our protests.” They have also declared tomorrow (October 5) as a day of protest. They plan to hoist black flags on this day.

For the opposition, former Speaker Karu Jayasuriya, who has literally returned from retirement, to take over the leadership of the National Movement for Social Justice (NMSJ), organised a meeting this week to protest against 20A. The event came a cropper with abstentions. Though invited, there was no representative from the United National Party (UNP). After a telephone call from Jayasuriya to Samagi Jana Balavegaya leader Sajith Premadasa, it was General Secretary Ranjith Madduma Bandara who attended the event. Despite a series of telephone calls, former President Chandrika Bandaranaike Kumaratunga, who was invited, did not take part. She told a friend that she did not want to get involved in political controversies. Nor did the Janatha Vimukthi Peramuna (JVP)-led National People’s Power (NPP). Its spokesperson Vijitha Herath said, “Our members had other engagements. We said we will not therefore attend.”  An NMSJ petition against 20A was later handed over to the venerable Maha Nayakes of both the Malwatte and Asgiriya Chapters. That failed to draw a statement from the leading prelates.

The speech by former Minister, Rajitha Senaratne (SJB-Kalutara district) at the NMSJ event at Janaki Hotel in Thimbirigasyaya turned out to be an anti-climax. He told the Sunday Times, “I talked about the social impact of 20A. I explained that civil society activists too were involved in creating 19A. I can clearly say that these civil society groups included the National Movement for Social Justice (NMSJ), media associations, civil servants who served as presidential advisors and legal experts. It was the civil society groups that brought stipulations on dual citizenship and raised the age limit to run as presidential candidate from 30 to 35. We only approved it. We never knew those would affect them (the Rajapaksas). Apart from that I explained about the social impact of 20A. I also remarked that if the President acts in an authoritarian manner without any enhancement of his power, he would behave worse when 20A is implemented.”

Senaratne added: “Already the President says that his words become circulars. Before him, King Sri Wickrama Rajasinghe made such orders. Even the British submitted written orders to subdue heroes like Keppetipola. Even though the 1978 constitution gave more power to the executive, J.R. Jayewardene did not use the full extent of the powers. He remarked that the constitution is only incapable of changing the gender of people but never abused the powers as he was an intellectual. Even Mahinda Rajapaksa used his political sense and did not use powers as he was mindful enough to stay without being unpopular.” Senaratne’s remarks at the NMSJ event were akin to pouring cold water on the movement’s campaign to turn on the heat against 20A.

PM’s breakfast meeting

In marked contrast, Premier Mahinda Rajapaksa resumed his breakfast news conference last Tuesday at Temple Trees. Sitting together with him were Ministers Wimal Weerawansa and Udaya Gammanpila, the duo who expressed reservations on some provisions of 20A — a move that prompted the appointment of the G.L. Peiris committee. The message was clear — those holding divergent views were together and still backing the amendments. Also present were ministers Douglas Devananda, Keheliya Rambukwella and State Minister Susil Premjayantha.

The answers that Premier Rajapaksa and others gave to questions raised provide an insight into the government thinking. Here are excerpts:

Q: You have not made your opinion clear
on the 20th Amendment.

PM: When we are in a government, we stand by one opinion.

Q: What about the amendments.

PM: I do not think there will be a problem.

Q: The SLFP has appointed a separate committee to study the amendments. What is your opinion?

PM: Every party has appointed its own committee and is studying the proposed amendments.

Udaya Gammanpila: Parties have different positions. At the Cabinet and the Parliamentary group there are different opinions. But ultimately as the government, we arrive at one decision. That final decision is revealed to the country.

Q: Was this discussed with political parties?

PM: It was discussed at the cabinet.

Q: You appointed a committee to study the proposals and make recommendations. This has not been made public. It was mentioned that amendments will be made in Parliament.

PM: We collectively discussed the matter.

Q: There is an opinion that the PM’s powers will be reduced turning the post to a figure head

PM: There is no issue as mentioned. It depends on who the Prime Minister is.

Q: What about the proposed new constitution?

Gammanpila: A team of experts have been appointed to make recommendations. They will do this in a short period. They will still study all reports related to this.

Q: If there is a new Constitution, will there be a referendum for it?

Gammanpila: Yes, there will be a referendum.

Keheliya Rambukwella: During the election, a mandate of two-thirds was sought for constitutional amendments. As a short-term measure, first the 20th Amendment will be introduced and thereafter the new constitution.

Q: Can you explain the changes (in 20A)

Gammanpila: With the introduction of the 20th Amendment, certain clauses in the 19th Amendment are being replaced. There were two clauses in the 19th Amendment which needed a referendum if they were to be changed. One is the President’s term of office which has been reduced from six years to five years. The other is the reduction of the Parliamentary term. Since there will be a referendum for the new constitution and to reduce expenses these two clauses in the 19th Amendment are being retained. In any case we need to go for a referendum for the new constitution.

Q: Opposition parties say they will not allow the amendments to be passed by a two-thirds majority in Parliament while the government members say they will get 20 members from the opposition and get the amendments passed. What is the position?

PM: We have the majority.

Q: Is the SLFP supportive?

PM: There are different opinions, but we will come to one decision. We will discuss it collectively and when it comes to Parliament, we will have one view.

Q: So, you are confident of getting a majority to pass the amendments.

PM: Yes, we are confident.

Q: There is an opinion that after the passing of the 20th Amendment, the number of cabinet ministers will increase.

Rambukwella: In the 20th Amendment, the number of cabinet ministers was not limited. That was not practical.

Gammanpila: What they (previous government) did was to tell something else to the people and go on to appoint more than 40 members to the cabinet. In contrast when we can appoint 30 members, we have only 26 ministers and 28 ministries. They only spoke of it, but we have practically implemented it.

Q: It seems you are short of some members to get a two-thirds majority in Parliament to pass the 20th Amendment.

PM: we have the majority.

Q: will they be given positions if they join the government.

Gammanpila: You need not have to join the government to vote in favour of the amendments. You can be in the opposition and vote in favour. Therefore, the issue of obtaining positions or changing sides does not arise.

The Tobacco Bill was passed in parliament unanimously. Therefore, if it is something beneficial to the country, it can be supported.

Q: (Directed at Minister Wimal Weerawasna) – You have had differences of opinion regarding some points in the 20th Amendment. Will your proposal be presented in Parliament during the Committee stage?

Weerawansa:  At a meeting presided over by the President and attended by the Prime Minister, it was stated that the amendments could be presented at the Committee stage.

Q: What was the reason that the Committee appointed by you to study the 20th Amendment was not made public?

PM: That was appointed for my knowledge (laughter).

Q: There is an opinion created among the public that the 20th Amendment invalidates the 13th Amendment.

PM:  No. That does not happen.

Errors in amendments

More confirmation that a set of amendments to 20A, to be moved at the committee stage of the debate in Parliament, surfaced last Tuesday. This was when Attorney General Dappula de Livera handed to the Supreme Court an eleven-page document. These were the set of amendments formulated by the Legal draftsman. It bears their reference number LD – O 7/2020. The Sunday Times learnt that these amendments in that form were not approved by the Cabinet. However, they had at times discussed different aspects. There were some silly mistakes in the document.

For example, it says on page 2 of the amendment, “delete line 1 and substitute the following- “(d) to appoint as President’s Counsel.” This line in 20A draft, nevertheless begins with the words “(d) to appoint as President’s Counsel,” It is also the same with Page 2 of the amendment which says “delete lines 22 and 23 and substitute the following: “(g) to declare war and peace; and (h) to do all such acts and things not being,” 20A that has been gazetted retains the same provisions. Another gaffe in the amendments on Page 3 says “delete lines 16 and 17 and substitute the following: “exercise of any power pertaining to any subject or function assigned to the President or remaining.” This is precisely what the relevant provision in 20A says. Another error is on Page 6 where it says, “delete lines 10 and 11 and substitute the following: “have failed to nominate the persons who shall be their nominees in the Council, the Speaker shall nominate.” The same clause is there in the gazetted 20A. There are more such examples to show that the amendments have been drafted in a slipshod manner.

Another error, once again more proof of it being rushed, is the resort to rectify the appointment of the Inspector General of Police. This office was left out when the amendments were gazetted thus empowering the President to only appoint the Attorney General, the Auditor General, the Parliamentary Commissioner for (Administration) and the Secretary General of Parliament. This will now make him the appointing authority for the IGP, a function hitherto exercised by the Constitutional Council. This will now be carried out with ‘observations’ from the Parliamentary Council.

The eleven-page amendments, to be carried out during the Committee stage, deal largely with the President’s powers and duties. There are also a few procedural and consequential changes brought about. Here are some of the highlights:

• In the new provision to repeal Article 33 of the Constitution, a new clause has been added in 20A. That is “to ensure the creation of proper conditions for the conduct of free and fair elections, at the request of the Election Commission. This is in adition to President’s powers to make Statement of Government Policy in Parliament at the commencement of each session, to preside at ceremonial sittings and to appoint Ambassadors, High Commissioners, Plenipotentiaries, and other diplomatic agents, remain. This is also in addition to appointment of President’s Counsel, the appointment of the Prime Minister, Cabinet of Ministers, Chief Justice, and other Judges of the Supreme Court.
• Nominees of the proposed Parliamentary Council can be removed by the President upon the request of the Prime Minister or the Leader of the Opposition. This is upon a request made by either of them. The Speaker will be the Chairman of the Council. The President is empowered to seek their “observations.” The members are the Prime Minister, the Speaker, the Leader of the Opposition, a nominee of the Prime Minister, who shall be an MP and a nominee of the Leader of the Opposition. This Council replaces the Constitutional Council.
• The President is to be empowered to dissolve Parliament after two and half years. The original time frame in 20A was set at one year. However, Ministers Wimal Weerawansa and Udaya  Gammanpila sought that it be extended to two and half years. The G.L. Peiris committee that examined this aspect had to report that there were two views — one from the two ministers giving a two-and-half-year period and others in favour of one year. President Gotabaya Rajapaksa’s explanation for giving a one-years’ time frame was the result of political conflicts in the Sirisena-Wickremesinghe government leading to serious governance issues. The two had pulled in different directions stalling the work of the government.
• The composition of the Election Commission has been made five members. At present, it comprises three members and the quorum too remains at three. As a result, meetings could not be held without the presence of all of them. There was an open conflict between the Chairman and one of the members and important decisions had to be put on hold. One of the members to be appointed to the Commission shall be a retired officer of the Department of Elections or Election Commission, who has held office as a Deputy Commissioner of Elections or above.
• The Auditor General will audit the office of the President as well as Prime Minister. He or she would have to be a qualified auditor. However, this has not been expanded to include in the 20A provision on audit of corporates that have 50% government shares. The Auditor General shall audit all departments of the government, the office of the Secretary to the President, the office of the Secretary to the Prime Minister, the office  of the Secretary to the Cabinet of Ministers, the offices of the Ministers appointed, the Judicial Service Commission, the Parliamentary Council, the Commissions referred to, the Provincial Public Service Commission, the Parliamentary Commissioner for Administration, the Secretary General of Parliament, Local Authorities, Public Corporations and business of other undertakings vested in the government under any written law, including the accounts thereof.”
• Changes in 20A over oath of affirmation. A person referred to in this chapter shall not enter upon the duties until such person takes and oath and subscribes to the affirmation set out in the Fourth Schedule and the Seventh Schedule. The Fourth Schedule states “I …….do solemnly declare and affirm that I will faithfully perform the duties and swear discharge the functions of the office of …….in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the Law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Republic of Sri Lanka. The seventh schedule states: “I ….- do solemnly declare and affirm/swear that I will uphold and defend the Constitution of the Democratic Republic of Sri Lanka and that I will not, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.”
• The President shall appoint another Judge of the Supreme Court, or the Court of Appeal, to act in the office of the Chief Justice or the President of the Court of Appeal, during such period. The earlier reference was to a “person.”
• The Public Service Commission to consist of not less than five and not more than nine members. Earlier, there was no minimum number.
• The Police Commission, which will now come under the President, to consist of not less than five and not more than seven members. The President will make appointments to the Commission against the current practice of the Constitutional Council.
• A “public officer” means a person who holds any paid office under the Republic, other than a judicial officer but does not include the Prime Minister, the Speaker, a Minister, a Member of Parliament, a member of the Parliamentary Council, a member of the Judicial Commission, a member of any Commission, the Commissioner General of Elections, the officers appointed to the Election Commission, the Secretary General of Parliament, a member of the University Grants Commission, a member of the Official Languages Commission, the Auditor General and the Parliamentary Commissioner for Administration (Ombudsman).
• All applications instituted against the Attorney General in respect of anything done or omitted to be done by the President in his official capacity and pending on the day immediately preceding the date of commencement of 20A shall be continued and disposed of accordingly.

The Supreme Court on Friday completed hearing 37 petitions against 20A. Two were rejected since the petitioners have not forwarded copies to Parliament as procedurally required. The court is now taking up the cases of intervenient petitioners which total twenty. Tomorrow, Attorney General Dappula de Livera will address the SC. Counsel have been advised to submit their responses in writing. Until the SC makes known its findings, 20A is in the hands of the judiciary. Thereafter, it is a matter of days before it is debated in Parliament and taken up for a vote. Thus, the opposition parties are left with little time. Their protests will neither slow down nor stop 20A entering the Constitution.

For the SLPP-led alliance, however, there is a bigger responsibility when the draft new Constitution is ready. President Gotabaya Rajapaksa has assured that all stakeholders will be consulted. One can only hope they will have more time to make a critical and objective study to make changes that will benefit the people and the country. That would be a must for the government which has far more challenges to meet than its predecessors in the light of the Covid-19 pandemic. This comes in the backdrop of rising prices and increasing shortage of consumer goods. The people who voted the SLPNS to power remarkably are waiting for a change in their lifestyles — a fact which a government cannot afford to forget.