Sep 24

 

One hundred and sixty-one Members of Parliament, in their understandable admiration of President Rajapakse’s leadership in eliminating the LTTE, appear to have taken up the position, by voting for the 18th Amendment (“18A”), that he can consequently be trusted unreservedly with whatever powers he wants to have and that he will not misuse them, for however long he is entrusted with such powers. Be that as it may, in terms of 18A, the same trust would automatically devolve on the presently unknown persons, some yet to be born, who will successively follow President Rajapakse when he leaves the scene. The People, whether they like it or not, will have to trust all of them absolutely and irrevocably. The alleged safeguard of having end-of-term elections to test the popularity of Presidents is not worth the paper on which it is written.

As for the MPs who voted for 18A, there is little question that, beforehand, almost every single one of them had not seen or read or understood the wording of this Amendment, which had been kept a closely-guarded secret. Indeed, if the sequence of events is examined, it may be inferred that even most of the members of the Cabinet would not have had the opportunity or time to read it, digest the contents, and discuss possible improvements in the degree of detail that a constitutional amendment requires. Moreover, not one Minister or MP who voted for the Amendment has offered an answer to the question as to how any urgency could have been attributed at present to the issue of permitting additional terms of office for the current President, considering that he will be finishing his second spell only in the latter part of 2016.

Perhaps the most disappointing feature of the 18A exercise for many trusting citizens was the performance of MP Vasudeva Nanayakkara, whom so many of them looked up to earlier as a politician of integrity, and a staunch upholder of good governance and the Rule of Law. He confessed, if one might employ that term, that he had voted for the Amendment for other reasons even though he disagreed with it in principle! It is mind-boggling to work out how a man of rectitude could have voted for something that he disagreed with in principle.

In all the circumstances, the Citizens’ Movement for Good Governance (CIMOGG) is driven relentlessly to conclude that every MP who voted for this Amendment did so solely for the personal rewards he has received or hopes to enjoy in time to come. Furthermore, political aspirants in the President’s party know that there will be no chance in the future of their being nominated or elected as representatives of the People if they do not toe the line laid down for them. They have selfishly and recklessly imperilled the sovereignty of the People of Sri Lanka by compelling all citizens to accept implicitly that every President of the future will be uniformly benevolent, altruistic, transparent, impartial and accountable to the People, as President Rajapakse is expected by them to be during his remaining period of office.

Although there are nominal provisions in 18A for consultation by Government with the other parties in Parliament, the manner in which this Amendment was hatched and sprung upon the People, leaving no room for their participation, under the guise of requiring virtually instantaneous implementation, leaves us with little reason to treat such provisions as anything but window-dressing. In another exercise in duplicity in the drafting of 18A, the President is supposed to have been made accountable to Parliament. That is, he is required to go to Parliament once in three months. To do what? Presumably to answer question raised by MPs. From experience, one may surmise that the MPs who voted for this Amendment are not going to ask any embarrassing questions from President Rajapakse. On the other hand, if the Opposition asks any awkward questions, the President can choose to give an inapposite answer or even remain silent. All he has to do is to ignore uncomfortable queries from any source and carry on as he pleases. For example, what if he decides to disregard Parliament altogether? There is no sanction that can be applied to a President operating in terms of 18A, short of impeachment, which would be even more elusive than bringing the once-promised rice from the moon. The only other weapon that Parliament possesses – namely, the withholding of funds requested by the Executive – is not going to be exercised in practice because of the total control that the President will always be able to exercise over those in the Government party. Can anyone in touch with reality imagine a situation where Parliament is going to refuse President Rajapakse or a future President such funds as he may demand for any purpose whatever?

Now and in the future, the President for the time being will be able to appoint anybody to any post, especially all the critically important posts in the Executive and the Judiciary. All Ministers, the Attorney General, Inspector General of Police, Secretary to the Treasury, Auditor General, Chairmen of all the “independent” Commissions, Chairmen of the State Banks, the EPF, ETF, all Corporations, Boards, Authorities and State-owned Companies will be appointed at his pleasure. The entire resources of the State will thereby come under the control of the President. Based on the conduct of so many elections in the past, there is no doubt whatever that they will misused by the Government party before, during and after elections to rob the People of the real essence of their much-vaunted franchise.

It does not take a genius to recognise that 18A is an insidiously destructive piece of constitution-making. It successfully undermines Articles 3 and 4 of the Constitution, and will surely and rapidly destroy all democratic institutions and safeguards irretrievably. The aforesaid Articles 3 and 4 state in effect that (a) the People are sovereign and their sovereignty cannot be surrendered to anyone, (b) the Legislative, Executive and Judicial powers of the People shall be exercised by Parliament, the President and the Courts respectively, and (c) the fundamental rights of the People shall be respected, secured and advanced by all the organs of Government. These concepts, which have already been violated grievously, will soon cease to have any meaning.

What about the claim that economic, infrastructural and social development requires a very strong Executive headed by an all-powerful individual? Would any Sri Lankan, given the choice, want to go and take up citizenship in Burma, Libya, North Korea or Zimbabwe, which have such leaders? Have these countries become highly developed by virtue of the supposed advantage of having been subject to long periods of dictatorial leadership? Why do Sri Lankans, including so many prominent personalities, prefer to acquire citizenship or permanent resident status in Australia, Canada, France, Norway, UK and USA, which are not run by dictators? Do they believe that these countries could have achieved better development if they had been led by dictators?

There are those who try to resign themselves and others to their post-18A fate by saying: “Have the grace to accept what we cannot change”. CIMOGG’s position is that, if our laws are wrong, there is no way in which responsible citizens can throw up their arms in despair and remain silent. It is their duty to the present and future generations of Sri Lankans to raise their voices against what is autocratic and undemocratic, and to agitate peacefully and persistently to regain their rightful franchise, which can only be achieved by striving for a thorough separation of powers between the Legislature, the Executive and the Judiciary, and not by subjecting Sri Lanka to the dubious mercies of one-man rule.

Sep 05

 

 

The DECLARATION OF ASSETS AND LIABILITIES LAW was passed in August 1975. It was amended subsequently by the DECLARATION OF ASSETS AND LIABILITIES (AMENDMENT) ACT No. 74 OF 1988. The scope of this Law is such that it applies to a vast range of persons of whom Members of Parliament are mentioned first. In this connection, CIMOGG recalls that it wrote to the Secretary-General of Parliament, the Speaker and the Commissioner of Elections over a period of time to ascertain how many MPs had failed to declare their assets and liabilities, either at the time of nomination or later. There was no danger of a breach of secrecy because we did not ask to look at the declarations themselves but only wished to have the names of those who had failed to conform to this statutory requirement. The Secretary-General directed us to write to the Speaker, who, however, did not favor us with a reply. The Commissioner of Elections, on the contrary, promptly gave us the names of the MPs who had furnished their declarations at the time they submitted their nomination papers. There were only seven in his list!

Now, Section 3 of the aforesaid Law states that A… a person to whom this Law applies referred to in paragraph (dc) of sub-section (1) of Section 2 shall be deemed to have complied with the provisions of this sub-section if he makes a declaration of his assets and liabilities as at the date of his nomination as a candidate for election under any of the Acts referred to in that paragraph on the date of such nomination or before he functions, or sits or votes, as President, a Member of Parliament …@. Notwithstanding the clear intention of the words which have been italicized in this excerpt, CIMOGG believes that there is a high probability that there are at least a few MPs who would have functioned, sat or voted before they submitted their declarations, if they did indeed eventually comply with this Law. Thus all their functioning, sitting and voting until such time as they finally submitted their declarations would have been illegal acts. These MPs may still be in breach of the Law but, in the light of the current Speaker=s silence, we may have to wait awhile to learn the truth.

The two paragraphs above (now extracted and edited for brevity) appeared in early April 2006 in both the ISLAND and the DAILY MIRROR in an article titled THE DECLARATION OF ASSETS AND LIABILITIES LAW. The Speaker at the time was Hon W.J.M.Lokubandara.

On 4 August 2010 we wrote (by registered post) to the present Speaker, Hon Chamal Rajapakse, as follows: “The members of the Executive Committee and Advisory Council of CIMOGG have been greatly heartened to observe the laudable efforts made by you to get MPs to act with dignity and restraint in keeping with the status of Parliament as the body empowered to exercise the Legislative powers of the People. We are also gratified to note the importance that you attach to the need for Ministers to answer questions in a serious and timely manner, without indulging in insubstantial, offensive or trivial banter. There has been a promising improvement in the tone of Parliamentary proceedings since you assumed the office of Speaker and we hope that the President, the Cabinet and Parliament will support you in your endeavors to improve further the quality of Parliamentary output. …… As far as we are aware, the law relating to the Declaration of Assets & Liabilities specifies that no one who is required to make such a declaration can act in the office to which he/she has been elected or appointed until he/she submits the stipulated declaration to the relevant person appointed to receive it. In other words, if an MP had not submitted his/her declaration to the Commissioner of Elections at the time of filing his/her nomination or to the Speaker thereafter, he/she would not be entitled to sit in Parliament and participate in its affairs. At this particular point of time, we are not interested in ascertaining which MPs have submitted their declarations and what they contain. We are concerned only to know how many MPs have failed to submit their declarations within the stipulated 3 months but have “functioned” as MPs unlawfully, and whether you would be taking steps to examine the need to expunge their contributions, void the votes cast by them, and recover all remuneration or other payments made to them during the hiatus. ……. We look forward to your kind and early reply.”

A reminder was sent (also by registered post) on 17 August 2010 but we have had neither a reply nor even a pro forma acknowledgment yet.

In the light of the lack of reply from both Speakers, the present and the immediate past, we conclude, not unreasonably, that there must be so many MPs who have not submitted their Declarations of Assets & Liabilities that the Speakers have been too embarrassed to disclose the truth. If the number of Government MPs who have thus disqualified themselves from sitting or voting in Parliament exceeds 10 or so, the it (the Government) will not have a lawful two-thirds majority in Parliament on 8 September 2010 to get the 18th Amendment passed.

Now we need to examine another aspect of this subject. On 12 October 2007, THE ISLAND published a CIMOGG article titled BILLS AND URGENT BILLS. The first few lines of that article state: “Looking back at the passing of so-called ‘urgent Bills’ and other less urgent ones by Parliament over the past three decades, we find it difficult to think of a single Bill which was genuinely in need of rapid processing. Virtually all past Bills have dealt with matters which had been known for years and years, and obviously did not become urgent all of a sudden”. In the third paragraph, we pointed out that “ … haste could be tolerated where the situation demands immediate emergency action, such a declaration of war or a totally unforeseen major catastrophe”.

The government and, in particular, the President and Minister G.L.Peiris, both of whom voted for the 17th Amendment in 2001, claim that it has flaws. They would certainly have discovered these defects at the latest by 2005 because the violation of the 17th Amendment by President Chandrika Kumaratunga previously was greatly extended in scope soon after the election of President Rajapakse for his first term. How is it then that the government found it necessary to keep secret for so long their proposals for doing away with the 17th Amendment? Would it not have been the responsible thing to do to have prepared a White Paper at least a year ago setting out the government’s proposals and opening them out immediately for the widest possible public discussion? In any event, as it has taken the President and Minister Peiris over 5 years to study the 17th Amendment and come out with an alternative, they were morally bound to give Parliament and the public at least 6 months to look into the flaws in the present proposals, without classifying them as “urgent”?

Minister Peiris’s recent statement on the subject seems to indicate that he had been aware, thanks to the Supreme Court’s Year 2001 observations, that the 17th Amendment was conceptually flawed? If so, why did he vote for it in 2001? What is there to convince us that he has does not have similar reservations about the 18th Amendment, which, we presume, he will make known to us only 8 years from now?

The most laughable part of the government’s claim of urgency arises from the fact that President Rajapakse’s second term will only end 2016. What therefore is the unholy urgency now, in 2010 itself, to fix his right to a third or fourth or fifth term without giving the People, say, 6 months’ time to study the relevant provisions?

We have pointed out before that, although no legal rights or obligations are conferred or imposed by Chapter VI of the Constitution (namely, the Directive Principles of State Policy and Fundamental Duties), its Article 27(4) states that Athe State shall strengthen and broaden the democratic structure of government and the democratic rights of the People … by affording all possible opportunities to the People to participate at every level in … government@. There is, therefore, at least a powerful moral obligation on our legislators to allow a reasonable opportunity to the People, who are the ultimate repositories of national sovereignty, to have their say on legislation which might well affect them adversely rather than stampede them into supporting, by default, an ignoble political agenda. Minister Peiris would undoubtedly have expounded at length on this subject to his students before 1994 when he, sadly, seems to have lost sight of the straight and narrow path that we all thought he would tread in politics, considering the high regard in which he was held before then in academia.