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Tuesday, July 27, 2021

Beware JHU Pseudo Reforms Sham

The long simmering disquiet over the 1978 constitution and the need to abolish the executive presidency by amending the constitution and introducing a more democratic form of government more in accord with the aspirations of the Lankan people, have now risen to the boil.

The nation’s gong has been rung, the trumpet has been blown and the conch shells have been sounded to rally all forces to give effect to the national mood and temper to correct a 36-year constitutional folly which created an executive Head of State, enthroned with the sceptre of near dictatorial power.

But if such vast powers weren’t more than enough to rule without restraint, the UPFA government, utilising the two-thirds majority it had gained through dubious means in parliament with the support of a batch of turncoat UNP MPs, thought fit to abolish the last few remaining checks and balances on unfettered power with the introduction in 2010 of the 18th Amendment to the constitution. This amendment, brought at the zenith of a people’s euphoria over the triumphant annihilation of Tiger Chief Prabhakaran and his terrorist brigade, was manacled to the hands of the people even as they vigorously clapped the glories of victory.

Four years have now passed since the 18th Amendment and much water has flowed under the UPFA bridge, to reveal to a now sobered up populace the potential inherent in the constitution for any future President to unscrupulously utilise to further his dictatorial ambitions; to not merely keep his extra, unwarranted, unnecessary power safely locked in his vault but to wear, flaunt and exploit the unmasked power a grateful nation gifted in gratitude and trust as a thanksgiving present to President Mahinda Rajapaksa for winning the war and ushering the peace.

The people’s din is distinct to those who wish to hear the people’s voice. The constitution must be amended. The extensive powers that presently repose in the constitution cannot be allowed to fall into the trigger-happy hands of any future president and explode with fiery breath. The political fate of the country, the political rights of her people hang suspended on the nation’s mast; and freedom’s cry has erupted from all hands on deck of the galleon of state to smash the mast that maybe used by a future buccaneer to hoist the black skull and bones and leave it there to flutter.

Let it not be forgotten that from the sublime to the ridiculous, from genius to madness, from the democrat to dictator — the dividing line is thin and the descent swift.

Realising the mutinous mood of the masses agitating for naught but for the constitution to be amended to better benchmark the ambits of allowed political power, the Jathika Hela Urumaya, a high fidelity constituent member of the ruling UPFA, has temporarily taken allowed leave from the high table to step onto the streets and beat their own tom-tom drums; and to announce to the gathered masses that the JHU share their distress, empathise with their plight and will take the steps necessary to defrock the Executive High Priest.

Having expressed their own distaste for the constitution to the necessary degree to gain credence and public support, having demonstrated their new found abhorrence for the constitutional dictatorship it legally permits any holder of the Presidential office to exercise; having conveyed in not too discreet tones and less than subtle gestures that though they chill with the government, they sweat with the masses, the JHU recently revealed their own home baked seven proposals that that they intend to present as the 19th Amendment to the constitution. They confidently stated the 19th Amendment will restore democracy to the land and will set free a people only now waking up from the victory party celebrations. And what a hub of political debate it has become.

Already the customary embracing ceremonies have been duly done. Last week the UNP leader Ranil Wickremesinghe, rather than offend the sensitivities of the JHU leadership, welcomed it and expressed full support for the 19th Amendment as proposed by the JHU. The UPFA government, too, has had three rounds of talks with the JHU. But nothing has still come of it.

The talks may be deadlocked for the moment but the fact that the Government is holding talks with the JHU signifies that the Government has recognised the existence of nationwide concerns over the draconian powers vested by the constitution upon the executive branch of government.

But for the moment to all appearances, the pied piper’s charming tune has fallen flat at Temple Trees and has had no appeal either to the tone deaf Susil, Nimal or Dallas. Why has the magic that sleeps in Ven Rathana Thera’s political pipe failed to rouse the UPFA heavyweights to waltz to the Athureliye flute but created an ostensible rustle of discord between two parties normally tied together by the same party thread? Is it still not opening night for friendship bands to return to their wrists?

So what are these magnificent seven proposals that have garnered the support of the UNP and kindled the curiosity of the UPFA as being worthy enough to consider even amending the hallowed constitution to give effect to its aim of restoring democracy by abolishing the long condemned executive presidency as demanded by the people?

For starters, the proposals do not call to abolish the executive presidency. While most of the parties on the political landscape have demanded it to be abolished, while the Ven Sobitha Thera has declared his willingness to come forward as the common candidate with the sole purpose of abolishing the executive presidency within six months and thereafter to return to his temple, Ven Rathana Thera is quite comfortable to live with J. R. Jayewardene’s Frankenstein creation in his midst. The only political reform of the constitution he calls for and threatens to take his fight to the streets if it’s not granted by the UPFA, is to reduce some of the powers presently enjoyed by the president, powers he believes if cut down will make a gentle teddy bear of the grizzly in the constitution.

And what are these reforms, these seven edicts of change that will bring about this mind blowing transformation and turn the wayward country away from the road to dictatorship; reverse its reckless course and place it back on track to democracy?

The first demand under Political Reform is to limit the number of portfolios the President can hold. No number is stated but apart from this, does Ven Rathana Thera think that the presidential fiat will not run through the ministries of which he is not a minister. Armed as he will still be with an excess of other powers, including the power of summary dismissal, will any minister dare to tell the president where to get off? Ven Rathana Thera may be surprised to learn that the all-powerful Prime Minister of England does not hold a single portfolio. Neither does the most powerful man in the world, the President of the United States. It frees them shouldering responsibility for any particular ministry and as such do not have to take the blame and resign when there is any lapse on the part of the civil servants in such a ministry. Furthermore, it allows them the time to supervise all ministries concerned and keep the ministers and the secretaries on their toes, knowing that the chief is looking keenly over their shoulders.

The JHU’s second demand is to limit the number of cabinet ministers to 25 and deputy ministers to 35. While it is, without a doubt, a most welcome demand which will slash the massive wastage of public money presently squandered on over 70 ministers and over 130 deputy ministers, it is hard to see how an executive president will find himself barred from exercising without constraints, the massive powers he presently enjoys.

The third demand is that the President must be answerable to Parliament and must be subject to judicial action. The mere fact that the president is answerable to parliament, though it has a certain elegant appeal about it on paper, will not reduce his ample powers. But he will be answerable only if he acts ultra vires, or beyond his legal powers. Hardly likely to give a president sleepless nights, is it, when his existing legal powers are so extensive that he may never need to overstep the mark?

As far as the other demand that the president be subject to judicial action, the JHU must be enlightened on the practical difficulties that entail such subjection. All heads of state need to be vested with immunity during the period of office for their official and administrative acts. Every act is bound to cause some damage to someone or infringe the right of someone. If the immunity was removed and Heads of State could be taken to court then he or she will have to spend a considerable part of his tenure as president attending court and participating in litigation. Will he have time to govern then as the president, at whose table the buck ultimately stops?

The fourth demand has nothing to do with the powers of the president but calls for the introduction of a new electoral system with a vague, undefined mixture of First-Past-the-Post System and the Proportional System. It is clear that the JHU is uncertain as to what this really entails except they think that it will bring the best of both electoral systems in the same manner being ministers of this Government placing the Government interest first and simultaneously pretending to be rebels in the Government placing the public interest first have brought JHU the best of both worlds.

The fifth demand also has nothing to do with the president’s powers but instead calls for it to be mandatory for all political parties to allocate one third of their national list to — whom the JHU terms — ‘professional’ women. Now who exactly is a ‘professional’ woman? Is the definition limited to a woman with professional qualifications earned from a recognised professional body — such as a lawyer or a doctor etc? Or is it one who is skilled in her line of work, a professional writer, a professional seamstress, a professional actress or glamour model for example? Or is it anyone who is engaged in work or trade or even in politics, say a professional politician, a professional charlatan?

Is it a banker, teacher, a cleaner a garment worker or, as the dictionary holds, anyone who engages for her livelihood in some activity also pursued by amateurs? Who may qualify under this definition and be eligible under the national list? A sex worker, perhaps, practising as she does the world’s oldest profession? Apart from the ambiguity of this requirement of being a professional woman, the JHU, in attempting to create equality of the sexes compulsory, has succeeded in establishing a new form of discrimination. The male dominated JHU does not demand that the balance two third of men to be appointed through the national list should be ‘professional’ men. This limitation only applies to women and thus under the JHU reform proposal the hand that rocks the cradle cannot rule the parliamentary national list roost. So while housewives and mothers are out, a man can be a tinker, tailor, farmer, yokel and be in the national list.

The sixth demand too does not mention the president either but only calls to amend the provisions of the constitution that infringe the sovereignty of the country in the Provincial Council System including Land and Police powers. It does not spell out what these particular provisions are and while it asserts that the present constitution infringes upon the sovereignty of the country, it ignores the fact that these provisions in the constitution have been held by the Supreme Court of lanka as not violating the sovereignty of the constitution. If they had so violated Lanka’s sovereignty, then the Supreme Court would not have approved it in the first instance when the bill was presented before it for its opinion. Or is the JHU claiming the Supreme Court was wrong and thus holding themselves as superior than the Supreme Court?

The seventh and last demand is to “revert to the Jana Sabha (Peoples’ Council) where the villages are empowered.” How a ‘game baiyange bajawwe ‘– to use the popular vernacular — is going to curtail the powers of the president only the JHU can say.

This then is the set of political reforms that the JHU hails as the answer to the constitutional excesses that beset Lanka. It reveals the shallow level of the JHU mindset, its ignorance of the issues and the puerility of its attempt to reform the constitution for the better. It has totally rejected the demand that the executive presidency should be abolished; and even its proposals to at least reduce the power of the executive president do not do so in the slightest. Its whole approach to this burning national question has been the height of immaturity and insipidity. Instead of stimulating political discussion the inane products devised by empty minds contained in their rag bag are unadulterated rubbish and should be pooh poohed with the contempt it deserves.

The danger, however, is that these sham proposals may be taken from the dustbin, dusted and polished, glossed and waxed lyrical and, with a few add ons of the same inane nature, be presented as the 19th Amendment to the constitution, as the answer to the people’s demand to cut down on the extensive powers of the president. If that were to occur it would preempt any genuine attempt to bring real, meaningful change; and the people would have to wait many more years to see the light at the end of the tunnel.
Monk with a mission? JHU parliamentarian Ven. Athureliye Rathana Thera at the BMICH meeting where he unveiled his draft of the the 19th Amendment
Courtesy – Sunday Times“>Sunday Times

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