Land powers and public finance- New draft constitution - Part 7

 
by C. A. Chandraprema-August 19, 2018, 10:32 pm

(Continued from last Thursday)

Under the provisions that were introduced to our present Constitution by the 13th Amendment, rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement, was said to be a subject devolved to the provinces. However, according to Appendix II of the 9th Schedule of the Constitution, State land shall continue to be vested in the Republic and may be disposed of in accordance with the powers vested in the President to dispose of land under the public seal. State land required for the purposes of the government in a Province, in respect of a national or concurrent subject may be utilised by the government after consulting the relevant Provincial Council. The government shall make available to every Provincial Council State land within the Province required by such Council for a Provincial Council subject. The alienation or disposition of the state land within a province to any citizen or to any organisation shall be by the President, on the advice of the relevant Provincial Council, in accordance with the laws governing the matter. There was a degree of ambiguity in the wording of these provisions.

The definitive Supreme Court interpretation in relation to land powers in our present Constitution is contained in the judgment of the 2013 case of Solaimuttu Rasu vs State Plantations Corporation where a three-member Bench held that under the provisions of the 13th Amendment, State land comes under the central government and not the provincial councils. The argument was that the unequivocal opener of Appendix II of the Ninth Schedule of the Constitution -"State Land shall continue to vest in the Republic and may be disposed of, in accordance with Article 33 (d) and written laws governing the matter." points to the fact that State Land belongs to the Republic and not to the Provinces because Article 33(d) of the constitution (before the 19th Amendment) refers to the president’s exclusive power to dispose of land belonging to the Republic. Furthermore, the list of powers of the government in the Ninth Schedule of the constitution clearly states that "State Lands and Foreshore" comes under the government.

The provincial councils list of powers in the Ninth Schedule of the Constitution specifies that PCs will only have "rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement". Furthermore, the government is to make available to every Provincial Council State Land within the Province required for a Provincial Council subject. Only after such land is provided to the provincial council by the government, does the Provincial Council have the power to ‘administer, control and utilize’ such State Land. This implies that a Provincial Council cannot appropriate state land without the government making that land available to it. The 2013 Supreme Court judgment in Solaimuttu Rasu vs State Plantations Corporation is thus the Sri Lankan equivalent of the Indian Supreme Court judgment in the 1962 case of State of West Bengal vs Union of India, which upheld the powers of the Indian Central government over State land in the whole of India.

Provinces to have complete

power over land

What the proposed draft constitution aims to do with regard to powers over land is nothing less than the complete upending of the situation that prevails at present with regard to land powers. If this constitution is implemented, the provincial councils in Sri Lanka will have much greater powers over land than the States in India. According to the proposed changes, all State land within the Province shall be at the disposal of the Provincial Administration for the purposes set out in the Provincial List. The Provincial Administration will exercise rights in or over such land, including land tenure, transfer and alienation of land, land use, land settlement and land improvement. Where the government requires State land in a Province for the purpose of a subject on the National List, they may require the Provincial Administration to make that land available to the government and the Provincial Administration shall comply with such requirement.

Where a Provincial Council does not comply with such requirement, the President shall refer the matter for arbitration to a tribunal consisting of a member appointed by the Prime Minister, a member appointed by the Chief Minister and a Chairman nominated by the two appointed members. If there is no agreement, the Chairman will be appointed by the constitutional council. The decision of such a tribunal may be challenged in the Constitutional Court. Thus the final power over land is with the province and there are various mechanisms including the Constitutional Court to enforce that provision. Even when it comes to land required for security related matters, there is no diminution in the powers of the provinces. Where following consultations between the central government and the Provincial Administration, the President on the advice of the Prime Minister is satisfied that State land in a Province is needed for National Security or Defence, the President may, on the advice of the of the Prime Minister, direct the Provincial Administration to make available that land to the Central Government. A Provincial Council, aggrieved by such decision may appeal to the Constitutional Court.

Under the provisions of the 13th Amendment, the allotment of lands in major irrigation schemes was to be on the basis of the national ethnic ratio. In the distribution according to such ratios, priority will be given to persons who are displaced by the project, landless of the District in which the project is situated and thereafter the landless of the Province. Under the proposed draft constitution, this is to be changed so that priority in land settlement schemes after the commencement of the Constitution shall be accorded to landless persons in the following order - (a) firstly, to persons of any sub-division, recognized by law, of the relevant District, (b) secondly, to persons of the relevant District, (c) thirdly, and to persons of the relevant Province, and (d) fourthly, to other persons.

Our present constitution has provision for a National Land Commission which will be responsible for the formulation of national policy with regard to the use of State land. The Commission is to include representatives of all Provincial Councils in the Island. The National policy on land use will be based on technical aspects having regard to soil, climate, rainfall, soil erosion, forest cover, environmental factors, economic viability etc. In the exercise of the powers devolved on them, the Provincial Councils will have due regard to the national policy formulated by the National Land Commission. Thus, under the present constitution, land use policy is firmly in the hands of the government and the provincial councils are mandatorily required to abide by the directives of the National Land Commission. What is envisaged in terms of the National land Commission under the proposed draft constitution, is very different.

The proposed draft constitution envisages the setting up of a National Land Commission with equal representation for the government and the Provinces. This body is to formulate national land use policy, taking into account standards relating to the appropriate amount of forest cover, exploitation of natural resources, the quality of the environment and other relevant matters. In formulating such policy the National Land Commission shall afford ‘a margin of appreciation’ within which the Central Government or Provincial Administrations may pursue their respective policies. Where, after affording the Central Government or the Provincial Administration an opportunity to be heard, the Commission forms the opinion that the Central Government or a Provincial Administration is acting in deliberate non-compliance with guidelines or directions made by the Commission, the Commission may refer the matter to the Constitutional Court.

These provisions indicate quite clearly that the authority that the present Land Commission has, is to be whittled down under the proposed draft constitution. The Constitutional Court may, where it is of the view that it is necessary to do so, make permanent or interim orders directing the Central Government or the Provincial Administration (or specified officers / authorities thereof) to comply with such guidelines or directions or such parts thereof, as the Constitutional Court may direct. Where the Provincial Administration acts in contravention of a permanent or interim order made by the Constitutional Court, the Constitutional Court may make order that the Central Government shall assume control over such extent of specified land as necessary to ensure compliance, for a specified period. What these provisions are meant to look like safeguards are actually meant to allow the provinces to dance circles around the central government in terms of land use policy. Ecologically, how feasible is it for a country like Sri Lanka to NOT have a centrally planned and administered land policy?

Public Finance

Under the provisions of our present Constitution, Parliament has unequivocal control over public finance. Article 148 of the Constitution clearly states that "No tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by Parliament or of any existing law." As has been made clear in previous instalments of this series, aim of the proposed draft constitution is to have a weak centre and very powerful quasi-independent provinces and the provisions relating to public finance are also to be changed appropriately. For example, the present Article 148 of the Constitution is to be amended to read as follows: "No tax, rate, or any other levy shall be imposed by Parliament, Provincial Councils, Local Authorities or by any public authority, except by or under the authority of an Act or Statute passed in accordance with the Constitution." It will be noted that authority over public finance is thus to be shared between the centre and the provinces.

Under the present Constitution, there is a Consolidated Fund to which is paid the produce of all taxes, imposts, rates and duties and all other revenues and receipts of the Republic not allocated to specific purposes. Withdrawals from the Consolidated Fund will be by the Minister of Finance on the basis of a resolution of Parliament allocating the money for that purpose. Under the proposed draft constitution, the exclusive powers of Parliament over public finance is to be diluted by enabling both Parliament and the Provincial Councils to withdraw money from the Consolidated Fund and to impose taxes. The PCs are also to have their equivalent of the Consolidated Fund in the form of ‘provincial funds’ to which revenues raised and all fees accruing to the Provincial Council, all loans raised by such Council and all other monies received by such Council will be credited. Furthermore, Provincial Councils are also to have Contingency Funds on the same model as the Contingency Fund of the central government.

According to Article 154R of the present Constitution the Finance Commission consists of the Governor of the Central Bank, the Secretary to the Treasury and three other members appointed by the President on the recommendation of the Constitutional Council, to represent the three major communities. The task of the Finance Commission is to make recommendations on allocations to meet the needs of the provinces. In making such recommendations, the Commission is to take into account – (a) the population of each Province (b) the per capita income of each Province; (c) the need to progressively reduce social and economic disparities ; and (d) the need to progressively reduce the difference in the per capita incomes of the Provinces. Under the proposed Constitution, the Finance Commission is to be expanded and consist of the Governor of the Central Bank of Sri Lanka, the Secretary to the Treasury, five distinguished financial experts, appointed by the President on the recommendation of the Constitutional Council, three members to represent the Provinces, and one member to represent local government institutions.

The task of the Commission will be to make recommendations to the government on the allocation of finances to the National, Provincial and Local spheres of government and allocation of funds to individual Provinces and Local Authority areas, taking into account factors such as the national interest, any provision that must be made in respect of the national debt, the needs and interests of the national government, the need to ensure that the provinces and local authorities are able to provide basic services, the fiscal capacity of the provinces and local authorities, the developmental needs of the provinces and local authority areas, economic disparities within and among the provinces, etc. The most important thing to note is that under the present constitution, the Finance Commission has only a consultative role and it can only make recommendations.

But under the proposed draft constitution, there is a provision which reads as follows: "Parliament shall take due cognizance of the recommendations of the Finance Commission in making decisions in the exercise of its powers and duties relating to public finance." What this means is that the Finance Commission is to become a decision making body which can actually dictate terms to Parliament. The Provincial Councils will make allocations to the local authorities in accordance with the guidelines and criteria or directives specified by ‘the Finance Commission, or Parliament, as the case may be’. In addition to this powerful Finance Commission, under the proposed new constitution, there is to be a ‘Forum of Finance Ministers’ composed of provincial finance ministers and chaired by the Finance Minister in the central government which will meet bi-annually for consultation between the national, provincial and local spheres of government in matters relating to finance.

(To be continued) 

Sri Lanka: Sinhalese fishermen leave Tamil coast after arrests for arson (VIDEO)

By Athula Vithanage-POST 19 AUGUST 2018

Non-resident fishermen from southern Sri Lanka reluctantly gave up occupation of the northeastern coastline after three of their colleagues were detained by courts for alleged arson attack on fisherfolk huts.

Cadjan huts sheltering at least eight families in the Mullaitivu district were burnt to ashes in the early hours of Monday (13), where local fishermen were protesting environmentally destructive methods used by hundreds of settlers from the south.

WATCH VIDEO HERE:

Boats, fishing equipment and domestic utensils worth millions perished in the fire on the Nayaru coast, a day after the government was compelled to declare that illegal fishing would be banned.

Lakshman Fernando, Warnakulasuriya Manoj and Jagath Fernando from the Sinhala dominated south suspected of carrying out the attack were remanded until 21 August by the Mullaitivu magistrate.

Mass protest

Angered by the uninterrupted settling of southern groups, with apparent military support, local Tamil fishermen had launched acontinuous mass protest earlier, forcing the fisheries minister to visit the area with Tamil National Alliance (TNA) lawmaker MA Sumanthiran.

SINHALA SETTLERS LOADING THEIR BOATS ONTO TRUCKS TO LEAVE NAYAARU AMID RISING TENSIONS. - AUGUST 16, 2018

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Following discussions with local officials and fisheries representatives on 12 August, Minister Wijith Wijayamuni Zoysa promised to impose a temporary ban on environmentally damaging fishing methods prompting the suspension of the ten-day protest.

The fisherfolk huts went up in flames the next day.

Four days after the announcement of the ban, the southern settlers left Mullaitivu under the protection of police.

Tamil speaking Mullaitivu is the most heavily militarized district in the island with at least one soldier for every two civilians.☐

© JDS

Memorial for 1984 massacre of Tamil civilians opened in Kaithady

A memorial for a 1984 massacre of Tamil co-operative workers was opened on Saturday in Kaithady, Thenmarachchi.

19Aug 2018

On 13th August 1984, ten civilians including workers from the Thenmarachchi West Multipurpose Co-operative Society were killed by Sri Lankan soldiers.

The memorial to the victims was opened today by ITAK leader Mavai Senathirajah.

Sri Lanka’s Democracy: Very critical challenges ahead

by Jayadeva Uyangoda-19 August, 2018

Opinion

Political discussions in the country at present are largely dominated by questions around two themes: which individual will win the next presidential election and which political party will win the next parliamentary election.

These are no doubt important questions, but there is a more serious political question about what will happen to Sri Lanka’s democratization agenda in the years to come. Political and social activists, who have made direct contributions to regime change in 2015, are particularly preoccupied with the latter question. They are also quite worried about the indications that Sri Lanka is moving in the direction of another phase of direct assaults on democracy. The recent reports that plans are afoot in some quarters to profile citizens into two categories as patriots and traitors on the basis of psychiatric indicators, however bizarre they may sound, actually smack a little bit of Nazism.

These are warnings to democracy activists that the country is in for some serious political trouble. It is therefore, time now to begin a new discussion about what interventionist options are available to Sri Lanka’s social movements that have been engaged in past attempts at democracy’s defence, revival and consolidation.

This essay aims at making a contribution to generating such a discussion.

Three Entities

At the next presidential and parliamentary elections, the competition for gaining control of the government would be between three main political formations -- the United National Party and its allies, the SLFP and its allies, and the present Joint Opposition and its allies. With regard to the agenda of democratization, these three entities provide very little positive possibilities.

Let us first look at the performance record of the UNP led by the present Prime Minister and the SLFP led by the present President during the past three and a half years. It teaches us the following negative lessons: (a) regime change is NOT an adequate condition for revival and consolidation of democracy in any substantial sense, although it is a necessary prerequisite; (b) political parties and leaders, even those who win elections on the promise of democratic reforms, may NOT always possess courage, conviction, and the political will to advance a sustainable reform agenda, and (c) Incomplete and half-hearted efforts for corruption-free governance, substantive democratization and peace-building have created a political space for a right-wing and authoritarian backlash with the potential for popular support.

Thus, the UNP and SLFP as political parties as well as their leaders are NOT dependable actors in advancing a transformative agenda for Sri Lanka.They have abdicated any future role for themselves as champions of democratic change. These are inconvenient truths. They are nevertheless political truths. And they encapsulate some political cruelties of our time as well.

How about those who are getting ready to come to power in a year or so? The so-called Joint Opposition, its new political party called the Sri Lanka People’s Front, the leaders of these two entities as well as the aspirants who are seeking endorsement as the common opposition presidential candidate in 2019, share one distinct commonality: their contempt of and antipathy towards a democratic reform agenda. They are at present creating conditions to secure a popular mandate for a post-democratic and populist-authoritarian political transition in Sri Lanka and they might even succeed in their quest. Their electoral success, if that happens at all, would bring some euphoria at the beginning. Yet, it is certain to mark a political setback of the worst kind for the citizens of Sri Lanka.
Such a regime change will also cause unmanageable political and social conflict, exacerbate political instabilities as well as ethnic and social polarization, and make violence necessary as an instrument of both regime survival and social resistance. As the numerous international examples show, dislodging such a regime from power will certainly be a violent affair, accompanied by bloodbath.

Democracy Cycle

This dystopian scenario is only one side of contemporary Sri Lanka’s story of democracy. Its other side is that democracy has been a social process pushed forward by citizens’ political desires, commitments, struggles and resistance interspersed with democracy’s decline, setbacks and regeneration. This has indeed been one of the most significant dimensions of Sri Lanka’s political change in recent history. Every retreat from democracy by regimes with authoritarian intentions has also generated resistance leading to eventual revival of democracy overcoming setbacks and popular inertia.

This cycle of retreat and regeneration of democracy is a part of the long-term dynamics of Sri Lanka’s political change. Each generation of citizens has to deal with it and bear its consequences and enjoy its fruits.

At the same time, the 2015 experience has taught Sri Lanka’s citizens a disturbingly new political lesson: political parties and the class of professional politicians are no longer reliable allies in the struggle for democracy. For them, democratic desires and aspirations of citizens have only an instrumentalist value. Their loyalty and fidelity to their own democratic constituencies is tentative, opportunistic and expendable.

Democracy’s Survival

The challenges of Sri Lanka’s democracy’s survival would be all the more daunting in a context where the SLFP and the UNP, if they find themselves in the opposition, would be decisively weakened as a part of the post-democratic political agenda of the new regime. All other political parties, except the JVP in the South and one or two Tamil parties in the North, are likely to capitulate and be partners in a new authoritarian onslaught. In a worst case scenario, what J. R. Jayewardene and Mahinda Rajapaksa did to ensure the disintegration and capitulation of the opposition in the recent past would appear mild compared with what is likely to happen under the political order that is taking shape at present.

A variety of local and international factors seem to be conspiring to cause this possibility. Key among them are (a) the emerging regime’s close proximity to China, its admiration of the Chinese economic and political model, and of course the links with the new forces of global capital, (b) its agenda of rapid economic growth with excessive emphasis on political stability amidst an unprecedentedly severe economic crisis, (c) authoritarian adventurism of the ex-military-civilian power bloc that would shape the new regime’s domestic and international agenda, (d) the likely onset of a counter-democratic backlash following the presidential and parliamentary elections, and (e) return of the governance model of national security state. Thus, Sri Lanka has the potential to emerge as a new and extended version of the Maldives.

Now, this backdrop confronts Sri Lanka democracy constituencies with some difficult and intractable prospects with the following questions: If a serious setback to democracy is almost a certainty after 2019-20 elections, how will democratic regeneration be possible in Sri Lanka? How could democratic civil society and political society constituencies survive an inevitable phase of repression and closure of the space for dissent and mobilization? How could regeneration of the democratic movement be made possible under conditions of a Right-populist and authoritarian regime?

Democracy’s Defences

Building and strengthening democratic defences and resistance in our society is perhaps the only available path to counter the degeneration of Sri Lanka into another version of the Maldives. In view of the decline of Sri Lanka’s political parties as institutions of democratic resistance, most of the responsibility for resistance will fall on the shoulders of citizens and their autonomous mobilization.

The culture of resistance is indeed one of the abiding qualities of the political life of Sri Lankan society. The praxis of resistance is usually preserved and sustained by groups of activist citizens who constitute the democratic nucleus of society. It is they who also constitute the civic republican core of Sri Lanka’s democracy. Their civic republican spirit is characterized by their politics of (a) defending democracy whenever it is under threat, (b) civic resistance, (b) public spiritedness, (c) civic alertness and vigilance, (d) collective activism, and (e) the vision of democracy as an indispensible public good. They are spread across trade unions, industrial workers, student groups, peasant organizations, urban and rural youth, women’s activists, professional associations, socially conscious religious communities, media practitioners, non-governmental organizations, and individual citizens with advanced democratic consciousness.

Democratic Resistance

Though relatively small in numbers, it is some of these groups who first mounted sporadic resistance to the authoritarian regime of the Rajapaksa brothers and then created conditions for sustained resistance until a new coalition of political parties emerged to facilitate opening up new space for democratic revival.These civic republican groups are now largely dormant. They are awaiting a fresh phase of mobilization and it requires coordinated initiatives and action.

Providing organizational leadership to these scattered core groups of Sri Lanka’s democratic social movements is perhaps the immediate task of the more active and resourceful civil society groups. They have one year ahead before the next presidential election to mobilize a new social movement of democratic defence and resistance in Sri Lanka and then build a strong coalition of counter-veiling social forces to any authoritarian political formation that has prioritized the replacement of democracy in its Right-wing reform agenda.

There are a few normative principles on which the politics of a new social movement for democratic defence and resistance needs to be constructed. (a) It is a broad coalition of social movements, built on the principle of democratic plurality and diversity; (b) It should evolve itself as a lose conglomeration of multiple spaces of democratic resistance with no centre, no ideological straitjacket, or no organizational hierarchy; (c) It will work in a purely tactical alliance with major political parties, with the firm conviction that its political autonomy is not compromised; (d) It will work in closer coalitionist cooperation with small political parties without getting entangled with their electoral agendas; (e) It will construct a new political language that can reignite democratic and emancipatory political imaginations of the broad constituencies of citizens. 

National & Sub-National Planning Approaches In Sri Lanka (1948 – 2018)

By Siri Gamage –AUGUST 20, 2018

Dr. Siri Gamage

National and Sub-National Planning Approaches in Sri Lanka (1948 – 2018): A Critical Review by P. Sumanapala. 2018 Quality Printers, Homagama

Development planning, implementation, monitoring and evaluation at national and regional levels assume high significance in contemporary society as they involve economic development, poverty alleviation, social engineering and preservation of quality of life at national and regional levels. Involvement in efficient economic development planning and implementation at various administrative units has been part of state responsibility at varying levels since independence. However, complexities have emerged in the field of planning with the expansion of neoliberal, free market economic ventures initiated and implemented by the private sector-local and foreign – making the process of planning quite challenging. 

 Coordination of planning and implementation activities including budgeting, provision and careful utilisation of resources among various levels of government plays a crucial part in the process. At this juncture, whether Sri Lanka is facing up to this challenge in terms of political, institutional (bureaucratic), and procedural dimensions is a reasonable question to raise. In this regard, gaining an understanding of how the development policy development and planning evolved since independence and acquiring a sense of the challenges facing planners as well as how to address them are necessary steps. This book provides the reader with a useful resource to achieve these objectives. The author who held important positions in the national planning department of the finance ministry and the finance commission responsible for provincial budgets has utilised his academic training as an economist to come up with this publication. He holds a Master’s degree in Regional Development and Planning from the Institute of Social Studies in The Hague, the Netherlands. The book details measures to arrest regional disparities, e.g. local government to be given more responsibilities, better coordination, industries in agriculture areas, focus on vulnerable groups (pp. 64-67). A series of recommendations to address other continuing issues are also included in the final two chapters. There are   numerous insights that present day planners and students of development planning can gain by reading the book.

Successive governments since independence introduced a number of development plans and policy approaches/frameworks at the national level while a range of development initiatives has been instituted to develop regions and sub-regions.  The latter followed   policies and strategies adopted at macro level in order to address the regional disparities. In terms of the changes in planning approaches, ‘governments from 1948-1977 accorded a prominent place for economic planning. Governments that came after 1977 adopted a less interventionist liberalised economy approach. They provided policy directions to private investors considered as the engine of growth for viable projects and utility services (p.29). However, compared to other countries in the region such as Thailand, Singapore and Malaysia, Sri Lanka has not performed well in the economic frontier in terms of economic indicators. Aafter analysing socio-economic data, the author states that the objectives and targets set out have not been achieved satisfactorily due to domestic and international factors some of which are beyond the control of relevant authorities (P.81).

Since the introduction of Provincial Councils in 1987, national planners had to work with their counterparts at the provinces –both at the political and bureaucratic levels.  However, the duplication of development plans by the line ministries and Provincial Councils has emerged as a major issue. Concentration of industrial, commercial and service activities in and around the capital have not changed during the last seven decades either.  

The book includes chapters that engage with national and regional planning approaches, provincial planning and challenges of development planning. It analyses the planning strategies adopted by governments during the seventy years since 1948 at national and regional levels. 

Chapter 1 deals with definitional issues and the nature of policies and plans implemented in various periods. Reasons for poor performance are also outlined (pp. 30-31). For the 2015-18 period, planning indicators are given. The government vision is explained as ‘to graduate the economy to an upper-middle income status by 2020’(p.25). In order to achieve this vision, ‘the government adopts an economic strategy based on social market concept with the twin objectives of achieving higher growth and promoting social equity’ (p.25). Developing regional and rural economies through strong small and medium enterprises is part of the policy agenda.

Chapter 2 deals with national planning approaches including their theoretical backgrounds such as Classical and Neo classical, Core-periphery, Dependency, and Neo Marxist. The distinction between capitalist and socialist development concepts are elaborated while pointing out that in the 20thcentury the US and the Soviet Union adopted mixed economy model incorporating elements of both market economy and centralised planning by the state. The details on theory in the chapter remain very basic and descriptive. The author does not engage critically with the theoretical approaches mentioned or their suitability to the Sri Lankan context. However, the chapter provides the reasons for regional disparities and emphasises the need for balanced regional development across provinces (pp. 34, 39-41). 

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A scandalously ‘coercive’ monk brought to book

Sunday, August 12, 2018

Core elements of the fifty-six page decision handed down by the Court of Appeal this week sentencing General Secretary of the Bodu Bala Sena (BBS) Galagoda Aththe Gnanasara to six years rigorous imprisonment for contempt ‘in the face of the court’ constitute a stern warning to unruly individuals (monks or laymen) attempting to interfere with the processes of court.

An eminently rigorous sentence


If it was thought (and indeed, it would have been, judging from the openly insulting behavior of the BBS and its representatives during the court proceedings at the Homagama Magistrate’s Court), that the judiciary would not respond with the appropriate severity, then those misapprehensions may now be laid to rest.

In fact, observing the markedly subdued reactions of those representing the accused monk who had deposited himself in hospital at the time of the sentencing as they presented themselves before television cameras on Hulfsdorp, it appears that the decision has had a markedly salutary effect, almost immediately.

For many of us, applauding a decision imposing an eminently rigorous sentence for contempt, (nineteen years, to be served concurrently making it six years in all), does not come easy. Sri Lanka’s history of contempt of court has been a peculiar mixture of judges being extremely harsh on some occasions and unduly lenient in others. When a teacher of English Antony Michael Fernando was sentenced to one year rigorous imprisonment by the Supreme Court (per order of then Chief Justice Sarath Silva with Justices Yapa and Edussuriya agreeing), after he was determined to have ‘raised his voice’ and insisted on his right to pursue an application that he was urging himself before the Court in early 2003, this was perhaps a good instance of the former category of cases.

Unusually strong language by Court

Fernando was thereafter detained at the Welikada prisons and inhumanely physically abused by prison guards leading to criminal charges being filed against the torturers who were also named in a fundamental rights application filed on his behalf, though these cases did not result in justice being served.

While Fernando’s case is at one extreme, there are many more at the other extreme where the authority of the Court had been egregiously flouted with no apparent repercussions. Viewed objectively and putting aside the racial and religious motivations of the BBS, the scandalous conduct of its General Secretary at the Homagama Magistrate’s Court during the hearing of an application relating to the disappearance of journalist Prageeth Ekneligoda which led to this decision by the Appeal Court was unequivocally one such instance.

In finding the accused General Secretary of the BBS guilty, the Court of Appeal did not mince its language. The judges pointed out that the accused who had no connection to the case being heard at the Magistrate’s Court and had no standing to appear, had ‘addressed’ the Court without express or implied permission of the magistrate. He had intended to ‘intimidate’ the magistrate into granting bail to the suspects (all intelligence officers) after the magistrate had already refused to do so.

Intent to intimidate and coerce

This ‘address’ by the accused to the magistrate had been made in a high tone, to be heard ‘even by those waiting away from the court room’ and had been in ‘abusive, offensive and commanding’ language. In doing so, he had tried to ‘somehow force’ the judicial officer into obeying his commands and to reverse an already pronounced Order of the magistrate. It was proven beyond reasonable doubt that, despite not being a party to the case, the accused had come in support of the suspects deliberately to intimidate and coerce.

Among those coercive utterances was the statement by the accused to the Homagama Magistrate that this was the ‘white person’s law’ and that he did not accept that law. The Appeal Court reprimanded that statement in the strongest terms, observing that whether it is foreign-made or locally-made, it is the ‘prevailing law that the courts have to apply.’ It was further emphasized that ‘the Court will administer justice according to such law irrespective of its genesis.’ The accused’s statement was concluded to be an attempt to ‘degrade’ the honour and authority of Court and a categorical refusal to accept its authority, deserving therefore of the most stringent response.

Further, an additional factor weighing with the judges was that when state counsel and the lawyer representing the aggrieved party rushed back into the court room upon hearing the commotion and attempted to support the Magistrate whom they had found to be in a vulnerable situation in the face of the accused’s verbal onslaughts, they too had been abused with the state counsel being referred to as ‘impotent’ by the accused General Secretary. Assessing the testimony with judicious care, the Court of Appeal found that the evidence of the state counsel, the magistrate and the lawyer buttressed each other and were trustworthy while the testimony of the accused and his witnesses who spoke on his behalf were contradictory.

A wider principle in issue

No doubt, this decision of the Appeal Court will be a potentially strong deterrent to those wishing to follow in the turbulent if not thuggish footsteps of the accused in this case. But there is a wider principle in issue. Too often, calls for the codification of a law on contempt have been seen as a limitation on the discretion of judges to exercise their authority in such cases.

In Fernando’s case for example, the ruling against him was taken to the United Nations Human Rights Committee under the terms of the International Covenant on Civil and Political Rights,
(ICCPR) with this columnist representing his case at the time. Thirteen jurists of the UN Committee agreed without dissent that, “no reasoned explanation has been provided …as to why such a severe and summary penalty was warranted in the exercise of the court’s power to maintain orderly proceedings when the only disruption was the repetitious filing of motions and one instance of ‘raising his voice’ in the presence of the court (U.N. Doc. CCPR/C/83/D/1189/2003 (2005).

While that may be so, it must also be even reluctantly conceded that, as this week’s Appeal Court decision amply shows, there are instances when, exercising the power of contempt in all its severity is, in fact, required.

In all respects therefore, Sri Lanka should look to enacting a Contempt of Court Act, in line with neighbouring countries in the region. This will be useful for keeping both unruly individuals dismissive of the authority of court and overly repressive judges, within the framework of the Rule of Law when contempt powers are in issue and are so exercised.

MAHINDA RAJAPAKSA CANNOT CONTEST PRESIDENCY AGAIN

Amali Mallawaarachchi-Monday, August 20, 2018

Former President Mahinda Rajapaksa is not qualified to contest the upcoming Presidential election, Higher Education Minister Wijeyedasa Rajapakshe said yesterday.

He said that according to the provisions of the 19th Amendment to the Constitution, a former President is barred from contesting any Presidential election.

The provisions stipulate that no President can hold the Executive Presidency for more than two terms.
He pointed out that some groups are trying to establish a notion that former President Rajapaksa could contest in the coming Presidential Election based on certain legal arguments.

Minister Rajapakshe further said neither former President Chandrika Bandaranaike Kumaratunga nor Mahinda Rajapaksa are allowed to run for a third term as the 19th Amendment to the Constitution does not allow so.

He said the Presidential Election Act states the seriousness of a disqualified person handing over nomination to contest in a Presidential Election. He pointed out that legal action could be taken against a candidate who gives a false statement on his or her qualification to contest at a Presidential Election.

“When a person wants to contest in a Presidential Election, he or she has to hand over his or her nomination along with a sworn statement which says that he or she is not a disqualified person to contest as a Presidential candidate.

If a person who has become a President twice, requests to compete as a candidate for a third term, that person will also have to give a sworn statement saying that he or she is not disqualified to contest. If such a statement be given, that would become a false statement. It will become a lie. According to the Penal Code Provision 190, a person giving a false sworn statement is subject to three years imprisonment,” Minister Rajapakshe pointed out.

Minister Rajapakshe made these observations at a press brief held at Nawala yesterday afternoon.
Minister Rajapakshe, commenting on certain parties stating that they are going to seek the Supreme Court’s opinion on the matter, pointed out that only the President can seek opinion from the Supreme Court with regards to it.

“No one other than the President can directly seek an opinion from the Supreme Court. Even if they do, the Supreme Court will discard the requests,” the Minister added.

Asked if a person who has served two terms as a President is qualified or not to hold the post of Prime Minister, Rajapakshe said that it does not affect a person to hold office as a Prime Minister, a Minister or a Member of Parliament.

Asked when the next Presidential Election would be declared, Minister Rajapakshe said that President Maithripala Sirisena will be able to, if necessary, call for a Presidential Election at the completion of the fourth year of his office. 

Disqualifying Twice Elected Presidents – A Failed Endeavour?

Dr Nihal Jayawickrama-August 18, 2018, 7:38 pm 

One of the declared objectives of the Government in introducing the Bill for the 19th Amendment to the Constitution was to restore the provision that no person who had been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People. That provision in the 1978 Constitution had been repealed in 2010 by the 18th Amendment. Did Parliament achieve the objective of reviving that disqualification? It would appear that that endeavour failed. Why?

1. The 19th Amendment, by repealing and replacing Article 3 of the Constitution, abolished the existing office of President and replaced it with a new office of President.

The office of Executive President was established by Article 30 of the 1978 Constitution. It read:

30. (1) There shall be a President of the Republic of Sri Lanka, who is the Head of State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces.

(2) The President of the Republic shall be elected by the People and shall hold office for a term of six years.

In 2015, section 3 of the 19th Amendment provided as follows:

Article 30 of the Constitution is hereby repealed and the following substituted therefor:

30. (1) There shall be a President of the Republic of Sri Lanka, who is the Head of State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces.

(2) The President of the Republic shall be elected by the People and shall hold office for a term of five years.

The only difference between these two versions of Article 30 was in respect of the term of office: six years in the former, and five years in the latter. If that was the only amendment that Parliament intended to make, the normal way of doing so would have been for section 3 of the 19th Amendment to have provided as follows:

Article 30 of the Constitution is hereby amended by the substitution in paragraph (2), for the words "six years", of the words "five years".

Why, then, was the normal form of drafting not followed? Why was it necessary to repeal Article 30 and thereby abolish the existing office of President and then proceed to establish a new office of President? The answer lies in the remaining 48 sections of the 19th Amendment and in the 56 sections of the amending Bill.

2. The powers, functions and duties of the new office of President are fundamentally different that those of its predecessor.

It is significant that it was not only Article 30 that was repealed and replaced, but also Article 33 which specified the Duties, Powers and Functions of the President; and Chapter VIII which provided for the appointment of the Executive: the Prime Minister and the Cabinet of Ministers.

In 1978, what the National State Assembly established, through the new Constitution, was the office of Executive President. That office was the fount of all power and patronage. Acting on his own initiative, the President made appointments to every important office of the State, from Prime Minister, Cabinet Ministers, and Deputy Ministers to Judges of the Supreme Court and the Court of Appeal; from the Attorney General and the Secretary-General of Parliament to the Auditor General and the Commissioner of Elections, the Public Service Commission, the Judicial Service Commission, and the Parliamentary Commissioner for Administration. The President could dissolve Parliament at any time after it had functioned for one year following a general election. While he held office, no proceedings could be instituted against the President in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.

Under the new Article 33, the President was intended to be "the symbol of national unity". Inexplicably, the Supreme Court rejected that description as being unconstitutional, the reason being that in 1981 the then Cabinet of Ministers had "categorically stated that the National Flag is the symbol of the unity of our People". The national flag is referred to in Article 6 of the Constitution and depicted in the Second Schedule, with no reference whatsoever to it being the symbol of national unity. This was perhaps the first occasion when the Supreme Court elevated a cabinet decision to the status of a constitutional provision. Be that as it may, the new Article 33 also requires the President, inter alia, "to respect and uphold the Constitution", "to promote national reconciliation and reintegration", and "to ensure the creation of proper conditions for the conduct of free and fair elections": duties and functions which were not previously required.

The office of President established by the 19th Amendment is fundamentally different from its predecessor. The President now cannot appoint or remove Ministers and Deputy Ministers except on the advice of the Prime Minister. His power to remove the Prime Minister from office was expressly repealed. In making appointments to the high offices of the State, including Judges and the Attorney General, and to all the Independent Commissions including some that were newly constituted, he is required to act on the recommendation of the 10-member Constitutional Council to which he may on his own appoint only one member. The President’s power to dissolve Parliament may be exercised only on the request of two-thirds of its members, except during the last six months of its five-year term. He no longer enjoys immunity from judicial proceedings, and any person may now challenge his official acts or omissions in the Supreme Court. Indeed, the new duty imposed on him to ensure the creation of proper conditions for the conduct of free and fair elections suggests that he should not be actively involved in any political party contesting such elections. Despite the few residuary powers which he retains, such as appointing Ambassadors, Ministry Secretaries and Governors of Provinces, the office of President established under the 19th Amendment is now more in the nature of a constitutional Head of State.

3. That the two offices of President are distinct and separate from each other is also evident from the transitional provisions.

Following the establishment of the new office of President, it became necessary to provide for the continuance in office of the person elected in January 2015 to the previous, but now abolished, office of President. Accordingly, a transitional provision (Section 49) was inserted into the 19th Amendment. It stated that:

"The persons holding office respectively, as the President and Prime Minister on the day preceding April 22, 2015 shall continue to hold such office after such date, subject to the provisions of the Constitution as amended by this Act."

This transitional provision became necessary because the offices which Mr Maithripala Sirisena and Mr Ranil Wickremesinghe held since January 2015 had ceased to exist when Article 30 and Chapter VIII of the Constitution were repealed. The offices of President and Prime Minister established by the 19th Amendment were new offices, and it was therefore necessary to provide for these two persons to continue to function in these new offices, but subject to the reallocation of powers introduced by the 19th Amendment. The significance of this reallocation is evident from an unprecedented provision, section 51, in the amending Bill. It stated that, notwithstanding anything to the contrary in the Constitution, President Sirisena may also serve as the Minister of Defence, Mahaweli Development and Environment. No person had previously been appointed a Minister by an Act of Parliament.

4. The disqualification is only applicable to the office of President established by the 19th Amendment since it was not applied retrospectively to those who had been twice elected to the office of President that was abolished by the 19th Amendment.

To revert to the question raised at the outset, a new Article was indeed included by the 19th Amendment, immediately below that which created the new office of President. That Article 31(2) reads:

"No person who has been twice elected to the office of President by the People, shall be qualified thereafter to be elected to such office by the People".

To whom does the disqualification in Article 31(2) apply? On the one hand, it undoubtedly applies to anyone who has been twice elected to the office of President established by the new Article 30 introduced by the 19th Amendment. On the other hand, this is an entirely new prohibition on a citizen’s right to be nominated to stand for election and to be elected. Immediately prior to the 19th Amendment, the Constitution did not impose such a disqualification. Therefore, a person who had previously been twice elected to the office of Executive President established by the repealed Article 30 was not subject to such a disqualification and did not suffer such a legal disability.

Whether advisedly or inadvertently, Parliament did not provide in the 19th Amendment for this new constitutional disqualification to retrospectively apply to citizens who had previously been twice elected to the former (since abolished) office of President. A law is not considered as imposing a disqualification retrospectively unless Parliament had clearly stated that to be its intention. Accordingly, it would appear that the two surviving former Presidents, Mrs Chandrika Kumaratunga and Mr Mahinda Rajapaksa, not having been made subject to this disqualification, are eligible to seek election to this new, essentially non-executive, primarily symbolic and ceremonial, office of President whenever an election is held.

Singapore miracle – How SL could benefit from trade with Singapore

There has been a debate about what type of policy which Sri Lanka should pursue in order to deliver prosperity to its people. Some have argued that the country should follow the Singaporean model to replicate the miracle. But many others, including those on the top of Sri Lanka’s political structure and those among the mainstream economists, have disagreed. They have argued that Sri Lanka should follow its own indigenous growth model unique to itself

Appointment of a committee of experts

Monday, 20 August 2018

According to a media report released by President’s Media Division, a committee of experts has been appointed by the President to examine and report on ‘the practical impact and use of the proposed officer policy guidelines and recommendations on framing Sri Lanka’s future trade policy’ (available at: http://www.pmdnews.lk/president-appoints-independent-experts-committee-on-sl-singapore-fta/).

Singapore miracle – How SL could benefit from trade with Singapore.docx by Thavam on Scribd

Sri Lanka’s People’s Bank offers 75 Million salary increment to its Boss and Deputy GM

They have come up with a formula where the salaries will be increased by 10 per cent annually. According to the board paper, the People’s Bank has already paid approximately Rs 36 million to the incumbent GM and another Rs 38 million to former Senior DGM as salary increment arrears.

( August 19, 2018, Colombo, Sri Lanka Guardian) The People’s Bank has paid a total of around Rs 75 million as arrears of the annual salary increments to its incumbent General Manager, N. Vasantha Kumara and a former Senior Deputy General Manager, as per a board paper presented by the incumbent General Manager himself.

This was revealed when the Parliament corruption watchdog – the Committee on Public Enterprises (COPE) had opposed the extension of service of the incumbent General Manager Vasantha Kumara.

According to COPE Chairman Sunil Handunnetti, the GM of the People’s Bank is currently receiving a monthly salary of Rs 2.1 million which is paid through another management system providing company.

“They have come up with a formula where the salaries will be increased by 10 per cent annually. According to the board paper, the People’s Bank has already paid approximately Rs 36 million to the incumbent GM and another Rs 38 million to former Senior DGM as salary increment arrears.

The monthly salaries of General Manager, Deputy General Manager and Assistant General Manager are paid through this other private management system providing company and the Bank also pays Rs 35,000 per month for their service. When the COPE inquired as to why they need another company to pay their top officers salaries, the response we got from them was that to avoid others at lower management level from getting to know the salary disparities,” Handunnetti added.

The COPE also claimed that their investigations revealed that backup details of any of these payments are given to the finance division of the Bank or for audits and thus had issued a directive to do so immediately.

“Despite all these payments, the GM has also sought an extension of service after completing 60 years of age. We opposed this and also wrote to the Treasury Secretary about our concerns. This will definitely set a bad precedence. The Finance Ministry Secretary has responded to us acknowledging our concerns and has also mentioned they will inform relevant authorities not to go ahead with the extension,” Handunnetti added.

Meanwhile, COPE also found out that most of the top crucial posts of the Bank have been filled on contract basis for 9 to 15 years.
“While the top enjoy such perks the plight of the bank is what caught the committee’s attention. Under the recent digitization project of the Bank, there is an additional expenses payment of Rs 84 Million. We have asked for further details on that.

In addition, the Bank has issued loans amounting to Rs 38,000 million in 2017. Out of this amount, Rs 3,607 million (9%) has been identified as non-performing loans by 31 May 2018. Out of this, the Bank has failed to obtain a single instalment from loans amounting to Rs 140 million,” Handunnetti pointed out.

SL suffers Rs 150-250 bn loss due to GSP+ withdrawal

Monday, August 20, 2018

Sri Lanka due to the loss of its GSP+ concession in August 2010 accounted a loss of export revenues till the reinstatement of GSP+ in May 2017 to the tune of Rs 150-250 billion according to a study done by Ministry of Development Strategies & International Trade.

According to the International Trade Centre, Vietnam, Pakistan and Cambodia all trailed Sri Lanka in 2009, with EU exports at US$ 2.1 billion, US$ 1.5 billion and US $ 1.09 billion, respectively, against Sri Lanka’s US$ 2.3 billion.

However by 2015, Vietnam’s apparel exports to the EU had risen to US$ 3.9 billion, Pakistan’s to US$ 2.9 billion and Cambodia’s to US$ 3.7 billion, with Sri Lanka trailing at US$ 2.4 billion.

The European Union (EU) reinstated the EU GSP Plus facility to Sri Lanka with effect from May 19, 2017. Importantly, this will provide Sri Lankan exports a level playing field with other countries such as our neighbours from Bangladesh & Pakistan, and several countries from Africa and South America who enjoy preferential market access.

The additional tariff concession gained by sectors varies – in many apparels categories duties are cut from 9.6 percent to zero, in the seafood sector from 18.5 percent to zero, in the fresh and processed fruits and vegetable sector from 12.5 percent to zero, in the porcelain and ceramic ware sector from 8.4 percent to zero and in the toy products sector from 1.2 percent to zero.

Apparel is by far Sri Lanka’s export to the EU.

Sri Lanka will continue to be eligible for GSP Plus as long as the periodic reviews (the first one coming in less than a year) by the EU do not raise any red flags with regard to the implementation of agreed human rights and governance reforms.

According to the Ministry 12 months after regaining GSP+, overall, EU exports were up by 11% in the 12 months after regaining GSP.

Apparel volume growth has outstripped revenue by 1-2%, suggesting modest sharing of pricing benefit with customers.

In the last two months’ exports have been strong. An estimate of the increase in jobs for the apparel sector along is at least 7,500.

“Sri Lanka has already achieved an increase in exports of US$150m which is one third of the target of US$ 500 million increment for the apparel sector.

In addition other notable export growth sectors are fisheries and tyres too shave shown positive results. Fisheries volume of exports has literally doubled since the removal of the fish ban and regaining GSP plus – business links restored and new orders received.

Rubber tyres and gloves volume growth is lower than value, suggesting benefits from pricing increases and/or the strengthening Euro.