The Nation Sunday Print Edition - page 4

Sunday, March 8, 2015
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The Press Complaints Commission of Sri Lanka (PCCSL)
inancial irregularity was one of
the many charges leveled at the
Mahinda Rajapaksa regime. The
‘rot’ s to speak began at the top, according
to critics. It was and still is argued that
this state of affairs is a direct or indirect
product of a system of governance marked
by centralization of power following the
dictum ‘power corrupts, absolute power
corrupts absolutely’.
Maithripala Sirisena’s campaign theme,
naturally, was good governance. Promises
were made to correct institutional flaws,
bring to book miscreants and ensure things
like transparency and accountability.
Professionalismwould replace political
patronage, the people were told.
Today, with President Sirisena in effect
having transferred his mandate to Ranil
Wickremesinghe and conceded (in effect)
executive powers to a party with minority
representation in Parliament, the political
equation is marked by instability. The Sri
Lanka Freedom Party has more MPs than
the United National Party. The reform
project is at odds with the prerogatives of
political expedience with the two major
parties engaged in intense brinkmanship.
It is in this context that stability,
professionalism and squeaky clean
operations at the high temples of financial
management are imperative. Politicians will
quibble; that’s a given. The economymust
be on a strong footing with robust rules and
regulations to eliminate irregularities of the
kind the current dispensation accused its
predecessors of indulging and indulging in.
It was hoped that the ‘bad’ were not only
swept out, the ‘good’ replaced them. Today,
there are questions about ‘the good’.
The Governor of the Central Bank Arjuna
Mahendranmade a promise. He said that the
Government would offer a detailed response
to allegations that a firm connected to him
through his son-in-lawArjun Aloysius may
have used ‘advanced knowledge’ to profit
from the bond issue. The Government,
however, did not respond.
The Deputy Minister of Policy Plann ng
and Economic Development offered an
elaborate ‘explanation’ drawing from
theories regarding interest rates, but
studiously avoided the issue of insider
trading, an issue which his party had
routinely charged the previous government
of encouraging.
The issue here is that controversial deals
were made over the past week by Perpetual
Treasuries, a firm connected to Aloysius.
Perpetual Treasuries is a fully-owned
subsidiary of Perpetual Asset Management
whose parent company is Perpetual Capital
Pvt Ltd, a family run company with Arjun
Aloysius functioning as its Chief Executive
Mahendran claimed that Aloysius
had resigned from Perpetual before he,
Mahendran, took up the post. But why
speak of resignation and appointment
in the same breath? After all, Perpetual
is a legal entity and there’s no legal
requirement for Aloysius to give up a
lucrative business just because a relative
got a job, surely?
Mahendran, had information which in
the hands of a ‘dealer’ would be extremely
valuable and moreover ‘convertible’
into billions of rupees. That conversion
was made. Among the beneficiaries
was a company that stands accused of
involvement in controversial stock market
deals with the Employees Provident Fund
(EPF) during the previous regime, deals
which were heavily criticized by several
individuals who are nowministers and
deputy ministers.
The question that arises then is not
whether Aloysius should have resigned
but whether Mahendran should have
been appointed in the first place. The
Government ought to have known that
appointing as Governor the father-in-law
of a man involved in what was deemed
‘irregular’ was bound to stir controversy.
Well, it has certainly hit the fan, as they say.
The new Government doesn’t have it easy
what with deadlines set and lots of things
on its to-do list yet to be done. It cannot
afford this kind of distraction. It can score
in terms of commitment if swift action is
taken in this matter.
Harsha De Silva has promised an
investigation. This is a welcome move.
Mahendran can help in giving credence to
such an investigation by stepping down.
That will not only clear all doubt about
the Government’s good intentions, it will
considerably boost the UNP’s stocks among
the voters. Ranil Wickremesinghe doesn’t
hold all the political aces, but that does
not stop him from sorting this issue. In
fact it might get him the ext
desperately needs at this point.
As things stand, inaction, pooh-poohing
ging the issue will only
give credence to the view that wrongdoing
continues to thrive even after the
‘wrongdoers’ were ‘sent home’.
The good, the bad and ugly
s the general election draws near,
it appears as if the understanding
between the two major political
parties, the UnitedNational Party (UNP) and
dissipating as both parties contemplate the
prospect of wresting control of Parliament.
This week, the SLFP was reportedly
insisting on enacting electoral reforms
along with proposed amendments to the
Constitution that would diminish the powers
of the Executive Presidency, in keeping with
the pledge given by President Maithripala
Sirisena during his election campaign.
On Thursday, Cabinet spokesman Min-
ister Rajitha Senaratne announced that the
election would be held after electoral re-
forms were enacted-even if that meant that
Parliament would have to be dissolved later
than April, thereby disrupting the ‘100-day
plan’ promised by the President.
Thismeans a return, at least in part, to the
first-past-the-post electorate based system of
elections. The SLFP believes this would be to
its advantage. The UNP, however, is not too
keen on this as it believes the existing Pro-
portional Representation (PR) system would
help swell its numbers in Parliament.
Prime Minister Ranil Wickremesinghe
and other leading UNP ministers, however,
continue to insist that Parliament should
be dissolved by April 23 in keeping with the
‘100-day’ plan and that elections should be
held in June. There is confusion all round,
despite Minister Senaratne’s announcement
on Thursday.
President Sirisena has the difficult task
reconciling the two parties. He has been
handed the leadership of the SLFP follow-
ing his victory at the presidential election
but he is also obliged to the UNP which cam-
paigned hard for him at the grassroots level
which led to the bulk of UNP votes accruing
to him.
The Sirisena manifesto, in fact, promised
a combination of the PR and first-past-the-
post systems. It was envisaged that there
would be representation at electoral level
but at the same time a significant number
of seats would be set apart for proportional
representation pro-rated on a national
This would mean that the major par-
ties, even if they were to lose the general
elections, would still retain a considerable
number of seats and that there would be no
‘landslide’ victory for any party. It would
also eliminate the intra-party scramble for
preference votes at the district level.
Amix of the first-past-the-post and the PR
systems will also ensure that the Janatha
Vimukthi Peramuna and the Jathika Hela
Urumaya which would be wiped out if allo-
cations were based solely on a first-past-the-
post system, still retained representation,
thus guaranteeing the diversity of parties
in Parliament.
The UNP’s reluctance to incorporate the
first-past-the-post system stems from the
fact that it didn’t win that many elector-
ates in the South of the country in the re-
cent presidential poll. That was because its
grassroots network had gone into slumber
after the party spent almost two decades in
the opposition.
However, it must also factor in that chang-
es that have occurred since then that have
radically altered the political landscape.
The country is now run by a mostly UNP
Cabinet. They have the opportunity to per-
form prior to the election. Rewards for in-
troducing the Budget, for instance, must
accrue to the UNP.
Also, the state media and other state re-
sources are now not at the disposal of the
SLFP. Leading figures of the SLFP are un-
der investigation for corruption and abuse
of power. Some of them will most certainly
be deprived of nominations from the SLFP
by President Sirisena. Thus, the SLFP will
not be at full strength.
If the forces within and without the SLFP
which are fighting to drag former President
Rajapaksa into the fray succeed in convinc-
ing him to do so, he would have to do so
from a party other than the SLFP. Even if
he doesn’t contest, there is a high chance of
a breakaway faction of the SLFP splitting
the party’s vote.
In any event, the electoral system is also
a double edged sword. While it may seem at
first glance that it would confer an advan-
tage to the SLFP, key party leaders may suf-
fer as a result. For example, the SLFP lost
the Badulla electorate-nursed by Opposi-
tion Leader Nimal Siripala de Silva at the
presidential poll!
The race to become the party with the
most number of seats at the general election
stems from the fact that its parliamentary
leader will become Prime Minister after the
poll with executive powers at his disposal,
while President Sirisena appears to be con-
tent to take a back seat, relinquishing most
of his powers.
The stage is thus set for a few months of
hard-nosed political bargaining. Whatever
the final outcome, it is important that both
the UNP and the SLFP do not waste the
political window that was opened on the
eighth of January for the purpose of ush-
ering in a more stable, peaceful, prosperous
and law-abiding nation.
Snags hit constitutional reforms
By Sumanasiri Liyanage
have my doubts over the authen-
ticity of the constitutional re-
forms document of the Maithri-
pala Sirisena government. It has
not been published yet in a gov-
ernment website. It can be portrayed as
the weakest and most regressive docu-
ment in the constitutional discourse in
Sri Lanka in the last three decades or so.
It is regressivewhen it is comparedwith
the 2000 constitutional draft and the ma-
jority position of the all-party confer-
ence. No use of comparing it with some
of the writings of the civil society activ-
ists. Constitution engineering should
not be concerned only on the immediate
present but on the recent past.Moreover,
such exercise has to be futuristic.
In a diverse country in which one
of the brutal wars in recent time had
been waged, it is imperative to take the
underlying causes of the war as well as
steps to be taken for reconciliation into
account in constitutional engineering.
The peoples in the Northern and East-
ern Provinces voted overwhelmingly
for the President Sirisena expecting not
just a change but changes for their lives
and conditions; not to taste the bitter
side of political power exercised and
executed by an alien power in and from
Colombo, but to participate in decision-
making that directly affect their lives.
Hence state restructuring making that
expectation and democratic right work-
able is a responsibility of the govern-
ment and the constitution drafters.
Democracy is an inalienable right
for identity and security. Good gov-
ernance is an inclusive governance.
The following sentence is the only
one that is included in order to ad-
dress this specific burning issue,
adding more powers to the President.
“In addition to the powers and duties
presently exercised under Article 33,
the President shall promote national
reconciliation and integration, en-
sure and facilitate the preservation
of religious and ethnic harmony and
ensure and facilitate the proper func-
tioning of the Constitutional Council
and the independent Commissions.”
What was proposed is another hybrid
version, much worse than the existing
constitution. The hybrid system that is
proposed to create would make a legal
possibility for a constant conflict be-
tween the President and the PM. What
the drafters of this discussion paper
did was making a present conjuncture
a constitutional design of the country.
This may to lead many contradictions,
theoretical as well as practical.
Constituionalism called for checks
and balances. However, there is no justi-
fication to introduce a system in which
one elected arm of the government is
made to subservient to another elected
arm of the government. According to
the draft executive president is elected
directly by the people. Why should he
act on the advice of his own appoin-
tee? This is what the draft says: “The
Prime Minister will be the Head of the
Government. The President shall ap-
point as Prime Ministery the Member
of Parliament, who, in his opinion, is
most likely to command the confidence
of Parliament.” There is no suggestion
that the Parliament should at least rati-
fy that s/he actually has the confidence
of the Parliament like in many coun-
tries. So we are seeking to create a con-
flictual system that would be more evi-
dent than in the present constitution.
So still the President has the power
of manipulation as it exists in the
present system. Similarly, the elected
“President may be removed by pass-
ing a no-confidence motion with a 2/3
majority”. Instead of abolishing the
executive presidency the system pro-
posed would lead to constant conflicts
between two elected bodies. It violates
4 (b) of the constitutionwithout chang-
ing or deleting it.
The draft proposes to create a new
body, the Council of State. Is it some-
thing like present unconstitutionally
constituted National Executive Coun-
cil? It seems its functions are advisory.
In my opinion, this would be another
body to enlarge the size of the govern-
ment using public money without as-
signing specific functions. Proposed
Parliamentary Committees can easily
perform the same functions.
This section is almost like the de facto
repealed 17th Amendment. One of the
main issues with the 17th Amendment
was that it was made easily vulnerable
to the actions or inactions of the presi-
dent. That aspect is proposed to be re-
moved. 1972 Constitution abolished the
independence of services by making
elected Parliament supreme. It is an
incorrect decision. However what hap-
pened was control by bureaucracy was
replaced by a control by politicians. So
when we designed independent com-
mittees, it is imperative to give proper
representations to trade unions, peo-
ples’ organization to allow their voices
to be heard. I could not see an attempt
to strike a proper balance in appointing
independent commissions.
As I mentioned, President is to act
hereafter onmany issues on the advice
of the Prime Minister. Why is not the
same applied with regard to the Pro-
vincial Council? The Provincial Gov-
ernor, the chief executive officer of
the PC is appointed by the President.
If the principle laid out in the draft ap-
plies to the PC, one may ask why not
the PC governor is appointed at least
on the advice of the Chief Minister?
Also the PC can be given the power to
remove the Provincial Governor by
passing a no-confidence motion with a
2/3 majority thus avoiding unproduc-
tive conflict between the elected PC
and the Governor.
In opinion, the draft reveals how
constitutional engineering should not
be performed. The draft is an attempt
to justify the present conjuncture and
to make it the constitutional design of
the future. The present constitution is
bad and has to be replaced. However, the
proposed 19th Amendment would make
the constitution worse.
(The writer is the Dean, Faculty of Man-
agement and Finance, SANASA Institute
of Business andDevelopment Studies.)
How not to engage in
constitutional engineering?
President Sirisena has the difficult task reconciling the
two parties. He has been handed the leadership of the
SLFP following his victory at the presidential election
but he is also obliged to the UNP which campaigned
hard for him at the grassroots level
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