The Sunday Leader

Time Limitation, ‘A Political Slogan’

Speaking on the importance of the constitutional reforms and the 19th Amendment, as well as the danger of the 18th Amendment, Former Chief Justice Sarath N. Silva said the essence of good governance brought through the 17th Amendment has been brought down with the 18th Amendment. He also said that September 10, 2010 is the weakest day of the legislature in the country, as it is the day the much controversial 18th Amendment was implemented.

“This is a badly advised amendment. I blame those responsible for not bringing some kind of restrain to this. From the 18th Amendment, the laws try to remove the limitation of the presidential term of office and it also removes all positive features of the 17th Amendment,” Silva said. - Excerpts of the interview:

 

By Nirmala Kannangara

Q: There are lots of talks of the need of the constitutional reforms. Can this be done urgently through parliament and how?

A: Constitutional reforms have been there a long time. In run up to the Presidential Election in 1994, Chandrika Kumaratunga wanted power to abolish the Executive Presidency and to bring total reforms to the Constitution including devolution of power. Then she set a six-moth timeframe and appointed Prof. G.L. Peiris as the Minister of Justice and Constitutional Reforms.

He started off and had discussions with Dr Neelan Thiruchelvam and introduced what is called ‘package’. That was oriented mostly towards the devolution of power and it was a draft of Dr Thiruchelvam. Prof. G.L. Peiris did not contribute to this draft. However there was serious opposition from the national list segment to this package.

It was at this stage Minister of Foreign Affairs Lakshman Kadirgamar and Prof. Peiris spoke to me. At that time I was at the Supreme Court. I have been at the Attorney General’s Department for 20 years earlier and Prof. Peiris spoke to me and wanted me to come to AG’s Department to handle constitutional reforms which was quite a challenge. So I gave up the secure job at the Supreme Court and switched over to the AG’s Department and became the AG in 1996. We had two-year discussion in the parliament select committee and prominent people were there and we went through article by article of the Constitution and formulated a new constitution by 1997.

Kumaratunga wanted to present this at the country’s 50th year independence celebration which was to be held in Kandy. At this time the LTTE moved in a counter direction and attacked the Temple of the Tooth. Kumaratunga lost the interest and said that this is not the time for constitutional reforms. When I became Chief Justice in 1999, Kumaratunga was re-elected to the post and she tried to bring this back again. However it became a failure. Constitutional reforms have to be done through parliament. The idea of a constitutional assembly which is in President Rajapaksa’s manifesto is not feasible because under our constitution the sole power of getting a new constitution is with the parliament. So we have to go through that, nothing else.

 

Q: Many argue that it needs a strong constitution like ours with executive presidential powers to wage a war and ensure peace. Is this a correct analysis?

A: I don’t agree with that. A strong government has caused the LTTE war. In 1956 S.W.R.D. Bandaranaike could not form a steady government. People staged sathyagraha and protests even on his own lawns. Once there was a violent situation, he effectively curbed it. It was the same in 1970 during Sirimavo Bandaranaike’s prime ministerial tenure. She had to face an insurrection, but she controlled it. If the institution is fairly strong and if the President has the power to declare emergency as the Minister of Defence, there is no necessity to have executive powers to ensure peace. Our problem is we are looking at the war option and sacrifice good governance. The LTTE war was a result of President J.R. Jayewardena’s over exercise of power

President J. R. Jayewardene was not an elected President but deemed to be elected as the President. His term of office from 1977 to 1983 was the fixed term for the President. All the problems we face today were a result of the 3rd Amendment which President Jayewardene brought in 1982. He said he can go for an election after completing four years and ask for a mandate. Otherwise he had to go for an election in 1983.

Through a referendum President Jayewardene extended the parliament period to another six years. That was the time the LTTE terrorism raised their head.

 

Q: How conducive it is for a country if the president holds the defence and finance portfolios?

A: President should hold only the Defence Minister portfolio but not that of Finance Minister. He has to be the commander in chief of the armed forces. He has to be in charge of the promotion of national reconciliation and integration.

He should not get involved in running the Finance Ministry. Dr N.M. Perera and Ronnie de Mel were excellent and active Finance Ministers. They were more active than any other Minister in the cabinet. This job has to be done with great vigilance. The reason behind the failure of Chandrika Kumaratunga and Mahinda Rajapaksa administrations was because both Presidents held to the Finance Ministry portfolios.

 

Q: How favourable president holding the ministry of Buddha Sasana for a country that seeks solutions to the national issue?

A: This ministry was introduced by the 1972 constitution. No one need to hold this portfolio as it is the guiding ministry for everyone in the country. Not only Buddhism but also other religions have to be respected.

 

Q: The discussions about independent commissions have been a long one in Sri Lanka. To where are this discussion leading with special reference to Bribery and Corruption?

A: Commissions have been there for a long time. The 17th Amendment that was brought out in 2001 ensured that the appointments to the constitutional councils were made under the recommendations of the constitutional council which is a body of parliament. We have modified this to a certain extent via the constitutional council itself. That will ensure fairly independent people who are not affiliated to any political party and who cannot be influenced by any politician are appointed to the commissions to bring efficiency to the respective commissions.

Prof. G.L. Peiris drafted a new bribery Act at that time. But he made a mistake. There was no Bribery Commission then but a bribery commissioner. The commissioner had to investigate bribery and corruption charges and refer them to the Attorney General to take up them in a special bribery court. With the drafted act of Prof. Peiris, two retired judges from Supreme Court or Court of Appeal and a retired police officer should be appointed to the bribery commission. How do these three retired officers who have passed their prime age go behind the culprits? They only investigate if there are complaints, if not they would just occupy their seats in office. They will shut their eyes against rampant corruption although there is a mandatory obligation to discover the corrupt. Hence we need to have a versatile bribery commission like in Singapore and Hong Kong. We are the second signatory to the UN Convention on corrupt

 

Q: There is lot of criticism about the manner in which the 18th Amendment became law. What we can implement to prevent this happening again?

A: This is a valid criticism. The 18th Amendment is the cause of the just concluded Presidential election. If not President Mahinda Rajapaksa would have served the country for full six years till 2016. If not for this amendment the former President would have known when he has to exist from office. This is a badly advised amendment. I blame those responsible for not bringing some kind of restrain to this. The 18th Amendment limits Presidential term of office and also removes all positive features of the 17th Amendment.

If you take the Election Commission, under the 17th Amendment, the Election Commission has to hold free and fair election. The commission should comprise five members who will ensure conducting a free and fair election. They get lots of powers to issue instructions. From the 18th Amendment, number of members in the commission was brought to three and the president appoints them. Now even that three have not been appointed. At the end of the 18th Amendment there is a clause which says ‘if the President considers he may appoint a Deputy Commissioner or an Assistant Commissioner to function as the Commissioner who shall exercise the powers of the Commissioner. That is why Mahinda Deshapriya has got saddled with. He has to do a job that has to be done by the independent commission of five persons. That is the defect of the 18th Amendment.

If I am not wrong seven members have to be appointed to the Police Commission by the Constitutional Councils. These members are in charge of appointments, transfers and promotions in the police force. The IGP would be appointed on the recommendations of the Constitutional Council. Due to the 18thAmendment, the police commission has merely become a label. Now president appoints three or five members. But they do not have any power to appoint or transfer or promote but only to investigate complaints lodged by the public against the police.

The essence of the good governance brought through the 17th Amendment has been brought down from the 18th Amendment.

September 10, 2010 is the weakest day of our legislative in the country. It was the day the 18th Amendment was implemented.

 

Q: The 13th Amendment was necessitated due to a political need. What becomes of it in the amended constitution?

A: The 13th Amendment was brought as a solution to the war in the Indo-Lanka accord by President J.R. Jayewardene and Indian Premier Rajiv Gandhi. This has not been properly discussed and debated because it has been brought in a fairly urgent situation.

The devolution of powers is very important and useful. The 13th Amendment that has not been done properly, has not taken sufficient care to ensure the devolution taking place smoothly. It has not been done systematically. If you want to remove executive powers and bring good governance, by mixing that with devolution of power in the 13th Amendment, we will not get anything done. My view is first we should get good governance and remove the executive powers and then as a secondary measure, address other aspects of devolution of power under the 13th Amendment.

There are one or two sensitive issues that have to be tackled. Provincial Council structure must be merged with the government system. We have done this in the 19th Amendment where there are 25 ministers. Each minister is assisted by an executive committee. This committee comprises 14 members, of which 5 are MPs and nine are from the Provincial Councils. So the Provincial Councils also involves in running the ministries. Then there would be a better system of devolution of power.

 

Q: Are you concerned that the opposition has brought upon itself a time limitation in bringing the necessary reforms?

A: I am not in favour of time limitation. We should not sacrifice quality for speed. When you are put upon a time limitation, you may not address issues that are vital to address or you will address them haphazardly. Time limitation is a political slogan. I don’t think anyone will take these time limitations very seriously. No one has voted for President Maithripala Sirisena for the time limitation talked on the political stages but for some kind of change.

 

Q: As a former Chief Justice did you at any point feel that the Judiciary was politicized?

A: No, that was never there. By and large our judges have always stayed away from politicians. What happens is that matters in regard to perks have to be discussed with the President who is also the Finance Minister.

That is a very dangerous situation. Judges’ issues should be dealt by a separate parliamentary committee. Now judges have to go to the executive for benefits. They are also humans and that is why they go to the President for various benefits.

Judges should not hold any office after their retirement. There should be a limitation to that. Most of the Commissions can function without retired judges. However, they can perform an advisory role.

 

4 Comments for “Time Limitation, ‘A Political Slogan’”

  1. the formar chief justice, the new parliament will be remove all unconstutional amemdment from the constitution. majaority of members brought over by the goernment to vote for unconstutional constution, most of member.parliament were ingnorance of constution,100 ministers 100 dupty ministers paid by the tax money, the people of the country suffering for food and cloth, and medicine,mr Rajaapaska and m Gota was behind the seen,they muders moerthan 100000 thousant people.

  2. Amaris

    I don’t agree on a few points stating that the judges are not politicized.
    They are not only politicized, but are corrupt too.

  3. gamarala

    Sarath Silva failed to indict Mahinda Rajapakse in the Tsunami (Hambantota)Account case and approved ‘crossovers’ in parliament and laid the foundation for the Rajapakse military/police junta’s regime’
    Now on hindsight he has become a wise man.

  4. Naga Ramalingam

    Legal luminaries can always argue for and against a situation. It is always easy to talk in retrospect and analyse in a new perspective. J.R did what he did because of the situation in 1983, and in 1987. There were no other options.

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