The Sunday Leader

We Are Looking At A Mutually Beneficial System – Wijedasa Rajapaksa

The third and final reading of the19th Amendment to the Constitution at the committee stage was passed in Parliament with a two-third majority last week completing the passage of the bill. The bill was passed with 212 votes in favour and one against in the 225- member legislature, to slash the powers of the Executive Presidency and to limit a President’s terms. However speaking to The Sunday Leader, Justice Minister Wijedasa Rajapaksa said that the process to pass this bill was no walk in the park. He said that until the last moment no one ever imagined that it would be passed so convincingly. However he said that in the face of grave uncertainty, the government took the decision to go for it in spite of all odds and it was a relief and a blessing that they had finally achieved this historic victory

Following are excerpts of the interview:

By Camelia Nathaniel

 

Q: Can you explain what the 19th amendment is?

A: Law and order could not be safeguarded within the country through the establishment of the executive presidency. As a result there were many riots in the south and a resulting revolution that cost many thousands to lose their lives. In the North racial tensions escalated which turned into a bitter 30 year war. However there were no answers to any of these situations within the executive presidency. Eventually the only thing that happened was that due to the extensive powers of the executive presidency this country experienced dictatorship and family bandism. This trend varied according to the greed, level of knowledge and ethical behaviours of all those who held this position. However in comparison with the past leaders who held this powerful post, the situation simply veered totally out of control during the Rajapaksa era.

Chandrika Bandaranaike pledged to abolish the executive presidency which was a curse to the country, within six months in 1994. However the situation escalated and the boiling point was when President Mahinda Rajapaksa passed the 18th amendment to the constitution.

It was at that point that as political parties, civil organisations, religious leaders and all agreed that this immense amount of power in the hands of one person was not at all good for the country. It was then that the decision was taken to take the power off the hands of just one person and vest in with various institutions so that no single person has complete control. However some ignorant parties spread false rumours that we were trying to create an executive premiership in the process.

However a good part of the presidents powers have now been given to the cabinet and another portion to the prime minister and another section to parliament and another part of the powers were given to the ministers in parliament and constitutional committee comprising three civil society members. Through that the judiciary, state sector police and other governmental organisations were given the ability to function independently. The 19th amendment was implemented with the sole intention of redeeming the state sector including the police and the judiciary from the dictatorial grasp of the executive presidency, to function independently.

 

Q: However there are allegations that by pruning the executive powers of the president, it could have adverse repercussions to the country’s sovereignty and national security is at stake. How true is this?

A: The shortest answer I could give regarding these allegations is that this can only be the interpretation of those who do not have the slightest knowledge of the law or constitutional process. This will definitely not have any adverse effect on the national security or the country’s sovereignty.

What will happen though is that it will prevent any religious, racial clashes or other issues that will jeopardise the law and order of the country. These allegations are simply made by these ignorant parties, but what will happen is just the opposite.

Now what is taking place is that the law enforcement and all other key institutions are manipulated by the executive presidency, and they are not allowed to function independently. However with this new system, these institutions can function smoothly without the interference of anyone.

Q: However some believe that this new change will take away the powers of the president to appoint the head of the police and thus will not have control of the institution in the event the country faces a volatile situation. What is your take on this?

A: The president need not appoint the IGP, the normal process of appointing those suitable to the position will take place and the police will take care of such situations when required. However in order to safeguard National security, the president need not have total control over the police. It when he has that power, that it is misused for personal intentions and to control and suppress their rivals.

The whole purpose of implementing the 19th amendment was to stop the president from using his powers to appoint the IGP and manipulate the police to stifle the people. This was very clear in the incident where the former president brought in his people and murdered many people in cold blood. This happened because of the absence of a commission. When a police commission is established these sort of people will not have the opportunity to get appointed.

The whole system in this country had deteriorated to such an extent that if the executive presidency felt that he needed to appoint the man who washes his dishes at him home as the Chief Justice, under the former system the president had the power to do that undisputed. That is what we wanted to put an end to. We have witnessed in the recent past how the person who was appointed as the manager to control 1500 vehicles under the presidential secretariat was none other than the president’s driver.

 

Q:  In the event of a situation of national security, what will the process be now with the new constitutional amendment?

A:  The state leader is still the president. However in matters of national interest the head of state will take collective decisions through the cabinet and not single handed decisions based solely on his whims and fancy.  No one can argue that this system of collective decision making is not in the best interest of the country.

It was due to the single handed secretive decisions of the former president that he betrayed the country, through the agreement that was secretly signed on the 23rd of May in 2009 with Ban Ki Moon. The UN was unable to bring in war crimes charges against the country thanks to Ranil Wickremesinghe because Sri Lanka rejected the Rome statute.  However Ban Ki Moon took advantage of the situation when all leaders of the country were ecstatically celebrating the war victory, and arrived in the country secretively and signed the document using the clauses of the 12th paragraph of the Rome statute, knowing that the Rajapaksa regime was following a hot headed arrogant policy. Moon arrived in the country within 48 hours and got the document signed secretively with Rajapaksa without the consultation of the cabinet and he left within 72 hours. This is how the Dharusman report came about.

Had the president consulted the cabinet before making such a decision at least one person in the cabinet who knew the law would have warned him of the consequences.

Moreover if one argues that taking away the executive powers of the president will jeopardise national security, then take for instance India and England, their national security is not determined by a president who has executive powers. Winston Churchill did not win the war because he had absolute power. This accusation is just a myth by those who try to gain power and prominence through hoodwinking the people by such baseless and silly statements.

 

Q:  If these commissions that will be appointed decides to take matters into their own hands then what course of action will you take?

A: These commissions will be answerable to the cabinet at all times. In fact our original proposals to the 19th amendment contained clauses on how to deal with such situations, through provisions that exist in parliament. However the angle of which each parliamentarian looks at a particular issues is different and they suggested that we include it in the constitution. Hence as we are always flexible we agreed to their recommendations.

 

Q: There are also allegations that the 19th amendment that was eventually passed was totally different to the one that was originally proposed. Is this true?

A: If that is the case let them point out what the differences are. We have achieved what we wanted. However by saying we I do not refer to the UNP or the president or the prime minister. But I mean the country as a whole.

Our 100 day program was intended to carry out the constitutional amendments that did not require a referendum. After 10 years this time the Supreme Court was able to take a decision (right or wrong) without any interference. Therefore we respected that and removed five sentences in the document.

 

Q:  Isn’t there an issue with the constitutional council consisting of seven MP’s who they say is a politicisation of the independent commissions?

A:  What really happened was  that after the enactment of the constitution the weakest government that we had in Sri Lanka was Chandrika Bandaranaike’s government  2002 when  a group comprising S.B. Dissanayake and Bandula Gunawardena left and she had to get the support of the JVP for her survival. During that period this constitutional council was introduced through the 17th amendment. In that amendment this was the composition that prevailed. When the 17th amendment bill was referred to the Supreme Court, the Supreme Court had determined that it was constitutional, and no referendum was required. Therefore it had been adopted and it had worked for sometime but was disrupted violating the constitution by Mahinda Rajapaksa. When we reintroduced the same thing through the 19th amendment, because it had already been adjudicated by the courts, finally we being a government consisting less than 1/3rd in parliament, we had to convince all the other in order to get the 2/3rd that was required. For that purpose we came to a compromising stand on the basis that when they wanted all ten people to be from the parliament, we discussed the issue several times and came to a compromise. In terms of that compromise we had a choice between allowing the whole 19th amendment to be defeated or at least get this much. As a result it had to be diluted to a certain extent to prevent the whole thing from being discarded.

However we do not reject all the recommendations that came from the opposition as there was a truth in their argument as well. The repository of the public power, the sovereignty of the people is the parliament. As such there was some sensible argument there. Hence we decided to let parliament have the majority, and the minority from the civil society. I think this work in a positive manner. However in the event there are glitches and it is not functioning as intended; the parliament has the power to change the law at any time.

This is the first time since magna carta, that a party with such a small parliamentary composition was able to bring about a constitutional change that has immense benefits for the people. Secondly this is the first time that a President with such powers was willing to relinquish his powers for the benefit of the country.

 

Q: You had said earlier that the powers of the president would be subjected to an interim period. Can you explain this?

A: We included a clause that suggested the president be given the national security and Mahaweli and environmental authority for an interim period. However five sentences that were included in the constitutional amendment, was determined by the Supreme Court that it could not be included without a referendum. Hence when you remove those clauses, the president becomes that head of state and executive. Hence he possesses those powers.

 

Q: Will the current president still hold onto executive powers until the end of his term or will the changes be implemented right away?

A: The changes have already been made. According to the new changes the implementation was to take place with effect from the 30th of April. However since there were several hundred amendments that were introduced, we took four hours at a stretch to include these amendments. Therefore the final draft has to be made incorporating all these amendments. This cannot be done by the 30th and therefore it will take a few more days. From the moment the final draft is tabled and the speaker places his signature on it then the changes will come into effect.

 

Q:  Now with the immunity of the president being taken off, can you explain on how it works?

A:  This is a very important clause as many state leaders worldwide have immunity. The danger in the previous system was that as the head of the executive the president had the right and power to take all decisions. However in other democracies such as the US, although the president is a very powerful position he has no power over the judiciary unlike our country. However under the new amendment, once the powers of the president are diluted among other institutions he is left with only limited powers. Hence with the new amendment a decision taken by the president cannot be challenged by a lower court but it can be challenged by the highest court.

 

Q:  Why were the electoral reforms not included in the 19th amendment?

A:  Had we included that as well we would not have achieved anything. We will bring in these reforms at a later date and in this regard we have held so many discussions and will continue them until we can all come to an agreement that is satisfactory to all parties.

We have even studied in depth the electoral systems of many countries to see if we could incorporate anything from them into our reforms. However so far there are issues that have arisen and as such we are all still trying to work out a mutually beneficial system.

1 Comment for “We Are Looking At A Mutually Beneficial System – Wijedasa Rajapaksa”

  1. DAGGY

    “We Are Looking At A Mutually Beneficial System – Wijedasa Rajapaksa”
    You should have told that to MR when he was in power instead of attending birthday parties of Pitiduwe hamuduruwo your village man.

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