Features
From abolishing the Senate to adopting a third new constitution
The 50-year Constitutional Odyssey:
by Rajan Philips
There are three infliction and, perhaps also, inflection points to this article. First, is the sequel to my article two weeks ago (Sunday Island, October 10) where I alluded to the possibility of Sri Lanka’s parliament restoring itself and changing the ways of the regime between now and the next elections. In a situation of unprecedented crises, changing the ways of the regime is more vital than waiting for a potential electoral regime change three years from now. That was my plea, if not contention. I did not write last week, so it is carryover business this week. It is also the first point of infliction on the always indulgent editor and the more ageing than ageless readers of English newspapers.
The second point emanates from the visit (also on October 10) by President Gotabaya Rajapaksa to the Gajaba Regiment Headquarters, at Saliyapura, Anuradhapura, to commemorate the 72nd Anniversary of the Sri Lankan Army. In his speech to mark the military occasion, President Rajapaksa included a promissory note on the Constitution, that he will be “bringing in (of) a new Constitution,” as he had promised in November 2019, and that it “will be delivered within the next year.” The President’s obiter of reassurance literally took away the wind out of whatever parliamentary reform sails that I might have been hoping to use for my unsolicited purpose.
The third and the most obviously inflexion point, thanks entirely to Dr. Nihal Jayawickrama and the article he wrote last Sunday (October 17), is the 50th anniversary of the death, on October 2, 1971, of the Senate of Ceylon at the young age of 24. It was death by legislative euthanasia, brutally premature at so young an age and for a body that bore no incurable ill. It was a rather bad riddance of a good body.
Dr. Jayawickrama’s commemorative piece is quite remarkable at many levels. He neither asserts that the Senate deserves what it got, nor is he patently critical that it was put down at all. He is fair in his account of the purpose for which the Senate was created and the manner in which it played its constitutionally assigned role despite its lopsided composition and nominating procedure. He does not cite Sir Ivor Jennings’s scholarly cynicism that an unelected Senate can only be either “mischievous” (when it goes against the elected House) or “superfluous” (when it passes what has already been passed by the House); nor does he refer to Dr. Colvin R de Silva’s forceful contention that the Senate that “frustrates the will of the people” was one of the “five major defects” of the Soulbury Constitution.
That contention alone was enough to indicate the Senate’s fate in the new constitution that was being prepared by the United Front government. What came as a surprise at that time was the manner of the Senate’s riddance by an amendment to the Soulbury Constitution rather than through the new constitution. What struck me in the story of that riddance recounted by Dr. Jayawickrama was the pattern of disownment by all the key players in the parliamentary drama that began with a Bill to amend the Soulbury Constitution to save the SLFP MP for Ratnapura, Nanda Ellawala, from expulsion over a conviction and imprisonment, and ended with a Bill to amend the same constitution to abolish the Senate. To wit, Dr. Colvin R de Silva who introduced the first Bill in parliament, in July 1970, made it a point to ‘disown’ the bill by indicating that the Bill had been drafted in the Ministry of Justice and not by ‘his’ Ministry of Constitutional Affairs. And the disclaimers continued even as the Senate was let to die.
Committee of Experts
Nihal Jayawickrama’s article also provides a foil for contrasting the current urge to create a new constitution with the circumstances 50 years ago when Sri Lanka began its long odyssey of constitutional makeovers. No one would have thought then that it would come this far and could go still further. His intervention is particularly striking because he might be the only person alive who was closest to the making of the First Republican Constitution of 1972. He is also expertly familiar with the genesis and entrenchment of the 1978 Constitution. And perhaps the only other constitutional scholar of the same vintage is Prof. Savitri Goonesekere. If I am not mistaken, I do not think there is anyone alive today, who was associated with the making of the 1978 Constitution.
On the other hand, and I do not say this to be uncharitable, in President in Gotabaya Rajapaksa, we have the first Sri Lankan to become the most powerful person in the country with the least familiarity with anything constitutional. And it gets worse. In 1970, Parliament was the master of the country’s constitutional destiny, not only by representation but also by virtue of its legal luminaries. The finest legal minds in the country were in parliament, with the House and the Senate combined. Today’s parliament is not only bereft of talent, but is also powerless in spite of the government’s two-thirds majority. Worse, it is totally sidelined from the making of the new constitution.
That task has been outsourced to a committee of experts none of whom are in parliament, or ever held any elected office. Without tracing the bio-data of individual committee members, I will not be too far off the mark to suggest that with the exception of Prof. GH Pieris, all the other members of the committee would have been in their early twenties at most when Sri Lanka began its constitutional odyssey in 1970. If they were all kids then, they would do well to read Dr. Jayawickrama’s article on the Senate and reflect on what they are about to do now as grownups in creating a new constitution for President Gotabaya Rajapaksa.
If they are also keeners, and they ought to be so to be considered ‘experts’, it is reasonable to assume that they would have by now had some discussions with Dr. Jayawickrama to benefit from his experience and expertise. If not, it’s a shame. It is a travesty that this government is hellbent on creating a new constitution without consulting with or getting advice from people like Prof. Savitri Goonesekere or Dr. Nihal Jayawickrama. Travesty though it is, it should not come as a surprise to anyone considering the way the government availed itself of expert advice on Covid-19.
The impetus for the constitutional change in 1970-72 came from a side remark (obiter) in a 1964 Privy Council ruling that highlighted the legislative limitations of the Sri Lankan (then Ceylon) parliament. Although the contentious Privy Council obiter had been around since 1964, it became a political issue in parliament only in 1969, and it became an election issue in the April 1970 elections. The landslide victory of the United Front Parties in 1970 and the appointment of Dr. Colvin R de Silva as Minister of Constitutional Affairs eventually led to Sri Lanka becoming a Republic with a new constitution in 1972.
The inspiration for the 1978 constitutional overhaul came almost entirely from JR Jayewardene’s idiosyncratic liking for a presidential system of government. He was fortuitously able to use the flexibility of the Colvin constitution to create a far more rigid constitution predicated on an elected executive presidential system. He was also fortunate in getting to be the country’s first and only executive president without an election. Ever since, the constitutional debate has been about abolishing or significantly modifying the presidential system. Until now. And nobody knows why there should be a new constitution now to continue the same presidential system.
Why a new constitution?
Do the members of the experts committee know why Sri Lanka needs a new constitution? Other than the reason that President Rajapaksa wants to have one to show that he kept his promise that no one paid attention to. Going by some of the reasons for a new constitution provided by self-proclaimed patriots and nationalists, Sri Lanka needs a new constitution to enshrine its civilizational heritage. Its greatest heritage, Buddhism, needs no textual enshrinement by a committee of worldly experts. Constitutionally, or textually, does it mean that Chapter II of the Constitution will be expanded to fill a whole page instead of the four and half lines there are now? How will that ennoble an already great and noble religion, or edify its faithful followers?
A starkly different reason is apparently to constitutionally enshrine the implications of the 2009 war victory over the LTTE? How is that going to be textualized; in the preamble or Svasti to the current Constitution? Will it be before or after the assurances about Human Rights and the Independence of the Judiciary, in the preamble, that is? Is the purpose of enshrining triumphalism to ward off outside calls for investigating war crimes allegations? How can new constitutional provisions prevent anybody from saying or doing anything outside the country? Can a new constitution prevent another Easter tragedy, or will it unpack secrets of the last one? Cardinal Malcolm Ranjith is in no mood to trust any this-worldly Sri Lankan government or leaders. He is warning about curses and he is calling for divine intervention by the God of Israel and is looking for intercession by the silver-tongued Saint of Padua.
When the debate was about abolishing the presidency the counter-argument was that the presidency must be retained to check and contain the devolved provinces. The key players in the current Administration including President Rajapaksa himself were strong proponents of abolishing the Provincial Councils and rescinding the 13th Amendment. Now there are no active Provincial Councils to abolish as they are all dissolved. And with the government’s two-thirds majority the PCs can be abolished the same way the Senate was abolished 50 years ago. There might be a snag though if the courts were to say that Provincial concurrence is needed for their abolishing even though no concurrence is needed for their indefinite dissolution.
Surprisingly, or not, the government is now keen to go ahead with the Provincial Council elections as soon as possible, with or without a new constitution. Several reasons are being touted for this new shift. India’s hand in this is apparently not so hidden.
Second tier SLPPers are said to be getting restless without provincial offices and perks, and they need to be rewarded and kept contented. Third, a chief characteristic of Rajapaksa politics is the restless urge to keep validating themselves by constantly calling elections in the hope of winning them all the time. Their public support is said to be at its lowest point in the 16 years since they first hit the presidential jackpot in 2005. But they know it is better to test the pulse early and consolidate themselves before things get “worser and worser” as Muhammad Ali used to say. Finally, Provincial Council elections could be a trial run for a referendum that will be necessary for adopting a new constitution.
So, one needs to go back to the Committee of Experts and ask them – which of these reasons do they find to be so compelling as to devote their efforts and energies to producing a new constitution? It was the arrogance of two-thirds majority power that precipitated the abolishing of the Senate in 1971. Fifty years later, there is no palpable arrogance in spite of power, but there is great potential for its abuse out of abundance of ignorance. The question to the Committee of Experts is whether they are going to be aiding and abetting a potential abuse of power in creating a new constitution?
To circle back to the first point of infliction that I started with, it would be a fool’s paradise to discuss parliamentary reform when the government’s priority is to swing the constitutional wrecking ball at parliament and everything else that is still working in Sri Lanka. We can only wait and see how extensive the wreckage is going to be before talking about any reform. What if some or all in the Committee of Experts want to have no part of this wreckage and honourably excuse themselves from the Committee? Stranger things have happened.
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
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