Why I didn’t vote for the 21st Amendment

Rear Admiral (Retd.) Sarath Weerasekera, RWP, VSV, USP

I owe a duty to the Public to explain why I voted against the 21st amendment. I opposed the 19th amendment then for the same and even more reasons than I opposed the 21st amendment. The Hambantota Port was given away without calling for tenders by the previous government. The National Procurement Commission created by the 19th amendment could not save our valuable port in Hambantota or ensure we get the right price for it. It appears that neither the government nor the opposition is serious in ensuring that procurement and investments are done after competitive bidding.

The chapter dealing with National Procurement does not relate to investments but only to procurement of goods and services. The chapter itself does not ensure compulsory calling of tenders at least in major procurements. Procurement or selection of prospective investors are not covered by this chapter.

Investors are invited by private agreements without competitive bidding. The public demand a “system change” to effectively control the disposal of public resources by private agreements. One would have expected the government to at least amend the chapter on National Procurement in the 19th amendment to cover investments so that strategic resources are not given away by agreement whilst ensuring that no major procurement is permitted without calling for tenders.

However the focus of the government was not for a “system change” but to restore the flawed system that existed under the failed Yahapalana Government. The 21st amendment sent home all the commissioners (appointed under the 19th amendment and the 20th amendment) presently functioning, in the same way J.R. Jayawardene government sacked the Supreme Court Judges in 1978. (vide Transitional Provisions of the 21st amendment).

What was the real reason behind this move? The government wants to fill these commissions including the Election Commission and Public Service Commission with people of their choice. (It is important to note that always majority of the members of Parliamentary Council or Constitutional Council consist of Government members). This is exactly what we need to avoid making political appointments to public office.

We have through the 17th to 20th amendments replaced the public servants in important positions with political appointees. Hitherto the Commissioner of Elections except in few instances was appointed from among career officers of the public service. A senior public officer in the Department of Elections (or other department) was promoted to the post of Election Commissioner who was responsible to conduct free and fair elections.

There were no major complaints against respected people like Mr. Felix Dias Abeysinghe, Mr. Chandananda de Silva, Mr. Dayananda Dissanayake who rose from the ranks. What did we do with the 19th amendment? We have replaced career officers of the public service with “Commissioners” appointed to National Elections Commission to conduct elections. These Commissioners are appointed not from the public service. They are appointed by politicians in Parliament through the so called Constitutional Council or Parliamentary Council.

We know how the Prof. Hoole behaved whilst he was a member of the Election Commission. The Election Commission in which Mr Hoole was a member, could not agree on a lawyer to represent them before the Supreme Court, Prof Hoole appointed his own lawyer whilst the rest of the Commission members nominated another – what a joke it was.

Previously Bribery cases were filed by the Attorney General. This was replaced with a Bribery Commission, appointed by politicians. The former Bribery Commissioner Dilrukshi Wickramasinghe’s confessions revealed how politically biased the Bribery Commission was. What we need is an independent public service and not commissions appointed by politicians with a false “independent” label. They are far from independent.

How do we do this? Firstly we should constitutionally guarantee that public officers are appointed and promoted only on merit. Secondly we must protect them from illegal or improper orders given by politicians by ensuring that they cannot be removed by politicians without a proper inquiry. All appointments to the public service must be made through an independent Public Service Commission and their tenure must be protected in the same way the judges are protected through Constitutional provisions. That way we can have a system change devoid of politics.

I can’t see why we cannot have free and fair elections conducted by an Elections Commission from the public service or criminal prosecutions initiated by an independent Attorney General and officers of his department appointed by the PSC instead of by politically motivated commissions. There is an important difference between a public officer who conducts an election in his capacity as the Commissioner of Elections and an Elections Commission appointed by the Parliamentary Council (or Constitutional Council).

The former is subject to disciplinary control whilst the latter is not. A career officer will never sacrifice his career, reputation and pension. A member of a Commission has no such fears. I too am in agreement that politicians should not be dual citizens. This is primarily due to conflict of interest as the political pressure another nation may exert on a dual citizen MP.

The 19 A and 21A deny dual citizens the right of entering parliament. However, the Election Commission, in spite of duea citizen clause in 19 A, did not ensure no dual citizens were allowed to contest the August 2020 General Election. Mrs Geetha Kumarasinghe’s honesty cost her her seat when she declared that she was a dual citizen.

Other MPs who were dual citizens hid their dual citizenship and the so called ” Independent Elections Commission” did not bother to use 19 A to demand candidates to declare they were not dual citizens. Also it should be mentioned that constitutional amendments are politicized. The 19 A was brought to prevent Gotabaya Rajapaksa contesting presidential election whilst 21 A was brought to prevent Basil Rajapaksa running for parliament.

What is clear is all constitutional amendments have political agendas behind them and are not in the interest of the country or its people. The mandate received at the last election was for a new Constitution and not tinkering with the existing Constitution. A new Constitution has already been drafted by an expert committee consisting of experts such as Romesh de Silva PC, Manohara de Silva PC etc. They have handed over their report to the President. Therefore I cannot understand why we are tinkering with the existing Constitution, without tabling the draft Constitution prepared by them.

The country can make whatever amendment necessary. The reluctance to do so appears to be for no other reason but resisting the system change it has proposed that will minimize corruption and abuse of power.