Comprehending the puzzles of 19th and 20th Amendments

Friday, 25 September 2020 00:01 -     - {{hitsCtrl.values.hits}}

Misappropriation of State property by ruling parties, which consists of representatives (Presidents, Ministers and Parliamentarians) elected by public vote to govern the country, can be considered as one of the main reasons of the dismal failure of Sri Lanka as a country. It is always the ruling party in democratic countries that acts as temporary 

custodian of public property owned by the State concerned.

Public property is an important source of revenue for the Government; and the proper administration and utilisation of public property in a way that they are used to cater not only to meet the present needs but also to protect them for future needs can be considered a main socio-political responsibility of the trustees who are assigned to manage them. 

In Sri Lanka the administration of public property remained at a satisfactory level until 1978. The policies and laws applicable to administration of public property were in force, and were efficiently implemented. 


The reality of the law 

It is important to note that the misappropriation of public property served not only as a constraint on persons contesting parliamentary elections, but also was considered a disqualification in being elected as Members of Parliament. The legal provisions in regard to this disqualification were stipulated in the Article 13 (3) of Soulbury Constitution of 1948, which is quoted below. 

Quote “A Person shall be disqualified for being elected or appointed as a Senator or a Member of the House of Representatives or for sitting or voting in the Senate or in the House of Representatives if he, directly or indirectly, by himself or by any other person on his behalf or for his use or benefit, holds, or enjoys any right or benefit under any contract made by or on behalf of the Crown in respect of the Government of the Island for the furnishing or providing of money to be remitted abroad or of goods or services to be used or employed in the service of the Crown.” Unquote 


President Jayewardene conferred on himself the ownership of public property which was under his custody. Also, he awarded them to his family members, cronies and close friends. Doing this was against the law of the land, but he had no reason to fear the law because the Presidential immunity protected him from all what he did 


Polluting the system 

After establishing a Presidential System of Governance, President Jayewardene wanted to overthrow the previous system which had been guarded as a sacred precept by the democratic world; and which he did. But, he did not change the existing law applicable to misappropriation of public property. Instead; he overlooked the enforcement of law against the MPs who violated the law on public property. 

He allowed MPs to acquire valuable government land illegally. This gave them the opportunity to become landed proprietors and planters. Apart from that, MPs were allowed to transact business with the government. As a result, MPs became contractors doing business with the government, and some became businessmen under state license.

President Jayewardene conferred on himself the ownership of public property which was under his custody. Also, he awarded them to his family members, cronies and close friends. Doing this was against the law of the land, but he had no reason to fear the law because the Presidential immunity protected him from all what he did. 

Although President Jayewardene enacted a new Constitution in 1978, new laws had not been introduced to superimpose the provisions of Article 13 (5) of the Soulbury Constitution; and the 1978 Constitution stipulates that the Sri Lanka Parliamentary Elections Royal Order 1946 will remain in force until new laws are enacted to this effect. Therefore Article 13 (5) of the Soulbury Constitution is still valid and in force in this regard. 

Despite the fact that President Jayewardene had introduced a tradition that allowed parliamentarians to transact business with the Government which was contrary to the law and the accepted democratic traditions and norms, there were instances in which it was challenged. The incident in which Albert Silva who contested the Galle electorate from the UNP at the 1977 General Election, and was elected to the Parliament, and was later deprived of his seat on a court order on the ground that he possessed a kerosene license issued by the government, can be cited as a good example in this case.

As this Court order contradicted the policy pursued by President Jayewardene regarding the Members of Parliament, shortly after announcing the court decision on the election petition, he persuaded the Member of Parliament for the Kamburupitiya electorate to resign from his seat and appointed Albert Silva as a Member of Parliament filling the vacancy created by the resignation of the MP for Kamburupitiya. 

It is obvious that even after that court ruling the President did not have intention to reverse the corrupt system he had introduced. Yet, no one had bothered to file a court case challenging the action of the President in reinstating Albert Silva as an MP again. Strangely, there was no strong protest against it from anyone either.


The real truth of 19th and 20th Amendments

The successors of President Jayewardene also continued this corrupt system created by him adding new elements to it. It ruined not only the apex of the system but the entirety of it. It can be presumed that all the political parties represented in Parliament might have had an implicit pact in defending this corrupt system. 

Although this corrupt element that President Jayewardene had added to the system could be considered as the main factor that has led to corrupt the whole system, the activists who advocate systemic reforms have not appeared for the need to remove this corrupt element. The amount of money that the treasury could have saved by removing this element alone can be enormous. Unfortunately, the pioneers of the 19th Amendment ignored it. Similarly, the pioneers of the 20th Amendment also, will not appear for it. 

The 19th Amendment was attired in democratic garb which appeared soft and smooth while the 20th is dressed in a dictatorial robe which has a coarse look. Despite the difference, both can be considered pickpockets. The pickpocket attired in democratic garb, snatched the wallet by enticing the owner so that he cannot apprehend the cheat. But the behaviour of the pickpocket in a dictatorial robe is different. He puts a sharp knife to the chest of the owner and snatches his wallet by force while the victim is watching it, helplessly. Now, for some time, Sri Lanka is compelled to live with the latter.


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