19th Amendment: Vendetta Against the Rajapaksas

By N. Sathiya Moorthy | Published: 2:00 AM Oct 27 2020
Columns 19th Amendment: Vendetta Against the Rajapaksas

By N. Sathiya Moorthy

After a difficult pregnancy, the ‘precious baby’ had a normal delivery. The passage of the 20th Amendment, after twists and turns, Supreme Court determination and Government-sponsored amendments, has all the making of a ‘difficult pregnancy, easy delivery’ story. The fact that it became possible only after President Gotabaya Rajapaksa’s personal intervention and promise to ministerial allies like Vasudeva Nanayakkara, Udaya Gammanpila and Wimal Weerawansa augurs well for healthy internal debate within the Government, and hence the future of democracy, in the country.

Sri Lanka has a healthy way of handling constitutional amendments of the kind, and other democracies can learn from it. The way the Supreme Court’s determination could be sought and obtained before Parliament votes on it means that only implementation issues need to be addressed by the judiciary if and when Parliament votes a Constitution Amendment Bill into law.

This is a procedure that other Nations like the larger Indian neighbour, the world’s largest democracy, could consider for possible adoption. In India, for instance, the higher judiciary can adjudicate on the legality and constitutionality of any legislation, including constitutional amendments, only after it is passed into law and the President had given his assent. Even then, such adjudication should flow from operational issues affecting the petitioner (at least in most cases, who needs to justify his ‘locus standi’, if challenged.

Of course, given India’s size and population, the Founding Fathers had thankfully spared the Nation procedures such as ‘public referendum’ of the Sri Lankan kind. In the case of 20A, the Government has thankfully abided by the Supreme Court determination on empowering the President to dissolve Parliament after one year of its five-year term. It is another matter why no one had challenged this dubious and draconian provision through the past decades.

What more, under the Sri Lankan scheme, the enactment becomes law when the Speaker affixes his seal and signature. There is no role in it for the President. This underscores the democratic dictum that the supremacy of the people’s sovereignty lies in Parliament and that the Executive President is the ‘executive arm’ of the democratic State structure. Symbolic as it may seem, there is a lot of meaning in such democratic symbolism.

Numbers game

At the end of month-long tensions that at times threatened the Government’s ability to muster the required two-thirds majority, 20A obtained a higher 156 votes in a 225-member House, six votes more than the Government combine’s total of 150. That’s after former President Maithripala Sirisena stayed away from the House and the vote, after writing to President Gotabaya and Prime Minister Mahinda Rajapaksa.

Interestingly, the most controversial of all amendments, on which President Gotabaya had to meet with his ministerial colleagues on the day of voting, obtained a high 157-64 votes, at third, committee-stage reading. The President’s reported promise to remove the clause when a new Constitution is brought up in about a year’s time, did the trick.

Six Opposition MPs had voted in favour of 20A as a whole has a future story to tell about party loyalty and defections. According to Media reports, the ‘defectors’ comprised Opposition MPs Ishak Rahuman, M.S.Thowfeek, H.M.M. Harees, Faizal Cassim, A. Aravindh Kumar, National List MP Dayana Gamage, Diga Naseer Ahamad and A.S. Raheem.

Now, there are greater chances of some of the existing constituents of the SJB-led Opposition combine crossing over the join the Government party. When the name of the Sri Lanka Muslim Congress (SLMC) came to be freely mentioned after their high-power committee meeting weeks back, the speculation is that the other Muslim party, also with five MPs, namely, the All-Ceylon Makkal Congress (ACMC) had to pull back.

The ACMC issue was over the arrest of party leader and former Minister Rishad Bathiudeen, in the ‘Easter serial-bomb’ case. The serial blasts was a high-point in the ruling SLPP’s Election campaign even months before the Presidential Poll last November. It was also President Gotabaya’s poll vehicle independent of the greater popularity of elder brother Mahinda Rajapaksa, who is the single most popular politician in the country.

Responsibility sans authority

Yet, there is no denying the official SLPP position, as echoed by Party Chairman G.L. Peiris, that 19A conferred responsibility on the President without authority. It’s how it turned out to be under the previous Sirisena-Wickremesinghe regime, despite having authored the controversial Amendment. The problem lay in their personal attitude towards each other. Despite larger principles of governance, 19A took away the Executive’s powers over appointments and dismissals for some of the most important positions in the State structure.

It is a basic tenet of administration and also management that the appointing authority should have the powers to regulate the functioning of the appointee – even while having to shoulder the political responsibility for such appointment and working. The case of Inspector-General of Police, Pujith Jayasundara, inexplicably arrested in the ‘Easter case’ is a case in point.

President Sirisena could not sack him, whatever the reason. Rather than making him go to Court, challenging the removal, now the Sri Lankan State, and by default and extension, the directly-elected President, have been forced to respond to his accusations. A travesty this of the constitutional scheme, especially of the Executive Presidency kind.

Even otherwise, it was a Ranil Amendment, where he sought to ensure that no Rajapaksa would be able to contest the Presidential Polls five years after 2015, when 19A was passed. Thus, the two-year upper-limit for Presidential term from the previous 18A was restored, to deny Mahinda R another chance.

President Gotabaya and Basil Rajapaksa were sought to be denied an opportunity to contest the Presidency by introducing the ‘dual citizenship’ rule. If President Gotabaya made the re-introduction of the ‘dual citizenship’ rule under 20A a personal prestige issue, the seed may lie here. Then of course, there is the minimum age, up from 30 to 35 years, to deny young Namal Rajapaksa, son of Prime Minister Mahinda a chance to contest the presidency in 2019. What a statesmanlike foresight, did you say!

Antagonistic arrogance

Even as a part of their party’s twin poll manifesto, the Rajapaksas can be expected to make good their promise of a new Constitution.  President Gotabaya has already appointed a committee to draft a new Constitution, with a six-month deadline for the team. The Government has since invited suggestions and proposals from the people for the purpose.

In his interaction with ministerial colleagues on the ‘dual membership’ clause in 20A, President Gotabaya is reported to promise a new Constitution within a year. Given that the Government has the numbers and also full five years, the chances of the Nation having a third Republican Constitution are greater than under the previous regime.

Then, despite the promises of Prime Minister Ranil Wickremesinghe and despite the hopes frequently triggered by TNA Pparliamentarian M.A. Sumanthiran, the Government was only using a new Constitution promise to pull wool over the eyes of the TNA and the Tamil constituency. Barring the two, especially Sumanthiran, not a soul in the Government camp spoke of an impending Constitution, after the statutory first round – whether inside Parliament or outside.

It is then that a national discourse/debate will commence on some of the core and basic issues, say, on the ‘Unitary Status’ of the Sri Lankan State and institutions. A corollary could be, or should be, to see if a Unitary State is possible with more powers for Parliament, something that the Sirisena-Wickremesinghe duo attempted half-heartedly and with a personal / personalised agenda.

Such a personal agenda did not stop with denying the Rajapaksas their possible due. It included a word-play over the intended power-play that the two hoped to play against each other through the following years, together in office. Sirisena’s creation of twin-constitutional crisis, end-2018 belonged there. So did Ranil’s successive attempts at belittling the President of the nation, as he had done with Chandrika-Bandaranike Kumaratunga, until she was forced to sack him in 2004, two years before due.

The Kumaratunga-Wickemesinghe experience should show that despite being an Executive President, the Head of State, in whose stamp and authority, all arms of the Sri Lankan State, including the armed forces, functioned, had no authority viz-a-viz a Prime Minister with a parliamentary support and strong political acumen. Even with the one year rule for the President to dismiss the Government, dissolve Parliament and order fresh elections, Wickremesinghe did not ‘behave’.

This one went on to disprove the beliefs and claims, including those of the Rajapaksas and Peris’ about the real role and powers of the Executive President in a unitary State structure. No one can take away the inherent powers of the Prime Minister, nor should anyone be able to neutralise the presidency, whether or not it is an Executive Presidency, still.

At the end of the day, parliamentary democracy is all about the strength of personalities, and not of institutions – and their ability to win elections and retain power. Here, Wickremesinghe thought he had it in 2004, but did not remember that he had it even with a rival party President at the time, when he returned to that very seat in 2015. So, he needed to reinforce or formalise his forgotten antagonistic arrogance under the law. Hence, 19A.

At the time, the answer would have been in the negative if President Sirisena had thought that he could likewise play around with 19A. Wickremesinghe granted some concessions to the Presidency at the time, not because he was a lover of true democracy, but the abolition of the so-called Executive Presidency would have involved a referendum, which he was not willing to face.

The reason was obvious. Outgoing President Mahinda having polled 47 per cent vote-share even when he lost the 2015 polls – and there was a possibility of anti-incumbency tilting the scale against him, with the additional three or four per cent. There is a lesson in all this for the Rajapaksas, too.

The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: [email protected]


By N. Sathiya Moorthy | Published: 2:00 AM Oct 27 2020

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