1 December, 2020

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19 A: A Constitutional Cyanide Capsule

By Dayan Jayatilleka

Dr. Dayan Jayatilleka

Dr. Dayan Jayatilleka

The 19th amendment is quite seriously flawed in terms of (a) definition (b) process and (c) content.

It is flawed, indeed false, in terms of its definition, because an amendment which repeals whole sections of an existing Constitution and moreover changes it from a presidential to a parliamentary system is not an amendment. It is an abrogation disguised as an amendment. One cannot help but wonder at the subterfuge.

The 19th amendment is flawed in terms of process. Surely a change as drastic as this requires a period of transparent deliberation in the parliament, followed by a nationwide referendum? Why is this sought to be bypassed?

The 19th amendment is most seriously in error in terms of its content. In any country in which the President is elected by the people, by the nation taken as a whole, it is the single most powerful institution in the land. This is because it is the broadest most authentic repository of popular sovereignty. Flying in the face of this democratic principle, the 19th amendment transforms the executive presidency into one which has to always function on the advice of the Prime Minister, therefore transforming the Prime Ministership, which is a far narrower based institution, into the most powerful office in the land.

Worse still, the directly elected President is also rendered a prisoner of Constitutional Council, a largely unelected entity (7 of the 10 members are nominated, not elected). The President has to act in many important respects having consulted and obtained the concurrence of that Council.

If this sounds like a quibble, let me content myself by drawing attention to the fact that the President will be unable to decide on the Army chief without the consent of the Constitutional Council, the Attorney-General and the IGP. Some presidency! Some Council! “61E.(1)  The President shall appoint:-  (a) the  Heads of the Army, Navy and Air force;  (b) subject  to the  approval of the Constitutional Council, the Attorney General and the Inspector General of Police…”

The 19th amendment makes impossible the fundamental political task of national leadership. Leadership itself rests upon the capacity to make decisions. At no time is this capacity more important than in an exceptional situation or an extreme situation, also known in philosophical terms as ‘borderline’ or ‘limit’ situations. Of the decisions a leader must make, one of the most important is the capacity to decide which situation falls into such a category.

After the 19th amendment goes through, it will be impossible for the person elected by the country as a whole, the President to make such a decision on our behalf; a decision to keep us safe. He will be unable to do as President Premadasa did and dissolve the Northern Provincial Council in the extreme case of an attempt at breakout from the Sri Lankan state. He will instead have to act on the advice of the Prime Minister whose very administration may be relying in parliament on the support of the TNA.

After the 19th amendment the President will be unable to act as Mahinda Rajapaksa did in picking General Fonseka as army chief or as President Roosevelt did in choosing General Eisenhower as head of Allied forces though he was the not the senior-most in rank, or President Lincoln did in picking General Ulysses Grant to win the Civil War.

Had the 19th amendment been in place, President Kumaratunga could not have stopped Prime Minister Ranil Wickremesinghe’s process of appeasement of the LTTE in its tracks.

The post-19th amendment President will have to get appointments not only past the Prime Minister but also past the Constitutional Council, which may contain to prevent the State from reacting firmly and fast, to a Northern emergency or any political emergency whatsoever.

The entire principle is wrong. The Presidency is elected by the majority of the island taken as a single unit and therefore represents the unity of this country, while the two institutions he will be subordinate to namely the Prime Minister ship and the Constitutional Council will be representative of respectively (i) a far narrower electoral base and (ii) the principal of diversity of our society. The recognition of diversity is a fine thing but the principle must be ‘unity in diversity’ not the other way around. The 19th amendment upends this and privileges ‘diversity in unity’. To place the Prime Minister and the Constitutional Council above, or even on par (which is not the case with 19A) with a nationally-elected President is wrong in that it places the principles of narrower representation and diversity above the principle of overarching unity.

Far more bad than good will come out of the 19th amendment. It is a huge retrogression in comparison with the Constitution of the Second Republic, the presidential one. And no wonder! The drafters of the 19th amendment are intellectual pygmies, Lilliputians, in comparison with JR Jayewardene, HW Jayewardene, Ranasinghe Premadasa, Lalith Athulathmudali, Gamini Dissanayake, Ronnie de Mel and Esmond Wickremesinghe.

While the Northern Provincial Council is on the political warpath with its Genocide Resolution—a genie that cannot be put back in the bottle- the Sri Lankan State is being fatally weakened by the 19th amendment. Decision-making will be diffused. The nationally-elected Presidency incarnates the united political will of the people. What the 19th amendment does is to introduce a ‘federalism of decision-making’ at the center. This already begins the dismantling of the unitary principle, which at heart is the principle of unitary decision making. The dismantling of the unitary principle in decision making will result in the dismantling of the State. The loosening of the ties between center and periphery will inevitably result.

The post 19th amendment poly-centrism of decision-making will turn into fault lines and fissures within the State itself, and political factions will grow around these fault-lines and fissures. With the dismantling of the executive Presidency, the Sri Lankan State will find itself over the longer duration, in a state of disintegration.

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    DJ the only [Edited out] in world history become cobler to MR….[Edited out].

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