By Shyamon Jayasinghe –
Of the 100 days package of pledges the most fundamental one has just been released in the name of Section 19 (A) Amendment to our constitution. The electorate has given an endorsement to the need for a major shift of our governance- a governance that had gone haywire and wild. The root cause has been rightly perceived as flowing from a constitution that had been originally designed and subsequently gerrymandered to become a burden to the people. All kinds of mad things were happening and a free-fall-all resulted. With law and order fizzling out Sri Lanka was facing the grim spectacle of a perverse system of government under a Regime De La Terreur.
We have an instant critic of the proposals for amendment among us in the name of Dr Dayan Jayatilleka (DJ). I am afraid DJ has been too much in a haste to come out with his lashing. For some time, DJ had been writing for former President Mahinda Rajapaksa (MR) first predicting (not in a Sumane sense) the latter’s victory. Now he writes and works for the wacky campaign to get MR back. No quarrel about anybody’s ambitions. He or she is free to do so-especially under Yahapalanaya that has already given a freedom to citizens in Sri Lanka where they can meet and protest without the fear of White Vans, assaulting thugs or even simple paper files.
In this particular case of critiquing 19A I have to seriously disagree with DJ while pointing out gross factual and interpretation errors in his hasty analysis.
DJ’s employment of the metaphor ‘Cyanide Capsule’ is clever as it can evoke our traumatic experience of Prabhakaran’s days. What is more important is that DJ evinces by the use of this figure of speech the main motive and thrust of his analysis, namely, to create scaremongering among the Sinhalese population in particular.
I will first come to what DJ calls ‘content,’ which he admits is the most serious category of flaws in the amendment. DJ states: ”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!” This is utter falsehood and gobbledygook. I quote the relevant clause of the proposed amendment:
“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, (2) the holders of the Offices of Attorney General and the Inspector General of Police shall vacate office upon their attaining the age of sixty years.”
It is patently clear as daylight from section (1) that as far as the appointment of the heads of Forces-army, navy, and air force – it is done solely at the President’s discretion. Subsection (2) refers only to the appointments of AG, and IGP as requiring the President to seek recommendations of the Constitutional Council. DJ has conflated the two subsections and mixed them up for the outcome he wants. In fact he mischievously juxtaposes both sections when in the original the sections come one under the other in structural separation.
Second, DJ states that although the President is an institution elected by the whole electorate “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 Ministers.” As already pointed out this is always not the case. Political powers flows ultimately from the gun and the commanders of the three forces comes under the President. In all other instances of important appointments President requires not the advice of the Prime Minister but of the very broad-based Constitutional Council in making appointments. Furthermore, a Bill to be passed requires the President’s consent. While both Prime Minister and the President are electoral in origin the amendment provide for an arrangement of reasonable cohabitation and cooperation between the two while at the same time creating checks and balances against abuse of executive power.
Third, DJ states that national leadership will be atrophied under the amendments. The executive leadership is clearly shifted toward the Prime Minister after the next parliamentary elections-whoever that Prime Minister would be. This was announced at the elections and a mandate obtained. Parliamentary elections, we know, are centered on a party leader or front leader. Hence people expect that person to lead the day to day running operations of the country. As long as the PM enjoys the confidence of Parliament he can lead effectively. In the event of his needing extraordinary powers to cope with urgent situations there is resort possible to Emergency Power. In fact, the war against the LTTE was carried out by the use of emergency powers. MR’s personal power enhancements came after the war. The 19A amendment makes no change to that. DJ complains that if a removal of a Chief Minister is required the Prime Minister will have to be consulted. There is no mention of this in the 19A amendment and I don’t know from where he plucked this. Furthermore, why should the Prime Minister not be consulted? What’s wrong especially when the latter is in charge of day to day executive functions?
DJ critiques the process saying that 19A amounts to a major change in the constitution that requires a referendum. I see nothing in the proposals that require a referendum as provided for by the present constitution. Different constitutions require different procedures for amending their constitutions. Some like in Japan and in Australia need a referendum always. Many others don’t have such rigid special requirements. It is a country preference.
What should DJ do with the cyanide capsule? Your guess, reader