The passage of 19th Amendment marks a course correction in the political direction of the country’s history. The executive presidential system of government in place since 1978 has been changed though not fully. According to many analysts the powers of the executive president has been reduced by half, if not more.
The Supreme Court rightly determined certain provisions of the draft 19th Amendment required a referendum among the people to make them legally valid. The Supreme Court determined that the Bill complies with the provisions of article 82 (1) of the Constitution and requires to be passed by special majority specified in Article 82(5) of the Constitution and that the paragraphs 42 (3), 43 (1), 43 (3), 44 (2), 44 (3) and 44 (5) in Clause 11 and some sections in Clause 26 require the approval of the people at a referendum in terms of the provisions of Article 83 of the Constitution. Among those provisions that were struck down by the Supreme Court the one making the Prime Minister the head of the Cabinet of Ministers, that he shall determine the number of ministers. In a parliamentary democracy the prime minister is only the first among the equals. He is not the boss.
Notably, a referendum will be required for the sections that provide for making the Prime Minister the head of the Cabinet of ministers and enabling him to determine the number of ministers and subjects and functions to be assigned to the ministers, change those assignments and the one which says ‘at the request of the Prime Minister, any Minister of the Cabinet of Ministers may, by notification published in the gazette, delegate to any minister who is not a member of the cabinet of ministers, any power or duty pertaining to any subject or function assigned to such Cabinet minister, or any power or duty conferred or imposed on him or her by any written law, and shall be lawful for such other minister to exercise and perform any power or duty delegated notwithstanding anything to the contrary in the written law by which that power or duty is conferred or imposed on such minister of the cabinet of ministers.
The section in Clause 26 of the Bill seeking to amend the sections pertaining to appointment of a competent authority to look over the state and private electronic media institutions during the times of elections, too, needs to be approved by people at a referendum.
Why Ranil Wickremesinghe wanted to create an executive prime minister in lieu of an executive president is not understood, unless he thought he is the next prime minister in waiting. What if Rajapaksa managed to get elected as the prime minister after the scheduled elections? In 1978 JR Jayewardene made the same mistake when he fashioned the 1978 constitution which conferred unbridled executive powers on the president. More than Jayewardene, it was the likes of Premadasa and Rajapaksa who made full use or abuse of those powers.
The determination by the Supreme Court came as a relief to many sections of the society, especially the national minority Thamils. The executive presidential system gives the Thamil people the chance to decide the president when the votes of the majority get divided down the middle. This happened at the last presidential elections held last January 8, 2015.
Although Mahinda Rajapaksa garnered more votes than the winner Maithripala Sirisena in the south (except Nuwara Eliya electoral district) yet he lost because of Thamil and Muslim votes in the North, East and Nuwara Eliya going to Sirisena. Barring the 5 electoral districts in the North, East and Central provinces Mahinda Rajapaksa polled 5,299,151 (50.64%) voters compared to 4,996,448 (48.38%) for Sirisena. It was no surprise, therefore, when Rajapaksa claimed he won the election if not for the Thamil vote bank in the North, East and Upcountry.
The late Soumiyamoorthy Thondaman always supported the presidential system of governance because the Thamils then will have a say in electing the president. However, the results of the 2005 presidential election proved Thondaman’s theory wrong. Mahinda Rajapaksa won the election without the minority Thamil votes. He polled 4,887,152 (50.29%) as against 4,706,366 (48.23%) in favour of Ranil Wickremesinghe. It was a razor thin majority of 180,786 (1.86%) votes. But, Rajapaksa won the elections solely due to an unofficial boycott of the presidential elections by the LTTE. In the Kilinochchi polling district only one person voted for Wickremesinghe out of total registered voters numbering 89,979! In the whole of Jaffna electoral district Rajapaksa polled only 988 votes and Wickremesinghe 2,975 votes out of a total of 701,938 registered voters!
In the elections held in 2010 Rajapaksa won by a massive majority of 1,842,749 (17.73%) polling 6,015,934 (57.88%) over Sarath Fonseka who polled 4,173,185 (40.15%). Based on the results of the election, Rajapaksa got emboldened as never before. It reinforced his belief that minority Thamil votes are dispensable. He can win the 2015 elections even if his majority get reduced to 1,700,000 votes compared to 2010. He drew wrong conclusions to the extent of mocking his opponents “Here, I am come and take me.” At the end it was a double whammy which cost him 2 years of his second term as well.
The 19A marks the beginning of a new chapter in the contemporary political history of Sri Lanka. We still have a semi-presidential system of government with the president being the Head of State, Head of Government and Commander in Chief of the armed forces. He will also hold the post of defence by virtue of his office. The 19th Amendment removed the power of the president to dissolve parliament. Earlier he had the power to sack the parliament after one year. The setting up of 11 independent commissions has depolarized important institutions like the Public Service Commission. The limit on the president’s terms of office has been reduced to two terms thus effective shutting out the former president from staking his claim for a third term in future. The life of parliament and the term of presidency have reduced to 5 years from 6 years. Above all the Right to Information has been made a constitutional right of the people and institutions like the media.
The highlight of 19A is no one person will wield unbridled power like in the days of Rajapaksa. Like Jayewardene he had all the powers except the power to change a man into a woman or vice versa. Now neither president nor the prime minister has absolute power to make appointments, transfers, dismissals etc. There are checks and balances between all three branches of the government. Till the last no one thought the 19A would sail through the parliament. Though president Sirisena is the president of SLFP, his party secretary was leading the campaign to install Rajapaksa as prime minister. In the end it was the quiet diplomacy of an unassuming Sirisena who was instrumental in persuading his party MPs to vote in favour of the 19A. Of course he has to make concessions to the rival faction in regard to the composition of Constitutional Council. Instead of 3 politicians and 7 citizens, it will be composed of 7 members of parliament and 3 citizens.
G.L. Peiris former foreign minister played a despicable role in picking holes in 19A, forgetting he supported the 18th Amendment that dealt a death blow to democracy and made the president a virtual dictator! A person like G.L. Peiris should have gone hiding rather than appearing in public and criticising 19A.
The partial restoration of the Westminster system of government is not going to solve the festering national question unless there is political will to do so. It might be recalled; the Thamils lost most of their rights not under the presidential form of government but under the Westminster style of government. The Ceylon Citizenship Act No 28 of 1948 which made a million Thamils of Indian origin stateless, the Indian-Pakistani Citizenship Act of 1949 and the Parliamentary Elections Amendment Act of 1949 which stripped their voting rights, the Official Language Act (Sinhala Only Act) of 1956 were all enacted under a Westminster style of parliament and not under presidential system of governance.
Therefore, the Westminster system of government is not a panacea to solve the problems faced by the Thamils and Muslims. What is required is another brand new constitution that will address squarely and fairly the national question.
Democracy as we have witnessed since the dawn of independence was turned into tyranny of the majority. The Sri Lankan polity was neither democratic nor socialist as the preamble to the constitution claims. Though democracy is all about equality and rule by consent by the entire populace, the ethnic minorities were told that they cannot have the same rights as the majority Sinhalese.
J.R. Jayewardene the first executive president who came to power promising to look into the grievances of the Thamil people in regard to land and language witnessed the worst racial pogroms under his dispensation, the 1983 riots, fuelled in part by fabricated rumours, were easily the worst. He openly without any sense of shame started talking about majority Sinhalese and minority Thamils. In 1983 in an interview to Daily Telegraph he claimed “I am not worried about the opinion of the Tamil people… now we cannot think of them, not about their lives or their opinion… the more you put pressure in the north, the happier the Sinhala people will be here… Really if I starve the Tamils out, the Sinhala people will be happy.” (Sri Lanka – Daily Telegraph, 11th July 1983)
As for Mahinda Rajapaksa there was no racial problem in Sri Lanka, the real issue is the LTTE even after it was soundly defeated in 2009. He would often say “What we face in Sri Lanka is an internal issue therefore we don’t want any interference from the outside world.” This statement was made after claiming “We wouldn’t have won the war without the help from India. It was India’s war we fought and won.” He never seized the opportunity to create a just and peaceful country where all the communities could live in peace, security and with dignity.
This government has promised to form a national government after the dissolution of the current parliament and subsequent elections to be held in June/July.
The out come of the election is anybody’s guess. Whether the faction ridden SLFP/UPFA will contest as one party or separately is a question for which there is no answer yet. After the enactment of 19A president Maithripala Sirisena’s profile has soared internationally. He was portrayed as a soft spoken and vacillating leader, but he has now emerged as an astute statesman looking beyond the next generation. He rallied support for 19A among recalcitrant MPs not resorting to bullying but by cool persuasion. During the last 3 months he has restored the Rule of Law at least partially which is the corner stone for freedom and democracy. There were no phone calls from Temple Trees to secretaries and heads of departments to go soft on law breakers, drug traffickers and corrupt individuals. He and his troupe flying on commercial flights, instead of private jets are in sharp contrast to his predecessor. The thoughtful act of paying for the helicopter that took his brother to Colombo out of his own pocket shows president Sirisena lives by example. Again, this is in sharp contrast to the Rajapaksa family using helicopters like ordinary taxis during the election campaign. It appears that president Sirisena is the first politician to practice what he preached.
The absence of Wimal Weerawansa, Vasudeva Nanayakkara, and Udaya Gammanpila in the parliament during voting time shows their attempt to bring Mahinda Rajapaksa as the Prime Ministerial candidate is going to fail. If Mahinda Rajapaksa lost the elections despite using or misusing state resources including state controlled media, he is not going to fare any better without those resources. He must have realised lately the adage victory has thousand fathers, but defeat is an orphan. We saw that when SLFP MPs jumped ship to accept portfolios dangled by the president.
The acid test for Sirisena is yet to come. Fashioning a brand new constitution by converting the Parliament into a Constituent assembly is a daunting task. This will undoubtedly pose a big challenge to him as Head of State. Whether he will have the political will to repair the damage done in the past to the unity of the country and usher in real peace, justice and equality remains to be seen. The likes of Dayan Jayatilleka is waving the red flag claiming “President Sirisena’s role in history will be judged positively if he stops the 19A process from going further as the Ranil’s UNP explicitly envisages; whether he resists intrusive Western calls for war crimes accountability and protects national sovereignty; whether he resists the CBK surge towards a federal Constitution which, given the proximity of Tamil Nadu and resultant ideological osmosis.” No where in history federal constitution has ended in division of the country? On the contrary federal constitution has acted as the glue that binds the separate nations like in Canada. In Canada diversity of people and cultures are considered as strength and not weakness. Twice within two decades (1980, 1995) French speaking people of Quebec have rejected call for separation.
The Swiss model is a shining example of a small country with 4 languages speaking people living in peace and prosperity. In a survey conducted by the Sustainable Development Solutions Network (SDSN), an initiative under the United Nations, Switzerland has been ranked first among 156 nations. On the contrary Sri Lanka was ranked 132 out of 156 countries.
Switzerland has four national languages. Speakers of Schwyzerdütsch (the German dialects spoken in Switzerland), account for about two-thirds of all Swiss. Another 18 percent speak French, about 10 percent—mostly in the Ticino region—speak Italian, and roughly 1 percent speaks Romansh, a dialect spoken mostly in the Grison region. The remainder of the population consists of foreign workers who speak the languages of their homelands. Most native Swiss are multi-lingual, and many speak English.
Switzerland is divided into 26 sovereign states, known as cantons, with 2,600 municipalities. The cantons have their own unicameral parliaments, administrative agencies, and court systems. Modern Switzerland as a “shining example” of decentralization — an example that some centralized countries, like New Zealand, are looking to as a guide for the future. The Swiss model offers an alternative to the “monoculture” of centralist bureaucracies one finds in Srilanka.
President Sirisena has been offered a historical opportunity to move away from race/religion/language oriented politics and move towards a democratic and just polity for sustainable peace, economic prosperity and a pleasant living for ALL the people in the country.
In his own words president Sirisena has openly declared “We cannot allow the law of the jungle to supersede a good legal system. I do not hesitate to take required decisions. I will take every step possible, especially to protect and strengthen the people’s freedom and democracy and through these means eliminate corruption and fraud, and thereby protect the genuine rights of the people. It was with the possible sacrifice of my life that I contested the election. That was like a leap into the ocean with the lives of my children myself at stake. I am so even today. I will conclude with the call to all my people to join in brotherhood and friendship to achieve the goals for which the people gave their mandate on January 8 and, therefore go forward to establish the society we seek for today and tomorrow.” We all hope and trust that he lives up to his solemn commitment.