By Laksiri Fernando –

Dr. Laksiri Fernando

Finally, finally the 19th Amendment is passed with only one UPFA MP opposing. Perhaps he was true to what he was advocating while many others were chickening out, including the ‘law professor.’ There was an eleventh hour compromise on the Constitutional Council, but the government rightly did not budge on the appointment of Cabinet of Ministers. If the President kept all the powers to unilaterally appoint the cabinet of ministers, as the opposition wanted through their dubious amendment, then there was no much meaning of the 19th Amendment. The main purpose finally was to remove the draconian powers of the Presidency. The complete abolition required a referendum as the Supreme Court determined. That was beyond the promise or the mandate.

The 19th Amendment itself was a learning process for democracy from the time it was mooted in the President Sirisena’s Common Candidate Manifesto subscribed by many political parties and civil society organizations. When it came to the drafting stage, there were many temptations to add or subtract things depending on political expediency. The pressure of time and divergent views on presidential vs parliamentary systems also gave rise to confusions. There were vacillations as much as intransigency. The main obstacles to its smooth passage came primarily from those who were directly and indirectly towing the line of the former president Mahinda Rajapaksa. Otherwise, according to the 100 Day program, the 19th Amendment could have seen the light of the day about two weeks back without much dilution.

Achievements

The 19th Amendment does not abolish the presidential system. Instead it transfers many of the executive powers to the Cabinet directly responsible to the Parliament. The responsibility of the President to the Parliament is also enhanced through the Cabinet and the Prime Minister. Therefore, the fundamental plank of the dictatorial JR Jayewardene constitution is now changed for the first time after 1978. It has also changed the Mahinda Rajapaksa constitution which enhanced the concentration of powers through the 18th Amendment without a term limit and also by abolishing the independent commissions.

The people effectively defeated the attempt to continue in power for a third term by Rajapaksa/s on January 8th by unleashing a period of democratic change culminating in the passage of the 19th Amendment yesterday. The process will not end there. President’s Manifesto also talked about a change in the electoral system which could possibly be implemented before the next general elections. There are, however, several hurdles to overcome.

Hereafter, a term of Parliament and the President limits to five years and not six years. This is in align with many democratic countries. The President also cannot dissolve parliament arbitrarily, until the expiration of four and half years. These are progressive democratic changes.

With the passage of the 19th Amendment, the stigma of a ‘minority’ government also has ended. The present government now effectively is a ‘national’ government of the UNP and the majority SLFP also backed by a broader (executive) council of many parties and civil society organizations. This does not mean that the present government should continue. The present government is a transitional government. Even the present constitutional change is a transitional change.

What might be necessary for a fundamental democratic change in the country is a New Constitution even aiming at resolving or paving the way for resolving the national question.

However, this should be done without neglecting the economy or economic development. To achieve that objective, the next parliament should be a different one to the present free from corrupt, violent and communalist political representatives. It should and could function as a Constituent Assembly. The best way to achieve this objective is to change the electoral system in an interim manner, abolishing the preferential voting system and even introducing the constituencies (seats) as in the good old days, but without fundamentally altering the present proportional representation. As this kind of a system is not unfamiliar to the voters, there is no necessity for a long lead-time between the necessary 20th Amendment and the next elections.

President Sirisena along with the Prime Minister Wickremasinghe have proved their capability of building up consensus (through some compromises) under most trying and difficult circumstances. Some of the compromises are not ideal. Some are even problematic. However, without those compromises, the overall realistic changes could not have come through given the prevailing circumstances. The existing parliament or most of its members are fundamentally opportunistic. They still live in the Rajapaksa era. Their mentality is archaic. Some of them directly wanted to bring back the ‘ancien regime.’ That regime was dictatorial, corrupt and deceiving of the people.

The former puppet PM, DM Jayaratne did not have any qualms in saying that ‘an amount of dictatorship was/is necessary’ to run the country. He said that on the 27th, during the constitutional debate. The highly emotional speeches yesterday not only by WDJ Seneviratne or Bandula Gunewardena, but also of Dilan Perera, unfortunately were testimony to their close attachment to the ‘ancien regime.’ Finally, finally they voted for the 19th Amendment, revealing their absence of a backbone. Therefore, in essence it was a difficult task in an apparently a hostile parliament.

Controversies

We are still not completely aware of the final shape of the 19th Amendment. When it came to the committee stage, there were 63 amendments from the government itself, while the opposition proposing 111 in competition. The government eventually withdrew some of their amendments as a way of compromise, while the opposition did the same or compelled to do so. The President Maitripala Sirisena admirably influenced both sides for realistic compromises staying in his office in Parliament throughout the debate yesterday. Therefore, the final passage of the 19th Amendment was also a victory for his moderate policies and sober but firm democratic vision.

The key amendments on the part of the opposition were proposed by WDJ Seneviratne. Rajiva Wijesigha’s proposals were aiming at some improvements, I believe. Perhaps Seneviratne was the scapegoat for the Rajapaksa project. Most strangely the ‘law professor’ who was ‘eloquently’ arguing against the fundamentals of the 19th Amendment from the beginning, did not propose any, perhaps feeling a cold feet or wanting to hide behind.

The two main issues of contention until the eleventh hour were about the appointment of the Cabinet of Ministers and the composition of the Constitutional Council. If the main change anticipated in the constitutional system was about ‘a government emerging from the representative parliament,’ which popularly called a parliamentary system, then the appointment of ministers on the advice or with concurrence of the Prime Minister is a logical proposition. If there were reasonable doubts that the executive presidential system might turn into an executive prime ministerial system that was not the case since the complete abolition of the presidential system was not in the 19th Amendment which required a referendum. This was known even before the Supreme Court decision. Therefore, the objections on the part of the opposition were completely misplaced based on a political power game and/or visualizing constitutional principles in personal terms.

On the question of the composition of the Constitutional Council, the opposition demand was quite self-centered, to make it completely a Parliamentary Committee of MPs (!) which betrays completely the objective of Independent Commissions and the independence of the services and institutions coming under them. If there were any concerns about the Constitutional Council becoming a self-serving bureaucratic or elitist entity, that was not the case since the Prime Minister, the Speaker and the Leader of the Opposition were members of the proposed Constitutional Council. As a compromise, having two MPs would have been enough without having four in addition to the three parliamentary officials. Unfortunately, the compromise has gone too far to possibly damage the independent and impartial character of the Constitutional Council.

That is why the 19th Amendment is a partial victory. Nevertheless it is a great achievement and a victory for democratic forces given the prevailing circumstances and legacy or curse of the Rajapaksa rule. It is a learning experience which can inspire democratic forces for a forward movement. It is interim in nature and requires its blossoming in a more democratic and peoples centered New Constitution. That is why an interim electoral reforms might be necessary to have not only a more democratic New Parliament but also a democratic Constituent Assembly. Rajapaksa project is now effectively wounded and its spokespersons may try to console themselves by painting the compromises as a victory.