By S. I. Keethaponcalan –
After a prolonged struggle and negotiations among several political parties, the 19th Amendment to the constitution of Sri Lanka was enacted with an overwhelming majority on April 28, 2015. The way the process was carried out indicates that Sri Lankan political leaders still retain the capacity to negotiate and get things done. Kudos to the parties that were involved in the process because the Amendment faced the prospect of complete derailment while it was being negotiated.
One of the ironies of the 19th Amendment is that even after about a week of its successful adoption, the actual content of the Amendment is not available to the public. Bits and pieces of information are being leaked by various personalities. The original proposal went through a series of changes, thanks to the intervention of the Supreme Court and political parties which came from within and outside of the ruling coalition. It is not clear which draft eventually ended up in parliament for adoption.
Insiders indicate that more than a hundred changes were proposed during the debate and the United National Party (UNP) had to cave in due to its dependence on the Sri Lanka Freedom Party (SLFP) for the necessary two-thirds majority in the national legislature. Parties represented in parliament proposed some very fundamental changes to the draft bill. Information however, is lacking on exactly what was accepted and incorporated into the final draft that was voted on. Therefore, an actual content analysis should wait until the official version of the Amendment is released by the government. The following analysis relies on public information available on the changes that have been introduced.
One of the salient features of the 19th Amendment is the set of provisions related to the president and presidential powers. Three arrangements are significant in this regard. One, the two-term limit has been reintroduced. The 1978 constitution envisioned two six-year terms for the president. President Mahinda Rajapaksa removed the limit in 2010 because he believed that with the successful termination of the Liberation Tigers of Tamil Eelam (LTTE) he could be in power for a long time, if not for life. Second, the term of the president in office has been reduced from six years to five. Three, the president cannot dissolve parliament after one year of its election as provided in the original constitution. Now the president has to wait for about four years to dissolve parliament.
These arrangements have been hailed as a victory for democratization because they are seen as diluting the presidential powers. However, depicting the first two provisions as diluting presidential powers is a bit of an exaggeration. These two provisions do not take away any powers; they only limit the length of time an elected president can be in office. Hence, they only “soften” the weight of the president.
The third provision however, is related directly to the president’s power. Sri Lankan presidents have used their power to dissolve parliament as a tool for blackmailing representatives of the people. According to the original arrangements of the 1978 constitution, the national legislature becomes vulnerable for dissolution after one year of its election. Therefore, the present arrangement, if it is actually a part of the approved Amendment, has the capacity to reduce presidential power and arrogance to a great extent.
The downside however, is that this provision could become a problem. If and when the president and parliament come from two different parties and have hostile relations, it could lead to a deadlock. The confrontations between the UNP-led government and President Chandrika Kumaratunga were resolved rather undemocratically when she dissolved parliament using this power in February 2004. Thus, this provision has the potential to become a hurdle in the future.
Another significant (or rather insignificant) element of the 19th Amendment is the establishment of the Constitutional Council, which will advise the government on important public sector
appointments. The Constitutional Council was seen as an important instrument to depoliticize public service and was part of the most acclaimed 17th Amendment to the constitution. In its original form the Constitutional Council could have been a useful instrument because it was supposed to be largely an apolitical body. However, the Constitutional Council reintroduced through the 19th Amendment will have more members of parliament than apolitical citizens, thanks to the efforts of the SLFP. Hence, it will be insignificant in terms of depoliticizing the public service.
Winners and Losers
Since the adoption process of the 19th Amendment played out like a political game, naturally, the attention turned to winners and losers and a lot has been already written on this.
The clear and undisputed loser is former president Mahinda Rajapaksa. Since his defeat in the January 2015 presidential election, he has been contemplating the idea of a reentry. Because the two-term limit has been reintroduced, he certainly cannot return to power as the president. The door has been completely shut on him in this regard. Encouraged indirectly by the former president himself, his supporters have been demanding his appointment as the prime minister. The prime minister’s office has not been empowered as originally intended and the president will remain as the executive leader with almost all powers conferred by the 1978 constitution. This author does not believe that Mahinda Rajapaksa is interested in a nominal position. He wants real power. Therefore, the successful enactment of the 19th Amendment means the end of the road for Mahinda Rajapaksa. He may however, continue his present political maneuverings to protect his personal, family and supporter interests.
President Maithripala Sirisena certainly emerged as the clear winner. First, he played a pivotal role in the enactment of the 19th Amendment. It is imperative to note that he promised to trim down autocratic powers of the president in his election manifesto. Thus, one of his promises has been fulfilled with the enactment. The significance of this move lies in the fact that all other executive presidents in the past have concentrated on centralizing powers through legal and extra-legal methods. Given the political culture in Sri Lanka, it is doubtful another leader would have facilitated trimming at least some of his or her powers rather willingly. He deserves a pat on the back for this action.
Second, he successfully prevented a split within the SLFP on this issue, because a faction of the SFLP that was sympathetic to Mahinda Rajapaksa was threatening to derail the whole process. Such a scenario would have seriously challenged his authority as leader of the party and even as president. He came out of this process stronger than before. Third and more importantly, he did not lose his executive powers as originally suggested. He managed to sustain his executive powers while taking credit for democratic changes. This is the most important gain President Sirisena has made. Perhaps he is politically shrewder than some estimate him to be.
The UNP government’s original proposal for constitutional reform contained elements that would have strengthened powers of the prime minister and converted the system into a parliamentary form of governance. Based on this fact, a narrow perception defined Prime Minister Ranil Wickremesinghe, leader of the UNP, a loser. The assumption was that he was trying to grab political power through the 19th Amendment and failed.
This is an extremely narrow perception if one takes into account the future in the long term. Wickremesinghe is in active politics and will have no problem fielding himself as the UNP’s candidate for presidency in the next presidential election, probably in 2020. He is currently the prime minister and perhaps will continue to occupy the office until the next presidential election. Meanwhile, President Sirisena has already announced on more than one occasion that he will not contest for the second term. If this is true, Wickremesinghe will not have a serious contender from the SLFP challenging him in the next presidential election.
The present second tier leaders of the SLFP, for example, Nimal Siripala de Silva and Susil Premajayantha are not presidential material. Mahinda Rajapaksa cannot contest as he is not qualified according to the 19th Amendment. With a little bit of luck, Ranil Wickremesinghe will be able to win the next presidential election and enjoy executive powers as well. Therefore, if Wickremesinghe wins the next presidential election, he will be the ultimate winner that emerged from the 19th Amendment.
*Dr. S. I. Keethaponcalan is Chair of the Conflict Resolution Department, Salisbury University, Maryland.