10 December, 2018

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The 19th Amendment Is Not An Alternative Constitution: Presidency, Parliament, Judiciary & The Spirit Of The Constitution

By Dayan Jayatilleka – 

Dr. Dayan Jayatilleka

“…The General [de Gaulle] devised a strong executive presidency in 1958, and introduced direct elections to it four years later, precisely in order to remove power from the hands of political parties and bring stability to French institutions…the original source of French presidential legitimacy: the direct mandate of the people, introduced by de Gaulle.” ~ Biography of Charles de Gaulle, The Economist (2018/07/26)

What is at stake in the battles in the courts is whether or not the Constitution has been up-ended by the 19th amendment, even though a two thirds majority and a referendum were not held in order to do so. Mr. Wickremesinghe had sent an ambitious draft which was challenged in the Supreme Court, which ruled that certain provisions either had to be removed or required a two thirds majority and the referendum. The SC pointed out that these provisions as they stood, infringed upon if not devalued the people’s franchise, an entrenched clause or more simply, the very basis of the Republican Presidential Constitution. These were in fact excised. 

But when the truncated 19th amendment was passed, Mr. Wickremesinghe was not a happy man. In his address to the parliament he said that the new 19th amendment was a temporary measure and that a new constitution which abolished the Presidency would be brought soon enough. Now Mr. Wickremesinghe wishes to act as if this has already been done and that we live in a new Constitutional system, in which the Presidency has not merely been reformed and partially restricted, but has actually been turned into a lame duck while the parliament has been exalted into the center of the political system, which is only nominally presidential. 

All this simply because of a case of sour grapes on his part, because he ran for the president twice and failed, and knows that if there is another such election, he may have to vacate in favor of a more popular personality. Mr. Wickremesinghe’s peeve against the Presidency was manifested as far back as 2001-2003, when President Kumaratunga complained on the record to the foreign press, that he ignored and bypassed her at first and then tried to usurp her powers– and therefore she was constrained to kick him out. 

Combined with this is the TNA’s long standing compulsion or ‘drive’. The TNA’s political ancestors were afraid that universal suffrage would confer upon the majority its natural weightage in electoral politics and that the minorities would also be punching their natural weight. Thus the TNA carries an antipathy towards electoral democracy in its political genetic code. It preferred Prabhakaran’s tactics and strategy because that cut through the electoral advantage of the majority. Today the TNA prefers a Parliament in which it is the king-maker, to a Presidency which is directly elected by the nation as a whole. 

What however is the logic of the Presidential system? As is well known JR Jayewardene modeled the 1978 Constitution, and indeed his original advocacy of such a system in 1966 and 1972, on General de Gaulle’s French constitution. What then was the logic of that ‘parent model’?  

The Economist (UK) carries an essay of the French Presidency in the form of a review of a new book, by the British historian Julian Jackson. It was published in the Books and arts section of the print edition of The Economist, under the headline “Jupiter’s father”. Here are key extracts which shed light on the inspiration and animating spirit of the 1978 Sri Lankan Presidential republic:

“…de Gaulle is remembered above all as a heroic figure: a leader who refused to admit defeat, and persuaded the French that their true spirit, uncrushed by submission to Nazi Germany, would ultimately prevail… 

…The general devised a strong executive presidency in 1958, and introduced direct elections to it four years later, precisely in order to remove power from the hands of political parties and bring stability to French institutions. In 2016 Mr. Macron…was able to defy the might of the two mainstream parties thanks to the original source of French presidential legitimacy: the direct mandate of the people, introduced by de Gaulle.”

The review essay significantly entitled ‘Jupiter’s father’ in The Economist gives the deep reasoning and the intellectual-psychological background of the French Presidency, and is directly relevant to comprehending the Sri Lankan Constitution, which modeled itself on the Gaullist:

“De Gaulle’s unwavering belief in his ability to embody the nation, and his modelling of a constitution topped with a near-monarchical presidency, also shaped the heavy expectations—and the disappointments—that have surrounded his successors ever since. Some of them explicitly embraced the Gaullist legacy, notably Jacques Chirac, who denounced the American “hyperpower”, urged a counterbalancing multi-polar world, and relished the strong, centralised presidency. Others, or more accurately François Hollande, flinched at grandeur. After the whirlwind years under Nicolas Sarkozy in 2007-12, voters were at first drawn to the “normal” presidency that Mr. Hollande sought to embody, as he headed off on holiday by train and adopted the forgettable posture of a middle manager. But the French soon realised that they like their head of state to look grand after all.

It was while he was working as an adviser to the normal President Hollande that Mr. Macron began to develop his theory of a “Jupiterian” presidency. The loss of the king and the post-revolutionary Terror, he argued, had created an “emotional, imaginary collective void” at the centre of the French republic. This left the French feeling insecure, and in need of a leader who invested the presidency with a certain aura and mystique. If German political leadership is defined by the application of law, he contended, French society, historically structured around the Catholic Church and the monarchy, needs clear vertical authority and a president who incarnates power.” (This article appeared in the Books and arts section of the print edition of The Economist under the headline “Jupiter’s father”. )

The 19th amendment was not an alternative Constitution or even a mini-Constitution! It cannot change an existing Constitution into a new one. It cannot change the pre-eminent institution, whose pre-eminence derives legitimacy from popular sovereignty, as the sole institution directly elected by the people taken as a whole, into an institution that is co-equal to or even subordinate to the legislature composed of the political parties. The whole logic of the French Presidential republic is the combination of the republican character and the Presidential character. At the root is popular sovereignty and popular sovereignty is primarily represented not through Parliament but through the directly elected Presidency, because The People considered as one, as a whole, a totality, superseded the arithmetical addition of the people broken up into localities and political parties. It is only the directly elected Presidency that is representative of the people taken as a single entity. 

It is that which enables Sri Lankans to think of themselves as a single nation. It is only in that moment that we are regarded as one: when the whole country votes together, to elected its leader, the President. 

The Parliament is a kaleidoscope of shifting coalitions elected as and from a patchwork of localities. The President is elected by the island taken as one unit, a single entity. That is also precisely why the President is our leader; not the Parliament; and the directly elected Presidency is the apex of our state form, our state system and structure—not the parliament. The 19th amendment modified the architecture of one corner of our state system. It did not, could not, abolish, reverse or invert it.  

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Latest comments

  • 3
    0

    A simple comment to Dayan’s article.
    A referendum was needed to remove certain powers of the Executive President and it didn’t happen after the 19th Amendment. I myself have made comments on that particular matter.
    However, introducing new conditions on the dissolution of Parliament didn’t need a referendum. A 2/3 majority was suffice. That is what Ranil and Maithri had done in their joint 19th Amendment.
    Prior to 19th Amendment, the President had the power to dissolve the Parliament at his discretion. However, he cannot exercise that power anymore as the Parliament is fixed for 4 1/2 years now. He can now dissolve only at the expiry of this Parliament.
    I am not a supporter of 19th Amendment. I am only stating obvious facts.
    In 2015, there was uproar in the country against the 19th Amendment. However, UPFA (Mahinda’s faction) went ahead and voted in support of it. I remember posting comments on LCN demanding Wimal to explain their change of stance. He and others held a press briefing afterwards and said that they had proposed many changes at the Committee Stage and it was passed only after those changes were incorporated. I don’t remember him giving examples of those changes. However, it was done with the consent of the former President and the current President. Besides, GL was also in the Parliament at the time.
    You say, “The President is elected by the island taken as one unit, a single entity. That is also precisely why the President is our leader; not the Parliament;”
    In general, yes. But it is not true about this President. Those who voted Maithri have expressed their regret for voting him in 2015 itself. He hardly have a “countrywide support.” Nobody wants to treat him as a leader. I think the President is suffering from mood disorder.

    • 0
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      It is interesting to note, that some of the amend clauses relating to president’s exec.power shifting to PM is still invalid in principle though implemented, which is the root cause of the present power struggle. It violates the Art 3 ++ read with Art 4 , It degrades functional acts of Pres.,As he is Responsible, Accountable ,But some other party has snatched the Authority . a dubious means of using authority. The Pres. is the head of state, rhe govt, the cabinet + armed forces . .This is a serious structural defect .Specially at a time when the Pres vs. PM situ.as at now, which has been functioning……..as well. In reality it violates his Due power. specially without approval at a Referendum. Part of the 19 th Amendt. is dislocated,invalid, creating a dead lock?/grid lock situ. this leads to PM ‘s acts leading to disfunctional end and challengable such as his expulsion possibility. those clauses are null and void pragmatically.

  • 7
    1

    Dr.Dayan J is the tailor made ideologue for Gamarala. He has championed three presidents- Premadasa, Rajapakse and now Sirisena. What is the common denominator ? .

    • 1
      3

      Who is this Gamarala U are referring to ??? I a professional analysis U should use rich language Not cheap terminology used by Journalists who mis use the Press freedom and later Regret .It is said that Humour is and act of aggression and bullying is an outdated primitive attidude not in line with the 21 st Cent beyond thinking

      • 1
        0

        sarath abayagunawardana:
        A simple suggestion: learn to use the English language, no matter in how simple a form, before you pretend to expertise in expressing yourself in it, leave alone level criticism at other people’s use of that language. Or is yours an exercise in proving that a little learning is a dangerous thing?

    • 3
      0

      Dicktators.

      DJ loves dicktators.

  • 2
    1

    Dear Dr. Dayan Jayatilleke

    I understand your argument, however we must remember that the Supreme Court can make a wrong decision. For proof of this we need to go no further than the dissenting opinion. The value of the Supreme Court is in its impartiality, not in being infallible. So let’s see who wins. The appeals court judges ruling is not very encouraging, however.

    “The American people should be the one to decide which direction the Supreme Court will go.”

    Jeff Sessions

    Whenever you put a man on the Supreme Court he ceases to be your friend.

    Harry Truman

  • 6
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    “The TNA’s political ancestors were afraid that universal suffrage would confer upon the majority its natural weightage in electoral politics and that the minorities would also be punching their natural weight. Thus the TNA carries an antipathy towards electoral democracy in its political genetic code.”

    What an absolute load of rubbish! Couldn’t wait to take advantage of the current political turmoil to take a cheap and dishonest shot at the Tamils, didn’t you?

    The TNA’s political ancestors knew that in Sri Lanka, unlike in other democracies, the Sinhala politicians and ruling elite will always use and did use the race card to practice majoritarianism leaving the Tamils powerless and at the mercy of the racists hence the demand for federalism in sixties and the demand for separation in the seventies. As a result, a country that was one of the most advanced in Asia post-independence is now lagging behind most of Asia.

  • 2
    0

    dont write about things you know nothing about

  • 2
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    An amendment is not an alternative to the constitution but an integral part of the constitution, which supersedes certain parts of the original document.
    I am sure that the writer is intelligent enough to understand the purpose of an amendment.

  • 3
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    “But the controversial way Rajapaksa recaptured power, combined with his supporters’ forceful take-over of media, telecommunications and government institutions, resembles a constitutional coup. Continuing to claim the prime ministership despite suffering multiple no-confidence votes in parliament has diminished his stature. Despite this, Rajapaksa and his party still stand to do well at the next elections.
    Recent constitutional reforms granting more power to the prime minister’s office mean Rajapaksa could lord over a cabinet of his choice and marginalise Sirisena if he retains his position. Rajapaksa is vindictive and once he consolidates his position he may even pick a family member to replace Sirisena. What he ultimately wants is to create a political dynasty with his oldest son as president.
    Sri Lanka’s rulers have repeatedly disregarded the country’s best interests for personal gain. And despite eliminating the LTTE, no one has compromised Sri Lanka’s long-term standing as much as Rajapaksa. Domestically, he sought to further marginalise the Tamils even while granting impunity to those attacking the island’s Muslims. (Most among these minorities did not vote for Rajapaksa and he believed that the narrative against them bolstered his Sinhalese Buddhist credentials.) He did so while undermining democratic institutions and establishing an increasingly authoritarian regime.
    From a foreign policy standpoint, Rajapaksa facilitated increased Chinese presence in Sri Lanka through non-transparent and corrupt dealings. This relationship unsettled India and the United States but benefitted Rajapaksa and his following. His return to power has elated China while deepening concern in India and the West. It is a return that does not bode well for Sri Lanka’s recuperating democracy or regional relations.”
    Neil DeVotta is Professor of Politics and International Affairs at Wake Forest University in the United States.

  • 2
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    Here journalist Dayan Jayatilleka takes up “The Spirit Of The Constitution”.
    .
    Just before ‘climate change’ raised its ugly head, we were enamoured and chose governing of people by people for people. Seventy years ago we buggered this by alienating the minorities away from the centre of power and successive GoSL have kept this up. ‘The Spirit Of Democracy’ got buried alive. Attempts, if any, to release this has been rendered treasonable by political schemers.
    .
    Journalist Dayan must read an introductory course to elementary 101 political science to understand this.

  • 1
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    My understanding is so far Jeyam Jeyam’s argument is, SC cannot hear the case, but it has to be settled in Parliament. It seems he accepts the parliament’s superiority coming out of 19A, but not rejecting 19A. Jeyam Jeyam has not put forward a defense of 19A illegal, or Null & Void by lacking a referendum or by any other reason.

    If others are also not rejecting 19A (SLFP & Slap Party Lawyers), there is a good change petitioners winning the case.

  • 6
    0

    Dayan,
    Stop writing rubbish and concentrate on how best to live as an Indian Colony.
    Let me pick on a few things and give you a history lesson.
    1) What is at stake in the battles in the courts is whether or not the Constitution has been up-ended by the 19th amendment, even though a two thirds majority and a referendum were not held in order to do so.
    *** No you are wrong . What is at stake is Sinhala Lankas Sovereignty. You pretend to be a clever man so wake up.
    RW is an appeaser and MR is a Gambler. and Sri Lnkas destiny is not in your hands . India is flexing its muscles and has sent two Warships to Colombo and I am sure you must have heard.
    2) But when the truncated 19th amendment was passed, Mr. Wickremesinghe was not a happy man. In his address to the parliament he said that the new 19th amendment was a temporary measure .
    *** 19th Amendment is irrelevant. What is important is Sri Lanka living within the confines of limited Soevereignty imposed by its proximity.
    3) Combined with this is the TNA’s long standing compulsion or ‘drive’. The TNA’s political ancestors were afraid that universal suffrage would confer upon the majority its natural weightage in electoral politics and that the minorities would also be punching their natural weight. Thus the TNA carries an antipathy towards electoral democracy in its political genetic code. It preferred Prabhakaran’s tactics and strategy because that cut through the electoral advantage of the majority. Today the TNA prefers a Parliament in which it is the king-maker, to a Presidency which is directly elected by the nation as a whole.
    *** Stop talking rubbish . We are not your POODLES any more. We call the shots.
    Bringing MR the THUG back by default or Popular Choice will spell disaster. Look what happened in Malta. The threat of Indian Intevention brought in Pro Indian Government.because peole were sensible .

    • 3
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      Correction Malta should read Maldives

  • 0
    0

    This so called socialist political scientist is a liability to the country, time to time he holds views that suits his socialist and self-saving views with an academic spin. What he basically says here is 19th amendment, which adopted as is, would give no chance of his favored MR running the country till the next election, doesn’t have the legitimacy unless it was passed with 2/3 majority at the floor of parliament or by a referendum. So what he says is if an amendment is envisaged to the constitution, it should pass those two tests, am not sure either one is sufficient or both. He seems a constitutional Guru. What he doesn’t want to say is the amendments up to the 19th, what about them, do they need these two tests?. He tried to hoodwink the public, and make them to think the way he sees, i.e. if not for 19th, MR done with by now.
    He doesn’t want to pin point the weakness of the SL presidency, which was introduced by JR, looking at what the USA executive Presidency does, but he wanted it to make even superior than what USA’s president accounted for. What is in display in SL is clear about what sort of harm can be done to a country where the absolute power deposited to an individual in a developing country. Where no strict rules are implemented in terms of an individual finance nor how he amasses his wealth and spent money to win an election. The amount of money as reported to buy out MPs is a clear example of how democracy is exercised and what money did for MR to win his first term presidency, by way of paying huge money for LTTE so they let no Tamils to vote in that election, which otherwise was a easy win for RW.

  • 1
    0

    Dayan Jayatilleke’s words.

    QUOTE “The Parliament is a kaleidoscope of shifting coalitions elected as and from a patchwork of localities. The President is elected by the island taken as one unit, a single entity. That is also precisely why the President is our leader; not the Parliament; and the directly elected Presidency is the apex of our state form, our state system and structure—not the parliament. The 19th amendment modified the architecture of one corner of our state system. It did not, could not, abolish, reverse or invert it.” UNQUOTE

    WHAT BULLSHIT!!!

    The President was elected by 6.2 million (51% or thereabout) of Sri Lankans, BUT 49% voted against him. So the argument that he represents all Sri Lankans does NOT HOLD WATER.

    WHEREAS,

    The Parliament which consists of 225 (they may include jokers, lunatics, drug smugglers, sadists, culprits, rapists, looters, bribers, chauvinists, religious bigots, idiots, dimwits, rascals, etc etc) were all elected by all Sri Lankans, 12+ million of us.

    So the Parliament is more representative of the people of Sri Lanka than the President. This is one reason that the Executive Presidency should be abolished forthwith. Parliament should have the final say in the affairs of government,

    What has transpired over the last few weeks is a very good eye opener for all thinking (many are still stupid) Sri Lankans to elect the right people to represent us. If not even God would not be able to help us.

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