19 September, 2020

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The 20th Amendment: Mahinda’s Golden Handshake & Maithri’s Moment Of Reckoning 

By Rajan Philips

Rajan Philips

The government’s rush to pass the 20th Amendment soon after the election is understandable given the political toing and froing of the last decade. What is mystifying is the desire to create a whole new constitution, and the appointment of an extra-parliamentary Experts Committee (thankfully, not a military Task Force) to produce a draft for it. The 1947, 1972 and 1978 constitutions had a pathbreaking purpose each. Is there such a purpose for the current SLPP government to overhaul the constitution? What is sought to be achieved after the 20th Amendment is passed, and after all the alleged defects and lacunas of the 19th Amendment are purportedly addressed? It turns out that the 20th Amendment Bill as presented has its own flaws and defects, and has drawn criticisms from among government MPs and influential supporters like the Federation of National Organizations. They are also not happy with the Experts Committee approach to making a new constitution.  

The 20th Amendment will have the effect of restoring the presidency to its pre-19A eminence, and diminishing the prime minister’s position to its previous nameboard status. No one knows what will happen if and when a whole new constitution comes into being. We are supposed to believe that unlike 19A, which was allegedly intended to elevate Ranil Wickremesinghe and undercut the Rajapaksas, the new 20A is not intended to benefit (or disbenefit) anyone in particular. Except, it so happens that the 20th Amendment will empower some Rajapaksas and disempower other Rajapaksas. Prime Minister Mahinda Rajapaksa, a former President himself, is set to be disempowered by the new amendment. 

In fact, 20A is a golden political handshake or a virtual retirement package for Prime Minister Rajapaksa. It may be that he is genuinely stoical about his disempowerment out of brotherly love, and a sense of paternal sacrifice for filial advancement. The changes are not so compensating for the other former President who is also in parliament, but as an ordinary government MP, Maithripala Sirisena. Sirisena is in a dilemma: to vote for 20A, or vote against it. That is his question. More on that later. 

Constitutional purposes

The constitutional purpose in 1945-47 was to guide Sri Lanka’s passage to independence with a fully responsible national government based on parliamentary democracy. In 1972, the driving motive was about asserting the supremacy of Sri Lanka’s parliament over legislative limitations and judicial oversight provided by the Privy Council in London. The political terms of reference was to make Sri Lanka a republic, for the first time in its long history, by asserting popular sovereignty – “not merely despite the Queen, but in defiance of the Queen,” as Dr Colvin R de Silva would memorably intone. Finally, the 1978 Constitution was to pivot Sri Lanka from a parliamentary system to a hybrid presidential parliamentary system. 

Ever since the 1978 Constitution was adopted, the constitutional debate has been about either abolishing or significantly modifying the presidential system of government. After 1994 an all-party consensus emerged on abolishing or modifying the presidential system. In the (January) 2015 presidential election, the two main presidential candidates (Maithripala Sirisena and Mahinda Rajapaksa) promised to abolish/modify the presidential system. The 19th Amendment was an outcome of that consensus, and was passed on 28 April 2015 with near unanimous approval in parliament. 

19A received the support of 215 out of the 224 (excluding the Speaker) MPs in parliament. Only one voted against, one abstained, and seven were absent. The last time such a broad consensus was achieved over a constitutional proposal was 70 years earlier, in 1945, when the then State Council by a vote of 51 to 3, “endorsed the acceptance of the White Paper on Constitutional Reform,” which led to the adoption of the 1947 Soulbury Constitution along with independence. 

The new parliament has 64 newly elected MPs, which means that at least 152 MPs (excluding the one voted against 19A, and the eight who did not vote) who are now in the current parliament had voted for 19A in 2015. A majority of them are on the government side, and they are all prepared to vote for the 20th Amendment, repudiating everything they voted for only five years earlier. What compelled them to vote for 19A then, and what is compelling them now to somersault in support of 20A? 

It turns out, however, that not all the SLPP MPs are happy about everything in the 20th Amendment Bill that has been presented to parliament. There is no surprise that the architects and supporters of the 19th Amendment are mounting a spirited opposition to the proposed 20th Amendment. What is surprising is that the government is also getting flak from among its ardent supporters including the ideologically influential Federation of National Organizations (FNO). And they are not buying the government’s rearguard explanation that changes can be made at the committee stage of the amendment’s passage in parliament. Sneaking in committee stage changes of a substantial nature, I believe, are a Premadasa era legacy, and much of the 19th Amendment’s defects have been attributed to last minute tinkering. Why repeat that history?   

The Sirisena dilemma

The government leaders are also fully confident that they have the requisite two-thirds majority in parliament. At the same time, they are not unaware of the known unknowns in Maithripala Sirisena and his ungallant band of SLFP MPs. The President kept them out of the cabinet for the first time. Now in the new 20th Amendment, the limit on cabinet size has been removed to signal Sirisena & Co that if they vote for the amendment, they would be rewarded with cabinet positions. Will such cynicism be acceptable to the high-principled folks in organizations like the FNO? 

On the other hand, Maithripala Sirisena faces a real dilemma. To vote for, or against? That is the obvious question. But the former President faces another question. For all its infirmities, the 19th Amendment is Sirisena’s political baby. He has been making that paternity claim loud and clear all the time. The new 20A guts virtually everything out of Sirisena’s baby, except for three provisions dealing with presidential term limits and the public right to information. Can he now betray his 19A baby and champion its 20A slayer? And that in return for a mere second list ministry position? 

No one was going to hold her or his breath waiting for Sirisena to make up his mind about the 20th Amendment. But with criticisms emanating from within the government’s own ranks and supporters, Maithripala Sirisena and his SLFP group also face a different challenge, which can also be a new political opportunity. Will they go along with the Amendment Bill as presented, or use their clout in the government’s two-thirds majority in parliament to effect changes before it goes through to committee stage? 

The former President has many contacts in the BJP opposition, including its leader, Sajith Premadasa. That sets him up to try to do for the new 20th Amendment as an overlooked government MP, what he did for the 19th Amendment as Sri Lanka’s President. That is to build a new consensus in parliament for a modified 20th Amendment, that will go beyond the government’s two-thirds majority. Mr. Sirisena might even get a sympathetic nod from the other former President in parliament, now Prime Minister, Mahinda Rajapaksa, inasmuch as the 20th Amendment is also his retirement package. None of this might end up happening. But stranger things have happened. What is clearly happening now is that the fight over the 20th Amendment is just starting. It will take its own course no matter what majority the government has in parliament.  

Sri Lanka’s constitutional evolution has come to a consequential turning point which nobody would have expected even one year ago. What is now cooking is a happenstance constitution unlike the 1972 Constitution, its 1978 successor, or the half dozen or more alternative schemes that have been drafted and discoursed for over forty years to modify or replace the 1978 Constitution. As well, the upcoming changes which will have serious implications for the role of parliament, are being presided over by an elected President, who has never been a parliamentarian, nor who will ever be in future, and who has no background in law or matters constitutional. 

This is not a criticism of President Gotabaya Rajapaksa’s legitimacy to preside over constitutional changes, but a pertinent observation on the recent turn of events in the country’s politics and the composition of its parliament. For, and germane to the constitution, all previous constitutional efforts have been directly led by legal luminaries and constitutional experts, many of whom were often parliamentarians themselves. It is not at all the current President’s fault that the country has come to such a pass that the cleanup of its alleged constitutional mess has to be led by a President with only a military background, and a parliament that hardly has any one of constitutional gravitas, stature or credibility. There is plenty of blame to go around, but that is of little value today. 

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Latest comments

  • 14
    1

    The author’s analysis rings true.
    The Rajapaksa government that rushed to table this draft of self-serving amendment with cunningly built in hints of rewards to the flailing cronies such as Maithripala Sirisena is now amenable to revise the draft. Surely, their accommodations are unlikely to address the concerns of the pro-democratic cries.
    ———
    AG De Livera gave the green light to pass without a referendum; if the draft of 20th amendment as presented can actually pass without a referendum, then we need to fix that short coming in our constitution.
    ———
    Prez Gotabaya’s clarification on the supposed ‘fallacies’ of the 20th amendment was anything but a clarification. It ignored the mounting concerns and consensus.

  • 19
    0

    Mr Rajan Philips
    You have written a well researched article on constitutional changes in Srilanka. Whatever the changes are for the benefit of selected individuals or groups that are the holders of power at that particular time. Which is expected and normal in any country,the only difference in mother lanka is the frequency of these changes. That is what makes Srilanka unique. You have asked “What compelled them to vote for 19A then, and what is compelling them now to somersault in support of 20A? ” The simple answer, in my opinion, is MONEY. The srilnkan politicians , old and new, are a bunch of corrupt , selfish, greedy opportunists who are bent on misleading the illiterate srilankan
    masses.
    You also wrote “Maithripala Sirisena faces a real dilemma. To vote for, or against?”
    As far as me and many srilankans know that there no dilemma for Maithripala, he is a shrewd evil character who has already decided what to do and has already informed his terms and conditions to MR and Gota, as long as those conditions are met his and his cohorts support is guaranteed.

    • 10
      0

      Mr Umberto,

      exactly the truth. Thank you for your comment :)
      :
      Gamaralage Sirisena is the architect of today s crisis. He is the person who paved the way high criminals to be back and continue ruining this nation again.

      Mother lanka will punish him sooner than later. Sirisena s leadership proved well how much danger could be brought by an uneducated man as a leader
      -.
      I have not the least respect to this Sirisena – how can a man who as a senior politicians in srl politics, being that long in lanken politics, over a period of 50 years but to stand against own people ? this is not comprehensible to me, but i dont know about the others
      . Today, the entire blame is passed on to the hands of UNP, but Sirisena is the failure of previous govt. His total ignorance or lack of leadership skills, let those innocient worshippers be murdered on brought day life. I think the man deserves to be convicted as the key person to tbe charged for that high crime.

      If our Late Rev Sobitha Thero would have been alive, we could discuss the size of the injustice resulted by SIRISENA s leadership- those who supported Late Rev Thero then are today speechless…. that is why we are taken aback by anything today.

  • 23
    1

    Having lived thru all three different constitutions, I could safely say that every time we meddled with the existing constitution, we dug our grave deeper and deeper. The indications are that that trend would continue with the 2020, as well!
    ____________________________
    The Soulbury Constitution, by far, is the best of the lot, despite its allegiance to the British Monarch.
    ____________________________
    The reason for our failure to arrive at the right Constitution is the burning desire to put Individuals above the Country.
    ____________________________
    MR may not feel comfortable with the modifications being advanced, but he has a goal. His goal is to prepare a platform that would be best for his doted offspring, NR.

  • 33
    1

    When I see MS, I understand the exact meaning of ” sick to the stomach”.
    A supporter of MS got killed by Premalal J, and this man was sitting in the Parliament without uttering a single word in protest, while the murderer was sworn in as an MP. Can a man be that low? Is he even a human? What is he?

    • 10
      1

      ‘Can a man be that low?’
      .
      Yes he can
      .
      ‘Is he even a human? What is he?’
      .
      He’s a Sri Lankan politician

  • 15
    0

    So, will MS eat hoppers with MR again and walk off through those saloon doors?

  • 19
    2

    To vote for, or against? This is not a big problem for the hypocrites (the MPs) as each weigh what is there for “me” – not for the country. Easily swayed by money, a deal, or even elevated as a state minister of toilets.
    Even God cannot help Sri Lanka’s idiot voters now.

  • 5
    20

    The only justification for 20A is Tamil and Muslim terrorism. Is it a true threat? I do not think so but most Sri Lankans believe it is.

    There are elite military units that are answerable only to the president.

    e.g. STF, SF, Sri Lanka Marines, LRRP, DPU

    If the president is answerable to the parliament, even TNA can question the president! That should not be the case. The president (and elite military units) must have complete immunity and impunity.

    20A will be passed at a referendum.

  • 2
    10

    The one who faces real dilemma is Sajith Premadasa.
    Considering his own age he most certainly must be hallucinating of becoming the president one day while being in the opposition at present, it is immaterial to him who gets more powers between the President or Primeminister.
    At the bottom of his heart I have no doubt that he is wishing for 20A.
    Remember he never talked about abolishion of EP?. Neither his civil society and NGO promoters at the last two elections.

    Soma

    • 11
      1

      somass.

      As usual you are talking rubbish/crap.

      “………………..it is immaterial to him who gets more powers between the President or Primeminister”.

      Since your brethren Thiruvengadam Vellupillai Prabaharan rigged elections in 2005 and won it for your other brethren crooked Rajapakse clan, MR and his family never relinquished their control over corrupt Sri lankan state institutions.

      Therefore neither Hopper Sirisena nor Ranil could exercise their legitimate powers as elected president or prime minister. The corrupt state functionaries, armed forces and police were still loyal to the clan as they knew their long term interest lies with crooked clan than legitimately elected government. Even Hooper Sirisena jumped ship during the middle of the journey, even Hopper went onto recognise Mahinda’s coup in October 2018.

      When you have a tried and failed undemocratic system in this island does it matter who has more power. It will be the clan which will hold and misuse power for foreseeable future.

      It is very likely all these Mahinda machination, clever dick manouring, …. transfer of democratic powers to the war criminals and saffronistas, …. will lead to a Southern South Asian Spring, and chaos.

  • 11
    0

    In a country where inside and outside the Parliament we have several “Monkey Politicians” who jump from party to party and change their policies depending on which party they are in at that time, clearly shows almost all the so called Politicians are self serving individuals. They come into the Parliament promising heaven and earth but at the end they look after only themselves.

    We have classic examples. Take the case of so called “Professor” G.L.Pieris (whom I prefer to call as Gon L Pieris), an educated person who was pushing for abolishing powerful Presidential position, is today spearheading the Presidential seat even more powerful. He is the minister in-charge of education. What can anyone learn from such a person who changes his policies more often than changing his own underwear! Could he have won a seat if he contested the election without coming in through the back door ”Pinata Seat” national list, I doubt. How can his own party members call him Sir, when his actions have over the years, over and over again has shown he cannot be trusted at all. At present he is the “door mat” of the Rajapakse family. I will not be surprised if he in the near future becomes their “toilet paper” to be used and flushed down the toilet.

  • 8
    0

    Now there is none to take the responsibility of drafting the 20A. The Minister of Justice Mr. Ali Sabri says when questioned by the media, “I don’t know”. Wimal Weerawanse, another Minister, says: “I don’t know who brought it to the Cabinet”. In other news, it is revealed that there will be a “Delay” in bringing the 20A before the Parliament. The only Minister (Minister type) Prof. G.L Peiris is the only one to “Defend” the “20A’, and his “Defense” is to say that without it the country cannot “Proceed” forward. So, hour by hour and day by day, “Road Shows” and “Dramas” are unfolding, re. this “20A”.Interesting times are ahead and let us wait and watch.

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