By 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.
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.