1 October, 2020

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The Retrograde Step To Abolish The Progressive 19th Amendment Should Not Be Allowed!

By Mohamed Harees –

Lukman Harees

Democracy means government by discussion, but it is only effective if you can stop people talking.’ ~ Clement Atlee

The recent elections in Sri Lanka , which saw a decisive shift in the popular mood, have brought the debate over constitutional reform into sharp focus and have already led the new government headed by President Gotabaya Rajapaksa to move hastily in this direction. Both President Gotabaya and Prime Minister Mahinda made the abolition of 19th amendment as the main election plank during the Presidential and Parliamentary elections. SLPP led by them secured a two-third majority in parliament during general elections held this month, thus paving way for these constitutional amendments. The Cabinet recently granted approval to abolish the 19th amendment to the 1978 Constitution and replace it with the 20th amendment.

The spurious argument that 19th spelled doom for Sri Lanka and therefore need to be abolished has been developed by political strategists to gain power and has no proper basis either constitutionally or otherwise. It presupposes that the country was in good shape before this amendment which is nonsensical to say the least. The fate which befell on the country in recent times was not due (even in part) to the ill effects of this Amendment, but due to the inefficiency and apathy of the Yahapalana leadership. On the contrary, the 19th Amendment only brought about much needed  limitations and restrictions on unlimited arbitrary Presidential powers which led to much abuse by giving wide powers to appoint any person to high offices in government as he/she wishes. Still the Presidential immunity which conferred on the holder of Presidential Office exempted him/her even against criminal conduct remains intact. The fact that the office of an Executive Presidency gave a form of stability to the country also proved to be a myth to say the least, ever since JRJ enacted this disastrous Constitution in 1978. Thus, despite being a crackpot Head of State, Sirisena should be given at least this credit – to have initiated this vital Amendment. Today, the people are talking about replacing one amendment with another of a Constitution to deal with Presidential powers. But, what happened to the continuous cries of the country to abolish the office of an Executive President?

The Amendment was passed in 2015 during the initial phase of the former Yahapalana rule led by President Sirisena and Prime Minister Wickremesinghe, almost unanimously voted by the Parliament including those in the SLPP camp today. Only Sarath Weerasekera voted against. Of course, 19th Amendment was surrounded with controversies and criticisms. However, despite being at the butt-end of much flak, and even as its critics found it falling short in some respects, this piece of legislation was hailed by many, including members of civil society, as undoubtedly one of the most progressive constitutional amendments which has ever been passed by the Parliament of Sri Lanka, According to experts, particularly, both the 17th and 19th Amendments were relatively progressive in that they established a Constitutional Council (CC), which was expected to de-politicise the process of making appointments, and thereby improve the legitimacy and independence of high offices and independent commissions. The CC and independent commissions have occupied a central place in constitutional discourse over the last two decades.

The statute sought to clip the President’s executive powers. The concentration of power in the presidency gradually sucked the life blood out of numerous public institutions including the judiciary, leading to a political culture in which the meaning and logic of independence, merit, and even efficiency were replaced by partiality, corruption, and nepotism.(S. Gamage & S.Hettige,‘Democracy, Ethno-Nationalist Politics and Patronage Sri Lankan Style’ Asian Studies Review). The manner in which appointments were made to the higher judiciary in the 1990s is a case in point. Judges like Sarath N Silva and Mohan Pieris were examples of corrupt appointments. But, the President’s decisions cannot be subjected to judicial review. The fate of the Permanent Commission to Investigate Allegations of Bribery or Corruption (CIABOC) is another example of the impact of politicisation on public institutions. It also to strengthen independent commissions, a progressive legislation in contemporary Sri Lankan history – the Commissions of the Elections Commission, Public Service Commission and Police Commission, to name just a few.

The Rajapaksa camp however viewed the 19th Amendment’s clauses as primarily intending to prevent its leaders’ return to power. According to experts, the 18th Amendment, which was applicable for a short time, in fact replaced the CC with a Parliamentary Council which had no teeth, no independence, nor expert representation. This amendment weakened the rule of law while it was in force in a drastic way. More specifically, they concerned reforms to the power of the executive president to make appointments to several high public offices and independent commissions.

The 19th Amendment came into focus after the 2018 constitutional crisis in Sri Lanka which began with the removal of Wickremesinghe from the office of the prime minister by the then President Sirisena in a surprise move. PM Ranil Wickremesinghe refused to step down citing it as an unconstitutional move, thereby the constitutional paradox became exacerbated. The Supreme Court subsequently quashed the then President Maithripala Sirisena’s move to dissolve the Parliament unconstitutionally. Before the 19th Amendment, the President enjoyed the power to dissolve the Parliament after one year from the date of the General Election, which was extended to 4 ½ years under the said Amendment unless the Parliament decides to be dissolved by itself.

It was foolhardy to suggest that the safeguards against the President’s arbitrary powers under this Amendment will not work on the ground underlining some isolated incidents which occurred under extraordinary circumstances. In fact, anti-19th Amendment camp then raised some criticisms based on Article 46(2) of the Constitution, in the context of the arguments that the country ended up in a deadlock due to the President and the Prime Minister being elected from two different political parties and that the President does not have the power to remove the Prime Minister or any member of the Cabinet. However those arguments that strengthening the position of the Prime Minister commanding most confidence of the Parliament can lead to the creation of two power centres in government appear nonsensical as such Constitutional practices are being successfully and efficiently followed in the other countries notably France, considered as the ideal model of stable governance. Besides, these types of deadlocks were not new; but were are prevalent in Sri Lanka, even before the 19th Amendment too.

There were also arguments then levelled that the Parliament became ineffective and led the country  to an anarchy in a context of a hung Parliament arising from the fact that the dissolution of Parliament before the said 4 ½ year period from its first meeting was not possible as it required a 2/3rd of the Parliamentarians to vote in favour of such dissolution. However, this argument too does not appear to hold water, as the countries which follow the same constitutional practices have become the champions of economic and political stability. UK is one prime example, which witnessed three general elections within the last five years. Thus it is clear that a Parliament does not become static because of the mere fact the Constitution ensures that the legislature not being dissolved by one individual in an arbitrary fashion.

Another ground breaking step introduced by the 19th Amendment was the ‘Right to Information Act’ under Article 14(A). The Right to Information Commission is the central oversight and enforcement agency established under the Right to Information Act, No. 12 of 2016. The basic objective of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Public Authorities, contain corruption, and make our democracy work for the people in real sense.

Another long-overdue reform which came to reality via this Amendment, was the presidential term being reduced from six to five years and the restoration of the two-term limit, although the incumbent can seek re-election after four years in the first term. Parliament’s term was also reduced to five year. In fact, Mahinda Rajapaksa scrapped two-term limits for the president per 18th Amendment, after he was re-elected in 2010, allowing him to stand a third time. However, 19th Amendment put an end to this dream. Present  incumbent Gotabaya Rajapaksa should thank this 19th Amendment, if not for which his brother would have been the Presidential candidate.

Another positive feature is the repeal of the ‘urgent bill’ procedure. Previously, a Bill endorsed by the Cabinet as being urgent in the national interest could be passed by a fast-tracked process, which attenuated the scope for pre-enactment challenges in the Supreme Court. This procedure has been frequently abused, especially in using it to pass manipulative constitutional amendments. The Amendment also restricted the number of Cabinet Ministers to thirty, as well as limits the number of other Ministers, although if the first and second largest parties represented in Parliament come together to form a government, the size of the Cabinet could be enlarged through an Act of Parliament. This strengthens Parliament’s independence by limiting the scope for the co-option of MPs through patronage appointments and vote bloc clientelism.

The 19th Amendment represented an incremental step in the right direction in democratising the Sri Lankan state. It would have been desirable to cut back presidentialism further but the Amendment achieved what was politically possible at that time. However, as a CPA Report in 2016 said, ‘as the experience under the Seventeenth Amendment and the adoption of the Nineteenth Amendment amply demonstrate, these progressive developments can be sustained only if the political culture within which these institutions operate are also transformed and if the process of democratisation is strengthened.

Overall, unless the public activism is duly tuned to these emerging developments and take action to prevent any adverse impact on the democracy by abolishing this Amendment, the government will proceed to impose its will based on the unprecedented mandate it supposedly received to enact these changes. The question whether the 19th amendment is to be abolished in toto or in part or whether it is for beneficial to public interest or will it be a retrograde step should engage the public in a series of close inspection with tooth comb precision, without allowing easy passage through Parliament. Otherwise, the checks and balances mechanism and the process of public accountability will be undermined. A ‘democratic dictatorship’ may be a misnomer; but Sri Lanka, a country which enjoyed universal suffrage granted in 1931, has all the tell-tale signs of it becoming a reality in the months and years ahead if there is no public activism to hold a powerful government to account.

It is no secret that populism, nationalism, and authoritarianism have been retarding Sri Lanka’s constitutional development. Further, repeated assaults to people’s freedom and right to equality have also been witnessed particularly since the 1980s. Thus, in the push and pull between authoritarianism and democracy in Sri Lanka, true the former has won out more often than not. But the fact that the country is not a full-blown dictatorship today is a testament to a spirit of resistance that can’t be snuffed out. For there is a parallel story of dogged resistance to these assaults, without which the country would be a dictatorship by now.

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Latest comments

  • 5
    18

    19 A was passed by 99% parliamentary approval.

    But today, for reasons very same ministers to stand against it ? Either they should have been sick or they have turned out to be sick.

    https://www.youtube.com/watch?v=3hbKnMuCD0g

    Srilanka would definitely end up being SOMALIA
    .
    The very same GAMARALA as if he is born yesterday, sits with the dogs again.

    • 2
      1

      leelagemalli,
      All MPs except one supported 19th Amendment on the condition that 20th Amendment that deals with the election system will be tabled. But the cunning devil Dr. Bond did not keep his promise.
      —-
      “But today, for reasons very same ministers to stand against it ? Either they should have been sick or they have turned out to be sick.”

      • 2
        7

        I have no doubt. there had been no bond scam to manner they exposed.

        It was instrumental to destroy UNP – If BOND scam caused the economy to go down to the manner they describe it today it should have been started in 2008.
        :
        There are plethora of evidence to prove that FINANCE ministry under MEDAMULANA mafia boss was highly corrupted and the sums went missing during his govt were records.

        All in all, it was a long term plan to destroy UNP…. and JVP… now they succeeded it… people are the losers.

        Wait and see, how the barbarians achieve it … time will show them a lession sooner than later.

    • 2
      2

      leelagemalli,
      Gamarala betrayed his human colleagues and joined ‘Yahapalana’ Government d*gs. But after staying with dogs for a while he realized ‘If you lie down with dogs, you will get up with fleas’ and returned to his human friends.
      Unlike ‘Jadapalana’ buffoons who were all out to take revenge from Rajapakshes and his supporters, as good Buddhists Rajapakshes pardoned Gamarala for his stupid decision.
      —–
      “The very same GAMARALA as if he is born yesterday, sits with the dogs again.”

    • 2
      2

      Mr. leela ge a….s,
      “The Cement column worshiper”
      .
      This is funny……
      I can see that the IDIOT getting more dislikes/thumb downs even from anti Rajapaksa CT community.
      .
      Go fly a kite with your “Holy Ghost” election monitors.

    • 3
      3

      Those who clicked against should equally be idiots – that know nothing to please Rajakashe rascals.

      Please CT dont let SCP or the like vicioius forces to ruin this platform.
      :
      They work together with THAT IRAJ WEERARATNE et al in order to bring another fake perception – which PEOPLE across the country would want to stand against 19A.

      Professionals of various fields should come forward to stand against those who make every effort to repeal 19A.
      .

      https://www.youtube.com/watch?v=fpm-GPlKCNQ

      • 1
        1

        Mr. leela ge ..nu..,
        .
        IDIOT.
        What are you talking about.
        The country just gave GR a mandate to not only to repeal 19A but whatever he deem fit to change.
        .
        That is the real perception.

    • 2
      1

      Those who clicked against should equally be idiots – that know nothing to please Rajakashe rascals.

      Please CT dont let SCP or the like vicioius forces to ruin this platform.
      :
      They work together with THAT IRAJ WEERARATNE et al in order to bring another fake perception – which PEOPLE across the country would want to stand against 19A.

      Professionals of various fields should come forward to stand against those who make every effort to repeal 19A.
      .

      https://www.youtube.com/watch?v=fpm-GPlKCNQ
      xxxx

    • 1
      0

      One law to bitch’s sons and another law to normal citizens.
      :
      https://www.youtube.com/watch?v=1VuAP6cVFXY

      Why dont srilanken University experts in History, Archaeology, Geology and the like fields seem to have no guts to come forward and clear the doubts of the people.

      Masses in and out of the country is not aware of the TRUTHS, FACTs about the demolished building.
      :
      CT over to you, please publish an article clearing the doubts of the people on the BUWANEKA bahu raja sabawa building.
      :
      Thank you. Only truths can open succeed it nothing else.

    • 0
      0

      CT over to you – beware of dogs.
      :
      For some reasons, COMMENTERS are being attacked by a hidden groups that works for Rajakashes rascals on this FORUM.
      .
      How come they add “unlikes” on the facts. Please beware of these dogs.

  • 1
    1

    Exam cheats and ilamist living in colombo and one in Swiss capital use incompetence to frame a extremely valuable document creating chaous to the country.
    The disappearance of the old Article 44(2) and Section 51 of the 19th amendment Act together are taken to imply that the President now cannot hold any portfolio. If someone poses the question, was the intention of the framers of the 19th Amendment the prevention of Presidents after Maithripala Sirisena from holding cabinet portfolios, the answer will be yes. Then the question that arises is, why was that point not specifically spelt out in the 19th Amendment? One would think that if some party wanted to amend the powers of the President they would do it boldly and up front and not try to do it circuitously and by implication. The reason why a prohibition on the President holding portfolios was not expressly included in the 19th Amendment is probably because the Supreme Court would have struck it down just as they struck down so many other explicit provisions which were meant to reduce the powers of the President.
    The SC stated in their Determination on the 19th Amendment that “the transfer, relinquishment.or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution.

  • 2
    2

    Racist separatist Malabar Vellala Demala politicians and opportunistic Muslim politicians with a ‘Turning Hat’ prefer the democrazy this country had because that allowed them to play hell and ruin the country. That democrazy made these ‘Para’ people ‘KING MAKERS’. So they want to remain as ‘KING MAKERS’.
    In 2019, Sinhalayo who were fed up with the system appointed a ‘KING’ making the ‘KING MAKERS’ redundant. We know that ‘KING MAKERS’ are not happy with the way things are moving. Who cares!

  • 5
    2

    Your selfish, corrupt howling will not stop the referendum support of 72% granted to this conspiratorial amendment.
    =
    So what do you plan to do Thambi, get your terrorist brothers to blast off St. Lucia’s Cathedral next?

  • 0
    0

    More than “Brain Cracking” studies and “Hair Splitting” arguments, EXPERIENCE is the foundation for any future. In keeping with that, didn’t we EXPERIENCE the relevance and the importance of the “19A” in October 2018 when the then President unilaterally and “Dictatorially” appointed MR as “PM” while a PM and a Government were in office and dissolved the Parliament? The SC unanimously decided that action was contrary to the Constitution. Isn’t that EXPERIENCE enough to retain the “19A”? On the other hand, if the present Government wants to do a “CHANGE”, it must definitely be for the “BETTER”, but not to step backward to achieve “personal agenda”. So, let the “CHANGES” be known so that public participation be a process of making that change. The “2/3” must not be used as a steam roller to achieve any “personal agenda”.

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