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 19^th 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.