By Austin Fernando –

Austin Fernando

Proponents of constitutional economic reforms are struggling to prioritize solutions for the current socio-economic-politico imbroglio. Pohottuwa General Secretary Sagara Kariyawasam has said the economic crisis should be resolved first and then an environment created for constitutional amendments. President Gotabaya Rajapaksa banks on the Romesh de Silva Committee for the drafting of a new Constitution. The Janatha Vimukthi Peramuna, Tamil National Alliance, and Samagi Jana Balavegaya have prioritized enhanced wider constitutional reforms.

The government is allergic to very radical changes demanded by the ‘Gota Go Home’ protesters et al. Due to intense pressure, the 21^st Amendment (21A) has been tabled to revive the 19^th Amendment (19A). To my mind, it is a half-baked 19A Minus. It has diluted 19A, which, among other things, prevented the President from holding portfolios and limited the number of Cabinet ministers. The President has brought 42 institutions under the Ministry of Defense through the latest gazette, while admitting that he has made serious mistakes, probably disqualifying him from taking over so many responsibilities.

What the pro-democracy activists are demanding are far-reaching changes such as the President being stripped of immunity and powers to dissolve and prorogue parliament, the pardoning of convicted offenders, etc. It is well-nigh impossible for the 225 MPs to succeed in an impeachment motion to rid of any failed President, but the latter can dissolve the parliament and send home 225 parliamentarians, whether they are good or bad, at the stroke of a pen!

Further, new demands are in circulation, e. g., the creation of a National Policy-Making Council, strengthening public service through depoliticization, enhancing financial accountability (Article 148) through Committee on Public Enterprises, Committee on Public Accounts, Committee on Public Finance, etc. in the Parliament, the appointment of the Monetary Board and the Governor of the Central Bank with Constitutional Council approval, the appointment of the Ministry Secretaries, Provincial Governors, Ambassadors, et al on the advice of the PM in consultation with the Cabinet, etc.  21A does not incorporate any of these and still, government politicians and some civil society spokespersons consider 21A is the best!

Dual citizen decides two-thirds!

One controversial demand is barring dual citizens from holding public office.  A section of the Pohottuwa Group opposes this since MP Basil Rajapaksa will be affected. For instance, MP Sagara Kariyawasam, the General Secretary of Pohottuwa has said that the Constitution should not be designed to target specific individuals. He has overlooked the fact that 20A removed the bar on dual citizens for the benefit of a single individual, namely the same Basil Rajapaksa.

In a lighter vein, it is noted that many of those who are opposed to dual citizens holding public office have Prime Ministerial/ Presidential dreams and consider Basil Rajapaksa as a stumbling block to them. They fish in troubled waters!

Controversial proposals of this nature had to be withdrawn to ensure a two-thirds majority when the 19A was approved by Parliament. On the other hand, another way to enhance the powers of the President under 21A is by withdrawing certain powers that were chopped by the 19A. The media mentioned further strengthening the President’s hand by converting “advice” to “consult” in appointing Ministers, allowing the President to remove the PM, etc to which even the incumbent PM has agreed. What a pity of a PM to give in having fought tooth and nail for such good governance seven years back?

All these are to make the Pohottuwa parliamentarians psychologically comfortable and to motivate them to support 21A. What everyone does not consider important is that constitutions are not only made to suit persons in power. Constitutions are for the long-term. I think something similar might happen this time around as well, as in May 2015.

Thinukural reports that Minister Wijedasa Rajapaksa has stated that the “provision on preventing dual citizenship holders from entering parliament is merely a proposal.” It may be a signal for bargaining to withdraw it at the Committee Stage for a two-thirds majority to be mustered. History may repeat itself, and Wijedasa Rajapaksa will be The Savior! He will surely have good reasoning for what happens.

Though I am no lawyer, to my intuition I find one roadblock to Basil Rajapaksa and company. It is in Article 78(3) which was introduced by the Gotabaya Rajapaksa government when 20A was introduced. It says as follows:

78(3) Any amendment proposed to a Bil lin Parliament shall not deviate from the merits and principles of that Bill.”

It will be the inviolable, sacrosanct right for the Opposition to harp on it if Wijedasa Rajapaksa or a Basil Rajapaksa supporters attempt to withdraw the “proposal” (as the former has stated in Thinukural) to be constitutionally crooked to obtain two-thirds at approval. It will be decided by the House or a Court of Law one day when the “merits” and “principles” of the Bil are challenged and decided. In the House, I do not expect merit and principles to reign. Anyway, Parliamentarians may use this provision to prevent anyone from bringing an amendment at the Committee Stage, if lacking merit and principles of good governance meant by 19A. Let us keep our fingers crossed to see the outcome!

If 21A does not receive a two-thirds majority, the President may be the happiest. Some civil society persons, without being critical of attempts to dilute the 19A, as it is by day, claim they accessed the country’s highest political leaders, and everyone has agreed with their proposals. But concurrently we hear dissenting voices from the latter, making us wonder who is telling the truth.

Economic and constitutional mess!

Many proponents of constitutional reforms steadfastly believe that the economic collapse was due to political mismanagement, exacerbated by 20A, which led to the concentration of too much power in the executive presidency. They insist on reinstating the 19A even with its weaknesses. Another reason is the conviction that 21A is a halfway measure aimed at strengthening the position of the President. In the meantime, some demand a total system change and think it should be done constitutionally in one go.

Several critics believe that no system change could happen unless the President resigns. At a workshop attended also by Aragalaya representatives, this view was emphasized more than anything else. When difficulties were mentioned, they cited the removal of PM Mahinda Rajapaksa as proof of the effectiveness of pressure brought to bear on the government and insisted the President, too, should be similarly dealt with.

The Bar Association of Sri Lanka (BASL) wants the Executive Presidency abolished early. The public, civil society, and the Aragalaya demand that the President leave office immediately. Those canvassing for the abolition of the presidency or/and resignation question why a failed President should be allowed to be in office. Nevertheless, it is difficult under the prevailing constitutional law. This made the Aragalaya demand that the President go home. Those who are supportive of the President claim that he was elected by 6.9 million people, though the reality must be troubling them.

PM Ranil Wickremesinghe believes that the BASL is of the view that the 20A must be abolished and does not mention the President’s resignation. True. BASL proposals are extremely proactive, but they are not sacrosanct. Nor are the views of the Aragalaya or civil society views for that matter! The PM thinks that after the passage of the 21A, having restored the 19A, and strengthening the Parliament, the PM, all party leaders, and the President must decide a future course of action.  It appears that everything has been positive and the PM believes that the President would leave office when party leaders wish him to depart. Nonsensical and wishful thinking!

But the Minister of Justice does not want to restore 19A through 21A. Hence, how 21A strengthens the Parliament is an issue. For example, imagine a situation where the parliament is prorogued to save roguish sugar importing businesspeople or “bond rogues” or to spite another politician. It is only wishful thinking that 21A, which provides for the President to do so, will strengthen the parliament. At a time when the President’s powers to pardon convicts have been challenged before the Supreme Court, moves to retain such power sans checks and balances suggested by the BASL, are absurd.

Combined Economics and Governance approaches

The success of efforts being made to achieve economic revival with international assistance hinges on not only economic reforms but also the implementation of political reforms. Hence the need for an approach, which supports the combination of both, as evident in the call for “a strong and conducive environment for resolving the balance of payments crisis would be to direct the country to a program of structural reforms.” They must go hand in hand, and not otherwise.

For instance, the IMF Staff Statement speaks of restoring fiscal sustainability, protecting the vulnerable and ensuring credibility of the monetary policy and exchange rate regimes; preserving financial sector stability; and states structural reforms to enhance growth and strengthen governance. Hence it can be seen that economic and political governance is on the IMF agenda.

IMF Chief Kristalina Georgieva has stated that what we undergo now is “a result of mismanagement,” and the most important thing to do is to put the island nation back on a sound macroeconomic footing. We know who bungled the macroeconomic footing and who admitted ‘mistakes’ and hence was responsible for mismanagement. The 21A tries to enable those responsible for the current mess to exercise the same powers to mismanage the economy!

The World Bank has said that it works with the IMF and other development partners in advising Sri Lanka on appropriate policies to restore economic stability until an adequate macroeconomic policy framework is in place and does not plan to offer new financing to Sri Lanka. The macroeconomic policy framework will invariably include political governance reforms too.

 US Ambassador Julie Chung, at a meeting with the Speaker, has emphasized the need to carry out political reforms desired by the people and to safeguard democracy in the country. The Ambassador has said she hopes the government, including the new PM, will be able to bring about political stability and overcome the current economic crisis.

Samantha Power Administrator of USAID pledged her support to Sri Lankans and committed that USAID would help the country weather the crisis and concurrently stressed the need to urgently undertake political and economic reforms. Samantha Power’s power when she works closely with other donors such as the IMF, the World Bank, G7, and others to support Sri Lanka is assured, but her aforesaid concerns will influence her thinking.

Indian PM Narendra Modi has stated that India will continue to stand with Sri Lankans and support democracy, stability, and economic recovery in Sri Lanka. He also combined political stability with economic revival.

All foreign dignitaries have stressed the need for political stability, but SLPP General Secretary Kariyawasam is convinced otherwise.  Understandably, this is to defend his political boss. He contradicts even the President who has prioritized political reforms.  Against this backdrop, the onus is on PM Wickremesinghe to prove that he is in control of the situation.

The Way forward

The problems faced by the government in respect of 21A are very complex. There are conflicting demands even within the government group. Civil society does not speak with one voice. The President’s wishes are reflected in 21A, for he has confessed that it was proposed with his consent. No President will voluntarily give up powers in 20A. Discussing political power I am reminded of a quote in ‘The Power of Politicians.’

“The need to seek and retain power never goes away, and our political leaders are vulnerable to corruption just by virtue of that. … For a democratically elected politician, walking alongside every policy development, every wish for wisdom, is the thought of what its effect will be on gaining or retaining in power.”

This applies to Gotabaya Rajapaksa, Ranil Wickremesinghe, Sajith Premadasa, et al without exception. They will do everything to gain and retain power. Hence, with many manipulations, Minister Wijedasa Rajapaksa may be able to secure a two-thirds majority for 21A, after compromising the provisions such as those that prevent dual citizens from holding political office, unless the President and the PM defeat moves being made by Basil.

Reviewing 21A by Minister Rajapaksa and the PM before ratification could prevent mass resistance. Those in civil society and Aragalaya also should consider these practicalities of implementation without saying “To hell with the Constitution.” Aragalaya also needs to gain and retain the power to bring about changes democratically and hence the above-mentioned quote applies to it as well.

All politicians can learn a lesson from what Elaine Glaser says in Anti-Politics: “… politics is about a generality of jurisdiction, a social desire to collectively organize how things work- to have a single, agreed way of doing things.” At present we are not destined for such politics but manipulative crookedness. Let this statement be heard by all political groups.

Civil society also should mind the criticism against them as carry-overs of what Hirunika Premachandra started at Mirihana. It must be aware that it should not allow the politicians to take it for a ride with promises to reduce presidential powers later, to secure a two-thirds majority for the 21A. It will not happen as many in politics whether in the government or the Opposition aspire to use these draconian powers and will fall back at the crucial juncture because as quoted above, they need to ‘gain’ and ‘retain’ power.

To PM Wickremesinghe one may say, “Sir, this is the last opportunity for you to make good governance a reality, and do not allow it to be whisked away by manipulations. If you do not achieve it now, you will be called a failure who sinned against democratic good governance values, for which you are beholden even in the international arena.”

Let us wait to see whether the PM heard us!