By Rajan Philips –

Rajan Philips

It is too late to expect the current parliament to pass the Twentieth Amendment and end the practice of electing the Head of State. It is also too late to expect a magical deal between Mahinda Rajapaksa and Ranil Wickremesinghe to drag their MPs kicking and screaming to obtain  the requisite two-thirds majority. There is also the vexed constitutional question whether or not a referendum is also needed to change the mode of electing the President. It is again too late and not at all fair to ask the Supreme Court to adjudicate on this matter so close to the next presidential election when it should have been properly clarified soon after the last presidential election. But it is not at all late to avoid the old mistake of letting presidential candidates make abolishment promises before the election and breaking them later. We have the most solemn illustration of it in the present incumbent. 

To be sure, it is the parliament and not the president who can pass the 20^th Amendment. But our parliament has got so used to presidential whipping, it has lost its character to act independently even after the 19^th Amendment. In 1994, Chandrika Kumaratunga won the parliamentary election first, while promising to end the presidency. Ever since, the question of the executive presidency has dominated every presidential election and never a parliamentary election. The main reason is that political parties have put the premium on winning the presidency and reduced the parliamentary elections to a subordinate role. In the process, political parties have been constantly self-destructing themselves – through perpetual infighting and pre-election alliance-seeking. We can see around the debris from every political party. Put another way, the executive presidency has devoured the party system in Sri Lanka as a condition of its own survival. So, we have come to depend on electing a president to end the presidency. That was the sum and substance of the last presidential election. What is it going to be this time?         

The challenge that civil society organizations must pose to the current presidential candidates should not be about making a slate of motherhood commitments including the routine promise to abolish the executive presidency. Instead, civil society organizations should issue a new ultimatum to presidential candidates that they commit to getting the 20^th Amendment enacted, along with amendments to parliamentary and provincial council elections within one year of being sworn in as president. After the passage of the 20^th Amendment, the new incumbent president will become the first post-presidential president, similar to the last president under the First Republican constitution. In other words, the new president committed to delivering the 20^th Amendment should be under no illusion of serving out the full term like a pre-19^th Amendment executive president. In another word, there will not be another Maithripala Sirisena.  

Before looking at how such an ultimatum will play out in the upcoming elections, let us see how it would work if it were to be successful in the elections. Politically, we can assume that the person who wins the next presidential election with the commitment to delivering the 20^th Amendment, would be able to muster the requisite two-thirds majority in parliament. The question of the referendum requirement can be canvassed anew before the Supreme Court reinforced by the ‘mandate’ of the new president. One would hope that the Court would see the same light as Dr. Nihal Jayawickrama and hold that a referendum is not required to change the mode of electing a President under the Constitution. There is no need to revisit here the divided judicial opinions on this matter, except to add that Dr. Colvin R de Silva expressed an identical interpretation on the referendum question during the 13^th Amendment controversy, as Dr. Jayawickrama is doing now – and as the Supreme Court did then with a majority ruling. 

If the Court agrees, the matter ends there and the 20^th Amendment would be passed for good. If the Court decrees, on the other hand, that a referendum is needed, it can be piggybacked on the next parliamentary election to save some cost for our over-indulging in public plebiscites. Also, the next parliamentary could be dissolved by the President and a new election called any time after February 2020 (earlier than August 2020 when it is due), if for whatever reason a two-thirds majority support cannot be garnered in the current parliament. And it will be up to the new parliament and the new president to carry the 20^th Amendment through the constitutional rites of passage. In sum, if a candidate who is committed to passing the 20^th Amendment in the first year were to be elected as president, he would be able deliver on that promise without too many roadblocks. 

Possibilities and Challenges

A post-election risk is that the newly elected president could turn dark in his soul and go back on his commitment. This risk is minimal, because whoever wins the election undertaking to pass the 20^th Amendment will have every incentive to deliver on that promise, and no incentive to go back on it and become a national pariah. The greater challenge, however, is to find a candidate who will make the 20^th Amendment commitment and to make sure that candidate wins the election. There are quite a few possibilities here. 

The most optimistic but highly unlikely one would be where all presidential candidates commit to passing the 20^th Amendment. If there is only one candidate committed to the 20^th Amendment, and if he is also a reasonably strong candidate, then the onus will be on civil society foot soldiers to make sure that candidate wins. Things will get complicated if more than one candidate makes the commitment, and the need for strategic voting will arise. There will be no complication at all if it turns out that no candidate is willing to make the 20^th Amendment commitment. That would be a different story, but yet a possibility and one that will call off the serious bluff of many of us – born again presidential decriers. So, what is it going to be?   

Already, there is one candidate, Gotabaya Rajapaksa, who we assume is not going to make the 20^th Amendment commitment we are talking about. His reasons are simple. Presidency is the reason for his political being. Without it he has no reason to be in politics. Nobody would expect Mr. Rajapaksa to renounce his US citizenship just to become an MP. The question is whether Mr. Rajapaksa’s stand on the 20^th Amendment will set an example to other candidates, or will he be put on the spot if one or more of the other candidates start making the 20^th Amendment commitment?   

The second committed candidate is the JVP leader Anura Kumara Dissanayake who is coming forward as the candidate of the progressive People’s Power movement. His announcement turned to be quite a stirring political event, unlike the rather soporific induction of Gotabaya Rajapaksa as the SLPP’s presidential candidate. The one serious misgiving about the JVP candidacy so far is that there has been no mention of the 20^th Amendment, and no indication of what Mr. Dissanayake will do to the presidency if he were to be elected as the next Executive President. 

The omission, intentional or inadvertent, is hugely disappointing, because it is the JVP that introduced the 20^th Amendment Bill in parliament to get rid of the absurdity of having two elected sources of authority – the elected president and the elected legislature. Whether the JVP’s 20^th Amendment Bill was hatched in collaboration with the ‘UNP-government’ and the ‘opposition-TNA’ is irrelevant now. What is material is that our great parliament wouldn’t even take the JVP’s 20^th up for deliberation. With all of it – water under the bridge now, where is the 20^th Amendment on the JVP’s new presidential platform? 

The bigger question is what is going on in the UNP? In short, what is going on in the UNP and in every other party for that matter is what the executive presidency is doing to Sri Lanka’s political parties. For sure, no one in the UNP is talking about the 20^th Amendment. Suddenly, they are keen to move legislation to accelerate the provincial council elections. As far as I know, Sajith Premadasa has not said anything ever about the constitution or the executive presidency. Karu Jayasuriya, when he was talking about being a candidate by consensus, was quite clear that he would seek to become president only for the sake of ending the current presidential system. Now we do not know where he stands and what his thoughts are.

Prime Minister Ranil Wickremesinghe is as usual taking too much and saying little. Of the many things that he has been talking about, the one thing that struck me is his seemingly confident assessment that a majority of the people in the country want a constitutional change including the change to the presidential system. He is not alone in this thinking. DEW Gunasekara said the same thing at the 40^th death anniversary of Dr. NM Perera. And there are a whole host of others in between and saying the same thing. 

The question to Mr. Wickremesinghe is this: if he so thinks that he is the right person to be the UNP’s/DNF’s presidential candidate, will he commit himself to implementing the 20^th Amendment Bill in parliament within one year after election? Or is he on to another one of his long games, looking at a first full term and then a second term presidency, and give time to the UNP to get ready with post-2030 succession planning? It is not only Champika Ranawaka, but also people in general who are getting impatient with these games.

The onus is really with Ranil Wickremesinghe and Anura Kumara Dissanyake to set the 20^th Amendment ball rolling. Once they start kicking it, others will be forced to do their kicking. There will be a lot of internal kicking inside the UNP, and so be it. Gotabaya Rajapaksa will be put on the spot to decide if he should join in the kicking, or stand on the sidelines ball-watching. The civil society organizations must do their bit to keep the 20^th Amendment ball (bill) at the centre of the political field.