24 May, 2019

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Why A Referendum Is Necessary For 19A

By Kusal Perera

Kusal Perara

Kusal Perara

There are politically important and serious reasons why this piece of legislation called the 19 Amendment has to go before the people for their direct approval, before it becomes law.

  1. There was no transparency, no accountability in the drafting process. It is an accepted democratic practise to have the process of drafting a constitution as an open, people based process. This left the people totally out of it in every way.
  2. This parliament lacks any legitimacy having deformed the will of the people as decided at the 2010 April elections and therefore holds no moral right in representing the people anymore.
  3. The installing of this government with Ranil W as Prime Minister is a contradiction in Constitutional provisions, where the President is expected to appoint a PM in his belief holds the majority in parliament. No one would dare say, President Sirisena believed RW with only 41 MPs could command a majority in parliament. Their private agreements though campaigned for during elections are not Constitutionally valid, unless RW commands a majority as required by Constitution.

As such, the following brief explanations can be of importance in arguing for a Referendum in adopting the 19A that is now Ranil Maithriin parliament.

  1. The promise during the whole presidential election campaign was for democratic governance; explained further as one that would be transparent in every aspect, would hold itself responsible to the people and thus would be accountable to all decisions made and their implementation. “Yahapalanaya” was explained as such.
  2. The promise was also to curb the Executive Presidency to an extent it could be held responsible to the parliament and therefore would be working in liaison with the cabinet of ministers, while the President would be equal as any citizen before law, with immunity removed.
  3. The Constitutional Amendment called the 19 Amendment was to be adopted in parliament to effect such change, including a Constitutional Council to establish commissions that would be truly independent without any pushovers by the executive as before.

These were the main and major promises that laid the basis for the victory of common candidate Sirisena. In swearing in Ranil W as PM immediately after his own swearing in as President, he only kept his promise made to the voters as agreed between the two of them, that in turn installed a new government which holds no majority in parliament and is not Constitutionally valid.

With a government installed in parliament without a people’s mandate through an election now affecting Constitutional Reforms sans any public consultations too, the present parliament cannot be substituted for the people.

  1. This parliament has no legitimacy. The will and the choice of the people in electing their representatives to parliament have been horribly altered within the parliament, since it was elected in 2010 April elections. This parliament therefore holds no people’s sovereignty.
  2. It is not the political party/alliance elected to government that is now governing the people. It was not voted out either. The present government installed by President Sirisena on a promise made for elections, led by the UNP in alliance with the JHU and the Muslim parties depend on the votes of the political party/alliance elected to government in 2010 April.
  3. A heavily depreciated minority party brought to government on a presidential decision and depending solely on the majority of the Opposition, has no moral right to adopt Constitutional reforms in a parliament that also has no legitimacy.
  4. Necessary 2/3 vote in parliament to adopt Constitutional reforms is therefore to be coerced holding about 40 MPs with a threat they will have to vote with proposed “reforms” good or bad, IF they wish to earn their due pension. This again is no democratic manner in adopting important reforms and is no people’s will.
  5. Very establishment of this new government is contrary to the powers vested with the President, though not challenged within or without parliament. The President is Constitutionally expected to appoint the PM on the basis that he believes his appointee as PM would hold a majority in parliament. Yet by no means would any sane person expect Ranil W to command a majority in this parliament with only 41 MPs in the UNP and the few who opted to oppose President Rajapaksa, not totalling over 60 MPs. Nor would President Sirisena have believed RW would gain the required majority. The only reason was their agreement for such appointment during or prior to the presidential elections and not Constitutional validity.
  6. The votes in parliament offered by the SLFP to RW government are always subject to conditions laid down by the SLFP on its own accord. While they claim to support the 100 Day programme and voted with the Interim Budget on the grounds it would not deprive the people of proposed benefits, they are not bound to vote with the 19A, if that does not come with electoral reforms. Case in point, to prove the tail cannot govern the dog.

Added to all this and contrary to all the promises for transparent and accountable governance, at no stage of the drafting process, were the people involved or consulted. There was no social dialogue on any of the inclusions in the proposed 19 Amendment. In fact this society does not know who was responsible for any of the drafts and discussion papers that were leaked out and was in limited private circulation.

In the democratic world, Constitution making is a “process” where “the participation of the public in the drafting of the constitution is a crucial component of the process. It adds indispensable legitimacy to the final document adopted. It also assists the definition of a national identity and the articulation of common popular aspirations for the future.” [Constitution-Making and Peace Building: Lessons Learned From the Constitution-Making Processes of Post-Conflict Countries – Jamal Benomar / August 2003 ; UNDP publication]

Here in Sri Lanka and in this instance, there were no “people” involved. It was media reports that said, political party leaders (and not even political parties) finally consented on a draft 19A that was immediately approved by the Cabinet of Ministers and was then Gazetted without delay on 16 March, 2015. There was no effort by nor an intention on the side of the government to allow any social dialogue with only 500 copies alleged to have been printed, of which 250 goes to the parliament.

Further sabotaging any possible social dialogue after the draft 19A was gazetted, the PM tabled the 19A and presented it in parliament on 24 March, and this draft is different to the one that was gazetted.

Therefore it is too evident this whole process was devoid of any public participation and consultation on a piece of legislature that would impact on every aspect of public and individual life for many generations to come, while wholly undermining the principles of good governance, transparency and accountability.

It has to that extent and in every way breached the trust of the people almost completely.

Therefore, with no legitimate parliament, a government that was not elected and in minority and ruling with no public accountability, it is the people’s right now to decide if they want it as presented and adopted in parliament, or they would not. For which there should be a Referendum before the 19A becomes law.

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Latest comments

  • 6
    1

    Kusal Perera

    RE:Why A Referendum Is Necessary For 19A

    “There are politically important and serious reasons why this piece of legislation called the 19 Amendment has to go before the people for their direct approval, before it becomes law”

    Q1. Was there A Referendum for 18? No.

    Q2. Was there a referendum for Mr. Mahinda Rajapaksa, running to be president for a third term? No.

    Q3. Was there a referendum for the Medamulana Mahinda Rajapaksa, their Immediate Family Members, Extended Family Members, their shills, white-washers, cronies and other undesirables, generally known as Crooks, Robbers and Criminals, CRCs, to steal from the populace and harm the populace? No.

    So, what are you talking about here. Thre is precedence here, without a referendum. The people already elected their representatives, at the last general election, however corrupt they may be, however stupid, the voters may have been.

    “There are politically important and serious reasons why this piece of legislation called the 19 Amendment has to go before the people for their direct approval, before it becomes law”.

    Take 19A for a referendum, in front of a populace whose Average IQ is 79?

    http://www.photius.com/rankings/national_iq_scores_country_ranks.html

    National IQ Scores – Country Rankings

    • 1
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      Freedom of speech brings out many experts who were previously deaf and dumb.

  • 1
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    Kusal Perera –

    RE: Why A Referendum Is Necessary For 19A

    What is necessary, is to get the common sense Phamplet in front of the People, to educate them.

    Then have Sri Lanka crisis pamphlets, just like what Thomas Paine did for America.

    What has happened to the so-called Sri Lankan writers?

    Common Sense (pamphlet)

    http://en.wikipedia.org/wiki/Common_Sense_%28pamphlet%29

    The American Crisis

    http://en.wikipedia.org/wiki/The_American_Crisis

  • 6
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    This amendment (19A) should be viewed as a transitional one mainly for the purpose of nullifying 18A, which all progressives in the country yearn for and welcome. After the next parliamentary elections, I suppose the newly elected parliament will sit also as a Constituent Assembly to draft a new constitution.

    So, what is the need to have so many referendums at high cost?

    Sengodan. M

    • 0
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      Can agree.
      Then this should be only remove 18 A and fix independent Cmmissions. Nothing more.
      Why bring all other issues like Exec Pres, RIT, Minister numbers, cabinet powers, why all. They can wait for next Constitutional Council.
      But there’s no guarantee that will happen. No guarantees people will have chance for such democracy because this also is done behind doors.
      AS

      • 0
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        Amaranth, this is a good point…why bring everything else? What is the agenda behind all this?

  • 0
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    Referendum will not solve anything as the electorate is politically immature and will listen to the narration given by the same politicians and other extremist.

    19th amendment is reasonably Ok and can be amended in future by holding discussions with the political parties and civil society.

  • 1
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    Some swollen headed writers feel that they are the pundits who know everything

    • 0
      0

      The machination of democracy works on referendum. The vote is the power of the people, ie; literate people. With racism, caste, creed and religion in mind a
      nation cannot develop and people will continue to exercise their vote based on the faith and the lies that is spat out by an able politician. Kusal Perera’s article is expressing the practicals of the democratic process and is food for the serious minded.

  • 0
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    @ Amarasiri
    Thanks, your argument on IQ is interesting, so we need to work on improving IQ of the nation.
    As Kusal correctly mentioned constitution making is a process, thus active participation of the public is an essential part to assure ownership, transparency and accountability. The 18th amendment was adopted violating all those basics to satisfy personal agenda of a feudal ruler, so it should not be taken as an example or justification.
    And the “process” is costly in terms of resources and time, but there is no short-cuts especially with low IQ rates, therefore calling referendum shall contribute to improve social dialog on the issues and thereby to improve knowledge and IQ to consciously participate in the constitutional processes and beyond as active citizens.
    So it will be an investment to assure proper peoples’ participation and improve the IQ.

  • 0
    1

    Well said Kusal, absolutely correct. The same mob who points fingers at others are doing even worst for this country. RW with a minority is not mandated to govern SL.

  • 0
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    The GAVA Paalanaya has messed up the entire constitution and the country as a whole. The brother was axed by close pal same as eating mahinda,s hoppers and axing him Retribution and yet more to come god bless the unpatriotic fools.No robbers found. There were,t any either.

  • 0
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    The President believes the PM can form a government – even though he has only a minority. This is NOT anti democratic. If he loses the confidence of the house, then he will have to go! Until then he can govern as a minority government. The Australian Labor Government of Julia Gillard was a minority government.KP is flogging a dead horse!

  • 0
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    Was RW’s infamous CFA ever presented to the parliament ?

  • 0
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    When MR administered we called him a despot and totalitarian and by electing My3
    it is even worse. Hotu gaani deela kehi gaani gaththa. The power of the people have been subdued and democracy trampled with the constitution used for toilet paper. Currently My3, Ranil, CBK, SF and some others are holding the poles that support the canopy and all are having a hold and none are willing to loosen their grip for the good of the country and it’s people. They are doing things that they should not do and are seeking their share for standing “united” during the presidential polls. A miracle is what is needed to save the country. This beautiful country has been continually ruled by the Sinhala Buddhist and they have made a mess of it and continue to mess it further. It is time for the people to choose not the known parties or names but someone like me to honestly cater to the needs of the people and the nation.

  • 1
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    CORRECT.

    Situation is chaotic and there is NO transparency AT ALL.

    Unlike previous changes under Mahinda Rajapaksha which enhanced the presidential powers under the 19th amendment the WHOLE philosophy of the constitution is planned to be changed.

    How does this affect 13 amendment ?
    Has this been communicated to the public (eg: citizens of Sri Lanka)
    Where is the proposed amendment to the method of electing representatives ?
    Why is so called guardians of the public interest JVP against this proposed amendment to the election method of single member electorates ?

    There is ONLY few things that needs to be changed :

    1. Introduce a electorate based first past the post + preferential electorate based members of parliament.

    2. STOP the president’s ability to dissolve parliament after 1 year .

    3.Make sure that new legislation and proposed changes to legislation can be challenged in the supreme court so that we don’t violate existing laws.

    4.Get rid of the Governer of the province and ask the council to elect a Chief minister. Make the chief minister report to the president. And give the president the emergency power to dissolve the provincial council and appoint a care taker council till the emergency passes with complete support from the parliament ONLY (ie.50% + 1)

    5. Make sure that ALL commissions report to the president and MAKE president accountable to implement the recommendations coming from those commissions within 21 days if that does not require new legislation from the parliament.

    6. Make the term of the president 7 years and ONLY till age 80. That is if he is 73 his 80th birthday can not be during his presidential term.

    7. Minimum age to be 25 years.

  • 0
    0

    There should be better dialogue.

    People wanted some thing better than this!

    Ranil Maithree should be more sensitive.

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