Super powers of 20th Amendment do not negate need to dialogue

By Jehan Perera

The passage of the 20th Amendment to the constitution has taken place at a time of unprecedented crisis in the country. The sudden surge in Covid spread is deeply traumatizing to people who had grown complacent that this was a problem that afflicted foreign countries. It is important that the government should retain public confidence with regard to Covid control as confidence in the government is a prerequisite to meeting other national challenges. One such is the visit of US Secretary of State Mike Pompeo. The United States has made clear its unhappiness with Sri Lanka’s growing economic dependence on China and has offered its support for a more sustainable and transparent development process. It is to be hoped that the passage of the 20th Amendment to the constitution will now permit the government leadership to focus its attention on the multiple crises that besiege the country.

For the past months since it surfaced as a draft, the government leadership had been giving it priority attention to garnering support for the legislation in the face of mounting challenges. Despite securing an enormous majority of seats in parliament, and only five short of an outright 2/3 majority required for constitutional change there were times when the challenge seemed too big to accomplish. The peculiar feature of the 20th Amendment was that it called on the parliamentarians to voluntarily give up their existing powers as a collective and entrust it to the presidency. The unexpectedly forthright critique of the 20th Amendment by top ranking religious clergy and by prestigious associations such as the Bar Association created a momentary doubt about the prospects of the government obtaining the 2/3 majority.

The doubts about the passage of the amendment increased further when an internal critique also simultaneously emerged from within the ruling party. If the government had failed to obtain the 2/3 majority to pass the 20th Amendment due to an internal revolt by some of its members, the situation that would have arisen might have been like that which existed between the years 2015-19. During that period the coalition government headed by President Maithripala Sirisena who headed the SLFP and Prime Minister Ranil Wickremesinghe who headed the UNP failed to collaborate with each other which led to governmental drift and a failure to resolve problems. The continuing public support to President Gotabaya Rajapaksa is on account of his reputation for being decisive. It is also necessary that his team takes decisions that are in the best interests of the country.

PERSONALISED DECISIONS

The 19th Amendment which was the most significant legislation prior to the 20th, and which obtained near unanimous assent in parliament, reduced presidential powers and shared them with other state institutions. As a result of equalizing powers within the executive branch of government between the president and prime minister, it paved the way for conflict between the president and prime minister. This led to the irresponsible neglect of national security, which neither the president nor prime minister taking full responsibility for it, which culminated in the atrocious security breach on Easter Sunday 2019. The massive victory obtained by the present government, which mirrored the defeat suffered by the previous government, can be attributed to the failure of the power sharing scheme presented by the 19th Amendment.

The passage of the 20th Amendment has almost completely rolled back the power sharing arrangements of the 19th Amendment and will ensure the reality of a decisive government that is unfettered by checks and balances. This amendment will give back to the presidency almost all of the powers that were vested in it by the 1978 constitution in its original formulation. It might be recalled that the architect of that constitution, former President J R Jayewardene once described it as giving the president the power to be free from the “whims and fancies of parliament” as he put it. President Jayewardene sought cohesive and strong powers to take the decisions that had to be taken for the long term gain of the country. However, it would be prudent to remember that the super powers that he assumed to himself were not able to stop and indeed contributed to the events of 1983 and the armed conflict and subsequently also the resurgence of JVP violence.

Armed with the powers that the 1978 constitution originally envisaged, President Gotabaya Rajapaksa is likely to seek to directly implement development and problem solving activities in the country. The president has already showed his impatience with existing systems by going on surprise visits to government institutions and trying to put things right. He has also stated that his verbal orders should be considered by government officials to be actionable in the same way as written circulars. He has also appointed a plethora of retired military personnel to senior position in the public administration. There will, however, be dangers to be guarded against. Mixing civilians systems of administration with military systems is unlikely to work effectively. Military systems are essentially top-down with orders being expected to be followed without question.

PROBLEMSOLVING VISION

By way of contrast, civilian systems are consultative, as civilian issues need to accommodate a diversity of perspectives and multiple interests. The system of checks and balances evolved out of the experience of power being utilized to satisfy narrow interests rather than broader interests. There are many challenges that the government has to take up including the escalating Covid spread, which is now emerging as community transmission, and its impact on the poor and marginalized, economic hardships that affect the majority of people, the mounting foreign debt and threats to national sovereignty resulting from this and repatriation of our migrant workers. In the face of these unprecedented crises both government and opposition parliamentarians need to dialogue before decisions are made and those with proven competence from professional fields are made part of this dialogue.

There is also the question of problem solving vision. With the passage of the 20th Amendment the presidency will wield enormous powers. Unless presidential leadership is utilized to resolve long standing issues made unresolvable by partisan politics such as the ethnic conflict and politicization of the public service, this will be another lost opportunity among many lost opportunities. A modern state that incorporates a nationally designed reconciliation process in which equal citizenship and inclusive development leaves out no section or part of the country needs to be the goal. A significant number of parliamentarians representing ethnic and minority parties, voted in favour of the 20th Amendment. If not for the support of ethnic minority parliamentarians who broke ranks from their party leaderships to give their support to the government a 2/3rd majority required for constitutional change may not have been a reality.

The drafting of a new constitution for which the government has called for public representations offers an opportunity to ensure values that will have the support of all sections of ethnic and religious communities living in Sri Lanka. Attempts at formulating a new constitution have been long drawn and not finalized in the recent past. The current attempt should not suffer the same fate in respect of the time taken and the failure to present a final draft due to divergent political responses. Especially in a plural society, such as Sri Lanka’s, dialogue and inclusion are more likely to lead to sustainable solutions than imposed solutions. Although such a process can take more time, it is essential for democratic problem solving with all stakeholders being made part of the solution. It is useful to recall the president’s pledge shortly after he took his oaths, that he was the president of all Sri Lankans and not only those who voted for him. It is also useful to recall President Ranasinghe Premadasa’s motto of the 3 Cs, consultation, compromise and consensus. These are two visionary statements of two presidents that will stand the test of time.