Tuesday 22nd September, 2020

Former Speaker Karu Jayasuriya has warned that the proposed 20th Amendment (20A) to the Constitution, if passed, will reduce Parliament to a mere post office. One cannot but agree with him that 20A seeks to strengthen the position of the President at the expense of Parliament, and everything possible should be done to prevent its passage in its present form.

However, it is doubtful whether the Opposition and the civil society outfits backing it will be able to drum up enough public support for their campaign against 20A by merely highlighting what is likely to befall the legislature, for people do not care whether Parliament will be reduced to a post office or not; such is their disillusionment with the national legislature. Parliament has not lived up to the expectations of the public. While people are struggling to find turmeric, which is in short supply, due to a ban the government has imposed on spice imports, among other things, to save foreign exchange, it has been reported that the MPs will be given duty free vehicle permits soon.

When the Prime Minister and the President happen to represent different political parties, the former becomes more powerful than the latter owing to flaws in the present Constitution. This, we have seen thrice since the introduction of the presidential system of government, in 1978. Prime Minister Chandrika Kumaratunga emerged stronger than President D. B. Wijetunge, in 1994. They, however, cooperated. But the country found itself in chaos when the Prime Ministers and the Presidents came from different political parties.

From 2001 to 2004, Prime Minister Ranil Wickremesinghe (UNP) undermined the position of President Chandrika Kumaratunga (PA). He went so far as to sign a disastrous ceasefire agreement with the LTTE without the President’s knowledge. The 2001 regime change also led to the divestiture of some state-owned cash cows such as Sri Lanka Insurance Corporation. The LTTE consolidated its power and made preparations for its final war.

The country suffered again when the Prime Minister became more powerful than the President, in 2015, owing to the 19th Amendment (19A) to the Constitution. PM Ranil Wickremesinghe and President Maithripala Sirisena were at loggerheads. The President’s position became so weak that the then Speaker Jayasuriya refused to carry out presidential orders during an abortive constitutional coup in 2018. The biggest ever financial crime—the bond scam—was committed while the legislature was stronger than the Executive. Then came the Easter Sunday bombings, which snuffed out more than 250 lives and left hundreds of others injured besides dealing a body blow to the economy. What has transpired so far before the Presidential Commission of Inquiry probing those terror strikes shows that national security was in the hands of a bunch of total misfits from 2015 to 2019. It was only natural that the people wanted a strong President to bring order out of chaos and elected Gotabaya Rajapaksa.

We do not argue that the people’s lot improves when the PM happens to play second fiddle to the President. The point we are trying to make is that even the PMs who could act independently succumbed to the arrogance of power and bulldozed their way through, giving the lie to the claim that the interests of the people are better served when Parliament is strengthened.

The success of any protest campaign hinges on the ability of its organisers to mobilise the public. Those who have taken it upon themselves to spearhead the campaign against 20A are the ones who had 19A tailored to further their political interests and, therefore, failed to convince the public that the powers of Parliament had to be restored to ensure checks and balances and better governance. The incumbent government is craftily using the bunglings of the previous dispensation to bolster its claim that the country needs an extremely powerful President, and 20A is the only way to achieve that end.

The ongoing campaign against 20A is characterised by a severe trust deficit, which the Opposition has failed to overcome. Sri Lankan intelligentsia is divided along party lines, and this has stood in the way of the formation of public opinion on some crucial issues. The government has managed to confine the issue of 20A to the political front, where it is strong. But let the SLPP leaders be urged to learn from their past mistakes and refrain from steamrollering 20A through. They had better remember that they employed the same method to secure the passage of the 18th Amendment but lost power about four years later, in January 2015.

Monday 21st September, 2020

The government has taken on UNHRC Chief Michelle Bachelet for her criticism of the 20th Amendment (20) to the Constitution. It has dismissed her concerns as unfounded. The Opposition seems to be deriving some perverse pleasure from the rap on the knuckles the government has received in Geneva.

True, 20A in its present form is a draconian Bill, which, if enacted, will jeopardise democracy, but the question is whether the UNHRC is genuinely interested in protecting human rights and democracy in Sri Lanka. The UN human rights arm is a puppet of the western governments that have weaponised human rights, so to speak, to achieve their geo-strategic and economic goals. It did not call for action against terrorism which plagued this country.

It stands to reason that 20A should be attenuated substantially or rejected. But the UNHRC protests will only help the government drum up support at home for the Bill. In fact, the UNHRC is one of the international institutions that, in a manner of speaking, made the SLPP’s stunning electoral win possible. It will be counterproductive for the Opposition to hitch its wagon to the UNHRC or the western members of the international community.

Sri Lanka’s response to the UNHRC chief was not satisfactory. It should have asked her whether she had studied 20A, which she was criticising. For our money, she has not even seen it. One should read and understand the 1978 Constitution, the 17th Amendment, the 18th Amendment and the 19th Amendment before commenting on 20A. The UNHRC head has apparently gone by hearsay.

The government says the people have given it a mandate to do away with 19A. This is as much of a falsehood as the late J. R. Jayewardene’s claim, in 1977, that the people had given the UNP a five-sixths majority to write a Constitution, which he used to suppress democracy and act according to his whims and fancies. People voted overwhelmingly for the SLPP because they were fed up with the yahapalana government, which bungled on all fronts and, above all, compromised national security. There was no need for anyone to topple that administration; it was collapsing. The SLPP regime is misinterpreting its mandate in a bid to bulldoze its way through. Will anyone sane who voted for the SLPP at the last general election ever want the Auditor General’s powers reduced and constitutional safeguards in place to prevent corruption done away with? Who will want a jumbo Cabinet or a President with powers to do anything except making a man a woman and vice versa?

The need is for 20A to be defeated without the help of meddlesome foreign governments, etc., unless it is revised. This is the uphill task before the SJB-led Opposition, which should not play into the hands of the government by trying to internationalise the issue. Its leaders have to stop talking nineteen to the dozen, win over the public and launch an effective campaign against 20A. The SLPP’s strong point is its brand of patriotism, which it markets very effectively to further the interests of its leaders. Proving that the government is not as patriotic as it makes itself out to be and hides its true intentions behind the façade of patriotism is half the battle in making the public realise the need to oppose 20A in its present form.

The SJB has its work cut out to win public trust, given the presence of many undesirables such as the associates of bond scammers within its ranks. But there is one way it could turn the tables on the government. The latter is blowing hot and cold on the Millennium Challenge Corporation Compact, which it condemned as a threat to Sri Lanka’s sovereignty and territorial integrity while it was in the Opposition. The SJB can submit a parliamentary motion calling for rejecting the aforesaid compact so that the government leaders will have to back it or be exposed for their hypocrisy. After all, Opposition Leader Sajith Premadasa has declared that he protested against the proposed MCC deal while he was a member of the yahapalana Cabinet and is opposed to it. He should get cracking.

There has been no credible explanation of why the government has remained as coy, as it remains to be to this day, about the authorship of the 20th Amendment. When first asked about it, Prof. GL Pieris, Chairman of the ruling Sri Lanka Podujana Peramuna (SLPP) and cabinet minister fended the question saying there were many contributors. He then attempted to close the matter saying the cabinet took “full responsibility” for it. We do not need a law professor and former vice-chancellor widely acclaimed as a legal pundit to say that. If the cabinet had passed it, and it had done so before Pieris spoke, it is quite obvious that the cabinet must accept responsibility and the matter needs no further elaboration. Now Minister Keheliya Rambukwella, the cabinet spokesman, has said (at last week’s cabinet news briefing) that the president had authorized it. Even a school kid studying basic civics knows that ever since the JRJ Constitution was enacted in 1978, the president is both Head of State and Head of Government and he presides over cabinet meetings. Thus he is part of the collective cabinet responsibility. Are we to understand from the latest contribution to the question that although Justice Minister Ali Sabry presented the draft amendment to cabinet, it was the president who gave it to him and presumably asked him to present it?

These maters, no doubt, will be canvassed in parliament when the already gazetted amendment is presented to it. Given the dust this matter has already raised, with criticism coming not only from the opposition but also from sections of the government and those who helped it to come to power, the country has been told that there will be some changes to the draft presented. What these are has not yet been clearly spelled out. They will presumably be introduced at the committee stage of proceedings in parliament. This is a practice that those who are now in power roundly condemned when used by their predecessors. We have heard a lot about various provisions being “smuggled in” during the committee stage discussion of bills before parliament denying those who may choose to mount challenges on the legality of legislation in the pipeline the opportunity of doing so. There can also be no proper study of what is being done if any government resorts to such questionable practices. The Constitution, after all, is the basic law of the land and it is incumbent on those governing the country to have the widest possible discussion on any proposed changes. Committee stage amendments just will not do.

All governments, even those with the necessary two thirds majority to make changes in laws at variance with the constitution, have refrained from making any law that would require a referendum. That is something that has been avoided like the plague. Certainly a referendum is something that costs the taxpayer much more than an arm and a leg and must not be lightly resorted to for reason of expense alone. But this is not why governments of all hues have done their damnedest to avoid them. Politicians in office do not wish to go before the people at any cost unless they are compelled to. We have only known one referendum, that of December 1982 when the J.R. Jayewardene government that had in 1977 won a massive mandate with a five sixths majority, wanted the people’s acquiescence to extend the tenure of then then parliament by six more years. We thus had the infamous lamp and pot game, widely condemned as rigged, that permitted Jayewardene who had a few weeks earlier won a presidential election to duck a parliamentary election. It is commonly accepted that his UNP would have been returned if he did go to to the polls, but not with its 1977 majority, especially with the proportional representation system of elections then in place.

When President Mahinda Rajapaksa wished to change the constitutional barrier placing a two term limit on the presidency in order to seek a third term in 2015, the supreme court did not hold that this required a referendum, in terms of the constitutional provision that matters affecting the franchise of the people must obtain the people’s consent at a referendum. Then Chief Justice Shirani Bandaranayake held that abolition of the term limit was an “enhancement” of the franchise rather than a diminishing. It may be argued that enhancing or diminishing would either way be a matter affecting the franchise. But that was not how the court, headed by a judge subsequently impeached by the Mahinda Rajapaksa government, saw it. The fact that Rajapaksa lost the 2015 election where he sought the third term, having abbreviated his previous term, is now all water under the bridge.

Government assurances that pluses like the Right to Information law enshrined in the 19th Amendment, which even the ranks of Tuscany must admit had many imperfections, have been widely welcomed. There is no doubt that the Sirisena-Wickremesinghe government chose to include provisions like dual citizens not being eligible to run for public office clearly targeting the Rajapaksas was venal in intent. Coming from the UNP who anointed several persons who had opted for foreign citizenship as ambassadors to represent this country was rich, to say the least. There is no doubt that there are many flaws in the 20th Amendment that Mr. Sajith Premadasa has promised to scuttle having (together with Mr. Ranil Wickremesinghe) scuttled the UNP. We are glad that eminent persons such as Prof. Savitri Goonesekera, in a contribution she had made to our newspaper today, has focused on some of the weakness in the draft 20A. Hopefully the government will accept democratic dissent in the right spirit rather that taking the easier route of having its way after allowing the opposition to have its say.