19-A: A constitutional cyanide capsule
Posted on March 9th, 2015

by Dr. Dayan Jayathilleka

The 19th amendment is quite seriously flawed in terms of (a) definition (b) process and (c) content.

It is flawed, indeed false, in terms of its definition, because an amendment which repeals whole sections of an existing Constitution and moreover changes it from a presidential to a parliamentary system is not an amendment. It is an abrogation disguised as an amendment. One cannot help but wonder at the subterfuge.

The 19th amendment is flawed in terms of process. Surely a change as drastic as this requires a period of transparent deliberation in the parliament, followed by a nationwide referendum? Why is this sought to be bypassed?

The 19th amendment is most seriously in error in terms of its content. In any country in which the President is elected by the people, by the nation taken as a whole, it is the single most powerful institution in the land. This is because it is the broadest most authentic repository of popular sovereignty. Flying in the face of this democratic principle, the 19th amendment transforms the executive presidency into one which has to always function on the advice of the Prime Minister, therefore transforming the Prime Ministership, which is a far narrower based institution, into the most powerful office in the land.

Worse still, the directly elected President is also rendered a prisoner of Constitutional Council, a largely unelected entity(7 of the 10 members are nominated, not elected). The President has to act in many important respects having consulted and obtained the concurrence of that Council.

If this sounds like a quibble, let me content myself by drawing attention to the fact that the President will be unable to decide on the Army chief without the consent of the Constitutional Council, the Attorney-General and the IGP. Some presidency! Some Council!”61E.(1) The President shall appoint:- (a) the Heads of the Army, Navy and Air force; (b) subject to the approval of the Constitutional Council, the Attorney General and the Inspector General of Police…”

The 19th amendment makes impossible the fundamental political task of national leadership. Leadership itself rests upon the capacity to make decisions. At no time is this capacity more important than in an exceptional situation or an extreme situation, also known in philosophical terms as ‘borderline’ or ‘limit’ situations. Of the decisions a leader must make, one of the most important is the capacity to decide which situation falls into such a category.

After the 19th amendment goes through, it will be impossible for the person elected by the country as a whole, the President to make such a decision on our behalf; a decision to keep us safe. He will be unable to do as President Premadasa did and dissolve the Northern Provincial Council in the extreme case of an attempt at breakout from the Sri Lankan state. He will instead have to act on the advice of the Prime Minister whose very administration may be relying in parliament on the support of the TNA.

After the 19th amendment the Preside2nt will be unable to act as Mahinda Rajapaksa did in picking General Fonseka as army chief or as President Roosevelt did in choosing General Eisenhower as head of Allied forces though he was the not the senior-most in rank, or President Lincoln did in picking General Ulysses Grant to win the Civil War.

Had the 19th amendment been in place, President Kumaratunga could not have stopped Prime Minister Ranil Wickremesinghe’s process of appeasement of the LTTE in its tracks.

The post-19th amendment President will have to get appointments not only past the Prime Minister but also past the Constitutional Council, which may contain to prevent the State from reacting firmly and fast, to a Northern emergency or any political emergency whatsoever.

The entire principle is wrong. The Presidency is elected by the majority of the island taken as a single unit and therefore represents the unity of this country, while the two institutions he will be subordinate to namely the Prime Minister ship and the Constitutional Council will be representative of respectively (i) a far narrower electoral base and (ii) the principal of diversity of our society. The recognition of diversity is a fine thing but the principle must be ‘unity in diversity’ not the other way around. The 19th amendment upends this and privileges ‘diversity in unity’. To place the Prime Ministerand the Constitutional Council above, or even on par (which is not the case with 19A) with a nationally-elected President is wrong in that it places the principles of narrower representation and diversity above the principle of overarching unity.

Far more bad than good will come out of the 19th amendment. It is a huge retrogression in comparison with the Constitution of the Second Republic, the presidential one. And no wonder! The drafters of the 19th amendment are intellectual pygmies, Lilliputians, in comparison with JR Jayewardene, HW Jayewardene, Ranasinghe Premadasa, Lalith Athulathmudali, Gamini Dissanayake, Ronnie de Mel and Esmond Wickremesinghe.

While the Northern Provincial Council is on the political warpath with its Genocide Resolution—a genie that cannot be put back in the bottle- the Sri Lankan State is being fatally weakened by the 19th amendment. Decision-making will be diffused. The nationally-elected Presidency incarnates the united political will of the people. What the 19th amendment does is to introduce a ‘federalism of decision-making’ at the center. This already begins the dismantling of the unitary principle, which at heart is the principle of unitary decision making. The dismantling of the unitary principle in decision making will result in the dismantling of the State. The loosening of the ties between center and periphery will inevitably result.

The post 19th amendment poly-centrism of decision-making will turn into fault lines and fissures within the State itself, and political factions will grow around these fault-lines and fissures. With the dismantling of the executive Presidency, the Sri Lankan State will find itself over the longer duration, in a state of disintegration.

 

10 Responses to “19-A: A constitutional cyanide capsule”

  1. Lorenzo Says:

    13-A: a national security cyanide capsule!

    I have NO words to describe the CALAMITY 13-A + 19-A will bring!!

    If you add 17-A also into it, a SUPERNOVA!!

    SL will be like SOMALILAND where factional leaders fight each other and chaos. 19-A is all about RUN-NIL controlling MY3 and MY3 getting all the blame for it.

  2. Fran Diaz Says:

    Fascism setting into Lanka in the guise of ‘Change’ ?
    Hoodwinking the masses is the name of the game !

  3. Indrajith Says:

    Koti eliyata, dhesapremien hireta. Rata ballata!

    ———————————————————————————————–

    Sri Lanka may release Tamil activist next week during Indian PM’s visit
    Mon, Mar 9, 2015, 12:04 am SL Time, ColomboPage News Desk, Sri Lanka.

    Mar 08, Colombo: Sri Lankans authorities may release a Tamil activist detained for almost a year under the Prevention of Terrorism Act during the Indian Prime Minister Narendra Modi’ visit to the Island, according to a PTI report.

    Balendran Jeyakumari was arrested nearly a year ago for allegedly harboring an LTTE operative. She had been detained at the Boosa Detention camp since then.

    Indian Prime Minister will arrive in Sri Lanka for a two-day visit on 13 March. During his visit, a first by an Indian Prime Minister in 28 years, Modi is scheduled to visit Jaffna, the Tamil heartland in the North.

    Human Right groups have urged the new Sri Lankan government, which is considering to release over 275 Tamil prisoners arrested during the previous regime, to either file charges or release Jeyakumari.

    Police arrested Jeyakumari and her 13-year old daughter in Kilinochchi on 13 March 2014, for allegedly sheltering an LTTE cadre, named Gopi, who shot a police inspector in Kilinochchi during an arrest. Her daughter was handed over to Child Protection Services while the mother was sent to Boossa detention camp.

    The mother and daughter were active participants in most protests conducted by families of the disappeared in the Northern Province.

    Jeyakumari has led protest campaigns in the North demanding to find out what happened to one of her three sons, who had joined the LTTE as a child soldier and went missing after he reportedly surrendered to the Sri Lankan security forces at the end of the war. Her other two sons reportedly belong to LTTE, had been killed in the war.

    Tamil parties in the North however, say she was arrested for the involvement in protests to find missing persons.

    Cabinet spokesperson Minister Rajitha Senaratne last month said the new government was considering the release of political detainees.

    The Police Chief has given a list of 275 such prisoners to the government and according to the Minister, and some of them seem eligible for release, PTI report said.

  4. ranjit Says:

    It’s not surprise to see more and more LTTE cadres will be released from prison with this corrupt Govt in power. This traitor Ranil the pimp will start from where he stopped last time in 2004 and do the same bringing our country to knees if we do not act courageously and effectively. All they do now whether good or bad to the country is to hurt Mahinda and help ungrateful Tamils & Muslims as per the advise of the west and the Indians. Nearly ten years we kept these two groups in check and didnt allow them to raise their heads but now they act like the majority and demand self rule and self everything backed by western & Indians Mafia.

    People like Prof Dayan and Intellectuals in this country must go around the country and explain in simple language to the poor masses about the danger we will face if we allow this Ranil/MY3/Chandrika the evil,unpredictable trio to go on like this Governing with revenge and giving more and more concessions to ungrateful Tamils & Muslims. We have to get united to kick their ass for good. How can a man who has lost 29 times be a Prime Minister or even a cabinet Minister. The whole team of traitors UNP,JVP,HELA URUMAYA,MUSLIM CONGRESS,TNA and other western and Indian backed conspirators should be rejected in whole sale in the coming General elections if you want to live in Peace and happiness.

  5. Charles Says:

    Ananda-USA we mis your comments

  6. SA Kumar Says:

    Ananda-USA we mis your comments- Agreed where are Sir ??? we know you fed up with Lorenz BS advice .
    Eg:We all know no one can touch 13A but he want MR to scrap if want to come back in politic !

  7. Fran Diaz Says:

    Yes, we miss Ananda-USA !
    We all hope that it is only work that is keeping you away, Ana, and you are well in health and spirits. Come back to Lankaweb soon. We all need your support here.

  8. Sooriarachi Says:

    This is Food for thought. Thank you DJ.
    However, even without these changes to the constitution, a person like Ranil as PM may act according to his/her own whims and fancies, as Ranil had already demonstrated while he was the Prime Minister under President Kumaratunga, and as the unshakable leader of the UNP.

  9. Fran Diaz Says:

    The present day UNP leaders mostly put foreign interests first before Lanka national interests. Sir Ranil is the captain of the UNP (Unpatriotic Non-National Party) pirate ship. Morever, they impose too much of capitalist bent values on eastern values in Lanka.

    Both Ranil & CBK are still acting in Cold War mode. Their pollitical mind set is still strongly in the past. You two – give us a break !

  10. Susantha Wijesinghe Says:

    OH !!!! Another one:-***TAMIL HEARTLAND***

    MODI COMES TO LANKALAND, AND FIRST GOES TO HEARTLAND.

    TWO DAYS AWAY FROM FAECALAND. GOOD BREAK.

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