Courtesy Island

Doing away with the executive presidential system was the pledge that united so many different political parties and organizations behind Maithripala Sirisena. As Sri Lanka has been under prime ministerial forms of government in the past, we should have been able to switch effortlessly from one to the other. Instead what we see is a halting, sputtering, laboured process of constitutional reform which leaves no doubt that the powers that be are being dragged reluctantly towards fulfilling the pledge to cede executive power to the prime minister. When the 19th Amendment Bill was finally gazetted after much splitting of hairs about what exactly was promised in terms of doing away with the executive presidency, the amendment virtually made no change in the executive presidential position or powers!

It was obvious that the UNP, JVP and other parties calling for the abolition of the executive presidential system had agreed to the gazetted version of the 19th Amendment only because the prime minister was given some powers such as being the head of the cabinet and the person who selects the cabinet and team of ministers. Even these powers were shrouded in uncertainty as the president continued to be elected and he continued to be the head of state, the head of the armed forces, the head of the executive and the head of the government. Hence the president could at any time override the prime minister as it was he who was the head of the executive of which the cabinet is a part. The UNP would have agreed to such an arrangement out of sheer helplessness and to avoid ending up with nothing.

Even this truncated 19th Amendment which falls far short of the election pledge to abolish the executive presidency, is being opposed by Maithripala Sirisena’s faction of the SLFP on the grounds that electoral reforms should be brought together with it. The relationship between the UNP and the new president seemed to have reached breaking point. Then suddenly there was an easing apparently due to the intervention of Chandrika Kumaratunga. The UNP was given a few more concessions and a 12 page document containing the changes to the gazetted 19th Amendment Bill was circulated. According to this document, the designation of ‘head of government’ was deleted and left deliberately open so that the prime minister would as the head of the cabinet be by default considered the head of the government.

Another major concession given to the prime minister was the inclusion of a provision which said that the president would have to act on the advice of the prime minister. If the president was not in agreement with the advice given by the prime minister he could ask the PM to reconsider. The prime minister can refer the matter to parliament and if parliament expresses a view on the matter the president will have to act accordingly. If parliament does not express any view the president will have to act according to the instructions of the prime minister. The word used is ‘shall’ which indicates the imperative. This represented a huge step forward for those who wanted to see power transferred to the prime minister and cabinet. Yet even this was not without a catch. Even though the imperative ‘shall’ was used in relation to the president having to act according to the instructions of the prime minister, the amendment is silent on what happens if the president does as he pleases without heeding the advice of the prime minister.

A provision in the amendment says very clearly that no court will have the jurisdiction to hear any case brought against the president for not acting in accordance with the advice of the prime minister. So any act of the president in contravention to any advice that the prime minister may have given him, will not ipso facto be illegal! Even though there are serious hitches like that, still the new changes that were brought to the gazetted 19th amendment represented progress for those wanted a transfer of power to the PM. Good feelings exuded all round. To cement the new spirit of cooperation between the UNP and the Sirisena faction of the SLFP, no less than 26 members of the SLFP were given ministerial appointments. It was said that with this move, the support of the SLFP (MS) for the passage of the amended 19th Amendment was virtually certain.

But the JHU still opposes the content of the 19th Amendment while the SLFP (MS) is still insisting that the 19th Amendment be brought together with electoral reforms. This led to the JVP querying whether the JHU and the SLFP (MS) were actually doing the bidding of Maithripala Sirisena in trying torpedo the transfer of executive power to the PM. Last week they had put the question directly to MS and got the assurance that he has nothing to do with these attempts to torpedo the 19th Amendment. Yet even after the JVP got this assurance, both the JVP and the SLFP(MS) continue to say aggressively that they are not going to support the 19th Amendment. In the meantime the 19th Amendment is to be taken up for debate on April 10 and 11. JVP leader Anura Kumara Dissanayake said despairingly that if it is not passed on the 11th, the constitutional reforms will never see the light of day.

As far as ordinary folk are concerned, both the prospect of 19A being passed and the prospect of it not being passed are equally frightening. The provisions of the 19th Amendment are so convoluted that there is the very real risk of two rival power centres emerging if it is passed and the country facing a constitutional gridlock. In addition to this fundamental issue there are unacceptable provisions which require the constitutional council to consult the Bar Association when appointing judges of the Supreme Court and Court of Appeal which would make the most senior judges beholden to the powers that be in the Bar Association. The 19th Amendment also seeks to perpetuate the highly objectionable practice of the political parties in parliament nominating six members of the constitutional council – the majority of them on ethnic and religious grounds.

So the passing of the 19th Amendment is not a prospect that would give cause for joy to any right thinking person. But what happens if it is not passed? The latter prospect is perhaps even more frightening than the former. If 19A is not passed, that means that the conspirators who seek to go back on their pledge to abolish the executive presidential system have won. Of the votes that MS got, more than 80-85% belong to the UNP and the JVP which want the executive presidential system abolished. If Maithripala flouts this undertaking, he in effect loses his mandate to govern though he would legally remain president. As we write this, we see cabinet spokesman Dr Rajitha Senaratne on TV openly describing the UNP as an ‘enemy’ of Maithripala Sirisena. The implications of that statement made so flippantly are staggering. If the UNP is already an ‘enemy’ of MS, the latter has no mandate to rule because the vast majority of those who voted him into power are UNP.

People still have not forgotten how Sirisena went to Siri Kotha and played the Uriah Heep part to perfection even promising to address Ranil Wickremesinghe as ‘Sir’ even if he becomes president. Having come into power on UNP votes, if he gives them the middle finger and goes on his merry way, what kind of an attitude of mind does that display? If the 19th Amendment is passed we face the prospect of a constitutional gridlock between two sections of the executive. If it is not passed, we face the prospect of being ruled for six years by a man who thinks nothing of deceiving and using voters and backstabbing key political figures in the country in the quest to win and retain power. That is hardly going to lead to political stability.