THE PUZZLE OF NINETEENTH AMENDMENT TO THE CONSTITUTION OF SRI LANKA
Posted on February 12th, 2019

BY EDWARD THEOPHILUS

I read many articles and listen to speeches and discussions of academics and politicians in Sri Lanka regarding the constitutional reforms.  Many articles, speeches, and discussions attempted to point the figure to the 19th amendment, which was enacted on 28.04.2015, the current constitution after this amendment has created a puzzle in which the role and functions of the government as well as the laws and regulations of the country, have put into a mess.  The amendment was approved by the parliament before the general election of 2015, and it also assumed that the enactment of the amendment was animated without a referendum of people and during the presidential election in 2015, the elected candidates did not give a halcyon promise to change the constitution with a view to considering the election result as a referendum to amend the constitution.   After the approval of the 19th amendment, several cases gone to the supreme court and many citizens of the country believed that the amendment does not balance and reconcile legal political and social functions of the country.

Who was responsible for the amendment? There is no clear view about the responsible people to the amendment, but it is assumable that members of the parliament, who raised hands to pass the amendment was directly responsible to the mess and some people now ask a question what kind of role was played by the judiciary in this situation.  As the current constitution clearly states that the role of interpreting contents of the constitution is played by the Supreme Court, the court also needs taking responsibility for the 19th amendment to a certain extent. There were six members of the parliament did not involve in the approval of the amendment and others were supported without party differences.  Therefore, many members of the current parliament cannot deny the responsibility for the mistake they have done, and some members of the parliament attempt to show that they were not responsible, it is unacceptable.

A constitution of a country balances and reconciles legal, political and social functions. A procedural constitution defines the legal and political structures of public institutions and set out legal limits of government power and order to protect the democratic process and the fundamental human rights (www.quora.com).  The main part of the puzzle of the 19th amendment is whether this internationally accepted principle regarding constitution was respected by lawmakers passing the amendment. The Public in Sri Lanka have no understanding about the significant roles and they are silent on these matters.  However, it is possible to ask a question, was the19th amendment activated after the presidential election in 2015 a similar type of occurrence to MAGNA CARTA in the UK as the 19th amendment reduced the power of the president. Did president not aware of the changes affected or he was not educated by his legal advisers. The best example was the dissolution of the parliament by the president in 2018 and the judgment of the supreme court regarding the decision of the president imitated that the president did not aware of taking aware his power. After the Supreme Court decision, many educated lawyers published articles in electronic and printed media, one of the lawyers was Dr. Nihal Jayawickrama and he also questioned about the education of the president on the contents of the amendment.

If we compare the 19th amendment to MAGNA CARTA, who acted as barons may be a question or not clear reflection in the drama because at the 2015 presidential election, Mr. Sirisena was supported by UNP and NGOs and Mr. Sirisena was not aware of the policies the yahapalana regime. UNP never publicly express that the party is against the executive presidency because it was an invention of UNP and Mr. J.R. Jayewardene and Mr. R. Premadasa efficaciously used the power of executive presidency with a view to making right decisions for crisis situations.  Barons War in the UK was highly successful in reducing the power of King John.  Was the 19th amendment work like MAGNA CARTA? No, it wasn’t, the answer to the question.

Mr. Mahinda Rajapaksa also used presidential power for the benefits of the country and his decision to make 18th amendment to the constitution was criticized by many academics in the country, however, there was an environment at the global level that effective presidents should be given the opportunity to stay in the job for more than two times for the benefits of the countries. This debate was in the USA, Russia, Brazil, and other countries.

Some academics are of opinion that the hidden purpose of the 19th amendment to the constitution was to take revenge from Rajapaksa family to prevent people with the name of Rajapaksa becoming the president of Sri Lanka rather than creating active democratic administration or introducing such a democratic rule to the country.  After the 19th amendment so-called democratic lawyers expressed that the best outcome of the 19th amendment was the introduction of committee system to the country.  The operation of committees during the past several years have clearly proven that it is an inefficient system that helped to promote corruptions in the country.

From the management point of views, the committee system working in private and public sector organizations in the 1970s in Sri Lanka was not acknowledged the purpose, later found that management committees ignored the accountability in decision making as the members of the committees attempted to push the responsibility to one member to others without taking collective responsibility.  Especially in developing countries committee-based management ignores the accountability for decisions.  For example, when approving credit packages in banks has proven that the accountability for credit decisions was a serious problem and the accountability for the credit decision pushes one member to other and no one takes responsibility for the decision.  It is a truth that quality circles or committees in the Japanese management environment operate successfully despite the ineffective operations in developing countries. Many Western countries operate a committee system in public administration and they are successful.

The major committees appointed after the 19th amendment divulged that they were biased toward the government or slow in decision making or attempted to mislead people, the best examples were Election Committee, Constitutional Committee, and others.  Conceptually, the committee system shows democratic features, despite the democratic nature, more members were appointed from the government side, real professionals were not appointed, the government appointed favorites as an appreciation for supports and many problems displayed with the appointments and operations.  A Constitutional Committee appointed but it was unable to produce a draft constitution for four years and wasted lots of funds for operations.

The 19th amendment also failed to give authority to the president for dissolving the parliament in September 2018 and it was a real disappointment of people as the people of the country expected an election elect new representatives to the parliament as the image of current members already lost. The entire public sector depressed with lacking active decisions and ultimately people must suffer in the name of democracy or the sovereignty of people.

Developing a constitution is an authentic and genuine task, which needs listening to all citizens of the country.  The attempt of the government through the 19th amendment was making a constitution with patches and ad-hoc way and without communication the true intention to people. The disguise intention of the political parties of the government was to stress public that they have done the right thing to attract votes in the next election than making a constitution that balances and reconcile the country.

Sri Lanka has a history of making constitutions but all constitutions and amendments have failed and the major reason for the failure was the absence of consultation of people openly giving the content of drafted constitution to people for a constructive debate.  It is not a Machiavellian task and the drafted constitution must be allowed to debate from school level to various forums in the country for at least three years.  It is not a task of party politics and it must be a   national task beyond the party politics.

One Response to “THE PUZZLE OF NINETEENTH AMENDMENT TO THE CONSTITUTION OF SRI LANKA”

  1. Hiranthe Says:

    “it must be a national task beyond the party politics”

    True to the core.

    Constitutions done after JRJ came to power and subsequent amendments made were initiated by politicians to their own benefit, not thinking about the progress of the country.

    Why can’t we get back the 1972 Janaraja constitution done by Colvin and the team and amend it if there were shortcomings?

    My only worry is, we won’t have a person like Gota in the driving seat if that is the case as the EP position won’t be there any more.

    We can probably utilise Gota’s talents and dedication to develop Mother Lanka in a different capacity,

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