By Shivanthi Ranasinghe Courtesy Ceylon Today

President Gotabaya Rajapaksa asked for a strong Parliament to abrogate the 19th Amendment. At the recently-concluded General Election, he received an overwhelming mandate with a rare two-thirds majority. The Opposition, struggling to keep its nose above water was too distracted and embarrassed even to oppose it. It is the West-mentored civil organisations and Media bodies outside Sri Lanka that are deeply concerned over the fate of the 19th Amendment.

West Mentored Gentle Coaxing 

The Guardian and The Hindu echoes that the Rajapaksa brothers are now with powers to change the constitution and unravel democratic safeguards…made by the previous administration aimed at decentralising power and preventing the rise of another strongman.”  Sophie Landrin for ‘Le Monde’ – a French Daily writes, This concentration of power is fearful of the worst in this country scarred by decades of civil war.”

UN High Commissioner for Human Rights, Michelle Bachelet has urged the Rajapaksa Administration to preserve and build upon the gains which have been made over the last few years.” According to her, ‘Independent institutions, strengthened under the 19th Constitutional Amendment, are a key pillar in its democratic structure.’

Understanding the Constitution first

However, this hastily pushed through Amendment is with many misinterpretations and ambiguities. It is almost as if those who drafted this Amendment were unfamiliar with the Sri Lankan Constitution. For instance, the 19th Amendment implies that the President may not hold a portfolio. Yet, the Constitution stipulates the President as the head of the Government, Cabinet, Armed Forces and Defence. As the Head of the Cabinet, the President is naturally a Cabinet member. As such, the President may or may not hold a portfolio. 

Furthermore, all ministers derive their executive powers from the President. The voter only gives passage for an MP to enter Parliament. It is the President who decides the subjects and vests the necessary powers on the person awarded with the subject. Therefore, ministers are in effect the President’s representatives. 

The best case to illustrate this point would be the appointment of Ali Sabri as the Minister for Justice. This appointment was made amidst the controversy that brewed in social Media as to whether Sabri was the best man for the job. The fact that he is a Muslim by faith was held against him, despite his track record and stance against Islam extremism. He publicly frowns upon the burka, which he dissociates from the faith and links with the Arab culture. He advocates anyone who wishes to live in Sri Lanka must embrace the Sri Lankan culture. 

Therefore, despite the opposition orchestrated by some quarters, President Gotabaya without any qualms appointed Sabri for the post. As far as President was concerned, the only thing that really mattered was the fine subject knowledge Sabri would bring to the complex decision making process. Hence, even if some of his voters were against Sabri becoming the Minister of Justice, the prerogative lies with the Executive President and not with the voter. When this is the case, it is an absurd supposition that the President cannot hold a portfolio. 

Nonexistent Independent Institutions

This is not the only confusion the 19th Amendment presents. The independent institutions supposedly strengthened by this Amendment that Bachelet spoke of in reality do not exist. This is best exemplified by the drama played out by the Election Commission (EC). 

The three-member commission has become the biggest joke. Throughout its appointment, its undisguised objective had been NOT to hold Elections. During its tenure, local Government Elections were postponed for two years. Interestingly, none of the entities who are expressly concerned over democracy under the Rajapaksa Brothers worried over this delay. They are yet to raise even a peep over the delay of holding Provincial Council Elections. The Provincial Councils are the key to decentralising the power at the Centre. Yet, as Election have not been held when the Council’s term expired, all nine provinces have fallen defunct. 

On 29 October, 2018 President Maithripala Sirisena sacked his Prime Minister Ranil Wickremesinghe and moved for fresh Parliamentary Election. This raised a howl of protests from the Yahapalana Government proponents. While the objections from Wickremesinghe’s vote base are acceptable, that from Election Commission member Professor Ratnajeevan Hoole was not. Yet, he was among the petitioners who submitted to the Supreme Courts his objections AGAINST holding Elections. 

EC cannot be excused

The fact that the 19th Amendment prevented the President to call for fresh Elections when the then Government was failing should not be dismissed lightly. The absurdity of having to endure a failing Government for four and half years out of a five year term cannot be lost on a genuine advocator for democracy. As the High Commissioner for UNHR Bachelet should seriously study the causes that allowed for the Easter Sunday massacres just six months after President Sirisena’s desperate move to establish proper governance in the country. It was none other than the 19th Amendment that prevented President Sirisena from doing so. 

The 19th Amendment forced the voter to suffer the presence of political entities who had lost credibility. Had the 19th Amendment not prevented an Election on 5 January 2019 as President Sirisena wanted, the Yahapalana Government partners would have merely lost the Election. The local Government Election that were held in February 2018 attests to this fact. However, the voter was not allowed to decide for a further one year and eight months. The consequent festering resentment resulted in politicians such as Ranil Wickremesinghe not just losing the Election, but been resoundingly sacked by the people. 

The manner the EC conducted itself during the COVID-19 pandemic certainly did not inspire people’s confidence in the Commission. Using the pandemic as an excuse, the Sajith Premadasa-Ranil Wickremesinghe led Opposition protested against Elections. Using that very same cover, the EC too baulked at conducting General Election on the due date. 

As the pandemic was an extraordinary and unprecedented experience, the EC can be arguably excused for indefinitely postponing the Elections that were due on April 25. However, the EC cannot be excused for its failure to explore alternative avenues to hold Elections or complete the tasks that they could have executed. It seems that they too were waiting with the expectation that the dissolved Parliament would be recalled as demanded by the Opposition. This would then excuse them from their obligation to hold Election. 

SC decides 

The matters deteriorated to the point it ended up in Supreme Courts. A main demand before the SC was for the President to recall the gazette that dissolved the Parliament and called for Elections. However, disagreeing with the petitioners, the SC deemed that to allow a President to recall a gazette could lead to a dangerous precedence. In normal circumstances, the new Parliament must convene within three months from the date of dissolution. However, the SC ruled that under extraordinary conditions as the pandemic, the new Parliament may convene even after the lapse of three months. After all, the law does not expect the impossible. 

With this ruling from the SC, the EC had to proceed with the Election. It was at this point that Hoole took matters to his own hands and started an active campaign against SLPP. This is obviously in violation to the Commission’s mandate. Yet, the EC members are of the same league as a Supreme Court judge. Thus, when a member turns rogue as Hoole did, the way to terminate him would be to impeach him in Parliament. As it turned out, the Parliament was not in its ‘proper sense’ to deal with such a matter. 

How did the 19A strengthen Democracy?

A similar obstacle prevented the termination of the IGP, even after it transpired that his gross neglect of duty allowed the Easter Sunday Massacres. The Government was then forced to send him on compulsory leave and appoint an acting IGP. Even when he was taken into remand custody, he could not be terminated. In short, the 19th Amendment made a comedy out of the State affairs. Its aim was to clip the President’s executive powers. However, such a move needs a referendum from the people. After all, this power is vested in the President by the people. Thus, it is not possible to shift this power to another source without the people’s consent. 

Even though the 19th Amendment is being pandered as a reform that strengthened democracy, the Yahapalana Government feared to seek permission from the people to implement the Amendment. Instead, they tried to work around the clauses that demand a referendum. This is how the Constitution got bogged with a chicken-wire-chewing-gum Amendment. 

Sri Lanka has suffered immensely because of the 19th Amendment. The time to bin it is long overdue. Those who had not studied this Amendment or understood its failures should not profess an opinion about it. 

ranasingheshivanthi@gmail.com