The 19th Amendment: get over it already!
Posted on November 25th, 2020

MALINDA SENEVIRATN​E

There are all kinds of yahapalanists. There are those who cannot be in denial simply because they were right in the middle of the yahapalana project or rather a project by that name (for good governance was certainly not their cup of tea as history showed and practice demonstrated). Then there are those who opted for a change of clothes. Name change, symbol change, address change etc., didn’t make them unrecognizable. SJB and UNP, telephone and elephant, it’s the same. All yahapalanists. The praise and blame accrue to one and all. Well, add to this the Yahapalana Fan Club made of sideline politicians who are double-headed and double-addressed, i.e. rights advocates and professionals.

Now these worthies are big fans of the 19th Amendment. It was great, they say. And they add, ‘the 20th is draconian and dictatorial; it rolled back the gains of the 19th and is even worse than what JR initially instituted in 1978.’

Where’s the substantiation, though? Let’s take a look.

Let’s start with the brag. The brag of course had to do with the 18th. It also had to do with a peculiar political context where the champion and the intended beneficiary (Ranil Wickremesinghe) led a party that had minority representation in Parliament whereas the man whose powers were to be clipped, Maithripala Sirisena had just assumed office with a majority of the national vote.

The 18th would be effectively repealed, they bragged. It was. The 19th would embody the Yahapalana promise(s). We would have accountability and transparency. Democracy would be enhanced. Good governance assured. Cabinet would be limited to 30 ministers. That was part of the brag. Seniority and meritocracy will mark appointments and promotions, they told us. We know how that fell by the wayside! The independence of the judiciary would be restored, they promised. Well, they made a mockery of the last by turning the Supreme Court into a political circus almost immediately after Sirisena was sworn in as President.

Let’s get to the process which includes the passage of the amendment. It was drafted. Nothing wrong with that. The Supreme Court was petitioned. Nothing wrong with that. The Supreme Court offered a determination. Essentially, important elements of the draft were shot down. Now what did the Yahapalanists do?  Did they follow yahapalana practice to the letter?

Well, the objections were of an order that amending the document in ways that took these into consideration would have violated established parliamentary procedure. Typically, at the committee stage, only minor corrections are made. In other words, yahapalana theory would have required the yahapalanists to withdraw the amendment, get back to the drawing board and come up with a fresh draft.

They didn’t do that. They produced an amendment that was very different to what was tabled. That’s giving a finger to established procedure. Not very yahapalana-like, was it? It only demonstrated (and rather early in the tenure of that regime) that ‘yahapalanaya’ was a lie. A hoax.  It was voted on in the dead of the night by clearly irresponsible and perhaps tired and sleepy MPs. Sarath Weerasekera voted against it. Only he. Kudos to him.

The substance. As mentioned it was about giving power to a man who, at that point, did not have the trust and confidence of the people. One must mention that Wickremesinghe’s swearing-in was also a travesty of established procedure. The incumbent was sacked by way of the newly sworn in President signing a letter. Immediately, i.e. before the letter was delivered, President Sirisena appointed Ranil Wickremesinghe

So it was done. It was done in such a way that no one knew who really called the shots. Ball-passing between the Prime Minister and the President became a common occurrence. Finger-pointing was frequent. It was the easy out for a bunch of people lacking imagination, suffering innovation-lack and who were absolutely incompetent. Things were so confusing that it took the  Supreme Court to say what was what and that too only with respect to dissolution-power. This was when Sirisena joined forces with Mahinda Rajapaksa in late 2018.

Cabinet-size. This was a joke. On paper, we got the number 30. It was cheered. It was bragged about. On paper also was this neat device called ‘National Government’ which the amendment-drafters left undefined. ‘In a National Government, cabinet size would be determined by Parliament. The matter finally hit the ‘constitutional experts’ in the yahapalana camp only when it could no longer be hidden. When Sirisena took the SLFP out of the coalition, Jayampathy Wickramaratne, the big boss behind the drafting, unashamedly said that since the SLMC (Sri Lanka Muslim Congress) was with the UNP, it remains a ‘national government.’ In other words, in his mind, a bloated cabinet was still constitutional! The yahapalana braggarts maintained a dead silence on the matter.

Much was made of the Constitutional Council (CC) which, the braggarts claimed, corrected the clauses of the 18th that crippled independent institutions. However, in reality, it was Ranil Wickremesinghe’s whims and fancies that held the day. The composition of the CC, naturally and understandably tilted in favor of the regime. It was politician-heavy, which of course wasn’t quite yahapanish. However even the non-politicians (non-political only because they weren’t in Parliament, let’s keep that in mind!) were partisan. Check the names of those ‘civil society’ people in the CC, the names of those appointed to various commissions and the appointments and promotions recommended by the commissions themselves. Friends and loyalists. That’s it. Why else would some of these ‘independents’ resign the moment Gotabaya Rajapaksa was elected President?

So now we have the 20th. Much of the confusion has been sorted out. Some of the better elements of the 19th have been retained. Are we ok now? Of course not. Cabinet size is still not cleared, although President Rajapaksa has kept it within the ceiling mentioned in the 19th. The CC just rubber-stamped Wickremesinghe’s wishes. President Rajapaksa has far more sway and that’s not necessarily a good thing.  Nevertheless, unlike the yahapalana braggarts, he has recommended that the six senior most judges be promoted to the Supreme Court. The yahapalana regime didn’t do that, not even with the so-called democracy-safeguards instituted to ensure independence of the judiciary. If it was Sirisena, Wickremesinghe or even Mahinda Rajapaksa, this might not have been the case. That itself shows the flaw. It should not be dependent on whether or not the incumbent values meritocracy.

Sri Lanka has a long way to go to resolve a simple issue: what’s best for us, a parliament-led system or an executive presidential system of governance? The proposed new constitution might sort this vexed issue out and hopefully in a way that effectively blocks the possibility of abuse.

That said, the 19th is nothing like its champions make it out to be. A piece of trash that did away with another piece of trash (the 18th). Stank. Get over it already.

malindasenevi@gmail.com

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