Dharshan Weerasekera

Certain public intellectuals and pundits in Sri Lanka have over the last two or three weeks commented that with the adoption of the 19^th Amendment Sri Lanka will go back to a Westminster” system of government.  Unfortunately, a Sri Lanka Constitution amended by the 19^th Amendment will not take us any closer to a Westminster”[1] system:  instead, it takes us closer to the Iraq model of government.

In the discussion that follows, I’ll highlight the points of comparison between the Iraq Constitution and a post-19^th Amendment Sri Lanka Constitution, and then briefly explain the implications to this country of having a Constitution that approximates in important respects the Iraq Constitution.

The points of comparison have to do with the role of the President and the Prime Minister in the governance of the country.  I’ll first give the relevant portions from the Iraq Constitution, and then turn to the 19^th Amendment.

Iraq Constitution[2]:

Article 67:  The President of the Republic is the Head of the State and a symbol of the unity of the country and represents the sovereignty of the country.

Article 76(1):  The President of the Republic shall charge the nominee of the largest Council of Representatives bloc with the formation of the Council of Ministers.

Article 76(2):  The Prime Minister designate shall undertake the naming of the members of his Council of Ministers.

Article 76(4):  The Prime Minister designate shall present the names of his members of the Council of Ministers and the ministerial programs to the Council of Representatives.

Article 80(1):  [The Council of Ministers shall exercise the following powers.] Plan and execute the general policy and general plans of the State and oversee the work of the ministries and departments not associated with a ministry.

Sri Lanka Constitution (amended by the 19^th Amendment):

Article 33(1):  The President shall be the symbol of national unity.

Article 42(1):  There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic.

Article 42(3):  The Prime Minster shall be the Head of the Cabinet of Ministers.

Article 43(1):  The Prime Minister shall determine the number of Ministers of the Cabinet, and the Ministries, and the assignment of subjects and functions to such Ministries.

Article 43(2):  The President shall, on the advice of the Prime Minster, appoint from among Members of Parliament, Ministers to be in charge of the Ministries so determined.

Article 43(3):  The Prime Minister may at any time change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet.

To repeat, the points of comparison are, one, the President is a ‘symbol’ of national unity, that is, a figurehead, without any concrete power to enforce such unity.  And two, more important, the Prime Minister is given effective control over the Cabinet (‘Council of Ministers’ in the Iraqi version), which means the primary organ through which the executive branch operates is in the hands of the Prime Minister.

I shall now briefly discuss the implications to Sri Lanka’s future, of having the aforesaid points of comparison with the Iraq Constitution.   In order to appreciate those implications, it is necessary to review briefly the political realities that necessitated the Iraq Constitution.  The constraints of time don’t allow me to go into this matter at length, but, in general, I hope the reader will agree the following is a reasonable summation.

The United States invaded Iraq in 2003 under the pretext of ridding Saddam Hussein of purported weapons of mass destruction, and also of spreading democracy in Iraq, but in truth to gain control over that country’s vast oil resources, and also its strategic location in the Middle East, a long-standing US policy-goal.

At first, the US plan was to take over Iraq and rule it through a handpicked puppet, groomed in Washington.  In fact, they had the perfect candidate waiting in the wings—Mr. Ahmad Chalabi.  The Iraqis, however, would have none of it.  They also began to fight back, and the occupation turned out not to be as easy as the Americans expected.

No one conquers a country after spending billions if not trillions of dollars, just to leave that country to the locals to do with as they want.  So, the Americans had to come up with a way to continue controlling Iraq, but to give the impression that they were leaving Iraq to the Iraqis.  Thus arose the need for a new Iraq Constitution.

The system the Americans devised (or, shall we say, encouraged the Iraqis to adopt) placed the control of the country more or less in the hands of a Prime Minister, who could in turn be changed by action through the legislature.

In other words, if the Prime Minister starts to act in ways incompatible with American long-term interests, the US does not have to wait until the next election to oust the offender, but see to it that he loses support in the legislature, and thereby have him replaced.

In fact, the above is exactly what happened with former Iraqi Prime Minister Nouri al Maliki.  When the Americans realized, and rightly so, that Maliki was closer to Iran than to the US, they decided to get rid of him.[3]  They came up with the convenient excuse that Maliki’s Iran-connections were making him an impediment to the fight against ISIS.[4]

To summarize, the circumstances that led to the Iraq Constitution is that Iraq’s conquerors (i.e. the US) needed to continue their hold over the country, but give the locals the impression, and perhaps even a bit of capacity, to control their affairs through persons of their own choice.

An expedient of a Prime Minister with overall control of the government, but who can be replaced when necessary, without going for a general election, is perfectly suited for the above purpose.

Let’s now turn to Sri Lanka.  First, I believe most people will agree that, at least part of the reason for the fall of the Rajapaksa regime in January of this year is the fact that both the United States and India desired a regime change in this country.

It is generally agreed that the reason the US wanted a regime change here is that during the Rajapaksa era Sri Lanka had grown quite close to China, and that closeness was inimical to the US’s strategic designs in this region.

As for India, it is generally agreed that, as a result of domestic politics, particularly the need to placate Tamil Nadu, India wanted a different regime in power in Sri Lanka, one that was  more amenable to ‘reconciliation,’ which is to say, make more concessions to the Eelamists, and their ‘brethren’ in Tamil Nadu.

To repeat, what the US wants is a Sri Lanka that can be instrumental in furthering its (the US’s) strategic designs in the region, and what India wants is a Sri Lanka that will make more and more concessions to the Eelamists.  The only question is, How can they accomplish these goals while giving the locals the impression that they (the locals) are in control of their own affairs?”  Enter, the 19^th Amendment.

The point is this, whatever other virtues the 19^th Amendment may have (and it is not all bad, for instance, it introduces a right to information, re-introduces the Constitutional Council, and so on) the provisions that give the Prime Minister overall control of the Cabinet, and thus over the Government, make it a boon to the Americans and the Indians.

All that the Americans and the Indians now have to do is to pick a man who sympathizes with their goals to begin with, and have him installed as Prime Minster.  If he steps out of line, they correct him by pressuring him through various blocs in the legislature, on whom he must rely to retain majority support in Parliament.  If he proves totally recalcitrant, they have him replaced, by depriving him of the said majority support.

In short, once a general election is held, and a Prime Minister appointed, the foreigners are in the driver’s seat, as far as the overall policy and general direction of the State is concerned, as long as they can manipulate the various factions and blocs within Parliament.  The People are completely out of the equation.

To repeat, then, the 19^th Amendment allows foreign powers, in this case the US and India, a tremendous amount of leeway to control Sri Lanka’s internal affairs, without seeming to be doing it.  In this sense, the 19^th Amendment is a document that gets the locals to accept the yoke of subjection, willingly, and without resistance.  For this reason, perhaps more than for any other reason, the 19^th Amendment must be rejected.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of, The UN’s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures (Stamford Lake, 2013)   

[1] If by ‘Westminster system” is meant the system of government that prevails in England, to the best of my knowledge, that system has three distinct components:  an executive branch headed by a Constitutional Monarch, in whom the sovereignty of the country reposes, and whose representatives in Parliament comprise the Government; a legislature with two Houses, with the Upper House capable of imposing checks on the Lower; and an independent judiciary,  in the sense that the judiciary, by way of the common law, is a source of law, parallel to the legislature.   Since the Sri Lanka system has none of those elements, it is not, nor can ever be, a ‘Westminster’ system.

[2] The version I’m quoting from is in the Iraqi Ministry of Foreign Affairs website:  www.mofa.gov.iq

[3] Here’s how The Independent described Maliki’s fate:  President Barack Obama has made plain the United States squarely supports the removal of Nouri al-Maliki as caretaker prime minister of Iraq and urged the man chosen to replace him, deputy speaker of parliament Haider al-Ibadi, to move forward quickly with formation of a new cabinet….Mr. Obama characterized the political developments in Iraq triggered by the designation of Mr. Ibadi by Iraq’s President Fouad Massa, as a promising step forward’”  (Iraq Crisis:  Obama makes it clear Prime Minister Nouri al Maliki should go,’ www.independent.co.uk. 11 August 2014

[4] An excuse that is total nonsense, because, to the extent the present Iraq Government has had any success in fighting ISIS, which is to say, in ground-fighting, it has been with the help of the Iranians!