By Dr Kamal Wickremasinghe Courtesy The Island

Judging by the post-November 17 political discourse, Sri Lanka seems to be experiencing an ‘outbreak of common sense’. Many worthy proposals, emanating from the grassroots, appear to supplement the new President’s task of repairing the economic, national security and social damage caused by yahapalana incompetence and neglect.

The shift of public attention on to ‘issues that matter’ has been helped by the salutary change in the President’s election campaign that desisted from making constitutional change a key promise. The new politic marked a fundamental change from the yahapalana deception founded on abolishing the executive presidency that meant nothing to the long suffering rural populations. Currently, however, the people seem to be generating their own demands for constitutional alteration in the form of repeal of Sections 13 and 19 Amendments. A careful look at the actions necessary for the correction of historical errors shows it is prudent advice, indeed.

A look at the two subject amendments shows that they share much in terms of political circumstances that led to their introduction, the fundamentally undemocratic processes through which they were enacted, and the adverse effects their operation has had on the country’s economic and political infrastructure and the social fabric. These reasons form the basis for the need for urgent repeal of s13 and s19 Amendments at the earliest opportunity the parliamentary process would allow.

As to the origins, the Indo-Lanka Accord—the source of s13 Amendment— to which Indian Prime Minister Rajiv Ghandi forced JRJ’s hand, on 29 July 1987, at Colombo, following the ‘parippu drop’ earlier, in June 1987, can be considered the final revenge of the Gandhi family on the disdain JRJ showed towards India, in favour of his almost irrational servility to the US. One of the biggest failures of JRJ since 1977—perhaps only second to the invitation he extended to ‘robber barons’—was his failure to gauge the intensity of Indian acrimony towards his behaviour, owing to the fact that the US was the principal sponsor of Pakistan at the time, and was India’s ideological and political enemy. The Accord was also the handiwork of bureaucrats of South Indian-origin occupying the higher echelons of Indian Foreign and intelligence services at the time.

The attempt to abolish the executive presidency, through the 19th Amendment, similarly did not originate from any burning need: it was a political manoeuvre that resulted from the acquiescence among those behind the 2015 conspiracy that the political circumstances created by the 2009 war victory pushed the presidency beyond their reach. The apparent ‘eternal leader’ of the UNP, Ranil Wickremesinghe, had realised that ‘it will be a cold day in Hell’ before he would be able to win an election, and he had plotted to ‘piggyback’ to power on the back of a common candidate—hopefully someone with a support base larger than that of the failed Sarath Fonseka. His strategy was to become PM and to ‘steal’ presidential powers in order to ward off the familiar experience of being sacked by the president. The construction of the 19th Amendment, including the specific ‘anti-Rajapaksa clauses’ designed to dispel the spectre of peoples’ choice, the Rajapaksa family clearly reflected these motives.

The enactment of the two amendments involved identical, glaring abuses of parliamentary and judicial processes—basically designed to circumvent the fundamental democratic requirement of a referendum—putting their legitimacy and democratic credentials in to serious question.

A brief look at the safeguards around the constitutional alteration process in mature democracies shows the corruption of process involved during the enactment of the 13th and 19th Amendments. Practice in such countries, built around the need to prevent Parliament modifying or altering the original provisions of the constitution —the ‘source’ of Parliamentary authority—includes steps designed to ensure rigorous public scrutiny of any proposal. The process in Australia, as an example, requires proposals to amend the constitution originated in parliament a) be passed by an absolute majority and b) submitted to the electors at a referendum through the issue of a writ by the head of state. The voter scrutiny process is further strengthened by the requirement to provide voters with arguments ‘for’ and ‘against’, authorised by a majority of Members of Parliament who voted in favour and against respectively. The proposals require approval by a majority of voters in a majority of the States, and also by a majority of all the voters who voted, if they are to be implemented. In the US, the authority to amend the Constitution derived from Article V of the Constitution requires an amendment be proposed by the Congress (with a two-thirds majority vote in either House) or by a constitutional convention called for by two-thirds of the State legislatures.

In Sri Lanka, the 13th Amendment that established a fundamental change of the state architecture — composed of a unitary government with centralised sovereignty and power as per Article 2 of the 1978 constitution— by the creation of Provincial Councils with powers and functions that intersected, or at best duplicated those of the unitary state, was not subjected to any such scrutiny. It was enacted through deliberate manipulation of the judicial process, and the use of coercion and intimidatory tactics to get the required two-thirds majority in parliament. The nine-member Supreme Court was ostensibly divided along ethnic lines on the issue of the need for a referendum, and the requirement of a referendum was averted by the narrowest of majorities, by deleting the two clauses which Justice Parinda Ranasinghe held to require a referendum. The amended bill was never subjected to a fresh review by the Supreme Court. The Bill was enacted on 14 November 1987 following tumultuous parliamentary process that needs no recounting here.

At a practical level, it was enacted against the will of the majority of the people, expressed in a robust protest movement, resulting in 21 deaths. Importantly, the LTTE and the TULF was never committed to it either, and the Indian effort to forcibly enforce the Accord resulted in the loss of nearly 2000 of their soldiers. JRJ’s cunning and desperation saw ‘devolution’ through the 13 Amendment imposed on all provinces with the intention of portraying it as a national measure rather than a special dispensation for the Northern and Eastern Provinces.

The most compelling reason for the repeal of the 13 Amendment however, lies in its demonstrated total ineffectiveness after three decades of operation, to make an iota of difference to the material well-being of the Tamil people in the North and the East. It has only enabled the rise of Colombo Tamils, with no roots in the North, such as C. V. Vigneswaran to power in the provincial administration by promoting chauvinism, and others such as M. A. Sumanthiran, to fuel separatist sentiments with the hope of political purchase.

The worst effects of the 13 Amendment elsewhere on the country have been to create a ridiculously ‘over administered’ country, creating ridiculously high levels of bureaucrats to population ratio anywhere in the world. Yahapalana minister F. Mustapha’s failed gerrymander nearly worsened the situation. Provincial administrations that simply mirror all central government portfolios and operations in impracticably small patches of land have led to inertia. The operational costs of legislative bodies with fleets of vehicles (and fuel) have worsened the plight of the haemorrhaging national economy. In addition, the political culture created by the Provincial Councils has been at the base of violent and corrupt political culture in the country, not to mention their use as the ‘grooming grounds’ for generational politicians. It has also failed miserably as an alleged exercise in furthering democracy, with the electorate showing far less levels of enthusiasm and participation at provincial elections, compared to presidential and parliamentary elections.

This negative record shows there is no rationale for the continuation of the 13th Amendment farce, and it needs to be repealed after addressing any continuing Indian sensitivities. The prospect of any Indian resistance to correcting this anomaly, however, is unlikely in view of current cordial relations and the President’s stance on devolution that has already been conveyed.

Moving on the infamous 19th Amendment enactment process, it was marked by even worse lack of transparency and public information and similar judicial and parliamentary processes. A so-called Concept Paper and a legal draft mentioned, but that were never officially published prior to the official gazettal on 13 March 2016, limited public access to those crucial documents to glimpses gained through leaks to the media. Similar to the 13th Amendment fraud, the Supreme Court challenge to the amended bill was undermined by the addition of a series of amendments added to the text already before Court. The move was a deliberate act designed to limit the Court’s determination on the need for a referendum on a proposed, unpublished list to be passed at the committee stage by the government, denying the public the opportunity to scrutinise. The Bill was taken up for debate on 28 April 2016 and was passed on the same day, denying the parliament scrutiny.

Section 19 Amendment, it must be pointed out, was one of the two ‘disasters’—with the robbery of the Central Bank—that destroyed any remaining credibility of the yahapalana charade during the much touted 100-day programme. The other positive outcome was that the 1978 Constitution remains strongly presidential, bearing testimony to the legendary ineptitude of the mob.

An analysis of the 19th amendment and its position in the country’s constitutional and legal history cannot be complete without a brief look at the Supreme Court decision (SC FR Application No. 351-361/ 2018) of 13 December 2018 that validated the 19th Amendment merely as an amendment that has limited the powers of the president to dissolve parliament. The Court’s determination however, reflected nothing more than the particular standards and methods, and the guides in particular, used in the particular exercise of statutory interpretation:

The court’s reliance on the chosen authorities (recent editions of Maxwell on the interpretation of statutes and N S Bindra’s Interpretation of Statutes, supplemented by the court’s own authority in Somawathie v. Weerasinghe), would not have yielded any other outcome than the determination it reached. A colonial text such as Maxwell on the interpretation of statutes — a book originally published in 1875, authored by a committed colonialist named Peter Benson Maxwell — was written to convince the British naysayers to colonialism that the intent of all colonial legislations was to benefit the tribe through exploitation of other domains. (In fact, Maxwell’s next book published just three years later, in 1878, was tellingly titled ‘Our Malay Conquests’). Therefore, according to Maxwell, the ‘intent’ is what justifies all legislation. The issue with s19 however, was that its expressed intent was vastly different from its real intent that was Machiavellian.

Fortunately, that particular interpretation is water under the bridge now and repeal of 19th Amendment at the first available opportunity will redress the situation.