{"id":42784,"date":"2015-03-31T15:02:30","date_gmt":"2015-03-31T22:02:30","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=42784"},"modified":"2015-03-31T15:02:30","modified_gmt":"2015-03-31T22:02:30","slug":"does-the-19th-amendment-make-the-sri-lanka-constitution-remarkably-similar-to-the-iraq-constitution","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/03\/31\/does-the-19th-amendment-make-the-sri-lanka-constitution-remarkably-similar-to-the-iraq-constitution\/","title":{"rendered":"DOES THE 19TH AMENDMENT MAKE THE SRI LANKA CONSTITUTION REMARKABLY SIMILAR TO THE IRAQ CONSTITUTION?"},"content":{"rendered":"

Dharshan Weerasekera<\/strong><\/em><\/span><\/h2>\n

Certain public intellectuals and pundits in Sri Lanka have over the last two or three weeks commented that with the adoption of the 19th<\/sup> Amendment Sri Lanka will go back to a Westminster\u201d system of government.\u00a0 Unfortunately, a Sri Lanka Constitution amended by the 19th<\/sup> Amendment will not take us any closer to a Westminster\u201d[1]<\/a> system:\u00a0 instead, it takes us closer to the Iraq model of government.<\/p>\n

In the discussion that follows, I\u2019ll highlight the points of comparison between the Iraq Constitution and a post-19th<\/sup> 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.<\/p>\n

The points of comparison have to do with the role of the President and the Prime Minister in the governance of the country.\u00a0 I\u2019ll first give the relevant portions from the Iraq Constitution, and then turn to the 19th<\/sup> Amendment.<\/p>\n

Iraq<\/span><\/strong> Constitution<\/span>[2]<\/strong><\/a>:<\/span><\/strong><\/p>\n

Article 67<\/strong>:\u00a0 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.<\/p>\n

Article 76(1)<\/strong>:\u00a0 The President of the Republic shall charge the nominee of the largest Council of Representatives bloc with the formation of the Council of Ministers.<\/p>\n

Article 76(2)<\/strong>:\u00a0 The Prime Minister designate shall undertake the naming of the members of his Council of Ministers.<\/p>\n

Article 76(4)<\/strong>:\u00a0 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.<\/p>\n

Article 80(1)<\/strong>:\u00a0 [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.<\/p>\n

Sri Lanka<\/span><\/strong> Constitution (amended by the 19th<\/sup> Amendment):<\/span><\/strong><\/p>\n

Article 33(1)<\/strong>:\u00a0 The President shall be the symbol of national unity.<\/p>\n

Article 42(1)<\/strong>:\u00a0 There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic.<\/p>\n

Article 42(3)<\/strong>:\u00a0 The Prime Minster shall be the Head of the Cabinet of Ministers.<\/p>\n

Article 43(1)<\/strong>:\u00a0 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.<\/p>\n

Article 43(2)<\/strong>:\u00a0 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.<\/p>\n

Article 43(3)<\/strong>:\u00a0 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.<\/p>\n

To repeat, the points of comparison are, one, the President is a \u2018symbol\u2019 of national unity, that is, a figurehead<\/em>, without any concrete power to enforce such unity.\u00a0 And two, more important, the Prime Minister is given effective control over the Cabinet (\u2018Council of Ministers\u2019 in the Iraqi version), which means the primary organ through which the executive branch operates is in the hands of the Prime Minister.<\/p>\n

I shall now briefly discuss the implications to Sri Lanka\u2019s future, of having the aforesaid points of comparison with the Iraq Constitution.\u00a0\u00a0 In order to appreciate those implications, it is necessary to review briefly the political realities that necessitated the Iraq Constitution.\u00a0 The constraints of time don\u2019t allow me to go into this matter at length, but, in general, I hope the reader will agree the following is a reasonable summation.<\/p>\n

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\u2019s vast oil resources, and also its strategic location in the Middle East, a long-standing US policy-goal.<\/p>\n

At first, the US plan was to take over Iraq and rule it through a handpicked puppet, groomed in Washington.\u00a0 In fact, they had the perfect candidate waiting in the wings\u2014Mr. Ahmad Chalabi.\u00a0 The Iraqis, however, would have none of it.\u00a0 They also began to fight back, and the occupation turned out not to be as easy as the Americans expected.<\/p>\n

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.\u00a0 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.\u00a0 Thus arose the need for a new Iraq Constitution.<\/p>\n

The system the Americans devised (or, shall we say, encouraged<\/em> 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.<\/p>\n

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.<\/p>\n

In fact, the above is exactly what happened with former Iraqi Prime Minister Nouri al Maliki.\u00a0 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]<\/a>\u00a0 They came up with the convenient excuse that Maliki\u2019s Iran-connections were making him an impediment to the fight against ISIS.[4]<\/a><\/p>\n

To summarize, the circumstances that led to the Iraq Constitution is that Iraq\u2019s 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.<\/p>\n

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.<\/p>\n

Let\u2019s now turn to Sri Lanka.\u00a0 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.<\/p>\n

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\u2019s strategic designs in this region.<\/p>\n

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\u00a0 more amenable to \u2018reconciliation,\u2019 which is to say, make more concessions to the Eelamists, and their \u2018brethren\u2019 in Tamil Nadu.<\/p>\n

To repeat, what the US wants is a Sri Lanka that can be instrumental in furthering its (the US\u2019s) strategic designs in the region, and what India wants is a Sri Lanka that will make more and more concessions to the Eelamists.\u00a0 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?\u201d\u00a0 Enter, the 19th<\/sup> Amendment.<\/p>\n

The point is this, whatever other virtues the 19th<\/sup> 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.<\/p>\n

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.\u00a0 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.\u00a0 If he proves totally recalcitrant, they have him replaced, by depriving him of the said majority support.<\/p>\n

In short, once a general election is held, and a Prime Minister appointed, the foreigners are in the driver\u2019s 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.\u00a0 The People are completely out of the equation.<\/p>\n

To repeat, then, the 19th<\/sup> Amendment allows foreign powers, in this case the US and India, a tremendous amount of leeway to control Sri Lanka\u2019s internal affairs, without seeming<\/em> to be doing it.\u00a0 In this sense, the 19th<\/sup> Amendment is a document that gets the locals to accept the yoke of subjection, willingly, and without resistance.\u00a0 For this reason, perhaps more than for any other reason, the 19th<\/sup> Amendment must be rejected.<\/p>\n

Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of, The UN\u2019s Relentless Pursuit of Sri Lanka, and the need for effective counter-measures (Stamford Lake, 2013) \u00a0\u00a0<\/strong><\/em><\/p>\n

[1]<\/a> If by \u2018Westminster system\u201d is meant the system of government that prevails in England, to the best of my knowledge, that system has three distinct components:\u00a0 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,\u00a0 in the sense that the judiciary, by way of the common law, is a source of law, parallel to the legislature.\u00a0\u00a0 Since the Sri Lanka system has none of those elements, it is not, nor can ever be, a \u2018Westminster\u2019 system.<\/p>\n

[2]<\/a> The version I\u2019m quoting from is in the Iraqi Ministry of Foreign Affairs website:\u00a0 www.mofa.gov.iq<\/a> <\/em><\/p>\n

[3]<\/a> Here\u2019s how The Independent<\/em> described Maliki\u2019s fate:\u00a0 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\u2026.Mr. Obama characterized the political developments in Iraq triggered by the designation of Mr. Ibadi by Iraq\u2019s President Fouad Massa, as a promising step forward\u2019\u201d\u00a0 (Iraq Crisis:\u00a0 Obama makes it clear Prime Minister Nouri al Maliki should go,\u2019 www.independent.co.uk<\/a>. 11 August 2014<\/p>\n

[4]<\/a> 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!<\/p>\n","protected":false},"excerpt":{"rendered":"

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 19th Amendment Sri Lanka will go back to a Westminster\u201d system of government.\u00a0 Unfortunately, a Sri Lanka Constitution amended by the 19th Amendment will not take us any closer to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-42784","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/42784","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=42784"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/42784\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=42784"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=42784"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=42784"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}