A quiet acceptance: Sri Lanka might substantially prune 19 th. Amendment with multi-party support

By P.K.Balachandran/Daily Express

Colombo, July 27: In the run up to the August 5 Sri Lankan parliamentary elections, only the ruling Sri Lanka Podujana Peramuna (SLPP) has been openly saying that it wants to amend or wholly jettison the 19 th. Amendment (19A) of the constitution. And it is not shy about declaring that it wants two thirds majority precisely for that. The other parties are maintaining an ominous silence on the issue, though the 19A was brought by them in 2015 to drastically prune the powers of the Executive President (EP) ostensibly to restore democracy.

The opposition parties have not explicitly opposed a change, preferring to observe silence on the question and highlight other issues. In the case of the Samagi Jana Balawegaya (SJB) the stress is on flaws in the handling of the COVID-19 pandemic and the economic issues spawned by it. In the case of the Tamil National Alliance (TNA), the foremost issue is devolution of power to a unified Northern and Eastern Provinces. In the case of the Muslim parties, it is wanton discrimination against the Muslims since the SLPP captured the Presidency in November 2019.

The opposition’s silence could be attributed to their own experience since 2015, which has shown that the multiple centers of authority created by the 19A have stymied efforts by elected Presidents and ministers to carry out their popular mandates.

In 2019, the then President Maithripala Sirisena stated that the 19A was a de-stabilizing element as it had created two centers of power, the President and the Premier who pulled in different directions. “Without a singular political leadership, it was impossible for the country to move forward. The 19A created political uncertainty and instability that was harmful to the country. Achieving the objectives of good governance proved futile under the 19A,” Sirisena said in 2018.

The 19A’s contradictory provisions stymied Prime Minister Ranil Wickremesinghe’s efforts too. Several MOUs his government had signed with India, including one on the Eastern Terminal at Colombo port, could not be implemented because President Sirisena opposed them. These soured relations with India.

The current President, Gotabaya Rajapaksa, told this correspondent that the Independent Commissions which had no popular mandate and were far removed from the problems on hand, were crippling the President’s power and the powers of other elected persons like Ministers. Even top officials tasked with taking major decisions, were chained he added.

“ The Inspector General of Police cannot appoint, transfer or sack a police officer without the sanction of the Police Commission, though he is the hands on man who knows who is competent and who is not,” Gotabaya said. After the 2019 Easter Sunday serial blasts, President Sirisena could not remove the IGP Pujith Jayasundara because appointments, transfers and dismissals were the functions of the NPC.

Columnist C.A.Chandraprema recalls how ministers Karunasena Kodithuwakku and Tissa Vitarana (belonging to different governments) were unable to carry out their development projects because the Public Service Commission sat over them. The President is the sole authority to appoint and dismiss Secretaries to the ministries but he cannot touch other officers.

Article 33A states that the President shall be responsible to parliament for the exercise, performance and discharge of his constitutional powers, duties and functions. But this provision nullifies his popular mandate because he is made responsible to parliament and not to his voters.

19A says that the President shall be a member of the Cabinet of Ministers and shall be its Head too. But the cabinet is responsible not to him but to parliament. He also cannot take a portfolio including the Defense portfolio, even though he is the Supreme Commander of the armed forces and has the sole right to appoint service chiefs.

The 19A says that the President shall appoint as Prime Minister a Member of Parliament, who, in his opinion, is most likely to command the confidence of parliament. But he cannot sack the man he so appoints. There are provisions which shackle the Prime Minister too. The Prime Minister cannot chose his Council of Ministers. The constitution says that the President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and other ministers, the Ministries and the assignment of subjects and functions to such Ministers. The President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers.

The Rajapaksas have consistently charged that the Sirisena-Wickremesinghe government pushed for and rushed through the 19A in 2015 only to keep them out of power. The 19A was brought to prevent Mahinda Rajapaksa from contesting a third time by saying that a person who is twice elected as President is disqualified from contesting for a third time. It banned dual citizens from contesting to keep out Gotabaya Rajapaksa and Basil Rajapaksa who were US-Lankan dual citizens. It raised the lower age limit for contesting for President to 35 to keep Namal Rajapaksa out.

Every Presidential aspirant from Chandrika Kumaratunga onwards to Maithripala Sirisena swore to abolish the Executive Presidency and went some way to carry out their promise, when elected, they always found an excuse to stop short of scoring the goal. The political consequences of the abolition was too daunting. During the Presidency of Chandrika Kumaratunga, the UNP led by Wickremesinghe opted out of cooperation at the last moment giving Kumaratunga an excuse to drop the idea of reform.

During the Sirisena-Wickremesinghe regime from 2015 to 2019, a half baked 19A was thrust on the political system to achieve a few narrow partisan goals. The process of writing a new constitution was abandoned due to some political exigencies but actually because the expert panels had suggested reforms which no major Lankan political party with a majority Sinhala Buddhist vote bank will accept.

No leader aspiring to be President had really wanted the Executive Presidency abolished. The only candidate and incumbent President who has unabashedly declared his intention to keep and strengthen the Executive Presidency is the incumbent Gotabaya Rajapaksa. But the Rajapaksas have also argued that Sri Lanka could not have fought the war against the LTTE without a strong government headed by an unfettered Executive Presidency.

Milinda Moragoda, former minister and founder of the Pathfinder Foundation has pointed out that a strong Presidency had enabled Sri Lanka to contain the COVID-19 pandemic. A developing country faced with multifarious problems, needs a strong and cohesive government which the directly elected Executive Presidency purports to provide, Moragoda said.

He recalled what Alexander Hamilton, one of the founding fathers the US Constitution said: “A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution, and a government ill-executed, whatever it may be in theory, must be, in practice, a bad government.”

Critics of the bid to abolish or drastically amend 19A abound. Backed by international organizations the critics point out that a powerful Executive Presidency will lead to an unhealthy and dangerous concentration of power in the hands of a single person and the coterie around him as it did in Sri Lanka between 2010 and 2014, which alienated from the masses, even an iconic figure like Mahinda Rajapaksa.

However, indications are that the SJB and UNP will support selective amendments to 19A and keep the Executive Presidency intact. M.A.Sumanthiran of the TNA and a strong votary of the 19A, has said that some of the dysfunctional aspects of the 19 A could be taken up for discussion with the Rajapaksas.

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