Early polls favours UNP; later poll, SLFP:

New Parliament needed to go beyond 19A

by Dr. Paikiasothy Saravanamuttu

The point about the Nineteenth Amendment is that, though most have not read the Amendment Bill that was finally passed by Parliament - and, in the case of the general public, not even seen it - those who support its basic trajectory and even those who are disappointed with it, nevertheless agree that it is a good thing, being integral to and important for the governance Sri Lankans voted for on January 8, 2015.

A demonstration in favour of 19A. Pic: Rukmal Gamage

In this respect it has the status of motherhood and apple pie in the US. No one can possibly oppose it without being seen as seriously ideologically impaired or downright perverse. This accounts for the thumping two-thirds majority by which the amendment was passed in the end despite the political theatre and apparent suspense that preceded it.

In broad terms all are agreed it is for the good. What we now have is what we could have, given the political constraints of the day requiring compromise. The devil, though, is in the detail. President Maithripala Sirisena has made the point that the amendment does not go far enough and the Prime Minister has promised that a new constitution will be mooted in the next Parliament. So it is and should be under the circumstances.

Wherein lies the significance of the 19th Amendment? Broadly speaking, the central focus of the Amendment is the diminution of the powers of the Executive President – that hoary old chestnut that has been tossing around ever since the Executive Presidency was created by the 1978 constitution. For decades that arguments about it creating an over-mighty executive have been made and rehashed at every election, with the majority of candidates in Presidential elections in particular, vowing to abolish it.

Public cynicism

That Chandrika Kumaratunga and Mahinda Rajapaksa promised abolition but could not or, did not, deliver is well known. They were both elected to that office twice and, in the latter case, he enjoyed a two-thirds majority in Parliament which he used not to abolish or reduce the powers of the Executive Presidency, but to extend them through the abolition of term limits and independent oversight commissions. Public cynicism over the issue increased until the election of January 2015.

In January 2015, we defeated an incumbent President seeking an unprecedented third term with a turnout of over 80 percent and through the broadest coalition of political forces arraigned against him – Sinhala Buddhist nationalists at one end and Tamil nationalists at the other. In doing so we saved this country as a formal, functioning, albeit flawed democracy from the populist and majoritarian authoritarianism of the Rajapaksa dynastic project.

Rational of opposition

The rationale of the opposition alliance was that the abuse of power and corrosion of governance epitomised by the Rajapaksa dynastic project was greatly facilitated by the full gamut of powers available to the Executive President. Therefore, it had to be dealt with first, with key issues like a political settlement of the ethnic issue kept on the back burner to be addressed later.

The argument was that the governance deficit had to be bridged to create the enabling environment for addressing the main issues underpinning reconciliation and national unity. Abolition or at least the diminution of the powers of the Executive President thus emerged as the centrepiece of the Sirisena campaign as it had been of civil society for decades and more recently, the movement led by the Ven. Sobitha Thera.

Deadline

Consequently, there would have been electoral consequences for the Sirisena-Wickremesinghe combine had they failed in delivering on this before they faced the polls again in a general election and, even if this meant going beyond the self–imposed deadline of 100 days for initial governance reform.

In Maithripala Sirisena, we have a President who wants to clip his powers and now has.

It is no mean feat. It runs counter to the public perception and stereotype of politicians.

Most importantly, it is a considerable fillip to those who try to stem the haemorrhaging of public faith and confidence in politicians on account of their insincerity, unwillingness and or inability to deliver on promises made on the stump.

At the most fundamental level, trust between the electors and the elected is indispensable to governance and to electoral democracy as the basic mechanism of choice and change in a functioning democracy.

To the extent that the passage of the Nineteenth Amendment under the stewardship of the President and Prime Minister has boosted this, presages a much –needed change in popular political culture, which both government and civil society should further expand and consolidate. Or else, the fate of going “back to the future”awaits.

What we have in the amendment is the recalibrating of the balance of executive powers towards the Prime Minister and Parliament. What is in the nature of unfinished business, here, is the strengthening of Parliament’s powers of oversight through committees.

No longer will Parliament be dissolved at the will, whim or fancy of the Executive President. There is to be a fixed term of five years with dissolution possible after four and a half years with the agreement of Parliament and a two-term limit of five years each, on the presidency.

Recalibration of executive powers

The recalibration of executive powers notwithstanding, as per the determination of the Supreme Court, the Prime Minister cannot act unilaterally in determining the cabinet, the roles and functions of ministers – this is the responsibility of the President. The latter, however, may consult the Prime Minister on such matters if he so wishes. In the appointment and removal of ministers, however, the President must act in consultation with the Prime Minister.

The right to information has been made a fundamental right, the Constitutional Council restored along with the independent oversight commissions.

The composition of the Constitutional Council, specifically the number of non- MPs who could be members of the Council was the subject of concern and debate on the part of the Rajapaksa faction in Parliament, who feared that individuals from the non-governmental sector like this columnist could be appointed to it and thereby privilege foreign and vested interests as opposed to the national interest that MPs would uphold at all times!

Dual citizens cannot stand for the Presidency or for Parliament. In the event of crossovers the status quo is retained whereby MPs can move the courts.

The 19th Amendment does not and should not, constitute the end of the constitutional reform project for democratic governance and national unity. It is the beginning of such a process and the country must return a parliament at the next general election committed to taking this process forward.

Dissolution

It should be a more deliberative and consultative process: an improvement on the process by which the 19th Amendment was introduced and passed and not even remotely akin to the horrendous manner in which the 18th was introduced and enacted.

Parliament will reconvene on May 19 and, it remains to be seen as to whether the Right to Information Bill and, more controversially, a 20th Amendment on electoral reform will be passed and the next election fought on the basis of the new system.

Here, more so than with the 19th Amendment, partisan considerations dominate.

The SLFP, all factions of it, believe that an early election will favour the UNP. Delaying a dissolution closer to September or beyond will ensure that the UN report on allegations of war crimes will become an issue in the election campaign and beyond September, the presentation of a new budget approaches.

A lot, therefore, depends on President Sirisena, acting in a manner that does not blot his copy book as a reformist President as well as in a manner that does not lay himself open to the charge that he ended his party’s winning streak and sent it into relative electoral oblivion.

In this respect, whenever the election is to be held, a key factor will be the extent to which President Sirisena holds sway over the SLFP and sees off the Rajapaksa challenge. In this he may well have the support of the SLFP old guard who need to cooperate with him in charting a new course for their party in the widest interest of democratic governance and national unity in the country.

In terms of the restoration of democratic governance, we have commenced a process. More needs to be done.

Whatever adherents and sycophants may aver, the Nineteenth Amendment, diluted as it is, does not facilitate a return of the Rajapaksas to power. There is no licence to loot or to lay it on thick.

Constitutions, however, should not be drafted with the sole and explicit purpose of checking, balancing or extinguishing the ascent and or return to power of any single individual or group.

The constitution is the supreme law of the land and it must protect and provide for democratic governance for all people in the country and not just in the short or medium term.

From this perspective, yes, electoral reform is important. So is the right to information legislation and, fundamentally robust parliamentary powers of oversight.