The baby and the bathwater

The 20th Amendment to Sri Lanka’s Constitution is now done and dusted and given the comfortable majority, though technically not the required two thirds by a whisker, it has all the support it needs for comfortable passage. Since its gazetting on Friday, a period of two weeks must elapse before it can be included in the parliamentary order paper. A legal challenge can also be mounted against it in the short term. But given the scale of the massive victories scored by the incumbent government, both at the presidential election last November and the more recent parliamentary elections, there will be little fire and thunder in whatever resistance is attempted.

Ever since the parliamentary election and the massive and unexpected two thirds majority it brought President Gotabaya Rajapaksa and his brother, Prime Minister Mahinda Rajapaksa, the country has been treated to a litany of how horrible the 19th Amendment was and more than an earful on everything that was wrong with it. But none of the pundits who have expounded long and loud against the amendment has explained why, if this were so, all but one of them (Rear Admiral Sarath Weerasekera) voted for it. Their lack of eloquence on this subject is truly deafening. True, despite the two third majority that the UPFA and its fellow-travelers enjoyed in the 2010 parliament, the stunning defeat of then President Mahinda Rajapaksa in 2015 left the whole caboodle of them in total disarray. This left ample room for the winner to take all and that’s exactly what happened.

Such was the situation when the 2015 election result was declared that the new President Maithripala Sirisena was able to instal a minority government under Mr. Ranil Wickremesinghe despite the fact that Prime Minister D.M. Jayaratne was yet in office. So also the reinstatement of sacked Chief Justice Shirani Bandaranayake, albeit for a day, before Justice K. Sripavan (who incidentally administered the oath of office of the new president as his predecessor was in the dog house) was appointed. The defeated president, who sought a third term in an endeavour that went sour, metaphorically placed the SLFP leadership crown on his successor’s head. No political or legal challenges were mounted and the winning side, flushed with a perhaps unexpected victory, did exactly as they pleased. And how!

The 19th Amendment certainly was not enacted for the good of the country. It was done to suit the needs and wishes of those who won the election as too many of our laws have been and will be in the future. However, 19A was not without some virtue with the best known plus factors including the restoration of the two-term limit on the presidency, which Mahinda Rajapaksa removed by virtue of a two thirds majority (necessary for constitutional changes) he did not win in the country but engineered through defections. Events proved that to be his undoing, but he to his eternal credit, was able to rise Phoenix-like from the ashes. He refused to lie down and die as most would have given his situation. Like the proverbial tortoise, he withdrew into his shell during the aftermath of his defeat, to return vigorously to battle as the tide began to turn. Mercifully the two-term limit will remain under the new order. We don’t know whether there is an intention of going back to the previous age qualification of presidential contenders which was in 19A, obviously with Namal Rajapaksa in mind. It is no longer a necessity for a Rajapaksa dynasty as the years have since rolled by. Let us not forget that Namal himself voted for that amendment just as much as his father voted for 19A.

The Right to Information Act has also been applauded as a major achievement of the 19th Amendment. This too will remain, the people have been told. That is cause for applause although the Act itself was not used as effectively as it might have given the appalling state of governance in the country. Opponents of the proposed 20A are on record saying that several major democratic gains achieved through a mechanism of checks and balances like the independent commissions, are being done away with. There is no argument that President J.R. Jayewardene, intoxicated with the five sixth parliamentary majority he won in 1977, crafted the 1978 constitution to make himself the uncrowned head of Sri Lanka. He was fond of saying there was nothing he could not do except to make a man a woman or vice versa. He didn’t try to undertake that mission impossible although he did try to have two Members of Parliament representing Kalawana! But even that constitution, providing for the executive presidency in the manner of de Gaulle’s as many say, made fundamental rights justiciable. To give the devil his due, that was an enormous democratic gain.

In terms of the draft amendment, we are going to have a Parliamentary Council, instead of the Constitutional Council introduced by 19A. But this too, just like the other one. will be packed with politicians who are not exactly a breed that has endeared itself to the people. But the people themselves keep electing undesirables as we have seen over the years; and party hierarchies keep anointing them with their tickets regardless of loud (and useless) professions on their desire for good governance that has eluded us through the 42 years when we have had as many as 19 amendments to our constitution with the 20th in the pipeline. A correspondent, of Sri Lankan descent living in Washington, writing to this issue of our newspaper says that the American constitution written over 230 years ago has just 4,543 words and 27 amendments to date. Amen.