WHY THE HURRY ABOUT 20A?

by Professor G. L. Peiris

Minister Of Education

May I begin by expressing my appreciation to the Kandy Professionals Association for embarking on this very timely initiative of meeting every month, on a Sunday, to discuss in depth the issues involving constitutional reform, and the way forward in our country. I consider this an exercise of immediate relevance and value.

The decision by the Government to present to the Cabinet of Ministers the text of the 20th Amendment to modify significantly the contents of the 19th Amendment and, after obtaining the approval of the Cabinet, to move the Amendment in Parliament, has attracted considerable public interest and discussion. As a preliminary to this, I think it is important to explain to the country the need for this. The public should have a clear understanding of the rationale underpinning this reform. This is all the more necessary because of the elaborate myths which have been assiduously cultivated, skilfully spread, by vested interests throughout the spectrum of our society.

The core of their argument is that the retention of the 19th Amendment is essential to preserve seminal values which we all believe in – the Rule of Law, independence of the judiciary and the separation of powers. They contend that removal or reform of the 19th Amendment is an act of treachery and that all must stand firm against it. If this is allowed to happen, so they contend, the result will be a mortal blow struck against human rights, democracy and seminal institutions including Parliament. The argument, set forth in the most emotional terms, needs to be assessed in the light of cold reason. What is the truth of this? Nothing is more crucial at this point than to inform the public mind about the reality of the current situation.

It is strenuously contended by interested parties that the 19th Amendment brought immense benefits in its wake, and that it has to be protected at any cost. Nothing could be further from the truth. It is for the entrenchment of narrow vested interests that this intricately orchestrated campaign, fortified by abundant resources and closely knit organization, has been launched. Why is 20A necessary? For a variety of reasons, no doubt. But chief among them, indisputably, is the maintenance of law and order – essential as it is for the protection of life and limb. This takes precedence over all other obligations – development in the economic, social and cultural fields.

This, then, is the principal and indispensable obligation of the State. If this duty is not fulfilled, all else become illusory.

What impact did the 19th Amendment have in this regard? The 19th Amendment categorically states that the President is debarred from holding any portfolios. Who is the President? He is the leader elected by the entire population of the country by the free exercise of the franchise. The inalienable duty of the President is the security of the State and the People. But the 19th Amendment prevents him from functioning as the Minister of Defence. We emphatically reject this position.

The 19th Amendment did contain a transitional provision. That, however, was limited in its operation to former President Maithripala Sirisena, who was permitted to hold the portfolio of Environment and Mahaveli Development during his tenure of the Presidency. This was an individual-centric provision which did not apply to Presidents who succeeded him.

For all other Presidents, the 19th Amendment imposes an inflexible bar against the holding of any portfolio, including Defence. Arguably, Articles 3 and 4 of the Constitution, read together, allow and indeed require, the President to hold the Defence portfolio, but this is a matter that would require judicial interpretation, in the event of a challenge in the Courts. Is this uncertainty and ambiguity desirable? Does it buttress or destroy the human rights and democracy which are sanctimoniously appealed to?

The 19th Amendment involves a basic conundrum. Articles 3 and 4 have the effect that the President is the repository of the Executive power of the State. Article 4(b) makes it clear that the defence of the nation is an integral and inseparable element of Executive power.

The defence of the country, then, is the sacred duty of the President. This is, without question, his responsibility. What he lacks, however, is the authority required to fulfil this responsibility. Here lies a fundamental contradiction, entailing as it does dire consequences for the nation’s security.

Prior to the enactment of the 19th Amendment, the Constitution of Sri Lanka contained explicit provision in respect of Urgent Bills. In the event of an unexpected contingency, an Urgent Bill could be presented to Parliament within seven days. The legislative process in ordinary circumstances, Is cumbersome and protracted: it may not enable a swift response to an unanticipated situation. To cater for this, the pre-19A law made provision for rapid intervention through the mechanism of Urgent Bills. It is this statutory provision that is abolished by 19A which compulsorily requires an interval of 14 days before legislation is introduced in Parliament. It is scarcely difficult to conceive of contexts in which this could imperil the safety and security of our country.

We have recently seen before our very eyes the horrendous consequences that were brought about by 19A. It created, in its foundation, two potentially warring centres of power. If the President and the Prime Minister belong to different political parties, we saw for ourselves the intensity of the conflicts, in terms of values, policy and even personalities, which arose in the day to day practice of Governance. It is the people of this country that paid an exorbitant price for this state of affairs. As many as 265 valuable lives were lost in the Easter Sunday carnage. To whom do we attribute responsibilities for this calamity? The Prime Minster says: “What can I do? I am not even invited to the National Security Council”. Indeed, meetings of the Council were not held for months on end. Was information conveyed to the President available to the Prime Minister, and vice versa? There was an internal tug of war – working not together but at odds with each other.

It is in the heat of this battle that the security of the nation collapsed altogether. The evidence being given on a daily basis before the Presidential Commission investigating this tragedy, is truly alarming. On the day this occurred, I was in Munich, Germany. On the following day the New York Times – a world renowned newspaper – carried on its first page the names, telephone numbers and addresses of those who were said to be involved in planning and executing this catastrophe.

Indian intelligence had brought these particulars to the attention of the Sri Lankan Government not once, but repeatedly. However, because of the internal dissensions which went from bad to worse, nothing whatever was done to avert the tragedy.

If there had been no 19A, responsibility would have been clear and undivided. What 19A did was to split it up and create chaos. The results are a permanent blemish on our national conscience. These are the matters of which the public should be informed.

What is the constant refrain of those who insist on the retention of the 19A? They proclaim the sanctity of the separation of powers, and regard authority in an individual or institution as the death knell of democracy and the basic elements of democratic culture. They assert their resolve to resist with the utmost vigour any attempt to dismantle the dual structure embedded in 19A. Is this an acceptable position?

At its very root, 19A elevated several institutions above the President. It took away the authority, hitherto vested in the President, to make appointments to high offices in the public service and the security establishment, including the Police. It characterised the retention of this authority in the hands of the President as a danger against which the public need to be protected.

On this footing the President was shorn of these powers. But to whom were they then transferred? To a Constitutional Council dominated by representatives of non-governmental organisations. This Constitutional Council is at the apex of the structure established by 19A, and wields the authority to constitute each and all of the Commissions which are said to be independent. Without the recommendations, or the approval, of this all-powerful body, the President is no longer empowered to make crucial appointments to the public service and the Police. In this regard the President is subordinated to this body – the Constitutional Council – which is sought to be sanctified as the embodiment of integrity, impartiality and probity.

Let us take a closer look at this body, close to being deified. Its membership includes persons who can in no way be regarded as legitimate representatives of the people. The whole object of the exercise, so the protagonists of the 19A whereby, stridently tell us, is to ensure depoliticisation of the State. Their contention is that everything in our country has become progressively politicised, and that the time has come to evolve a constitutional process where persons of undoubted rectitude, far removed from partisan politics, and professing fidelity to the highest moral and ethical standards, are vested with this awesome responsibility.

This is an absolute myth. Can it be maintained, by any stretch of the imagination, that the personnel constituting these Commissions are not tainted by partisan politics? A few examples will suffice. Professor Hoole is a member of the supposedly independent Elections Commission. He is expected to be apolitical. And yet, in an interview with a TV channel, he exhorted the public not to vote for the SLPP; he said that, if they were to do so, they would certainly regret their decision in the future. Can there be a more partisan intervention, coming as it has from a member of a Commission exalted as the zenith of objectivity and political neutrality? The yawning chasm between aspiration and reality is all too evident. Practice on the ground belies the grandiose pretence.

The Elections Commission is itself the creature of the Constitutional Council, identified by 19A as the source from which all the Commissions derive their authority. Mr. Javid Yusuf is a member of this overarching body. His impartiality is, therefore, by definition, axiomatic. Nevertheless, he makes so bold as to declare to the country at large in uncompromising terms, at a public forum: “Whatever you do refrain from giving the Lotus Bud a two-thirds majority. If you do this, you cannot evade responsibility for pushing the country to the brink of disaster”. Words to this effect are unabashedly uttered by a representative of the supreme body which functions as the fons et origo of all the “independent” Commissions.

Faced with this uninspiring reality, I state without hesitation that these “independent” Commissions brought into being by 19A are far more politicised than any other practicing politician in this country. It is to Commissions of this ilk that powers denied to the President of the country are supinely entrusted.

Here is a state of affairs which defies rational understanding, by any criterion. The position of apologists for 19A is, at bottom, the following: conferment of these powers on the President is preposterous and unthinkable; they represent an intolerable affront to the basic elements of democratic culture, and to the essence of human rights. However, these same powers, in the hands of institutions created in the manner defined by 19A, are innocuous and entirely acceptable.

Does this bear scrutiny for a moment? The President of the Republic is elected by all the people of our country, for the finite period of five years, at an Islandwide election. If they are dissatisfied with his performance at the end of his tenure, they have every right and power to reject him at the conclusion of this period. But can the people, in whom sovereignty resides according to the Constitution, make a similar decision is respect of the members of the Constitutional Council and the “independent” Commissions? They are a law unto themselves, accountable to no one.

During the last few months, the President, the Cabinet of Ministers and Parliament have all changed in keeping with the democratically expressed will of the People. But members of the Constitutional Council and the “independent” Commissions remain entrenched in their positions, impervious to the winds of change. Is this defensible as the epitome of a structure of democratic governance, to be acclaimed widely?

Nowhere are the effects of the dichotomy established by 19A more apparent than in the domain of the economy. Ever increasing volumes of debt cannot provide a sustainable avenue for economic advancement. President Gotabhaya Rajapaksa, in his Manifesto, has explicitly underlined the importance of resiling from the debt trap. The answer is investment, which is certainly feasible, but subject to obvious conditions. The essential requisite is confidence.

In the current intensely competitive international environment for investment, confidence has to be engendered by appropriate policy initiatives. Would any investor look seriously at Sri Lanka as a destination for investment, given the conditions generated by 19A?

The contemporary Yahapalana experience under the aegis of 19A was that the Prime Minister, in the exercise of authority conferred on him, established a Cabinet Committee on Economic Management (CCEM) which, in effect, arrogated to itself, under his Chairmanship, the authority to make major decisions straddling the whole spectrum of the economy, these decision being submitted to Cabinet for its mere formal imprimatur. President Sirisena, increasingly incensed by what he saw as the relegation of the Cabinet with regard to economic matters, in due course found his patience exhausted, and eventually intervened by doing away with the Prime Minister’s brainchild and substituting for it a novel institution, the National Economic Council, under his own superintendence and direction. A few months later, however, he dismissed his own handpicked Chairman of this body, declaring that the officer concerned, although drawing a handsome salary, was seldom in the country. This state of things is hardly likely to offer any incentive for investment in Sri Lanka.

These developments provide the backdrop for a series of reflections. Empirical experience has convincingly demonstrated the weakness of the foundations of 19A. In truth, political power is not to be viewed with innate fear or obsessive suspicion. The contrary is a facile assumption, intuitively made with a total lack of dispassionate thought. Singapore, Malaysia, South Korea and Indonesia are telling examples of Asian countries which could not have achieved the remarkable economic development they did accomplish without the advantage of strong Executive authority.

Admittedly, any system of democratic governance must contain viable checks and balances. However, as with everything else in life, there needs to be a sense of proportion. If the Executive is to be so constrained and hamstrung in every way as to make coherent decision making and movement forward impossible, the inevitable outcome is stagnation, or worse, anarchy.

This is the sad legacy of 19A which is now sought to be swept away as a matter of urgent priority.