Until a new Constitution is promulgated, Sri Lanka has a distinctly presidential system of government. This fact among other things has been given the Supreme Court imprimatur in the court’s decision on the 19th Amendment. Powers cannot be transferred from the President to the Prime Minister without a referendum, the SC decided in its decision on the draft 19A.
Forget everything about the 20th Amendment until people get their heads around this fundamental fact. The current iteration of the Sri Lankan Constitution, primarily courtesy of J R Jayewardene is a ‘presidential-model document’ — and there is so much tinkering that can be done within that reality without altering that basic characteristic.
The presidential-model seeks, nay demands top heavy Presidential powers. The United States Constitution has a presidential veto written into it, and they say that the Sri Lankan presidential model as it stands is dictatorial? Our President doesn’t enjoy anything resembling a veto.
Until a new Constitution is made into law, the presidential-model is what we have, and to give full strength to this model is the only action that makes sense. The 19th Amendment did just the opposite and look where it got us. Its framers were unhappy eventually with the outcome, and the primary actors within its framework including the President, were unhappy as well.
The 19th Amendment was as if somebody wanted to make a Maruti out of a Ferrari. Make no mistake, a Maruti has its utility. Say in a cash strapped post lockdown period, if somebody wants to traverse the clogged streets of Pettah, he’d see a Maruti as a godsend even if he has the option of using a Ferrari at a price. But if he says make me the miniature Maruti out of the Ferrari, he will have neither the Maruti nor the Ferrari. Why is a veto-less Sri Lankan presidency considered more dangerous that the US model with the full power of the presidential veto? It’s because the presidency became a political football.
Personality
It became fashionable to blame all of a country’s ills on the Presidency notwithstanding the fact that Prime Ministers under the pre-1978 Constitution have been as authoritarian as any President we ever had.
A new Constitution could change the model, but the swirling controversy about the 20th Amendment is absurd because the Amendment tries to make the country governable under the Presidency that we already have.
It’s also impossible to divorce the personality from the politics around the Amendment. The post-Covid vote of confidence is largely for the way the President handled an extremely difficult situation keeping his nerve when he was being castigated by the Opposition for ‘governing without a Parliament.’ So, at least until things are rationalised under the terms of a new constitutional document, 20A largely is seen to be strengthening the hand of the President.
This seems to have got the goat of Harsha de Silva and other also-rans — not that he is important. But he is just one example of how absurd the detractors are for their assessment of the situation. De Silva says that the Government has 145 seats which is not a two-thirds majority. That’s rich coming from a man whose party managed to cobble together votes from parties such as the TNA and survive in government.
This Government on the other hand has more than 150 seats in Parliament and a clear two-thirds counting parties that were within the SLPP’s loose coalition of partners such as the TMVP the EPDP and Athaullah’s National Congress. What bankruptcy it is on the part of Silva to pretend not to know that the EPDP is very much a part of the Rajapaksa coalition of forces, and has been for a very long time. It’s not as if the SLPP is stealing MPs from the other side of the isle to make up numbers for a two-thirds. These people are their allies and the two-thirds is an organic authentic two-thirds which the bankrupt de Silvas try to deny in a lame attempt to delegitimise the changes that follow the just ouster of the ludicrous 19th Amendment.
De Silva says the people did not grant a mandate for the various specific changes that are sought in the 20th Amendment which is another patently absurd claim that only a clueless town crier can make. The mandate was to replace 19A, and that certainly entails that the framers of the new Amendment are entitled to demolish the Amendment altogether, and not piecemeal.
Ludicrous
All these arguments are totally ludicrous furthermore considering that they come from people who tried to change the Constitution when they had got nowhere near a two-thirds majority to do it. Those who tried to steamroller a new Constitution without the slightest hint of a proper mandate are claiming that a government that has a legitimate two-thirds doesn’t have a mandate. What’s the word that fits — dishonesty, hypocrisy, cluelessness, or should it be all of the above?
It’s a pity De Silva’s interlocutors on television are unable to give him these facts and tell him exactly where to get off. They should have told him exactly what is written in the two paragraphs above, and asked him not to embarrass himself.
20A was a clear reversal to the status quo ante preceding the 19th Amendment — and the draft is therefore a reflection of the 18th Amendment on the basis that 19A was not tenable. Other than that, there was no deliberate intent to be rid of some of what is referred to as the salutary aspects of the 19th Amendment such as the National Procurement Commission. These alleged ‘reversals’ are however being crowed about by the nitpicking nattering nabobs.
There isn’t any intention of reversing course, because 20A merely would essentially be the arrangement that got rid of the ludicrous 19A, period. All the other checks and balances that are expected will follow with the passage of the new Constitution in due course.
The Minister of Justice Ali Sabry referred to the Constitution as a tyre with 19 patches and a 20th patch that’s coming — just so the tyre is made roadworthy. The problem is that the detractors don’t understand that a patch is a patch. They think a patch is a sacred vestment.
They insist on calling the stopgap 20A the holy grail of constitutionalism. It’s mainly due to the fact that they have lost their heads fretting about two things which are, (a.) the way the President has got a handle on what used to be uncontrollable i.e. the smooth functioning of Government for optimum results as opposed to gridlock and inefficiency, and (b) the way the Executive and Legislative branches are coexisting, or the way the President and the Premier are maintaining a rapport in contrast to the sheer dysfunction that obtained previously during the Yahapalana regime.
Believe it or not, there are politicians representing the Opposition that are now claiming that the incumbent Prime Minister has been done a great injustice by the 20th Amendment. Since when did these people cultivate a concern for Mr. Mahinda Rajapaksa who they critiqued, vilified and pilloried non-stop for the last five years?
Odious
The Government seems to go by the simple logic exemplified at the beginning of this article. It was the 19th Amendment that was odious. It had to go; moreover, that was an election promise. What happens when the 19th Amendment goes?
The easiest thing for the moment is to revert to the status quo ante, which is what obtained with the 18th Amendment sans of course the Articles concerning the Presidential term limits, etc. That has been done.
All other considerations are extraneous until a new Constitution is a reality. It is wishful thinking on the part of certain petty provocateurs that the Prime Minister is upset about 20A — which is a reversal to the status quo ante. 20A is the most logical step that can be taken for now, after the electorate was promised the repeal of 19A.