Constitutional morass and the ‘standby’ enigma

Many have come forward opposing 20A totally

Recently Donald Trump while engaged in a public debate with his rival Joe Biden in the US Presidential race side-tracked a sensitive question put to him, stating, “Stand back and standby”. Matching the rhetoric Trump is famous for, his choice of words well suited to his disavowal of the blame game centred round White Supremacy, a penalty kick he would inevitably incur in the play ahead of him. 

In Sri Lanka, the controversial 20A has many shafts from different groups aimed at it, however, with no fatal certainty. The “standby” dictum pronounced by President GR looks a similar side-tracking. The indication is ‘no give and take’ come what may! 

It appears that the Government is hell bound towards a goal best known to it with least regard to the concerns expressed not only by rival political groups but deflecting even their ardent supporters and promulgators. To the independent onlookers this confrontational approach has become a worrying factor as to why things could not have been dealt with more harmoniously, causing less friction.

In such a context the constitutional tangle has to be perceived and focused from a different intersection. Many have come forward opposing 20A totally. Elements politically hostile and inimical obviously have to take this approach because they all played a key frontline role to bring the 19A. 

But the majority of those MPs now saddled with the responsibility of carrying the 20A through are the same who supported 19A to annul their own 18A passed soon after coming into power in 2010. This group is now reduced to a dilemma in extreme puzzle. 

Constitutional amendments

The 18th Amendment was brought in on 8 September 2010, “to remove the sentence that mentioned the limit of the re-election of the President and to propose the appointment of a parliamentary council that decides the appointment of independent posts like commissioners of election, human rights and Supreme Court Judges.”

Ironically, it was a replacement to the 17th Amendment, brought in 2001 ‘to make provisions for the Constitutional Council and Independent Commissions’. Several who supported the 18A in 2010 happen to be the same people who stood up in favour of 17A in 2001.

The 17th Amendment to the Constitution was passed by Parliament during the office of Prime Minister Ratnasiri Wickramanayake and President Chandrika Kumaratunga on 3 October 2001. Several key figures in the current Government were in Parliament then.

The 18th Amendment was passed on 8 September 2010 during the Office of President Mahinda Rajapaksa and Prime Minister D.M. Jayaratne. Most of the MPs who were in the Parliament when the 17th Amendment was passed subsequently supported its replacement with the 18th Amendment.

19A was passed in Parliament on 28 April 2015 when Maithripala Sirisena was the President and Ranil Wickremesinghe was the Prime Minister. Parliamentary majority however was with the MPs who were elected to the Government of Mahinda Rajapaksa. It was passed by MPs present voting for, except one against, one abstention and 10 absentees. The political party composition of the Parliament when the 19th Amendment was passed was as follows:

UPFA headed by Mahinda Rajapaksa: 144 seats

UNF headed by Ranil Wickremesinghe: 60

Tamil National Alliance: 14 

Democratic National Alliance (JVP): 07

Total: 225

The 19th Amendment could not have been passed without the support of the UPFA majority headed by Mahinda Rajapaksa.

Irony of history 

The irony of history is, those who voted for 19A then are now clamouring to abolish it. The purpose of 19A was to annul the 18th Amendment which they brought, replacing the 17th. When we look at this hotchpotch situation, we see a total aberration of polarisations and compromising of policies under different leaderships. 

It is relevant and important to recall a statement made by John Seneviratne MP, on the day of passing the 19th Amendment in Parliament. He said that all those who voted for 18A did not do so because they liked it. But when you are in a government you are compelled to stand by the party they represent. 

He made a long speech and said that the Government surreptitiously included the removal of executive powers of the President bestowed on him by the Constitution in the bill undermining the people’s sovereignty knowing very well that the Supreme Court would not allow such an amendment without a referendum. He also made reference to the highly-unpalatable position regarding the representative capacity of a MP under the proportionate voting system that was in existence. He stressed that the system did not augur well to provide any meaningful representative right for the voters. 

This clearly shows that the Ranil/Sirisena minority government had either wooed the Opposition majority to believe that the voting system would be changed in due course or subverted them to surrender under threat of being prosecuted under the pending legal action contemplated against many of them for various alleged wrongdoings during the previous regime.  Why the MPs not sitting with the government should have believed and trusted such a promise is a matter beyond anybody’s apprehension. But all MPs who supported the 19A are now trying to use this to rationalise and justify their stand.

Historical developments

It is interesting to recall the historical developments of the Country’s constitution. The country received autonomy within the British Commonwealth in 1948 as the Dominion of Ceylon. Ceylon had two constitutions, Donoughmore Constitution and the Solbury Constitution. It is the Solbury Constitution that provided a parliamentary form of government for the first time. 

The Government of Prime Minister S.W.R.D. Bandaranaike set up a joint select committee to consider a revision of the Constitution on 10 January 1958 but this committee could not conclude the matter due to the dissolution of Parliament in 1959. Even the Dudley Senanayake Government that came to power subsequently attempted to bring a new constitution but it was not successful. The only major change in the administration during this period was the abolition of the Upper House, the Senate, in October 1971.

Madam Sirimavo Bandaranaike’s United Front Government brought the first major constitutional change by promulgating a Republican Constitution for Sri Lanka in 1972. The National State Assembly so created became the unicameral legislature for the country with a nominal president.

In July 1977, this Government was defeated under the leadership of J.R. Jayewardene who secured a five-sixth majority in the State Assembly. A new Constitution drafted by his Government was adopted replacing the 1972 Republican Constitution on 4 October 1977 transforming the nominal president to an executive president. 

Prime Minister J.R. Jayewardene became the Executive President of Sri Lanka, automatically, on 4 February 1978. This Constitution provided for amendments by a majority of two-thirds in the Parliament barring certain fundamental provisions dealing with important aspects which required an approval at a national referendum in addition to the two-thirds majority in Parliament. This provision remains valid to date.

Between the period starting from 20 November 1978 to 17 December 1988, the Constitution of Sri Lanka has undergone 16 amendments, all during the Presidency of J.R. Jayewardene. The most significant amendment was the 13th for the establishment of Provincial Councils on 14 November 1987. Many of the amendments sought to provide strength to the ruler and facilitate his authoritarian rule. 

We remember how J.R. resorted to obtain undated letters of resignations from his five-sixth MP force while holding the extremely forceful Executive powers denounced by many as highly dictatorial. JR realised that even such an autocratic constitution could not guarantee the uninterrupted continuation of the power base. That is why he resorted to secure the status by keeping the MPs well under his control. But he failed to realise the possibility of the emergence of a future leader who would attempt to hold onto the presidency as long as desired. 

Bone of contention

Matters contended by those challenging the 20A are very much in the public domain now. The present Government was given a mandate by the people to establish a constitution which would address the elimination of all bad experiences of the past. Rushing to bring an amendment which while eliminating certain bad features already identified to exist, simultaneously resurrecting some provisions discarded with much public demand has become a bone of contention. This is where the new Government blundered in stirring up a hornet’s nest. 

When the public sympathy and support committed to them remained so fresh, why did the Government act with such an undue haste paving the way for huge accusations such as attempting to exercise executive powers without the valve and conduit of the Cabinet? 

On the part of the citizens of the country (voters) the most important right they wish to be assured to them is the affirmation of the provisions under Article 3 of the Constitution, viz. “in the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”

In whatever form the Constitution did not intend the president to function as an unfettered repository of executive power unconstrained by the other organs of governance. Before the 19A, the Cabinet of Ministers was charged with the direction and control of the Government of the Republic, which shall be collectively responsible and answerable to Parliament while the President shall be a member of the Cabinet of Ministers and shall be its head. 

The Constitution also provided that the President shall continue in office notwithstanding the dissolution of the Cabinet of Ministers under the provisions of the Constitution. There cannot be any dispute that until such time other provisions are made this state of affairs has to be restored for the operations of the Government to be conducted smoothly with a Cabinet charged with the exercise of Executive power.

It is interesting to note that as pointed out by John Seneviratne MP in the Parliament in 2015 before the passing of 19A, Supreme Court held inter-alia, that seven paragraphs in the bill submitted to the Supreme Court require the approval of the People at a Referendum in terms of Article 83 of the Constitution. 

Nevertheless, we are faced with a situation understandably complicated arisen after the 19A with regard to the Prime Minister exercising powers which are reposed by the people to be exercised by the Executive, namely the President and not the Prime Minister. The Courts held that the President cannot relinquish his executive power and permit it to be exercised by another body or person without his express permission or delegated authority.  

While these adversities and controversies were identified as requiring immediate correction, there are other issues that have stayed on over a period of time to be addressed in the long term. Independence of the Judiciary, economic development encompassing all sectors of the polity, inclusion of the minorities in the political process assuring equal opportunity, regional autonomy under decentralisation, while maintaining main national structure and unity, and guaranteeing peace and communal harmony are some of those.

The country was plagued with the problems devolving round these issues, trying to find solutions under many regimes. The current opportunity given by the people as a clear mandate to put an end to this state of affairs should not be wasted engaged in tinkering and patchwork exercises. 

A meaningful approach towards finding permanent solutions would receive the public accolade without any hesitation to stand against anybody or any force acting with ulterior motives to sabotage such an approach. Unity of purpose should be the theme of the day to take the country forward from the mess it is now.