by Rajan Philips.
The transformative benefits of the 19th Amendment are arguably more in the experience of its passage – the whole business of its drafting, judicial preview, debate, enactment and adoption, than in the content of its provisions. First, the drafting itself was a very public and effectively contested process, easily without precedent, or parallel, in Sri Lanka’s chequered constitutional history. Second, the judges of the Supreme Court played their part with independence and without interference, breaking, hopefully once and for all, the servile tradition that began with the Second Constitutional Court under the 1972 Constitution and became entrenched in the Supreme Court after the 1978 Constitution. Third, and the most transformative aspect of the whole process, in my view, was the parliamentary leadership provided by President Maithripala Sirisena. Path breaking from the executive muscling of parliament that became the hallmark of his predecessor, President Sirisena made himself the participant observer of the parliamentary process to successfully facilitate a virtually unanimous outcome in the end. He quietly demonstrated that leadership and consensus are not mutually exclusive, and that good leadership can achieve reasonable ends without sacrificing consensus. Lastly, parliament itself handsomely came together, even if it was only on the surface after long hours of haggling and hustling, not to mention the failed efforts of the saboteur opposition troika, to muster a whopping 215 votes for the 19th Amendment that many of us thought could end up a cropper without garnering the required 150 votes. The four principal benefits and experiences of the 19th Amendment, that I have thus summarized, are better understood and appreciated when placed against the backdrop of our 37 years of constitutional experience since the adoption of the 1978 Constitution.
The 1978 Constitution: Intentions and Subversions
In creating the 1978 Constitution, JR Jayewardene (JRJ) simply screwed on a novel ‘presidential superstructure’ to what was then a reasonably well established ‘parliamentary base’ in Sri Lanka. As a politician steeped in the golden years of Sri Lanka’s parliamentary tradition, JRJ could not have intended to undermine or destroy the island’s parliamentary inheritance. In fact, one of AJ Wilson’s oft-repeated criticisms of JRJ’s presidency was that President Jayewardene was acting more like a Prime Minister than a President even after becoming Sri Lanka’s first ‘Executive President.’ The separation of powers in the 1978 Constitution was intended as a response to the ‘parliamentary tyranny’ that was experientially associated with the operation of the 1972 Constitution. It could not have been the intention of JRJ to create ‘presidential tyranny’ as the replacement for ‘parliamentary tyranny.’ There were other intentions and there have been other unintended consequences as well.
JRJ was annoyed by the United Front government’s (1970-77) provocatively partisan decisions, as part of the 1972 Constitution, to extend its term by two years, and to rewrite history by supplanting the February 4 Independence Day by the May 22 Republican Day. So he decided, in his own imperious way, to introduce the requirement of the people’s approval in a referendum, to prevent partisan changes by future governments, to the terms of office of the President and the Parliament; and to the symbols of nationhood, namely, Independence Day (February 4), the National Flag and the National Anthem. My contention is that the scope of the referendum requirement has since been widened far beyond what JRJ may have originally intended. At the more ridiculous level, the singing of the National Anthem in Tamil has also been turned into a constitutional issue. Suffice it to say that, well known for his snobbery and cynicism, JRJ would have laughed out loud at the later day idiots invoking ‘his constitution’ to stop the National Anthem being sung in Tamil. The shoe fell on the other foot, the other day, when crackpots showed up waving what seemed to be the old flags of the Kandyan Kingdom, which now come across as truncated national flags, to protest against the long arm of the law finally going after the Rajapaksa siblings. The waving of truncated national flags by parliamentarians is an offensive experience by any standard. But there is no need to throw the constitution at them. Simply laughing out loud at them will do.
Despite his best intentions as the architect of the 1978 Constitution, JRJ also opened the valves for many of its unintended consequences both during his tenure and after. He used the referendum to double the term of the parliament elected in 1978, in order to preserve his government’s five-sixths majority in parliament, and introduced many amendments for short term advantages for his governing party, including the revocation of Mrs. Sirima Bandaranaike’s civil rights. But at no time, did JRJ deliberately tried to subordinate the institution of parliament to the presidency, or to personalize the concentration and execution of presidential powers. Those trends started after JRJ and peaked under Mahinda Rajapaksa. It is fair to say that JRJ would have been truly surprised at the way Mahinda Rajapaksa had mutilated ‘his constitution’ in whole and in parts, even amending it without a referendum under the spurious argument of extending democracy, to give himself unlimited terms of six years each. The perennial question is whether the current constitutional contraption would have happened anyway, or whether it is mostly due to Mahinda Rajapaksa’s last term in office. I would argue it is due to both, and would add a third factor, namely, the impact the LTTE and the fight against it had on the operation of the constitution and the state itself. The LTTE experience has provided another instance of inconsistency between the intentions of the 1978 Constitution and its consequences.
One of the early arguments in support of the executive presidency at the time of its introduction, in 1978, was that the presidential system would give the Tamils and the Muslims a direct say in the election of the President in contrast to their relative unimportance in the election of governments under a parliamentary system. The argument was endorsed by leading Tamil intellectuals and notables. That argument has now been turned on its head by the current defenders of the executive presidency and its undiluted powers. They not only consider the executive presidential system as the ultimate bulwark of Sri Lankan state sovereignty, but also insist that Mahinda Rajapaksa is the only Sinhalese leader who is capable of using the presidency to defend Sri Lanka’s interests against the wiles of the West and the Tamil diaspora.
The LTTE experience no doubt contributed to the swapping of arguments for and against the presidential system, but that experience and its implications could not have been extended indefinitely after the end of the war and the defeat of the LTTE in 2009. The manufactured justification for a limitless Rajapaksa presidency, on the basis of an imagined LTTE threat, was rejected by the people on January 8, 2015. The rearguard action by Rajapaksa loyalists to frustrate that mandate was defeated in parliament on April 28, by the humble persistence and hard work of President Maithripala Sirisena. Hence my suggestion that Maithripala Sirisena has become an equally parliamentary and executive president, in the course of the 19A experience.
Transformative Experiences
As I have argued previously, the Supreme Court ruling on the 19th Amendment refuted the long standing notion that the 1978 Constitution has inevitably elevated the President to lord over the legislature and the judiciary. On the contrary, the Court established the opposite – that under the 1978 Constitution, the President is neither “the sole repository of Executive Power”, nor “an unfettered repository of Executive Power unconstrained by other organs of governance”.
Further the Court asserted that it is not the President alone, but the Cabinet in its entirety including the President, that is answerable to parliament. Put another away, if Mahinda Rajapaksa conducted himself as the sole and unfettered repository of Executive power disregarding the cabinet and the parliament, and even the courts, it was not because of the Constitution but because of his violation of it. The 19th Amendment process gave the Court the occasion to interpret the Constitution to restore its textual intensions and redeem them from the Rajapaksa aberrations. It also gave the Court the occasion to demonstrate, as many have come to applaud it, its independence in ruling that certain provisions of the amending bill would require the people’s approval in a referendum.
To their credit, and in another transformative development in contrast to the governance style of the Rajapaksas, both President Sirisena and Prime Minister Ranil Wickremasinghe announced that they would abide by the Court’s ruling and agreed to remove from the bill the provisions requiring referendum approval. There was no bad mouthing the court in parliament and no one spoke of impeaching the Chief Justice, although it has been reported that a few opposition nitwits have been planning the impeachment of President Sirisena to prevent him from dissolving parliament if 19A was not passed. In the end, even the saboteurs voted for 19A in order to avoid being isolated and insulted as irresponsible malcontents standing in the way of a widely welcomed legislative enactment.
It has since become clear that the opposition was not at all acting in unison. The Rajapaksa loyalists wanted the amendment defeated to make the government look bad and show their defeated hero and his brothers as the only doers in Sri Lanka. But for all the commotion they created, they could not muster anywhere near the 75 votes needed to stop the amendment from being passed. But they created pressure on the SLFP majority leaders to show that the latter were not wimps whom the UNP was wiping the floor with. The SLFP majority leaders had therefore to wrestle with the dilemma of insisting on supporting 19A, on the one hand, and appearing to be insistent on making substantial changes to the amendment, on the other. In the process, parliamentarians including many former ministers, who had sat on their hands with their mouths padlocked for years, in deference to President Rajapaksa and his all-powerful brothers, suddenly found their long lost agitational limbs and dead voices to chip and claw at the Nineteenth Amendment. After being parliamentary toadies to the Executive President, they became defenders of parliamentary supremacy vis-à-vis the proposed Constitutional Council and other independent commissions. They too became beneficiaries of the Nineteenth Amendment process.
It was left to President Sirisena to navigate the amendment through these competing waters and bring it ashore without shedding its essential components. The President’s patience, the personal commitment he showed and the quiet skills he brought to bear are unprecedented in Sri Lanka’s political bargaining experience. Our culture seems more predisposed to adversarial fighting than working towards achieving compromise solutions through reasoned arguments. There have been superbly entertaining and eloquently contested debates on No Confidence motions in older parliaments. But I cannot think of a similarly pressure cooker parliamentary situation that produced a positive result in our parliamentary history as was the case with the 19th Amendment. In the end, 215 out of 225 MPs (only one voted against, one abstained, and eight were absent from parliament including a hospitalized VIP MP on official leave) voted for the amendment, but what a hullabaloo that parliament had to go through before the vote. Through it all, the President chose to be physically present in the parliamentary precincts, instead of pressing the executive remote control from the presidential mansion. That too was a transformative experience.
And never before have Tamil parliamentarians been so directly and positively involved in the constitutional process in Sri Lanka, as they were in the passage of the 19th Amendment. In fact, the accredited Tamil representatives chose to stay away from the constitutional process in 1947, 1972 and 1978, if only to make a political point of their boycotts. The TULF parliamentarians were not even in parliament when the 13th Amendment was enacted (they had been packed off to India by the Sixth Amendment). In a transformative change involving good governance for the whole country, rather than the priorities of the Tamil question, the TNA parliamentarians contributed a great deal more than their votes to the final outcome of the Nineteenth Amendment. Mr. MA Sumanthiran who won plaudits for his parliamentary performance opposing the now discredited 18th Amendment, was front and centre of the 19th Amendment process, offering his skills and expertise directly to the President to reach a final settlement. As if to anticipate and complement their 19A parliamentary experience, the TNA had earlier occasioned a hugely symbolic gesture by inviting the daughter of SWRD Bandaranaike, former President Chandrika Kumaratunga, to deliver the 30thChelvanayakam Memorial Lecture in Colombo. These experiences should augur well for making positive progress on the national reconciliation front.
“The unity of all communities is the only way for a better future,” said President Sirisena in his May Day speech, three days after navigating the 19th Amendment in parliament. Although there is nothing new about it, it was a consistently bold assertion by the President and rather unusual for a Sri Lankan May Day speech. It was as if he was responding to the late Newton Gunasinghe’s 1984 essay “May Day after the July Holocaust”, wherein Newton chided the Left Parties for their “tendency … to sweep the ethnic issue under the carpet, and to raise ‘safe’ economic and class slogans.” Appropriately, President Sirisena was speaking on the first May Day after the Nineteenth Amendment. And he is showing in his own quiet way that he is not looking for safe slogans in politics.
– The Island