No Constitution can work if the main political actors choose to disregard the spirit and the letter thereof.
by Rajan Philips
According to President Sirisena, all the shortcomings and failures of the present government are attributable to the 19th Amendment. The tiff betwixt him and the Prime Minister is not due to any personal animosity, says the President, but a direct result of 19A. Sirisena wants 19A abolished. But the President cannot disown it, counters his predecessor, Mahinda Rajapaksa, because 19A is the President’s "legitimate child." So, filicide should be out of the question, you would think; but how could it be when there is a self-proclaimed executioner-in-chief at the helm. Thank God, the Supreme Court is still there to issue interim orders on executive impulses, as it did on Friday. Hopefully, there will be no impulsive call to abolish the Supreme Court!
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Mahinda Rajapaksa has gone further and praised the 18th Amendment, his legitimate child, because unlike 19A, 18A did not create two conflicting "power houses." True, but 18A left only one power-house standing by flattening everything around it, making short shrift of the separation of powers, removing the two-term limit on presidential tenures, and bullying the judiciary into submission. Sirisena is now opposed to both 18A & 19A, while Rajapaksa favours 18A over 19A. Yet, last October they both found common ground in 19A to share the two ‘power houses’ to the exclusion of Prime Minister Ranil Wickremesinghe. The Supreme Court had to stop them.
The Prime Minister has stayed out of the ongoing debate over 19A, as he usually does; leave the talking to his minions and do nothing about anything. His reported declaration this week is the direction to his ministers to finish all development programmes by October. Does this mean there will be Christmas lights in the Chinese Port City, the Japanese light rail will be running between Malabe and Fort in record time, and the Indians will be coal-firing out of Trincomalee sooner than later? In three months, Sri Lanka could be Disney land!
Presidential hyper-mode
The President is keen on having as many of the Prime Minister’s men as possible either remanded or on trial. And the Prime Minister seems helpless to offer any protection to any and all of his men. The President is in hyper-mode signing death warrants and reportedly issuing arrest orders. He is unlike any of his predecessors whether under the parliamentary or the presidential system of government. The death penalty was abolished by the government of Prime Minister SWRD Bandaranaike, the founder of the SLFP that became the vehicle for Maithripala Sirisena’s passage from obscurity into limelight. It was reinstated after the assassination of SWRD, but there has been no hanging after 1976.
Now President Sirisena, while whining about being rendered powerless by 19A, wants to bring back hanging as a deterrent to drug trafficking. There are many questions about this presidential impetuosity. To pose just one of them: Is it fair or legal to pick only drug offenders from among those serving death sentences for hanging? The same question has been raised before the Court of Appeal and the Supreme Court. The courts will soon tell us. Everyone abhors drug trafficking but how will the hanging of a few men already in jail do anything to disrupt the well-organized and politically well-connected network of the outside drug world?
The courts will also have a lot to hear and a lot to say in what might be called the ‘emblematic’ trials that seem to be being set up over alleged official negligence and failure to stop the bombings on Easter Sunday and the crimes against humanity that they unleashed. Here too, there are a host of questions. The obvious one is where the chain of command negligence and failure starts, and where it ends. And who picks and chooses the specific links on the chain that must be brought to trial?
The latest breaking news is that the Attorney General has directed the police to arrest the Chairman of Avant-Garde Maritime Services (Pvt) Ltd and seven of his associates – all retired military or defence officials, in the Avant-Garde floating armoury case. The Chairman apparently has taken flight to Singapore, the destination of choice for wealthy Lankans looking for better hospitals or avoid local arrest warrants. How far will the long arm of Sri Lankan law go? Are we seeing signs of apolitical prosecutorial ambidexterity, or of politically inspired exuberance?
From a different angle, what effect will the reference to crimes against humanity in domestic indictments have on Sri Lankan’s position before the UNHRC in Geneva? The UNHRC may yet ask about the status of indictments on other ‘emblematic’ crimes committed by state actors against individual citizens like Lasantha Wickrematunge and Wasim Thajudeen. In any event, Sri Lankan political litigations are becoming transnational, with California already a forum and where, in the civil lawsuit involving Gotabhaya Rajapaksa, a testimonial from a former Sri Lankan Chief Justice has been filed to affirm the independence and fairness of the Sri Lankan judicial system. An interesting evidence apparently cited as part of Mr. Rajapaksa’s submissions in California, is the Supreme Court ruling against the dissolution of parliament last year. How nice! And how convenient it is to have two power houses and an independent judiciary after 19A?
President Sirisena in his fit of persecution mania may yet ask if there is a conspiracy between the Rajapaksas and Ranil Wickremesinghe in the citing of 19A benefits in California court documents. He reportedly asked that at the last cabinet meeting over the US millennium funding agreement. And no one from the UNP, be it the Prime Minister or any other Minister (leaving out Sajith Premadasa, who is all out to please Sirisena) challenged the President on this ridiculous piece of native sarcasm. It is the President who has been trying to conspire with the Rajapaksas after double crossing them in 2014 to become the winning common opposition candidate in the 2015 presidential election.
The effects of 19A
If there is one political achievement that Maithripala Sirisena can hold up to justify his betrayal of Mahinda Rajapaksa in 2014, it is the 19th Amendment and nothing else. Sirisena now wants to abolish it. The President’s irritation about 19A stems from not being able to do things that he wants to do but which he is not supposed to do, especially his inability to fire the Prime Minister or to dissolve parliament for whatever reason. These two presidential powers had been in the 1978 Constitution from its birth and they reflect the special circumstances of the UNP government at that time and not the principles of cabinet government and separation of powers that President Jayewardene and his government were assuring themselves and everyone else that they were basing the new constitution on. In fact, the presidential powers over cabinet and over parliament violate both principles.
They were sharply criticized by Dr. NM Perera. Especially in regard to the power of dissolution, NM was scathing about the folly of mixing up elements from the American and the French constitutions that "do not mix." To the extent the 1978 constitution is predicated on the separation of powers, it should have followed the American system and created – what NM called, a "non-dissolution parliament." That is a parliament that "cannot be dissolved by the President or by the will of the House itself." Ideally, such a parliament, as in the US, should be elected every two years. Even in parliamentary systems, the old constitutional practice in which the Prime Minister decides the timing of dissolution and advises the Head of State, is giving way to more fixed term parliaments, with Britain, the oldest parliamentary democracy with a monarchical Head of State, leading the way. In Sri Lanka, the 19th Amendment has achieved no more, no less.
It is nonsense to suggest that the removal of the President’s powers to dissolve parliament somehow diminishes democracy and infringes the people’s franchise. It is just as nonsensical as the earlier suggestion that removing the presidential term limit (that was accomplished by 18A) would enhance democracy and the people’s franchise. Even the Supreme Court bought into this nonsense in its ruling on the 18th Amendment. Fortunately, and wisely, a different Supreme Court did not fall for this bluff last year and rejected the President’s premature dissolution of parliament as unconstitutional.
Apart from restoring the presidential term limit and removing the powers of dissolution and dismissal, the 19th Amendment has also reduced the presidential term of office and removed the President’s legal immunity and his/her absolute power over appointments and subjected them to review and recommendations by the Constitutional Council. It has removed, as well, the absolute power over cabinet appointments and assignments of portfolios. Taken together, have these changes effectively transformed the executive presidency into a ceremonial Head of State, except for the provision requiring the President to be directly elected by the people?
If this position is correct, as has been argued by Dr. Nihal Jayawickrama, all that needs to be done to abolish the presidency is to change the system in which the President is directly elected by the people to one in which the President is elected by parliament. That is the purpose of the JVP’s 20th Amendment, which according to the Supreme Court requires not only a two-thirds majority in parliament but also acceptance by a majority of the voters in a referendum. Dr. Jayawickrama has further argued that the requirement of a referendum is the result of a flaw in the judicial determination and that it is worth arguing this again before the Court and in support of a slightly amended 20th Amendment bill. No one in the government or the JVP seems to have taken up this suggestion. They simply don’t care.
At the same time, there are others who disagree with Dr. Jayawickrama’s interpretations, and argue that in a situation where the President and the majority of the MPs in parliament belong to the same political party or alliance, the system would revert to its pre 19A status. The critics of Dr. Jayawickrama are not asking for the repeal of the 19th Amendment, they are only hoping that at the next elections the people will elect the President and a majority of parliamentarians from the same party or alliance. Their implicit assumption is also that even if the 19th Amendment is found to be constraining, the President and his/her majority in parliament, both belonging to the same political party or alliance, will simply ignore, by-pass, or even disregard the constraints arising from 19A.
In fact, the current impasse between the President and the Prime Minister is primarily because neither of them is abiding by the changes brought about by the 19th Amendment. The President is openly flouting the constitution and is ready to run to the Supreme Court – any time and every time - to see if his term can be extended by some clever interpretation of the constitution. The Prime Minister, on the other hand, flouts it by remaining silent on the President’s transgressions and running his side of the government through an inner cabal. No Constitution can work if the main political actors choose to disregard the spirit and the letter thereof. Donald Trump is running a crash course in America on how to run a government not merely despite the constitution but in defiance of it.
As for Sri Lanka, the country is sleepwalking to the next presidential election. It would be the first election since the passage of the 19th Amendment. It would also be one that was not supposed to happen after President Sirisena voluntarily promised that he will be Sri Lanka’s last President to be directly elected by the people. The promise to abolish the executive presidency has been made by the two leading presidential candidates at every presidential election from 1994. The same promise when it was made at the last presidential election, in January 2015, was taken to be the mother of all promises. Now it has become the mother of all betrayals.
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