“There is no virtue in having a strong man against the people.”
-Dr. Colvin R De Silva.
They say that there are so many fathers to victory but defeat is a bastard. Well, in the present Sri Lankan context we can make an adjustment to the saying; it would go something like ‘there are so many aspirants for the unbridled and unchecked power, a relapse into the pre 19A Constitutional setup would provide, but the amendment bill itself, is illegitimate.’ That is what the 20th amendment bill to the 1978 Constitution which was presented to the cabinet recently has become: fatherless.
Social media is abuzz with funny and witty posts that make fun of the fact that the very Minister, the Minister of Justice, no less, says that although he presented the bill, he was not aware where it originated from. In other words, that he presented something he had no clue about to the cabinet, and that ‘thing’ turns out to be the ‘small thing’ called an amendment to the Constitution. No sooner was the bill in the public domain, criticism against it became vociferous. Quite interestingly, many MPs from the government side of the spectrum have raised their concern about some of the provisions being sought to be incorporated to the amendment, thereby, ultimately to be made the supreme law of the country.
Unstoppable
Technically speaking, with a virtual 2/3 majority in Parliament, after a landslide General Election victory, the government is unstoppable if it were to adamantly go ahead with the 20th Amendment. If the amendment makes its way to the supreme law book, the Constitution, it will spell doomsday for the salutary and democracy oriented changes that the 19th Amendment brought in to the constitutional setup, which works as a bulwark against the Executive Presidential Tyranny that the 1978 Constitution engendered originally, and made more ominous by the passing of the 18th Amendment by Mahinda Rajapaksa, with a view to perpetuating his and his dynasty’s rule on the nation. With the removal or the dilution of the powers of independent commissions and the weakening or even the downright abolition of the Constitutional Council coupled with the debilitating of powers of the Prime Minister and Parliament, it would set the stage for the re-emergence of the Presidential Dictatorship.
The fact that there is no paternal claim to the 20A all of a sudden, should not be a reason for a sigh of relief for those who oppose it, on many grounds. Many bastards have made it to the throne in history and the fatherless 20A bill has every chance of becoming part of the supreme law of the country. The general dismay and disenchantment with the lacklustre performance of the yahapalana government and the national security debacle it allowed as shown by the Easter attacks, had prepared a fertile breeding ground for those who wanted a return to the dark days of Presidential Tyranny. Yet many of the flaws that 19A has, stems from the fact the yahapalana government did not have the political clout in terms of numbers in Parliament to abolish the Executive Presidency completely.
"Separation of power into three pillars as Executive, Legislative and Judicial is an inviolable premise not only of constitutional governance"
Flaws of the 19A
The creation therefore, of two axis of power in the structure of governing, with a President directly elected by the People vis-a-vis a PM who garners the support of the majority of Parliamentary members who themselves, have been elected by the people exercising their sovereign right, and placed in a direct collision path with the President, was bound to make governing difficult in any event.
Yet, the pretext of a solution that the present government seeks to introduce by way of 20A goes way beyond solving the political crisis that was engendered by two engines of power that pulled away from each other thus making ruling impossible. It would leave the Parliament at the mercy of the President as he will not be restricted in exercising his power to dissolve the Parliament thus usurping the legislative power of the sovereignty of the people, quite in the form of monarchical power wielding that existed before the concept of modern republic was born. The Prime Minister will be made utterly impotent and powerless and in the words of the former President late Ranasinghe Premadasa, a KKS (Karyala Karya Sahayaka) to the President.
Doing away with the checks and balances
The doing away with of the Constitutional Council by replacing it with a so called ‘Parliamentary Council’ which will be a political body and in every likelihood, dominated by the party which the President belongs to, will undoubtedly undermine the integrity and the independence of the Commissions overseeing matters related to the Judiciary, Police, Elections, Government Audit etc.
With the appointments to the judiciary, high ranks of Police, the Attorney General, the members to the Election Commission etc. purely in the hands of the President, who is at liberty to consult the PM or not to do so, the integrity of those positions will be in serious jeopardy. Even if the National Audit Services Commission survives, it will not be efficacious as the amendment seeks to exempt 120 profit making state enterprises from Government Audit, thus casting serious doubts on the transparency of matters related to national wealth, circulating and accumulating in those institutions. Among those business entities to be excluded are Lanka Electricity Company (LECO), Sri Lanka Insurance, Lanka Hospitals PLC, Litro Gas Lanka Ltd, Lanka Sathosa, a multitude of plantation and electricity companies and Lanka Coal Company Ltd.
The same fate will befall the Public Services Commission, appointments to which, will be on the whims and fancies of the President. The recent example of a Public Officer by the name of Devani Jayatilake, who stood up to a political bully and maintained her ground in line with her duty, was made only possible as she had safeguards placed by the 19th Amendment which ensured that she could not be victimised for her brave and defiant behaviour.
"Many bastards have made it to the throne in history and the fatherless 20A bill has every chance of becoming part of the supreme law of the country"
Urgent bills
The 19th Amendment removed the provision regarding urgent bills which were in the Constitution which had been used by governments to bring in undemocratic and unconstitutional enactments in the guise of urgency. The 18th Amendment was brought in as an urgent bill thus giving very little opportunity to the Supreme Court to study it in-depth and giving the public little time to either discuss or challenge it. If not for the 19th Amendment, there is little doubt that the 20th Amendment too would have found its way in to the Constitution and become part and parcel of the supreme law of the land. This becomes all the more damning in a context where there is no constitutional allowance for judicial review of legislative action as in many countries where democracies are alive and vibrant. What it means is that, if a bill is passed as an urgent bill and escapes the thorough scrutiny of the Supreme Court, there is no way of revisiting its constitutionality thereafter.
The question of separation of power into three pillars as Executive, Legislative and Judicial is an inviolable premise not only of constitutional governance, but more intrinsically, touches on the concept of sovereignty of the people as enshrined in Article 3 of the Constitution. Although the 20th Amendment seems to be fatherless now, it might yet, make it to the Constitution of Sri Lanka. Though the bill is an embarrassment to its real fathers at this point, the beneficiaries of the system it attempts to establish, are numerous.
We shall just wait and see.
