Liberty is never unalienable; it must be redeemed regularly with the blood of patriots or it always vanishes. Of all the so-called natural human rights that have ever been invented, liberty is least likely to be cheap and is never free of cost.”
― Robert A. Heinlein, “Starship Troopers”
All of a sudden, the 19th Amendment which was hailed as the main achievement of the yahapalana government sits like an unprotected and vulnerable virgin left by the way side by her parents. Those predators who have always eyed her with disdain and contempt are closing in to get rid of this ‘nuisance’ which according to them is an obstacle for unbridled and unchecked power of the once omnipotent executive Presidency. A monolithic and majoritarian mandate received by the current President is brandied about by his supporters as a blank cheque given to get rid of the 19A and all salutary and democratic features it has introduced to the constitutional framework, long dominated by the Executive as established by the 1978 Constitution.
An executive Presidency which according to its creator JR Jayewardene could do anything but turn a male in to a female and vice versa, was made all the more dominant and untamable by the 18th amendment by Mahinda Rajapaksa after the war victory against the LTTE. Yet his defeat in 2015 ensured that the draconian and evil features that he stuffed into the constitution were scrapped and a more democratic system based on checks and balances such as the introduction of the constitutional council which made crucial appointments to the independent commissions and curtailed the terms of a President to two. With the Prime Minister and the Cabinet rendered substantially potent, it served as a veritable system of checks and balances that is an integral part of any mode of democratic governance.
The ‘dual engine system’ envisaged by 19A could lead to dysfunction and even anarchy
One parent of the 19A, Maithripala will surely support scrapping it as he has already stated
Antidote to Despotism
The potency of the amendment and the dangers of despotism that it could avert were evidently shown in the manner the Constitutional Coup came to a conclusion with the Supreme Court deciding that the President could not dissolve the Parliament as and when he pleased, as was the case prior to its introduction. Yet at the same time those who wanted the same tyrannical executive presidency at the helm of governance pointed out that it deprived the ruling government of stability, which in fact was not entirely untrue as the Unity government specially towards the latter part of its tenure was more of a tussle between the President and the PM, who were finding themselves at logger heads in many crucial areas in policy, in addition to the stark differences they had in terms of personality and political outlook.
There is no doubt that the two are to be blamed entirely for the precarious position that their constitutional offspring finds itself now. Yet the dire need at this moment is not to find scapegoats for failure but find means and ways of ensuring that the democratic set up of governance envisaged by 19 A is not summarily scrapped and the country does not revert to the old ways of despotism under an all powerful President.
The Two Brothers
In an interview with Suhasini Haider of The Hindu, two weeks after being elected, President Gotabaya Rajapaksa stated that the 19A was the reason for the political instability in the country. Yet in a context where Ranil Wickremesinghe had resigned and the Presidents elder sibling and the former strongman Mahinda Rajapaksa becoming the Prime Minister, it would seem that the instability could be within the Rajapaksa cabal rather than between the institutional structure laid down by the amendment. In fact, in that interview the President laughingly snapped that the only way the system could work was with two brothers as PM and President, which now is the case in Sri Lanka. On the other hand, it remains to be seen whether the PM would support scrapping of the amendment, which had made the position of the PM all the more powerful and a substantial challenge to the powers of the President.
To a body politic that is used to being ruled vertically, by populist strong men and structures of functioning democracy are so brittle and delicate, an iron fisted ruler might be enticing. But the progressive achievements wrought out by the 19th amendment by removing dictatorial powers from the Executive President and compelling him to share power with the PM whose authority depended on the majority he obtained in Parliament are too precious to be allowed to be done away with.
With the PM and the Cabinet rendered substantially potent, it served as a veritable system of checks and balances that is an integral part of any mode of democratic governance
Sirisena Volte face
The reason why Maithripala Sirisena, the champion of the January 8, 2015 mandate could not keep the promise of abolishing Executive Presidency initially was the Supreme Court decision that such a move have to be passed at a referendum. Yet the political atmosphere allowed the UNP to curtail the powers of the President while strengthening the position of the PM as President Sirisena learned, to his utter dismay during the Constitutional Coup. Some of the amended provisions were context specific and aimed at thwarting the Rajapaksas from getting hold of the reins of running the country.
Yet the salutary features such as the re- introduction of the independent commissions and an independent judiciary coupled with checks and balances on the authority of the President clearly signaled the way towards collective governance as opposed to a one man show.
We admit that the ‘dual engine system’ envisaged by 19A could sometimes lead to dysfunction and even anarchy, as we saw to a certain extent during the latter part of the yahapalana government. It was in fact, one of the co parents of the amendment, former President Maithripala Sirisena who wanted it scrapped after the heavy defeat he received at the attempted constitutional coup. The same ache might be experienced by the current President who knows that a cabinet to his liking could only be a reality as long as his brother agrees with him. People change, and of course, they die. Who knows what would happen then? Better to have 19A out of the way before such an eventuality takes place, he must be thinking.
It is a proposition that all progressive and democracy loving sections in society should view with trepidation and apprehension. In the event the political alliance backing the President wins a 2/3 majority cometh a General Election in a few months, a relapse in to the dark days of the omnipotent Executive arm of governance is a matter of course. One parent of the 19A, Maithripala will surely support scrapping it as he has already stated. As to what the other parent Ranil Wikcremesinghe would do is any body’s guess. After abandoning his most illustrious achievement during the yahapalana regime, does Ranil, at least now consider gathering forces to defend the most progressive amendment that the 1978 Constitution ever saw?
Or is he more concerned about regaining the leadership of the UNP and then becoming the leader of the opposition, a position that he apparently likes and seems tailor made for?