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Constitutional amendments: A blast from the past

Photo courtesy Wikipedia

The current constitution of Sri Lanka is commonly referred to as the “JR Constitution” due to the nature of its inception. Its birth and enactment have a long and convoluted political history. Although the constitution bestowed too much power in the Executive in what may be termed wilful blindness to the implications of such power in the hands of an individual – especially one who becomes progressively unhinged and despotic in office – one positive aspect of it was the process of drafting, which attempted to be representative.

The Parliamentary Select Committee appointed to bring about the first Constitution comprised of members of the UNP, SLFP and the Ceylon Workers Congress. The process also included summoning deputations from sixteen organizations, a majority of which represented racial minorities and the militant Buddhist organizations. Although this did not guarantee an equal representation or a guarantee that minority concerns were as vociferous as the majoritarian voice, it at least gave the semblance of being equal. It attempted to grant local autonomy with a perceived view to reduce ethnic tensions.

During the series of amendments that followed the 1978 Constitution, the significant changes were brought about with the 18th and the 19th. The 18th amendment brought by Mahinda Rajapaksa while President elevated an already-powerful Executive, an already dictator-ready Executive to an almost omnipotent being. The 19th amendment sought to make the President human, again. From a King to an average Public Servant, the transformation certainly does not sit well with those yearning to claim to rule the country as a birthright.

This is where Private Bill by MP Wijeydasa Rajapaksa comes into play. He proposes two amendments to the constitution, 21st and 22nd, which if enacted, would almost nullify all progress made by the 19th amendment.

Article 99

Article 41C

SCHEDULE PART I

(a) The Chief Justice and the Judges of the Supreme Court.
(b) The President and the Judges of the Court of Appeal.
(c) The Members of the Judicial Service Commission, other than the Chairman.

PART II
(a) The Attorney-General.
(b) The Auditor-General.
(c) The Inspector-General of Police.
(d) The Parliamentary Commissioner for Administration (Ombudsman).
(e) The Secretary-General of Parliament.

Article 43

Article 46

Article 107

Article 111E

Although the proposed amendments have appeared in the form of a Private Member’s Bill, they do act as solutions to the complaints made by President Gotabaya Rajapaksa during one of the first temple visits. The current government came into power proposing a new constitution, as the 19th amendment, according to them, has severely restricted a President from taking action. The implications of the proposed amendments, however, will have far-reaching consequences:

For, the proposed 21st is again not only anti-democratic but also anti minorities; both smaller political parties and political minorities. This is to reinstate emphatically the majoritarian dominance without even a semblance of any qualms or remorse. An attempt to make the political minorities subservient to Majoritarianism. A long and calculated shot at denying the pluralistic nature of our social fabric and subversive coercion towards assimilation. This is also a clear reflection of petty mindedness that is incapable of celebrating diversity and hence tries to build denial.

The proposed 22nd amendment to the Constitution by way of a Private Member’s Bill is to effectively roll back the democratic gains of checks and balance made possible by the Constitutional Council. The Constitutional Council came into being due to the enactment of the 19th amendment to the Constitution. God forbid! But if passed the 22nd amendment would allow the President to appoint the Chief Justice, other Supreme Court judges, Members of the Judicial Service Commission, President of the Court of Appeal and other Court of Appeal Judges, the Attorney General, the Auditor General, Inspector General of Police, Ombudsman and Secretary-general of Parliament without reference to the Constitutional Council. This would certainly pose a challenge to the independence of the judiciary amongst others. Additionally, this, if passed, would enable the President to hold any number of Ministerial Portfolios as he wishes including the defence portfolio. It is certainly is an anti-democratic move. I am not sure whether the repeal of the 19th amendment was put in issue in the run-up to the Presidential election. This is what the proposed amendment is seeking to do.

On another note, it will be interesting if not mind-boggling to see how the Honourable MP Dr Wijeyadasa Rajapakshe, President’s Counsel who introduced and defended the 19th amendment in Parliament has to say to the very Parliament in introducing this Bill.

Ameer Faaiz

 

One of the most significant privileges a Member of Parliament has in this country is tabling a bill in the parliament in the form of private member bills for any subject matter that appears to have a people-friendly impact and thus to draw the attention of the legislature and citizenry of this country. Under the said privilege, the proposed Constitutional Amendments 21 and 22 presented by Dr Wijeyadasa Rajapakshe can simply be cited as a petty effort made in order to realize an opportunistic aspiration.

One of the core points to be highlighted in this connection is the genuineness of the said Member of Parliament. A person who strongly voiced against the executive presidency and advocated for its abolition in the recent past, precipitously raising his voice and advocate to nullify the 19th amendment to the Constitution is nothing except a senseless lousy uproar. There is just one result of such an approach. That is setting the background to get an opportunity for nominations in the upcoming Parliamentary General election with the blessings of the incumbent president. It will solely depend on the diplomacy of the president.

The most significant feature of the proposed 21st Constitutional Amendment is to raise the minimum vote obtained by majority parties to 12.5% from the current 5% of the total polled votes. The proposed 12.5% system was in place after the introduction of the 1977 Constitution. This implies that there is no difference between the petty politicians who plan their election wins based on the trends of nationalistic ideologies and religious extremism in this country and Wijeyadasa Rajapakshe. Thus, the provision of 12.5% was introduced not only for the victory of Mr Ranasinghe Premadasa, the president at that time. It was one of the positive stories of the political context prevailed and most debated in that era.

According to this proposed Amendment, the total number of votes to be obtained will become 1/8 from its previous status of 1/20 and thus, the expectation is to have a parliament with majority representation. This is a brutal proposal and one cannot imagine that such a proposition will ever be acknowledged or endorsed by any governing structure which respects the basic democratic values. The main reason to that end is that while there is no space for political parties representing minorities of this country to get a President or a Prime Minister elected, even the little space available for them to get a district-level representative elected is also going to be erased from this proposed Amendment.

People of a country is an asset. Creating an enabling environment for all such people to realize their respective political aspirations is not at all a disadvantage for any country. Instead of creating appropriate avenues for all communities to actively participate and engage in the democratic process, making efforts to restrict even the available minimum space for respective communities to ensure their political representation is nothing but another brutal political strategy of politicians.

Lastly, it should be noted that these proposals having an impact on the electoral process of this country should essentially be produced after adequate consultation and debate but should never be used as a toy of the conventional political game plans.

Manjula Gajanayake
National Co-ordinator – Centre for Monitoring Election Violence-CMEV

 

With the 21st amendment, the intention is here to strengthen a two-party majoritarian state (SLPP and UNP) and build up a ‘strong’ legislature. Sinhala Buddhist nationalists have repeatedly argued that the PR system has weakened the centre.  The aim is also to weaken the numerically dispersed minority community parties and create an enabling environment for either of the main parties to form a government on their own. The non-Muslim cabinet is a precursor to the ‘benefits’ of the 21st amendment.

The 22nd amendment seeks to make unilateral key appointment powers to public institutions and offices. The 17th and 19th amendment tried to clip these powers and on the strength of the Nov 16, 2019 mandate they are trying to undo the change brought by the 2015 mandate and partially move back to the status under the 18th amendment.

The constitutional value of Sinhala Buddhist nationalism is centralisation which has been used instrumentally to further executive convenience by those in power.

The Executive Presidency never went away even after the 19th amendment. It was alive politically if not constitutionally. The Easter Sunday attacks provided the constitutional moment that the Rajapaksas were looking for to reemphasize the importance of a strong executive at the centre. The electorate is likely to award them with the necessary 2/3 or a number close to 2/3 to get this done.

Kumaravadivel Guruparan
Lawyer, Human Rights

Although JVP wished to disregard the two Private Bills due to there being no indication from the government that they are in favour of the same, MP Bimal Ratnayake took to Twitter to object to the amendments:

To sum up the consequences of the proposed amendments coming to pass, it would lead the Parliament to have a two-party system that the proponents of the autocratic rule would deem “stable”. However, the assumed stability is but an erasure of minority representation, that would invariably lead to a deep-rooted majoritarian rule where the minorities’ opinion would not even be considered when making decisions that affect all citizens. The discipline we are to anticipate, then, is one that is akin to a dictatorship, one that imposes the majoritarian principles and decisions on a group of people that are diverse. The 22nd amendment simply paves way for a dictatorship where the Executive can make decisions affecting the Judiciary and Justice on a whim; the President is not accountable to anybody for making these decisions, and need not provide justifications or heed objections.

Gotabaya Rajapaksa’s manifesto did not promise amendments to the existing constitution; what he proposed was a new Constitution that fulfils the people’s wishes – “one that reflects the aspirations of the people”. Considering his policy speech at the inaugural session of the Parliament under the new presidency promised to “honour the will of the people” who “refused political agendas founded on race”, considering that the current Cabinet has no Muslim Ministers and is 92% Sinhalese, the will of the people that will be upheld is that of the ethnic majority.

“In order to safeguard the security, sovereignty, stability, and integrity of our country, it is essential that changes be made to the existing constitution,” says President Gotabaya Rajapaksa, after emphasising that the primary focus of his tenure would be national security. Sri Lankans are no strangers to the many acts of violence, oppression, and outright inhumanity exhibited under the clout of national security. Until this point in time, however, the dissenters could hold up the constitution and argue for at least a semblance of equity as dictated within those pages. If the Private Member’s Bill put forward by MP Wijedasa Rajapaksa is any indication of the nature of the new constitution that President Gotabya Rajapaksa is to bring to the table, there will no need of white vans or covert operations; the rule of the country would ensure that it is indeed “disciplined”; a discipline brought out by an autocratic governance. Proponents of human rights and equity/equality would no longer be dissenting voices, but illegal and unconstitutional. The most worrisome part is that the preceding sentence would not be cause for concern for the majority of the population; it would be cause for celebration.

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