There were voices. Loud voices. The end of democracy is at hand, we heard them say. Sovereignty is at stake, they said. All about the 20th Amendment. So they petitioned the Supreme Court in their hordes. And the Supreme Court heard what they had to say, listened to the observations of the intervening petitioners as well as the Attorney-General, including amendments to the Bill that are expected to be made at the Committee Stage. The Supreme Court determined.
The Supreme Court essentially said that the proposed amendment by and large complies with the provisions of Article 82(2) of the Constitution and can be passed by a special majority, except for Clauses 3, 5, 14 and 22 which would require in addition a referendum unless proposed committee stage amendments are incorporated.
The clauses refer to the duties of the president (Clause 3), immunity of the president (Clause 5), dissolution of parliament (Clause 14) and guidelines of the Elections Commission (Clause 22). The last requires approval by the people through a referendum, it was determined. Court agreed that dissolution of parliament by the president two and a half years after a General Election, as mentioned in amendments to be interjected at the committee stage would address concerns regarding sovereignty. Court agreed that inconsistency regarding the duties of the president would cease with the proposed committee stage amendment. Court recommended an amendment to Clause 5 that would allow for the people to invoke jurisdiction of the SC under Article 126, where there’s alleged violation or alleged imminent violation of a Fundamental Right due to an act of the President.
So what do we have here? A government mulls amendment and drafts a bill. Objections are raised. Perhaps taking into consideration the objections and/or anticipating court ruling on the same, the government comes up with amendments to be introduced at the committee stage. Court, except in the case of one clause (22) gives a green light, subject to the incorporation of amendments pledged through submissions.
So what’s all the noise about? Some people were horrified about the powers of the president. Mark that ‘A.’ There were livid about dual citizenship. Mark that ‘B.’ They were livid about a parliamentary council replacing the Constitutional Council (of the 19th Amendment). Mark that ‘C.’
Let’s talk A, B, C now.
Here’s the story of ‘A’. The 19th, from A-Z, was about Ranil Wickremesinghe. It all began with the unprecedented and unceremonious dumping of a sitting Prime Minister. D.M. Jayaratne was not informed of his imminent sacking. Maithripala Sirisena, immediately after being sworn in as President, signed a ready-to-sign document sacking him. He then went on to swear in Ranil Wickremesinghe as Prime Minister.
That was not enough. The man, whose party was a minority in Parliament, needed power. That was what the 19th was supposed to do. It all resulted in a mess about who has what powers and directly and indirectly contributed to the Easter Sunday tragedy, among other things. So, the 19th was about splitting power between president and premier. Political expediency.
The dual citizenship issue was pushed through by the same need. Obviously, the yahapalanists were looking ahead to a possible presidential battle between Wickremesinghe and one of Mahinda Rajapaksa’s brothers (Gotabaya or Basil) since the former president was ruled out (they though) from contesting. The Rajapaksa-bheethiya prompted the clause regarding dual citizenship. Nothing else. The yahapalana hordes worked overtime and probably lost a lot of sleep regarding the matter. They did their damnedest to shoot down Gotabaya Rajapaksa’s candidacy and were trumped at every turn.
Now it is never a good thing to make laws for political convenience. The UNP has a long history in all this, from J.R. Jayewardene’s time. It was almost like a cardinal party principle, in fact. Amendments 1-16 were basically about obtaining an edge for the party, save the 6th (prompted by the rise of the LTTE) and the 13th (thrust down Sri Lanka’s throat by India at gunpoint). In fact several were passed by the Premadasa government in the face of imminent loss of the ‘special parliamentary majority.’
Now, if the clause that seeks to remove the block on dual citizens was about facilitating the political ambitions of an individual, it is bad. The word in certain circles is that it is an interjection to help Basil Rajapaksa. Basil has stated he’s not interested, for the record. Sentiment notwithstanding, the shoving of a dual citizen to a lesser status seems fundamentally wrong (and the Supreme Court determination affirms this view). If allegiance is the issue, then we must point out that we’ve had proud Sri Lankan citizens who have acted as minions of foreign powers (the yahapalana government was chock full of such people). In short citizenship is no safeguard against treachery.
That’s ‘B.’ Now to ‘C,’ and the most beloved Constitutional Council (along with the vilification of the proposed Parliamentary Council). It boils down to two thing: composition and accountability. The regime retained sway in the CC and will have it in a PC too. The idea that civil society reps somehow make it ‘independent’ is balderdash. The reps appointed were without exception yahapalana loyalists. Furthermore, they are not accountable to anyone. ‘Civil society’ is a label they wear for convenience. They typically represent a particular class of people with more or less similar political loyalties. In a PC, every member would have to face the voting public, sooner or later. They can shrug off accountability at their own risk.
That’s the A, B and C. There’s a D in this story or rather a ‘P’: process.
The draft 19th Amendment was essentially ripped to pieces by the Supreme Court following several petitions. The draft 20th was supported by further amendments pledged by the Attorney General. The SC has given the go ahead except for specific objections. The government has pledged to abide strictly by the directions given by the SC.
How did the yahapalanists respond to the SC determination? Well, at the Committee Stage they brought in massive amendments, absolutely in contravention of established parliamentary traditions, leaving absolutely no opportunity for the citizens to read, digest and if necessary object. And those who maintained a deafening silence during that period now whine about the clause on urgent bills!
Those who brought in the 19th were unceremoniously rejected by the people on three different occasions (February 2018 at the local government elections, November 2019 at the presidential election and August 2020 at the parliamentary elections). That’s civil society (real — as opposed to civil society [fake]) having a say.
The 20th is not a done deal. Politicians, regardless of party name and color are by and large cut off the same cloth. The initial assurances offered by government spokespersons are encouraging, but it would be folly to blindly trust politicians based on what’s said. Let’s await the ‘doing.’
However, as things stand, the 19th was a piece of garbage and it was brought in, pushed and defended by political stooges. The entire process stank. The 20th is not exactly an amazing piece of work, but as a garbage-disposal corrective, it has its merits. There’s going-overboard which the SC has noted and commented on. Established procedure has been followed so far. And that has essentially undressed the whiners, almost exclusively Kolombots such as Born Again Democrats, Candlelight Ladies, Funded-Voices and Rent-a-Signature Petitioners.
[This article was first published in the DAILY MIRROR, October 15, 2020]