Columns

In proposals on constitutional reform circulated in the form of a discussion paper some weeks ago, Prime Minister Ranil Wickremesinghe sought to drop the president’s role as ‘Head of Government.’ The changes proposed by Wickremesinghe would have made the president virtually subordinate to the prime minister, by stipulating that the president shall ‘always, except in the case of the appointment of the Prime Minister,’ act on the advice of the prime minister.

However according to the 19th Amendment published in the government gazette of March 16, 2015, the President of the Republic of Sri Lanka remains ‘Head of Government.’ The language of Article 30 of the Constitution remains unchanged, except that the president’s term of office is reduced from six years to five. Opposition pressures and divisions within the Cabinet itself, prevented what looked like a heist of the powers of an elected president, by an unelected prime minister.

Far reaching consequences
The SLFP’s position is that constitutional amendments and the (widely-supported) electoral reform should be undertaken simultaneously, ‘as single exercise.’ This would push back the reforms by two to three months, which is the time frame mentioned by the Elections Commissioner for the delimitation commission to do its work etc. The Commissioner has reportedly advised party leaders that the people need at least a year to familiarize themselves with the new system before an election is held.

For several reasons the UNP’s desire to rush the passage of the 19th Amendment, dissolve parliament on April 23 and hold elections immediately thereafter seems ill advised, if not suspect. These are reforms that will have far reaching consequences on the structure of the state (not just the current parliament) and on the way the country is run. Shouldn’t they be subjected to wide-ranging debate, if not a referendum, before they are adopted?

A dubious aspect of the Amendment is that it introduces a provision to expand the number of Cabinet ministers and the number of non-cabinet and deputy ministers to 45 and 55 respectively, ending up with a jumbo Cabinet no different from that of the previous regime. It would be re-branded as a ‘national unity government’ by agreement between the parties that win highest and second highest number of votes. This move is akin to a gang of thieves agreeing in advance on how they will share the spoils, to ensure everyone’s cooperation when they stage the robbery. It makes the UNP’s minority government look anxious, if not desperate, to secure the votes of the Opposition which holds a majority in parliament. Without their support the UNP cannot implement the reforms. This is hardly an excuse for overstepping by such a wide margin the promised 25-member limit.

Differs from 17A
The purpose of the constitutional amendments is ostensibly to strip the office of Executive President of its ‘excessive powers.’ This would mainly refer to the powers conferred on the president under the 18th Amendment which removed term limits on the presidency, and did away with the Independent Commissions that were introduced under the 17th Amendment. But the 19th amendment differs from the 17th Amendment in some of its provisions, such as those relating to the Constitutional Council.

In the 19th Amendment, the Constitutional Council (CC), as before, is a powerful entity. No court has the jurisdiction to call into question its decisions which are final. It is the CC that makes recommendations for the appointment of chairpersons and members of the Independent Commissions. The 10-member CC comprises the Prime Minister, the Speaker, the Leader of the Opposition, a person nominated by the President, and six other nominated members. The wording of the 19A in relation to the composition of the CC would seem to potentially allow all six of these nominees to be from minorities, whereas the 17A said three persons should be nominated to represent minority interests.

Fast-tracking 19 A
While the new government’s pledge to reach out to minorities and advance reconciliation is commendable, it needs to consider the wisdom of introducing constitutional changes that could be potentially destabilizing. The changes come against a backdrop where the Chief Minister of the Northern Province has resorted to thinly-veiled separatist rhetoric, accusing the state of ‘genocide’ and rejecting the 13th Amendment. At a time when the government is engaging in outreach, Tamil moderates are being sidelined and vilified by radical elements in the North. Meanwhile the controversies surrounding Arjuna Mahendran and Kshenuka Seneviratne show that the government’s own judgment in making important appointments is questionable. It’s anyone’s guess what kind of appointments will be made to a Constitutional Council under the 19A.

Why is the government in such a hurry to have this amendment adopted? The attempt to tag it as an ‘Urgent Bill’ was thwarted only due to Opposition pressure. Such a move would have pre-empted public discussion before it went to Parliament. As it is, only a week remain before it is taken up.
Insisting on an April 23 deadline for parliament’s dissolution is another way of fast-tracking the 19A. The government may argue that this was promised to the people in the ’100-day’ program, but there is nothing magical about this arbitrarily-set timeframe, to justify rushing an important piece of legislation.

What’s the deal?
The manner in which this is being done gives rise to the question as to whether it is a promise made to an external party that is at the root of the government’s worries. ‘Strongman’ Mahinda Rajapaksa was removed, according to some reports, with external help. Sowing sectarian strife is a favourite weapon used by Washington to weaken states for its own strategic ends (ask the Iraqi people, they know all about it). The focus has now shifted to Asia. Foreign Affairs Minister Mangala Samaraweera has secured a deferral of the UN Human Rights chief’s war crimes report with the approval of Washington, its main driver. Some analysts ask what the quid-pro-quo was, for this ‘favour.’ Was there a tacit understanding on introducing reforms that would weaken the Sri Lankan state – bundled along with the usual buzzwords of ‘democracy,’ ‘human rights’ and ‘good governance?’