Columns

Sometimes it is hard to believe that not even six years ago the late Venerable Sobitha Thera had given  fiery voice to the war cry ‘Down with the Executive Presidency,’ and had stirred, inspired and galvanised the people into battle to bring down President Mahinda Rajapaksa from his presidential throne and drag his draconian 18th Amendment to the dust.

And today, it is even harder to believe that it is these  same people who had so overwhelmingly voted this year not only to restore the executive presidency to its own 18th Amendment empowered state but to further arm and fortify it with even more executive powers which will make the occupant of that high office, the sole repository of all power.

But had they? They may have voted last year for a change of President and voted last month for a change of government but had they exercised their precious franchise to rearm the executive presidency they had voted to see wings clipped in 2015?

The people may have had their dissolutions of the way the Yahapalana Government under the 19th Amendment had performed but had there been a movement of note that had called for a return to the 18th Amendment and trumpeted that Lanka’s future prosperity lay in rolling back the times to an insufferable past the people had been glad to see the last of 5 years ago?

Even if the people had been aware that the SLPP were intent on repealing the 19A and bringing in a new amendment in its stead, had the masses bargained for the abolition of progressive reforms in exchange for articles enhancing presidential powers they would never have approved had they known of it in advance? Had they been asked to sign a blank cheque with only the words ‘20th Amendment’ written on it with the SLPP unilaterally filling out the articles and clauses it contains in any manner they deemed fit just days before encashing it?

The Government gazetted the cabinet approved draft of the 20th Amendment on September 3 and presented it for public debate announcing its intention to present it to Parliament on September 22. However, it was reported on Monday, that it was to be withdrawn and a fresh draft would be issued. The Island newspaper reported that President Gotabaya Rajapaksa has assured civil society groups, the National Joint Committee and Yuthukama that the proposed 20th Amendment to the Constitution would be rescinded to pave the way for a new draft. The President had given this assurance at a meeting with Manohara de Silva, PC and SLPP Nationalist MP Gevindu Cumaratunga last Friday evening at the Presidential Secretariat

That same Friday, Prime Minister Mahinda Rajapaksa appointed a nine-member committee headed by G.L. Peiris   to study the 20 Amendment draft in detail and submit their  report on September 15th Tuesday. Ostensibly, he had good enough reason to do so, to pick up the first cudgel against the proposed 20A.

His own job security as prime minister, at least technically on paper,   stood imperiled under the gazetted 20th Amendment draft which held that the Prime Minister’s mandatory consent which had to be obtained, under 19A, before the President could hire or fire any minister would no longer be necessary; and, worse, that the President, unlike in 19A, could sack the Prime Minister at any time, with the Prime Minister reduced to holding his position as PM entirely at the whim and fancy of the President.

Media Minister Keheliya Rambukwella gave his weekly cabinet briefing on Thursday and disclosed that ‘the draft Amendment of 20A’ that has now been gazetted was taken up for a detailed discussion in the cabinet on Wednesday.

However, a report on the draft 20th Amendment Bill prepared by the nine-member committee appointed by Prime Minister Mahinda Rajapaksa which was presented to him on the 15th as scheduled and which was also due to be presented to the Cabinet on Wednesday had not been presented. The tabling of the report in Cabinet had not taken place after President Gotabaya Rajapaksa told ministers that he would take the responsibility for the contents of the 20th Amendment draft.

Minister Rambukwella said “the architects of the 20th Amendment to the Constitution were President Gotabaya Rajapaksa and the Cabinet and as such the government had no intention whatsoever to withdraw it simply because a plethora of divergent comments have been made about it. All proposals, amendments and changes would be considered at the committee stage in Parliament when the 20A is taken up for debate in Parliament.”

President Rajapaksa and the Cabinet will take full responsibility of 20A as the people have given a mandate to the SLPP Government and President Rajapaksa at two major elections to replace 19A with 20A, Minister Rambukwella added.

True. The question, however, is did they vote only for the cover and not for its far reaching contents of which they were not aware and are still not aware, having only a sketchy pencil outline of a manuscript masquerading as the people’s manifest will and holy writ to go by? Minister Rambukwella must stand corrected, for the contents of the 20A draft were never revealed before either election. Unless, of course, Rambukwella considers present constitutional drafting jurisprudence holds that voting for the title on the book’s cover, namely, The 20th Amendment,  amply suffices to bequeath  to the authors the untrammeled, absolute right to include even things inimical to the people’s  interests?

And when it comes to voting for it in Parliament, are the members of Parliament, existing as they do solely due to the present electoral system which places party first and candidates second, duty bound to vote in the best interest of the party which put their name on the ballot paper or in the interest of the people who voted them to the House as a result?

Isn’t it the case that MPs, like sheep blindly following their leader even over the hill, are guided by the Party Whips to follow their party diktat and vote accordingly whatever opinion their voters in their grassroot electorate may hold on a particular issue of extreme importance? This is not endemic to Lanka alone but is prevalent in all western democracies too, except in instances where a referendum will decide the true opinion of the sovereign people, in whose name much liberties are casually taken.

Minister Rambukwella said “the draft of 20A would be tabled in Parliament this Tuesday as originally planned, enabling any citizen or organisation interested in the draft amendments to file a petition in the Supreme Court for an interpretation within a week. We are ready to accommodate any positive and progressive amendment, suggestions of changes to the proposed amendments at the committee stage in Parliament. Therefore, no one must worry about 20A as it is not something written on a stone.”

True again. The 20th Amendment will not be etched in stone. It will be written on a palimpsest, even as JR’s constitution in 1978 has been rewritten 19 times on the same palimpsest these last 42 years and even as the 20A will come to be writ on this same palimpsest two months before Christmas.

But, somewhere in the future, should the need arise in a more enlightened age to repeal the 20A if found to have gone out of style, then even before it can be erased and re-written again, a providential time must dawn when the government of the future has another two third majority coupled with a perceived need to change the constitution and amend it again. Some governments may possess the two third majority but not the perceived need. Some governments may have the need to change but not the two third majority to alter one single line on the palimpsest. Then, for all intents and purposes, it might as well have been engraved on stone.

What this nation is witnessing today is an attempt to amend the constitution which, when done and completed, will have consequences far beyond present day strife, consequences far into the unknown future, consequences that will last long after the present tenure of this government and perhaps the next and the next will have long been over. What we are witnessing is the terrifying prospect of the attempt being made to crown and bestow upon the present and unknown future incumbents of the office of Lanka’s executive presidency, powers of such nature and extent which will render Lanka’s form of government in the future as constitutional one-man or one-woman shows in perpetuity.

And, even if there will come to be one Sirisena among them in the future who will, in Sri Sanghabo fashion, appear willing to sacrifice his excessive presidential powers and return to a democratic parliamentary form of government, he may find to his regret, he lacks the numbers to rewrite the palimpsest and will be forced to remain a prisoner of the constitution’s 20A, though, perhaps, a happy one, enjoying the trappings of undiluted power behind a melancholic mask of hapless regret.

Such unbridled power may well be for the good of the nation under the present leadership of President Gotabaya Rajapaksa. But what of the future? In the wrong hands, the concentration of power in the executive presidency may well lead to what a 19th century English Baron, Lord Acton observed and stated in his now famous maxim, “Power tends to corrupt and absolute power corrupts absolutely.”