Columns

In the twilight glow of October 22, the final curtain fell on the dramatic enactment of what can be dubbed the ‘Tyrannical Twenty’, and thus, whilst it brought to a close the 19A, a fleeting period shorter than a summer’s day or brief as a mayfly’s life, it opened up a new foreboding age of light denied as it was in the beginning is now and ever shall be till a more egalitarian era dawns on the land.

The ‘ayes’ who voted for it signalled its advent as a progressive step to brave the challenges of the millennium and delighted in describing how the sweeping powers it vested on Lanka’s executive presidency could be used by the present incumbent and future heirs to the sceptre and throne, to dozer whatever impediments that stood in the highway of the nation’s rapid development.

And whilst they danced over the 19A grave which contained their coffined freedoms, they paid their obeisance, their surya namaskaras to the brand new sun in the ascendant from which no light but rather darkness visible illumined its existence. They had laboured so much to deliver birth to their 20A sun and give the masses the promised economic El Dorado, and claimed, in their exuberance, the nation had taken a quantum leap into the future, that it seems a trifle cruel to point out the nation had only leap frogged to the past, to 42 years ago; and that they had just joined, unwittingly, perhaps, an exclusive club of members who, having rightly denounced JR’s dictatorial constitution as a creature of Lanka’s dark ages, now point to 20A’s similarities with its articles, and tacitly hail it  as a golden  era,  worthy of emulation.

The First Act of the play begins with the drafting of 20A. Since none has yet stepped forth to lay claim to its authorship, it is assumed ‘tis ghost written and the phantom from his writing attic now slinks away to his old sepulchre to brood beneath the sod the consequences that will flow above from his masterly work when the grand office of Lanka’s executive presidency will once more be adorned and blessed not only with the throne, sceptre and crown but empowered again with JR’s double-edged Sword of Excalibur.

The Second Act shows its publication in the Government Gazette on September 3 and the subsequent events. It is presented for public debate. The Government also announces its intention to present it to Parliament on September 22. But come Monday, due perhaps, to cabinet disquiet and public protest after first sight of document, it is announced the gazetted 20th Amendment draft bill is to be withdrawn and a fresh draft will soon be issued. That same Friday, Prime Minister Mahinda Rajapaksa appoints a nine-member committee headed by 20A chief proponent  G.L. Peiris   to study the 20th Amendment draft in detail and submit their  report on 15 Tuesday. Ostensibly, the PM has 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, stands imperilled under the gazetted 20 Amendment draft which holds that the Prime Minister’s mandatory consent, which has to be obtained under the 19A before the President could hire or fire any minister, will no longer be necessary; and, worse, that the President, unlike in 19A, can 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.

The Third Act opens on September 16 in the Cabinet room where all are in attendance.  The day before, right on target date, the Prime Minister had been given the expert report he had wanted. The GL nine-man Committee comprising constitutional heavyweights such as Udaya Gammanpila, Nimal Siripala de Silva, Wimal Weerawansa and Dilan Perera, to name a few, have toiled through the night, burning the midnight oil to obediently render their considered opinion to their Prime Minister so he in turn can advise the President.

But alas, their labour is in vain. The thesis never sees the light of day and lies unseen, in some dark musty bureaucrat’s briefcase unbrowsed, for the President has had another change of heart. He insists that the already published 20th Amendment Draft Bill proceeds without even a comma changed to the Supreme Court; he determines it be cast to the Hulftsdorp winds unedited and see whether the original testament will pass legal muster undiluted.

ALL TO NO AVAIL: An SJB MP waves the say NO to 20A and shows the V sign but loses out to betrayers in the opposition

Addressing the cabinet briefing later that day, Minister Keheliya Rambukwella says, “The architects of the 20th Amendment to the Constitution are President Gotabaya Rajapaksa and the Cabinet and as such the Government has 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 20A is taken up for debate.”

The bill is presented to Parliament amidst uproar. And though the election had decimated the opposition, the din of protest that swells from its eunuchised ranks is not muted nor diminished.  The opposition’s disquiet over the vista the 20 Amendment Draft Bill has in store for both Parliament and nation if enacted, finds voice vibrant enough to resound throughout the chamber and passionate enough to quell its defend.

The Fourth Act opens in the hushed and awe-inspiring atmosphere of the nation’s Supreme Court atop Hulftsdorp Hill. It is September 29 Tuesday. Five Lord Justices robed in scarlet sit imposingly on the bench. The onerous task they are called upto to discharge is to adjudicate whether the 20th Amendment Bill vitiates the Constitution of Sri Lanka before enactment in Parliament as part and parcel of the nation’s supreme legal charter.

On October 5, after having heard 38 petitions challenging the Government’s 20th Amendment Bill, the Chief Justice announces the judgment of the court will be delivered to the Parliamentary Speaker and to the President.

On October 20, the Speaker formally reads out the judgment of the five-judge bench which comprise the Chief Justice Jayantha Jayasuriya, Justices Buwaneka Aluwihare, Sisira de Abrew, Priyantha Jayawardena, and Vijith Malalgoda.

Four out of five judges, apart from Justice Priyantha Jayawardena, hold that four clauses require a referendum as well as a two-thirds majority in Parliament. The 4 clauses are:

1)  the  restoration of Presidential immunity to the extent of preventing fundamental rights challenges by citizens,

2) the repealing of the President’s duty to create the conditions for the holding of free and fair elections as requested by the Election Commission,

3) the dissolution of Parliament within one year of elections and

4) the removal of the constitutional duty on public officers to obey directives of the Election Commission with failure to do being an offence.

The Government discards the idea of risking a referendum to get these four clauses embedded in the Constitution. The thinking seems to be why gamble away the gains on a possible referendum defeat when one can go home after a successful fishing expedition with a sackful of seer in the boot? Why risk springing a leak in the boat trying to hold onto a few herrings when it could be returned to the sea without rocking the boat?

Especially, when 3 out of 4 of these clauses deal with elections and have no bearing on the President’s day-to-day powers during his tenure of office. They can be sacrificed without denting the Executive arsenal.

The Presidential immunity clause is dropped altogether, while the President’s right to dissolve Parliament within one year of general elections have now been suitably amended by the insertion of the line ‘period of two and a half years from the date of such elections’, with suitable amendments to the others accordingly.

But there are further cabinet add-ons made at the committee stage. One is the provisions for the Auditor-General to delegate the authority to audit public corporations or companies which hold 50 percent or more of the shares by the Government or a public corporation.

Another is the provisions to submit to parliament only the acts relevant to the matters that emerge out of the National Security and Disasters Considering as the Urgent Acts.

The Government also introduced a totally new provision at the Committee Stage, which were not in the original 20A bill and which was not submitted for the Supreme Court’s consideration. The new provision so introduced allows the president to increase the number of judges to Supreme Court and the Court of Appeal.

All the other clauses require only a two-thirds majority, which Prime Minister Mahinda Rajapaksa confidentially boasts he has in his pocket.

The Fifth Act is set by the banks of the Diyawanna, within the august House of Parliament, the temple whereat the sovereignty of the people resides incarnate. The date is October 22. The debate had started the day before and its final day.  The air is rife with tension. Much horse dealing is going on it is believed, and like a cricket match is not over until the last ball is bowled, the debate isn’t over until the last vote is counted. The stakes are high.

Outside prominent monks, once the regime’s staunchest supporters, are demanding the 20th Amendment be scrapped. Two out of three Buddhist Nikayas have issued a joint statement under the hand of their general secretaries, that 20A be discarded in toto ‘as it rejects the core of democracy, which is one of the progressive elements of humanity’.

The Catholic Bishops Conference, which comprises all the Bishops in the island and represents Lanka’s Catholics, has also issued a statement calling upon the Government to dump the proposed 20A, saying “a two-thirds majority of the members in parliament based on political parties does not necessarily manifest the true conscience of the people.”

But is the Government listening, or is it more intent on ensuring getting that magic 150 votes, and a little more for comfort, to get the bill enacted. The ruling SLPP has 145 seats. But this, too, is made up of the SLFP who commands 14 votes, Wimal Weerawansa’s party which commands six votes and Gammanpila’s one man party which, eh, commands one, leaving the SLPP with only 124 to strictly call its own.

Of late, Wimal Weerawansa has been emitting sounds of protests against the 20A bill, even declaring his party will not be responsible for the political fallout if the bill is passed. His particular grouse seems to be aimed at one clause in the bill which the Supreme Court held as one not requiring a referendum. It is the clause that seeks to abolish the ban on dual citizens contesting parliamentary or presidential elections. Much ado is made of this one clause as if the whole nature of the amendment was repugnant solely due to it.

Much air time is also devoted to Wimal’s pet obsession with ‘dual citizenship’ clause that the prudence of empowering the present and future presidents with sweeping powers are hardly considered and fail to register in the public mind.

Those powers give the executive president the absolute right to appoint the Chief Justice, the Supreme Court Judges, the Appeal Court Judges, the members of the Judicial Services Commission, the members of the independent commissions, namely, the Election Commission, the Public Services Commission, National Police Commission, Human Rights Commission, Bribery Commission, the Finance Commission, and the Delimitation Commission.

The voting begins and the results hardly surprising. The final tally is 156 for 20A with 65 voting against it. Former President Sirisena abstains. How the SLPP got its winning two-thirds majority and more is mainly due to seven Muslim MPs in the opposition becoming turncoats and voting against their party’s declared decision. But how ironic that the SLPP which has never disguised its strong Sinhala Buddhist bent and had proudly declared it won its landslide presidential and general elections solely on the majority Sinhala Buddhist vote and was not beholden to any minority grouping, had to, in the final analysis, depend on Muslim elements of a lowly order to triumph in Parliament and enact this odious bill which monks, bishops, civil rights groups have rejected outright.

The SJBP also got the chance to get rid of bad rubbish when its National List MP Diana Gamage, a new comer to Parliament without an electoral base and making her debut entry, turned traitor and voted for the Government’s 20A in direct opposition to her party’s stand.

The curtain may have fallen on the enactment of the 20th Amendment but it may not be the final act. The people await the denouement.