In the first instance, it is interesting that the 19th Amendment, as it is finalised, deviates from previous thinking in that now, the right to dissent is given only in respect of any amendment to the Constitution.

The draft immediately preceding the final draft gave broader protection to an MP who speaks or votes or abstains from voting according to his conscience or against any direction of a Party Whip in Parliament. This was both in general and specifically with regard to the power attempted to be newly bestowed on Parliament to resolve by majority vote that Parliament may be dissolved in particular circumstances, thus necessarily curtailing the power of the President to exercise powers of dissolution.

As it now stands therefore, clause 6 of the 19th Amendment prohibits a political party or an independent group from expelling or suspending from membership or subjecting to disciplinary action any MP who speaks or votes or abstains from voting on any amendment to the Constitution, according to his (or her) own belief or conscience or free will. Necessarily, it also provides that the seat of such Member in Parliament shall not thereby become vacant.

The two questions here are extraordinarily obvious. Is it fair that the Constitution, by explicit provision, imposes what in effect, amounts to a stranglehold on a political party with regard to the action that it may see fit to take against a member? Is it justifiable that a distinction is made between free will of members of parliament in respect of constitutional bills but not in respect of ordinary legislation, which may, in particular contexts, provide as important a question of conscience as amendments to the Constitution?

The first question conjures up fairly nightmarish scenarios. Theoretically, the 19th Amendment envisages a possibility that a particularly fractured party could have a majority of its members in the House, still purporting to represent their constituents from the party from which they were elected under PR but openly if not vociferously disagreeing with the policies of the party in so far as amendments to the Constitution are concerned. The party's power to deal with these rebellious members would be stayed for all intents and purposes.

For those who have consistently taken the view that proportional representation has led to intensely authoritarian party regimes in this country, this scenario may not appear to be all that bad. Indeed, a mischievous spirit may well rejoice in the fact that the 19th Amendment may turn prevailing party pre- eminence completely on its head.

We have seen instances where this has resulted in the rankest injustice as was evident when two hapless members representing Kamburupitiya and Hakmana were summarily expelled merely for abstaining from voting on the 13th Amendment to the 1978 Constitution. This was, as could be recalled, despite the explicit explanation of one parliamentary member that the various party organisations in his electorate were strongly opposed to his voting in favour of the 13th Amendment.

This pre-eminence given to the party has been buttressed by the reasoning of the Supreme Court which initially preferred to take the view that an individual member is merely a cog in the party wheel whereas it is the party that has become the spokesman of the country's interests. (Gunewardena and Abeywardene v Fernando, 1989).

Later decisions, (notably Dissanayake v Kaleel, 1993 and Thilak Karunaratne v Sirimavo Bandaranaike et al 1993) specifically disagreed with this relegating of the relationship between a party and a member to master and servant. However, there was no significant departure from overall acceptance that the system of proportional representation gives pre-eminence to the party as opposed to an individual member, provided that there was observance of essential requirements of natural justice in dealing with rebellious members.

The judgement in Thilak Karunaratne, where an SLFP MP had been publicly critical of the then leader of the party Sirimavo Bandaranike, however, did make the particular point that, with regard to "non-constitutional functions of a member", there was no stipulation that such member was meekly bound to obey a direction of the party.

In this context, the 19th Amendment insofar as it contemplates the displacing of the party as the authoritative voice with regard to amendment of the basic political structures by which we are governed, is welcomed. However, the ambiguities that it will most certainly bring about, should not be taken lightly. On the other hand, the 19th Amendment might have only provided that a Member of Parliament may not lose his parliamentary seat consequent upon dissent with the party.

This would have addressed the situation pointed out most succinctly by Colvin R. de Silva decades back, that "All over the world, parliamentarians are supposed to show their independence by crossing the floor. Here, you can't cross the floor or if you cross it, it must be because you are cross with yourself because you end up outside.

Now, is this the kind of parliament you should have? How will that be an instrument of any kind of democracy, leaving aside pluralistic democracy? What kind of instrument and what kind of policies and what in heaven's name will that parliament be doing?"

While this sort of limited amendment is more politically correct than the 19th Amendment as it now stands, it could lead to tensions of a different nature as evident in Sri Lanka's political system of late, where "crossing the floor" has taken on a strong personal flavour as opposed to disagreement on actual issues of conscience. And though it may be argued that constitutional amendments should not be limited to current political realities but instead be envisaged within broader liberal democratic structures that prevail in countries around the world, the consequences of ignoring the former may well prove to be fatal given the extent of political opportunism that prevails today.

One alternative to the resulting Hobson's choice may well be to make dissent on a matter of conscience an issue on which an individual member is ultimately compelled to seek the approval of the electors who voted the member into Parliament.

While this would obviously limit the more blatant instances of political opportunism, the practical difficulties of implementing this within the PR system which envisages district-based voting rather than electorate-based voting or even within the presently contemplated mixed system, raises questions of a different kind. Ultimately, may it be the 19th Amendment or otherwise, we are witnessing constitutional tinkering of the most desperate kind, which like the Emperor's new clothes, cannot hide the stark truth that our political structures have become corrupted to a degree that escapes the corrective influence of the most sophisticated constitutional mechanism.

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