The Nineteenth A: A Legacy Worth Recalling Despite its Impending Demise

Image Courtesy of onlanka.com

PROF. JAYADEVA UYANGODA- 08/03/2020

 

Among as many as nineteen amendments introduced to the Constitution of 1978, three stand as having positively contributed to fulfilling Sri Lankan society’s democratic needs. The first is the Thirteenth Amendment. The others are the Seventeenth and the Nineteenth Amendments.

Two dimensions of the Thirteenth Amendment, introduced in 1987, made it especially significant to Sri Lanka’s democratic political change. It was Sri Lanka’s first ever constitutional reform that was designed to provide a non-military and political solution to the country’s ethnic problem; it offered that solution through restructuring Sri Lanka’s post-colonial state within a framework of ethnicity-based power-sharing and devolution of powers to the provinces.

The now-forgotten Seventeenth Amendment of 2001 was the first constitutional attempt in Sri Lanka that was made to repair the severe damage done to Sri Lanka’s society and polity by the 1978 Constitution’s presidential system for over a decade. Its most innovative creation was the Constitutional Council. The Council was conceived as an autonomous and independent institutional mechanism to make Sri Lanka’s public service free of political control and thus to be independent.

The Seventeenth Amendment through the Constitutional Council placed some important restrictions on presidential discretionary powers in the appointments to the key positions in the judiciary and the public service. It also sought to strengthen the role of Independent Commissions as institutions of accountability as well as checks on the executive authority.

The Nineteenth Amendment incorporated these features of the Seventeenth Amendment and went beyond. It too had a state-restructuring effect in a different sense.  It curtailed the powers of the President drastically, restored the principle of parliamentary sovereignty, and redefined the relationship between the Cabinet, the President and Parliament in a manner   that was closer to the parliamentary than the presidential model of government. Thus, the 19^th Amendment’s overall constitutional character was hybrid in its own specific ways. It combined a downsized presidential system with a strengthened parliamentary-cabinet system.

In that sense, the Nineteenth Amendment marked what was to be the first stage of a comprehensive constitutional reform initiative. The expectation at the time was that it would eventually lead to bringing to a complete end the illiberal constitutional model that was originally created in 1978 and later strengthened in 2010 through the 18^th Amendment.

At present, the Nineteenth Amendment has come under severe attack by two political constituencies. The first is the Sri Lanka People’s Front, which has committed itself to inaugurating in Sri Lanka what can be termed as ‘a strong and executive-led national-security state.’ The other source of attack is, ironically, the same President who in 2015 played a leading role in forging and getting passed into law the constitutional compromise that came to be known as the Nineteenth Amendment.

Thus, it is not inappropriate to recall the context, background as well as positive contributions which the Nineteenth Amendment actually made to Sri Lanka’s recent political change.

Context

In terms of both its context and content, the Nineteenth Amendment embodied two key commitments of the Yahapaalanaya coalition made during the presidential election campaign that began in later October, 2014. The first was political – restoration of democracy, democratic governance, and ensuring of government’s commitment to the Rule of Law, human rights, repression-free governance, and ethnic reconciliation.  The second was constitutional – reforming or abolishing the ‘executive’ residential system and the restoration of parliamentary sovereignty and Cabinet government. Both required substantive amendment to the country’s constitution, including the annulment of the 18^th Amendment.

It is also important to recall that with all its strength and limitations, the Nineteenth Amendment was indeed an all-party constitutional compromise arrived at in 2015 after two to three months of negotiation. Much bargaining and deal making may have occurred particularly among the Yahapaalanaya coalition partners and also between the coalition leaders and the Rajapaksa camp of the SLFP on the content and scope of the proposed constitutional reform. The fact that the new coalition regime initially did not have even a parliamentary majority, let along the support of two-thirds of MPs, made both bargaining and compromise making among political allies as well as adversaries the only path available for fulfilling the coalition’s foremost political promise to the electorate.

Against all the odds that seemed insurmountable at the time, it was remarkable that only one MP opposed the Amendment while 215 voted for it in parliament on April 25, 2015. Nine MPs refrained from voting. Thus, the 19^th Amendment was a product of a grand political compromise. And as all constitutional compromises do, the Nineteenth Amendment has quite a few shortcomings and areas of tension that warrant correction through a new amendment.

In the meantime, it is perhaps useful to recall at least in brief the political background to that constitutional compromise which has provided a basic framework for re-institutionalizing democratic government in Sri Lanka.

Background

Abolition of the executive presidential system and its replacement with a parliamentary-cabinet system of government has been a regular theme in Sri Lanka’s oppositional politics since the new constitution was adopted in 1978. By 2014, the demand for its abolition and replacement had become the key political issue that had brought together opposition political parties and civil society organizations in a new phase of democratic mobilization.

Ven. Maduluwawe Sobhitha and the Movement for a Just Society, had been leading a country-wide civil society campaign for abolishing the presidential system.

The new reformist opposition coalition that was forged in October 2014 took this as a key campaign issue. The understanding that prevailed generally within the coalition and its supporters was that steps would be taken by the new President to abolish Sri Lanka’s ‘executive presidential’ system of government which had contributed to a serious erosion of norms and practices of Sri Lanka’s democratic governance. The Eighteenth Amendment came under particular criticism of the yahapaalanaya constituencies because it had transformed Sri Lanka’s original ‘executive presidentialism’ into a new system of ‘autocratic presidentialism.’

Compromises and Setbacks

However, no sooner than the work began to draft the Nineteenth Amendment, the lose consensus that existed within the yahapaalanaya coalition about the nature of new constitutional reform began to appear imprecise and fragile. A major disagreement that surfaced quickly centered on the question whether the presidential system should be abolished or reformed. The UNP, the JVP and civil society constituencies appeared to generally favor the abolition of the ‘executive’ presidential system and the creation of an office of the president as the nominal head of state., with some transitional provisions.

The JHU and SLFP constituents of the coalition, taking a different stand, opposed the weakening of the Presidential system. Their conceptual argument was that post-war Sri Lanka’s continuing imperatives for political stability required the continuation of the office of the president with more powers than those traditionally entitled to a nominal head of state.  Even with reduced powers, the President’s popular mandate through direct elections was to be kept intact to ensure that his/her authority remains independent of the legislature. The Rajapaksa camp of the SLFP too came around this position.

Apart from the imperatives for a major compromise to secure the necessary parliamentary votes for a constitutional amendment, there was also another barrier, a constitutional one, to a radical reform to the Presidential system. As highlighted by the Supreme Court when the constitutional draft came before the judiciary for its scrutiny, a major revamping of the position of the President required people’s approval at a referendum as well.

The final form of the 19^th Amendment, which became law in April 2015, was seen as the first of two stages to the abolition of the Presidential system and overall constitutional reform. The government was to draft a new constitution during the second stage. The new constitution was to go beyond piecemeal amendments.

The then Prime Minister who appeared to spearhead the project of a new constitution hoped to get it approved in parliament by building an all-party political consensus. However, internal political upheavals within the yahapaalanaya coalition regime, lack of coalition spirit between the President and the Prime minister, and the total breakdown of relations between the government and the Rajapaksa camp of the SLFP, a powerful faction in parliament both in terms of numbers and popular support, delayed he progress of the second phase.

This was despite some innovative procedural steps that were taken in and outside of the parliament to make the process of constitutional negotiation open and consultative. The total breakdown of relations between the UNP and SLFP camps of the government in October 2018 brought the yahapaalanaya government’s constitutional reform project to a premature and politically toxic closure.

The deep crisis within the yahapaalanaya government, with bitter power struggles between the President and the Prime Minister, also saw the gradual disintegration of the political coalition that was responsible for the enactment of the Nineteenth Amendment.

Criticisms and Uncertainty

At present, both the continuity of Nineteenth Amendments is facing a serious uncertainty. A two-thirds majority secured by the Sri Lanka People’s Front-led coalition either at the parliamentary election, or cobbled after the election, would most likely seal the fate of the Amendment.

Among many factors that seem to characterize the context in which Sri Lanka’s return to constitutional illiberalism is the rise of an argument in Sinhalese society for a strong state, a strong government, and a strong ruler. Many factors have conspired together to create a demand as well as legitimacy for such a crucial shift in the political judgement within Sri Lanka’s majority ethnic community.

Key among them are the dismal failure of the democracy-restoration experiment of the Yahapaalanaya regime of 2015, weak and irresolute leadership in democratic governance, repeated failures in governance, rampant corruption, and also the spread of religio-ethnic nationalisms of different kinds. There are of course other deep-rooted social and political economy factors too.

In the current political debate, the Nineteenth Amendment is blamed for directly contributing to four major failures: (a) causing political instability, (b) institutionalizing ineffective governance, (c) weakening of the state, and (d) endangering national security.

Meanwhile, an immediate outcome of a series of political evets occurred in 2018 and 2019 has been the re-alignment of political forces around a subtle and indirect promise of restoring the country’s pre-Nineteenth Amendment constitutional order.

What the political debate during the current election campaign portends is a transition to a post-Nineteenth Amendment constitutional set-up. The latter has been conceptualized on a template that seeks to bring together the state’s executive leadership and the defence establishment as the central institutional coalition for managing Sri Lanka’s society, economy, politics, and public morality.  It promises a significant departure from the paradigm of constitutionalist thought and practice that has been familiar to Sri Lanka’s citizens. And that, as it appears, with significant popular support expressed at the forthcoming parliamentary election.

19^th A and Its Contribution

Then, let us at least recall, while the clock is ticking for the Nineteenth Amendment, its positive contributions to contemporary Sri Lanka’s political change.  The following are the key achievements of the Nineteenth Amendment made on behalf of the citizens of Sri Lanka:

• The Nineteenth Amendment significantly reformed the ‘executive’ presidential system the total abolition of which has been a major political demand shared from time to time by all political parties and the people for several decades.
• It halted and prevented at least temporarily Sri Lanka’s drift toward illiberal authoritarianism.
• It also showed to the people of the country that excessively autocratic executive presidentialism is not the only alternative to a moderately autocratic executive presidentialism. A hybrid model in which a reformed presidency with reduced powers and a strong parliament with restored sovereignty is a third option worth experimenting.
• The Nineteenth Amendment brought back to the constitutional discourse in Sri Lanka the forgotten norms of democratic constitutionalism.
• It reminded Sri Lanka’s politicians that political power has limits and is indeed limited, and that the exercise of political power should be subjected to checks and balances to prevent it from being used for tyrannical agendas of the rulers.
• It showed that Sri Lanka’s judiciary had not exhausted its institutional capacity to be truly independent if proper constitutional and political conditions and safeguards are available with no regime interference.

Of course, the nineteenth Amendment is not without its shortcomings. Its primary defect is the continuation of the office of the President with greatly reduced powers, but still directly elected by the people. Tragically, the men have been in power under the Nineteenth Amendment did not appear to be conscious of the conceptual and normative foundations of what they themselves had created for political expediency.

The Nineteenth Amendment also led to an unwarranted political anomaly by allowing a situation for the person holding the office of President to make the claim that he/she has greater authority than Parliament on the strength of a popular mandate given to him/her as a single individual on a distinct agenda and a programme.

There are several other shortcomings too in the Nineteenth Amendment, as highlighted during the constitutional crisis of October 2018 and after. They all need correction and it is better when they are corrected within a framework of more democracy, and not less democracy.