Sri Lanka: So who is cheering the 19th Amendment now?

When Maithripala Sirisena said bye-bye to the Sri Lanka Freedom Party (SLFP) and went against Mahinda Rajapaksa, there were wild cheers from those who supported the United National Party (UNP) and/or were against the Rajapaksas Regime. Sirisena was hero. He was poster-boy. Chandrika Kumaratunga even said that he was the only honest politician in the party she once led.

It was not only about ousting Rajapaksa. It was about doing things differently. It was about correcting flaws. It was about putting in place robust systems that made for good governance and the prevention of corruption and incompetence. So it was not just about regime change; it was about good governance as well. It was about democracy; so said the ‘good governors’ if you will. A key part of that program was dealing with the cornerstone of the 1978 Constitution, the Executive Presidency.

The rhetoric was about abolishing it. The word on the manifesto was ‘change’ and not abolition. Sleight of hand, certainly. Then came the 19th Amendment. It wasn’t abolished. Even constitutional experts such as Nihal Jayawickrema said that the 19th did away with 80% of presidential powers.

Not only was the 19th mischievously (rather than carelessly) worded to make for a bloated cabinet, it made a mockery of independent institution thanks to the clauses regarding the composition of the Constitutional Council. The decisions of the politician-heavy body, made even more politically suspect by the inclusion of politically compromised ‘independents’ clearly subverted the objective. The appointment of judges, in one case seniority being disregarded, clearly indicates that these commissions alone won’t deliver. Whether they are necessary is also a moot point. After all, not all democracies that are said to be thriving have independent commissions. The members, let us note, are not answerable to the voter.

Need we even talk about how its authors and approvers bungled the issue of presidential powers pertaining to dissolution of Parliament?

And where are we at, ladies and gentlemen who fervently believed that the Yahapalanists were serious about good governance? Well, what we have is a situation where the only individual who possesses power is in fact the Executive President. That’s Maithripala Sirisena. And he’s a man who earned the wrath of all, mind you. So much for the project of the anti-Rajapaksa forces to scuttle the Executive Presidency!

Now how did we get to this? Did those who hand-picked Sirisena err in judgment? That’s certainly one argument. Did they have no other option? That’s possible too. What’s most laughable about it is that all those who point fingers at Sirisena act as though they had done nothing to put him in a place where he could do what he did. There’s no place or sympathy for naïveté in politics, ladies and gentlemen, sorry.

What is not funny is this: the most ardent voices against Sirisena were dead silent about his many acts perverting democracy (some of which were jointly plotted with the UNP; for example dissolution of Parliament on the day the COPE Report on the Central Bank bond scam was to come out). They were fine with postponing local government and provincial council elections. It is only when Sirisena tripped the UNP that their purported democratic sentiments were wounded.

It’s simple. The 19th Amendment was a document that was made to benefit the UNP. The hitch was that its success depended on the goodwill of the President. That’s how serious Jayampathy Wickramaratne was about constitutional amendment. It was, in short, a third rate document produced by perverted notions of the political.

The most serious question now is, ‘where do we go from here?’ Put another way, ‘what do we do now?’ If it is a matter of tiding over a crisis, then one of two things would do the trick. First, a court determination affirming that dissolution was constitutional. It would imply that the court has determined the 19th Amendment itself (specifically the clauses regarding dissolution) was unconstitutional in the first instance. There is precedence of the judiciary making such determinations, for example certain articles in the 13th Amendment. We cannot be presumptuous though. Court can determine that dissolution was unconstitutional. It can determine otherwise as well.

That would upset the UNP of course. It would only benefit a political formation led by Rajapaksa and Sirisena. Indeed, Rajapaksa might prevail even if he shed Sirisena. The outcome may not the be the best to be desired, but whoever wins we would have a new chapter and a new dispensation. Whether or not the government formed subsequently addresses the vexed issues that have generated this crisis is another matter. At least there would be clarity.

What if court determines otherwise? That would mean that the unsavory status quo would remain, pending further court determination. It would also mean that the people would be forced to watch while the UNP plays hide-and-seek with sovereignty and the people’s will (i.e. refuse to go for a General Election), and the Sirisena-Rajapaksa combine (or the forces they represent, individually) try to figure out how to deal with the arithmetic conundrum in Parliament.

In such a situation, the ‘out’ for the nation would, unfortunately, be predicated on one of three individuals (on account of the office they hold or believe they hold, and as leaders of political formations) taking a step back.

Sirisena, Wickremesinghe and Rajapaksa can all decide to blink. Whoever blinks would confer the initiative to the political other (of this moment). Sirisena stands to lose all if he steps back and reinstates Wickremesinghe. Wickremesinghe and the UNP will lose so much initiative that it would cripple whatever hope remains of clinching a General Election. Rajapaksa alone can step back, give the edge to the UNP momentarily and still retain enough clout to score a decisive election victory. He has the language, the pulse of the people and the political sense to give a bit of ground and immediately recover lost ground with interest. It is easy to stick to guns and insist it is done for the love of the country and the people. It is harder to say ‘I am not going to be party to a tug-o-war where country and people are used as a rope — I will let go.’

In the long run, however, the entire nation must revisit the discourse of constitution-making. It has to be a serious matter and not the frivolous exercise it has been since 1978. Lawmakers must understand that it is not a means to tide over a difficult moment. The worth of a proposal has to be assessed not in terms of whether or not one likes (or dislikes) the immediate beneficiary but how one would feel if someone considered despicable were to benefit. For example 19th was flawed but the UNP went along because of the benefits. The political silliness of betting it all on Sirisena’s goodwill alone should be enough to disqualify that party from the right to govern this country — they are far too sophomoric for the serious business of governance. The same goes for the SLFP and the newly formed Sri Lanka Podujana Peramuna (SLPP) because their representatives voted for this same amendment.

The entire saga has thrown up one redeeming factor. The people are far more mature than their representatives. They’ve been patient. They’ve watched with dismay and disgust. It is not imprudent to believe that they are waiting for their moment. That is a court decision too. It is, in a way, a SUPREME court decision. That case cannot be postponed forever.

Malinda Seneviratne

I am a journalist, political commentator and a chess enthusiast. I was educated at the University of Peradeniya, Harvard University, University of Southern California and Cornell University and live in and work from Kottawa, Sri Lanka.