Throwing the baby with bath-water?

By N Sathiya Moorthy

Independent of political positions and posturing, there is an urgent need to amend, or even do away with the controversial 19-A, which has done more of proven harms than listable good to the nation and its populace. This however does not mean that the Government’s current talk of amending 19-A has to be clubbed or confused with private member’s draft for a 21st and 22nd constitutional amendments.

It is anybody’s guess if UNP rebel and veteran lawyer, Wijedasa Rajapakse has the blessing of the Gota presidency or is he fronting for them, if only to ensure that the mainline Opposition party and its allies do not throw the baby with the bathwater. If instead some of his controversial propositions are to be used as negotiation chips, then it can go only thus far.

For instance, any serious discourse or debate into the 21-A draft provision for upping the minimum vote-share requirement for ‘minor parties’ from the existing five per cent to 12.5 per cent has the danger of someone taking it up now or a much later date, seeking to institutionalise the same. On a bad day for the nation, they could just end up doing it.

Such a constitutional amendment, if enacted, could well end up proving to the world and to the nation’s Tamil community, that they are precisely the ‘second class’ citizens that they are already. It could drive the wedge even more into the hearts of the Muslim and Upcountry Tamil communities, which has been feeling even more deprived at present. In unpredictable times, their own ethnic reactions could be something that post-war Sri Lanka could still do without, now and ever.

Fraught with danger

Then, there is the question of ‘minor’ parties from within the majority Sinhala community. The JVP’s fears in this regard are for real. After walking out of the SLFP-UPFA after helping Mahinda Rajapaksa in power in Elections-2005 and finding their grassroots-level votes going to the former in the nation-wide local government polls in just four months, the party had little option to devise ways to part company. They chose the war-time for the purpose, and they have come a cropper since.

Yet, the JVP has managed around five per cent vote-share in parliamentary elections, winning around five seats, since then. In the recent presidential polls last year, JVP boss Anura Kumara Dissanayake got 3.5-per cent vote-share, belying some pre-poll predictions that put the figure at double this one.. Despite the previous government delaying the local government elections for no honest reason, the party can expect to poll slightly a higher vote-share, than the expected parliamentary poll figure, independent of the seats and mayoral posts that it may win.

Any efforts at wiping out JVP electorally is fraught with national calamity, which the ‘Big Two’, now three, starting with the Rajapaksas’ SLPP, followed by the Opposition UNP and weakened parent, SLFP, do know – and acknowledge in internal discussions. Years after being mutilated by the State’s military power – and for very good reasons – the JVP still provides the drain for the Sri Lankan State’s unfulfilled aspirations of the forgotten sections of the rural masses.

Upsetting the apple-cart could well leave those sections in the kind of desperation that had facilitated the cause and need for the JVP in the first place, as and when it happened. Post-Independence, the nation’s GoP was still living in the past, incapable of readjusting to the inherited realities of the nation. Barring the most controversial of ‘em all in the ‘Sinhala Only’ law, the breakaway SLFP’ Governments did more of window-dressing of the ‘estate nationalisation’, that cost jobs for the ranks that they were sworn to protect and also sending ‘raid terrorism’ of the economic kind, chilling the investor-class to their last bone marrow.

The militant JVP was the product of it all. The success of the JVP mission  from the sixties through the eighties with a period of perceived dormancy after the quelling of the ‘first insurgency’ in 1971, to be revived years later in 1987, meant that the ‘Big Two’ had conclusively failed the nation’s back-bone constituency. Their numbers may have dwindles for the present-day JVP, but there is still the unfed aspirational class within the rural Sinhala poor – and the truncated, post-militant avatar has provided them with a voice.

Continuing boycott

Unless the Government, this or anyone in its place, wants to keep the armed forces alive (from post-war boredom) and active in newer ways that the newer generation of disgruntled youth of all ethnicities and hues, who too can do with a reason and justification, upping the ‘vote-share requirement’ for their parties is not the answer. Such provisions are partisan, racist and can one feed the argument that the Sinhala-Buddhist community is the ‘majority community with a minority psyche’.

Whatever may have been past perceptions in this regard, the presidential poll victory of incumbent Gota Rajapaksa has proved them wrong. The Gota victory was achieved through mostly majority Sinhala votes to the near-exclusion of the SLT and Muslim votes and a limited share of the Upcountry Tamil votes. This is also what President Gota said after assuming office, that he won on the Sinhala votes, and he cannot violate his mandate.

Either in the thick of the moment, he did not convey himself adequately, or the other side has mischievously misinterpreted him, or both. The version doing the rounds is that he had sent out a message to the Tamils that he would not address their political concerns of power-sharing and the like. The unsaid reason, according to the Gota critics on the matter, is his reference to the ‘Sinhala Only’ vote that has made him President.

The right interpretation, as the Gota camp has since begun explaining, especially on the Tamil media channel, is that he could not ignore or overlook the genuine concerns of the majority community, which alone had placed their trust in him. In the absence of ‘minority mandate’, too, (a la Chandrika-Bandaranaike Kumaratunga, circa 1994?), he could do it for them, only if the TNA came in for discussions with his Government instead of continuing to boycott him, post-poll, too.

Better sense since seems to have prevailed on all sides, and the TNA has since said that they are willing to talk to this Government and the nation’s elected leader. Yet, they need to refine their methods by not continuing to say something for their constituency and the international under-writers to hear, and another for the Sri Lankan State, like the LTTE did, like the late S J V Chelvanayagam did.

Post-war, the Sri Lankan State has no patience for such double-talk. In the social media era, both messages get carried to the Government’s Sinhala constituency, too, and various versions of them, and memes on them. The TNA should also acknowledge that despite claims to the contrary, they cannot seek to wear the ‘mantle’ of ‘sole representative’ of the Tamils’ elected leadership. It is such mention that keeps reminding the Rajapaksas that they (too) are the ‘sole representatives’ of the majority Sinhala community, the very same way. The twine, then, shall not meet.

Deceived, discredited

None of it absolves the nation of the responsibility to take a close relook at 19-A, which made a mockery of the previous government’s promises ahead of the 2015 presidential polls. It was both a deception and ‘constitutional fraud’ of the kind, as what was offered was not what was promised. What more, the final product, as it stands now, has discredited the nation as a whole, the Amendment having targeted a particular family, as if to the last ‘child’ in the row for presidential possibility, as if were an extension of the Biblical story, where all male children were directed to be executed.

First, the Sirisena-Wickremesinghe poll plank promised the end of Executive Presidency, for good, within the first 100 years of their assuming office, if elected. Fair enough, they may not have been able to obtain the two-thirds parliamentary majority if they had done anything other than what they ended up proposing and passing, if it were to be the wholesale end to the Executive Presidency.

What however came out of 19-A was a political hotchpotch, aimed at pulling the rug over the eyes of the people who had voted on ending the ‘authoritarianism’ of incumbent President Mahinda Rajapaksa, starting with that of scheme-founder, the late J R Jayewardene. The two sets of two leaders came from opposite sections of the nation’s divided polity, and a committed commonality of purpose as evidenced in the 2015 poll campaign implied that they may at best retain the form but change the spirit of the existing institutional set-up. That was not to be.

Top-level appointments

Much has been made of the 19-A provision that took away the Executive’s power to make top-level appoints and entrusting the same in the hands of a select committee. It would have been easier instead to lay down the rules of recruitment, the need for a selection panel and making it all transparent, without even having to resort to a constitutional amendment of a flawed kind that anyway did not work when it needed to work.

It is the case of PujithJayasundara, the Inspector-General of Police (IGP), who was appointed by the 19-A panel, that needs looking into. Independent of what the Supreme Court might decide on pending cases, challenging action against him, his arrest since and then Defence Secretary Hemasiri Fernando, for failure to act on the Indian intelligence alert on last year’s ‘Easter Sunday serial blasts’, and their challenging their arrest on this score that exposes the 19-A provision in this matter.

As the Jayasundara case in particular has shown, because 19-A did not provide for it, then President Maithripala Sirisena could not sack him for his part of failure to act on the intelligence alert(s). In contrast, he could sack Secretary Fernando, whatever the ulterior, additional motives – like saving his own skin, and in the process, save that of his estranged Prime Minister Ranil Wickremesinghe, too.

It is a basic lesson in matters administrative that the appointing authority should have the inherent power to sack the appointee. In the absence of such powers vested in the appointing authority, the appointee could act at his own will and whims. This seems to have happened in the case of Jayasundara, who was made to (or, requested to ?) go on leave, for the Government of the day to appoint an Acting IG in his place, pending the Supreme Court’s final verdict.

There may be a just and unbiased reason for curtailing the powers of Executive President. But by deflecting the inherited flaws from the JR regime and fixing it all on the previous Rajapaksa regime (2005-15), the successor Government leaders may have done a great dis-service to the nation and its well-oiled administrative structure, by creating a scheme that is unworkable in times of dire needs. Was it also their intention?

It may thus be a good idea for the Opposition to work with this Government and try to re-write 19-A in ways that may make it functional and meaningful, too, without having to take away the legitimacy and credibility of the Presidency or the Executive, even otherwise. If nothing else, 19-A kind of scheme should have become unworkable, if one considered other provisions therein, whereby the powers of the Executive Presidency was sought to be passed on to the Prime Minister.

Even without amendments to the 19-A or its wholesale abrogation, the nation has enough to mull over. There is the long forgotten 12-A, which never saw the statute book. It is also the case with the JVP’s more recent 20-A draft, which did not pass muster, even from the then Government of National Unity (GNU), whose poll promise it very much was. Today, you have a lawyer-politician coming up with his 21-A and 22-A.

Where from here is the question, especially when the current Parliament has already suffocated its own creation, the Constitution Assembly. That is  mainly because the Government that proposed it all had absolutely no intent or interest in getting it through. It suited them, as also their outside TNA ally, to swear by it, both knowing full well, it was a non-starter.

The game is not yet over, the nation is waiting only for the next innings to commence – or, is it Act II, Scene I?

(The writer is a Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. Email: