Amending the Amendments

By N Sathiya Moorthy

Had it not been for the Covid19 pandemic, the upcoming parliamentary polls on Wednesday, 5 August, may have revolved around just two issues. There are more, like political stability, national security (post-Easter blasts) and of course the economy. They became settled issues with the presidential polls in November last. What needed (unending) debate pertains to impending constitutional amendments – or amendments specifically to Articles 19-A and 13-A, and in that order, in the perception of the ruling SLPP combine.

Time used to be when President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa used to talk about a new Constitution. But through the parliamentary poll campaign, they talked only about amending 19-A. Through the last fortnight, especially after the TNA came out with its election manifesto, reiterating the demand for a ‘federal solution’ to the ‘national problem’, PM Mahinda also began hitting out at the TNA, not necessarily the India-facilitated 13-A. Early on in his presidential career, President Gotabaya had declared that ‘some areas’ in 13-A could not be implemented and those concerned should come up with ‘alternatives’ – a clear notice to the TNA and the larger Tamil polity and society.

Covet operation

Truth be acknowledged at this distance in time, 19-A was a covet operation, aimed at stifling the Rajapaksas from contesting elections. The pill was sugar-coated for a sympathetic civil society by restoring Constitutional Council type of institutions, taken away by 18-A by the post-war Rajapaksa dispensation. At the time, the intention was to facilitate two-term President Mahinda to contest a third time.

TNA’s R Sampanthan was right then in pointing out that even if Mahinda, or anyone in his place got a third opportunity to contest, it was for the people to vote him in. Some saw it as an ambiguous position. Whether it had anything to do with the TNA’s continuing political negotiations with the Rajapaksa regime is unclear. Yet, the voters, especially his Tamil voters, along with the other minority, Muslims, proved Sampanthan right in 2015 presidential poll. Incumbent Mahinda R lost.

Yet, 19-A was more about reverting to the original two-term presidency for individuals, and denying Gotabaya Rajapaksa and younger Namal Rajapaksa a hit at the presidency. It banned dual citizens to contest the presidency (Gota R) and increased the minimum age for presidential contest, from 30 years to 35.

Such insecure were President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe even at the height of their twin poll victories of 2015. They were even less confident about retaining their votes and seats for their respective parties. They were proved right when successively, when Rajapaksas continued to retain their 40-per cent minimum vote-share, and Wickremesinghe-led undivided UNP’s share went down from perceived 35-40 per cent.

In the presidential polls last year, the unified UNP’s Sajith Premadasa’s 42 per cent vote-share. In this, the UNP’s share was 30 per cent or less. The rest came from the party’s allies in the Tamil, Muslim and sections of Upcountry Tamil voters, opposed to the Rajapaksas.

Division of power

Nothing explains the impracticality of certain 19-A provisions than conferring all powers for high-level recruitments in a committee, in which the President of the country does not have powers. It was a mockery instituted by 17-A and re-introduced by 19-A.

Whether it is President or the Prime Minister, who is the appointing authority, he should have powers to select the candidates. Anyway, such appointments are to be cleared by the Cabinet. The appointing authority should also have powers to sack the individual concerned – the courts are always there for resolving legal issues, if any.

Today, thus for more than a year, the nation is making to do with an ‘Acting IG’ after incumbent Pujith Jayasundara refused to yield, when asked to quit, owning up moral responsibility for the ‘Easter blasts’ on 21 April 2019. His petition challenging his humiliating arrest subsequently is pending before the Supreme Court.

Leave aside Jayasundara’s alleged failure in acting on intelligence provided by neighbouring India, the way he was sacked very clearly displayed more than meeting  moral or legal requirement. It came as close as possible to the predecessor Mahinda regime getting Chief Justice Shirani Bandaranaike.

More importantly, la affaire Jayasundara has very clearly exposed the inherent inadequacies inflicted on the administrative machinery by 19-A. Imagine a situation in which not just one top-level official but more had to be similarly dealt with, and you get a fuller, possible picture. Amen!

Power-sharing

There has been lot of talks and seminars on power-sharing between the Centre and the Provinces – and nothing has come out ot it after seven decades of Independence. But the so-called power-sharing between the President and the Prime Minister was pushed through under 19-A. There is no clarity or usefulness as the President continues to remain ‘Executive President’. He is the Head of State, and heads also the Government and the Cabinet, as always. The post-Easter blasts probe has also shown that incumbent Sirisena even shut out Prime Minister Wickremesinghe form the all-important National Security Council meetings, week after week.

In this regard, no explanation was sought or given. It is anybody’s guess why the eternally self-important Wickremesinghe let things drift and then use it to blame incumbent Sirisena for multiple failures that led to the blasts. Now with President Gotabaya in office, and Prime Minister Mahinda expected to return to power, it will be interesting and at times easier than it was five years earlier, for Brothers Rajapaksa to come up with a functional working model for power-sharing between the two high office-holders in the country.

‘Federal’ solution?

In its election manifesto, the TNA has reiterated its demand forgotten demand for a ‘federal’ solution to the national issue. PM Mahinda has taken it up in his campaign meetings in Sinhala South, to declare that the TNA was demanding through political means what the LTTE was demanding through militant/terrorist means.

PM Mahinda may have a point but reduced to a much focussed issue. Through the previous Government’s term, the TNA did not demand federalism. Instead, in the name of a new Constitution, which the rulers any way did not have any intention to implement, the TNA was trying to dissuade their Tamil constituency to give up the demand for a ‘federal’ solution, and came up with vague and varied explanation and defence.

It may be fair for the TNA now to demand early passage for the draft Constitution, as cleared under the previous Government. Even there the present-day rulers had clear and clearer differences, even then. They may flag it again, before coming to an acceptable solution. Then, it would have been for the TNA to convince their UNP and now breakaway SJB bed-fellows and bring them to the table. It is safe to conclude that the two, especially he who wins more seats between the two now in the parliamentary polls, will want to wriggle out of it all.

There are also ‘unworkable areas’ that President Gotabaya had mentioned earlier. One, of course, is re-merger of the North and the East. The Muslim parties from the East, leave alone their Sinhala counterparts, are not going to accept it. The CFA era split under ‘Col’ Karuna, in the monolith LTTE during the CFA era, also exposed the deep-seated social and sociological fissures in the Tamil communities in the North and the East.

A referendum on the question, as sought by the Tamils, means only referendum in the East, under the Provincial Council Act, 1987. The Tamils themselves take pride in underscoring the fact that it is the East that is merging in the North, and it is not a holy wedlock between two equals.

Then there is the ubiquitous ‘police’ powers, on which the Rajapaksas especially will have more worries in giving it away to the Provinces, especially a Tamil Province. The five-year Wigneswaran-led TNA administration in the North clearly showed that the Tamils cannot be entrusted with any administrative responsibility, leave aside police powers.

Through the five years in office, the TNA Ministers, starting with the former Supreme Court Justice Wigneswaran as Chief Minister – with some ex exceptions – displayed an utter lack of experience in political administration. That was after the TNA leadership was determined to induct veteran civil servants in their midst in positions where their experience and expertise (alone) could have made a difference.

Later, when Wigneswaran went berserk and sacked ministers, which the Supreme Court held was unconstitutional, the TNA leadership could not and did not intervene, to set matters right. This is not to mention, any number of anti-national acts and resolutions of individual TNA members of the Provincial Council and the party-majority House as a whole.

TNA members of the Constitution Steering Committee are on record that all seven southern Sinhala Chief Ministers met with them and demanded more powers for the Provinces, and there should hence be no problem for following up on the draft Constitution, in the new Parliament. Two Chief Ministers stayed away from those consultations – those of the East and the North. Yes, Wigneswaran, whose knowledge of law and Constitution, and whose own (limited) inexperience as Chief Minister could have added value, boycotted the proceedings. Such was his regard for a new Constitution, and respect for Parliament, on whose mandated alone the Steering Committee was acting!

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

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