Have the Rajapaksas blinked already on 20-A, or what?

By N Sathiya Moorthy

Multiple interpretations are available to President Gotabaya Rajapaksa’s reported decision to present a fresh draft of the 20th Amendment after the withdrawing the one gazetted since.

Questions arise if it reflects a purported weakening of the perceived haughtiness attributed to the Rajapaksas from the previous Mahinda presidency (2005-15), if at all, or if it is an expression of their openness to accept the public mood and suggestions on constitutional and administrative matters.

Independent of media claims by those that had interacted with the President in the days after the gazetting of the current draft, clear indications to the possibility emerged over the weekend, when Prime Minister Mahinda Rajapaksa set up a nine-member panel of the ruling SLPP combine. According to reports, the setting up of the committee flowed from discussions in the ruling combine’s parliamentary group meeting, where MPs expressed concerns over the transparency attending – or, not attending – on the gazette notification on 20-A.

The committee is headed by veteran constitutional expert and SLPP Chairman, Prof G L Peiris, now Education Minister. The members include another veteran Nimal Sirispala de Silva, representing the second largest partner, SLFP, and also other alliance-ministers, Wimal Weerawansa and Udaya Gammanpilla, both also of Cabinet rank. Justice Minister Ali Sabry and junior minister Viyalendran represent the minority Muslim and Tamil communities. Viyalendran was earlier in the TNA and crossed over at the height of the twin constitutional crises of end-2018.

The Rajapaksa initiative after the gazetting of the 20-A may owe to one or many factors. Clearly, they want to carry the people with them, and not get carried away as was alleged after the military elimination of the LTTE. Two, the Opposition parties, especially the SJB leader, have expressed themselves strongly against the attempts to restore the ‘Executive Powers’ of the President, taken away under the previous 19-A of the predecessor Government of the Sirisena-Wickremesinghe duo.

Earlier reports had indicated that the Government was ready to delay the presentation of 20-A and/or was willing to make changes at the Committee Stage in Parliament. The current indications are that by appointing an SLPP committee to review the draft, the Government may want to minimise, if not avoid, major changes at the Committee Stage in Parliament, and also avoid delays in its presentation. The SLPP committee may do it for the Government.

Damocles’ Sword

SJB’s Leader of the Opposition Sajith Premadasa was among the first ones to declare his support for 20-A before it was gazetted. Now, he has also become the focal-point of Opposition criticism of 20-A. He has clarified that he was all for upholding the supremacy of Buddhism and such other clauses, but was not in favour of restoring the powers of the President to sack the Prime Minister and dissolve Parliament any time sooner than the four-and-half year deadline, fixed under 19-A.

The 20-A seeks to restore the pre-19-A position of empowering the President to sack both the Prime Minister and Parliament, the latter any time after one year of the previous elections. It hung like a Damocles’ Sword over the head of the incumbent Prime Minister, and the Parliament that had elected him to the high office.

Obviously, President Maithripala Sirisena did not do his homework well, when he sacked Prime Minister Ranil Wickremesinghe when he sacked the latter in end-2018. It was possible that he was overawed by the position that Wickremesinghe had offered him in Elections-2015 – and was blinded when the latter placed the 19-A draft before him. It looked as if his aide and advisors, too, had not read 19-A, either at the time of its passage or when Sirisena decided to sack Wickremesinghe.

It is this experience of the nation with 19-A, which is believed to be a causative factor that led up to the ‘Easter blasts’ last year, which encouraged the Rajapaksas to restore some of what they saw as ‘vindictive provisions’ of 19-A. The criticism centred on the charge that the Government has thrown the baby with the bath-water, and some of the 19-A provisions, especially on the restored powers of the Executive President’ needed to be withdrawn.

Missed provision

It is a welcome feature of the current process that organisations identifying themselves as (Sinhala-Buddhist) ‘nationalist’ and support the Rajapaksas on most issues, too, have reservations on certain provisions of the proposed Amendment. Even within the SLPP-SLFP combine, and Gota Rajapaksas’s signature think-tank ‘Yuthukama’, too had expressed views contrary to those contained in the current draft.

At least one National List MP of the SLPP identified with Yuthukama, Gevindu Cumaratunga, has met President Rajapaksa and shared his views. Media reports said that a member of the President’s Committee on a new Constitution, Manohar de Silva, a leading lawyer, shared similar views. The ever-active Bar Council of Sri Lanka has already appointed a 14-member committee to study the 20-A draft and report back.

It’s equally likely that the Government leadership may not want diverse sections of the Opposition to use the 20-A platform to come together before they may have been ready for the same, otherwise. Upcountry Tamil leader Mano Ganesan, identifying otherwise with the SJB and Sajith Premadasa, was the first one to welcome the provision restoring the clause on dual citizenship for MPs.

The Sri Lanka Muslim Congress (SLMC), too, is said to be talking within itself, about supporting / joining the Government, if only for their elected MPs, to live up to the poll promises made to their constituents. As almost always in the past, the party seems to be divided between the legislative and organisational wings, over the issue. The party is yet to comment on 20-A, and an amended 20-A may be the clincher. If so, the question may then arise if the party would and could join the Government.

The TNA is too busy with itself, the internal divisions that are threatening to weaken the party more than already in the post-poll weeks. However, as if blowing a lone whistle. Alliance MP, M A Sumanthiran, was among the first to condemn 20-A, especially on the presidential powers that were sought to be restored – especially those pertaining to immunity from legal action against even after retirement.

However, there is one provision in the new draft that the TNA and other Tamil parties should have been interested in – but did not evince any. As ‘Sinhala nationalists’ have pointed out, the current 20-A draft has sought to delete Article 53, which aimed at ensuring that elected MPs did not promote or support ‘separatism’.

Maybe, Sumanthiran and others thought that it may have concerned the likes of C V Wigneswaran and Gajendra Kumar Ponnambalam, whom some Sinhala MPs, including those from the Opposition SJB, see as having crossed the invisible red line in their parliamentary speeches. Yet, neither the TNA, nor other Tamil MPs and parties could have been expected to continue looking the other way when someone from the Sinhala nationalist camp is talking about delaying the PC polls until a new Constitution is in place.

Possibly, given the parliamentary poll results, each one of them seems to have his own reason, to hope for delayed polls to the Northern Provincial Council. This is when Sumanthiran is publicly talking about  all of them having to come together and Wigneswaran is telling other Tamil parties that he was speaking also for them in Parliament – and that he alone was speaking….

(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: sathiyam54@nsathiyamoorthy.com)