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Searching for loopholes in the 19th Amendment:

Gambling on ambiguities

The 19th Amendment passed by the Parliament of Sri Lanka in 2015 has become the talking point in the country. The main reason for this is the manner in which Article 4.2 of the said amendment has been interpreted by the so-called legal luminaries supporting Mahinda Rajapaksa.

According to them, the Article 4.2 of the amendment, which clearly states that no person who has been twice elected to the office of President by the people, shall be qualified thereafter to be elected to such office by the people is not applicable to Mahinda Rajapaksa. They make this claim on the basis that this does not apply to former presidents but only to the Presidents who was or will be elected after the amendment was passed. The Rajapaksa supporters, therefore, state that the former President can contest for the Presidency again without a legal hindrance or barrier.

When one looks at the argument made by the Rajapaksa supporters, it becomes clear that they make it on the basis of promoting one individual in the hope of regaining power. Further, their whole analysis purely revolves around Mahinda Rajapaksa and nothing else. Hence, a pertinent question one must ask here is whether the Constitution and its legal provisions can be or should be interpreted to promote and satiate one person (or the Rajapaksa supporters) political ambitions.

When we analyse this situation, it becomes evident that it is a political fraud exercise to interpret the Constitution by looking at the 19th Amendment alone by personalising it to Mahinda Rajapaksa. From a political point of view, the 19th Amendment should not be looked at or analysed in such a vacuum but should be analysed in line with the constitutional and political developments which led to it. Hence, the legal framework of the Constitution of 1978, the 17th Amendment to the Constitution made in 2001, the 18th Amendment to the Constitution done in 2015 should all be analysed when trying to understand the context in which the 19th Amendment to the Constitution was brought about.

Democratic governance

Constitutionalism i.e. the governance of the state according to the legal provisions set forth by the Constitution is an important condition for democratic governance. Governance without a Constitution obviously falls into the realm of autocracy or an autocratic rule. But having a Constitution merely does not make a state democratic as it can be easily formulated in a manner to function autocratically under the guise of democracy. Such constitutions become juxtapositions to both democratic governance and constitutionalism and the 1978 Constitution of Sri Lanka is a prime example of such.

The Constitution of 1978 established a presidential system of governance within Sri Lanka and the creator of that constitution, J R Jayewardene introduced this system by stating that it would promote political stability and accelerate economic development of the state. Jayewardene believed that a politically stable government can be brought forth only by establishing a powerful and strong executive.

He then created the world’s most powerful executive presidency and used incorporated several constitutional decorations mirroring ‘checks’ to cover up the undemocratic authoritativeness of it. Some such notable elements brought forth to make it rhetorically democratic were the ability given to the people to elect the President every six years, limiting the ability of a person to hold the office only twice, making the President responsible for the execution of his duties to the parliament and if the President is guilty of a wrongdoing, giving the parliament the power to impeach him/her. But in practice, several years after its establishment, it became quite clear that the Executive Presidency of this country is an absolute authoritarian and autocratic system built upon the guise of democracy.

In addition to this, it became evident that the state was moving towards a dangerous autocratic form of rule and that the principles of accelerating economic growth and providing political stability were mere rhetoric used to gain political leverage in justifying the establishment of such a dangerous system.

Two major reasons paved the way for this. One reason was that the systems established to check the powers of the executive were not powerful enough in reality to check the vast executive, legislative and judicial powers enjoyed by the President. Thus, they were pragmatically and practically ineffective. Especially, the notion that the President is responsible to the parliament and that h/she can be removed from an impeachment is absolute a constitutional decoration with no real practical application or value.

Executive powers

The only effective ones out of the checks imposed on the President were the clauses which restricted the term to two times and the ability of the people to elect the President every six years. Leaving these aside, the President was kept about the rule of law and was not under it thereby giving the executive more space to function autocratically.

Thus, the 19th Amendment then is a culmination in the rise of the democratic forces against this autocratic model which functioned under the guise of democracy. But the struggle for democratising this started 17 years before in 2001 with the 17th Amendment to the Constitution. The main purpose of the 17th Amendment was to remove the power granted by the Constitution to the President which allowed him/her to make appointments to high government posts on personal preference.

The 17th Amendment to the Constitution established a Constitutional Council and the members of the Police Commission, Elections Commission, Public Service Commission, Human Rights Commission, the Commission to Investigate Bribery and Corruption and the Delimitation Commission could only be appointed on the recommendation of the said Constitutional Council. In addition, the President could appoint the Chief Justice of the Supreme Court and other judges, the president of the Court of Appeal and other judges, members of the Judicial Service Commission, the Attorney General, Auditor General, Inspector General of the Police, the Ombudsman and the Secretary General of the Parliament only after the recommendation of the Constitutional Council.

17th Amendment

The 17th Amendment to the Constitution gave wider powers to the Public Service Commission and the Judicial Service Commission whilst establishing two new commissions in relation to elections and the police service. Hence, the 17th Amendment laid the foundation to curb and curtail the authoritativeness of the executive president, therefore, making it a bit more democratic.

The 18th Amendment to the Constitution was brought forth by the then President Mahinda Rajapaksa with the support of his cahoots and henchmen. It was passed on September 8, 2010, where 161 members of the parliament voted in favour of it while 17 voted against it. Forty-six members were absent and hence, the amendment was passed in the parliament with a two thirds majority. President Rajapaksa, by bringing forth the 18th Amendment to the Constitution, managed to absolutely overturn the steps taken by the 17th Amendment in making the executive president more democratic and made the office of the President into an absolute autocracy again.

The 18th Amendment brought about three major changes to the constitution. Firstly, the restriction on the number of times one can be elected as the President was taken out and provisions were brought forth to allow a person to contest for the Presidency for any amount of time.

Independent commissions

Secondly, the independent Constitutional Council was abolished and a Parliamentary Council which could be directly controlled according to the whims and fancies of the President was established.

This again gave the president the absolute power to appoint people to high positions in the government service on his/her personal preference.

Thirdly and finally, the 18th Amendment drastically reduced the powers of all the independent commissions thus destroying the original intent on which they were established. By enacting such changes, Mahinda Rajapaksa made the already autocratic model into one mirroring an autocratic monarchical model thereby destroying all the notions of democratic governance.

The 19th Amendment to the Constitution made in 2015 was solely brought forth to bring back the office of the executive president under the auspice of democratic principles and reverse the damage done to democracy by the Rajapaksa regime.

The amendment brought back the clause stating that a person can be elected into the office of the president only twice.

It then reduced the tenure of the President from six years to five and stated that a person has to be 35 years of age or above that to contest for the Presidential election. It reestablished the Constitutional Council and revitalized the independent commissions and further reduced the absolute power the president had in relation to the parliament and the Cabinet of ministers. It becomes clear when we look at the 19th Amendment that its sole purpose was to curtail an autocratic ruler like former President Mahinda Rajapaksa from coming to power again within this state.

Today, the Rajapaksa cahoots and henchmen are trying their best to bring back Mahinda Rajapaksa into power again and reverse the democratic achievements and rule brought forth by Prime Minister Ranil Wickremesinghe and President Maithripala Sirisena.

Rajapaksa supporters

Their sole hope is to go back to a feudal type of autocratic monarchical rule which is far detached from modern democratic principles of governance.

Hence, this is why they are trying their level best to interpret the 19th Amendment in such a manner and promote that fraud notion among the masses.

If the Rajapaksa supporters are real admirers and followers of democracy as they preach on a daily basis, what they should do is to interpret the 19th Amendment made to the Constitution by placing it in this wider socio-political context and not look for loopholes and interpret it in a wrong manner. Therefore, whoever looks for loopholes in the 19th Amendment is an archenemy of democracy and an absolute enemy of the open society.

(The writer is a former Professor, Department of Political Science, University of Peradeniya)



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