Nineteenth Amendment created an environment for freedom to speak up

One of the most important criteria for the effective functioning of a democracy is the intervention of individual and professional groups to shape the discourse on national issues. To this must be added the pivotal role that the media is called upon to play in reporting facts accurately and providing a platform for diverse points of view that will enable the public to make informed decisions.

Such interventions and expressions of competing view points are greatly facilitated by the creation of an enabling environment that encourages citizens to speak out without fear or favour. It is in such a context that it is necessary to examine what impact the 19th Amendment to the Constitution had on creating a conducive atmosphere for the exercise of democratic freedoms.

There are many who express reservations on the usefulness of the 19th Amendment while there are others who condemn outright the 19th Amendment and attempt to lay the blame for some of the weaknesses of the previous administration on the Amendment which was enacted within the 100 days of the assumption of office of the

Yahapalana Government headed by President Maithripala Sirisena.

Such an argument ignores the situation that existed prior to January 8, 2015 where democratic freedom had been curtailed and the contrasting qualitative changes that occurred after the 19th Amendment was enacted. It also ignores the origin and history of the passage of the Amendment.

Two of the main objectives of the 19th Amendment was the abolition of the Executive Presidency as well as the setting up of the Independent Commissions. The Commissions were envisaged as a means of strengthening democracy by depoliticising the Public Service and the Police as well as strengthening the Administration of Justice by creating conditions for an independent Judiciary to function.

The abolition of the Executive Presidency could not be realised because the Supreme Court ruled that certain clauses dealing with such a change required a referendum in addition to a two thirds majority. The Yahapalana Government decided to pursue in Parliament only the provisions requiring a two third majority and excluded the clauses that required a referendum. This resulted in some powers of the Executive Presidency being transferred to the Prime Minister and Parliament while some powers of the Executive Presidency were reduced by setting up the Independent Commissions.

As a resulted of the decision to enact only some of the provisions in the original 19th Amendment Bill presented to Parliament, two centres of power were created namely the Executive President and the Prime Minister and Parliament. There was no problem in such a situation being created because it was still early days of the Yahapalana government and the relationship between President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe was cordial. It was only after the relationship between the two began to sour that the existence of the two power centres began to affect the quality of governance.

What needs to be done therefore is to build on the 19th Amendment and complete the process started by the 19th Amendment namely, abolishing the Executive Presidency. This will therefore transfer the governance of the country from one individual (the Executive President) to Parliament (comprising 225 representatives of the people). Based on the experience of the last four decades this would undoubtedly be a more sensible option that would strengthen the democratic process.

The positive impact that the 19th Amendment has had on Sri Lankan society is self evident and there for all to see. The Public Service, the Police and the Judiciary are exercising their independence with renewed vigour due to the enabling environment created by the above Constitutional Reforms.

There have been lapses, mainly due to individual weaknesses of those in charge of such institutions rather than failure of the system. Whatever system is created if the individuals in the system do not utilise the space created to exercise such independence there is little that can be done to reduce these lapses.

The case of Devanee Jayathilaka, the courageous young Forest Officer who did not hesitate to point out to Minister Sanath Nishantha the environmental issues surrounding the decision to construct a playground is one instance of an individual empowered by the enabling environment not fearing to speak out.

It is also true that one needs more voices to speak out and be heard. It is only through the clash of competing ideas that the common good can emerge. It is the lack of such voices that prompted UNP Parliamentarian and former Minister Eran Wickramaratne to lament the lack of courage in society and the failure to speak out.

In a hard hitting speech in Parliament last week he highlighted the plight of several individuals who had been victimised, and he said other professionals and peers of the victimised who had remained silent in the face of the such persecution were to blame as well.

“It is not just that the Government is targeting and persecuting professionals. That is the lesser crime. The greater crime is this – the peers of the persecuted stood silently and did not come to the defence of their comrades,” Mr Wickramaratne said.

“There was a time in Sri Lanka when the Government going after a journalist was enough to provoke an outcry in the media, through editorials and condemnation. I would like to ask the journalists: Are you unprincipled, or are you scared? Professionals whoever they are must be protected and allowed to do their jobs,” he added.

With the forthcoming Parliamentary Elections on the horizon citizens and civil society representatives have to be alert. The appeal for a two third majority for the Government at the Elections and as the call to amend the 19th Amendment portends danger for democracy. Unless they are vigilant the voters too can contribute to the destruction of democracy and the reversal of the democratic reforms of the Yahapalana Government.

( javidyusuf@gmail.com)