No reason to make changes to the 19th Amendment

Probably the most contentious aspect of the 1978 Constitution was the institution of the Executive Presidency, which concentrated power in one individual as opposed to collective decision making which is the characteristic of a Parliamentary form of Government.

Farsighted politicians like Sirimavo Bandaranaike, NM Perera and Colvin R de Silva pointed out the dangers of an Executive Presidency long before it was installed in the statute books. Presidents Chandrika Bandaranaike Kumaratunga, Mahinda Rajapaksa and Maithripala Sirisena all pledged to abolish the Executive Presidency, but for diverse reasons could not implement their promises and the Executive Presidency, albeit in diluted form, still remains a part of the Constitutional architecture of the country.

The demerits of the Executive Presidency have been discussed and debated ad nauseum and need not be discussed in detail once again. The raison d’etre of the Executive Presidency, as articulated by its architect President JR Jayewardene, is to ensure that it is not subject to the whims and fancies of Parliament (read not subject to the views and concerns of the people as expressed through their representatives in Parliament) which, on the face of it, is against the tenets of democratic governance.

Another aspect, that is often lost sight of, is that the decision-making process of an Executive President is never transparent. All Executive Presidents have unseen advisors, both official and unofficial, who influence him/her to take decisions for which they are not accountable, but could leave the President who acted on such advice to face uncomfortable situations.

In contrast, under a Parliamentary form of Government, it is the Cabinet which takes such a decision and the individuals (Ministers) concerned are collectively accountable.

One recent instance of such a Presidential decision will serve to illustrate this point. The media announced that President Gotabaya Rajapaksa had decided to grant a daily wage of Rs1,000 to plantation workers. It was after the announcement of such a wage rise that all the economic ramifications of such a decision came to light, with the Employers' Federation expressing concerns about the ability of the Plantation Companies to pay such increased wages.

The impact of such a wage increase on the tea trade, as well as the fact that there were already collective agreements which covered the matter, and the consequent legal issues that may arise seem to have been lost sight of.

If such a decision was made under a Cabinet-driven Parliamentary form of Government it would have at the least benefited from a Cabinet paper which would inform the Cabinet of all the implications of such a decision.

The 19th Amendment, which is the current subject of discussion, originated in the pledge given by President Maithripala Sirisena to abolish the Executive Presidency in the event of being elected to office. The 19th Amendment in its original form when presented to Parliament contained provisions to abolish the Executive Presidency, make the Prime Minster the Head of Government and set up the Independent Commissions. However, President Maithripala Sirisena himself would continue as President until the end of his term.

When the 19th Amendment went before the Supreme Court for pre- enactment review, the Court determined that some of the provisions in the Constitution required a referendum, in addition to a two thirds majority, if it was to become law. The Government thereafter decided to proceed only with the provisions that did not require a referendum.

The 19th Amendment, as enacted, helped to create the framework for a more democratic structure of governance. The changes made helped to create the space necessary for the police, the public officers and the judiciary to act independently and free of political interference. However, whether the space available for the exercise of such independence is utilised depends on the mettle and integrity of the individuals manning these services.

The actions of Parliamentarian Ranjan Ramanayake in talking to Members of the Judiciary does not in any way negate the fact that the 19th Amendment did in no small measure strengthen the independence of the judiciary. Ranjan Ramanayake would probably have spoken to judges with or without the 19th Amendment being in existence.

Many (not all) politicians themselves do not quite comprehend the thinking behind the setting up of the Independent Commissions. An example of this is the conduct of a very senior politician who several years ago congratulated an individual who was appointed a Member of the National Police Commission with the remark “at last we can get a transfer done” forgetting, or not realising, that it was to prevent such political interference that the Independent Commissions were set up.

The tug-of-war between the two components of the Yahapalana Government during the latter years of its tenure were not due to any inherent defect in the 19th Amendment but due to the political differences between President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe which were accentuated during that period.

The 19th Amendment was only an interim measure until the Executive Presidency was abolished after the following General Elections.

It is not yet clear as to what the nature of the changes the present Government intends making to the 19th Amendment. Last week when Prime Minister Mahinda Rajapaksa was questioned on this matter by a journalist, he stated that they would indicate what they proposed after the General Elections.

If one were to speculate, the proposed amendments could transfer all the remaining executive powers from the President to the Prime Minister. This would dis-empower

President Gotabaya Rajapaksa and make him a nominal President and empower Prime Minster Mahinda Rajapaksa and make him Head of Government. In the alternative, all the powers removed by the 19th Amendment could be restored to the President which would make him all powerful and “not subject to the whims and fancies of Parliament” while such a change would render Prime Minister Mahinda Rajapaksa without “even the powers of a peon” ( to use the words of President Ranasinghe Premadasa).

However, there is no real need for a change in the provisions of the 19th Amendment unless it is specifically for one of the two above mentioned objectives. Even if life continues under the present provisions of the 19th Amendment there is hardly the likelihood of any clashes between President Gotabaya Rajapaksa and Mahinda Rajapaksa as happened between President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe.

Both the President and Prime Minster are from the same political formation and are brothers and can sort out any potential differences in a fraternal way.

Effective Governance can therefore be carried out without any changes to the 19th Amendment and there is no valid reason to think otherwise. (javidyusuf@gmail.com)