Sri Lankans have been sent on a constitutional merry-go-round by its politicians. We say so because, this week the Supreme Court determined that the proposed 20th Amendment, advocated for by the Janatha Vimukthi Peramuna (JVP), had many clauses that were inconsistent with the Constitution and would therefore require approval by a two-thirds majority in Parliament as well as a referendum. That effectively means, the 20th Amendment is as good as dead.
The main theme underlying the 20th Amendment was reduction of the powers of the Executive Presidency. This was in fact what was promised by then common candidate Maithripala Sirisena in the lead up to the 2015 Presidential Election. That did occur to some extent. The 18th Amendment, introduced by Mahinda Rajapaksa’s Government, was replaced by the 19th Amendment. That change took away some important powers vested with the President: the President’s tenure of office was curtailed from six years to five, he had to appoint Cabinet Ministers in consultation with the Prime Minister, his ability to dissolve Parliament was curtailed and his powers to directly appoint high officials became subject to approval by the Constitutional Council. However, the President still retains vast powers.
This has been demonstrated in recent months, especially, when there have been differences of opinion between President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, with the President not hesitating to act, much to the chagrin of his United National Party (UNP) counterparts. The proposed 20th Amendment was far reaching. It proposed to elect the President, not by an election but through a simple majority in a secret ballot in Parliament. It also allowed Parliament to impeach the President by a simple majority.
In essence, it meant, the President would have to be at the mercy of Parliament and whether that is the best alternative to an omnipotent President is a moot point. In the aftermath of the 2015 elections, there was talk of constitutional reforms. There still is. The current Constitution is supposed to be replaced by another which has been proposed as one that offers more power sharing to all communities.
It was also envisaged that the abolition of the Executive Presidency would be incorporated into the proposed new Constitution, in consultation with all major political parties. That should have been easy. After all, the leaders of the two major political parties, President Sirisena and Prime Minister Ranil Wickremesinghe agree on the plan and so does the JVP and the Tamil National Alliance (TNA). Together, these parties command all but two seats in Parliament.
As we now know, however, such issues are never as simple as they seem. President Sirisena is unable to control a majority of his MPs who remain loyal to Rajapaksa; and the Constitutional reform project, although it still continues for appearances sake, is doomed. Now, with elections again looming in the not too distant future, it will not happen during the lifespan of this Parliament or this Presidency- and one does not need to be a ‘political scientist’ to predict that.
Aggrieved though they are, yet again, been led up the garden path by the major political parties, the JVP tried to pass the 20th Amendment to the current Constitution on its own. This week’s court decision means those plans are all but dead. There must be a sense of déjà vu for the JVP in all this. First, it was Chandrika Kumaratunga who promised them that she will abolish the Executive Presidency in the run up to the 1994 Presidential Election. In fact, she set a deadline to achieve this: July15, 1995. Based on her assurances, the JVP even withdrew its candidate, Nihal Galappaththi. The rest, as they say, is history: Not only did Kumaratunga not do as she promised, she ran again for President and only a Supreme Court ruling prevented her from staying an extra year in office.
At the end of Kumaratunga’s eleven years in office, it was Mahinda Rajapaksa’s turn to fool the JVP. Lest it be forgotten, in his original ‘Mahinda Chinthanaya’, Rajapaksa too promises to reduce the powers of the Executive Presidency. He did the exact opposite, introducing the 18th Amendment that strengthened the President, most notably by removing the two-term limit on an individual holding that office, changes which had to be undone by the 19th Amendment.
So, after twenty-five years of our Presidents promising to abolish the Executive Presidency, we are back where we started, albeit with some modifications to the Presidency introduced by the 19th Amendment. Ironically, this Constitution was introduced in 1978 by the UNP’s J. R. Jayewardene who analysed election results until then and surmised that on most occasions, the UNP won most of the popular votes even when it lost, and that it would therefore win most presidential contests. He has been proved wrong. Interestingly, it has been the three Presidents elected from the Sri Lanka Freedom Party (SLFP), Kumaratunga, Rajapaksa and President Sirisena who have all promised to abolish or significantly modify the Executive Presidency- but have all failed to do so.
In the seventy years since independence in 1948, Sri Lanka has had a Prime Ministerial system of government and a Westminster style first-past-the-post system of elections for the first thirty years. It was replaced by a presidential system of government and a proportional system of elections for the next forty years. When a prime ministerial system of government was in existence, governments were changed regularly, almost always, every five years. In the current system, the UNP ruled for the first seventeen years and the SLFP has been ruling for the last twenty-three, barring six years of coalition government when there has been- and there still is- an uneasy cohabitation between an SLFP President and a UNP Prime Minister.
The moral of the story is this: when in opposition, political parties claim that the Executive Presidency is evil and should be done away with. When they are returned to power, they all develop a convenient amnesia and behave as if the presidential system of government is the best.
The sooner the masses realise this charade, the better it is for all concerned- and we can all forget about abolishing the Executive Presidency for the next forty years, at least!