14 September 2015

The 19th should be revisited

The Parliament.  Nice to look at.  What's inside is what's fishy.  Should we say 'Thank you JRJ'?
Much has been said of the jumbo cabinet of the Maithripala-Ranil Government and the choices made by the decision-makers.  There’s been hardly any cheering apart from the appointees and their supporters.  The leaders have to pick from those available, this is true.  However, it was they who nominated them in the first instance.  Maithripala Sirisena is clearly the bigger culprit here.  Revenge-intent and political expediency were clearly the overriding concerns for he made it possible to smuggle into parliament individuals rejected by the people and if this wasn’t bad enough gave them cabinet posts and other ministerial posts to boot.  

One might have thought that saner counsel would prevail in nominating people to the Constitutional Council, but no, two of the ‘civil society’ nominees are compromised on several counts.  Radhika Coomaraswamy, over and above her role in various anti-Sri Lanka moves including the attempt to have the pernicious R2P (Responsibility to Protect) mechanisms applied here, suffers from a serious integrity deficit.  She deliberately sat on a report of alleged human rights violations, perhaps in order to get Government clearance for a plum UN post. Worse, she claimed ‘she could not remember’.  All of this is in the public domain.  His pioneering work in Sarvodaya notwithstanding, Dr A T Ariyaratne is a mixed-bag.  In addition to the natural impediments of age, his preferences in appointments have raised questions about judgment.   

In addition, the integrity of other members, all Parliamentarians with some ex-officio appointments, will always be suspect given the now apparent slavishness to leader that is the price extracted for membership.  The 19th Amendment was flawed in this respect.  One has to be an optimist of the extreme kind to expect this lot to deliver something that can balance off the excessive powers of the Executive Presidency.  

Choice and suitability are, sadly, just surface issues here.  The bigger issue is the constitution itself and in particular the 19th Amendment, at least with respect to cabinet appointments.  

The 19th Amendment allows for a maximum of 30 Cabinet Ministers.  Forty more comprising of Deputy Ministers and State Ministers can be appointed.  If a single party/coalition obtains the minimum 113 seats for a majority, at least 42 will be just ordinary members (assuming that the 43rd would be the Speaker).  So more than one-third would be unhappy.  This was the norm way back when but things have changed; getting elected is not enough, people want ministries.  

A ‘national government’ solves the leaders’ problems.  He/she can say ‘have to accommodate guys from the other party, I am helpless’.  That’s a legitimate out.  Indeed, all MPs of the winning party can be given ministerial posts (19th Amendment 46(4), which allows Parliament to approve a number beyond the ’30’ legislated under 46(1)a and 46(1)b.  It would seem, then, that a less than 113 outcome is, paradoxically, necessary for the alleviation of that kind of headache.  Party leaders’ headaches however are their business.  Someone could say ‘It’s a good headache to have’.  

The problem with such an outcome is that the 19th Amendment does not allow for the kind of ‘national government’ Ranil and Maithri have put together. Article 46 (5) defines ‘National Government’: “A Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or the independent groups”.  It does not say ‘any other’, which would have made this Cabinet legitimate.  Of course neither does it say ‘all other’ (which would have made this Cabinet illegitimate).  The wording is vague and shows carelessness and incompetence.  

The common sense definition of ‘national’ as opposed to ‘coalition’ (which is what we have and which can be called anything, ‘Unity Government’, ‘Strange Bedfellows’ or ‘Colombo Knight Riders’) implies an all-encompassing entity.  There could be no ‘Opposition’ in such an arrangement.  

This brings us to the other examples of carelessness in the Amendment.  The Leader of the Opposition is mentioned but the appointment and removal are not clarified.  This was missing in the 1978 Constitution as well.  The current confusion in and about ‘the opposition’ has as much to do with Maithripala’s machinations as with constitutional flaw.  

As things stand, therefore, we can conclude that this jumbo cabinet’s principal problem is not size but legality.  There’s an at least 50-50 chance of it being illegal (court determination will be required and let’s not bet on that, shall we?).  

So what do we have?  A half-way legal set of ministers and deputy ministers whose other-than-constitutional legitimacy leaves much to be desired and a Constitutional Council of misfits and slaves to leaders' whims. We cannot expect statesmanship from them.  The 19th needs to be revisited.  The entire constitutional needs to be revisited.  And even if such were decided we have a bunch of nitwits doing the re-visitation.  Not a happy state of affairs, certainly.