Two-thirds, 19th and other oppositional anxieties

 

In the run up to the recently concluded parliamentary elections we saw grave concerns being expressed in  certain quarters over the possibility of the Sri Lanka Podujana Peramuna (SLPP) securing a two-thirds majority. Some even urged people to vote for any party other than the SLPP to prevent this. The (vain) hope was that the SLPP voters (say those who voted for Gotabaya Rajapaksa in November 2019) would do the 'cut nose to spite face' number. Didn't happen.

What happened, though? Well, the SLPP polled 6,853,693 (59.09%) in an election with a 75.89% voter turnout. When Gotabaya Rajapaksa polled 6,924,255 (52.25%) in November, 2019, the voter turn out was a notch higher (83.82%). The longed-for ‘strengthening of the opposition’ didn’t happen. Sajith Premadasa polled 5,564,239 votes (41.99%) in 2019 and his party, the Samagi Jana Balavegaya (SJB), got just 2,771,980 (23.90%) at the General Election just 9 months later. That’s a decline of close to three million votes.

The voters clearly weren’t listening to the doomsday prophets. The masses were the proverbial asses, in their minds, perhaps; they just didn’t get it. They’ll pay for this error one day, the prophets can console themselves. Crystal gazers are welcome to do their thing. Let’s consider the two-thirds ‘danger,’ so-called.

The election result has prompted people to talk of a dictatorship. Now that’s just a reflection of their outcome preferences not materializing. The people have voted. They’ve appreciated Gotabaya Rajapaksa’s performance, in a sense, and they’ve placed their trust in the SLPP. Elections weren’t rigged. Even the US Ambassador, whose preferences are no secret, acknowledged that ‘the people have spoken.’

So the SLPP and its political allies have the two-thirds majority necessary to amend the constitution. Historically, there have been three regimes that enjoyed such a majority. 

We had J.R. Jayewardene’s United National Party which won a five-sixths majority in 1977. That regime brought in a new constitution and used this majority to ring in more than a dozen amendments that were mostly partisan. 

Then we had the United People’s Freedom Alliance (UPFA) which got the numbers right in 2010 and went on to push the 18th Amendment, clearly designed to serve the interests of that coalition and in particular its leader, Mahinda Rajapaksa. 

The Yahapalanists got the numbers via mass defection and that’s how we got the 19th Amendment. Fortuitous circumstances opened a brief window of opportunity for the Janatha Vimukthi Peramuna (JVP) to push through the 17th Amendment in 2001. 

Compared to the antics of the UNP (1978 to 1989, the year it lost its two-thirds majority), the UPFA and the Yahapalanists, the 17th does stand out as a very positive development. It was the product of an anomalous situation which has slim chances of repetition.

So, yes, a two-thirds majority is not something that can be cheered when it comes to constitutional reform. What the SLPP will do with the power vested in that party by the people, democratically, we cannot predict. The noises we hear are about the 19th Amendment being amended or repealed. We’ll get to that.

First, let us be very clear that destruction is not the preserve of a regime with a two-thirds majority. President Ranasinge Premadasa enjoyed the two-thirds edge for less than two months (December 19, 1988 to February 15, 2018), and yet 1989 as a whole was the bloodiest year Sri Lanka has experienced post independence. Proxy arrests, vigilante groups, abductions, torture and extrajudicial killing including burning people alive was the order of the day. No two-thirds at the time.

As Charitha Herath, a new entrant to Parliament via the SLPP’s national list, pointed out recently, the worst destruction unleashed on the citizenry was the work of two organization that did not even have a parliamentary presence leave aside a two-thirds majority, the Liberation Tigers of Tamil Eelam (LTTE) and the JVP. 

There is a danger, obviously, but that’s all part of our system of representational democracy. The two-thirds majority was seen as an adequate safeguard. The architects of the Second Republican Constitution, analyzing election results since independence, concluded that ‘two-thirds’ would elude even the most popular political party/coalition. They hadn’t counted on a personality like Mahinda Rajapaksa. They couldn’t have predicted what the ending of a thirty-year struggle against terrorism could do. They never anticipated that a government made of set of incompetent and confused people zealously targeting the Sinhalese and Buddhists would provoke a backlash of the kind we saw on August 5, 2020.

Well, we now have a government with a two-thirds majority. Kalana Senaratne, writing less than a week before the election (July 30, 2020) in the website www.groundviews.org (‘The Last Days of the Nineteenth Amendment?’), seems to have had a sense of the electorate. Well, those who were expressing fears of a ‘two-thirds’ probably sensed it was possible, unless of course it was in their minds a convenient bogey which, they (vainly) hoped, would persuade the voter to lean towards parties/coalitions they favored.

Kalana’s is a poser. Last days? Perhaps.  Now Kalana claims the 19th was not an accident but was ‘a consequence of a conscious effort and decision taken by a series of stakeholders.’ He correctly points out that the section in parliament led by Mahinda Rajapaksa supported the amendment. The circumstances are of course dodgy; the vote was taken very late at night, but that doesn’t absolve anyone of the error of carelessness.  Then of course there's the fact that people can change their minds. That's allowed. One can support a certain position believing it is the 'most progressive' but later realize that this was a mistake. Ranil Wickremesinghe, one of the few survivors among those who voted for the 1978 constitution, for example, has openly stated that elements of that constitution need to be amended.

The 19th was an absolutely flawed amendment. The concerns of the Supreme Court were ignored. The notion of an ill-defined ‘national government’ was surreptitiously inserted to make the limit on cabinet size redundant. The split of powers between president and prime minister went against the grain of democratic representation, as did the composition of the Constitutional Council. There were positives, such as presidential term limits. There’s nothing to say that the babies will necessarily be thrown with the bath water in the event the 19th is amended. All that’s left to be seen.

Kalana ends with a mischievous observation. ‘If the Nineteenth Amendment had hands and feet, it would have already packed up. It would be standing at the gate. It would be ready to leave. In a country of fabulous political ironies, it may find that only Mahinda Rajapaksa could save it from here.’

The implication is that the 19th gives Mahinda, as Prime Minister, the powers for a ‘last hurrah.’ That’s of course speculation. We could also speculate (as the anti-Mahinda tribe frequently do) that it’s about a Rajapaksa dynasty, i.e. ‘from Mahinda to Gota to Namal (for now).’ If that’s the case, then Mahinda would obviously want his son to have a presidency that’s nothing like what Maithripala Sirisena held post-19th. Indeed, one can speculate that presidential hopefuls (e.g. Sajith Premadasa and Champika Ranawaka) are unlikely to be thrilled about ‘being another Maithri.’

Obviously those who mid-wifed the 19th into light would be sad to see it tossed into the constitutional dustbin. They would also be wary about what kind of creature that the people they love to hate (who, at worst are no worse than those they ‘love to love,’ by the way) will deliver.

Enlightened, people-friendly, far-seeing constitutional reform is nice to dream about. When those who talk that language also happen to be lackeys of those empowered to engineer constitutional reform, it doesn’t help. That’s the story of the 19th. It could be the story of its amendment as well. We will have to wait and see.

malindasenevi@gmail.com