When
constitutional amendments are proposed and they are made public in
draft form, there’s a general rule of thumb that can be employed to
figure out where one should stand, for or against. It goes like this:
you disregard whether or not you are generally in favor of the immediate
would-be beneficiary or beneficiaries in the political order; instead
you ask yourself a simple question, ‘what if <insert the name of a
political personality/party that you dislike/fear> was in power right
now?’
That’s my first comment on the proposed 20th Amendment and it is a general one. I’ll get to the specifics presently.
Speaking
generally, we have had 19 amendments to the Second Republican
Constitution (the JRJ Monster, if you will). The 13th had Indian
Hegemony written all over it. The 17th was not politician-friendly but
it had certain flaws. The rest were all about political conveniences;
they were designed to serve the interests of the particular regimes and
leaders thereof at the particular time.
The 20th is spoken of in
relation to the 19th, 18th and 17th amendments. Now many who voted for
the 17th also voted for the 18th and 19th and are likely to vote for the
20th when it comes up in Parliament shortly. Some have duly criticized
the previous amendment but none have been self-critical.
As for
the critics who are not career politicians, their behavior would be
hilarious if it didn’t smack of shameless political sycophancy. For
example, we had people criticizing the 19th who maintained a dead
silence about the 18th or else showered it with praise. Today we have
people calling the 20th a partisan piece of legislation but when the
19th came up they did not have the eyes to see regime-interest that was
scripted in. As for the 17th, few if any pointed out its flaws. When the
18th came up, they suddenly invoked various articles in the 17th and
said that only the defeat of the 18th would prevent the death of
democracy. The 17th was invoked when the 18th was dumped for the 19th,
principally on account of the rehabilitation of ‘independent
institutions.’
So what of the 20th (outside of politically and ideologically compromised criticism/critics)?
The most important elements of the 19th have remained: term limits for the president, length of term and the Right to Information Act. The CPA has noted this. Good. The CPA has, correctly, pointed out that wording related to ‘Urgent Bills’ can effectively impair pre-enactment review. This is dangerous. The shout, however, has been about independent institutions, with a compare-contrast of the composition of the Constitutional Council (19th) and the Parliamentary Council (20th).
Well,
the UN High Commissioner for Human Rights, Michelle Bachelet, has
expressed concerns. So has the Centre for Policy Alternatives (CPA).
It’s likely that Bachelet takes her cues from locals aligned with her
agenda, which is why she gets things twisted at every turn (e.g. the
Mannar mass graves). She may or may not have communicated with the CPA
before she penned her ‘Sri Lanka story’ for the UNHCR sessions currently
underway in Geneva, but it is likely that she was briefed by the
so-called ‘civil society’ in Colombo who suffer periodical myopia (when
the UNP is in power) and get hysterical when their darlings are in the
Opposition. We are not saying ‘OMG, something must be wrong if Bachelet
herself is worried!’
She believes that the 20th would negatively
impact the independence of key institutions. Not surprisingly, this is a
worry shared by the CPA (‘it abolishes the binding limitations on
presidential powers in relation to key appointments to independent
institutions through the pluralistic and deliberative process of the
Constitutional Council’). The CPA whines about the 20th ‘politicizing
institutions meant to functions independently of the political executive
and for the benefit of citizens.’
That last line is problematic.
It implies that politicians necessarily act against citizens’
interests, that it’s about benefit for self and not citizen. The regime
that midwifed the 19th did jack-all for the benefit of citizens (and the
citizens effectively said so on February 20, 2018, November 16, 2019
and August 5, 2020).
Now, the institutional arrangement, the
constitution and the political culture confer massive edge to
politician over citizen. Manifestos cease to matter after elections,
said Mangala Samaraweera (a good friend of Bachelet’s bosses in
Washington and a political ally of the CPA). Mandates are routinely
mangled and reinterpreted, a reality which backfired on the yahapalana
constitutional-tinkerers eventually. On the hand, people elect
representatives. They can elect them and they can throw them out of
power using the ballot. That’s a check, that’s a balance, ultimately.
That’s where accountability is actually obtained.
The problem is
the interim, the period between elections. This is where the
independence or otherwise of key institutions becomes an issue. The CPA
claim is that the Constitutional Council (under the 19th) had a
pluralistic and deliberative process in relation to key appointments to
independent institutions. The equivalent in the 20th (Parliamentary
Council), in contrast, the CPA claims ‘is a mere a rubber stamp of the
executive, with no genuine deliberative role envisaged for its members.’
It’s
all about composition. The Constitutional Council made a mockery of the
term ‘independent.’ The politicians were government-heavy (the
Parliamentary Council gives ruling part only a minimum edge of one) and
the civil society representatives were essentially buddies of the
regime — promoters, approvers, defenders and hosanna singers. As for
deliberation, you can talk until the cows come home, but what matters is
whether or not regime-interest prevailed. It did. Always.
Regime-loyalists were routinely penciled in when ‘independent’
commissioners were appointed. That’s rubber-stamping in cute form, but
rubber-stamping nonetheless. As such, the 20th is an improvement, simply
because every single member is answerable to the voter.
The
sameness obviously means that the issue of interim-accountability
remains unresolved by the 20th. The answer would have to be measures
that institutionalize meritocracy. Politicization post-independence
wrecked that. Amendments from the 17th to the 19th sought to go around
the problem. The 20th doesn’t resolve it.
The critics are upset
over the power of the President to dissolve Parliament after one year
(as opposed to four and half as per the 19th). In effect, dissolution
over frivolous reasons, are highly unlikely to create a
president-friendly parliament through elections. In all the years since
1978 when the one-year rule existed not once was it abused, one notes.
There
are concerns that the 20th removes the necessity for the President to
obtain the views/recommendations of the Prime Minister. What’s strangely
left out by the objectors is the fact that the President himself is
elected and by the entire country. The implication however is that
Parliament is representative and the President is not or is somehow a
representative of a lesser kind. This ‘concern’ is symptomatic of the
basic yahapalana malady that infects most anti-20th critics: the 19th,
for them, was a mechanism to empower Ranil Wickremesinghe (the man and
not the position) and cripple Maithripala Sirisena (both man and
position). We know how that particular experiment went (wrecking
sovereignty and re-inventing terrorism, e.g. Easter Sunday attacks by
Islamic Fundamentalists).
The yahapalana-drunk critics miss the point and offer nothing more than a distraction from constructive criticism.
The
20th, with regard to independence of key institutions, in composition
and (probable) effect is no better and no worse than the 19th. The
thinking-limits that produced the 19th and 20th need to be expanded to
resolve the problem these amendments claimed to attempt.
The
same goes for removing the limit on cabinet size. Wrong. Dead wrong.
Best to legislate by name a limited number of ministries. That could
hold. The yahapalana limitation was a farce thanks to the interjection
of the ‘national government clause (note: the UNHRC nor the CPA nor the
most vocal critics of the 20th have uttered a word about this).
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