24 October 2020

The forgotten 13th bears upon the 19th and 20th

Draconian. A plan for self-aggrandizement. The death of democracy. In violation of established parliamentary procedure. These are some of the terms and lines being used by those opposed to the 20th Amendment.

What’s funny is that most of the objectors played deaf-dumb when the 19th Amendment was brought in and were cosy with the executive presidency for decades or else supported the party that had absolutely no objection to it. For decades.

Ideally there should be balance between the executive, legislative and judicial branches of the state. The 1978 Constitution wrecked that balance. Ideally, then, any regime that has secured a two-thirds majority or is confident of getting the arithmetic right at voting time should go for a new constitution rather than fixing anomalies through amendments. This government is confident of the numbers obviously; otherwise it wouldn’t go for an amendment. Why then an amendment and not a new constitution is a question that the government needs to answer.

That said, if the discussion is about the merits and demerits of the 20th Amendment in terms of the fears/whines expressed by the politically compromised and/or regime-loyalists who throw in issues such as executive powers when in fact their objection is limited to the dual-citizenship issue, then we need to consider the 13th, 19th and 20th amendments together.

Why the 13th, one might ask. Well, of the 13th Amendment the following must be mentioned: illegally instituted, an example of abject cowardice on the part of the then regime and a necessary building block for the Eelam case. The one thing that stood in the way of the separatists was, ironically, the executive presidency. A weak obstacle, but nevertheless a spanner in the works.

The 19th, whether or not the architects and approvers appreciated the above, was in effect a blow that targeted this obstacle. We are referring to the pruning of executive powers here. Sure, it was an exercise to transfer power to the office of the prime minister. Personal/party agenda obviously blinded people to the dangers. That is, if indeed such issues were important to them. My hunch is they were clueless and didn’t care either.

However, the 19th, by diminishing the executive presidency, effectively laid the foundation for another push for separatism, perhaps in ‘happier’ overall conditions. Now a strong government where there’s no confusion regarding who is in charge, where there’s ‘the executive’ is not split between two political groups, there’s nothing to worry about, one can argue. One can also interject ‘what if we have a president who is in line with the separatist agenda and chooses not to exercise executive options?’ Yes, that’s a problem, but then again, it stands to reason that such an individual can only become president if the voters themselves are generally agreeable to a division of the country, a weakening of the state etc., etc., in their wisdom or ignorance, as the case may be.

As things stand, however, the focus should be on the role of the executive, the power vested in the office etc., in relation to the real dangers embedded in the 13th Amendment. This, in addition to correcting the hideous and obvious confusion caused by the 19th regarding the various residences of executive power, which, among other things, facilitated the Easter Sunday tragedy.

Of course, if one is for separatism this is not a problem, and indeed many of the objectives are fixated on devolution-beyond-the-13th (at least the NGO personalities making noises these days). It's not a position that the allegedly horror-stricken objectors in the Opposition articulate, however.

Is the President going to be vested with dictatorial power upon the possible passing of the 20th Amendment? That’s a question that must be addressed. The Supreme Court determination on the matter is clear. The Supreme Court has recommended an amendment to Clause 5 (which is about immunity for the president) that would allow for the people to invoke jurisdiction of the SC under Article 126, where there’s alleged violation or alleged imminent violation of a Fundamental Right due to an act of the President. The Government is now forced to incorporate this suggestion or else go for a referendum on the matter.

[That is if this government doesn’t do a yahapalana number with the Supreme Court determination; the yahapalanists, contravening all established procedure, made sweeping changes to the draft 19th Amendment. It was virtually a different document. Here’s an aside within the aside: those who talk of procedural impropriety today were dead silent back then.]

So, in other words, if the correction is made, in conjunction with the retaining of term limits, the executive presidency would revert to the pre-2010 status or less. Note, that back then, i.e. before the 18th Amendment was mulled, few if any had drastic issues with the executive presidency. There was some noise, but certainly no shouting.  Sarath Fonseka, for example, didn't talk of abolishing or pruning the executive presidency and neither did his backers at the time.

Back to the 13th. The 13th Amendment is about provincial councils, at least in the operationalization of it. Provincial council elections haven’t been held in years. No one seems to mind, not even the diehard devolutionists, not even the democracy-or-death types who wake up whenever their political darlings are in trouble. So, one can ask, ‘what’s the issue then; if we don’t have the PCs, then this business of weak powers or no powers for the president is a non-issue, surely?’

Well, the problem is in the fact that illegally enacted though it is, the 13th is a part of the constitution. If it goes, we could even do away with the executive presidency and perhaps return to a pre-1978 Westminster system of government. It hasn’t gone away. It is there. Sleeping, for now, but can be roused; if roused in a context where there is an impotent or crippled executive presidency, it would be a beast.  

the drafting of a new constitution could sort out the matter, of course, but those in the opposition who are opposed to the 20th Amendment haven’t uttered a word about such an exercise. Ideally, as mentioned, the government would just move to shelve the 20th and go for a new constitution. There’s talk of a new constitution six month from now, but that’s just whisper as opposed to the shout that is the 20th Amendment. In the here and now, it’s about the 20th and if ‘executive’ is the bone of contention, then those who want a chew of it should take a few licks at the 13th. Unless of course they are doing nothing more than petty politicking (at which they have considerable experience, let us note). 

[This article was first published on October 22, 2020]