by Kishali Pinto Jayawardene
For those of us privileged, (if I may be forgiven the sarcasm), to witness the live Parliamentary telecast of Tuesday’s committee stage process on the 19th Amendment, the raucous scenes were beautifully illustrative of the mockery that passes for lawmaking in Sri Lanka today.
Arrogance and ill intent combined
For the first time perhaps, a sneaking sense of sympathy emerged for the minority United National Party (UNP) Government as it struggled hopelessly to push even through even basic clauses on good governance.
True, the Government had put itself in this besieged position at least partly due to its surreptitious efforts to insert amendments against the coalition consensus while keeping the entire process inexplicably secretive. If a different approach had been followed, it could have taken the moral high ground, brought the amendments before the people from the outset and swayed powerful public pressure against the naysayers.
Even so, this unseemly arrogance by the UNP was grandly trumped by the sheer ill intent of its opponents. Emboldened by its numbers in Parliament, the constituent parties of the United Peoples Freedom Alliance (including the Sri Lanka Freedom Party) proceeded to disgracefully bargain on virtually every constitutional point in issue.
Very much a ‘political’ Constitutional Council
The end result was an amendment which exemplified the power struggle between the two main parties and profoundly indicted them both as violating the public interest. What the 19th Amendment as finally approved primarily did was to return the country to a pre-18th Amendment stage, cutting out the monstrous additions imposed though a Rajapaksa dictatorial stupor. The restoration of presidential term limits, the restraint of presidential power in dissolving Parliament and the addition of new constitutional commissions need to be viewed within this context.
So Tuesday’s result was eventually not as far thinking as the 17th Amendment. The main progressive feature of the 17th Amendment was its non-political Constitutional Council (CC) tasked with overseeing appointments to commissions and public offices. The 19th Amendment, pushed through on the basis that ‘anything is better than nothing,’ lacks that basic progressive feature.
Who indeed wants a CC dominated by political agendas which is why we are in this right royal mess now? Who will be the men and women of eminence willing to serve on such a quarrelsome body with the real likelihood that decisions taken in the public interest will be undercut by political imperatives? Surely citizens are entitled to ask such valid questions? The Janatha Vimukthi Peramuna’s Anura Kumara Dissanayake summed it up best when he said that excessive jubilation was not really in order, regardless of what may be held out in the public realm.
Flexing their collective muscle
And of course, the quality of debate left much to be desired. One illustrative example was the utterly baffling petulance displayed by UPFA constituent partners in regard to revision of the constitutional provision relating to crossovers.
The original call had been for revision as a result of the judicial balance earlier preserved by the Supreme Court (SC) between the freedom of conscience of a member and the party constitution being cast to the four winds after 2000 with expulsions being routinely ruled as invalid. This allowed an MP to remain in Parliament even after leaving his or her party. After 2000, the SC looked for ‘extraordinary, urgent circumstances’ to outlaw an expulsion and later, even applied the ‘public good’ as a standard while inexplicably ruling that the ‘standard of review’ of an expulsion by a political party was on par with review of acts of a public authority.
What was proposed in the 19th Amendment was not even a drastic revision of Article 99(13) on the requests of those perturbed over the corrosive deterioration of party discipline. Rather, it was merely to add a clause keeping the jurisdiction of the SC still intact but clarifying that lower courts such as the District Court (DC) would have no jurisdiction in this regard so as to prevent ejected MPs running to the DC to obtain injunctions as had been the case.
But even this was objected to by UPFA MPs flexing their collective muscle. In so doing, the debate at committee stage descended into sheer idiocy at one point with a particular objecting (and objectionable) parliamentarian initially being completely unaware of what the constitutional revision actually proposed. Then, after being educated to that effect, all that he offered was a foolish grin and a weak complaint, woefully ignorantly meanwhile, that an MP’s right to go the DC must be preserved as the fees of lawyers in the SC are higher than in the DC. Yet the insistence by UPFA constituent partners on keeping an MP’s right of recourse to the lower courts eventually prevailed.
The President’s win and valuable lessons
In the final result, there are valuable lessons which the Government at least, should take away from this exercise. The first and most important home truth of all is to stand true to the peoples’ mandate in January 2015 without engaging in political game playing which reduces public sympathy and casts suspicion on even the most innocent of actions. Second, Sri Lankan voters do not expect a perfect Government. On the contrary, mistakes are expected to be made. However, it is the manner of coping with those mistakes that discloses the nature of the Government process, as was shown unfortunately to the negative in the alleged Central Bank bond scam. This should not be the precedent.
And the real winner in all this is President Maithripala Sirisena whose calm determination to reduce powers reposed in the Office which he occupies was starkly highlighted. This was the resolute determination which led to even these minimum reforms.
Yet as we watched narrow political agendas driving the process, we could only marvel in response. If this is what it takes to tackle basic problems in the 1978 Constitution, heaven help this country when dealing with far more complex issues of constitutionalism and protection of the Rule of Law that we necessarily must, in the months to come.
