Groundviews

Defeating the Saboteurs: The 19th Amendment

Image courtesy President’s Office

Introducing the 19 Amendment Bill         

The 19A Bill was gazetted in March, after having obtained the approval of Cabinet. The Gazetted version did not go as far as the previous changes envisaged, due to disagreement from some quarters.

Subsequently, post-gazetting, Cabinet agreed to the inclusion of the further clauses.

The usual way of doing this, would have been to include those clauses as Committee Stage Amendments.

However, in an unprecedented move – and a move in keeping with the Government’s promise of democratic processes and good governance the Attorney General brought these envisaged Amendments to the Notice of the Supreme Court, and provided copies to the judges and all lawyers appearing in the 19A case (before the hearing started), so that the opinion of the Supreme Court would be obtained on those clauses as well.

The PM had also, on the very day the Bill was placed on the Order Paper, indicated to Parliament that changes were envisaged and would be proposed at Committee Stage.

Lawyers made submissions on the Bill and the envisaged amendments, in order that the Supreme Court would also be able to determine whether a referendum was required for the inclusion of those amendments as well. The judges posed numerous questions to counsel based on the gazetted Bill as well as the envisaged amendments.

The SC Determination and Subsequent Amendments

The Supreme Court Determination however, did not make specific reference to many of the intended amendments, and therefore the PM informed Cabinet and the Party Leaders that he would be ONLY presenting the gazetted 19th Amendment Bill for debate, and the only amendments he would propose would be those required in view of the SC Determination.

Party Leaders were informed of the amendments, i.e. those required to the proposed new Articles 42(3), 43(1), 43(3), 44(2), 44(3) and 44(5) which the SC held would require a referendum since they would make the PM the Head of Cabinet and permit him to perform certain functions such as determining the number and subjects of Ministers, without any involvement of the President.

It was ONLY those six proposed Articles (and one other relating to the Election Commission’s power), which the SC held required a referendum.

According to the SC determination, the approval of the people at a referendum was NOT required, for the clauses which required the President to act on the advise of the PM in appointing and removing Cabinet and Non-Cabinet Ministers and Deputy Ministers.

The Government thus proposed to use the same formulation and to amend those clauses by requiring the President to determine the number and functions of the Ministers on the advise of the PM.

Notwithstanding the fact that the said amendment would bring the said clause into conformity with the other clauses already approved by the SC, it appeared that those who were seeking to sabotage the Bill may have used this amendment as a ground to vote against the 19A (by saying the SC did not consider whether requiring the President to determine the number and functions of the Ministers on the advise of the PM required a referendum or not).

Thus, to leave minimal loopholes to be exploited by saboteurs, the Govt. announced that in respect of the 6 clauses held by the SC to require a referendum – the clauses would be withdrawn, and the existing 1978 constitution provision would remain in respect of those (i.e. the President would be the Head of Cabinet, and could decide on the number, subjects and functions of Ministers, and could if he wish, consult the PM in making that decision). Thus it could not be credibly claimed that the Bill required a referendum.

Postponing the Debate

The Debate scheduled for 21st and 22nd April 2015 did not proceed, although the UNP-TNA-DNA MPs were all in favour of proceeding with the debate, in view of a diversion in Parliament, with many UPFA MPs ‘protesting’ the ex-President being summoned to the Bribery Commission.

The Debate Commences, Sabotage Continues

The Debate was rescheduled for the 27th and 28th, by which time the 19A saboteur UPFA group had come up with new arguments to sabotage the passage of the 19A. They therefore proposed the following amendments, which, if adopted, would defeat the very spirit and purpose of the 19th Amendment, and would result in the 19A no longer reflecting the mandate for change given to the President at the recent Presidential elections.

The saboteurs argued (mainly) that:

This was notwithstanding the SC having held that the provisions relating to the composition CC (which were almost identical to those in the 17A) did not require a referendum AND the object of the CC being to depoliticize the independent commissions, public service and the judiciary.

This was notwithstanding the SC having held that the requirement that the President act on the ‘advise of the PM’ in appointing and removing Ministers, did NOT require a referendum AND the fact that if the UPFA proposal was followed, there would be no significant reduction of the President’s powers, and he would continue to control parliament (as they would not act as a ‘check’ on him – since he could ‘bribe’ them with Ministerial appointments!)

The position of the UPFA saboteurs was thus a clear indication that:

The not so ‘Left’ Leftists

MPs present at the Party Leader’s meetings commented that it was extremely disheartening to note that so-called ‘leftists’ such as Vasu and Dinesh Gunawardena were at the forefront of the agitation of the UPFA proposals – proposals which were clearly not in keeping with the pro-democracy approach of any genuine leftist.

Twisting the Truth

They were also shocked at the numerous misrepresentations of fact made by anti-19A MPs during their speeches in Parliament, which of course would have been for public consumption.

In particular gross misrepresentations which stood out were the claim by Faiszer Musthapha that the determination as a whole suggested that the clauses requiring the President in certain instances to act on the advise of the PMs required a referendum. As a lawyer, a President’s Counsel at that, he would surely know that in terms of article 123 of the Constitution the only provisions which require a referendum would be those that are specifically determined by the SC to require a referendum, and that after the SC has determined that only specific clauses require a referendum, one cannot suggest that the SC may have in fact meant otherwise.

Similarly one wonders whether Wimal Weerawansa was incapable of understanding the Bill, or whether he was intentionally misrepresenting the contents thereof, when he said that the 19A will permit the PM to continue until he dies or resigns, and that there is no provision for his removal. The 19A Bill specifically provides that the cabinet will be dissolved, and thus the PM lose office, if the Statement of Government Policy is defeated, if the Appropriation Bill is defeated, or if a no-confidence motion is passed. All of these only require a simple majority of Parliament.

Trying to break the Deadlock

Given the deadlock situation, and the inability to resolve issues even at meetings chaired by the President, the President called upon the pro-19A (UNP-TNA-DNA MPs) and anti-19A group to nominate 3 MPs each, to have a discussion as to how the issues could be resolved, and to discuss ALL outstanding concerns at this meeting.

Although the President invited G L Pieris, Vasu and Dinesh to represent the anti-19A group, they shied away. This reticence to attempt to achieve a compromise, by some of the most vociferous anti 19A group, raised some questions as to whether they were only interested in sabotaging the bill at all costs, and could not be defended before those that were fully aware of the actual clauses contained in the Bill.

Eventually the Pro-19A group consisted of Sumanthiran, Ajith Perera and Rauf Hakeen, while the Anti-19A group consisted of Faiszer Musthapha, Anura Yapa and Rajiva Wijesinha.

After much discussion on the evening of the 27th the outstanding issues once again boiled down to the same two issues. The composition of the CC, and the desire to remove the ‘on the advise of the PM’ clauses.

The pro-19A group then met the President and explained their position, to which the President had indicated agreement. After all, the clauses regarding the composition of the CC was approved by the SC, and was in keeping with the previous 17A formulation, and had in fact been a part of the Constitution since the enactment of the 17th Amendment, until it was done away with by the questionable 18th Amendment. Similarly, the ‘advise of the PM’ formulation was approved by the SC, and without it, there would be no significant reduction in the powers of the President.

Debate – Day 2: Deadlock Continues

Negotiations continued throughout the 28th, with the anti-19A UPFA faction spearheaded by Wimal-Vasu-Dinesh as well as GL, Faiszer and others determined to sabotage the passage of the 19A.

The PM as well as the TNA and JVP were steadfast in their resolve that the 19A must pass without too much dilution, since this was the mandate of the People.

A reluctant compromise

Finally at around 6pm on the 28th after talks held with the President and the PM, it was reluctantly agreed by the UNP-TNA-JVP to compromise on the composition of the CC, though not to the absurd extent proposed by the UPFA proposals. The CC would thus have 7 MPs instead of 3.

The Saboteurs Outwitted

The last compromise by the UNP-TNA-JVP leaders would have made the less extreme in the UPFA realize that they had no further grounds with which to sabotage the 19A. It became apparent that any such attempts would demonstrate the true intention behind their objections and would indicate a definite intention to act contrary to the mandate given by the People at the recently concluded Presidential Election. Further this would result in the People rejecting them at the General Election. The final nail appeared to have been driven into the saboteurs’ coffin!

With the moderates in the UPFA ‘converted’, the extremist saboteurs were defeated. They would be compelled to vote ‘aye’ to the 19A, or face the music at the forthcoming elections. IF anyone would grant them nominations, that is.

However, the saboteurs attempted once more to dilute certain other provisions of the 19A and raised further suggested ‘amendments’ at the Committee Stage – though such proposals were not made on the 27th, when the President had requested ALL outstanding issues to be discussed. This again was clear evidence of the lack of good faith in their suggesting these amendments.

The saboteurs’ attempt failed, with the exception of one further change – the provision which would prevent MPs seeking enjoining orders prior to disciplinary action being taken (and limiting the remedy to making an application to the Supreme Court) had to be withdrawn.

A Victory for Democracy

All in all, the UNP-TNA-DNA 19A proponents can consider the result a resounding victory they have achieved on behalf of all Sri Lankans. The Government of the day is a minority government. Even if the TNA and JVP members are counted in, it would still remain a minority government. Strategic planning to ensure that there was no room for any credible objections to the Bill on the ground that it required a referendum, coupled with principled and unwavering commitment to the 19A resulted in a sabotaging of the saboteurs’ plans!

The passage of the 19A, within the same term of the Parliament which passed the draconian 18A, is a victory for the minority government of President Sirisena and Premier Wickremasinghe, and a shining example of successful coalition government.

Almost laughably, but for the dishonesty of its content, is the statement supposedly made by Opposition Leader Nimal Siripala that the UNP had little commitment to the Bill, and was passed due to the commitment of the President. In fact the opposition leader, whatever his actual conviction on the Bill, was responsible for advocating the so-called UPFA proposals mentioned above, and did not take a tough pro-19A stand within the UPFA.

It was incumbent on the Opposition Leader to have given far greater support for the passage of the 19A, rather than seeking to advocate grossly unreasonable and anti-democratic proposals.

While President Sirisena was one of those heavily involved in the 19A, the UNP-DNA-TNA leaders were also equally, if not more responsible, in pushing through the 19A.

Of course, as a politician, one does understand that the Opposition Leader would now try to divert some of the kudos given to those who worked hard (especially the UNP-TNA-DNA leaders) towards bringing the 19th Amendment and to seek to take the credit for the passing of the said amendment, which was greatly appreciated by the general public. Sadly that, after all, is Sri Lankan politics.