Photo Courtesy of London School of Economics

“I don’t know whether the bird you are holding is dead or alive, but what I do know is that it is in your hands. It is in your hands.” Tony Morrison (Nobel Acceptance Speech)

The Rajapaksas are in a hurry. They have a constitution to make and a country to remake. Currently, the road to both destination seems as wide and as clear as a super-highway. Yet lurking beneath that conjunctural smoothness are structural ruts, with the potential to slow down and eventually unravel the Rajapaksa project.

The fissuring of the UNP was the earthquake that caused the SLPP’s tidal wave at the parliamentary election. Had the UNP remained undivided, the Rajapaksas would have won a just a simple majority.

The Rajapaksa support base has not grown between the presidential election of 2019 and the parliamentary election of 2020. In fact it has decreased by more than 70,500 votes.

Given the massive losses suffered by the opposition, this would seem insignificant, numerically and politically. But the trend does matter – Gotabaya Rajapaksa’s seven month rule has not succeeded in expanding the Rajapaksa support base.

A district-level breakdown provides a clearer picture. The SLPP’s vote count declined between 2019 and 2020 in 11 districts – Colombo (53,110), Gampaha (47,974), Galle (35,709), Kalutara (34.221), Matara (22.264), Puttalam (10,194), Ampara (9,046), Batticaloa (5,044),  Kurunegala (2313), Ratnapura (1,376), and Moneragala (629).

Of the 11 districts where the SLPP vote count increased, the three biggest boosters were Nuwara Eliya (55,261), Pollonnaruwa (33,507), and Badulla (33,327).

The distributional pattern in gains and losses indicates are instructive. Most of the Rajapaksa losses were in Sinhala-Buddhist majority districts. Their main gains resulted from the alliances the SLPP forged with other parties – notably the CWC (Nuwara Eliya and Badulla) and the SLFP (Pollonnaruwa, where former president Maithripala Sirisena topped the preference vote list).

The SLPP was able to transfer a national vote loss into a near two-thirds mandate thanks to the division of the UNP. Neither Ranil Wickremesinghe nor Sajith Premadasa seems to care that their leadership squabble is strengthening none but the Rajapaksas. The Rajapaksas know that. That – and the need to move before the economic crisis hits – is why they have hit the ground running, and will not cease their sprint until the new constitution is a done deal.

The first step in the journey towards the transformation of Sri Lanka into a familial state is the abolition of the 19th Amendment. That would concentrate more power in Gotabaya Rajapaksa’s hands and enable Basil Rajapaksa to enter the parliament via the National List (that was how he entered the parliament for the first time in 2007). By gutting the independent commissions, the judiciary can be rendered subservient to the executive and the country returned to a time of blatantly unfree, unfair and violent elections.

Though the removal of the 19th Amendment is inevitable, the opposition can give that move a free pass only at its own peril. The opposition needs to fight against the 20th Amendment in and outside parliament. It doesn’t have the votes to defeat the amendment, but it has a voice to expose and discredit it. It can also contain the worse of possible excesses by appealing to the judiciary. Most importantly, defending the gains of the 19th Amendment is a slogan, a goal that can unite the entire opposition. It is the place to begin the long, hard but necessary struggle to defeat Rajapaksa rule.

Mounting a spirited legal, political and propaganda struggle in defence of the 19th Amendment would also be a way for individual opposition parties to strengthen and extend their own bases. For the SJB it is a test to demonstrate its capacity to function as the main opposition party. For the JJB, it is a chance to show anti-Rajapaksa Lankans that it can lead a national struggle in defence of democracy. For the eviscerated UNP, it provides perhaps the last chance to regain life by winning back those voters who either stayed away or spoilt their votes out of disgust.

13th Amendment, a new constitution and a referendum

Gutting the 19th Amendment will make the president as powerful as he was between 2010 and 2015, but for Rajapaksa purposes this would not suffice. The old constitution has to go for two reasons. One is the need for a new electoral system which would enable the Rajapaksas to gain a massive majority in parliament even after their support base has eroded below the halfway mark.

The other is the need to get rid of the 13th Amendment.

If the existing constitution is replaced with a new constitution, the 13th Amendment will cease to exist. Just like that. This was what the UF government did in 1972. Since a Privy Council ruling in 1966 held Article 29 of the Soulbury Constitution guaranteeing minority rights to be an entrenched clause, the UF government turned the parliament into a constituent assembly and enacted a new constitution. As Sri Lanka’s preeminent historian Prof. KM de Silva pointed out, “To the SLFP, as the unabashed exponents of the Sinhala-Buddhist domination of the island, this would be ample justification for the formulation of a new constitution through a Constituent Assembly” (Sri Lanka/Ceylon – The New Republican Constitution).

The Gotabaya-Mahinda government is openly Sinhala-Buddhist supremacist. But that is not the only reason they’d want to get rid of the 13th Amendment. They’d want to get rid of the 13th Amendment because it is a bar to their power concentration and abuse.

The democratising aspects of the 13th Amendment are generally overlooked; not by the Rajapaksas though. It was the 13th Amendment that in 2012 prevented the Rajapaksas from enacting one of the most invidious and iniquitous piece of legislation ever attempted by a Lankan administration – the Town and Country Planning (Amendment) Bill popularly known as the Sacred Areas Act.

The Act consisted of 4 pages and 8 clauses and was drafted to give the Rajapaksas absolute control over every inch of private land. It empowered the Minister of Buddha Sasana and Religious Affairs to acquire any land or building by the simple expedient of affixing a label on it – as a protection area, a conservation area, an architectural or historic area or a sacred area. All it needed was a label and a gazette notification. The victim would have had no recourse to law.

The Rajapaksas had the majority in parliament and thought the Act was a done deal. But the CPA petitioned the Supreme Court, and a bench headed by CJ Shirani Bandaranayake ruled against the Act. Under the 13th Amendment, land is a devolved subject. The 13th Amendment clearly stipulates that legislation on devolved subjects needs the concurrence of all provincial councils.

The Act was already on the parliamentary order paper when the Supreme Court gave its ruling. The regime sent the Act to provincial councils for approval. It was seen as a mere formality because the Northern Provincial Council was in abeyance and all other councils were under UPFA control.

The North Central provincial council wanted time to discuss the act. The Eastern PC refused to approve it. Eventually the Rajapaksas were forced to withdraw the act.

The Rajapaksas know of the anti-authoritarian aspects of the 13th Amendment, through bitter experience. The new constitution will ensure the death of 13th Amendment, without the Rajapaksas having to make a special effort to kill it. To appease India and to provide their Tamils allies with a fig leaf, the Rajapaksas will keep the provincial council system as a mere shell. (Another advantage of a new constitution is the ability to write pet projects like the Sacred Areas Act into it).

Constitutionally, a new constitution cannot be enacted without a referendum. And that is where the Rajapaksas could be rendered vulnerable. A united opposition can make winning the referendum as costly as possible for the Rajapaksas. It can turn the referendum to galvanise the anti-Rajapaksa 47% of the populace, and to ensure that the Rajapaksas are battered and bruised to the point of impacting on the longevity of the regime.

2025 can become another 2015. And the first step in the journey constitutes of doing everything in our power to defend the 19th Amendment.

Will the Opposition oppose?

The day before the parliamentary election, Sub-Inspector Sugath Mohan Mendis made a statement before the Gampaha Magistrate Court alleging that the Colombo Crimes Division (CCD) pressured him to fabricate evidence against former CID Director Shani Abeysekara. The CCD threatened to jail him if he didn’t cooperate, he claimed.

SI Mendis refused to dishonour himself and the uniform. And he was arrested.

Just weeks before, Colombo Magistrate Ranga Dissanayake revealed in open court how the CID tried to fabricate evidence against detained lawyer Hejaaz Hisbullah.

No official investigation has been launched to probe these allegations of criminality on the CID and CCD officials. That is hardly surprising, since both Shani Abeysekara and Hejaaz Hisbullah are victims of a politically motivated witch hunt. What is surprising is that the opposition’s silence and inaction.

Now that the election is over, will the new opposition showcase these allegations in parliament and demand a debate?

In the North, land grabbing has already started. In Jaffna, on August 20th, the Navy tried to grab a 15 perch piece of land belonging to fisherman for a naval observation post. Popular resistance prevented the act, for now. But once the new constitution is in, with the provisions of the Sacred Areas Act written into it, such land grabbing anywhere in the country will become perfectly legal.

Is the opposition going to twiddle their collective thumbs until that disaster happens?

President Gotabaya claimed that the state ministries were structured based on the views of his Sangha Advisory Council. That probably explains the ludicrous nature of some of the ministries. There is also the placement of Christian, Hindu and Islamic religious affairs under the Ministry of Buddha Sasana, Religious and Cultural Affairs, with Sinhala Buddhist cabinet and state ministers.

The subject of Women and Children has been downgraded from a cabinet ministry to a state ministry and placed under education ministry thereby narrowing its scope. Its minister is a man of no distinction, and no discernible qualification to handle any of the subject areas. Other downgraded subjects include poverty alleviation (Samurdi) and social development. Information technology has been downgraded into non-existence.

The Defence Ministry has 23 institutions under its direct purview including the Department of Archaeology. The subject of Home Affairs too had been attached to the Defence Ministry, bringing under its control district and divisional secretariats (as well as the police). The new foreign secretary is a retired military man.

Militarisation has gathered pace. But this is militarisation with Rajapaksa characteristics. The military is being instrumentalised the same way Sinhala-Buddhist clergy are being instrumentalised. It is the Rajapaksas who are in control.

During 2005-2015 period, the various Rajapaksas started building their own fiefdoms, following a cooperation/competition mode. That process of parcelling out the state among brothers and sons has resumed in earnest, post-election. Gotabaya Rajapaksa controls defence. Economy is effectively under the control of Basil Rajapaksas, an arrangement that will be formalised once the 19th Amendment is gone. Namal Rajapaksa, who only had Tharunyata Hetak and Nil Balakaya then, is officially in control of Youth and Sports now. Chamal and Shasheendra Rajapaksa control agriculture. Nipuna Ranawaka is in charge of Matara district development. The family’s tentacles have spread farther and wider than ever before.

The Rajapaksas know their priorities. Getting rid of the 19th Amendment is a necessary precondition for the complete transformation of Sri Lanka into a familial state.

Resisting that move will enable the creation of broad tent that can include not just the parliamentary opposition, but also influential individuals like Karu Jayasuriya, Mangala Samaraweera, Sunil Handunnetti and Chandrika Bandaranaike Kumaratunga, trade unions and civil society organisations and the 47% of Lankans who voted for Sajith Premadasa in 2019 not necessarily because he was the president we wanted but because Gotabaya Rajapaksa was the president we didn’t want.

If we want to build a tsunami-wall to beat back the Rajapaksa tidal wave, that work has to begin with defending the 19th Amendment and opposing the 20th Amendment.