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Saturday Dec 28, 2024
Wednesday, 10 June 2015 00:00 - - {{hitsCtrl.values.hits}}
Many who take a via media view of the so-called victories won by the passage of 19A see a mixed bag of results. One of the key areas in which the outcome was quite different to what was anticipated by the architects of the cornerstone piece of legislation is the appointment of Cabinet ministers
The cynosure these days is the proposed 20th Amendment to the Constitution, or 20A. (“2B or not to 2B,” that is the question.) Will 20A come into being before this House of cards and its card-sharps collapses, or will it go into the dustbin of might-have-been history? Well, that is not the question on some minds! Or, not the only question at heart! After all, whatever happened to the welfare of 19A, and whither the well-being of 19A’s offspring, after the euphoria over its difficult birthing died down?
That question becomes important in the light of 
the current impasse that the Constitutional Council (CC) – the engine of the vehicle for appointing the all-important Independent Commissions (ICs) to guarantee delivery of 19A’s vision, and what it promised – presently faces. Not all is well (it seems) in the actual constituting of the CC. And many might ask why. Some might wonder what can be done. Other players muse on whether it will all end in tears like previous amendments to democratise and depoliticise governance (e.g. 17A).
In broad terms, there are three camps into which those who engage with the outcome of 19A can be housed: the ‘enthusiastic champions’ (it’s good); the ‘enervated critics’ (it’s not); the ‘engaging commentators’ (it’s mixed).
Enthusiastic champions
These contenders sought and obtained a drastic but welcome clipping of the erstwhile chief executive’s wings and the reinstitution of the term limit on the Executive Presidency (among other victories). This reduction of powers and restoration of limits will serve the country well in terms of eventually democratising governance, they argued. But the reality was that those whose chief aspiration in mooting 19A was the curbing of the President’s powers also harboured a cynical ambition to channel a significant measure of those very same powers, or similar ones, into the Prime Minister’s role and office.
Few will recall, years later, when historians comment on the wisdom, value, and worth of 19A, that “the original Bill envisaged a scheme that vested powers in the Prime Minister to control the appointment of Cabinet Ministers and determine their subjects and functions” (Gehan Gunatilleke and Nishan de Mel, “19th Amendment: The Wins, The Losses, and the In-Betweens”, Verité: 2015), and a rash of other functions to prop up an ostensible Executive Prime Minister. However, as de Mel and Gunetilleke note, “What has emerged instead is more of a hybrid system that significantly checks the powers of the Presidency while also allowing a significant role that can, in turn, check the powers of the Prime Minister” (Ibid.).
The enthusiastic champions of 19A – mainly in the UNP, marginally among parts of the minority parties allied with it, the GOP, and manifestly in the conglomerate of civil society voices that was banded and branded under the banner of the National Movement for Social Justice, also argued that 19A would reverse the injurious effects of 18A. They contended that it would reintroduce the much-vaunted CCs and facilitate the return of the much-needed ICs – which, working in tandem and synergy, would serve the nation-state in depoliticising governance.
However, as is becoming increasingly apparent from the present impasse, actually picking even a triad of ‘eminent personages’ to comprise the Constitutional Council is proving to be a trickier dance-card to fill in than envisaged. The original proposal regarding this important body/mechanism mooted that seven of 10 of its members should be ‘independents’ with no membership in or strong affiliation to any political party. That clause was p
ounced on at the committee stage of 19A’s erstwhile parliamentary debate, and amended to accommodate the inclusion of seven sitting MPs to meet 70% of the CC’s 10-member constituency.
While those keen to dismantle the apparatus of deeply entrenched politicisation of state institutions and establishments were understandably disappointed, they would be the first to admit that securing the services of seven truly independent members of the CC was something of a pipe-dream. They might do better to bend the knee to what some commentators have called “a realistic understanding of political incentives and the difficulty of achieving a completely depoliticised, purely professional, and independent mechanism of appointments” (Gunatilleke & de Mel, “19th Amendment”). They (the aspiring democrats, that is, not the analytical duo in parentheses!) might do better to spare ourselves the idealistic angst and bow to the machinations of realpolitik, whereby Parliament still has a strong say in who gets nominated to the CC.
This was the case under 18A not long ago! Of course, the difference now being, however, that 19A ensures the President has to act on the CC’s recommendations to appoint heads of the ICs within two weeks of nomination – or have their nominations deemed accepted – unlike under the previous dispensation. Where the President was not obliged to take any notice of the CC’s recommendations de jure and consistently saw it as incumbent on himself to ignore their recommendations de facto.
Enervated critics
But back to the res. There were those who observed a craven silence then; when the erstwhile regime’s autocratic chief executive ignored the observations and recommendations of his Parliamentary Committee – a comparable body under 18A. There are those who carp and cavil now that the more things change: the more they stay the same…
Because seven of 10 members of the CC are sitting MPs subject to the vagaries of realpolitik, so ICs are still politicised. Be these criticisms as they may, there is a more nuanced way of looking at the ramifications of the CC’s composition.
For instance, if the new, viable, and all-important CC had been empowered to be composed of seven ‘independents’, there could still have been no guarantee that those appointing these individuals would not have had a significant impact on their recommendations. It would still have been the likes of the President and the Prime Minister – to say nothing of the notoriously partisan leaders of political parties – appointing these so-called eminent personages. So there is no gainsaying that the selectors should show some understandable favouritism towards appointees who would return the graciousness of their inclusion in the CC with corresponding political sympathy. (“You scratch my etc.”)
Interestingly, had this ratio of composition occurred, the CC could well have been loaded with agents provocateurs whose agency was politically motivated, but whose instrumentality would have been virtually invisible to the public eye. However now, with the seven sitting MPs also enjoying seats on the CC, their leanings and tendencies will be more transparent – if no less influenced by political string-pulling.
There is also the factor or the electorate’s expectations of these seven MPs – such that these constituents of the CC may well slip and slide for purchase between the rock of respectability and the muddy slopes of realpolitik. That said, more objective observers have noted that “it may be over-optimistic to argue that the Council’s MPs might be restrained by perceived vulnerability at future elections. Alternatively, MPs on the Council could perceive more vulnerability to the President and Prime Minister (in securing future cabinet appointments), as well as to their political party leaders (in securing future party nominations for elections). This then could adversely politicise their decisions on the Council.” (Gunatilleke, et al., “19A”.)
The conventional wisdom would agree with these analysts that while the CC’s ‘independents’ might be more civic-minded than party-conscious in discharging their duties, the ‘magnificent seven’ MPs may be may be motivated more by their loyalties to the respective leaders and electorates. Common sense thus affirms that just three of 10 members of the CC being ‘independents’ is something of a threat or at the very least a weakness in its composition. That there is much manoeuvring even at the moment to get these three key slots sorted adds angst to the anxiety.
Engaged commentators
Many who take a via media view of the so-called victories won by the passage of 19A see a mixed bag of results. One of the key areas in which the outcome was quite different to what was anticipated by the architects of the cornerstone piece of legislation is the appointment of Cabinet ministers.
Originally 19A swam strongly in the direction of executive powers being vested with the Prime Minister – including the ability to appoint members of the Cabinet and assign them to their respective ministries. The ambitions of the UNP and its senior leadership in this respect encountered a strong current of opposition to that, which was resolved with a reversal of power flow back to the President to determine Cabinet appointments, subject ministries, and functional roles – albeit with checks and balances to be now effected by a more effete Premier. Sadly for the GOP, its attempt to load the executive dice in favour of the Prime Minister’s office in general – and a sitting Prime Minister’s favour, in particular – further came a-cropper in the lubricious parliamentary committee-stage tweaking and tunings.
As it stands, the relevant article – 43(1) – reads such that it is now the prerogative of the President to (of course, in consultation with the Prime Minister – but only where he considers such consultation to be necessary) name, number, and commission the members of the Cabinet. The only instance in which the former is obliged to consult the latter is when members of Parliament are to be appointed as Cabinet ministers. That said, despite the check of this clause, the balance of powers shifted back to the President in an article that emerged at the committee stage, whereby the President is empowered to change ministry assignments and Cabinet member compositions sans advice from or consultation with the Prime Minister. Therefore, the composition and portfolio-profile remain at the mercy of the President – who may summarily dismiss one Cabinet member from his or her portfolio and assign it to another on a whim…
While the incumbent President is looking less than likely to do so at any given time in the near future, 19A has left this space open for a future C. E. not captive to the caprices of a national unity government to play ducks and drakes with Cabinet reshuffles to garner loyalty and tourniquet appointees into towing the line. A singular check remains in that the President is still duty-bound to consult the Premier prior to removing a Cabinet member from that rank or stripping them of their portfolio.
Think-tank Verité Research comments: “The final scheme of 19A then falls significantly short of the strong expectations created with regard to abolishing the Executive Presidency and reverting to a mostly parliamentary system. What has emerged instead is more of a hybrid system that significantly checks the powers of the Presidency while also allowing a significant role that can, in turn, check the powers of the Prime Minister.” (De Mel, et al., “19A”.)
In this incarnation of democratic checks and balances, 19A looks in hindsight like an it-takes-two-to-tango routine, with the President leading the dance. A far cry from what the original 19A envisaged – no doubt some grief for the grand old mandarins of the Grand Old Party. Let us only hope the loopholes in 19A for a whimsical or cynical chief executive don’t come back in a future avatar of past despots to bite our brand of democratic-republicanism in the gluteus.
In the interim, while our present President from one alliance and current Prime Minister from another party waltz in cumbersome unison – dance cards fully filled by virtue of being required to flirt in public, as a formally courted and cohabiting couple –all will be well. What lies on the other side of a 20A-driven general election is anyone’s guess as to whether the stately slow dance of today will turn into a hectic gavotte or foxtrot tomorrow. Already, some partners-in-arms are tiring of the charade; claiming they didn’t climb into bed (to use a political metaphor of marriage) to change the number of MPs in Parliament, but rather the nature of MPs in Parliament. Ice on the dance floor, is it?
Gunatilleke and de Mel admit no impediments to this marriage of true minds: “While this scheme can potentially lead to deadlocks and dysfunction, it can also motivate a much stronger commitment to mutual accommodation with a strong incentive to check and balance each other’s decisions against abuse,” they write (“19A”: Verité: 2015). This might be a naïve or simply realistic view. In our bipartisan polity’s experience, political marriages of even the most courteously strange bedfellows last as long as it is pragmatic, strategic, or tactically desirable. Post parliamentary dissolution in – well, it looks more like June-July now, with polls in August-September – or post 2020, when the incumbent chief executive steps down and the UNP and UPFA will be at each other’s throats again (and not necking for the gallery as they once were) – we may have a real rough tango to entertain ourselves with…
Evaluating concepts, engaging concerns
Whichever lens you view it through (good/bad/mixed), we might agree the passage of 19A into being law in this land is certainly a watershed, a breakwater, and a sluice gate in Sri Lanka’s political and constitutional history. It’s a defence against once rampant and resurgently threatening authoritarianism, as well as a defining moment for nascent democratic-republicanism.
The ‘enthusiastic champions’ (including international media, who said 19A marked “the beginning of a new chapter in the contemporary political history of Sri Lanka”) will maintain that it held good on some of the seemingly pie-in-the-sky promises made by the movers and shakers of the 100-Day Plan. This one thing will always be in favour of the administration of the Sirisena-Wickremesinghe nexus, even if the one thing is not entirely in favour of either one or both of these statesmen-in-the-making.
The ‘enervated critics’ (churlish, seemingly embittered – a distinguished professorial type called it “a cynical violation of mandatory constitutional rights”) will hardly concede that hamstringing the Executive President’s powers was a consummation devoutly to be wished. They argue instead that it weakens the division and separation of powers by tying the executive so closely into legislative checks and balances. These – the pro-Mahinda faction of the UPFA, and a few remnant hangers-on – live in denial. Either because it is expedient for future sweetening; or egregiously uncomfortable to admit as the best thing by a country mile that took place in our democracy’s chequered constitutional history.
The ‘engaged commentators’ (satisfyingly enlightened, charitable – some were visibly relieved, a few virtually religious about it: “it’s a miracle that it came to pass”) extol the fact that 19A restored the term limits of the presidency, exult in the reduced the scope of presidential immunity, and explain why circumscribing presidential powers in making appointments to the Cabinet is a good thing… Generally welcoming the constitutional changes, warts and all, minus the flairs and flourishes of the flamboyant original piece of proposed legislation.
For you and I, gentle reader, perhaps the best thing about 19A from a layman’s point of view is what Verité Research identifies as “at least five major changes that can be classified as successfully meeting expectations on democratising governance” (19A, Verite: 2015):
recommended by the Constitutional Council
NOTE: The President has the power to appoint the chairpersons and members of:
NOTE: The President has the power to make appointments to these key offices: - Chief Justice
Endpiece – Coda
In my limited understanding of 19A in all its glory – the warts of the 60-plus changes made at committee stages included – it is the view of Verité’s analysts that strikes the best notes: [19A is] “A mixed bag of wins, losses, and in-betweens. It is a promising yet imperfect constitutional enactment, perhaps befitting an imperfect yet promising democracy” (Gunatilleke and de Mel). We might tweak that a tad, to say: it is a reasonable constitutional achievement, architected and supervised by ambitious statesmen, eventually more surprising to democracy-embracing republicans than it is anathema to authority-seeking despots.
Vive la République! Vive la liberating constitutional check!
Now to find three good men, or women, to get 19A to truly come alive. Good luck!
