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From JR’s 2nd to Gota’s 20th: A Tale Of Two Constitutional Amendments

By
D.B.S.Jeyaraj

The controversial 20th Amendment to the Constitution has been passed with a two-thirds majority. 156 MP’s voted in favour while 65 voted against. Among those who voted for 20 A were eight MP’s from the opposition. Widespread speculation about the possibility of some dissidents within Govt folds voting against it and preventing a two-thirds majority has come to naught. The projected storm of revolt was transformed into a tea-cup tempest after President Gotabaya Rajapaksa addressed them in a late night meeting. Hey Presto! The grand wizard Gotabaya turned ferociously growling (paper)tigers into meekly mewing,mildly purring pussy cats. With the smooth passage of the 20th Amendment being ensured, Sri Lanka will once again have a full-fledged executive presidency with a powerful president at the helm.

The elitist supporters of Gotabaya Rajapaksa like those of the “Viyathmaga” and “Eliya” are not people who would march jubilantly on the streets shouting slogans. But if they did, Gota’s golayas could adopt and adapt a slogan shouted out by the Janatha Vimukthi Peramuna(JVP) of Rohana Wijeweera in the days before the April 1971 insurgency. In those days Wijeweera’s JVP comrades were referred to as “Che Gue asvarists” as they idolized the fiery Marxist Leninist revolutionary leader. A favourite slogan was “Api Yanney Koi Paarey?Che Guevara Giya Paaret!(Which road do we trek on?the road where Che Guevara trekked on !).

Likewise in the aftermath of the 20th Constitutional Amendment the Viyathmaga-Eliya types could – if they like – amend the JVP slogan and chant “ Gotabaya Yanney Koi Paarey? JR Jayawardene Giya Paarey!(Which road does Gotabaya trek on?the road JR Jayewardene trekked on!). Then, it was Junius Richard Jayewardene who ushered in the executive presidency and was its strongest advocate.Now, it is Nandasena Gotabaya Rajapaksa who has restored the executive presidency to its former state and will remain its staunch adherent. Thanks however to the Supreme Court ruling , it is not a total return to the Status Quo that prevailed earlier.

It is indeed interesting to note that Gotabaya has emulated JR even in the mode of re-establishing the empowered executive presidency. Gotabaya Rajapaksa has followed the modus operandi of JR Jayewadene when the former United National Party(UNP)leader established the executive presidency in 1978. As is well-known, it was Junius Richard Jayewardene known as J.R. Jayewardene and JR who masterminded the change of Sri Lanka’s political system from the British Westminster model to that of one closely resembling the French Gaullist Constitution. Power shifted from the Prime Minister to the President who was transformed from a figurehead into an effective head of state and government. Nevertheless JR did work through Parliament also by ensuring that the cabinet would consist of Parliament members only.

When Parliamentary Elections were held in July 1977, the UNP manifesto of 1977 stated, “Executive power will be vested in a president elected from time to time by the people. The Constitution will also preserve the parliamentary system we are used to and the prime minister will be chosen by the president from the party that commands a majority in Parliament and the ministers of the cabinet would also be elected members of Parliament.”

Executive Presidency

The change to an executive president from prime ministerial system was a key aspect of the UNP electoral campaign in 1977. The UNP swept the polls and obtained 141 out of the total 168 parliamentary seats. J.R. Jayewardene became Prime Minister in July 1977. He began moving fast towards his cherished vision of an executive presidency.

JR and a small group of ministers and party stalwarts in association with leading lawyer Mark Fernando (later a Supreme Court Judge) started working towards the goal of introducing the executive presidency. The preliminary discussion was on 7 August 1977. An amendment to the Republican Constitution of 1972 was first drafted. After discussions in Cabinet it was approved and certified by the Cabinet as “urgent in the national interest”. This was known as the Second Amendment to the Republican Constitution of 1972.

Thereafter it was sent by the Speaker to the Constitutional Court which prevailed at that time, as an “urgent bill”. The Constitutional Court approved the bill within 24 hours as stipulated. It was then presented to the National State Assembly for debating and voting. The bill was adopted by the then National State Assembly on 22 September 1977 as the Second Constitutional Amendment. Executive power was transferred to the President and JR Jayewardene became the first Executive President of Sri Lanka on Independence Day, 4 February 1978.

Meanwhile JR was also working towards the goal of replacing the 1972 Constitution in its entirety with a new one. On 20 October 1977 the National State Assembly passed a resolution enabling the then Speaker Anandatissa de Alwis to appoint a Select Committee for Constitutional Reform. The essence of the select committee mandate was “To consider the revision of the Constitution of the Republic of Sri Lanka and other written law as the committee may consider necessary.” The Parliamentary Select Committee was announced on 3 November 1977.

Initially the Chairman was J.R. Jayewardene who was then representing Colombo West in Parliament. JR however had to vacate Parliament as an MP in February 1978 after he was sworn in as President. Ranasinghe Premadasa who was also serving in the select committee was then appointed Chairman on 23 February 1978 by the Speaker. Premadasa was also appointed Prime Minister.

“The JR Constitution”

The executive presidency ushered in through the earlier Second Amendment was now streamlined and incorporated in the new draft Constitution. The Executive President was now Head of State and Head of Government. The electoral system was also changed from the First-Past-the-Post system to that of the proportional representative system. Sri Lanka became a Democratic Socialist Republic. The new Constitution referred to popularly as the “JR Constitution” was formally promulgated on 7 September 1978.

It could be seen therefore that JR Jayewardene initially did not bring in the executive presidency through a new Constitution. Although he had a two-thirds majority and could have easily waited for a while and formulated a new Constitution that incorporated provisions setting up an executive presidency,JR did not do so. He lost no time in establishing the executive presidency first through what was then known as the Second Amendment and assumed office before a new Constitution was promulgated. Thereafter a new Constitution was drafted with the executive presidency that was brought in through the 2nd amendment being enshrined in the new Constitution.

When JR brough in the 2nd amendment ahead of an envisaged new Constitution to usher in the executive presidency there was a lot of criticism. A key concern was about the hurry in which the 2nd amendment was being pushed/ Veteran Trotskyite leader of the Lanka Sama Samaja Party(LSSP) Dr. N. M. Perera who was not an MP at that time articulated these concerns then in a public lecture that was published as a booklet. Dr Perera stated thus “ The manner in which this Bill has been rushed through Parliament makes us a little suspicious. What is there so urgent about amending a Constitution? After all, constitutional amendments are potent not for a year or two but for all time. I can think of no country with a written Constitution that enables Constitutional amendments to be carried through in the headlong manner that he (JR) has done. Most constitutional amendments take years to fructify and some countries provide even for a referendum before such an amendment is made effective. There may be many in this country who hold different views on the Presidential system of Government. Why should they be deprived of the right of expressing their different viewpoints to the legislature and to the people of the country and urge that full consideration and weight be given their views?

Critical Questions

The logical question raised in many circles then was about why the UNP Govt could not bring in the executive presidency through a new Constitution instead of rushing through with a Constitutional amendment? The same question has been raised in the case of President Gotabaya Rajapaksa also. Why has the Govt brought in the 20th Constitutional Amendment to re-establish a full-fledged executive presidency instead of doing so through the new Constitution it pledges to promulgate? Notwithstanding these critical questions JR went ahead with the 2nd Amendment .Likewise Gota too has simply gone ahead with the 20th Amendment.

The Gotabaya Government too drafted the 20th amendment bill to do away with the 19th Amendment and restore a full -fledged executive presidency. It was approved by Cabinet and then gazette. Thereafter the draft bill began attracting widespread criticism. It was charged quite justifiably that the 20 A would upset the balance between legislature, executive and judiciary and concentrate excessive powr in a single individual. Moreover there was resentment within Govt and pro-Govt elements over some aspects of the bill. There were also queries about who had drafted the bill. When events took a serious turn President Rajapaksa intervened and stated that he took full responsibility for the 20 A draft bill. Instead of going slow because of the criticism , Gotabaya increased his effortis to expedite the passage of 20 A.

Both JR Jayewardene and Gotabaya Rajapaksa were in a hurry because they could not take any chances with the MP’s in their camp.Introducing a system that would undermine the Prime Minister, de-value Parliament and concentrate powers in a single individual that required the approval of the MP’s themselves was a bold and risky gamble. The Parliamentarians were being asked to lay their heads on the chopping block willingly. So it was imperative that the executive presidency be brought in as soon as possible. Delay may lead to doubts and possibly dissidence. Thus JR went ahead rapidly and empowered himself with his MP’s led by Ranasinghe Premadasa cheering “Jayawewa”. Premadasa was elated at becoming premier. It was loo late by the time he realised that the Prime Minister was now downsized to a glorified peon.

Politics is the art of the possible where time is of the essence. For JR Jayewardene an early executive presidency through a Constitutional amendment was preferable to a delayed executive presidency through a new Constitution. A Constitutional Amendment is an immediate reality while a potential Constitution is a distant possibility.

Similar Compulsions

Similar compulsions applied to Gotabaya Rajapaksa also. Although the Sri Lanka Podu Jana Peramuna(SLPP) and its allies were capable of cobbling together a two-thirds majority the reality was that only a handful of the pro- Govt parliamentarians could be termed as Gota loyalists. An overwhelming number of Govt MP’s are Mahinda loyalists. After all, Mahinda Rajapaksa is the single -most popular mass figure in Sri Lankan politics today. Even Gotabaya Rajapaksa owed his victory to Mahinda. It was by hitching his wagon to the “Mahinda Aiya” star that “Gota malli” rode to power. Whether this state of affairs would continue in a situation where Mahinda has been rendered toothless and Gotabaya endowed with supra-claws remains to be seen.

As far as the 20th Amendment was concerned despite the camouflage about the defects of 19th Amendment being rectified, the reality was that of the JR Jayewardene executive presidency being restored almost in full. The 19th Amendment had considerably strengthened Parliament and the Prime Minister while curtailing some powers of the President. Now with the 20th amendment Parliament was going to be de-valued and the Prime Minister reduced in status to a virtual non -entity. The MP’s were going to be asked to support a Constitutional Amendment that would empower the Presidency and disempower the premiership and Parliament. Would the MP’s vote accordinglyin the same “robotic “ manner in which they voted for the 18th and 19th amendments?

It was too much of a risk to take for Gotabaya who is regarded by his fans as a man with an economic vision and political mission. Gota is often quoted as saying “I want to deliver”. He is a man in a hurry. The 19th Amendment was supposedly cramping his style of functioning and so it had to go. Waiting until a new Constitution is formulated to re-establish the executive presidency would cause a delay that may prove costly. The minds of many MP’s could waver or change in this interregnum. There could be second thoughts about re-establishing the executive presidency at the rexpense of Parliament. There may arise objections to the powers of the prime minister being reduced.Besides the stated rationale for the 20th amendment was to correct the harm purportedly done by the 19th amendment. It was imperative therefore that the 20th Amendment should be passed as soon as possible. Delay could be dangerous. Hence Gotabaya Rajapaksa like JR Jayewardene went ahead speedily to re-establish a full-fledged executive presidency through the 20th Amendment.

Gazetting of 20th Amendment

Subsequent events have demonstrated that Gotabaya was right in expediting efforts to push through the 20th amendment. Had he waited for a new Constitution , the restoration of the executive presidency project may have failed. The period of time between the gazetting of the 20th amendment draft bill to the second reading of 20 in Parliament gave rise to much dissent, criticism and opposition. The Amarapura and Ramanna Maha Nikayas of the Maha Sangha, the Catholic Bishops Conference and several civil society organizations came out strongly against the 20 A.

More importantly from the Government’s perspective, several influential Buddhist monks and Sinhala Buddhist ultra-nationalists also voiced their opposition to certain specific provisions in the draft bill. Among these were the clauses enabling dual citizens to become members of Parliament. There were strong protests against this. Several key members of the Govt like Wimal Weerawansa, Wijeyadasa Rajapakshe, Tissa Vitharane, Vasudeva Nanayakkara, Udaya Gammanoila and Gevindu Cumaratunge also revolted against the dual citizenship clause and also a few other provisions.

This created acute difficulties for President Rajapaksa and the Government. It appeared that the necessary target of a two-thirds majority may not be achievable on account of dissident MP’s. So grave was the predicament that Govt strategists were compelled to “negotiate” clandestinely with opposition MP’s. Consequently the Govt was able to entice some opposition MP’s into supporting the 20th Amendment.

The eight opposition MP’s who voted along with the Govt for the 20th amendment were Samagiya Jana Balavegaya (SJB) National List MP Diana Gamage, Sri Lanka Muslim Congress MP’s Nazeer Ahamed , (Batticaloa)Faizal Cassim(Amparai), H.M. M.Harees(Amparai), M.S. Thowfeek(Trincomalee), Muslim National Alliance MP A. A.S.M. Raheem(Puttalam), Tamil Progressive Alliance MP Arvind Kumar(Badulla) and All Ceylon Makkal Congress MP Ishak Rahman(Anuradhapura) . In terms of ethnicity they comprised one Sinhalese, One Tamil and Six Muslims. This was in a sense a mild come uppance for the President.

The 2019 Presiential Election

It may be recalled that the entry of Nandasena Gotabaya Rajapaksa into the presidential Election in 2019 brought about a paradigm shift in the mode and manner of contesting elections by major political party fielded presidential candidates. In the past all candidates who fancied themselves as prospective executive presidents paid special attention to minority community parties and voters in Sri Lanka. Gotabaya Rajapaksa changed all that in practice.

The significant aspect of Gotabaya’s campaign was that he focused primarily if not solely on Sinhala voters alone although he did pay lip service to the non-Sinhala voter also. A few meetings were held in minority community dominant areas also but the target vote was clearly the Sinhala Buddhist and to a lesser extent the Sinhala Christian constituency. Unlike other candidates Gota did not address any minority related issues in his campaign. Instead of ethno-specific issues, Gota promised national security, economic upliftment, development and employment. He pledged equal treatment for all in this. After victory Gotabaya Rajapaksa got himself sworn in as president at the historic Ruwanweliseya in Anuradhapura. The Elara-Dutugemunu symbolism was easily discernible.

The influence of the minority community vote in electing or not electing presidents and the role of the minority community political parties in forming governments with stable majorities had given some minority party leaders an exaggerated sense of their political importance. Some boasted of being kingmakers (and queenmakers). This kind of crowing was not liked by many in the numerically-large Sinhala majority. Gota tapped into this subterranean reservoir of resentment and succeeded. So when the new President addressed Parliament for the first time and delivered his policy speech, he took a crack at the minority political leaders. This is what he said:

“The people who elected me to office desired a profound change in the political culture of this country. They rejected political agendas founded on race. The majority of the people proved that it is no longer possible for anyone to manipulate and control the politics of this country by playing the role of kingmaker. I invite the politicians concerned to understand this reality. I call upon all to join together in the national undertaking to develop this country, and to reject the politics based on petty agendas that have sown division in our society in the past. We must always respect the aspirations of the majority of the people. It is only then that the sovereignty of the people will be safeguarded.”

“Two-Thirds Majority Makers”

What is ironic is that the same Gotabaya who faulted minority community politicians for playing “King maker” and demonstrated that he could be crowned as “King” (President) by depending on Sinhala votes alone had in a twist of fate been forced to rely on minority community MP support to enhance his majority at the vote. Whatever the “carrots and sticks” that influenced their decision, six Muslim MP’s and one Tamil MP have shown that nmiorities are “two-thirds majority makers” even if they were not king makers at the presidential hustings.

Apart from garnering the eight opposition MP votes the Government was also forced to come off its high horse in appealing to influential Bhikkus and dissenting MP’s. It is learnt that President Gotabaya Rajapaksa himself made emotional appeals of a personal nature to the Buddhist monks and minisers/MP’s concerned at separate meetings. He reportedly told them that the real reason for enabling dual citizens to contest elections was not to bring in Basil Rajapaksa. Gotabaya explained how the 19th amendment was used to prevent him from contesting presidential polls as a dual citien and how he had to renounce his US citizenship to become eligible to contest. As such he wanted to remove that barrier through the 20 A. The president however assured the Monks and MP’s that he would accommodate their concerns when the new Constitution was drafted. Responding positively to Gota’s appeal the Monks and MP’s revised their stance and pledged support to the 20th amendment. Thus all Govt MP’s with the exception of former President Sirisena voted in favour of the Amendment. Sirisena absented himself at voting time.

The Gotabaya Govt also averted another tricky issue by adhering to the Supreme Court ruling. The Apex court had ruled that clauses 3, 5, 14 and 22 of the original draft required a two thirds majprity and endorsement by the people at a referendum to become law. The Court however suggested certain amendments to the bill by which the need for a referendum could be negated. Otherwise a referendum was mandatory.

Although some Govt bigwigs talked about being prepared to face a referendum, saner counsel prevailed at the very high level. President Gotabaya was not ready to risk a referendum. So amendments were incorporated where feasible. In the case of Provisions relating to the Election Commission and the Peoples right to challenge actions of the President in court, the Govt adhered to the SC ruling. Thus the Govt averted a referendum that may have proved dicey.

Obtained Sweeping Powers

All these happenings indicate that President Gotabaya Rajapaksa was correct in emulating JR Jayewardene in resorting to an early Constitutional Amendment instead of waiting for a new Constitution. What has happened now is that Gotabaya has re-established a full – fledged executive presidency through the 20th amendment in the same manner in which JR Jayewardene ushered in the executive presidency through the 2nd amendment. He has obtained sweeping powers akin to a Constitutional dictator like JR.

President Rajapaksa has pledged that a new Constitution would be promulgated before November 2021. There is no doubt that the President being an honourable person would honour his promise. However the crux of the matter is that Gotabaya Rajapaksa would remain a powerful president even if a new Constitution does not materialize. The 20th Amendment has empowered President Gotabaya Rajapaksa in the same way in which the 2nd amendment empowered President Junius Richard Jayewardene. This is the reality.

DBS Jeyaraj can be reached at dbsjeyaraj@yahoo.com

This is an Enhanced Version of an Article written for the DBS Jeyaraj Column in the “Daily Mirror” of October 24, 2020. It can be accessed here:

http://www.dailymirror.lk/opinion/From-JRs-2nd-Amendment-to-Gotas-20th-Amendment/172-198610