by Jehan Perera
The passage of the 22nd Amendment to the constitution came as a surprise. It was originally scheduled to be debated in parliament a fortnight earlier. When the decision to postpone was taken it seemed as if the 22nd Amendment would not be taken up again in the near future or even if it was, it would not be passed.
There were two contentious areas on which members of the government and opposition were in disagreement. The disagreement was not only between parties but within them. The first contentious issue was the president’s power to dissolve parliament at his discretion after the passage of two and half years. The retention of the two and a half year provision is a clear political triumph for President Ranil Wickremesinghe.
The 20th Amendment and now the 22nd Amendment states that the President can dissolve parliament in two and a half years. The 19th Amendment that preceded these limited the president’s power to dissolve parliament by affirming it could only be done after four and half years.
But the 22nd Amendment retains this presidential power to dissolve parliament after the elapsing of two and a half years. This can be construed as an erosion of parliamentary democracy. It is not a good democratic practice for the president to dissolve the parliament so soon after the people have given it a mandate for five years.
President Wickremesinghe was himself a victim of this use of arbitrary presidential power in 2004 when his term as prime minister was cut short by the then president Chandrika Kumaratunga.
The second contentious issue was the right of dual citizens to contest elections and be elected to parliament and other elected political office. The 20th Amendment gave dual citizens the right to contest elections which the 19th Amendment had specifically taken away in the same way that the 22nd Amendment does.
There are reportedly around ten MPs who are dual citizens and who will now have to make a choice between renouncing their citizenship of those foreign countries or having to leave parliament.
This would be an especial blow to the ruling party, as its national organiser and power centre, Basil Rajapaksa is known to be a dual citizen. There are calls from within parliament for them to step down and the matter may need to be settled in court if they do not.
The passage of the 22nd Amendment by 174 votes with only one dissension can be considered to be a victory for President Ranil Wickremesinghe under whose leadership a significant restructuring of the state’s system of checks and balances has taken place with virtual unanimity.
It is also a defeat for the old guard and strong men of the ruling party who have seen its disintegration in three or more parts. There were only about 30 plus MPs out of a total of 134 in the government who opposed the 22nd Amendment and the effective removal of its party’s national organiser from parliament.
Unless former Finance Minister and national organiser Basil Rajapaksa renounces his foreign citizenship he will have to lead the party from outside parliament. This may not seriously disadvantage him as his political acumen and strength lies in grassroots mobilisation which can be done outside of parliament.
The passage of the 22nd Amendment will reduce some of the powers of the presidency particularly with regard to appointments. The president will lose the powers he had under the 20th Amendment to pick and choose whomsoever he wanted to be members of the independent commissions and high officers of state. These included the Chief Justice, judges of the Supreme and Appeal courts, the members and chairpersons of the Election Commission, Human Rights Commission and Police Commission and the IGP.
This power will now be transferred to the Constitutional Council over which the president will have influence but not unilateral power, as they will be selected by the president together with the prime minister and the opposition parties as well. The three civil society members of the Constitutional Council who can best ensure a non-partisan selection will be appointed jointly by the prime minister and leader of the opposition.
In giving up some of his power in this manner, the president will gain legitimacy as a leader who has forged an unexpected consensus in a parliament that was hitherto bitterly divided.
The fragmentation of the ruling party into three or more factions will also permit the president to play a greater role as a visionary and strong willed leader in forging a consensual approach to the serious problems that the country faces.
This includes the economic crisis and the long term corruption and mismanagement that reached volcanic proportions in the last two years. The restructuring of the economy is going to be one that will place large burdens upon people at multiple levels and will best be introduced to them through a bipartisan approach.
The same is true of the long standing ethnic conflict which has defied a political solution since 1956 and seems to be a dead volcano after the end of the war though in reality it is not.
Sustaining consensual government requires sincerity by a demonstration of consistency in word and deed. Opposition Leader Sajith Premadasa made this point when he said that the amendments should be brought with good intentions. There was mutual accommodation in the process of reaching a consensus with the Minister of Justice, Wijeyadasa Rajapakshe agreeing to the Opposition Leader’s request that the three civil society appointees to the Constitutional Council should be selected jointly by the prime minister and opposition leader and not be chosen through a vote in parliament which would give the government the possibility of appointing all three. However, there are two areas where the consensus can break down early and which need to be guarded against.
After the collapse of the economy and rise of the protest movement, the need for fresh elections has been articulated at all levels of society. Local government elections fall due in March this year. The opposition parties have jointly agreed that these elections ought to be held on schedule without postponement as the term of the local government authorities has already been extended by the maximum duration of one year permitted by the election law.
The second area of contestation is the ongoing spate of arrests of those who protest even peacefully against the corruption and mismanagement in the government that led to the collapse of the economy. Those who want a corruption and mismanagement free society are being punished and roughly treated while those who are the perpetrators continue to hold high positions in parliament and the government.
With the passage of the 22nd Amendment, Justice Minister Wijeyadasa Rajapakshe has opined that all independent commissions will cease to function. Opposition leader Sajith Premadasa has appreciated the work of two commissions in particular and has made the case that they should continue in office.
There will be two commissions in particular that will be looked at keenly by civil society also. They are the elections commission, which has taken the position that local government elections can and should be held without postponement, and the Human Rights Commission which has stood amazingly (for a state institution) for the rights of the people to freedom of association and expression as is rightfully theirs in a democracy. Those who have spoken truth to power need protected by statesmanlike leadership from the treacherous winds of political change as they guide the ship of state to a safe harbour.