Prime Minister Mahinda Rajapaksa has put to rest at least for the duration of this Parliament a freelance move to remove the 19th Amendment (19A) to the Constitution. He has said there will be no constitutional reforms during this Parliament. That is obvious because this Government is a minority Government in Parliament. But then the [...]


The politics of 19A


Prime Minister Mahinda Rajapaksa has put to rest at least for the duration of this Parliament a freelance move to remove the 19th Amendment (19A) to the Constitution. He has said there will be no constitutional reforms during this Parliament. That is obvious because this Government is a minority Government in Parliament.

But then the MP who introduced the proposed 21A and 22A to the Constitution to overhaul 19A (which ironically he introduced in 2015 as Justice Minister) would have had the imprimatur of higher-ups in this Government. Otherwise, he would not have been able to get the Legal Draftsman to prepare the draft amendments nor get them gazetted.

The proposed amendments would have strengthened the hand of the Executive President at the expense of Parliament; i.e. to revert to the pre-2015 era.

While it is accepted that 19A was hurriedly and therefore poorly drafted in the flush of the 2015 Presidential election, it was clearly the fulfilling of a public cry to abolish what was seen as an autocratic office. It did not go the full distance of abolishing the Executive Presidency. It was a mere ‘sop to Cerberus’ (those making that demand) and a concession to the newly elected President to continue in that office and get his support to pass 19A.

The current debate on the good and evil of 19A depends largely if one is holding the office of President, or not. It varies like a yo-yo, typical of the political tribe.

President Gotabaya Rajapaksa clearly finds himself restrained by the 19A constitutional straitjacket. He may have all the good intensions of using its powers to the good of the nation. But 19A was introduced due to the public realisation, and long before the current holder came into politics, that experience since 1978 (when the presidential system was introduced) has shown the road to autocracy is paved with good intentions.

The 19 Amendment brought some of the President’s powers within the ambit of Parliament controlled by a Prime Minister and a Constitutional Council headed by the Speaker. Some say it creates two power-centres, others that it’s a separation of powers.

There’s never an ideal form of government; each has its strengths and flaws. Right this week the US Congress is bringing in laws to curtail the powers of the all-mighty US President to declare war on Iran without Congressional approval.

Premier Rajapaksa told a news conference this week that his MPs supported 19A back in 2015 believing electoral reforms would follow. That is bending the facts. His MPs at the time had all but abandoned him following his defeat at the polls. He had little control over them. And electoral reforms can still follow within the ambit of 19A.

Despite its history as one of the first countries to enjoy the vote in the world and certainly the first in South Asia, Sri Lanka is still coming up with the ideal election model. The next experiment is to have a hybrid proportional representation (PR) and first-past-the-post (FPP) system.

The forthcoming election, however, seems to be destined to be contested under the current PR system. This would make the likelihood of any one party or alliance receiving a two thirds majority to change the Constitution by itself extremely remote, unless in the absence of any cross-over laws, they ‘purchase’ Opposition MPs to their ranks after the election.

Under the circumstances, with the demand for the abolition of the Executive Presidency thrown out of the national agenda, the elected President would be resigned to his fate — and have to work with Parliament for the wellbeing of the nation.

Ranjan tapes: Unbecoming of an MP

 The bagsful of taped conversations taken from a Member of Parliament’s custody last week and their leak to the public domain are creating waves like a tsunami.

What laws, if any, the custodian of the tapes, an MP, has broken is a matter for the future. As investigations proceed the one comment that can be made is about the propriety of what the MP has done by not informing the other party that he or she was being recorded.

Doing so may have defeated his purpose, ostensibly to fight injustice, but pure decency would expect him to behave otherwise. Banks and some institutions do this with what appears to be an innocuous announcement that the call is being recorded to test its quality, but in fact, it has legal implications. Still, the caller is forewarned. Journalists sometimes record telephonic interviews mainly to defend themselves from those who deny quotes when there’s a blowback to what they have said, but even then, they are supposed to inform the interviewee.

Tapping of radio signals and telephone lines is an old ploy adopted by state intelligence agencies. During World War II, British authorities recruited mathematicians and chess champions to break the once unbreakable German ‘Enigma’ code. They were considered the pioneers of modern-day computing. Today, computer hacking across cyberspace is common and modern mobile telephone manufacturers advertise instruments that cannot be listened into if encrypted systems are used by both end users. Someone in a garage must be finding a way to hack into this secure system sooner than later.

Such is the gravity of the issue that ordinary citizens have challenged on grounds of privacy, state agencies using the ‘spy in the sky’ cameras in the UK meant to monitor crime and traffic violations, and phone tapping in USA under the guise of homeland security.

In most democratic countries tapping another’s telephone conversation requires a prior magisterial order. Therefore, the case that has exploded in Sri Lanka in that an MP has trapped unsuspecting public officials with incriminating evidence is more than a celluloid thriller. It is despicable.

It serves as a lesson especially to not just public officials, but to everyone, to be wary of whom they talk to, and what they say. Various MPs now wanting to curry favour with the new dispensation are even calling for Presidential pardons for those convicted by the courts arguing the verdicts were biased. The Government seems to have correctly left it to the Chief Justice to make a call on it (no pun intended).

How these tapes taken from a raid on the MP’s residence last weekend got into the public domain through social media only adds to this sordid saga. It has only renewed fears of the citizenry to speak on the telephone, not trusting the caller or the state. It’s a harbinger of a more secretive, frightened society as opposed to a free and open one.

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