In its two decades in existence, the Centre for Policy Alternatives (CPA) has maintained a robust commitment to constitutional reform as an integral component of democratic governance and as a primary instrument of conflict transformation. This edited work on the Nineteenth Amendment marks CPA’s continuing commitment in this regard and now, at a time when constitutional reform is at the forefront of public affairs. CPA has always reiterated the supremacy of the constitution, the critical importance of checks and balances on the exercise of executive power, the indispensability of meaningful power-sharing for governance, and for an architecture of authority and power that accommodates the aspirations of all the peoples of Sri Lanka and addresses their grievances. This publication, we hope and believe, will highlight the need for further constitutional reform and in shedding light on its uneasy evolution so far, inform and improve the renewed commitment to it in terms of both process and content.
The Nineteenth Amendment did not meet the expectations in full of those who voted for a change of regime in January 2015 and indeed, those amongst them who for decades had argued for a liberal democratic constitutional framework and structure of power for Sri Lanka. In particular, it was a product of the confusion that arose soon after that historic election, as to whether the commitment was to the abolition of the executive presidency – the non-retention of that office in its then current form being the centrepiece of the opposition platform for governance – or as to whether it was to a diminution of the powers of that office. The reform commitment was invariably conditioned by ensuing political dynamics, and the debate over whether the desirable was attainable was obscured by a consensus amounting to a seeming fait accompli, that if the sincerity of the new government’s commitment to reform was to be salvaged, the attainable had to win the day to fight another day, perhaps.
Dissimilar for sure, to the process by which the notorious Eighteenth Amendment was passed by the previous regime, the process by which the Nineteenth Amendment came to be, nevertheless, left room for legitimate criticism from the perspective of governance as a process. These are concerns that should be borne in mind as we proceed with constitutional reform; the best need not be the enemy of the good, and the good not defined as such on an uncritical equation with the possible.
None of the above is meant in any way to detract from the significance of the amendment. Significant it is as it stands and stands it does as a democratising amendment. The pruning of the powers of the presidency it effected, is unprecedented in that it constitutes the first instance of a constitutional amendment in our post-colonial history with such an objective and one that was passed. The concerns, subsequently allayed, that it would create an executive prime minister in place of an executive president, highlighted the pivotal role of the legislature in checking and balancing the executive – greater attention to the separation and balance of powers being of central importance for democratic governance and constitutional reform into the future to secure it. Likewise, the curbing of the powers of the president over the dissolution of the legislature, term limit for the incumbent, and immunity.
In similar vein, the revival of the Constitutional Council as a nominating and recommendatory body for key positions of state and for independent oversight commissions directly involved in the protection and promotion of governance. The partisan politicisation of state institutions has been a cancer on the body politic and the lack of transparency and accountability, the culture of impunity and nepotism, all hallmarks of the state capture by the previous regime, which led to its historic downfall in January 2015. The Constitutional Council that has been provided for under the Nineteenth Amendment fell prey to opposition suspicions of civil society and as a consequence, unlike what was originally proposed, retains a majority of politicians in its composition. Like the provisions on the presidency, those on the Constitutional Council too can be reviewed when the constitutional reform programme begins in earnest in the coming months.
The Nineteenth Amendment illustrates the dimension of political compromise inevitably attached to constitutional reform. It is hoped that as constitutional reform is extended, as it must, the Nineteenth Amendment will be improved upon in process and substance, and the promise of governance so widely subscribed to in January 2015 redeemed in fullest measure. This publication is yet another contribution from CPA to debate, deliberation, and design in this regard.
On behalf of CPA, I wish to thank Dr Welikala and all those who assisted him in underpinning the organisation’s commitment and contribution in this field.
Dr. Paikiasothy Saravanamuttu
Executive Director