The 19th amendment was passed by Parliament in a mighty hurry. The Yahapalanaya government may regret that, with the new debate over the two term restriction of the presidency.

The next presidential election is more than a year away, but things are already livening up on the political front with some potential candidates throwing their hats into the ring. The UNP, the SLFP and the Sri Lanka Podujana Peramuna (SLPP) have launched their polls campaigns. President Maithripala Sirisena has indicated his desire for contesting and the UNP is sure to field Prime Minister Ranil Wickremesinghe. Former Defence Secretary Gotabaya Rajapaksa is being promoted as the SLPP candidate.

But Sri Lankan politics is full of surprises. In a dramatic turn of events, the Joint Opposition (JO) has declared that former President Mahinda Rajapaksa can seek another term. This claim has made quite a stir in political circles and got legal bigwigs, regardless of their party affiliations, to have their heads buried in the Constitution. Some of them have already expressed their opinions on the issue—both for and against the JO’s contention.

The main purpose of the 19th Amendment (19-A) was to debar former President Mahinda Rajapaksa from contesting a future presidential election and reduce the powers of the presidency. The proponents of the 19-A are frothing at the mouth. The UNP is visibly upset. Its reading of the 19-A and the presidential term limit is entirely different. Higher Education Minister Dr. Wijeyadasa Rajapakshe lost no time in declaring that neither of the two ex-presidents could contest a presidential election again because the 19th Amendment specifies that a person who has been twice elected by the people as the executive president was debarred from seeking another term. His contention as a President’s Counsel and former Minister of Justice is that no one other than the incumbent President can seek an opinion from the Supreme Court on the issue, and any presidential candidate who is found to have furnished false information as to his or her eligibility to contest is liable to a three-year jail term.

Legal experts of the JO/SLPP have pooh-poohed Rajapakshe’s contention. They are confident that they can seek a Supreme Court ruling via the District Court. The signs are that there will be an interesting legal battle and how the apex court will interpret the relevant section of the 19th Amendment is anybody’s guess.

The immediate objective of the re-introduction of the two term limit on the presidency by the 19th amendment was to block Mahinda Rajapaksa from contesting again.
The immediate objective of the re-introduction of the two term limit on the presidency by the 19th amendment was to block Mahinda Rajapaksa from contesting again.

Big names dragged in

JO firebrand and Pivithuru Hela Urumaya Leader Udaya Gammanpila told the media the other day that legal experts, including respected scholars such as Dr. Nihal Jayawickrama, were of the opinion that Mahinda was not debarred from contesting the next presidential election.

Dr. Jayawickrama has, in an article published by The Sunday Island, held that both former Presidents Chandrika Kumaratunga and Rajapaksa can contest the next presidential election. He says:

“Whether advisedly or inadvertently, Parliament did not provide in the 19th Amendment for this new constitutional disqualification to retrospectively apply to citizens who had previously been twice elected to the former (since abolished) office of President. A law is not considered as imposing a disqualification retrospectively unless Parliament had clearly stated that to be its intention.

“Accordingly, it would appear that the two surviving former Presidents, Mrs Chandrika Kumaratunga and Mr Mahinda Rajapaksa, not having been made subject to this disqualification, are eligible to seek election to this new, essentially non-executive, primarily symbolic and ceremonial, office of President whenever an election is held.”

What is also of import is Dr. Jayawickrama’s assessment of the current presidency, which he calls ‘essentially non-executive, primarily symbolic and ceremonial”

In a previous article, ‘The Illusory Executive Presidency’, which received wide publicity both in print and web media. Dr. Jayawickrama maintained:

“… While politicians belonging to all the parties vociferously argue that the executive presidency should either be retained or abolished, they appear to have overlooked the fact that the executive presidency established by the 1978 Constitution no longer exists. The 19th Amendment has effectively abolished it.  The President, of his own volition, cannot choose the Ministers. He cannot remove any Minister from office except on the advice of the Prime Minister. He cannot dissolve Parliament at a time of his choosing. Acting alone, he cannot appoint Judges, Senior Officials or the independent Commissions. The Presidency has been stripped of all these fundamental executive powers. In respect of all these matters, he is essentially a constitutional Head of State.

“Therefore, the question arises whether an expensive, divisive, nation-wide election is required to elect the next President, merely because he still possesses a few, relatively unimportant powers in respect of provincial administration and the appointment of President’s Counsel….”

This argument seems to hold water. The question is why the JO has not taken cognizance of his views on the nature of executive presidency. If the JO actually takes the advice of the legal bigwigs of the calibre of Dr. Jayawickrama seriously, why should it be so keen to secure the executive presidency with greatly reduced powers? As for the presidential election, why are the Mahinda loyalists interested in a game which is not worth the candle, according to Dr. Jayawickrama?

Gotabaya’s aspirations

The JO’s latest move sheds light on the group dynamics of the UPFA dissidents and internal rivalries. The SLFP old-timers loyal to former President Mahinda Rajapaksa are not well disposed towards the efforts being made to make Gotabaya the presidential candidate of the Sri Lanka Podujana Peramuna (SLPP). If they are to assert themselves in the Joint Opposition (JO)/SLPP, they have to be Mahinda’s coat-tails. Hence their campaign to make Mahinda the President again!

Mahinda or Gotabaya?

The claim that Mahinda can seek another presidential term has provided a fresh rallying point not only to the JO but also the UNP, whose rank and file want to prevent the former President from making a comeback. Even the disgruntled UNPers desiring a change at the helm of the party, are likely to rally behind Ranil for want of a better alternative. The JO/SLPP may also gain a boost from its much-publicised claim because its members want to have Mahinda as the President again.

How would the swing voters who are the deciding factor at any election react if the JO succeeded in its endeavour to field Mahinda as the presidential candidate? The majority of them have rejected the yahapalana coalition, if the outcome of the last local government polls is any indication. Mahinda has apparently regained their sympathy as the defeated President. Else, the SLPP, whose campaign he led, would not have been able to beat both the SLFP and the UNP in February. But, whom will they prefer as the SLPP presidential candidate, Mahinda or Gotabaya? The JO/SLPP will have to find an answer to this question. What really matters is the opinion of the voting public and not so much that of the JO/SLPP.

It is widely thought that Gotabaya is more of a ruthlessly efficient public official than a politician. There is a school of thought that the country has had enough of career politicians, and it now needs a tough leader who brooks no nonsense and is ready to do whatever it takes to impose strict discipline, bring order out of chaos and develop the country. People’s growing sense of disenchantment with partisan, patronage-based politics and failure on the part of politicians to live up to people’s expectations, let alone usher in national progress, have created in this country a situation similar to that in France, which made Emmanuel Macron’s victory possible. Some JO members seem to believe that Gotabaya fits the bill.

For a while it looked like Gotabhaya Rajapaksa was the front runner from the Mahinda Camp for the next Presidential contest. Now the party leaders want Mahinda to be the candidate if the courts say he can
For a while it looked like Gotabhaya Rajapaksa was the front runner from the Mahinda Camp for the next Presidential contest. Now the party leaders want Mahinda to be the candidate if the courts say he can.

But Gotabaya is more feared than respected and his ruthless efficiency is both an asset and a liability in politics. He is known as a man who bulldozes his way through, both literally and figuratively; he had no qualms about ordering the demolition of buildings to facilitate his gentrification projects in urban areas. He wants everything done with military precision and leniency is not one of his traits. Given the way he acted as a public servant, one tends to ask oneself what the situation would be if he were elected President. The executive presidency may not be as powerful as it was under Mahinda’s rule, but it is surely vested with more powers than the post of the Defence Secretary.

Out of sheer frustration, some people including leading Buddhist monks want Gotabaya to secure the presidency and run the country with an iron fist. One of the priests recently got into hot water by urging Gotabaya to emulate Hitler, if necessary, and pull the country out of the current politico-economic mire. But the question is whether the majority of ordinary people, who alone can decide the winner in a presidential race, will want to take that gamble?

People know Mahinda for what he is or at least they think they do. He is still popular as evident from the SLPP’s electoral performance. Voting for him is not a journey into the unknown. This is one of Mahinda’s advantages. But if the 19-A got interpreted by the Supreme Court in his favour and he got re-elected, he would not be able to do anything different from what he did while in power. Do people want him to do more of what he did? Don’t people expect a change? Will Mahinda be able to recast his image and remarket himself to the public as a presidential candidate again? Will his current popularity translate into enough votes for him to win the presidency again? These are also questions the JO/SLPP strategists will have to ask themselves?

UNP in a quandary

The UNP had the powers of the executive president whittled down in 2015 by means of the 19th Amendment with a view to strengthening the post of the Prime Minister in keeping with its short-term strategy. Obviously, it did not know what it really wanted. Ranil wanted to use the premiership as a stepping stone to the executive presidency and, at the same time, he wanted his position as the PM strengthened at the expense of the Executive President.

But for protests from the President’s side, the executive presidency would have been stripped of some more powers at the behest of the UNP. Today, the Prime Minister is more powerful than the President, for all practical purposes, though the former has chosen not to exercise all his powers to avoid a direct confrontation with the latter at this stage and keep the government going. If the government collapses, President Sirisena, who is not a threat to the UNP, will lose his hold on the SLFP and the hands of the Rajapaksa’s will be further strengthened. This is the last thing the UNP wants.

But a future Prime Minister will make use of the powers constitutionally vested in that position and how weak the presidency really is will become evident. If Ranil succeeded in becoming the President, he would have to play second fiddle to the PM; the former would have to consult the latter on almost everything. There is no guarantee that the PM will be from the same party as the President. This is a worrisome proposition for the UNP.

Prime Minister Ranil Wickremesinghe has already begun his presidential campaign. Why does he want a job with less power than what he enjoys now?
Prime Minister Ranil Wickremesinghe has already begun his presidential campaign. Why does he want a job with less power than what he enjoys now?

Ironically, Prime Minister Wickremesinghe has had to ignore what may be called the new reality and ready himself for the next presidential contest.

Meanwhile, if it is more powers that President Sirisena, whose wings have been craftily clipped, seeks, he should try to secure the premiership at the next parliamentary polls. If he managed to secure a second term, he would be dwarfed by the PM. What would be the situation if the PM happened to come from either the UNP or the SLPP?

The same goes for Mahinda. Even if he became the President again, his position would be the same as that of Sirisena at present; he would have to live in the shadow of the PM. It is not likely that a future President will be able to change the Constitution to strengthen his or her position.

Strangely, this ‘new reality’ has escaped the attention of all presidential hopefuls or it has not yet dawned on them. It is time they studied the 19th Amendment carefully.


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