JR Jayewardene And The 20 Amendment 

By Ravi Perera –

Ravi Perera

If JR Jayewardene was alive today, he would surely be delighted at the adoption of the 20 Amendment to our second Republican Constitution (1978), the ownership of which is primarily attributed to him. This constitution, which launched us on an odyssey along untrodden ways of an executive presidency, was hybrid in nature, a departure from the Westminster style parliamentary system we had enjoyed from 1948. Given the doubtful political maturity of the country, the concept was troubling, and, as it evolved, the exercise of presidential powers led to controversy. In 2015, after experiencing nearly forty years of untrammelled executive presidency, the parliament, with near unanimity, voted to curtail presidential powers, making the office more accountable by way of the 19 amendment to the constitution. 

The main thrust for the 19 amendment came from Jayewardene’s own UNP. Until then, its long serving leader Ranil Wickramasinghe, had been at best only lukewarm towards moves to curtail presidential powers; the presidency was electorally still within the grasp of the UNP.  However, the UNP’s fortunes had steadily eroded. At the 2015 presidential elections, the then President Mahinda Rajapaksa’s juggernaut could only be challenged by a coalition of political forces; former Rajapaksa ally Maithripala Sirisena becoming the coalition’s candidate for the presidency. Having lost several elections, Ranil Wickremesinghe realized that winning the Presidency for himself, was an election too far; why not then curtail the powers of that office, a move that seem consonant with public opinion? Neither Sirisena the unexpectedly elected new President, nor the ever hopeful Wickramasinghe, had objections to presidential powers, if only they exercised them; an attitude that festered and eventually destroyed the Yahapalanaya government. 

Although the idea itself was commendable, critics argued that certain features of the 19 amendment, though doused in the honey of constitutional idealism, only aimed at stymieing the popular Rajapaksa brand. Constitution making is a difficult art; foresight and objectivity being paramount. Constitutions are not made for a day, or for one man; If made to suit a person or address only an immediate problem, such a constitution is unlikely to outlive the day or that problem. 

As if the UNP of the present day moving to reduce the powers of the executive presidency authored by its erstwhile leader JR Jayewardene is not irony enough, recent history of this confounded nation has even more piquant ironies in store.

Imitation is the sincerest form of flattery, it is said.

Those who were witness to the acrimonious political battles of the JR Jayewardene era, would scarcely believe that it is the heirs of Jayewardene’s then main opposition (SLFP and the traditional Left) which is instrumental now in bringing forth the 20 amendment, over-riding the 19 amendment; in effect embracing the institution of the presidency that Jayewardene created. Forty years after the 1978 constitution, this nation has no other constitutional vision, no other political idea, except for his murky recipe. Basking in the glory of his electoral success, JR Jayewardene was fond of quoting the title of the Frank Sinatra song, “My Way (I did it)”; forty years later, his imitators also see no other way, but his! 

Many theories have been offered to explain the economic success of nations; climate, culture, resources, trading, rule of law, property rights, transparency, ingenuity, work ethic, capacity for long sustained work, to even the genetic factor; each country seems to have followed its own path, the human element being crucial in every success story however. State ownership, subsistence agriculture, import substitution, do not appear as necessary ingredients. Sri Lanka, having thought long and deep, has concluded that the right constitution will do the job. Every government obtaining a two thirds in parliament, busies itself in constitution making, or amending the existing one. They presume, a wealth of hidden constitution making talent amidst its white clad ranks.

How we ended up with an executive presidency in this country is attributable to an idea conceived in the mind of by JR Jayewardene, apparently first expressed at a meeting of the Ceylon Association for the Advancement of Science in 1966. For inspiration, he turned to two superpowers with presidential systems of government, France and the US; two great republics, nations which had won their freedoms at a heavy price, countries that had built mega economies, peoples with innumerable individual achievements in nearly every field of human endeavour.

Jayewardene explained his interpretation of a presidential system thus:

“the executive is chosen directly by the people and is not dependent on the legislature during the period of its existence, for a specific number of years. Such as executive is a strong executive, seated in power for a fixed number of years, not subject to the whims and fancies of an elected legislature; not afraid to take correct but unpopular decisions because of censure from its parliamentary party. This seems to me a very necessary requirement in a developing country faced with grave problems such as we are faced with today” 

JR Jayewardene was intellectually heads and shoulders above the commonness which has been standardized in public life today. Widely read, intelligent, cosmopolitan; as a young man JR had had exposure to a larger culture, immersion in a rich literature; an enriching upbringing that was then common to many promising youngsters of a certain social class; an upbringing that enriched and broadened the young man’s outlook, through education and association, he would acquire an urbanity that would compare well with any in the world.

 But that is not to say that JR was an outstanding statesman, a profound thinker or a far-sighted legislator. During a career spanning over half a century, he has spoken at many forums, written several essays; but were they his true thoughts, did he walk the talk? Although idolised after his electoral triumph of 1977, we look in vain for greatness in JR, his reputation is too fractured, his methods too manipulative, for that. Notwithstanding the obvious posturing, the profundity of a Nehru, the sagacity of a Roosevelt, the towering gifts of a Churchill or the sure-handed pragmatism of a Lee Kuan Yew, are sorely absent. Like the rest of our political leaders, in a small, much troubled country, he dabbled; but did he deliver? 

Taking Jayewardene’s words at the Ceylon Association for the Advancement of Science (alas, an organization which is now overshadowed by newer more assimilated organizations working for the advancement of ‘sciences’ such as astrology and faith healing!), there is a clear disconnect between the meaning of Jayewardene’s words, and what really happened in the years after 1978.

Far from the stability that JR Jayewardene prophesied from an executive presidency, what followed 1978 were three decades of continuous instability; ethnic riots, insurrections and separatist wars convulsed the country, leaving it broken and forlorn. Jayewardene suggested that an executive president would not be subject to the whims and fancies of the legislature. In practice, every time the executive president lacked parliamentary support, he/she became dysfunctional; the parliament controls public accounts. The concept of the division of power also envisages the three arms of government working in harmony, not at cross purpose. Checks and balances are there for a purpose, not as a mere spoiler. From the faulty grasp of the fundamentals, confounded laws can grow.

Jayewardene argued that an elected executive president could take “correct, but unpopular decisions”. There have been many unpopular decisions by our executive presidents, but as to whether they were correct, the answer at best, is subjective. Our national statistics do not bear out a country blessed by many ‘correct’ decisions.

Great Britain won several wars, including world wars, without a president. Hitler’s Germany, with an absolute dictator in power, lost the war. Likewise, Singapore in one generation went from a third world country to the first, without a president. In South America for example, there are many tin pot presidents, but these are hopeless basket cases. Those who can, do it; those nations that are floundering, blame their constitutions.