Why A Referendum Is Necessary For 19A

By Kusal Perera -

Kusal Perara

There are politically important and serious reasons why this piece of legislation called the 19 Amendment has to go before the people for their direct approval, before it becomes law.

1. There was no transparency, no accountability in the drafting process. It is an accepted democratic practise to have the process of drafting a constitution as an open, people based process. This left the people totally out of it in every way.
2. This parliament lacks any legitimacy having deformed the will of the people as decided at the 2010 April elections and therefore holds no moral right in representing the people anymore.
3. The installing of this government with Ranil W as Prime Minister is a contradiction in Constitutional provisions, where the President is expected to appoint a PM in his belief holds the majority in parliament. No one would dare say, President Sirisena believed RW with only 41 MPs could command a majority in parliament. Their private agreements though campaigned for during elections are not Constitutionally valid, unless RW commands a majority as required by Constitution.

As such, the following brief explanations can be of importance in arguing for a Referendum in adopting the 19A that is now in parliament.

1. The promise during the whole presidential election campaign was for democratic governance; explained further as one that would be transparent in every aspect, would hold itself responsible to the people and thus would be accountable to all decisions made and their implementation. “Yahapalanaya” was explained as such.
2. The promise was also to curb the Executive Presidency to an extent it could be held responsible to the parliament and therefore would be working in liaison with the cabinet of ministers, while the President would be equal as any citizen before law, with immunity removed.
3. The Constitutional Amendment called the 19 Amendment was to be adopted in parliament to effect such change, including a Constitutional Council to establish commissions that would be truly independent without any pushovers by the executive as before.

These were the main and major promises that laid the basis for the victory of common candidate Sirisena. In swearing in Ranil W as PM immediately after his own swearing in as President, he only kept his promise made to the voters as agreed between the two of them, that in turn installed a new government which holds no majority in parliament and is not Constitutionally valid.

With a government installed in parliament without a people’s mandate through an election now affecting Constitutional Reforms sans any public consultations too, the present parliament cannot be substituted for the people.

1. This parliament has no legitimacy. The will and the choice of the people in electing their representatives to parliament have been horribly altered within the parliament, since it was elected in 2010 April elections. This parliament therefore holds no people’s sovereignty.
2. It is not the political party/alliance elected to government that is now governing the people. It was not voted out either. The present government installed by President Sirisena on a promise made for elections, led by the UNP in alliance with the JHU and the Muslim parties depend on the votes of the political party/alliance elected to government in 2010 April.
3. A heavily depreciated minority party brought to government on a presidential decision and depending solely on the majority of the Opposition, has no moral right to adopt Constitutional reforms in a parliament that also has no legitimacy.
4. Necessary 2/3 vote in parliament to adopt Constitutional reforms is therefore to be coerced holding about 40 MPs with a threat they will have to vote with proposed “reforms” good or bad, IF they wish to earn their due pension. This again is no democratic manner in adopting important reforms and is no people’s will.
5. Very establishment of this new government is contrary to the powers vested with the President, though not challenged within or without parliament. The President is Constitutionally expected to appoint the PM on the basis that he believes his appointee as PM would hold a majority in parliament. Yet by no means would any sane person expect Ranil W to command a majority in this parliament with only 41 MPs in the UNP and the few who opted to oppose President Rajapaksa, not totalling over 60 MPs. Nor would President Sirisena have believed RW would gain the required majority. The only reason was their agreement for such appointment during or prior to the presidential elections and not Constitutional validity.
6. The votes in parliament offered by the SLFP to RW government are always subject to conditions laid down by the SLFP on its own accord. While they claim to support the 100 Day programme and voted with the Interim Budget on the grounds it would not deprive the people of proposed benefits, they are not bound to vote with the 19A, if that does not come with electoral reforms. Case in point, to prove the tail cannot govern the dog.

Added to all this and contrary to all the promises for transparent and accountable governance, at no stage of the drafting process, were the people involved or consulted. There was no social dialogue on any of the inclusions in the proposed 19 Amendment. In fact this society does not know who was responsible for any of the drafts and discussion papers that were leaked out and was in limited private circulation.

In the democratic world, Constitution making is a “process” where “the participation of the public in the drafting of the constitution is a crucial component of the process. It adds indispensable legitimacy to the final document adopted. It also assists the definition of a national identity and the articulation of common popular aspirations for the future.” [Constitution-Making and Peace Building: Lessons Learned From the Constitution-Making Processes of Post-Conflict Countries – Jamal Benomar / August 2003 ; UNDP publication]

Here in Sri Lanka and in this instance, there were no “people” involved. It was media reports that said, political party leaders (and not even political parties) finally consented on a draft 19A that was immediately approved by the Cabinet of Ministers and was then Gazetted without delay on 16 March, 2015. There was no effort by nor an intention on the side of the government to allow any social dialogue with only 500 copies alleged to have been printed, of which 250 goes to the parliament.

Further sabotaging any possible social dialogue after the draft 19A was gazetted, the PM tabled the 19A and presented it in parliament on 24 March, and this draft is different to the one that was gazetted.

Therefore it is too evident this whole process was devoid of any public participation and consultation on a piece of legislature that would impact on every aspect of public and individual life for many generations to come, while wholly undermining the principles of good governance, transparency and accountability.

It has to that extent and in every way breached the trust of the people almost completely.

Therefore, with no legitimate parliament, a government that was not elected and in minority and ruling with no public accountability, it is the people’s right now to decide if they want it as presented and adopted in parliament, or they would not. For which there should be a Referendum before the 19A becomes law.