Editorial-April 11, 2015, 1:35 pm

The big news last week was the Supreme Court decision that two sections of the 19th Amendment to the Constitution affects the franchise of the people and requires for adoption, in addition to a two thirds majority in Parliament, the people’s consent at a Referendum. This determination deserves unreserved applause of all our people regardless of political affiliations. We have for too long had Chief Justices and Judges in our highest court who had cozy relationships with the political powers that be. These connections influenced their decisions in many instances and justice was neither done nor seen to be done. We have at last broken away from that sorry scheme of things, hopefully for good. One of the best things that the present administration did was to get rid of a Chief Justice who by no stretch of imagination could have been judged as independent, restore for a day his predecessor who was dumped in the worst possible manner and thereafter appoint the most senior Judge of the Supreme Court as the new Chief Justice. A three-judge bench presided over by him has given a decision that is seen by the whole country as sturdily independent, strengthening the separation of powers of the executive, legislature and judiciary essential in any functioning democracy.

The UNP had gone public before the court ruling stating that it did not plan to go for a Referendum. That is the last thing the people want in the current state of confusion. With a parliamentary election facing us in the short term, having an expensive Referendum before that is obviously out of the question. If the court ruled that the 19th Amendment, as presented, required the people’s consent for adoption, it would suitably amend 19A to avoid that measure was the government’s stated position. Why that was not done in the first instance is a mystery. Surely the legal advisors to the government would have indicated that without a Referendum, the Bill as presented to Parliament would not pass muster? Did the government gamble on a favourable SC decision? Or did it want to tell the people that part of its plan to trim the executive powers of the presidency was to transfer those powers to the prime minister? Now that the court has ruled that this needs a Referendum, the prime minister has said that these clauses are being dropped.

It is still unclear what the amended constitution is going to be. While most of those who voted for Maithripala Sirisena on January 8 wanted to see the back of Mahinda Rajapaksa, abolishing the executive presidency was very much a part of the agenda that was presented to the people and many wanted an end to what they considered an "abomination." However, even as the `Oust Mahinda’ campaign was gathering steam and support from a coalition of political parties and other forces that had little in common with each other except the desire to deny Rajapaksa a third term, some of the parties supporting the Sirisena candidature began waffling about abolishing the executive presidency altogether. The JHU particularly was at great pains to say that what was needed was not total abolition with the presidency reduced to a largely symbolic role (as during President Gopallawa’s time), but the pruning of the excessive powers vested in that office. There was an effort to do this through 19A but that has been confronted by the Referendum obstacle. Exactly what shape and form the constitution will take with the new 19A remains to be seen.

The President is clear that Parliament will be dissolved once 19A is adopted. Does that imply that if 19A, in its newest avatar is defeated, this Parliament will continue until its term is up? That will confound the confusion that is already evident. In the interest of yahapalanaya, should we not consider the desirability of getting the new Parliament to double as a Constituent Assembly and draft a new Constitution as was done in 1972? We urged in this space last week that given the sorry spectacle of defections the incumbent Parliament has seen, legitimacy is the least of its qualifications. All kinds of sorry deals are being struck even today under cover of a need for a National Government. Is this the Parliament that is being given the grave responsibility of amending the country’s basic law in accordance with the will of the people?

A previous Supreme Court permitted defections of MPs elected on one party ticket to a government headed by another, always for consideration of political office. President Mahinda Rajapaksa got the numbers needed for his 18th Amendment by engineering defections from the UNP. The electorate did not give him the two thirds majority he asked for to enable constitutional amendments. Dangling ministerial carrots in front of greedy takers after the election did the trick and Rajapaksa dug his own grave by abolishing the two term limit on the presidency. He called a premature election to crown himself for the third time and suffered a stunning defeat. No less that the then Chief Justice ruled that 18A required no Referendum as it "enhanced" the people’s franchise. Any layman reading the constitution will see that the operative word in the basic law is "affecting" the people’s franchise. There is no mention of enhancing or diminishing. Now that the incumbent SC has broken from a sorry past which saw the courts consorting with power centers, let us all hope that this sturdy independence will continue into the future.