What is in store now for 22 A?

Despite Opposition political parties accusing the President and his party, the United National Party (UNP) was attempting to postpone the Presidential election for the past few months, it seems that the road is clear for that election. 

Chairman of the Election Commission (EC), R.M.A.L Rathnayake had earlier announced that the Presidential election would be held between September 17 and October 16 according to the Constitution. Since the duration between the day the Commission is authorised to declare the election and the day on which the election is to be held in maximum of nine weeks, according to the Presidential election Act, the Commission was authorised to declare the election on July 17 (Nine weeks before September 17, the earliest day on which the election could be held).

Hand in glove 

Opposition parties have been pressing the Election Commission to announce the election immediately after it is empowered to do so as they feared the government might do something to postpone the election. However, the elections chief had said he had to decide the date for the nomination by-passing inauspicious days (Rahu Kalaya), as some political parties believe in such things and he has still been ridiculed by social media for this comment. And he was also accused of being hand in glove with the government to defer the election by delaying the declaration of the election. 

However, the EC chief told last week that his Commission would announce the Presidential election this week and accordingly, the Commission yesterday (26) fixed August 15 and September 21 as the dates for nominations and the elections respectively. 

Two candidates, National People’s Power (NPP) leader Anura Kumara Dissanayake and Samgi Jana Balawegaya (SJB) leader Sajith Premadasa announced their candidacy last year while another two, the estranged Chairman of the Samagi Jana Balawegaya (SJB), Field Marshal Sarath Fonseka and Justice Minister Dr. Wijayadasa Rajapakshe announced their intention to enter the fray on Thursday. Two candidates including President Ranil Wickremesinghe had paid deposits for the election yesterday itself. SLPP seems to be struggling to take a decision on the matter. This might further erode their already sagged vote base.

In this context, several important issues are still hanging over. Will the proposed Constitutional amendment that has already been gazetted have any bearing on the election process? Will it cause any deferral of the election? Who will be the candidate of the SLPP? Will the Rajapaksas allow anyone outside the family to run for the Presidency? 

19th Amendment 

Given all facts and information at hand, the proposed Constitutional amendment does not seem to have any bearing on the Presidential election process.  The government wants to amend paragraph (b) of Article 83 which necessitates the support of more than two-thirds of MPs in Parliament and the people’s approval at a referendum for the extension of the term of the President and the Parliament to over six years. It is being correctly argued by the proponents of the proposed amendment that the words “six years” in that paragraph should be replaced with the word “five years” since the term of the President and the Parliament has been reduced to five years from six years by the 19th Amendment in 2015.  

Then, why was this paragraph not changed when the 19th Amendment was drafted?  President Wickremesinghe made a controversial statement on this matter on July 19. He stated during the opening ceremony of the new courts complex at Beligaha in Galle that this mismatch in the Articles of the Constitution had occurred due to the inexperience of former MP Jayampathy Wickramaratne who drafted the 19th Amendment.  

Denying the President’s remarks on him, Dr. Jayampathy Wickramaratne PC issued a statement on the next day explaining the circumstances and the reason for the mismatch of the said Articles. He said it was a five-member team including him that drafted the 19th Amendment and the process was overseen by a Cabinet sub-committee headed by the then Premier Wickremesinghe.

He went on to explain that Maithripala Sirisena as the common Presidential candidate of the Opposition signed a Memorandum of Understanding in 2014 with a group of 49 political parties and organisations headed by Ven. Maduluwawe Sobitha Thera, in which he pledged to abolish the Executive Presidency altogether. “However, the very next day, he signed another MOU with the Jathika Hela Urumaya (JHU), in which he pledged not to make any Constitutional change requiring a referendum. Sirisena’s election manifesto also said that no Constitutional reform necessitating a referendum would be initiated” he said.

Accordingly, the entire drafting process of the 19th Amendment has been carried out on the basis that the Bill for that amendment should not be placed for approval at a referendum. 

However, this caused a hiccup for the drafters of the 19 A. As per the paragraph (a) of the Article 83, a Bill for the amendment of any of the “Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11 or of “this Article” shall become law “if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), and approved by the people at a referendum.” 

Here the words “this Article” refer to the entire Article 83, including its paragraph (b). Hence, that paragraph has not been amended then, not due to oversight, as the President has suggested but to avoid a referendum.  

Now, the government headed by President Wickremesinghe wants to amend the same paragraph (b) of  Article 83.  It is clear that it cannot be done without conducting a referendum as per Article 83 (a). 

Draft amendment

Justice Minister Wijeyadasa Rajapakshe, claiming that the draft amendment has caused misconceptions among the people instructed the Secretary of his ministry on July 18 not to publish it in the gazette until the Presidential election is concluded. However, the President annulling his instruction on the same day ordered the publication of the gazette as the 22nd Amendment to the Constitution Bill which was carried out immediately. 

Then, Rajapakshe explained to the media the path the 22nd Amendment Bill would take following its publication in the Gazette. The Bill will be placed in the Order Paper of the Parliament after a week of its publication and another two weeks will be given for the people to challenge it in the Supreme Court, if they have any issue with it. If the Supreme Court gives clearance to it, it would only be ready to be passed in Parliament in late August. 

Nevertheless, the President garnering the support of two-thirds of Parliament members (150 votes) for the Bill seems to be somewhat a remote possibility, given the current divisions in the SLPP, the source of power of the President in Parliament. 

Against this backdrop Gamini Waleboda, a dissident MP of the SLPP recently said that the government had already drafted the gazette to immediately dissolve Parliament if it failed to secure two-thirds of votes in Parliament for its Constitutional amendment. If true, this is going to be a cudgel to compel the MPs, especially those who have not completed five years in Parliament to qualify for the pension, to vote for the Bill. 

Hidden plan 

If the Bill succeedes in that test probably in late August, according to the above calculation of the Justice Minister, it then has to move to the next stage, the referendum. It would have to be held in late September following around a month of campaigning by political parties, coinciding the Presidential election. It might cause confusion among many voters. If the government did not have any hidden plan to put off the Presidential election using this Bill, what is the rationale behind the haste in bringing in it, creating such a messy situation?