Naya Qanoon and the 19th

Amendment

by Reeza Hameed- on 03/28/2015

The draft 19th Amendment reminds

me of the story Naya Qanoon (New Constitution) written by the late
Saadat Manto, regarded by many as the finest writer of short stories in Urdu
and as the greatest South Asian writer of the 20th century. Set in preindependence Lahore of the 1930s the main protagonist of the story is a
tongawalla called Mangu.
One day, Mangu over-hears two of his customers discussing a new
constitution that was to be introduced in a few days. Mangu hated the
British, and was sick and tired of the humiliation and abuse that he had
suffered under British rule. Mangu is excited by the prospect of freedom
that he believed would be ushered in by the constitution. He imagined it
would be something bright and full of promise and spends the next few
days getting ready to celebrate the arrival of the new constitution. On the

appointed day, he discovers that nothing has changed and everything

appeared as before.
An Englishman with whom he had an argument on a previous occasion
approaches him for hire. Emboldened by the prospect of change promised
by the constitution, Mangu wants to put his customer in place and in a
sharp voice quotes his customer more than his usual fare for the journey.
The encounter with the Englishman ends up in an altercation with Mangu
landing several blows on his customer saying: Those days are gone,
friends, when they ruled the roost. There is a new Constitution now, fellows,
a new Constitution. Inevitably, Mangu gets picked up by the police and is
taken to the station.
All along the way, and even inside the station, he kept screaming, New
Constitution, new Constitution! but nobody paid any attention to him.
New Constitution, new constitution! What rubbish are you talking? Its the
same old Constitution. And he was locked up.
President Maithripalas Manifesto Promise
Candidate Maithripala Sirisena was endorsed as the common candidate by
those who were opposed to the re-election of former President Rajapakse
on the basis of a memorandum of understanding which he had signed with
those leaders who sponsored his candidacy. He promised the abolition of
the executive presidential system as one his immediate tasks which he
would implement within a 100 days of his election and have it replaced with
a Parliamentary form of government acceptable to the people. He declared:
The immediate tasks will be implemented within a hundred days, including
abolition of the current executive presidency and the re-establishment of a

parliamentary form of government.

In the manifesto that followed, he lamented over his predecessors failure
to implement their promises that they had made since 1994 to
constitutionally change the executive presidential system. Candidate
Sirisena acknowledged that the responsibility is with the President to take
the initiative to reach an accord among the main political parties and carry
through the constitutional amendment, and it was to fulfil this task that he
decided to present himself as the common candidate. In his Manifesto, he
declared:
The present executive presidential system will be abolished within a
hundred days and replaced by a Parliamentary form accountable to the
people. Under the Parliamentary system, the President will symbolize
national unity and have duties and powers appropriate to the position.
New Constitution is very much like the old one
The Draft Nineteenth Amendment seeks to achieve the continuance of the
executive presidency, albeit in a slightly truncated form. Worryingly, it
retains most of the unsatisfactory features of that office, thereby
perpetuating an office that became an instrument of authoritarian rule and
an obstacle to constitutional democracy in this country.
The impression that one is left with is that the failure to abolish the
executive presidency is not entirely the fault of President Sirisena, for there
are reports to the effect that some of his government partners are opposed
to its abolition, although they have no objection to him scratching its
surface.
They have sought to place a gloss on President Sirisenas promise made in

the Manifesto and have asserted that he never promised to abolish the
executive presidency but only to reduce its powers, a stance that prompted
Dr Jayampathy Wickramaratna to warn that it is extremely dangerous for it
can sabotage the entire process of abolishing the Executive Presidency. It
remains to be seen whether that is the ultimate aim of those who are
opposed to the changes promised by President Sirisena.
Why retain the Presidential office?
Those who are opposed to the abolition of the executive presidency argue
that it is essential to maintain stability in government.
JR Jayewardena, who was instrumental in the creation of a strong executive
directly elected by the people, promoted it as necessary to achieve stable
government and as a pre-requisite for economic growth. JR Jayewardena
argued that the Westminster system of choosing the executive from
Parliament produced unstable governments when it lost the support of the
majority in parliament. The solution that he suggested was to have a
strong executive, seated in power for a fixed number of years, not subject
to the whims and fancies of an elected legislature.
A similar rationale was advanced, with some justification, for the
introduction of a strong executive in the French Constitution now in force.
French cabinets under the Third and Fourth French Republics did not last
long. Under the Third Republic, they did not last more than ten months on
an average; from 1875 to 1925 there were more than fifty cabinets, mainly
due to the fact that the cabinets were coalitions, producing executive
instability.
The experience of the French under the Fourth French Republic was not

much better. Governments had short shelf lives and between the Second
World War and 1958, when the Fifth Republican Constitution was
introduced, France had seen 25 cabinets. Prime Ministers were unable to
embark on unpopular reforms, a situation that was made worse by the
Algerian crisis. There was public distrust of political parties, too.
The Fifth Republican Constitution was tailor made to suit De Gaulles
cherished ambition of strengthening the executive at the expense of the
French parliament. De Gaulle had an oversized ego, a fact illustrated by his
response at an interview as to where he would like to be buried on his
death. The old man kept silent to this question by a journalist, who
prompted him with some suggestions. He showed no interest when the
journalist made several suggestions including the Arch de Triomphe and the
Les Invalides where Napoleon lay buried. However, his eyes brightened and
he sat up when the journalist mentioned the Holy Sepulchre.
In contrast, between 1947 and 1977, there were only 8 elections including
one that was necessitated by the assassination of a Prime Minister. The
rationale that was advanced in justification of the introduction of the
executive presidency is one that is questionable. JR Jayewardene arguably
saw himself as the Sri Lankan de Gaulle, and the Second Republican
Constitution was tailor made to suit his wishes.
The road to authoritarianism
The presidential system has been popular especially in Latin American and
East European and Central European countries that were emerging out of
authoritarian systems. The presidential system or something akin to it was
adopted mostly in those countries. These countries had been authoritarian
regimes and chose the semi-presidential system with a strong executive to
manage the transition from authoritarian to democratic regimes and to

ensure political stability on the assumption that only a powerful president

would be able to unite the nation on divisive political issues.
The experience of Sri Lanka has been significantly different. Sri Lanka has
enjoyed universal suffrage long before the country became independent
and the people had for decades been working with the Westminster form of
government electing their governments through parliament by popular
franchise. The executive president has actually been instrumental in
presiding over the gradual transition of the country from democratic to
authoritarian rule.
We have witnessed over the years how an institution which was brought
into being avowedly to introduce efficiency became an instrument of
corruption by patronage, one that produced colossal waste and bred
inefficiency and turned government virtually into a one man show. The
institution has put on weight and become bloated like a sumo wrestler,
virtually bursting at its seams without a belt to restrain its expanding
waistline.
The other claim that without an executive president the war against LTTE
could not have been won too has little credence. The LTTE insurgency
reared up its head at a time when JR Jayewardene was President. In fact,
successive presidents, including Mahinda Rajapakse, promised its abolition
even when the conflict with the LTTE was continuing. Why would they
promise to get rid of the office if its continuance was essential to fight the
LTTE?
The writer is an Attorney-at-law.
Posted by Thavam