13 September 2014

On ‘monarchizing' mechanism and afterlife blues*

The 18th Amendment is in the news again, this time sadly as a straw-clutching move by an Opposition which appears to consider any match up with Mahinda Rajapaksa an exercise doomed to fail.  The legal objections posed by former Chief Justice Sarath N Silva have sparked some interest and time will tell if the arguments are robust and if they are whether the judiciary will prevail over the executive and legislative arms of the state.  But what of the 18th Amendment itself?  This was written four years ago, just before the Amendment was passed.  A good revisit, I thought. 

Last week, in an article titled ‘On the Dana clause of the Dasa Raja Dharma’, I promised to explore issues of governance contained in the 10 principles embedded in the above document in order to shed light on ‘where we are as a nation, the crucial challenges we face and the futures we can reasonably imagine’.  Today, I am forced to digress. 

I was due to write about the second principle/article, that of ‘sila’, i.e. ‘virtue’ or maintaining a high moral character, where the ruler observes at least the five precepts, and conduct him/herself in private and public in a manner that is of shining example to the people.  I write instead about the proposed 18th Amendment to the Constitution which seeks among other things to remove the clause of the constitution that imposes a two-term limit on the President. 

No, I am not saying that constitutional amendment (of any kind) is totally unrelated to the issue of sila and the limiting clauses therein.  The Dasa Raja Dharma or the ‘Ten Point Guideline for Rulers’ after all covers all aspects of governance and all political processes including constitutional amendment.  Indeed, it is possible to use any of these 10 points to dissect the proposed amendment.  I fear though that employing my ‘sila’ salaakaya (ration) in this column for that purpose would be a waste since this series is meant to be a general commentary on things political.

The 18th is too in-your-face for me to defer to consideration of the ‘general’.  The Amendment, if passed, will allow a President to be elected an unlimited number of times, and provide an incumbent the opportunity to call for an election upon the completion of 4 years of any given term.  It will see an effective abrogation of the Constitutional Council (enabled via the 17th Amendment) and its replacement by a Parliamentary Council made up of the Prime Minister, Speaker and Leader of the Opposition (ex-officio) as well as one each proposed by the ruling party and the opposition.  The task of appointing individuals to the Independent Commissions (of the 17th) will fall on the President upon the recommendations of the Parliamentary Council.  It is still not clear whether foot-dragging loop-holes have been written into the draft or whether or not such escape clauses will be detected by those who will be called upon to vote on the Amendment.   

I’ll first deal with what someone might say are the trivial (relatively) matters. According to the proposed amendment, the heads of Government institutions will be appointed by cabinet.  If that’s formalizing what is now an on-the-ground reality (politicization of the public service) we can say ‘well, that’s being honest’.  On the other hand legislative enactment has to be more than calling a screw-up a screw-up and making it official.  It should be about discovering error, acknowledging it and seeking correction.  This is therefore disappointing and a serious indictment on the intelligence and integrity of the architects of this amendment.

The President, speaking at the 59th National Convention of the Sri Lanka Freedom Party, has made a quaint observation.  He pointed out that Section 92 of the Constitution prevents those who have mental disorders from contesting the Presidential Election.  An incumbent who is stopped from seeking a third time automatically falls into this same category and this is not right, he believes.  

That’s rubbish. 

An apple is not an orange and vice versa just because they are both fruits and not vegetables.  The imposition of term limit does not imply that no sane person can retain his/her sanity after being in power for twelve years. Indeed a people that sanctions a third time (in principle) and gives it effect by electing a person to the supreme political office could arguably be called ‘mentally unsound’.  Similarly, those in metal institutions are not there because they all served two terms as the President of Sri Lanka. 

The President implies that the enactment of a Parliamentary Council would amount to ‘re-instating’ the powers that prevailed before 1978 to Parliament and the Cabinet.  ‘There is nothing wrong in consulting members elected to the Parliament when making appointments (to the Independent Commissions). Well, as long as the President has nothing more than a rubber-stamping task in the appointments, that argument can be made, yes.  This does not mean, however, that we’ve gone back to the 1st Republican Constitution.  We cannot forget that the President has enormous powers, that the legislation pertaining to Independent Commissions was flawed and that there is nothing to prevent appointments to these commissions being skewed in favour of furthering the interests of politicians (as opposed to the general public). 

The 17th envisaged a certain insulation of citizen from politician and political interference.  The rhetoric did not bleed into the paper, unfortunately, and not a single MP who voted for the 17th noted the flaws which, finally, killed it.  This ‘insulation’ does not seem to have been on the authors of the 18th, as things stand. 

This is not the only issue that I have with the 18th of course.  The President, at the SLFP Convention has defended the Amendment saying that it provides the opportunity for anyone to contest the Presidency any number of times and that Sri Lankans will get the opportunity to elect whomever they liked.  What he doesn’t state is the inherent advantage that an incumbent has over a challenger, an ‘advantage’ he is aware of and made use of in January (even though I doubt he needed to, at the time). 

The United National Party has duly objected.  The UNP doesn’t have the moral authority to object, though, not unless there’s full confession that this party, more than any other, is responsible for the constitutional ills we’ve had to suffer for the past 30 years and their terrible consequences.  This however does not give the UPFA or the President the license to engage in ‘do-as-we-please’; it is not enough to say ‘they did it too’ for it is ALWAYS possible to justify anything by taking this route of argument.  

It has been pointed out that if there are no term-limits to other public offices, why should restrictions be imposed on this particular office, that of the President.  The reason is simple: the dimensions of jurisdiction, political and otherwise. A Pradeshiya Sabha member operates within a small circle of influence, territorially and politically. Not so an executive president given powers vested in that office by the 1978 constitution, powers that are hardly curtailed by the 17th (thanks to flaw) or would be by the proposed 18th (as things stand). 

I have argued many times that the 1978 constitution is not made for dictators but is made to make dictators.  Its dictatorial inherence is not lost on Ranil Wickremesinghe, for example. He knows.  He is not too keen on amending the 17th (he likes those flaws, we have to conclude) and has not been pushing for the abolition of the executive presidency (certainly not with the determination with which he pushed for negotiations with the LTTE).  Term limits is a mechanism to retire the constitutional dictator. It doesn’t really increase the operational space for democracy or serve to rekindle the democratic spirit; it just allows for the replacement of one has-to-be-dictator by another has-to-be-dictator.  The removal of term limits can only make things worse because it replaces what I call ‘made to make dictators’ with ‘made to make monarchists’.

The 18th is essentially a ‘monarchising’ mechanism.  What it amounts to is procession: from President, to Re-Elected President, to President-for-Life to a hereditary tenure of the office.   This is not fear-mongering.  This is inferring from constitutional history and deferring to notions of the inherent human quest for immortality.  

I am not disputing the legality of constitutional amendment.  The President can get the necessary votes to pass it in Parliament. If the Supreme Court decides that it requires endorsement through referendum, this too he is likely to obtain, given him popularity and a disturbing public preference for personality over principle.

The issue is that it is not about Mahinda Rajapaksa but the office.  People like Mahinda Rajapaksa and might think it is ok to have him as President for another 10 years or more.  That’s not the point here.  The 18th, if passed, makes it possible for ANYONE to be in power for life (i.e. by getting re-elected every 6 years).  Someone can point out that there’s an ‘if’ in that the person has to get elected, and therefore can be ousted at an election.  That’s on paper. The ‘if’ is not ‘big’.  There is a reason why I’ve claimed often that the 1978 constitution is made for a two-term Presidency.  People get elected for 12, not 6, because re-election is assured unless you die or are killed (President Premadasa) or you choose retirement (President Wijetunga). 

SLFPers who are loyal to Mahinda Rajapaksa and who did not like Chandrika Kumaratunga can ask themselves, ‘what if this term-limiting clause was removed when she was in power?’  People can think of the politician they like least and ask ‘what if he/she was President now?’  They could ask themselves, ‘would we risk giving someone like Prabhakaran or Mervin Silva an opportunity to be President for Life, in effect?’ 

Mahinda Rajapaksa had only one thing to worry about: how history remembers him.  He was on a high when the LTTE was defeated during his first term as President.  The 18th, if passed will take him higher in terms of political power.  History was waiting to smile on Mahinda Rajapaksa.  I don’t that smile now though. In fact I see disappointment right now and it looks as though it is shifting to ‘annoyance’. 

Mahinda Rajapaksa should not worry about the frowns of the international community, so-called, or LTTE-lovers masquerading as good-governance gurus.  The people, though, are different. They don’t write the official history, but theirs is the transcript that endures the long centuries. 

Kuveni is loved, Vijaya is not; Ravana is admired, Rama is seen as a fop.  It would be good to wonder why this is so.  There’s a frown waiting to greet Mahinda Rajapaksa in the year 2050 (by which time he and I would probably be dead and gone).  He still has time to secure for himself a happier afterlife.  And a rest-of-this-life where he can go to sleep with a clear conscience. 

*First published in the 'Daily Mirror,' September 6, 2010.

Malinda Seneviratne is the Chief Editor of 'The Nation' and can be reached at msenevira@gmail.com