28 May 2018

Constitutional Reform Poisons: Personalities, Parties and Outcome-Preferences

The Yahapalanists have forgotten this version of the 20th Amendment 

In April 2015 just three months after he assumed leadership of the Sri Lanka Freedom Party (SLFP), President Maithripala Sirisena addressing a party rally at Viharamahadevi Park vowed that the he would get the 20th Amendment passed. 

He was referring to promised legislation that would completely overhaul the proportional representation system which, according to many, was responsible for election violence, high campaign costs made it next to impossible for those without bucks or patronage to contest and in the end made representation a farce.  

Never happened.  Amendments to the Local Government Act was also a farce with the promised ‘mixed system’ being effectively subverted by an equation which ensured that there would be 100% proportional representation.  Similar changes with respect to provincial council elections has been in the Parliament’s back burner since March, even though three provincial councils ended their terms last September and three more are to wind up this September.  

The results of the local government elections in February 2018 have complicated matters, politically.  Having been roundly defeated, the losers have expressed misgivings about the ‘new system’. Some have said that it’s best to go back to the old system.  That’s essentially saying that since the solution wasn’t robust enough let’s drop it altogether without looking to fix it.  

The 20th Amendment is back in the news. No, that the one that Sirisena engaged in chest-beating, but a move by the Janatha Vimukthi Peramuna (JVP) to abolish the Executive Presidency.  

That was an election promise, some may remember. Back then Maithripala Sirisena said he would be a one-term president. He reiterated a commitment to abolishing the Executive Presidency at the funeral of Ven Madoluwawe Sobitha Thera, one of the leading figures in bringing Sirisena to power and an ardent advocate of the same.  

Later, Sirisena sought the opinion of the Supreme Court regarding his term, i.e. whether it would be for five or six years. Court said ‘five’ as per the 19th Amendment. Still later, the man who said he would retire after finishing his term said he won’t retire ‘because the work is not yet done.’  That’s presidential talk, folks.  

The United National Party (UNP) has not really talked of the 20th Amendment, not electoral reform nor the abolishing of the Executive Presidency.  Instead, party stalwarts have said that their leader, Prime Minister Ranil Wickremesinghe would be the UNP candidate at the next presidential election.  

The Joint Opposition has not called for the abolition of the Executive Presidency, but some have said that such a move would be supported if provision is made to amend the 19th Amendment to have Parliament dissolved immediately.

Let’s see what kind of scenario would unfold in the event the Executive Presidency is abolished without coincident electoral reform.  

Considering that an unchanged electoral system is unlikely to give any single political party an absolute parliamentary majority and therefore a coalition government is inevitable, considering that as per the 19th Amendment any coalition government would most likely call itself a ‘national government’ to satisfy the ministerial greed of coalition partners and that this would inevitably produce a jumbo cabinet, we would have political instability and an inflated executive branch (the cabinet).  

Remember that the 13th Amendment still stands, never mind it was thrust down a quiescent president by an arrogant and expansionist Indian Prime Minister who bragged ‘this is the beginning of the Bhutalization of Sri Lanka’.  In such a context, a Sri Lanka with an unstable government and lacking an Executive President will not make a pretty picture (not that the present state of affairs is all rosy of course!).  

One can make the argument that promises made should be kept. If they can’t do it all, we can argue, they should deliver on a few at least.  If not in 100 days, then we can say ‘better late than never’.  However it was a comprehensive package of reform that was promised and not a piecemeal effort that is informed less by correcting systemic flaws than by political expedience.

For example, consider the argument that Thisaranee Gunasekera has made for the abolition of the Executive Presidency in last the ‘Lankadeepa’.  It’s not about election promises. It’s not about re-democratizing Sri Lanka by making inroads into J.R. Jayewardene’s centralizing and draconian constitution of 1978. It is purely about preferred political outcomes or rather antipathy to possible political outcomes.

Thisaranee has concluded that the Yahapalana government is in dire straits. She’s hinted at the distinct possibility that there’s no way that any candidate from either the SLFP or the UNP (meaning Maithripala Sirisena, Ranil Wickremesinghe or any of the top names in either party) can hope to defeat Gotabhaya Rajapaksa at a presidential election. For this reason, i.e. given her fear of Gotabhaya and her antipathy to the current government, Thisaranee advocates the abolishing of the Executive Presidency.

Now Rajapaksa has not declared candidacy yet. However, going by the virulent attacks on the man by the Yahapalanists they are anticipating that he will contest. In fact they are unwittingly raising his profile. It’s as though the Yahapalanists have been contracted to do Gotabhaya’s image-building campaign.  

The obvious fear of facing even a provincial council election shows that the Yahapalanists are on the political backfoot, so to speak.  Having been brought to power to combat nepotism, corruption, outright theft, cronyism and abuse of state resources, the Yahapalanists have been doing what the previous regime did and about which they ranted, raved and frequently howled. There’s one difference though. They have proved that they are a can’t-do and won’t-do bunch. Incompetent, in a word.  No wonder that they fear elections. 

If Gotabhaya seems to be the probably adversary in a presidential election it makes sense that they fear him, not for his alleged tyrannical ways (not that this lot are lambs of course, considering political histories and associations, indulgence and complicity in all kinds of tyrannies), but for the threat he poses to their political futures.  What’s probably closer to the truth is that any candidate put forward by the Sri Lanka Podujana Peramuna (SLPP) has as decent a chance as Gotabhaya to best either Sirisena or Wickremesinghe.  If Provincial Council elections are held, the results will no doubt see the SLPP gain more ground while the UNP will decline and the SLFP slide even more.  In other words it will make a Sirisena candidacy a joke, result in the entire SLFP being absorbed by the SLPP and demoralize the UNP supporter to the point that he/she will be a highly reluctant activist come election time.  

All this is politics. Constitutional reform, however, should not be about the urgent anxieties or gung-ho of politicians. When we consider constitutional reform, we should not assess the worth in terms of our preferences or antipathy to immediate beneficiaries. Indeed, the better rule of thumb would be to imagine a situation where someone or some party that we have no truck with benefitting.  

For example, when Mahinda Rajapaksa sought to do away with term limits for the president through the 18th Amendment, the Rajapaksa loyalist should not have thought ‘well, it’s Mahinda who will benefit, so I am fine with it.’  Rather, he/she should have asked him/herself ‘what if it was Ranil or someone like Prabhakaran who was to be the immediate beneficiary?’  

It’s the same with the 20th Amendment that the JVP has tabled.  Thisaranee’s logic is for the politically sophomoric, those who are invested in party and personality, those who are thinking about their political fortunes. Constitutional reform is a far more serious business. 

Whether the Executive Presidency is to be kept or done away with has to be considered within the larger framework of the functions of a constitution; i.e. whether or not such a move makes sense when taking into account other elements of the constitution, the synergies that are either strengthened or wrecked, the fallout, the marginal benefits and the marginal costs and so on.  

Constitutional reform, the abolishing or pruning or keeping of the Executive Presidency included, should not be about the effect such changes as may be brought about on Ranil Wickremesinghe, Maithripala Sirisena, Gotabhaya Rajapaksa or anyone else or any political party or coalition. It has to make sense in terms of enhancing democracy, meaningful representation, governability, political stability, an institutional arrangement that guarantees transparency and accountability and an improvement of the wellbeing of the citizenry.  

The abolishing of the Executive Presidency has been talked of since 1978.  We have seen a lot of lip-servicing.  A lot of chest-beating.  There’s been very little by way of sober consideration of what could be called the basic functions of a constitution, which we’ve alluded to above.  

Fear-mongering only indicates that those who are calling for the abolishing of the Executive Presidency are irresponsible and utterly anti-intellectual.   

Malinda Seneviratne is a freelance writer. malindasenevi@gmail.com. Twitter: malindasene.