The 19th Amendment: get over it already!

 

There are all kinds of yahapalanists. There are those who cannot be in denial simply because they were right in the middle of the yahapalana project or rather a project by that name (for good governance was certainly not their cup of tea as history showed and practice demonstrated). Then there are those who opted for a change of clothes. Name change, symbol change, address change etc., didn’t make them unrecognizable. SJB and UNP, telephone and elephant, it’s the same. All yahapalanists. The praise and blame accrue to one and all. Well, add to this the Yahapalana Fan Club made of sideline politicians who are double-headed and double-addressed, i.e. rights advocates and professionals.

Now these worthies are big fans of the 19th Amendment. It was great, they say. And they add, ‘the 20th is draconian and dictatorial; it rolled back the gains of the 19th and is even worse than what JR initially instituted in 1978.’  

Where’s the substantiation, though? Let’s take a look.

Let’s start with the brag. The brag of course had to do with the 18th. It also had to do with a peculiar political context where the champion and the intended beneficiary (Ranil Wickremesinghe) led a party that had minority representation in Parliament whereas the man whose powers were to be clipped, Maithripala Sirisena had just assumed office with a majority of the national vote.

The 18th would be effectively repealed, they bragged. It was. The 19th would embody the Yahapalana promise(s). We would have accountability and transparency. Democracy would be enhanced. Good governance assured. Cabinet would be limited to 30 ministers. That was part of the brag. Seniority and meritocracy will mark appointments and promotions, they told us. We know how that fell by the wayside! The independence of the judiciary would be restored, they promised. Well, they made a mockery of the last by turning the Supreme Court into a political circus almost immediately after Sirisena was sworn in as President.

Let’s get to the process which includes the passage of the amendment. It was drafted. Nothing wrong with that. The Supreme Court was petitioned. Nothing wrong with that. The Supreme Court offered a determination. Essentially, important elements of the draft were shot down. Now what did the Yahapalanists do?  Did they follow yahapalana practice to the letter?

Well, the objections were of an order that amending the document in ways that took these into consideration would have violated established parliamentary procedure. Typically, at the committee stage, only minor corrections are made. In other words, yahapalana theory would have required the yahapalanists to withdraw the amendment, get back to the drawing board and come up with a fresh draft.

They didn’t do that. They produced an amendment that was very different to what was tabled. That’s giving a finger to established procedure. Not very yahapalana-like, was it? It only demonstrated (and rather early in the tenure of that regime) that ‘yahapalanaya’ was a lie. A hoax.  It was voted on in the dead of the night by clearly irresponsible and perhaps tired and sleepy MPs. Sarath Weerasekera voted against it. Only he. Kudos to him.

The substance. As mentioned it was about giving power to a man who, at that point, did not have the trust and confidence of the people. One must mention that Wickremesinghe’s swearing-in was also a travesty of established procedure. The incumbent was sacked by way of the newly sworn in President signing a letter. Immediately, i.e. before the letter was delivered, President Sirisena appointed Ranil Wickremesinghe

So it was done. It was done in such a way that no one knew who really called the shots. Ball-passing between the Prime Minister and the President became a common occurrence. Finger-pointing was frequent. It was the easy out for a bunch of people lacking imagination, suffering innovation-lack and who were absolutely incompetent. Things were so confusing that it took the  Supreme Court to say what was what and that too only with respect to dissolution-power. This was when Sirisena joined forces with Mahinda Rajapaksa in late 2018.

Cabinet-size. This was a joke. On paper, we got the number 30. It was cheered. It was bragged about. On paper also was this neat device called ‘National Government’ which the amendment-drafters left undefined. ‘In a “National Government, cabinet size would be determined by Parliament. The matter finally hit the ‘constitutional experts’ in the yahapalana camp only when it could no longer be hidden. When Sirisena took the SLFP out of the coalition, Jayampathy Wickramaratne, the big boss behind the drafting, unashamedly said that since the SLMC (Sri Lanka Muslim Congress) was with the UNP, it remains a ‘national government.’ In other words, in his mind, a bloated cabinet was still constitutional! The yahapalana braggarts maintained a dead silence on the matter.

Much was made of the Constitutional Council (CC) which, the braggarts claimed, corrected the clauses of the 18th that crippled independent institutions. However, in reality, it was Ranil Wickremesinghe’s whims and fancies that held the day. The composition of the CC, naturally and understandably tilted in favor of the regime. It was politician-heavy, which of course wasn’t quite yahapanish. However even the non-politicians (non-political only because they weren’t in Parliament, let’s keep that in mind!) were partisan. Check the names of those ‘civil society’ people in the CC, the names of those appointed to various commissions and the appointments and promotions recommended by the commissions themselves. Friends and loyalists. That’s it. Why else would some of these ‘independents’ resign the moment Gotabaya Rajapaksa was elected President?

So now we have the 20th. Much of the confusion has been sorted out. Some of the better elements of the 19th have been retained. Are we ok now? Of course not. Cabinet size is still not cleared, although President Rajapaksa has kept it within the ceiling mentioned in the 19th. The CC just rubber-stamped Wickremesinghe’s wishes. President Rajapaksa has far more sway and that’s not necessarily a good thing.  Nevertheless, unlike the yahapalana braggarts, he has recommended that the six senior most judges be promoted to the Supreme Court. The yahapalana regime didn’t do that, not even with the so-called democracy-safeguards instituted to ensure independence of the judiciary. If it was Sirisena, Wickremesinghe or even Mahinda Rajapaksa, this might not have been the case. That itself shows the flaw. It should not be dependent on whether or not the incumbent values meritocracy.

Sri Lanka has a long way to go to resolve a simple issue: what’s best for us, a parliament-led system or an executive presidential system of governance? The proposed new constitution might sort this vexed issue out and hopefully in a way that effectively blocks the possibility of abuse.

That said, the 19th is nothing like its champions make it out to be. A piece of trash that did away with another piece of trash (the 18th). Stank. Get over it already.

malindasenevi@gmail.com

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The Constitutional Council and its discontents

naduth-baduth....

The 17th Amendment to the Constitution was passed in October 2001. It took more than a year for it to be implemented, perhaps because lawmakers suddenly realized that they had in their haste in fact legislated against their own interests.

It was all about the Constitutional Council and Independent Commissions. It came with flaws, but the intention was good. In short, it was a mechanism designed to curb the powers of the executive president since the abolition of that office was proving to be difficult, even if such a move was advisable given the reality of the illegally passed 13th Amendment to the Constitution.

The ill-advised 18th Amendment wrecked all of that with the then President, Mahinda Rajapaksa, replacing the Constitutional Council with a Parliamentary Council. The 19th Amendment, if one goes by the rhetoric of its advocates, was about restoring the ‘independence’ of the various commissions and re-curbing the powers of the executive president. In theory. In a nutshell there were four key elements: a) presidential powers to dissolve parliament, b) the appointment and removal of the prime minister, c) the notion of a national government d) the institution of a constitutional council mandated to recommend appointments to independent commissions.

Now, let us mention, parenthetically, that the Supreme Court pointed out serious flaws in the draft amendment and that the lawmakers rather than amending it essentially rewrote it, effectively giving the proverbial finger to the judicial arm of the state.

Later, both ‘a’ and ‘b’ above were brought into question and led to wrangling over interpretation, throwing the country into confusion for several months. The third element, that of a national government was essentially a device to circumvent limitations on cabinet-size. We will talk of ‘f’ shortly. Suffice to say that from draft to legislation and implementation the Yahapalanists turned the 19th Amendment into a classic case of how not to engage in legislation. It was an unadulterated example of classic constitutional tinkering.

The fourth. The Constitutional Council. Now this body is, in theory, the key to the affirmation of the idea of independence when it comes to the various commissions. Obviously the level of independence as evidenced by composition and of course the individuals that make the Council would be what reflects the level of independence in the commission it helps constitute. Composition, then, was key.

This is what Chapter VIIA, Article 4 gave us: the Speaker, the Prime Minister, the Leader of the Opposition, the President’s appointee/representative (from Parliament), five persons nominated jointly by the Prime Minister and the Leader of the Opposition (of whom two would be Members of Parliament) and one representing political parties or independent groups in Parliament to which neither the Prime Minister nor the Leader of the Opposition belong (not necessarily a Member of Parliament).

In effect then, at best, we would have six politicians and four independents. How a body in which politicians make the majority reflects ‘the diversified character of society’ is obviously something that the lawmakers weren’t worried about.

Let’s consider the composition of the Constitutional Council. In 2015, we had the ex-officio members. The President nominated Champika Ranawaka (a serving minister, no less!). The Prime Minister and the Leader of the Opposition decided they will each pick on and then come up with three names jointly. So the Prime Minister nominated Wijeyadasa Rajapaks (yes, also a serving minister) and the Leader of the Opposition nominated John Seneviratne. The ‘independents’ were Dr. A.T. Ariyaratne, the well-known leader of the Sarvodaya Movement, Radhika Coomaraswamy (a well-known operative in the advocacy industry) and Shiby Aziz (former Attorney General).

In 2018 we had the following apart from the ex-officio members: Mahinda Samarasinghe (President’ nominee), Thalatha Athukorala (Prime Minister’s nominee), Chamal Rajapaksa (Opposition Leader’s nominee), Bimal Ratnayake (representing ‘Other Parties’) and the three ‘independents’ — Jayantha Dhanapala (a strong backer of the then regime operating in forums ostensibly to further the cause of democracy but typically remember the term when the UNP is in political trouble), Javed Yusuf (with SLFP roots but politically compromised much like Dhanapala) and Naganathan Selvakkumaran (whose loyalties are unknown and therefore gets the benefit of the doubt).

So we’ve had constitutional councils that were politician-heavy and political compromised, effectively mangling the idea of ‘independence’ in related institutions. Add to this ‘independents’ whose independence is nothing more than not being official members of political parties. Track records reveal however the extent of their independence, politically and ideologically. The same is naturally reflected in the commissions that they set up with the difference that the members of such bodies are neither politicians nor have stated political loyalties. ‘Stated’ is an important word here, let us not forget. It deceives more than clarifies, hides more than reveals.

If the 19th doesn’t work and if we still want ‘independent’ commissions, then the 19th should be amended. That’s obvious. An alternative course of action would be to do away with independent commissions which have, over the past 18 years, proved to be ineffective in affirming the ideal of independence. It would be better to have accountability. In a word, representation. In other words let the executive branch of the state and the relevant protocols of appointment and promotion prevail. The Parliamentary Council (as per the 18th) is far more honest and its effectiveness as good or bad as the Constitutional Councils that followed.

What’s fundamental here is what underlines the need for such commissions, namely the ineffectiveness and even corruption of systems. In other words, the lack of safeguards regarding the same. It’s like the Financial Crimes Investigation Division (FCID) and of course the many Presidential Commissions of Inquiry we’ve had over the years. Their constitution clearly imply that existing systems (courts and police) were and are (as the case may be) ineffective. The logical course of action would be to institute systemic reform. While the need for quick action is understandable, system-fixing should not be supplemented by such ad hoc measures, one would think. However, such fixing has been abandoned altogether and the remedies have been marked by one thing and one thing alone. Political expedience. Victimization, yes. Vendetta, yes.

And so, if we were to go with the commission of the moment, if you will, we need to talk of the Election Commission. We have that ‘august’ body telling us that distributing relief in the form of a Rs 5000 hand-out is wrong since it gives a political edge to the ruling party, even as it argues in court that it is unable to conduct elections! That’s having the cake and eating it. The proverbial raevula as well as the keenda. Mahinda Deshapriya is washing stuff, immersing it all in muddy water and washing it. Again and again. As per hoda hoda madey daanava.

He has hand-picked public officials with known political loyalties to say ‘we can’t help you conduct elections.’ Arguably, even if one Divisional Secretary, for example, says ‘no can do,’ then the doing of it has to be postponed. The reasons may be mischievous of legitimate. I would assume it’s the latter. However, if just three say ‘can’t’ and 253 say ‘can’ then it would seem clear that elections can be held. Special measures can be put in place to sort out the problems in the problematic three divisions, surely? But Deshapriya hangs on to the ‘three’ and says ‘no.’


And then we have Ratnajeevan Hoole, who is now a member of the Election Commission and now an independent citizen. Officially above politics and political parties, but in reality politically and ideologically committed to the line taken by the Tamil National Alliance. He slips and flounders often, like when he wrote about M.A. Sumanthiran’s take on federalism (‘we will go for it without naming it’). Does anyone know the third member of that commission, one should ask? The third member is present more in absence, given the penchant that the other two have for issuing statements, Deshapriya as per official requirement obtained from being Chairperson and Hoole because he is, well, Hoole, a maverick and confused political creature if ever there was one.

Who appointed these people? Why, the CC, the Constitutional Council! How so? Why, the 19th Amendment!

Obviously this is not the moment to go for constitutional reform with respect to the 19th Amendment and all its flaws. Matters relating to the holding of parliamentary elections is before the courts. The court will determine in its wisdom, so let us not presume anything here. However, sooner or later, we need to go for system-fix and not sticking-plaster solutions. Integrity, clearly cannot be obtained from constitutional article and relevant caveat. Efficiency, on the other hand, can be the issue of a robust institutional arrangement with a clear procedural regime.

So what can we say about the Constitutional Council as per the 19th Amendment? It’s easy to say ‘the less said, the better.’ We should talk about it and such a discussion will certainly not cover with glory its architects, those parliamentarians who voted for it or their relevant cheering squads.

 

 

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Hypocrisy in the name of Democracy

‘I’M NOT HERE FOR RANIL, I’M HERE FOR DEMOCRACY AND GOOD GOVERNANCE.’ This was a poster or rather sentiments that appeared to be popular at the demonstration in Kollupitiya last week following President Maithripala Sirisena’s decision to sack Ranil Wickremesinghe and appoint Mahinda Rajapaksa as Prime Minister. 

Really? Really, really????

One of the better definitions of democracy is that it refers to ‘a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.’ And yet, this definition does not speak to the political economy in which the democratic process unfolds. For example, we know that people have to vote only for those who actually contest, and candidacy is not a squeaky clean matter. Only a certain kind of person can contest or rather only a certain kind of person has a good chance of winning. There are exceptions, but this is the rule.  

Different countries have different systems where representation is obtained. The United States of America, for example, selects rather than elects her Presidents. There are other realities which rebel against the fundamental tenets of a sound democratic process best exemplified by the outright robbery that took place in the 2000 US Presidential Election. Malcolm X saw this early. Well, it was not a secret as far as African Americans and other non-white peoples in that country were concerned. Malcolm X didn’t mince his words: ‘This is American democracy and those of you who are familiar with it know that in American democracy is hypocrisy.’

More caustic was the following observation which factored in the reality of an uneven, unequal and unjust polity: ‘democracy is an exercise in which the majority of people choose the sauce with which they are to be eaten.’

Nevertheless, ’democracy’ is the word in the streets. To put it more accurately, ‘democracy is the word in the Opposition Street.’ Democracy does not begin when parliament is dissolved and does not end when results are announced. However, since it’s representation through elections that’s being talked of it is good to think about how democracy has been played (and ignored) over the years.

When the first post-Independence elections were held, the Father of the Nation, so-called, stood at the ballot box with a club in hand ‘to protect democracy’.  Intimidation, tampering with ballot-boxes and such became part of the story thereafter. And yet on that occasion and thereafter whenever democracy came under threat or was subverted, the beneficiaries and their loyalists were quiet for the most part. Many have to say ‘sorry’. Indeed it would be possible to come up with a list of the ‘sorrowful’ IF remorse was part of their civic make-up.

Here’s a list, incomplete of course, but let’s call it a collective apology without thinking too much about whether or not the apologetic are still around. [Note: for reasons of space, we will not detail abuse that’s common such as intimidation of voters, violence against opponents, misuse of state resources etc., and we shall leave out the 'squeaky clean' gurus of Democracy and Decency in the International Community who are no different from the kinds of people mentioned below. We will not talk of those for whom extrajudicial killing of thousands upon thousands in the eighties was ok. We will not talk of those for whom similar excesses in the North and East during the war against terrorism was ok. We won’t talk of those who uttered not a word when the LTTE blew up buses, trains and carried out suicide attacks on civilians].

‘Those of us who knew of D.S. Senanayake’s strange notions of democracy and were silent…

‘Those of us who were silent when Mrs Sirimavo Bandaranaike abused parliamentary numbers and constitutional provisions in 1975 to extend the life of Parliament by two years...

‘Those of us who were silent, on account of political loyalty, when J.R. Jayewardene and the United National Party promulgated the Second Republican Constitution in 1978 which is widely recognized as being responsible for much of the democratic deficits on account of which there’s been much suffering.... 

'Those of us who were silence, on account of political loyalty, over the skullduggery and horrendous violation of basic democratic principles in the Referendum and Presidential Election of 1982...

‘Those of us who were silent, on account of political loyalty, when the Constitution was amended no less than 16 times during the J.R. Jayewardena years, mostly for partisan reasons, including the 13th Amendment that gave credence to Eelamist myth-modeling among other tragedies… 

‘Those of us who were silent, on account of political loyalty, when the Janatha Vimukthi Peramuna (JVP) warned that the first person who dared vote at each polling station in the various elections held in 1988 and 1989 would be shot dead and did in fact shoot hundreds…

‘Those of us who were silent, on account of political loyalty, when the Chandrika Kumaratunga regime orchestrated a move to get Chief Justice Sarath N Silva to facilitate crossovers in Parliament… 

‘Those of us who were silent when a group of Parliamentarians crossed over to the UNP in 2001, thereby tilting numbers against the elected government…

‘Those of us who were silent, on account of political loyalty, regarding the flaws of the well-intentioned 17th Amendment in 2001…

‘Those of us who were silent, on account of political loyalty, when the United National Front (UNF) Government of Ranil Wickremesinghe, with the support of President Kumaratunga, bypassed Parliament and the people to sign an agreement with the LTTE in February 2001…

‘Those of us who were silent, on account of political loyalty, President Kumaratunga took over three key ministries and thereby scuttled the UNF Government in 2003…

‘Those of us who were silent, on account of political loyalty, when Mahinda Rajapaksa introduced and got Parliament to pass the patently anti-democracy 18th Amendment in September 2010…

‘Those of us who were silent, on account of political loyalty, in all party elections under constitutions that favored the particular leader, especially that of the United National Party…

‘Those of us who were silent Those of us who were silent, on account of political loyalty, when President Sirisena appointed Ranil Wickremesinghe as Prime Minister in January 2015 when, at that time, he commanded a parliamentary strength of only a little over 40…

‘Those of us who were silent, on account of political loyalty, when parliamentarians of the Sri Lanka Freedom Party (SLFP) expressed support to the Yahapalana Government, again in January 2015…

‘Those of us who were silent, on account of political loyalty, when the Yahapalana Government Sirisena and Wickremesinghe in April 2015 promulgated the horrendously flawed 19th Amendment and especially the deliberately vaguely-worded term ‘National Government’ which is at the heart of the current political and constitutional imbroglio… 

‘Those of us who were silent, on account of political loyalty, when the Yahapalana Government dissolved Parliament in June 2015 to stop the damning COPE report on the Central Bank bond scam was to be presented to Parliament…

‘Those of us who were silent, on account of political loyalty, when President Sirisena arbitrarily sacked the Secretaries of the SLFP and the United People’s Freedom Alliance (UPFA), appointed loyalists in their place and effectively crucified the relevant Central Committees through a court order days before the General Election in 2015…

‘Those of us who were silent, on account of political loyalty, when President Sirisena arbitrarily sacked Ranil Wickremesinghe and appointed Mahinda Rajapaksa as Prime Minister on October 26, 2018…

‘Those of us who were silent when Ranil Wickremesinghe (on behalf of the UNP) and Maithripala Sirisena (on behalf of the SLFP) postponed local government elections and provincial council elections…

‘All of us, without exception, individually and collectively, are sorry. Sorry, democracy, we have abused your name, we have ranted and raved about you being violated only when we found ourselves at the receiving end of villainy and were silent and indeed not averse to cheering when such violence benefited the camps we belonged to or supported.’ 

Perhaps every single citizen who has voiced objections in the name of democracy and good governance selectively, can converge on Galle Face Green one of these days, each carrying a placard with the following legend: ‘I ONLY SAY “I’M HERE FOR DEMOCRACY AND GOOD GOVERNANCE, BUT I AM REALLY HERE FOR <add name of preferred politician or political party>’.  

Bottom line, if you are serious about democracy, you just cannot be a hypocrite, you cannot be selective. It just sounds stupid. 

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No government in the country or no country in the government?

The Mahanayaka Theras of three Nikayas and other Sangha Sabhas, expressing their opinion on constitutional reform, have made it clear that they are opposed to moves "that could generate crises".  

While calling for immediate electoral reform, this Sangha Council headed by the Mahanayaka Theras that met in Kandy recently has urged that the ratification of the International Convention for the Protection of All Persons from Enforced Disappearances (“Convention on Enforced Disappearances” henceforth) through a bill in Parliament be postponed in order to give parliamentarians more time to study the same.  They have also asked that a special committee be appointed to look into the grievances of Buddhists with regard to religion and culture in the context of ‘prevailing racial and religious unrest’, pointing out also that religious places of archaeological importance should be protected.  Finally, they’ve called for  speedy resolution to the ‘SAITM crisis’.  

Let’s focus on constitutional reform.  Constitutional reform is a serious matter and demands sober reflection on proposals followed by intelligent debate among law-makers, ideally complemented by public discussion on the relevant subject.  That has not been the tradition in Sri Lanka, unfortunately.  

The 13th Amendment, following the Indo-Lanka Accord was introduced in part while the people were kept in the dark about the contents.  Just before the United National Party lost the two-thirds parliamentary edged secured through the shameful Referendum of 1982, the government led by that party muscled in several partisan amendments.  Mahinda Rajapaksa bulldozed through Parliament with the 18th Amendment.  

Even the relatively progressive 17th and 19th Amendments were hardly debated, the former perhaps due to the parivasa circumstances that birthed it and the latter probably because the President wanted certain powers retained and the parliamentarians wanted sway in appointments to the independent commissions.  

This partisan history naturally raises doubts over clarity and intention.  The case for reform has certainly not been helped by vicious and vindictive way in which this administration has gone after military personnel accused of numerous violation even as it has mollycoddled known terrorists and has bent over backwards to please the political and administrative ‘near and dear’ of the LTTE.  

The Mahanayaka Theras, then, are expressing a set of concerns that many nationalists groups have raised.  The concerns are legitimate for other reasons too.  

Those who have backed bills such as this have at times also called for federalism, have demanded that the LTTE be given parity of status, bemoaned the military offensive against the LTTE (even though the LTTE was holding hundreds of thousands of Tamils hostage) and have been marked by a manifest and rabid anti-Buddhist rhetoric. 

However, what mostly strengthens the argument for caution in constitutional reform is the sloth, arrogance and mal-intent demonstrated by this government on this subject.  We already mentioned the 19th Amendment.  It was designed to keep the cabinet inflated through the dubious clause called ‘national government’.  It made the ‘independence’ of independent commissions a joke.  And quite in contrast to solemn campaign pledges, it left the executive presidency pretty much intact.  Even today with a single and modest tweak, the President can turn the political equation upside down.  That ‘privilege’ tells us how much ‘reform’ was deemed ‘enough’ by the reformers.  To the detriment of the citizen of course.

Then there is the zero-action on electoral reform.  This, by the way, is what gives legitimacy to the declaration by the Mahanayakas.  In April 2015, the President vowed to supporters of his party gathered at Vihara Maha Devi Park that he will see election reform through.  It’s more than two years now.  There isn’t even a murmur on this subject.  

Local government elections keep getting postponed for reasons that cannot be denied — this regime is scared to open itself to assessment by the people and each passing day the fear increases.  

The only security (in a relative sense) that parliamentarians have in terms of their political future, under these circumstances, is the very proportional representation system that electoral reform was supposed to do away with or at least amend.  

The Government should, logically and morally, first deliver on promises made to the people of this country before ratifying through legislation international protocols or conventions it has seen fit to endorse.   President Maithripala Sirisena has said ‘anyone watching TV [would] feel that there’s no government in the country.’  He is dismayed that ‘development activities, people's welfare, the peaceful situation in the country’ are not being covered.  

Well, all these claims can be contested and they have for good reasons too.  However the ‘no government in the country’ principally flows from the fact that this government seems answerable to unknown non-nationals and is deaf to the pleas of the citizens.  In other words, there’s no country in this government.  The Mahanayaka Theras’ plea, one could read, is one which argues for the re-inclusion of nation in this government. A tall order at this point, one might say, but then again this is what might give longevity and relevance to this regime.  

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

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Mahinda Rajapaksa and third-term blues

There were cries of horror when Mahinda Rajapaksa was getting ready to bring in legislation to do away with presidential term limits.   Some of the objectors and objections were of course coloured by political preferences.  Had it been Ranil, for example, many of the objectors may very well have been quiet.  After all, among the older set of objectors were those who were silent during the anti-democratic referendum of 1982, proposed by J.R. Jayewardena.  There was similar silence on the part of those who supported Rajapaksa and the then Government.  The following is one of several articles I wrote objecting to the 18th Amendment.  This was published in the now defunct Sunday Lakbima News on May 9, 2010.   

It was the time of rubber hitting tar.  The make-or-break moment.  The now-or-nothing time of a school year. That’s what ‘third term’ meant and probably still means to school children.  You’ve taken things easy over the first two terms. You’ve cheered your team, gone for sports practice, done your scouting or guiding, immersed yourself in school plays and what not and all of a sudden you are in September and wondering how it is that you don’t have all your notes, hardly understand what the teachers are saying and what happened to ‘fun’. 

That’s third term.  It’s not a fun time.  It is about coming face to face with the reality that you really need to hit your books. That’s ‘third term’ in schools.  But this ‘third term’ is not that ‘third term’ and we are not talking about school children, but a seasoned politician.  His name is Mahinda Rajapaksa, President of Sri Lanka.

Ever since J.R.Jayewardena came up with that horrendously anti-democratic document called the Second Republican Constitution in 1978, there’s been a lot of talk about reforming it and indeed re-writing it.  Sadly, the conditions for re-writing were themselves embedded in that flawed document and seemed forbidding to the point of despair and project-abandonment. 

The Constitution was amended 17 times, but on the first 16 occasions the then government had a two-thirds majority thanks to a) the UNP’s landslide victory on July 22, 1977 and b) to the counter-democratic ‘referendum’ of 1982, and the 17^th a product of a rare number-quirk in Parliament. 

There’s been talk of course.  People like doing that.  So they’ve talked about amending, reforming, overhauling etc etc., and thrown in issues such as better governance, more balance in the separation of powers and resolving ‘ethnic’ conflict. The entire debate over the years has been presided over, interestingly, by the Executive Presidency.  ‘It has got to go’ some have screamed.  ‘It must be reformed’ others suggested.  Some said ‘let’s curtail the powers of the President’.  ‘Back to the Westminster system,’ some recommended and others said ‘let’s have a mix’. 

There was very little talk of doing away with term limits for the Executive President or making the current ‘two’ into ‘three’.  The reason was the rigidity and reform-resistant character of the Constitution.  For almost two decades we got just one Amendment and this too was a quirk (and flawed, let us remember), so constitutional reform was good for conversation and little else. It is not surprising then that people didn’t consider the ‘term limit’ issue.

The unthinkable happened, thanks to a number of reasons which we shall not go into here: Mahinda Rajapaksa and the UPFA are very close to the two-thirds necessary for getting an Amendment passed.  They are short of some 6 MPs and persuading that number of MPs to switch allegiance cannot be difficult given realities and the President’s track-record at persuasion. Now, all of a sudden there’s talk of the President mulling over an amendment to either do away with the two-term limit or to make it a maximum of three.  Political reality indicates that he go for either option and win the right to stand for re-election. 

Mahinda Rajapaksa as President-elect in the year 2016 or thereabouts: Is this good or bad?   I prefer not to focus on personalities.  

The logic of term limits is to make allowances for frailties of the powerful. Power changes people and history has shown that the best of men and woman when holding power for too long, get lazy, arrogant and destructive.  People are popular.  They feed personality cults.  Personality cults can quickly transform into deification with the relevant deity being both kapurala and aathuraya that attends to him/herself and comes to him/her for succor respectively.  There is a well-trodden path from api wenuwen api to oba wenuwen mama to mama wenuwen oba to mama wenuwen mama (from ‘us for ourselves’ to ‘me for you’ to ‘you for me’ to ‘I for myself’). No human being can give any guarantee that he/she would choose not to walk this path and especially not when enjoying lots and lots of power and an ‘honest’ sense of being God Father/Mother to a nation.   

There is no such thing as a Perfect President.  We always pick who we think would be best among the contenders, or, more typically, the least bad in the pack.  We always get a consolation prize.  Someone can say ‘Mahinda is doing well and probably better than Ranil would have or Sarath or anyone else; let’s give him a third term’.  Another can say ‘I think Ranil would have done a better job; we can’t afford to give Mahinda one more term!’

I think we should go beyond names.  It is not about liking the incumbent or disliking him.  It is about the institution and what happens to it.  Just think of someone who according to you is really bad news.  Chandrika Kumaratunga was called ‘Chaura Regina’ (Thieving Queen).  What if she had that option, i.e. going for a third term?  She would have used all resources at her disposal, legal and otherwise, to secure victory, wouldn’t she?  What then?

It’s the story of the Pied Piper of Hamlin all over again.  An instrument that is useful and good in one instance can be employed to cause harm and heartbreak in another.  The bottom line is President A might be popular on Day 1 but could decide at any point to be the worst possible tyrant.  A term limit imposes a D-Day for such a man/woman.   

On the other hand, if President A governs according to the Dasa Raja Dharma (the Ten Qualities for Good Governance), he/she will not go into a slothful retirement.  We have, for example, Jimmy Carter (US President) and Al Gore (US Vice President and Presidential Candidate) whose utility value did not diminish but indeed was enhanced after leaving office.  We have also Chandrika Kumaratunga and George W. Bush.  Negligible.

What a particular president does or doe not do in the morning after and afterwards is not important to us.  What is important is the worth of the proposal.  A third term for Mahinda Rajapaksa would be good news for the UPFA and Mahinda’s near and dear.  It would be a nightmare for Ranil, Sajith and the UNP.  My political preferences notwithstanding, I don’t think it is a good idea for any single individual, not Mahinda, not Ranil, not Sajith and not even myself to be given that much sway over the affairs of a nation because we are not talking about the anxieties of a schoolboy truant here.

Malinda Seneviratne is a freelance writer who can be reached at malindasenevi@gmail.com  

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Conversations with Sarath N Silva

These are moving-around days.  There’s talk of people crossing party lines.  There are people plotting regime-change.  There are people getting ready to counter such moves.  People are talking to people.  We have the Constitution Abolishers.  We have the Constitution Amenders.  Then there are people trying to cobble together parties and other political groups as well as prominent personalities in a grand coalition that would support a ‘Common Candidate from the Opposition’.  These same people are also busy trying to find a ‘Common Candidate’.

These are talking days.  Some people are smelling blood.  Others smell something else, but thinking it has to be blood, are salivating.  Still others are not taking chances and are focusing on closing ranks.  They are keeping partners under check even as they try to woo key members of the other side.  Others are watching.  Some are listening. 

Even the biggest talkers must have a breather.  During a break in a long discussion that had already taken half a day, a man called Sarath N Silva found himself in a parallel universe called ‘Humility’.  He was not alone.   Those present had been discussing the Constitution, its inherent ills, its significant positives and the virtues of amending or abrogating the same.  But in this calmer and less loquacious place, no one wanted to ‘continue the conversation over a cup of tea or coffee’ as one of the key organizers had suggested.  They spoke of other things. 

‘Why did you do it, Sir?’ a green-eyed MP from the Opposition asked the ex Chief Justice. 

Before the man could respond, a man red-eyed from sleep-lack on account of thinking too much about a blunder made in 2005 blurted out, ‘he always played politics!’ 

‘Yes, first with the lady and then with the gent!’ murmured the head of an NGO currently under a massive cloud due to allegations of fraud.

‘Come, come, let us not quarrel here…we have to focus on the objective and we have to put aside our differences.  We can’t afford to dwell on the past.  We must look to the future.’  That was a bikkhu who some thought might be The Answer but others felt could only be a weaker SF.

‘But we are on a break right now,’ the green-eyed one protested.

‘I’ve already said that I was in error.  What more do you want?’ 

‘In error?  Are you serious?  You’ve not only ensured that the Opposition gets weaker by the day but made sure that whoever wins can turn a wafer-thin majority into a two-thirds majority!’

‘Oh that?  I thought you were talking about Helping Hambantota!’ the ex-judge said.

‘That’s history.  I am talking about people crossing over and how the ruling you gave facilitated it.’

‘Yes, yes.  So what was your question again?’

‘Why did you do it?’

‘Well, our rathu sahodaraya, was correct.  Deep down I am a political animal.  Like anyone else.’

‘Oh no.  Don’t flatter yourself.  There have been many CJs who remained untouched by the dirty and crass of politics.’

‘Good for them.  I am a connoisseur of this thing called “The Art of the Possible”.  I did my bit. Indeed that’s what I am doing now too.  People objected when I determined when Chandrika’s term ends.  People objected to the Helping Hambantota decision.  People even objected to my ruling on MPs crossing over.  Look around you.  Most, if not all of these objectors, have either benefited from my decisions or else have become fond of obtaining my advice.  You people should know that there are no permanent enemies of friends.    It’s the same for political positions.’

‘But we expect more from someone like you, Sir!’

‘I didn’t flatter myself, so why are you trying to make out that I ought to behave in a way that is flatter-worthy?’ Silva raised the obvious question.

‘It’s this.  We are confused.  We don’t know who is who.  He or she who is with the Government today may be with us tomorrow, but it’s more likely that the person who we call comrade and with who we plot and plan to oust the regime will be on their side the day after.  We just can’t trust anyone.  It’s ok being in the opposition.  If we have to wait for six years, we will.  But there has to be some basic kind of predictability.  You’ve done away with that!’

‘Son, let me tell you a secret.  People think and I let them think that for all my expertise on constitutions and separation of power, and indeed my self-proclaimed deep study of the scriptures, I remain a creature fascinated by the political.’

‘Go on..’

‘It’s a cover!’

‘What do you mean?’

‘I did all that and do all that I do now because I am at the core a very lonely person leading a humorless life.  I did all that and do all that I do now because I need some entertainment!  Your agitation amuses me.  As for your confusion, what do you think I am laughing off as I roll on the floor when I get home?’

‘Break over!’ the bikkhus said.

‘Ehey haamuduruwane,’ the others said in unison.  Sarath N Silva was grinning.  The others were not.  

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The death-wish of a constitution

Constitutions are made, talked about, cursed and amended.  They never speak although they frame much of what happens in a country.  In a parallel universe constitutions would talk.  They would, as the Americans of the US say 'kick ass'.  They would complain of aches and pains.  In a parallel universe the Second Republican Constitution of Sri Lanka (democratic, socialist, let's not forget!) or the 'JR Jayewardena Constitution' would have a lot to say.  We could but transcribe. 

No one is made perfect.  Even things of ‘top quality’ decay and perish.  It’s just a matter of time.  Of course there’s a lot of resistance.  When there’s ‘break’, there’s often an attempt to ‘mend’.  Patch-up. Even when there’s no perceivable flaw, things are done to enhance.  Upgrade.  In my case, both patch-up and upgrade have one name: amendment. 

I was birthed in 1978.  There were a few at the time who wanted me strangled at birth, but the movers and shakers of the time had enough push and pull to get me out.  I was no perfect baby.  I came with many flaws that were etched into my DNA by my makers.  Even those who blindly cheered my birth, in time, concluded that I was not as pretty as they first thought and that I didn’t live up to my promise. 

So, from time to time, I was fixed.  Tweaked, some say.  They all said it was for my own good.  It was as though everyone who tinkered with me wanted me to live forever.   But I know better.  It was not my longevity that the ‘tweakers’ were concerned about, it was theirs.   It reminded me of that old song by Lobo, ‘Love me for what I am’.

I can’t give any more of my soul away

And still look myself in the mirror everyday

I can’t change any more

Of what makes me be myself

And still have enough left

Not to be somebody else.

Only, I had nothing to do with it.  It was all done to me.  Not only was I twisted and turned, I was read and interpreted.  I was named and identified.  It’s the worst thing I can think of.  I was never myself but always what others saw me as.  For their own purposes of course.

So I am not fooled by this mending talk.  Amending, rather.  It’s not about me.   I have a grandaunt on the other side of the world.  (A)mended 27 times in 225 years or roughly once every 9 years.  Well, she had a serious birth defect and had to have some 10 operations in her first year.   So if you don’t count those it’s about on ‘repair’ every 13 years.  And here I am, just 36 years old and already ‘fixed’ 18 times.  That’s once every two years on average.  I am beginning to think that this is because no one realized I was deformed at birth. 

Anyway, now there’s talk of further fixing.  I’ve suffered 18 operations.  It takes a toll on the old body you know.  I don’t think I can go under the knife again and survive.  That’s only so much a body can take.    I am done.  I don’t want it.  I want out.  I want out like that dramatic line in Kingsley Peiris’ catchy song, Podi Kale Maranda Welle. 

රුචිරානනී අහන්න.....එක පාර මා මරන්න

“Listen, beloved!  Kill me once and for all!”

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The phenomenon that is Mahinda

It is four years since the 18^th Amendment to the Constitution came into effect.  It was dismissed at the time and occasionally since then as a subversion of the democratic spirit and further entrenchment of dictatorial provisions in the J R Jayewardene Constitution of 1978.

Now, four years later, the 18^th Amendment is in the news ago.  There’s little or no talk of democracy or dictatorship.  The focus is one individual, Mahinda Rajapaksa.  The question that is being addressed is whether or not he can run for a third term. 

What is strange is that all the self-proclaimed constitutional pundits appear to have been in deep slumber for 4 years.  That, or else, they were waiting for the right moment to spring this ‘objection’, aiming clearly to catch the President and his backers off guard. 

It was the former Chief Justice Sarath N Silva who raised the issue first.  Sections of the Opposition as well as prominent NGOs with dubious track records such as the Centre for Policy Alternatives (recently accused of widespread fraud) have got on the bandwagon.  It smacks of regime-hatred more than democracy-love. 

So there’s objection and objection to objection.  Silva’s argument, notwithstanding the problematic nature of his position given his role in current political processes, has excited the Opposition to the point of distraction.  The focus is not on promoting a candidate capable of winning it all (the Opposition seems hard pressed to find such a candidate, in fact), but on stopping the president from contesting.  Silva’s argument however is just one interpretation and an interpretation that has too many holes as has been pointed out by commentators who are not exactly regime-lovers.

Time will tell if Silva’s objection will be upheld by the relevant authorities.  Right now it seems that when the Opposition says ‘Mahinda Cannot’ it is really saying ‘Mahinda cannot be defeated’.  It’s a sophomoric way of conceding that the President is too strong a candidate to contend with.   In other words, the Opposition (either in parts of together) cannot come up with a candidate that can go head-to-head with the President on charisma, accomplishment and the promise of all-important political stability, even if such a candidate could come up with a plus in a compare-contrast of respective negatives (of Rajapaksa and the Government on one side and on the other the candidate and his/her backers).   The best bet, then, is to get the man off the ballot!

Interestingly, this lack of human resources is not the preserve of the Opposition.    Even the UPFA cannot come up with a name that has the kind of overall appeal the President enjoys.  If he were to back down, for example, the Opposition might think, ‘we have an outside chance against an alternative candidate,’ while the ruling coalition would be less cock-sure than it is now. 

It would be simplistic to attribute this state of affairs to the fact of incumbency.  Incumbency helps no doubt, given constitutional provisions and a scandalous culture of abuse by whoever is in power.  An alternative candidate has less edge than incumbent but edge there will certainly be.  In this case, the seeming ‘invincibility’ derives from multiple factors.  These include the defeat of the LTTE, a growing economy, a ‘doer’ image which is felt in concrete terms, a general deference of the voter to a person of proven strength and a general perception among a significant section of the population that whatever the faults (his and his government) Mahinda is ‘one of us’.

The voter might not like the Government, might be appalled by the strong arm tactics of ministers, MPs and members in other elected bodies, disgusted by the flaunting of wealth by the president’s ‘near and dear’ and yet might find no one half as suitable to lead the country.  Not in the ranks of the government and not among the Opposition.  This is why, perhaps, that the Opposition is clinging to the Sarath N Silva ‘point’ while those in the ruling party are so keen to dismiss the same.   

‘Mahinda’, then, is a one-of-a-kind phenomenon, whether anyone likes it or not and whether it is good or bad for democracy.   “Government by Mahinda, with Mahinda and for Mahinda and his ‘near and dear’ over and above the rest of the people never mind budgetary tidbits tossed with election in mind” is, in a democratic sense, clearly second best to “Government by the people, with the people and for the people”.

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Freedom of information a must in a democratizing process

In May 2009 and for a few months thereafter Colombo appeared (as it had appeared for several years) like a besieged and threatened city. ‘High Security Alert’ seemed to be written all over the face of the capital.   There were those who took umbrage at what was seen to be infringement on freedoms and the deliberate gagging of democracy.  Fortunately such people don’t always end up having to defend a nation and the citizenry from ruthless terrorists or negotiate the terms of plunder and subjugation with big-name bullies in the international community. 

It is good, however, that they do what they do, because even while extraordinary circumstances call for extraordinary measures, someone has to keep reminding people that there is a thing called ‘ordinary’ and as such ‘ordinary measures’ too; ‘extraordinary’ has a relatively short life expectancy and in the case of Sri Lanka, May 2009 was scripted to happen as far back as November 2005.  Sure, their objective was less about democracy than about giving the LTTE breathing space and yes, their shrill whines on these matters are still the product of regime-hate and determination to win for Eelam myth-mongers what Eelamist-militants could not achieve through 30 years of terrorism.  That’s beside the point. 

Since May 2009, it is clearly evident that the city landscape has undergone and continues to undergo a massive overhaul.  The barricades are all but gone. Checkpoints and checking have almost disappeared.  Surveillance seems to have gone underground.  ‘Extraordinary Measures’ on the other hand are quite visible on the streets. Both the attack on protesting garment industry workers in Katunayake as well as the attack on a TNA meeting by soldiers prove (if proof indeed were necessary) that the Government has not retired the coercive instruments available in the state apparatus. 

Now it is usual for regimes to switch to coercion when its ideological sway on a population starts slipping.  Jittery politicians however tend to trip the political clock.  They tend to lose faith in their constituency long before the constituency begins to lose faith in them.  This government is betraying exactly this.  The use of force is legitimate in a just war. Nothing else.  The use of force is contemplated when political control slips or is seen to be slipping. That’s the politician’s problem and not something that the citizenry needs to worry about. 

I have, from the time the CFA was signed, insisted that if the path of negotiation is to yield any lasting benefits, then demilitarization should be paralleled with moves towards democratization. I have also argued that the process of democratization should not be abandoned after the military threat is met and eliminated.  Things don’t happen overnight, I know.  On the other hand, we’ve had 769 nights since May 19, 2009.  In general I am in favour of incremental change, especially given the dynamics of Sri Lankan politics.  I am not in favour, however, of ‘dead-slow’! 

I know that Sri Lanka has a constitution that is made to make dictatorships and also designed to ensure a weak opposition.  The 1978 constitution was anti-democratic.  Subsequent amendments made it worse. The 17^th Amendment which sought to correct in favour of democracy and citizen was flawed. The 18^th Amendment threw baby with bathwater. We not only have a weak opposition but one which has shot itself in the foot over and over again by playing petty politics and pandering to the whims and fancies of forces that wanted the LTTE to prevail over the security forces; it was and is motivated by opposition for the sake of opposition and political chair-switch as opposed to championing the national interest.  Karu Jayasuriya’s ‘Private Member’s Bill’ pertaining to Freedom of Information was a welcome move, in this context.

The Government using superior numbers in parliament defeated the Bill.  Perhaps the reason was a simple matter of being scared that the opposition, by getting a bill passed, would score points and claim that the Government’s popularity was on the decline.  That’s petty of course but then again politicians are anything if not petty.  The Government has stated that it will come up with its own Bill on the subject and the generous response would be ‘that’s something!’  Common sense says, ‘go tell that to the mountains!’ 

There is absolutely nothing wrong with this Bill, but by rejecting it, the Government seems to be wary of the investigative potential in it.  It indicates that there’s something to hide and fear that the hidden will be unearthed.  It also could indicate a desire to keep the lid on certain activities that are planned. 

We are in post May 2009.  We are more than two years into post-Prabhakaran. We are not in post-Eelamism or post-LTTE.  There is still ‘threat’, that’s very clear.  We are however in a Sri Lanka that is not only about countering separatism but a Sri Lanka of having-to-live.  This Bill in no way compromises efforts to counter malicious moves here and abroad that are motivated by regime-hatred and/or desire to divide the country, directly or incrementally (by ‘fixing’ Eelam boundaries through devolution, for instance, as per the Chelvanayakam Option of ‘A little now, more later’).  It contains caveats related to national security. 

We have come far enough on the post-Prabhakaran road to warrant a removal of physical barriers.  The political barriers must now be lifted; incrementally, if necessary, sure, but they must go.  The Government needs to recognize that its sincerity regarding a ‘New’ Sri Lanka and one that deserves the ‘Miracle’ tag is under scrutiny, not by its enemies, but its friends and of course that the general public has the right to indulge in such scrutiny regardless of ‘constraints’ that politicians face.    

MahindaRajapaksa could be remembered as the man who united the country and brought about peace after thirty long years of misery.  He could also be remembered as the man who secured national boundaries and then buried democracy within those lines.  It’s about legacy, Mr. President.  That’s as far as you are concerned. As for us, how history remembers you is a matter for history; for us, it is how life unfolds and stops. Or is stopped.  Defeating the LTTE and giving us breathing space is appreciated and applauded. Rewarded too. That’s no license to gag the people.

*This article was first published on June 28, 2011 in the Daily Mirror, for which I wrote a weekly column titled ‘Subterranean Transcripts’

Malinda Seneviratne is the Editor-in-Chief of ‘The Nation’ and can be reached at msenevira@gmail.com

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