Democracy is alive, ladies and gentlemen

What’s the talk of the town? ‘The town’ of course can be anything from Cinnamon Gardens to Hokandara to Debarawewa. If you are talking about Cinnamon Gardens as the trope that it is for a significant portion of the decision-makers of the United National Party (UNP) and those who balk at power shifting to Debarawewa (or Kebithigollewa or Karandeniya or Kachchativu), then the talk is all about democracy.  

And democracy (or its subversion) was SUDDENLY noticed.....!

Here are some of the low-tone rumbles that are making the rounds in that particular echo chamber: ‘Democracy is under serious threat,’ ‘we need to fight to the last to safeguard democracy for future generations,’ ‘this is not about Ranil, it’s about democracy,’ ‘this is not about us, but about all of us (i.e. the entire nation).’  Well, considering the deafening silence of most of these born-again democrats (the Sinhala term is better, ‘heenen bayavunu prajaathanthravaadeen’ or ‘democrats waking up from a bad dream’) on all anti-democratic moves by the UNP from DS to Ranil and not forgetting JR and Premadasa and in particular the dictatorial party constitution and post January 2015 subversions, we can safely say ‘it’s about you, it is about Ranil, it is about the UNP.’

In their case, it’s a matter of outcome-preferences framing political comment. In the case of the less partisan, the outcome-fears (‘If Mahinda returns, he will bring back the 18th’) overrides all.  And so, they conclude (prematurely) that a) the removal of Ranil Wickremesinghe as Prime Minister and the appointment of Mahinda Rajapaksa in his place was illegal and unconstitutional, and b) the dissolution of Parliament was illegal and unconstitutional. They conclude, therefore, that Speaker Karu Jayasuriya is a hero (never mind that he flouted procedures he was almost worshipping a few months ago).  

The ‘other lot’ is no different. They have their outcome preferences, they have their fears. They will happily conclude that the President was acting constitutionally, never mind the high-handedness, never mind that if the UNP lost mandate and political legitimacy on February 10, 2018, so too did Maithripala Sirisena. 

But let’s focus on democracy.  

Fact: we got a terrible constitution in 1978. Fact: of the 19 Amendments passed since then, 18 were partisan and favored incumbents. Fact: the 19th amendment was flawed. Fact: the architects of the 19th, in particular Jayampathy Wickramaratne, the ardent backers (the UNP and the NGO cheering squad) and the ‘aye-sayers’ including those in the Joint Opposition except for Sarath Weerasekera, are guilty of irresponsibility if not utmost imbecility.  

A polity is not made of a constitution alone. Democracy is not a synonym of either constitution or parliament. In these things, people count. In these things process matters. There are times when limits, especially those couched in vagueness, need to be tested. This is one. Whether Sirisena’s intention was to test limit or otherwise is immaterial. 

At the end of the day, the law-makers appear to be stumped. The President, for all the power-curtailing, has prevailed and in prevailing, at least for now, has thumbed his nose at the architects of the 19th Amendment and its approvers. Hopefully, the courts will offer clarity on all the vagueness that the executive and legislative branches of the state have together inscribed. At the end of the day, also, everyone is learning that constitutions are not cast in stone, that there are no accidental errors (no, not even the discrepancies in Sinhala and English and possibly Tamil versions), and most importantly, the people need not get into fisticuffs on behalf of their so-called representatives. If Parliament is a joke and parliamentarians are jokers, let them do their thing — we can laugh. That seems to be a common enough response.  

Let’s assume this happened in some country in Europe or even some other South Asian ‘democracy’.  There would be riots, it is safe to assume. By and large, Sri Lankans have determined, ‘it’s none of our business’.  It is our business, true, but then it seems more prudent to let the courts have a say before the streets do. Those who are street-bound are essentially a partisan lot; the majority will have none of it. That’s healthy. There’s a time for agitation, this just isn’t that time. The diehards will rally around their leader(s), i.e. either Ranil Wickremesinghe or Mahinda Rajapaksa, but let’s not fool ourselves into believing that they are doing this for ‘all of us’ or for ‘democracy’.   

The ‘us’ of it all, is biding time, it seems. ‘Our’ time may or may not come soon, but it will only be at the politically auspicious hour that ‘we’ will speak, it is safe to assume.  Here’s a Facebook post (pruned and edited to capture the essence) that captures some of that ‘us-sentiment’:

‘The people of our country have been behaving exceptionally well. If any other country were had a headless state, life would have been grim, but the lack of a Government has not deterred nor derailed our ppl [people] from their daily paths. Even though the macro environment is worrisome, focus is not lost. It proves we don't need the 225 donkeys to govern and even if they did or didn't no one seems to give two hoots. It proves our people our innately good, have the power to regard or disregard.  Hopefully we will continue to be calm and collected, draw up the courage from our 2500 years plus culture and do what needs to be done to get over this speed bump and put our country back on track.’

So what’s this hullabaloo about democracy then? Perhaps the answer can be found in an insightful observation made at the inauguration of the Sri Lanka Freedom Party by S.W.R.D. Bandaranaike on September 2, 1951.

SWRD at the inauguration
of the Sri Lanka Freedom Party

‘It will be thus seen that unlike other countries such as India, Pakistan, Burma, Indonesia, Ireland, etc., which advanced to Freedom through the instrumentality of Mass Movements based on clear-cut principles and policies, our Freedom Movement was really one proceeding from the top and cut off to a great extent from the masses (SWRD had previously referred to D.S. Senanayake and his aides getting the Soulbury Constitution amendment to obtain Dominian Status ‘without placing amendment before country or parliament but prepared according to Mr Senanayake’s personal views — hint, hint). It has created a feeling in the minds of some people that our freedom is not something that the people have obtained but one that a few individuals have succeeded in getting, and one therefore that is looked upon to a great extent as the private property of these individuals, the benefits of which should be chiefly enjoyed by them. It is this psychology that is chiefly responsible for the nepotism and cliquism which our rampant today and for the reluctance to deal effectively with the many important problems that face us, a free country today, particularly in the context of the present trend of world affairs.’

SWRD’s own errors and culpabilities notwithstanding, this could be read as a damning account of the born-again democracy-brigade of today. This year marks the 200th anniversary of the 1818 Rebellion and the capture of Keppitipola. Democracy was blood-less and something we owe the D.S. Senanayakes, they believe and/or would have us believe and therefore it is an elite-birthed project for the benefits of political progeny, they seem to think. No wonder that the general public are not inspired by their siren call to save democracy from ‘the yakkos’.  

Well, the masses appear to know what’s what. In retrospect one might conclude that they knew the dangers of electing Ranil Wickremesinghe in 2005 and knew the dangers of re-electing Mahinda Rajapaksa in 2015. It is unlikely that they have any illusions about these two individuals or about Maithripala Sirisena. They know better than democracy-experts that democracy was always an unholy creature which didn’t die on October 26, 2018, and moreover has to owe its longevity to the people, who have been patient and have largely refused to purchase all the lies about it. They know what it is and what it is not. They don’t need tuition on the same.  

malindasenevi@gmail.com. www.malindawords.blogspot.com

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Why "why", "for whom" and "how" are important in constitutional reform

A Constituent Assembly made solely of Parliamentarians is democratically speaking misshapen, for the simple reason that the parliament is democratically deformed. 

What was pledged way back in 2004 has now materialised.  Only, it is not the UPFA that's done it.  Back then it was referred to as the Constituent Assembly.  Now it is called 'Constitutional Assembly'. The envisaged task is the same: drafting a new constitution.  The following article, published in the Sunday Island on April 18, 2004, twelve years ago, contain different names and refers to composition factors relevant to that time.  The thrust, however, is an objection to the move.  The reasons are still relevant. 

No one expected it to be plain sailing for the United People’s Freedom Alliance. With just 105 seats (106 counting in the solitary EPDP seat), without any guarantees of support from either the SLMC or the CWC, the Freedom Alliance at this point needs to tread carefully, especially since the Jathika Hela Urumaya has only offered conditional support. However, as Wimal Weerawansa correctly argued, the JHU cannot align itself with a grand opposition coalition consisting of the UNP, LTTE (TNA), SLMC and CWC, and for this reason, among others, has to ensure that the new government completes its term. 

Two weeks have passed since the election results were announced, and the Alliance seems to be struggling. We had the tug-of-war regarding the subjects of the Ministry of Agriculture, Lands and Irrigation. The JVP wanted the Mahaweli included in this ministry, although the matter had not been agreed upon when the two parties signed the coalition agreement. That is a technicality and it is unbecoming of the president to cling to it. Agriculture, Lands and Irrigation without the Mahaweli is, as someone pointed out, a car without an engine. Decentralizing subjects has taken the form of distributing goodies and the country has suffered as a result. Certain things are better centralized or organized under one ministry. This is one. 

It looks like apart from Arjuna Ranatunge, all non-JVP members in the Freedom Alliance are going to be either ministers or junior ministers. In this context, if anyone says the JVP is demanding the proverbial pound of flesh by asking for the Mahaweli, he/she is being utterly unfair. For the record, the JVP secured almost 40% of the seats secured by the Freedom Alliance. It is not a stringer in the way the SLMC, CWC, NUA, EPDP and the UPF has been in the past. The JVP is by no means "making up the numbers". It is time people put aside their prejudices regarding the JVP’s past. Let them work. Let us judge afterwards. 

The speaker’s post has been Trouble Spot No.2 for the Freedom Alliance. If the JHU abstains on the speaker’s vote, then the Freedom Alliance has to hope either the CWC, SLMC or the TNA will also abstain in the event the UNP puts forward a candidate. There is talk of proposing a bikkhu as a compromise candidate. The possibility of a TNA candidate has not been ruled out. All we know is that there is a lot of behind-the-scene talks. We will know for sure on April 22. 

This brings us to Chandrika’s main concern. Constitutional reform. The president needs a friendly speaker as per Articles 79-81 of the constitution. 

If there is one thing about which there is consensus across the political spectrum, it is that the constitution requires reforming. For what reason, in whose interests and how, are the questions that do not yield easy answers. Chandrika’s interests are patently clear. She is a woman in a hurry because her term is fast approaching its close. This is why she appointed a "high-powered" advisory committee on the subject of constitution reform. This is also why she and other Freedom Alliance leaders are going overboard arguing they have the people’s mandate to change the constitution by turning Parliament into a Constituent Assembly. 

The Freedom Alliance argues that it won 106 out of 160 electorates (66.25%) and 14 out of 22 districts (63%). They do not say that they won only 105 out of the 225 seats (47%) and only 45.6% of the vote. 

These numbers do not have any bearing on the issue. The President did not need anyone’s mandate to turn parliament into a Constituent Assembly. And there’s nothing to say that the parliament constitutes the best collective embodying the spirit of democracy to deliberate on constitutional reform. Where the very nature of the proportional representation system does not allow easy passage for reform bills, constitutional reform has to take a different path. A Constituent Assembly, although the name sounds grand, is merely a constitution-drafting body. It is not going to be easy to obtain a consensus, and this is not necessarily a bad thing. A long, arduous process of deliberation among people with different and competing objectives, is better than ad-hoc and self-serving exercises such as the failed 18th and 19th amendments. 

And yet, such a Constituent Assembly is democratically speaking misshapen, for the simple reason that the parliament is democratically deformed. Even if we ignore the massive frauds that brought 22 LTTEers into parliament, on election day and before, the fact remains that parliament is made up of politicians. Constitutional reform, for it to be people-friendly, has to have as its principal objective the protection of people from politicians. It would be silly to expect a body made up solely of politicians to act against their interests. Ideally, a Constitution-Drafting Council should include representatives from all political parties represented in parliament, representatives from trade unions, the Maha Sangha, professional organizations, civil society organizations and the business community. 

If reform is the need of the day, why stop at half-measures? What parliament could do is to define a set of criteria whereby such a broad council of representatives could be appointed.

The Freedom Alliance has promised that future negotiations on the North-East conflict would include all interested parties, not just the LTTE, and that talks would be transparent. The same principle can be applied to constitutional reform. The current electoral system throws out the likes of Anandasangari. It has structural deficiencies that can be and has been exploited by the LTTE, giving them clout quite out of proportion to that which they enjoy on the ground. Professionals are out. 

The Maha Sangha had to contest an election to get their voice heard. The National List, the instrument included to correct the structural silencing of people with professional ability, has been reduced to a refugee camp and indeed a haven for pound-of-flesh-seeking minorities. As a result, it is not possible to argue that the parliament is the ideal assembly to draft a new constitution. The deliberating body has to draw upon a broader spectrum of expertise.

The signals from the Freedom Alliance at this point are not very promising. Abolishing the executive presidency is just one subject that requires treatment. Why hasn’t the president said anything of substance on the independent institutions, about correcting the flaws of the 17th amendment and adding the subjects of media, auditing and socio-economic safeguards to the institutions already enacted but partially implemented? Why is she silent on the all-important question of unethical conversion? Can she hope to win the support of the JHU if these issues are only of marginal interest to her? 

It would indeed be a betrayal of people’s trust if constitutional reform is reduced to an exercise to stop Chandrika from falling into the political abyss towards which the constitution is inexorably dragging her. We don’t want the executive presidency abolished and replaced with an executive prime minister with the same tyrannical powers. We can’t trust our current crop of politicians, especially those in the two main parties, to deliver the goods. 

The president’s advisors on constitutional reform are known PA-loyalists. Gamini Keerawella is a well-known opponent of the unitary state. I would even call him a vociferous advocate of separatism. It is unlikely that a single one of them would go on record to say he is a Sinhala Buddhist. Surely, she could have asked the JVP to nominate someone to this committee, in the very least? Where’s the spirit of "broad consensus"? She might as well have named this committee "Secure My Political Future Council", if she doesn’t want to be blunt and call it "Multi-Ethnic, Multi-Religious Mish-Mash". There are no bets on where this process is heading. 

Only one thing is clear. Chandrika has already shown she is operating as though the mood of the electorate does not count. The JVP, a strong opponent of any moves to undermine the unitary character of the state, won 41 seats. The JHU won 9. Many SLFPers belonging to the Patriotic National Movement were returned with numbers of preferential votes. This parliament is made up of a significant number of people who can be counted on to raise their voices in protest, should the interests of the Sinhalese are compromised in any reform exercise. The time for riding roughshod over party members has passed. The circumstances are different. The president had better do a re-think. Because the people seem to have made up their minds.

Malinda Seneviratne is a freelance writer who contributes a weekly column to the Daily Mirror titled 'Subterranean Transcripts'.  Email: malindasenevi@gmail.com.  Twitter: malindasene. 

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