Kishali Pinto Jayawardene
President Maithripala Sirisena’s remarks in Jaffna this week that the 19th Amendment’s transfer of some powers of the Executive President to the Prime Minister while conferring supervision over Sri Lanka’s constitutional commissions to the Speaker has created three power centres, making the political process unworkable and unsustainable is a thin gloss over far more unpalatable realities.
Constitutional texts and political chicanery
The simple fact is that this country’s politicians, who have been too long at the helm of jealously guarded political power bases, are incapable of working any constitutional document properly. True, the President’s caustic a side that the United National Party’s constitutional drafters were only jet-setting around the globe to ‘experience’ comparative constitutional making, (while apparently learning nothing from that exposure), gives rise to a few well deserved chuckles.
Certainly this Amendment could have been combed through with far more skillful hands to disentangle constitutional knots. But let us imagine a (sadly) hypothetical scenario where this vetting was done in fact, resulting in a far more coherent text. Even then, it is without doubt that this amendment would have been chewed into bits and pieces and tossed out into the garbage in due course. The problem is not in constitutional texts per se. It is in the complete inability of those working the Constitution, regardless of party colours, to respect its tone and tenor, to give effect to its spirit and the letter in the national interest.
So when former President Mahinda Rajapaksa promises that he will do away with the 19th Amendment and bring in a ‘new Constitution’, a shuddering chill sets in. The Rajapaksa-engineered 18th Amendment was an embodiment of dynastic rule. And even with fury at manifest ‘yahapalanaya’ follies still bubbling in one’s veins, it is important to recognise that the hand of his brother, the former Defence Secretary portends the nation’s slow walk over the edge of the abyss. His individual Presidential campaign is characterised by banality, mouthing of platitudes promising ‘technocratic rule’ and a quietly sinister sitting at the side of his far more charismatic sibling. Regardless, the signs are clear.
Unfinished promises and the Executive Presidency
And underpinning this is Rajapaksa deja vu in a far more dangerous sense. The national mood is more furious than at any time previously, given colossal mistakes made by ‘yahapalanaya’ proponents. It is consequently far more receptive to the Rajapaksa mantra that what the country needs is a strong hand at the reins while all this talk of rights is just liberal nonsense. This is compounded by the fact that the UNP’s internecine warfare between the Party Leader and his Deputy is now beginning to resemble more a farcical circus show than the recognition of its own faults and a genuine attempt to redress them.
The most recent constitutional chatter regarding the abolition of the Executive Presidency only adds a more confusing layer to the currently unfolding political chaos. Will this be the unlikely rabbit to pop out of the hat of men who are fighting to keep their place and their relevance in national politics? Reviled, scorned and worshipped in equally fierce measure, the abolition of this Office has been longstanding.
The President’s reminder to his Jaffna audience that this is yet an unfinished promise has aroused feverish speculation. A seeming political consensus to push this at a point when Presidential elections are forthcoming and traditional power dynamics in political parties are challenged speaks to more an ‘Alice in Wonderland falling down the rabbit hole’ scenario than anything else. Even so, the correction of a gross aberration in the constitutional system is to the good. And there is entertainment in watching seasoned political acrobats squirm and squeal if the stakes were not so high for the country.
For arguably, the bend in the electoral road in a few months time is even more suspenseful than in December 2014. Before the advent of Maithripala Sirisena as the common opposition candidate, the electoral campaign was lacklustre with a most certain win predicted for then sitting President Mahinda Rajapaksa.
If this unlikely contender from Polonnaruwa had not been put forward to face the juggernaut Rajapaksa party machine, the UNP would have added this also to its string of defeats. That fact is certain even though the UNP (some party faithful going so far as to hold forth on these lines in public) apparently believed that, the new President should be grateful for being plucked from relative obscurity to allow the UNP to run the Government as it wished.
Past failures go beyond constitutional ambiguities
And that plan may have worked if the Sirisena Presidency had not proven to be an unexpectedly painful thorn in the flesh of UNP power brokers, their political allies and their associated cheerleaders. More perilously, it soon became clear that this was a President acting on visceral impulse, unrestrained by ordinary traditions and conventions. The clearest example of this tendency was when ambiguous constitutional provisions in the 19th Amendment provided a cover for the dismissal of the Prime Minister and his replacement with former President Rajapaksa late last year.
As we recall, ‘Pohottuwa’ parliamentarians behaved like hooligans on the floor of Parliament, resorting to chillie water attacks and assaulting policemen protecting Speaker Karu Jayasuriya. Restoration of the status quo by a Supreme Court ruling was by a sheer quirk of fate and the courage of individual judges. So the Sirisena Presidency provides, in fact, a good illustration of the President’s own argument, that the Office of the Presidency must be abolished.
But abolition or not, the failures of the past four years lie elsewhere. Each of the cardinal sins committed by the ‘yahapalanaya’ Government was due to the elite guarding each other. This was why cases against the Rajapaksas took so long to be lodged and even when that took place, prosecutions thereto were replete with holes enabling acquittals. Recently we were informed that the Cabinet had approved a proposal presented by the President to forward the report of the Presidential Commission appointed to investigate irregularities at SriLankan Airlines, SriLankan Catering and Mihin Lanka to the Attorney General for action to be taken.
The fault is not in Constitutions
But to what purpose is this, given the dismal fate that has befallen investigations into the Central Bank bond scandal? Was not a similar report by a similar Commission also forwarded in that same manner? This week, the President summoned relevant state officers to instruct an ‘expediting’ of inquiries while the Criminal Investigation Department complains that a frontline Minister alleged of lying to that Commission has not been responding to its requests to complete his statements. Other examples of the law being held hostage to political ambition are too numerous to list here.
In sum, what is wrong with Sri Lanka’s politics is not Constitutions but men who have been far too long on the national stage and who must now give way whether it may be a Sirisena, Rajapaksa or a Wickremesinghe. And this nation’s constant back-stepping on painfully won democratic gains must finally stop.