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Sri Lanka: Constitutional Changes Spell Future Trouble

Paper No. 5894                           Dated 16-Mar-2015

Guest Column by Dr Kumar David

The most important and admirable political development in Lanka in the recent period was the defeat of Mahinda Rajapakse and the election of Maithripala Sirisena (MS) as president in his stead on 8 Jaunary 2015.

The country was fast slipping down the road of manifest authoritarianism; the charge that siblings Mahinda, Gotabhaya and Basil were a dictatorial and corrupt triumvirate was widespread and it was the principal reason for defeat notwithstanding the regime’s popularity among many in the Sinhalese community for defeating the LTTE. The voting pattern signals the possibility of national reconciliation; just less than half the Sinhalese (45%) voted for MS (sans intimidation, flouting of election law and large scale bribery by the incumbent, it would have been larger) while Tamils and Muslims supported MS in overwhelming numbers; 85% and 95%. Lanka after a long time now has a government with a multi-ethnic, multi-faith support base. Several small but significant steps have been taken in the 50+ days since the election to lighten the subjugation that minorities have long complained of; there is reason to be hopeful.

The style of the men too is different; the contrast is as stark as black and white. Though clever at beguiling the electorate Mahinda Rajapakse was not a good person. The pages of the press are now (sic!) inundated with exposes of abuse of personal power (apart from political abuse), nepotism on a previously unheard of scale, charges of money laundering, wrongful appointments, the grotesque impeachment of the Chief Justice before a Kangaroo Court, a power grab to secure a third term by a constitutional amendment forced-marched through an obsequious parliament, and even connections to the underworld. The police wanted to arrest sibling Gotabahaya for arms laundering but instead had to do with confiscation of his passport as Prime Minister Ranil Wickremesinghe (RW) reckoned arrest would not be electorally popular with the Sinhalese. (A parliamentary election is due in June).

Sirisena’s dignity, humility and good behaviour has turned into something of a hit both at home and abroad; I understand Modi and the Indian public too warmed to him on his recent visit. He is low key and understated, he has put aside pomposity and trumpet blaring; his wife comes across as a simple and charming lady. The contrast with the arrogance and misbehaviour of the Rajapakse clan is a cause for much felicity; however SM, a veteran of 45 years in politics is no fool. I believe that in the constitutional and political domain he is moving with careful thought and strategy which brings me to the substantive portion of this essay.

Are promises like piecrust made to be broken?

When MS reneged on his promise to abolish the Executive Presidency (EP) he was the third after Chandrika Kumaratunga and Mahinda Rajapaksa who broke this pledge. The Memorandum of Understanding which launched his campaign reads: “The present executive presidential system will be abolished within a hundred days and replaced by a Parliamentary form accountable to the people. Under the Parliamentary system, the President will symbolize national unity and have duties and powers appropriate to the position”. There is not a shred of ambiguity. This refers to a figure-head president fulfilling ceremonial functions. Some may opine that that is not a good idea; the point here is that this is what was pledged by Candidate Sirisena and those who backed him.

The 100-Day Work programme which defines his presidency says: “Wednesday January 21: The process will begin of abolishing the authoritarian executive presidential system and replacing it with an executive of a Cabinet of Ministers responsible to Parliament”. Note carefully the use of the words “abolishing” and “replacing”. Are we now to conclude that the intention was to beguile a gullible public with a phoney pledge that he would abolish EP? I am repeating an unambiguous statement so the notion that the public was deceived after the votes were counted is hard to evade. Sirisena is a good man, many would say an excellent man, and I certainly abhor the return of Rajapaksa, but all that is another matter. This judgement that he reneged on his pledge to abolish EP is legitimate. This point has to be made before discussing the 19-th Amendment (19A) now before parliament. It is a sobering thought that power can influence even good men. As a compromise I would have accepted transitional executive powers for this directly elected president, but for this one term only; but the drafters of 19A have passed this option by.

An interesting question is what does RW, the other centre of power since it was his party, the UNP, that steered MS’a victory, want? RW was a devotee of President JR Jayewardene’s theory which launched the Executive Presidency in 1978, but he has changed. Either anti-EP pressure was too strong to withstand or he puked at former Presidents Kumaratunga’s and Rajapakse’s abuses of EP.  If now guided by personal advantage he would wish to reduce presidential and enhance prime ministerial powers and aim at wining the impending parliamentary elections and remaining PM. If he covets future presidential ambitions, the converse holds. Maybe he is not motivated by a personal calculus and is cruising along with the art of the possible.

The curate’s egg

The Punch cartoon of 1895 was intended to poke fun at class in Victorian England – snobbery and grovelling. The humble Curate not daring to divulge that the egg at the overweening Bishop’s breakfast table was rotten, squeaks out “Oh, no my Lord, in parts it is excellent”. Over time the idiom lost its relish and came to denote something that is partly good and partly bad. After the Sirisena-RW double act ends, the negative side of 19A may come into play.

Although we were promised a Westminster-like parliamentary system, what 19A offers is modelled half-heartedly on the semi-presidential French Constitution. The French president is elected nationwide [so will be ours: Articles 2(b) and 4 (30) (2) of 19A]; so is the French parliament which de facto chooses the prime minister, only formally appointed by the president. The president cannot dismiss the PM unless he loses his majority or suffers parliamentary censure. When the president’s side controls parliament he is dominant in executive action, choosing whoever he wishes as PM and Ministers who implements his programme and agenda; he is the prime national figure. If this happens in Lanka the state will once again be susceptible to the worst excess of the Rajapaksa era. 

However if the president’s opponents control parliament, he will be hamstrung and must choose a prime minister and cabinet which will implement a programme and agenda that he may oppose. When opposing parties control parliament and presidency in France they call it cohabitation since the French don’t care what you do so long as you pronounce it properly! If it happens in Lanka it will be more brawling than habitation. (The MS-RW duet is different for special reasons to do with MS’s election).

Unlike most parliamentary systems the French prime minister and cabinet ministers need not be members of the National Assembly (parliament). This is an attempt to mingle incompatible presidential and parliamentary systems. The former requires separation of powers, the latter a merger of the executive and legislature. Since neither structure is explicit in 19A an unstable future beckons. The root of the failure of the French system, and a lesson that Lanka will learn the hard way, is that a president elected nationwide caries the image and expectation of being the source and font of state power. If he commands a parliamentary majority he is a potential autocrat, another Rajapaksa. If parliamentary majority, and therefore PM and cabinet are opposed to him, we have deadlock. Deadlock worse than between the Obama Administration and the post November 2014 US Congress because Obama at least has a cabinet entirely of non- Congress persons of his choosing.

The powers vested in a US president are huge; not so under 19A. A president voted in under 19A without a parliamentary majority, will be a lame duck, but sporting the plumes of a peacock. The directly elected presidency must go; either way it is bad. Either it absorbs or it contradicts the supremacy of parliament. The president’s role as “Head of the Executive” [Article 4 (30) (1)] must be rescinded. But the functions and duties envisaged in Article 6 (33) (1-3) are commendable and should be retained; inter alia these expectations include, symbolise national unity, uphold the constitution, preserve religious and ethnic harmony, promote reconciliation, ensure the proper functioning of the Constitutional Council, and certain specified ceremonial duties.

Edible portions of the egg

There are several commendable or interesting provisions in the 19A draft. Independence in the appointment and functioning of key Commissions has been rescued from Mahinda Rajapaksa’s megalomaniac power grab. The old repealed 17-th Amendment has been restored via 19A and appointment criteria and procedures for eleven Commissions specified – Elections; Public Service; University Grants; Police; Audit; Human Rights; Bribery; Finance; Delimitation; Procurement; Official Languages. Appointment will be on the recommendations of a Constitutional Council, chaired by the speaker and including the prime minister, leader of the opposition and seven other parliamentarians. The function of the Constitutional Council is to recommend appointments to the aforesaid eleven commissions and to approve the appointment of judges of the higher courts, members of the Judicial Services Commission, the Attorney-General, the Auditor-General, IGP, Secretary General of Parliament  and the Ombudsman.

There will be a Council of State (CoS), not to be confused with the Constitutional Council (a bad name conveying an incorrect meaning – Appointments Council would have been appropriate). A CoS is to be established since Lanka does not have a Senate or Second Chamber. Its functions will be purely advisory on matters of policy, advice on gazetted bills and matters referred by the president or the cabinet. It is a toothless entity; its method of appointment drives home this impotency.

Thirty six persons of “integrity and eminence” will be appointed to the CoS on the joint recommendation of prime minister and leader of the opposition, twenty more (again integrity and eminence is specified) will be appointed by leaders of other political parties, and a few stragglers may creep in as appointees of independent groups. All Provincial Chief Ministers are also in the CoS. It is not sated, but I trust well understood, that the CoS shall not include parliamentarians – that would be a preposterous travesty of the “two-house” concept. This needs to be explicitly specified as no scam is beyond the imagination of Lanka’s parliamentarians. Crucially, fifty-six of sixty-five CoS members are nominated by parliamentary leaders; hence it is going to be a made in parliament rubber stamp!

The powers of the president are tightly ring fenced since under Article 7(2) and (3) of 19A “The president shall always, except in the case of the appointment of the prime minister or as otherwise required by the Constitution, act on the advice of the prime minister or other minister”.

Though “the president may require the prime minister or minister to reconsider, but shall act on the advice given after such reconsideration”. Therefore a president who is not from the governing party, though directly elected by a popular mandate, is a lame duck with a phoney halo. I repeat that a directly elected parliament and a directly elected president, when of opposed political hues, constitute a scheme designed for intra-state conflict. My duty is to speak truth to power though power will take no notice. There is a new air of freedom and absence of fear everywhere in Sri Lanka; surely 19A should aid these winds of change, not throw a spanner in the works.