Undemocratic moves abusing the ‘democratic’ constitution

By Keith Noyahr

The 1972 Socialist Republic Constitution that was ushered in 50 years ago was replaced by a presidential constitution in 1978 after United National Party led by J.R. Jayewardene obtained a sweeping mandate and an unprecedented five sixth majority at the general election of 1977. He had carte blanche from the people to do whatever he wished. The Constitution of the Democratic Socialist Republic of Sri Lanka was promulgated in 1978 by Jayewardene who had long advocated a strong executive and included it in the UNP manifesto for that election. He became the first non-elected executive president of Sri Lanka. The charismatic leader went on to become the first elected executive president at the next presidential elections notwithstanding the anti-incumbency factor.

Jayewardene’s nephew Ranil Wickremesinghe, on the other hand, who lacks the charisma to win a presidential election, has become the acting President in the most undemocratic way, undermining the very democratic title of the supreme law of the land. Wickremesinghe contested the 2005 presidential election and lost to Mahinda Rajapaksa. He stood down from running for president as the UNP leader on three subsequent occasions. First, he backed Sarath Fonseka against Mahinda Rajapaksa in 2010. Then he backed Maithripala Sirisena as a common opposition candidate in 2015. Finally, he conceded his party’s presidential ticket to his deputy, Sajith Premadasa in 2019 retaining the UNP leadership.

Firstly, he wasn’t elected directly by the people at the last presidential election and did not run at successive presidential elections. Secondly, he was rejected by the people at the last general election. The catchall United National Party that he led for decades secured a meagre two per cent of the entire island-wide vote. Through a bonus seat, Wickremesinghe sneaked into parliament without making way for a younger member. He bided his time until he found an opportune moment to snatch the second highest position in the executive by offering an unpopular government a respite. This is despite holding that office previously on four occasions.

He secured the No. 2 position possibly with an eye on the plum job, sensing the writing was on the wall for the Rajapaksas. However, he took up the office of prime minister, ostensibly promising to deliver and alleviate the suffering of the people. He failed the people miserably. However, Wickremesinghe used this position in Machiavellian style to advance the exit of the president by openly suggesting the incumbent government brought about the country’s bankruptcy, making the IMF bailout a herculean task to secure. He did this in parliament in the presence of President Rajapaksa who was taken aback by the repeated “bankrupt” admission. In the face of opposition booing and a stab in the back by his prime minister (who by a single speech silenced the government benches), a crestfallen defeatist president made a hurried exit out of parliament, foreshadowing his exit from the presidency.

The constitution requires that the prime minister appointed by the president commands a majority in the House, making Wickremesinghe’s appointment as PM in the first place unconstitutional. In the past, we have had prime ministers commanding the confidence of the House with a wafer-thin majority, but never a solitary MP of a party becoming prime minister. That speaks volumes for the democratic nature of the constitution, famously dubbed a bahubootha constitution by former President Chandrika Kumaratunga. Many including Kumaratunga promised to repeal the constitution, but to no avail. Kumaratunga blamed Wickremesinghe for not cooperating as prime minister in the cohabitation government to end the executive presidency. That was a lot of work done on the abolition process that only required the tacit approval of Wickremesinghe. One may question whether he blocked this due to aspirations he had to the highest office, after failing to secure it at successive attempts.

It is never too late to abolish the executive presidency, the bane of the country, given its tendency to create constitutional dictatorships. In its present form, there are limited checks and balances on the all-powerful executive presidency guaranteed by the 20th Amendment. The same two-thirds majority must be used to wind down these powers for if the presidency falls into the hands of an authoritarian leader, it could prove disastrous. With the benefit of hindsight, the hybrid constitution was unwarranted as a bi-cameral parliamentary Westminster system suits the country best. After constitutional dictatorships by Ranasinghe Premadasa that led to an impeachment process and Mahinda Rajapaksa and Gotabaya Rajapaksa, the mantle of acting presidency has fallen on Wickremesinghe, who has been gifted another feather in his political cap.

Ex-presidents can be a drain on the country’s coffers as they are entitled to a pension, a security detail befitting a president for life and an official residence and staff to boot. While many hail Wickremesinghe as a record holder five-times prime minister, little is spoken about the records he broke as the oft-defeated leader at the hustings. While it must be conceded that Wickremesinghe was one effective prime minister in the past (not in this recent stint), it could be said he was the most ineffective leader of the opposition in post-independence history.

In countries like Australia when a prime ministerial candidate is defeated at the hustings, he/she steps aside to enable a new leader to take over the reins of the party. Labor Party leader Bill Shorten, who was narrowly defeated by Liberal Party leader Scott Morrison in 2019, made way for Anthony Albanese as the new party leader, who went on to defeat Morrison at the recently concluded 2022 general elections. Morrison, despite his hobnobbing with the global political elite, bowed to the wishes of the people and stepped aside from the Liberal Party leadership, making way for a former police officer Peter Dutton to become the new party leader and leader of the opposition.

This is democracy at the level of party. The United States goes further, requiring the successful presidential candidate to go through gruelling primaries or caucuses over a year. This is democracy at its height where grassroots party supporters determine their candidate of choice in the first place. Many are screened by the people until one prevails. However, that cannot be said of the routed UNP that had a life leader in Wickremasinghe. He failed to announce the party’s presidential candidate Deputy Leader Sajith Premadasa well into the 2019 presidential campaign, giving Gotabhaya Rajapaksa an undue advantage and a convincing presidential victory and an ensuing landslide two-thirds majority. This led to many stalwarts deserting the grand old party and forming a the Samagi Jana Balawegaya (SJB) that became the largest opposition party.

The 2015 good governance coalition of Sri Lanka Freedom Party and United National Party led by President Maithripala Sirisena and a Ranil Wickremasinghe government failed to deliver on pledges to bring to justice corrupt politicians and officials of the Mahinda Rajapaksa administration, giving the Rajapaksas breathing space. The Rajapaksas returned with a vengeance under Gotabaya as president and Mahinda as Prime Minister and continued their corrupt practices unabated, running the economy to the ground. Finally, the people threw them out by a peaceful revolution in an act of direct democracy.

Rousseau’s social contract for legitimate political power has completely failed. The president has lost his legitimacy even after securing a two thirds majority and amending the constitution to do away with checks and balances to greedily wield unbridled power. This failed president, in the eyes of the people, has appointed Ranil Wickremesinghe as the acting president. Where is the legitimacy? The people’s slogan was enlarged from Go Home Gota to Maina Go Gama and finally Go Home Ranil. While the two Rajapaksas and their siblings were forced to flee politics and the country, Ranil dismisses the slogan in light vein, saying he has no place to go than Colombo. Let Wickremesinghe, who holds in high esteem the British parliamentary traditions, take a leaf from several British prime ministers from both major parties in recent years who bowed to the wishes of senior party members. The latest UK PM to resign is Boris Johnson over waning popularity from the fallout over violating Covid regulations by having a party. Mind you, Johnson had one great feat: he was able to ensure Brexit for his country after his predecessors failed. Our Wickremesinghe has no successes to show but will shamelessly dig in for the Guinness records.

Wickremesinghe and Sirisena have to both share the blame for the failed good governance term that brought in the Rajapaksas. Sirisena secured his seat in the legislature but failed the country as president. It was under his watch that the 2019 Easter bombings took place despite ample intelligence warnings. While the duo failed to cooperate, the Central Bank Bond scam rocked the government. Wickremesinghe’s Central Bank Governor nominee Arjuna Mahendran had interfered in a bond auction by leaking inside information to Perpetual Treasuries, owned by his son-in-law Arjun Aloysius, enabling the company to make billions of rupees.

This same Wickremesinghe has become the prime minister through the back door and now the acting president without even winning his parliamentary seat and not facing a presidential election. Mahendran domiciled in Singapore recently had the audacity to comment on the country’s current economic failure in an interview with CNN. Talking of Central Bank governors, Nivard Cabral easily ranks the lowest in post-independence history. On matters finance, the country has had ministers who have had no clue about handling that all-important cabinet portfolio. Some of them only knew how to empty the state coffers into their ever-deepening pockets.

President Gotabaya Rajapaksa was taken by surprise that the economy would crash during his innings. Otherwise, he would never have given effect to the unprecedented tax cuts. Today, the country is bankrupt, and we can’t even negotiate a loan with creditors as our credit ratings have plummeted.

Gotabaya Rajapaksa symbolically failed to complete 33 months as president after failing to get to the bottom of the 2019 mass slaughter of Christians, who were commemorating the resurrection of their leader Jesus Christ—the greatest non-violent revolutionary leader in history. He was assassinated at the age of 33. Gotabaya’s presidency ended in 32 months. Rajapaksa rode to power on a security plank, preying on praying Christians slaughtered at their shrines, but in the end could not even provide security for himself and was forced to flee the presidential secretariat on July 9 and the country in ignominy. People’s power prevailed and the strongman chickened out.

After Mahinda Rajapaksa was relieved from the duties of Prime Minister on May 9, the position should have been given to Opposition Leader Sajith Premadasa, in keeping with the Westminster parliamentary tradition, as the chief opposition party is deemed her Majesty’s Alternative Government. Wickremasinghe, who is an astute observer of parliamentary tradition, should have not hastily accepted the premiership but informed the president of the proper protocol and tradition.

The head of the official bar, Attorney General President’s Counsel Sanjay Rajaratnam, too has failed in his duty as the chief legal advisor. The head of the unofficial bar Saliya Peiris, PC, and the BASL stepped in to provide clarity on legal issues. When President Ranasinghe Premadasa was assassinated in 1993, Attorney General Tilak Marapana, PC, provided valuable guidance to the sitting Prime Minister D.B. Wijetunga, who was sworn in as the acting president in a smooth transition of power.

More than ever before, Sri Lanka needs this smooth transition if the country is to attract an IMF bailout as a bankrupt state to provide for basic essentials and restructure debts. The ruling SLPP has lost its legitimacy in the eyes of the people, who are sovereign. Currently an interim national government from existing MPs seems the prudent way out of the impasse. An early general election following a constitutionally valid dissolution is important to have a new social contract and legitimacy to govern. Those winning office must vow to recover lost monies and expose those involved in the Easter bombings and not let them go scot free as newly elected governments have done time and again.

Unlike previously, political parties, when drawing up manifestos, must factor in the wishes of the protesting masses for meaningful governance. Their voices for system change should be heard and incorporated. Politicking and false and unrealistic promises to capture power must be a thing of the past if we are to raise our heads as a nation. There is no place for religious and ethnic bigotry in post-Aragalaya Sri Lanka as the country has to build from scratch to survive as a nation or sink in the Indian Ocean.

(The writer, then Associate Editor of the Nation, was abducted and tortured by agents of the state in May 2008 but due to the efforts of his friends and colleagues was rescued in the nick of time. He now lives in Australia with his family)