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A REALIST READING OF THE POLITICAL MARKETPLACE

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Dr. DAYAN JAYATILLEKA

[This article is dedicated to the memory of the late B. Sirisena Cooray, former General Secretary of the UNP.]

The irony never fails to strike me when the Lankan liberals who fetishize the free-market above all in economics, are totally impervious to and imperiously ignore the signals of the political marketplace.

If Dr Ravi Ranan-Eliya’s SLOTS tracker is accurate and President Gotabaya Rajapaksa has lost a full third (33%) of his 2019 vote, then he is still slightly above the combined SJB+UNP vote of 2020, i.e., the ‘greater UNP’ space in the polity.

In an extended interview given to Dinesh Weerakkody which was the cover story of Business Today February 2000, the UNP’s former strongman-General Secretary Sirisena Cooray, who had been Ranasinghe Premadasa’s righthand man for decades, predicted (“take it from me”) that the UNP under Ranil Wickremesinghe would average 25% in the future. He was right. After a quarter century that ideological space in the political spectrum has become structural, though the UNP itself has almost vanished. No combination of forces that stays within that space can defeat the regime. Only a breakout/breakthrough strategy can.

Two Traumas

Political commentators correctly observe that the decline of the regime’s popularity is not matched by the rise of the Opposition’s. They fail to grasp the reason for the mismatch and prefer instead to prattle on about the allegedly poor performance of the current Opposition, chiefly the SJB.

I’d say that mismatch is because the regime’s popularity has declined so speedily that the memories of the previous administration’s negative performance have not faded. The Gotabaya administration has proved the most traumatic to our material well-being in our post-1948 history. The predecessor Yahapalanaya administration, chiefly Ranil’s UNP with its foreign and constitutional policies and cultural nihilism, proved traumatic to our national identity and sense of sovereignty.

To re-state: the Gotabaya presidency and the Pohottuwa are in a downward spiral which they can’t pull out of and are wildly unpopular. This in no way means that the values, policies, practices and profile of the Yahapalanaya UNP by any other name are retrospectively popular. It too is unpopular, doubtless less so currently than the GR regime, but that’s a low bar.

Yahapalanaya

didn’t fail because the Government “failed to resolutely prosecute the crooked Rajapaksas”. The prosecutions didn’t help the Government and in fact hurt it, because the larger percentage of the public perceived a UNP which had appeased if not collaborated with the LTTE, persecuting Mahinda, who had won the war, depriving him – and therefore the Sinhala majority–of the Opposition leadership and prosecuting those who were loyal to him.

Those who see the GR presidency as a self-evident argument for the abolition of the executive presidency ignore the market signals that the primary problem was/is not the presidency as an institution:

(a) Even the protesting peasants curse the parliamentarians and Cabinet more, and more often, than they do the ruler.

(b) The former president Maithripala Sirisena found an ally and survived electorally while the former Prime Minister did not, and the former Speaker and former Foreign Minister couldn’t muster any political traction by the tail-end of the previous regime and opted out.

(c) It is doubtful that a two-thirds majority in parliament and a simple majority in the country at a Referendum can be mustered for a Constitutional change that abolishes the directly elected executive presidency while enhancing or even retaining the 13th amendment or any form of provincial devolution. A majority of Sinhalese will not vote for it. Any government, Constitutional order or law that exists without the consent of the majority of the majority is doomed to generate eternal instability, even a coup.

The citizens detest the Gotabaya regime for the trauma they are being put through. They almost certainly regret their choice of 2019. But only someone who is deluded would think that means they wish to return to 2015-2019 (or 2001-2004) or approve of that government and its values.

SLPP & SJB

Sirisena Cooray often insisted that the UNP must win back “the majority of the majority” which Ranil Wickremesinghe had lost. That was the bedrock of any winning strategy, he emphasized, endorsing the report of NGP Panditharatne (2003) that most UNP activists felt the party could never win the Presidency under the leadership of Ranil Wickremesinghe because he had lost the support of the Sinhalese, especially the rural masses.

The accusation that the Rajapaksas’ SLPP and Sajith Premadasa’s SJB are ‘two sides of the same coin’, or more charitably, siblings, is vastly amusing. If the underlying critique is that there is a similarity or sharing of views or values in some sense, then my answer as a Realist is “I would certainly hope so!” because there is little prospect of winning back “the majority of the majority” i.e., the Sinhala voters who shifted to the Pohottuwa, if an Opposition party takes a stand and espouses values that are the total opposite—the antipode– of those of the majority.

Only if the Opposition shows sensitivity to whatever is legitimate in the concerns of the Pohottuwa voter; only if those voters feel that their concerns and core values will be respected and safeguarded by the Opposition; only if what the Opposition says emotionally resonates with the Sinhala voter who shifted as a bloc to the Pohottuwa, can they be won over and the regime defeated. This is exactly how Joe Biden won back the social strata and the states that the neoliberal Hillary Clinton lost to Donald Trump and earlier, Bill Clinton won the South from the Republicans.

The Lankan Opposition must fuse whatever was legitimate and correct in the SLFP, UNP and Left traditions, values and discourses.

A human is not only an economic animal (‘homo economicus’) but fundamentally a political and social animal, as the ancient Greeks understood. Today the economic factor has punched through, but it won’t stay that way if too much violence is done to the political and social animal within.

Referendum 2022

If the main Opposition sports a cosmopolitan cultural profile and minoritarian-globalist discourse when a Referendum on a new Sinhala-Buddhist, minimal-devolution Constitution is looming, nationalism may partially neutralize the socioeconomic and governance factors, the Sinhala-Buddhist vote may split, and some may stay home.

By contrast, an ‘organic’ Premadasa-ist populist profile could (as in 1988) neutralize the nationalist factor acting as a Pohottuwa/GR asset, swing the Sinhala middle ground over to the mainline Opposition and ensure massive NO vote, a protest vote on socioeconomic grievances, which could break the back of the autocratic GR regime.

The Sinhala-Buddhist voters who, in a tectonic shift, swung to the Rajapaksas in 2018-2020, have swung away from them as a result of meltdown of their economic conditions. The material factor has eclipsed the ethno-nationalist for the moment, which doesn’t mean that the Sinhala-Buddhist voters have deleted their values and identity concerns. No economic crisis is going to make them swing all the way from the Gotabaya paradigm to the Ranil-Mangala-CBK cosmopolitan-elitist paradigm. Most are mainly Mahinda voters, and a smart Opposition would not flaunt Yahapalanaya UNP policies and icons, but instead pivot, move halfway and reposition itself in the progressive center so that those voters would have to come only halfway themselves.

Dirty Secret

What is it that gives the neoliberal Right in Sri Lanka such ideological durability even in the Opposition when its main agency and agents, the UNP and Ranil Wickremesinghe, have consistently been unsuccessful, and the ideology is itself widely discredited and obsolescent in the West?

The dirty secret lies in the decision made by Mr. Wickremesinghe to break sharply with UNP tradition maintained even during the Cold War (old and new), and formally, officially incorporate the party in a global ideological bloc, that of the world’s Conservative, Christian Democrat and Center-Right parties grouped in the International Democratic Union (IDU), co-founded by the US Republicans and the UK Conservatives.

The opportunities, funding flows and ideological indoctrination have created a certain stratum in Sri Lanka, an elitist policy Establishment in the party-political and civil society spaces, which regards adherents of rightwing, free-market fundamentalist, anti-state globalist economic thinking, to constitute its real family, far more than it regards Sri Lanka’s working people and least of all the Global South or progressive opinion (social democratic and liberal) in the West, as its family or “hive”.

Foreign Relations

There were very good contributions ranging across the political spectrum in the Budget debate on the Foreign Ministry vote by Imtiaz Bakeer Markar, Tharaka Balasuriya, Gajan Ponnambalam, Rauff Hakeem and Harini Amarasuriya. One could almost discern the outlines of a refreshing revisionist conversation and potential consensus.

However, in the main, the polarization continues between extremes continues on foreign policy.

Reflecting on his presidency, Barack Obama went on the record that his biggest single regret was Libya. Obama and his Secretary of Defence Bob Gates were against intervention, but that intervention went ahead, double-crossing Russia and the Security Council resolution, culminating in murderous regime change, opening the door for the wave of Islamist jihadism including ISIL, and triggering a toughening in Russia’s global stand under a returning Putin.

Three personalities were responsible for driving the US decision to intervene in Libya which policy decision Obama says is his greatest regret: Hillary Clinton, Susan Rice and Samantha Power.

These, and not Barack Obama, John Kerry or Joe Biden– still less Bernie Sanders or AOC– are foreign policy and ideological icons of Sri Lanka’s cosmopolitan neoliberals, ‘radical centrists’ and Yahapalanaya ex-UNPers who are Mangala proteges.

Troika of Heroes

It is in the final analysis an existential question. In economic development who should we be like? I would say Ranasinghe Premadasa. In foreign policy? Lakshman Kadirgamar. (Interestingly, he was commended in Sirisena Cooray’s Business Today Feb. 2000 interview). In Sri Lankan nationhood, embracing diversity and combating racism while being at one with the common people, I would say Vijaya Kumaratunga.

It is a triangulation of these three great heroes and martyrs that give us the values to be the best society that Sri Lankan can be within and the glowing example we can be in the world.



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Asian Elections and Anura Kumara Dissanayake’s India visit

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Anura Kumara Dissanayake meeting Indian Minister of External Affairs Dr. S. Jaishankar in New Delhi. (File Photo)

by Rajan Philips

2024 is election year practically everywhere. In South Asia, it is two down and two to go. Bangladesh went first in January, and the governing Awami League won the election as predicted, with the main opposition Bangladesh National Party boycotting the election and the government fielding independent candidates to avoid the embarrassment of winning uncontested seats. Pakistan had its election on February 8, and the people literally gave the finger to rebuke the military’s machinations of the election.

Unlike in Bangladesh, where the government nominated independent candidates, in Pakistan the imprisoned Imran Khan and his proscribed PTI (Pakistan Tehreek-e-Insaf) were forced to field their candidates as independents and were barred from using the Party’s Cricket Bat symbol. Yet they won the most seats, and they would apparently have won a clear majority but for the widely alleged manipulations in vote counting. There are continuing allegations by independent commentators that a clear victory for the PTI was stolen in the wee hours of the election night. In the aftermath of uncertainty, the former alliance of the Pakistan Muslim League of the Sharif brothers and the Bhutto-Zardari led Pakistan’s People’s Party, who ousted Imran Khan from office, is back – cobbling together yet another new government ignoring the people’s verdict.

Next up is India with the mother of all elections which will be held over two months in April and May. As things are, Prime Minister Modi is all set for a threepeat win and form a third Modi-BJP government in succession. The opposition parties are still haggling over how much of a united front opposition they can rationally build upon before it is too late. It seems already too late unless something spectacular were to happen to jolt the opposition fragments to come together to survive, let alone turn back the Modi juggernaut, or simply be run over by it as separate entities. What is more significant than the Modi threepeat is the way in which he is overhauling the character of the Indian state.

What Narendra Modi is doing now to India is what the leaders of Pakistan did to their country at the very moment of its cesarean birth – the creation of a theocratic religious state, spurning the example of India that opted for a modern secular state to overarch a deeply asecular traditional society, where religious differences were/are combustibly vulnerable to political demagoguery. We can keep writing about this till holy cows keep coming home, but the point here is that the recent and ongoing developments in Bangladesh, Pakistan and India provide an insightful South Asian backdrop to the anticipated elections in Sri Lanka, and perhaps more contextually to Anura Kumara Dissanayake’s seemingly geo-locally significant visit to New Delhi.

Sri Lanka is the fourth to go for elections in South Asia. But there was another Asian election this week, in Indonesia, the world’s fourth largest country, the third largest democracy, with the world’s largest Muslim population, and a growing economic powerhouse that is quite ahead of India in almost all economic growth measures. As in many other prospering countries, while there is impressive economic growth there is also a worrying democratic recession. In the presidential election on Wednesday (February 14), Prabowo Subianto, a former army lieutenant general of considerable notoriety under Suharto, and the current Minister of Defense under President Joko Widodo, is reported to be comfortably ahead to win in the first round without a runoff. His Vice Presidential running mate is 36 year old Gibran Rakabuming Raka, the eldest son of President Joko Widodo.

There has not been any reporting of serious voting malpractices, but pre-election shenanigans have raised concerns that the country is on the slippery slope of democratic recession. Joko Widodo and Prabowo Subianto are former rivals who faced off each other in the 2014 and 2019 presidential elections, which Joko won and Prabowo lost. They have since become allies and the highly popular Joko has gone to the extent of supporting Prabowo’s candidacy in 2024 against the nominee of his own Party (the ruling Indonesian Democratic Party of Struggle), Ganjar Pranowo, thereby ensuring Pranowo’s defeat. The alleged reasons for the switch are Joko’s political desire to continue to have a say in the government, and the even stronger paternal desire to give his son a stepping stone as the new Vice President. At 36, Gibran is underage to be Vice President, but the hurdle was removed by the country’s top court with Chief Justice Anwar Usman, Joko’s brother-in-law, casting the deciding vote for his nephew. What is new, and where?

Unlike other Asian countries, including Pakistan where the army calls all the shots, Sri Lanka is the only country where election timing is virtually at the discretion of its CEO, aka the Executive President. At the same time, an incumbent government’s interference in the conduct of elections would seem to have been minimized after 2015, and the first defeat of the Rajapaksas. One would hope that Mr. Ranil Wickremesinghe will not monkey with election timing anymore, and will not try to redeploy the old election dirty tricks of the UNP that go back all the way to Dedigama, long before independence, in the 1936 election to the second State Council election. The UNP was not a Party at that time, but its eventual fathers were in control of the levers of state power even under colonial rule.

AKD’s Visit

The only formal political party in Sri Lanka in 1936 was the Lanka Sama Samaja Party. By 1939, the Party was proscribed, and its leaders were jailed. They broke jail and went to India, not to escape incarceration, but to continue their revolutionary activity and join the struggle in India for freedom from colonial rule. The Indian expedition of the Old Left would be a more appropriate backdrop for commentary on the political implications of Anura Kumara Dissanayake’s visit to India than that cheap gossip in a Sunday Paper, about Lenin allegedly asking Trotsky to go even in a petticoat to procure peace at Brest Litovsk.

Many of the commentaries on the visit were also putt shots aimed at the pre-history of the NPP, or the old history of the JVP, and all of them predicated on the musings of Rohana Wijeweera about Indian Expansionism. Lionel Bopage, one of the repositories of the positive aspects of the JVP experience, has provided a useful overview of the evolution of the JVP’s position on India, but it is unlikely that the JVP’s and NPP’s media detractors would read Bopage or do their own research to provide an objective assessment of AKD’s visit to India.

One striking omission in almost all of the negative commentaries is that their negativity is singularly aimed at AKD and the JVP/NPP, and nothing much negative, if at all, has been said about the Modi government’s imperial invitation to a rising political star in India’s utmost isle. Yet I came across one amusingly innocent piece that politely accused India for its meddlesome manners especially in the matter of the Indo-Lanka Accord of 1987. There is nothing new in this, but what I found to be new is the nugget that Rohana Wijeweera apparently never stopped warning about India’s designs for Sri Lanka and that he based his premonitions on a detailed study of the Indian National Flag that includes The Ashoka Chakra or Dharma Chakra, and the Indian National Emblem that includes an adaptation of the four lions of Ashoka’s Lion Capital.

I don’t know whether Rohana Wijeweera actually said anything or believed that the use of the Chakra and the Lion in India’s national symbols is something that Sri Lankans should remain wary of. But this is the kind of nationalistic adolescence that Anura Kumara Dissanayake would hopefully help not only the JVP but also most Sri Lankans to grow out of, through the vehicle of the NPP. Thankfully, no one in the NPP is in the blabbering habit of Wimal Weerawansa, who once exhibited his high school general knowledge when he insisted in parliament that the Indian National Anthem, Tagore’s immortal rendition in Bengali, is only sung in Hindi! Those days are behind the Sri Lankan electorate, and there is much to look ahead.

Just on the question of the Chakra on the Indian Flag, there have been a few interpretations of it. Sarvapalli Radhakrishnan, the vocational Philosopher, India’s first Vice President and later President, has interpreted the Chakra as being representative of dharma and law. Prime Minister Nehru was more practical – the Chakra is symmetrical on the flag and easily reproduceable than Mahatma Gandhi’s Spinning Wheel that had been on the flag of the Congress during the independence struggle.

Sri Lankan Historian S. Arasaratnam, one of the more objective scholars of nationalism among Sri Lankan academics, has interpreted the Chakra as symptomatic of the efforts of India’s founding fathers (in the Constituent Assembly) to lift the emerging nation above the fray of its religious differences. Then comes along Modi after 75 years and plunges the country into a new temple triumphalism.

Those who ask the JVP to explain its rapprochement with India in light of its virulent opposition to the Indo Lanka accord 37 years ago, have not been consistent in asking others who too had been opposed to India in more ways than one and even long before the signing of the Indo Lanka accord.

NM Perera pithily characterized the foreign policy of DS Senanayake and the first UNP government as “Anglo mania and India phobia.” That mindset has been quite the norm in many political circles. It continued 30 years later with President Jayewardene at least until 1983. Even the SLFP has not been averse it to it despite later claims of a special relationship with the Nehru family in India.

As nuggets go, James Manor in his biography of SWRD Bandaranaike, The Expedient Utopian, recounts an anecdote from the 1930s, when Lord Mountbatten was stationed in Kandy and Nehru was visiting the island. Mountbatten suggested to one of SWRD Bandaranaike’s sisters that they should invite the visiting Indian leader for tea at Horagolla. Pat came the rebuff, “we do not sup with coolies.” That was more ignorance than snobbery, but the nugget would go down well in Modi circles in today’s India.

As well, as political analysis goes, one of the academic theses on the Indo Lanka Accord has been that the accord severed the linkages between the Sri Lankan state establishment and the social base of Sinhala Buddhist nationalism. The argument continued that what was ruptured in 1987 was restored only after 2005 when Mahinda Rajapaksa became President, thanks to the not so hidden hand support of the LTTE. Yet it has been a truism among Sinhala ultranationalists that Mahinda Rajapaksa is the only authentic Sinhala nationalist leader because everyone else was compromised by English.

Now that the Rajapaksas are gone, and the Supreme Court has ruled why, there might be revisitations of the old thesis. One hypothesis could be that the tragedy of the Rajapaksas is that they were used as dummies by others, who were otherwise political nobodies, for ventriloquistic claims on everything from nationalism to the economy, and from central banking to organic fertilizer.

As I wrote recently, the peacefully involuntary departure of the Rajapaksas has created the biggest vacuum to be filled in this election year. Anura Kumara Dissanayake has emerged as the most likely contender to fill that void, but in altogether different, and hopefully positive, ways. His trip to Delhi enhances that assessment, and even expectations, except for those who hold against Mr. Dissanayake the sins of his predecessors but will not subject any other political leader to such a demanding postmortem.

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The Judicial Power of the People and a Presidential Interpretation of our Constitution?

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Friday Forum media release:

‘Since 1972 this country has known no monarch and the President has not inherited that mantle.All his powers are limited by the provisions of the constitution.’Dissolution of Parliament Case (2018)

We as citizens of the country have witnessed in the past weeks some grave political developments that impact the governance of our country.On 31 January the President’s Media Division (PMD) released a public document. This document indicates that it is meant to be the Secretariat’s interpretation of the President’s powers under our constitution.

Just before the PMD release, the Online Safety Bill was signed into law by the Speaker. This Bill was brought to Parliament after the Determination of the Supreme Court which required 31 amendments. The OSA was very controversial legislation, criticized by civil society, local experts and international organizations and Tech companies. They expressed grave concerns on its damaging impact on the democratic and fundamental rights of the people.

The Speaker ignored calls by the Opposition for time to debate the Bill in parliament and ensure that it complied with the amendments that the Court had determined were essential for this law to be legal. The Opposition had pointed out that compliance was essential to ensure the OSA was a valid law according to our constitution.

The Speaker’s actions have resulted in the OSA Act becoming the law of the country, with no assurance that it conforms to the Supreme Court Determination and the constitution. This is unprecedented in parliamentary procedures. We now have a law whose legality is doubtful.

Both these developments indicate a growing trend towards authoritarian governance, disregarding the constitution and the democratic rights of the people. The Friday Forum draws attention to some matters that clarify that the misleading media release of the Presidential Secretariat, published with the President’s approval, must be challenged and rejected:

· Under our constitution only the Supreme Court can interpret the constitution. The President and the Presidential Secretariat have no role and authority in this regard.

· For 76 years the courts, and their independence from the Executive and parliament through a constitutional system of checks and balances, has been a foundational value in governance in Sri Lanka, and is recognized in the1978 constitution. That concept has not been eliminated by 21 later amendments to this constitution. It is reflected in post- independence jurisprudence of the Superior Courts of the country, especially the apex Supreme Court.

· The document indicates that the President is empowered to exercise all powers under the constitution at the President’s sole discretion. No public institution, including the courts and the Constitutional Council on high post appointments, have a right to place any obstacles to the exercise of Presidential powers. If the President is deemed to have acted unconstitutionally, by exceeding his powers, the constitution “provides a procedure to address this”.

The President has taken an oath of office as President, and also as a lawyer, to be guided by the constitution of the country in all his actions. This PMD document suggests that he can disregard the constitution if he thinks that this is best for the country. The fact that he is challenging the Opposition in parliament to respond perhaps with an impeachment motion is indicative of his confidence in his parliamentary majority that will, as in the past, raise their hands in support of him with mindless loyalty whatever are the consequences for the country.

· The Supreme Court has indicated in many judgments in the last decades, that public office must be held in public trust and official powers must be exercised within the framework of the law and the constitution. This has been reiterated in several recent cases, including the case on the economic crisis and the fundamental rights of the people. President Wickremesinghe is aware that in 2018, the Supreme Court, in a seven-judge bench decision, decided that President Sirisena had acted arbitrarily and

unconstitutionally by dissolving Parliament. Consequently, he was restored to the office of Prime Minister. The President cannot seek unquestioning loyalty to himself from all public officials and institutions, in the exercise of what he personally considers are his powers and responsibilities.

· The Constitutional Council (CC) is not an executive body. It has been empowered by the constitution to scrutinize Presidential nominees, and to approve them to high posts. This has been reiterated in the 21st Amendment that President Wickremesinghe himself initiated. This body has a constitutional right and an obligation to fulfill its mandate of either nominating or approving the most suitable candidates for high office. The Constitutional Council rejecting a nominee cannot be considered an ‘obstacle’ to the exercise of presidential power.

The PMD document challenging the Opposition to impeach the President if he abuses power, demonstrates the manner in which, in the post war years, this office has been transformed into something even worse than the powerful executive presidency originally created by the 1978 constitution. President Wickremesinghe is clearly seeking to carry this office to an even higher level of an authoritarian dictatorship, with the justification of having to seek solutions to national bankruptcy.

The time has come for us as citizens to demand that the abolition of the executive Presidency is realized as a matter of urgency in 2024. It is a toxic model of governance that has damaged public institutions. All the major political parties in this country made this promise and never fulfille it. All Presidents who came to office, except President Chandrika Kumaranatunga, failed the nation in this regard. The draft constitution of 2000 which President Kumaratunga’s government presented, providing for abolition of the Executive Presidency could not be adopted by parliament because of the conduct of the Leader of the Opposition, who was at that time, current President Ranil Wickremesinghe.

He and his UNP rejected this constitution and tore the document during the debate in parliament. The disagreement was not in regard to the text of this constitution, but a provision on who would head the new government. It is classic irony that 24 years later, Mr Wickremesinghe is trying to strengthen the Executive Presidency and transform it into a political dictatorship beyond the limits of the constitution. His rationale appears to be his personal vision or “Idiri Dekma” or what he thinks is best for the country. Is this a new articulation of another Executive President’s “Vistas of Prosperity”?

The events of recent weeks in 2024 and our national economic and governance crisis must convince us as citizens to call for an affirmation by all parties and their leaders that they will abolish the executive presidency, and go back to a system of an elected Prime Minister responsible to parliament and the people. Let us call for a referendum on this matter, that is combined with the first election held in 2024.

Prof. Savitri Goonesekere, Prof. Deepika Udagama, Prof. Camena Guneratne, Prof Gananath Obeyesekere, Prof. Ranjini Obeyesekere, Dr. Geedreck Usvatte-Aratchi, Prof Gameela Samarasinghe, Mr. Chandra Jayaratne, Dr. A.C. Visvalingam, Bishop Duleep de Chickera, Mr. Daneshan CasieChetty, Dr. Ahilan Kadirgamar, Mr. Javid Yusuf, Mr. Priyantha Gamage, Rev. Dr. Jayasiri Peiris, Mr. S.C.C. Elankovan, Pulasthi Hewamanna and Shanthi Dias.

(The Friday Forum is an informal group of concerned citizens pledged to uphold norms of democracy, good governance, the rule of law, human rights, media freedom and tolerance in our pluralist society.)

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ABOLISHING THE EXECUTIVE PRESIDENCY -IS TIME RUNNING OUT?

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by Dr Nihal Jayawickrama

Earlier this week, the President’s Media Division issued a statement to the effect that the next presidential election will be held on schedule. What was the need for that statement? In terms of the Constitution, the President’s term of office ends not later than 18th November 2024. As far as I am aware, no member of Parliament has given any indication that he or she intends to introduce a Bill to amend the Constitution to extend the term of office of the President, as required by article 83 of the Constitution. Such a Bill, if passed with a two-third majority, will also need to be approved by the people at a referendum. In the absence of any such move, what was the need for the President’s Media Division to assert the obvious. Was it to stifle the movement for restoring the parliamentary executive that now appears to be gathering wide public support?

The hypocrisy of politicians

The leader of the SLFP, Maithripala Sirisena, has publicly declared that he supports the abolition of the executive powers of the President. In 2019, the JVP’s Anura Kumara Dissanayake presented a Bill to enable the then non-executive President to be elected by Parliament. In 2021, SJB leader Sajith Premadasa proposed a constitutional amendment to enable a non-executive President to be elected by Parliament. None of these political leaders now show any inclination to implement their previous commitments. Instead. they have publicly announced their intention to seek election to the office of Executive President. The chief whip of the Opposition offers a hilarious half-way deal: first hold the presidential election; then abolish the office!

Lawyer-parliamentarian Udaya Gammanpila sees the call for abolishing the executive presidency as “part of a conspiracy to postpone the next presidential election”. He argues that since the Supreme Court has previously held that a parliamentary vote to remove the executive powers of the President should be followed by a referendum, “if a person challenges the validity of the referendum, the executive presidency will not be abolished pending the Supreme Court determination, and the incumbent President can remain in power until the dissolution of parliament in August 2025. He explains that the hearing of a petition could take six months or even longer.

The obligation of the President

The responsibility to give effect to what is now an increasingly vocal public demand surely rests with the Head of Government, the incumbent President. In 2013, the Ranil Wickremesinghe-led UNP published the text of the principles upon which a new Constitution would be formulated after it forms a government. Among them was that the executive presidency would be abolished. In 2018, the government of Prime Minister Ranil Wickremesinghe prepared and published a draft Constitution which required the President to be elected by Parliament and to exercise his/her powers on advice. It is surely the responsibility, if not the obligation, of President Ranil Wickremesinghe to set in motion the legal processes necessary to achieve that objective before time begins to run out.

Bill for the 22nd Amendment to the Constitution

The first step should be to reform the electoral system. Since the list system of election to Parliament, based on proportional representation, is an integral element in the executive presidential system of governance, the Constitution will need to be amended to replace that system with the first past-the-post system of single and multi-member constituencies that prevailed under the 1946 and 1972 Constituencies. These will need to be supplemented with an element of proportional representation to ensure that minorities are adequately represented, and that there is equitable distribution of seats based on the totality of votes cast for each political party. Following the passage of this constitutional amendment by a two-third majority, the delimitation of electorates will need to commence immediately.

Bill for the 23rd Amendment to the Constitution

The next step should be another constitutional amendment for the following purposes:

· Establish the office of President of the Republic who shall be the Head of State, the Head of the Executive, and the Commander-in-Chief of the Armed Forces.

· Establish the offices of two Vice-Presidents who shall belong to two different ethnic groups, and neither of whom should belong to the ethnic group of the President.

· The President and Vice-Presidents shall be elected by Parliament. The term of office of the President and Vice-Presidents shall be four/six years.

· The President and Vice Presidents shall, except as otherwise provided by the Constitution, act on the advice of the Prime Minister, or of such other Minister to whom the Prime Minister may have given authority to advise the President or a Vice-President on any function assigned to that Minister.

· Whenever the President is prevented by illness or other cause from performing the duties of his office or is absent from Sri Lanka a Vice-President designated by the Prime Minister shall act in the office of President.

A Bill for the above purposes will require to be passed with a two-thirds majority. The Constitution does not require such a Bill to be approved at a referendum. However, the Supreme Court has been inconsistent on this question. In 2015, Chief Justice Sripavan and two other Judges held that the 19th Amendment (which required the President to act on the advice of the Prime Minister) was not required to be approved at a referendum, but different benches of Judges have since, in my view erroneously, held that approval at a referendum is required. Therefore, it is advisable for the government to state at the outset that it intends to submit the Bill to a referendum. This Bill, after being approved at a referendum, will come into force upon being certified by the President.

Dissolution of Parliament

The third and final step would be to dissolve Parliament, and fix dates for receiving nominations and for conducting the poll. The general election and the referendum could be held on the same day. If the President-in-office intends to be a candidate at the general election, he will need to resign his office upon issuing the proclamation dissolving Parliament. Since the incumbent Prime Minister may also be a candidate, the proposed Bill for the 23rd Amendment will need to make provision for the incumbent President to nominate a suitable person who is not a member of any political party to serve as interim president, and for such interim president to hold office until Parliament, after the general election, elects the President.

A New Constitution

During a brief conversation on a flight to Colombo, four months after he had been elected by Parliament to the vacant office of President, Ranil Wickremesinghe mentioned to me that one of his priorities was to solve the ethnic problem. I had no reason to disbelieve him. In fact, I accepted, and still do accept, that he had set that as a priority for himself during his tenure in the highest office in our country. Unfortunately, his belief that the full implementation of the provisions in the Constitution introduced by the 13th Amendment in 1987, during a bloody civil war, would achieve that objective is unfounded.

The strident response of the TNA spokesman Mr. Sumanthiran that nothing short of federalism will satisfy the Tamil population in the North and East, demonstrates the futility of seeking a solution based on that much maligned controversial constitutional amendment. Equally unfounded is his belief that a Truth and Reconciliation Commission (which is based on the Christian concept of Confession) will be appropriate for our country.

If President Wickremesinghe’s objective is national reconciliation and reintegration, Sri Lanka needs a new Constitution with a strong democratic foundation and based on the recognition that Sri Lanka is a multi-ethnic, multi-religious, and multi-linguistic country. The Constitution must also assert that Sri Lanka is a secular country, as Singapore does, in which everyone has the right to freedom of thought, conscience and religion, and does not need the intervention of the State to exercise that right.

It is desirable that a new Constitution should also contain the following provisions:

· The Democratic Socialist Republic of Sri Lanka will be restored to its original name “The Republic of Sri Lanka”.

· May 22nd will be recognized as “Republic Day”, while February 4th will continue to be recognized as “Independence Day”.

· Sinhala, Tamil, and English shall be the official languages, with English being the medium of instruction at the secondary and tertiary levels.

· The provisions of the International Covenant on Civil and Political Rights, and of the International Covenant on Economic, Social and Cultural Rights, both of which Sri Lanka has ratified, will be incorporated in the Constitution and be enforceable, including in respect of existing laws.

· A Constitutional Court will be established. Its jurisdiction will include the issuance of writs and the ex-post facto review of legislation. It may also serve as the court of final appeal in respect of important questions of law.

(f) A 30-member Senate will be established as the upper chamber of Parliament (perhaps consisting of representatives of professional organizations), with a 175/200-member House of Representatives as the lower chamber.

Conclusion

A new Constitution to replace the 21-times amended, author-unknown, and drafting- process-unknown, 1978 Constitution, is the real need of the hour. It will obviate the necessity to adopt the 22nd and 23rd Amendments referred to above. It will need a general election before it becomes fully operative, but it will not require a referendum to bring it into force. If the 1946 Constitution could have been drafted by a young assistant legal draftsman in three months, using a borrowed typewriter to work on; and if the 1972 Constitution could have been drafted in even less time, both at little or no expense to the State, there is no reason why a new Constitution for Sri Lanka cannot be drafted and adopted by Parliament before the Elections Commission begins the process of electing a new Executive President.

In this crucial election year, we need to ask ourselves why it is necessary to change the existing system. In answering that question, we must have regard not only to the manner in which this country has been governed during the past five decades, but also to the quality of governance in the world around us with which we must necessarily interact. We need to look ahead to the next 25 years and ask whether the constrictive framework of governance prescribed in the 1970s is appropriate or adequate to meet the challenges of the new millennium.

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Dr Nihal Jayawickrama, LL.B (Ceylon), Ph.D (London) is a former Permanent Secretary to the Ministry of Justice, who also served briefly as Attorney-General. He taught Comparative Constitutional Law at the University of Hong Kong, and at the University of Saskatchewan in Canada where he occupied the Ariel F. Sallows Chair of Human Rights. He is the author of The Judicial Application of Human Rights Law, (Cambridge University Press, 2002, 2nd ed.2017, 1200 pp.).

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