By Mohamed Harees –

Lukman Harees

What Maithri (MS) has been doing since 26^th October, in a fit of lunacy  abusing his Presidential powers under the Constitution not only took Sri Lanka and the world  by surprise, but also put the nation on a serious mode of reflection about the suitability of the Executive Presidential system to Sri Lanka, imposed by JRJ in 1978 and the quality of our Legislature. The government has become practically paralyzed by a three-way duel between MS, the President; Ranil, the ‘deposed’ PM and MR, whom MS appointed as PM, in what most considered as a well- orchestrated constitutional coup. Ethically too, this volte-face by MS would also gone done in history as the worst type of betrayal of the mandate given by 6.3 Mn voters in 2015 to usher in Good Governance, clean the stables and to promote reconciliation. Hypocritical MS who then campaigned to abolish the country’s too-powerful executive presidency thus chose to violate his own rules. The flood of nasty comments on social media aptly reflect the public mood.  

What transpired in the Parliament last Friday breaking microphones/chairs, staging mock sessions, blocking the Mace (considered the symbol of authority), as well as  many other vulgar incidents, reflected another dimension of the degeneration of Sri Lankan politics to the lowest depth. Many diplomats watched this unfolding violent fisticuff cum vandalism drama from the balcony bringing shame to the country while the nation watched them remotely  with much disgust and disappointment. Much public debate ensued whether both the Executive and Parliament, two branches of the government are fit for purpose at a time when total misfits and those with insatiable political greed and corrupt are vying for power. Thus, the current impasse is viewed by analysts as more than a constitutional crisis; it is also both a moral and political one, which calls for renewed and vigorous public activism to put Sri Lanka back on the democratic path and as a credible member of the international community once again.

Presidential powers as vested by the JRJ’s 1978 Constitution has spelled disaster for Sri Lanka, specially in the hands of a dictator like MR and a crackpot like MS, by concentrating power in a leader, and undermining the Parliament, the structure of the political parties and democratic institutions. Professor C.R. de Silva, in a critique of the presidential system in Sri Lanka, has called it as “over-mighty executive” with a ‘winner takes all’ approach. This is compounded by the fact that the rival centers of political power i.e the legislature and judiciary – have very little countervailing power or control. Such a combination, therefore, is a recipe for the authoritarianism’. Critics like Rohan Edirisinha argue that the presidential system encourages a personalized style of politics and a kind of crude populism which is the very antithesis of constitutionalism. It builds on the style of politics which focuses on the individual rather than people with political experience, capacity and commitment to liberal democratic values. the fact that s/he is elected by the whole country does to the President in terms of ego and power and authority.  They also contend that it fosters a mind-set where the President tends to think that because s/he is elected by the entire country s/he has the authority and legitimacy to basically do anything. It gives a person an exaggerated sense of his own importance. Thus ‘Presidentialism’ has fostered a kind of crude populism that is very dangerous from a liberal democratic perspective.

The political revolution which Sri Lanka experienced in both January and August 2015, could have been a pivotal moment for democracy to mature in the country and to build unity among the majority of Sri Lankans who voted for it after 30 long years of racist conflict and a hate campaign in Post war nation. The changes heralded much optimism and hope , with a new constitution being mandated to replace the hyper-presidential 1978 Constitution that would abolish the executive presidency, devolve further powers to the provinces, and introduce a second chamber, a mixed member proportional electoral system, a new bill of rights, and comprehensive constitutional review. MS in fact personally initiated the 19^th Amendment to reduce his own Presidential powers, and to recalibrate the constitutional relationship between the President and PM, and by extension that between government and parliament.

Dr Asanga Welikala, a Lecturer in Public Law at Edinburgh Law School and the Director of the Edinburgh Centre for Constitutional Law in an article in April 2018 titled ‘The Perils of Semi-Presidentialism? The Collapse of Cohabitation and the Design of Executive Power in Sri Lanka’ cites the key provisions Articles 30-33A and 42-48 of the Constitution, and says ‘After the Nineteenth Amendment, the cabinet, as a matter of law, is exclusively responsible to parliament and not simultaneously to the president. The prime minister cannot be dismissed by the president and this can only be done by parliament withdrawing confidence from the government as a whole. Since he remains the head of the cabinet and government, and can reassign functions between them without prime ministerial advice, ministers may wish to maintain cordial relations with the president, but that is not a legal requirement. And of course, the president may well accrue greater de facto power in a situation in which his party also enjoys a parliamentary majority’. Such a model can be defended as a system of power-sharing, which is especially important in the context of a constitutional transition as envisaged in 2015.

So ,why has this 19^th Amendment not worked as it should? Dr Welikela clearly stated the possible reasons. He said ’ Such well-meaning analyses lose sight of two important factors. The first is that the Nineteenth Amendment frameworkis not the product of a properly thought-through design, but the accidental upshot of an ill-disciplined and hasty process of political horse-trading.   As a purely contingent framework, therefore, it could work only so long as the relationship between Sirisena and Wickremesinghe held up. The second factor is that no amount of institutional re-engineering, or popular mandates for consensus and cohabitation, seem able to change the fundamentally antagonistic culture of politics between the two main party groupings… If it is accepted that presidentialism is not a system of government consistent with constitutional democracy in the context of Sri Lanka’s feeble political culture and its pluralistic social structure, then it is clear that the country needs a fully parliamentary model of constitutional state based on Commonwealth values’. How prophetic indeed!

Dr Nihal Jayawickrama in an article in Colombo Telegraph in March 2018 titled ‘The Illusory Executive Presidency’ also opined similarly that the Presidency has been stripped of all these fundamental executive powers. In respect of all these matters, he is essentially a constitutional Head of State as per the 19th Amendment [19A] . It stripped the Presidency of nearly all the executive powers which President Jayewardene invested himself with. The President today is, in many respects, a constitutional Head of State who is required to act on the advice of the Prime Minister, similar to the Presidency under the 1972 Constitution….. He therefore questions, ‘Therefore, the question arises as to whether an expensive, divisive, nation-wide election is required to elect the next President, merely because he still possesses a few, relatively unimportant powers in respect of provincial administration and the appointment of President’s Counsel. Following the example of countries such as India, should not Parliament, or an Electoral College, elect the next President? Following the example of several other Commonwealth countries, is it not time for Sri Lanka to have a distinguished, non-political, unifying figure, acceptable to all communities, as its Head of State?’

As a matter of fact, Dr NM Perera, who foresaw the dangers of JR’s Constitution, led a campaign against it which included the publication in 1979 of his book, ‘Critical Analysis of the New Constitution of Sri Lanka’ which made detailed predictions on what the future would be under JR’s constitution. Most importantly, he predicted the gradual move towards dictatorial rule and the weakening of democratic safeguards and institutions as a natural consequence of the JR Constitution. His prophesies came true even during JRJ’s  lifetime too, and more-so in the example of the Present incumbent MS too. 

Thus, in the context of recent developments, guided by narrow political interests, MS’s actions is deemed a clear violation of the 19^th Amendment he spearheaded in 2015 while being also a betrayal and an utter disregard for the parliamentary process. In resorting to these emergency measures, he has not only put democracy in serious peril but also let down the people who elected him , including a sizeable section of the Tamil and Muslim minorities that backed him in the critical 2015 election. It is also ironic that he chose to join hands with MR whom MS accused of even plotting to kill him if MR came to power in 2015, and therefore his desire to consolidate power by hook or by crook is extremely unfortunate. It is clear that the best forum to test political clout in a democracy is the legislature and therefore an extra-parliamentary power struggle, that too using illegal means, heightens the risk of political thuggery and unrest which we saw during the Parliamentary proceedings last Friday . 

It is also pertinent to mention that from CBK to MS, all Presidential candidates  promised to abolish this dictatorial Executive Presidential system; however none of them fulfilled them. On the contrary, they chose to find ways and means to use it to advance their own personal interests. Maithri’s tantrums and volte face prove this beyond any doubt. It is therefore important that the public and civic minded  bodies agitate to abolish this system and return to Parliamentary system of governance. 

But the question arises whether the Parliamentary system as it stands, is fit for purpose? Parliament as one of the key state institutions in a democratic system of governance have a critical role to play in promoting democracy and good governance. In the performance of their key functions of legislation, representation and oversight parliaments can actively engage in the development and implementation of laws, policies and practices that promote democracy and good governance. However judging by the quality of our Parliamentarians and the debates of vital issues, it is clear that the present type of legislature system is inimical to the development and image of the country. Most representatives  are not fit to be in Parliament, let alone engage in civilized debates on vital issues. The blame should fall upon the people who voted underworld  murderers, cheats, frauds, corrupts and  those engaged in illicit liquor trade to these exalted positions. Thus the rule GIGO (Garbage In- Garbage Out) prevails with Parliament turning out  to be a den of  comics and fisticuff rings. In the UK, holding the Government to account is one of Parliament’s main functions. Parliament forces the Government to justify bills, explain their motives, defend their actions, policies etc. This is always the case, except for during election times when the electorate briefly hold the Government to account (by voting for them or voting for someone else).

Overall, even the Yahapalana gang under RW were far from acceptable in terms of their dismal records in terms of  efficiency and clean politics. People have got fed up with their performance to the extent that they have felt no government in power while their were mega corruption deals and corruption all over the political plane. Sadly, holding politicians to account in respect of their promises has not engaged  Sri Lankan public activism in a serious  way like in other countries. Thus, tempo of public activism should increase to clean up this stinking stable and to hold the government to account. The campaign started by Ven Maduluwawe Sobitha Thero to get the people to elect clean representatives should be re-started in all vigour. No more ruffians like Johnston Fernandos, Aluthgamages, and Prasannas or corrupts like the Rajapaksas and those connected with Central Bank scam, and jokers like Weerawansas and Gammanpilas should step into Parliament through the public ballot. Also checks should be placed in preventing those who lost elections coming through the national list route.  

A focussed public awareness campaign should be launched to ensure that this absurd Executive Presidency should be abolished soon and not pussy footed like it is presently done . It should also focus on getting people to send only those with credible track records not just to  Parliament , but to other bodies as well. Making both arms of power like Executive and Legislature fit for purpose is an imperative. In this regard, social media can be deployed more effectively than it has to date–not merely to expose corruption or mobilize the public to demand the resignation of corrupt politicians/ officials, but as a tool that to rally support behind more drastic, unpopular reforms that could actually change the system. Lastly, it is time for youth to take over from those who should be in retirement.