By Lakmal Harischandra –
Perhaps, no other past President in our Post Independence history may have provided this amount of entertainment and clownish performance, like Sirisena, the present crackpot. What is referred here is not the recent humorous ‘Cutting the ribbon’ episode without caring for the countdown, which made people to make tons of memes about it, and laugh all day. Seriously, there are tinfoil-hatted comics performing on street corners who make more humour like this, than this political clown occupying the highest seat psychotic President, who brought this Island nation to utter ridicule and a laughing stock in the eyes of the world within a space of 5 years. Two of his most notable comical, idiotic dramas which he enacted, inter alia among many, have been his pivotal role in engineering the infamous October 2018 coup and gross misuse of the presidential pardoning powers vested on him as per the Constitution.
Brought as a common opposition candidate few years ago as an antidote to the then prevailing Mahinda brand of authoritarianism and supremacism, this misfit has brought more shame to the office of executive presidency than any of his predecessors. Despite some successes like freedom of expression and RTI, the government of national unity led by Sirisena and PM Ranil, failed to stand by many of its commitments on democracy, reconciliation, anti-corruption and justice. He will be leaving behind a legacy of impunity and arbitrariness, apart from his ineptness and gross inefficiency, and not forgetting the roar of laughter and humour he raised in most of us, which would have certainly made Ven Sobitha Thero, the architect of the 2015 political revolution to turn in his ‘grave’.
On October 26, he attempted a coup d’etat by appointing Mahinda, his predecessor as prime minister, which ended in a comedy of errors. Because this appointment was unconstitutional, the sitting PM Ranil, despite his own idiosyncrasy, was right in refusing to acknowledge his removal. The President then suspended Parliament, and his insidious dealings, including behind the curtain efforts to buy MPs who backed Ranil to change sides, to thwart the democratic process in Sri Lanka, earned the ill-will of the nation. This wholesale violation of the constitution—especially in relation to a transfer of power—was unprecedented. the nature of the attempted coup itself, had a chilling effect. The coup followed by a return to the norms of self-censorship, violence and fear that were characteristic of Rajapaksa-era politics. The schemes of Sirisena, finally blew up in his face, when the Supreme Court suspended his order dissolving parliament and called a snap general election. Sri Lanka, went from one prime minister to two prime ministers to no prime minister in a span of 20 days. This unconstitutional change of power thus put at risk Sri Lanka’s democracy itself, which, while deeply flawed and regularly failing to represent and protect ethnic and religious minorities, nonetheless has been providing an important safety valve for conflict over the decades.
Then the gross abuse of Presidential pardoning power is another area Sirisena indulged with gay abandon, despite expert advice to the contrary. Those safeguards exist to correct miscarriages of justice and are to be exercised with extreme caution and gravity. The abuse of Presidential Pardon is an abdication of the state responsibility to control crime. However, for this crackpot , all these legal provisions made no sense . Even when the court found State officers or convicts guilty, he sought to abuse his powers under the Constitution and grant them pardon. Thus, the impunity is guaranteed even against court orders. The latest case of such abuse is the murder convict Jude Jayamaha escaping death row with the controversial presidential pardon. The convict hailed from a wealthy, high-profile family but was sentenced to death after being convicted of murdering a Swiss teenager Yvonne Jonsson in 2005. Reaction on social media was scathing, with one Twitter user decrying the ‘monstrous act by a failed president’. Jonsson’s sister Caroline wrote in a Facebook post about her concerns over Jayamaha’s pardon before the amnesty announcement. Observers say, that Sirisena may have pardoned Jude Jayamaha to test the water ahead of possibly pardoning another high-profile death-row inmate whose family owns radio and television stations that support him- (Yes! You guessed it right- It’s Duminda Silva). He, for the second time brought the process of justice thereby to ridicule.
This abuse of pardoning powers is thus not new for this crackpot President . Few months back, his act of pardoning Ven. Gnanasara Thero by abusing the Constitutional powers vested in him, raised a hornet’s nest too. The pardon of Gnanasara Thero cannot be called a fit and proper exercise of that power by any metric. The pardon itself amounted to an undue interference with the legal process. He least cared. Gnanasara Thero was jailed by the Court of Appeal for committing the offence of contempt against the Magistrate’s Court of Homagama. The conviction and sentencing happened after the learned Magistrate complained to the Court of Appeal, and after a trial at which he was afforded every opportunity to defend himself. His appeal to the Supreme Court was later dismissed. This was the one instance when the Thero was dealt with under the law when his conduct in instigating violence against the Muslims and Christians never drew any action against him by the law enforcement agencies. However, when the call of the hour was to be severe on all purveyors of hate equally, the President’s act of showing extreme leniency to a hate monk sent a very wrong message to the country, taking Majoritarianism to yet another level. Days later after his release, Gnanasara Thero joined Ratana Thero, another hate monk, to further aggravate the anti-Muslim hate campaign. In fact, Ratana Thero was instrumental in obtaining pardon for Jude Jayamaha.
In the hands of a crackpot like Sirisena, this pardoning power is like a barber’s knife in the possession of a monkey. What this means to the ordinary citizen is that he or she will have to live in a bewildered state having no one to protect them from criminals. This power should be either removed or subjected to judicial review. In a ‘Study on pardoning power of president with special reference to Rajiv Gandhi assassination case’ by Akash and Renuga, it is stated in the Indian context which is equally applicable in our context too, ‘the power to pardon is a constitutional scheme which has been reposed by the people in the head of the state who enjoys high status and such power rests on the advice tendered by the executive to president .The lack of any standards or checks on the exercise of the clemency power has not stood the Indian system of justice in good stead .Today’s changing political climate underscores the need for principal exercise of the clemency power. Harsher sentencing standards and public sentiment in favour of capital punishment have resulted in an increasing number of death penalty cases finding their way into the clemency process…
‘As judicial review is a basic structure of our constitution, pardoning power should be subjected to limited judicial review. if this power is exercised properly and not misused by the executive, it will certainly prove useful to remove flaws of the judiciary’
Before the pardoning of Ven Gnanasara, a group of lawyers urged Sirisena to refrain from doing so. They said, “The President’s power to pardon a convict is subject to judicial review. In our view, prior to pardoning a criminal, report should be called from the Attorney General and Ministry of Justice. We are aware that neither the Attorney General nor the Minister of Justice has submitted any report regarding the pardoning of this convict. These observations become indispensable as the pardon that will be administered will be for the offence of contempt of court and will signal to the public that it is possible to act in such threatening manner in a court room and with complete disregard to the judiciary and officers of law, and thereafter use the fact that the criminal belongs to the priesthood and through political influence obtain such a pardon. A pardon if not exercised with due diligence and careful consideration of the rule of law implications will contribute to a culture of impunity’.
The Sri Lankan experience with presidentialism has been a negative one when viewed from the perspective of constitutionalism, the rule of law and the protection of liberal democratic values and institutions. Our democratic traditions have been seriously undermined as a result of presidentialism. In 1971 when the proposal to introduce the presidential system in Ceylon/Sri Lanka was made, one of our most distinguished liberal Prime Ministers, Dudley Senanayake made this statement which has turned out to be prophetic-
” The presidential system has worked in the United States where it was the result of a special historic situation. It worked in France for similar reasons. But for Ceylon it would be disastrous. It would create as tradition of Caesarism. It would concentrate power in a leader and undermine parliament and the structure of the political parties. In America and France it has worked but generally it is a system for a Nkrumah or a Nasser, not for a free democracy.”
Dr. NM Perera wrote on the Executive Presidency that “it is said that the president of United State is a dictator for four years; in the case of Sri Lanka, this dictatorship extended by two years”. NM’s prophesies that the JR Constitution would gradually transform our country into a dictatorship were proved correct. Despite the 19th Amendment which removed powers of the executive presidency, the struggle against JR’s constitution begun by NM however cannot end as that amendment which was passed by Parliament still retains the basic framework of the JR Constitution. The present amendment has not gone far enough to remove the powers of the Executive Presidency to the extent required to prevent the growth of a yet another dictatorship. Sobitha Thero’s dream of abolishing the Executive Presidency is therefore still to be achieved.
Under Rajapaksas, Sri Lanka’s image as a vibrant democracy took a beating internationally.After the election of Sirisena, Sri Lanka once again rose to international attention, for the wrong reasons, different from those relating to Rajapaksas. During the constitutional crisis last year, there were wide appeals to the effect that the country will have to give its urgent attention to the task of completely dismantling and abolishing the Executive Presidency. The current Executive Presidential system suffers from a total lack of transparency, with no one knowing the thinking processes of a President, with his advisers and those who help him to arrive at decisions being unknown to the public.
Rajapakse’s and Sirisena’s terms of Presidency convinced everyone about the repercussions of an Executive Presidency, how dictators, crackpots, narcissist and demagogues elected to the highest office of power can dismantle entire democratic systems and make a mockery of the systems of law and justice. The executive presidency was established in 1978. Since then there has never been as much necessity for its abolishment as there is right now. Public resentment against the post of an executive president has been both widespread and longstanding. The holding of absolute power has resulted in political killings and widespread corruption. Incumbents have been using this absolute power to greatly weaken democratic institutions and justice systems. It is majoritarian and benefits from ethnic divides. There have been many reports in the past that the executive presidency was going to be abolished. There have been many assurances by political leaders that the executive presidency would be done away with. There have been some attempts also in that direction. None has succeeded so far. All reports of the executive presidency being abolished have bene greatly exaggerated so far. Against that backdrop one cannot but help wonder whether JR Jayewardene’s executive presidency model will ever be abolished at all.
Still, the people appear to have not learnt lessons and even in this forthcoming Presidential elections happy to walk along a two-party continuum both of which wreaked havoc in the Post-Independence history spanning over seven decades. Gota belongs to a dictatorial and divisive Rajapaksa tradition whereas Sajith has been part of a fake Yahapalana regime which failed miserably to realize the dream of Ven Sobitha Thero for a corrupt-free, racism free and a transparent nation. Both are promising many things which they could not implement during their hey days. Only NPP is actually addressing the underlying problem of changing the political culture and put forth a sustainable program of action to end the impunity culture and switching to a policy based political vision. Anura has shown his mettle to give credible leadership to this drive- a person who can be believed to abolish this executive presidency system once for all and restore sanity to the diseased political system in this country. Only a political overhaul can cure our political ills and any cosmetic changes will only serve towards continuing a warped political system which has brought nothing but disaster and ridicule.