25 September, 2020

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Constitutional Contradictions: Realism In A Time Of Crisis

By Dayan Jayatilleka

Dr. Dayan Jayatilleka

Most of the discussion of today’s crisis is from the perspective of a lawyer. Mine is not a legalist point of view. It is a political science view, or even more simply a political view of the problem. I belong to the Realist school of Politics, and it is a Realist perspective, which has ‘power’ and the ‘balance of power’, rather than legalism or moralism at the center of the analysis, that I wish to bring to bear on the current crisis.

In politics as I understand it, the crucial questions are “Who prevails over whom?” (“Kto-Kogo?” in Lenin’s celebrated phrase) and “Who are our friends? Who are our enemies?” (as Mao put it), or more tersely, “the friend/enemy distinction” (in Carl Schmitt’s coinage). 

The Prime Minister is now digging in, eye-balling it with the President. As this crisis unfolds, each of these personalities, and we, the citizenry, shall see what the Constitution is made of and how it works. Whoever comprehends it better, will prevail. If neither does, the governmental gridlock will be prolonged, with devastating consequences for stability and the economy. 

The crisis of the coalition has turned into a political crisis which is in turn manifested in a constitutional crisis. The reason is a complete misunderstanding of the Constitution. The Prime Minister and the UNP inhabit a mental universe in which Sri Lanka has a Westminster model, i.e. a parliamentary system or preponderantly parliamentary of government. It does not. It has a mixed system which is predominantly an executive Presidential system. The dice is still laden in favor of the Presidency.

It is very true that the 19th amendment imposed certain fetters on the Presidency. However, the 19th amendment is not a new Constitution. It is by definition, a modification of the existing Constitution. That modification is a structural change, not a system change. The political or state system—the model– is eminently classifiable Presidentialist. “The Gaullist System in Asia”, as Emeritus Professor of Political Science AJ Wilson defined the 1978 republican Constitution in a 1980 volume, still remains, though with important modifications which make it neo-Gaullist or quasi-Gaullist.

A Constitution cannot be reduced to a single amendment or viewed through the prism of a single amendment. For instance the Constitution is irreducible to and cannot be perceived through the keyhole of, the 13th amendment of 1987. As with the 13th amendment so also the 19th amendment.

The 19th amendment has not abolished the logic of the 1978 Jayewardene Constitution. The logic of that Constitution is, in the words of its architect, “a strong and stable executive free from the whims and fancies of the legislature”.

While the 19th amendment renders it less free from the whims and fancies of the legislature than it was, the executive still remains above and relatively autonomous of the legislature.

The logic of the 1978 Constitution is that the country is a republic, which means that the people are sovereign, and the sovereignty of the people,, in its executive aspect, is exercised through a Presidency which is directly and democratically elected by the people as a whole, and in which the office of president cannot be held by anyone who has failed to obtain a majority (50.1%) of the popular vote.

This is why the Presidency is placed decided above the Prime Minister: the President is elected by the whole people and is therefore the more authentic agency of popular sovereignty.

The executive function is that of making decisions, not framing laws. Framing laws is by the legislature. Making decisions is the function of the Presidency which derives its legitimacy from having been elected by a majority of the people as a whole, unlike the Prime Minister who is elected on a far more restricted base.   

The Prime Minister has several things going against him.

Firstly, the terrain i.e. the Constitution, as argued above. The center of gravity of that Constitution is the Presidency, not the Prime Minister or his slim majority in parliament. The Prime Minister is defying that center of gravity. At his media conference the PM said he will “continue to govern” as per the Constitution. He seems to have forgotten that the Head of Government is also the President—and the Head of State. The President is not a mere ceremonial Head of State.

Secondly, his actual political strength i.e. his actual political standing and popularity, in the country, which has dropped drastically, to well below the SLPP/JO, and most certainly below the combination of the SLPP/JO and SLFP/UPFA.

Thirdly, the issue of legitimacy, which is politics usually prevails over mere legality. The Bond scam has made a hole in the PM’s social legitimacy while President Sirisena’s has been strengthened at least on that large issue. Despite this, the UNP clings to its present leader and current PM rather than switch to someone else within its ranks.

On these three counts, it is evident that the balance of power does not favor the Prime Minister over the President supported by an SLFP plus MR led Pohottuwa/JO convergence. Simply put, MS+MR<RW.

To shift from the issue of the balance of power to that of state power as such, here the PM is disadvantaged, irrespective of the 19th amendment. It is here that the heart of political power and indeed the reality of politics itself, lie.

No halfway serious political scientist, however senior an academic he/she may be, would confuse the ‘State’ and the ‘Government’. Nor would he/she assume that the two could be placed on par, leave alone envisage a scenario in which in a clash, the Government overrides the State.

If the Government defies the State, the State intervenes to override the Government. The Government is not the State, and is certainly not superior to the State—it merely manages the day to day affairs of the State. It is the state that in the ultimate analysis, determines the Government and not the Government, the State.

The President, as the elected executive, is not only the Head of State and Head of Government, he is much more crucially, the Minister of Defence and the Commander-in-Chief of the Armed Forces. An ex-Maoist, he doubtless remembers Mao’s adage that, in the final analysis, “all political power flows out the barrel of a gun”.  It is the President who wields the Constitutional legal monopoly of violence. When push comes to shove, that can make the difference. One wonders whether Prime Minister Wickremesinghe who was never a leftist of any sort at any time of his life, leave alone a Maoist (and pupil of N. Sanmugathasan, who met Mao more than once) like the young Maithripala Sirisena, is aware of that.   

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Latest comments

  • 9
    7

    why dont you read what uyangoda says and comment on it
    this is a constitutional matter not a political matter
    ranil is a lawyer you are only a political hack

    • 6
      13

      oh, I did read it…:) After all Uyangoda and I were batch-mates and we both got first class honours degrees in Political science, though I won the CL Wickremesinghe prize for best results in political science, instituted by Ranil’s uncle Bishop Lakshman, in honour of Ranil’s grandfather …:))

      Having read his article I was reminded of why I won that prize….))

      • 4
        6

        Dr. Dayan Jayatilleka the public racist

        “Having read his article I was reminded of why I won that prize….))”

        Did your dad fix it for you?

        • 2
          1

          Political science is neither a science nor an art. It’s simply claptrap ………..so you won the highest prize in gobbledygook? …….and it shows! ……..by the clapo-meter, the claptrap you write every day is certainly better than Uyangoda’s ……

          I say, prizes and education doesn’t add up to much …………..Look at the Rajapakses, who, among the whole lot of them don’t have an OL-qualifier, are crafty enough to have a CL Wickremesinghe prize winner as a foot-servant. To hell with prizes …………in the real-world out here that’s talent bro…………….

          When I look back ………..all the guys back in school we considered utter duds ……have done very well – in their own way – all over the world ………….I suppose prizes didn’t lull them into false sense of security……….and lead them to Basil’s front door……..

      • 3
        5

        Dayan
        So you and Uyangoda were batch-mates? Uyangoda earned the respect of fellow academics.
        How about you? Do MR or GR respect you? They certainly have use for your views!

      • 4
        3

        Dayan,
        You must have paid lump sum as your boss paid to LTTE agent to win the prize. Your attitude, behavior, association with a fundamentalist dictator, murderer and corrupt family tells what kind creature you are.

      • 5
        2

        You are truly shameless, “Dr.” Jayatilleka.

      • 0
        1

        Dayan, I had a third class lower division in mathematics and I believe what you mean is MS+MR>Rw : )) And please stop bragging because it diminishes your admirable intellect

        • 0
          1

          wannihami

          “And please stop bragging because it diminishes your admirable intellect”

          People with admirable intellect:

          Ananda K. Coomaraswamy, Prof Gananath Obeysekere, Albert Einstein, Abdul Kalam, ……

          The things that lack intellect leave alone admirable one:

          Johnny Bravo, Homer Simson, Lloyd Christmas, Harry Dunne, ………………………

          On a scale of one and ten (one being the first category and ten being the second one) where will you place your mate with admirable intellect?

          I am sure you can work this out without a maths degree.

      • 2
        1

        Dayan,

        You set new standards for humility!

        Between the two awards, one, receiving the CL Wickramasinge prize and two, NOT being celebrated by the former President MR on Aljazeera for prostituting professional talent, which do you think would have made Mervyn Silva more proud?

      • 2
        1

        Dayan, what an ego! Your uni Academic excellence 35-40 years ago has no relevance now to your argument. Jamjaya

    • 7
      3

      Nalmen,

      You are pouring water on a donkey’s sorry, duck’s back.

      This d…… knows only MARAtics, neither politics nor law. He is a walking disaster in human form, waiting to get some position on MARA’s return to power. These guys will not only trade the country for their gains, but even his family members.

      I have always said this and continue say it, till my last breadth, his doctorate is not worth the paper it’s written on and he never sees or responds to numerous murders, rapes, abductions and corruptions during his Master’s Regime and tries his two cents to bring the murderous regime back to power.

      He surely will pay the ultimate price for the treason he is committing to the people of this country by promoting this suspected murderous family. I think up to now 75% is proven that the previous State Apparatus is involved in the murders of Lasantha and Thajudeen and it’s only a matter of time for the rest to be proven. That is the reason why the MARA Family is in a big hurry to get back the power. Unfortunately i….s like Dayan and majority of the voters doesn’t seem to understand this. What a pathetic state of affairs of our Mother Lanka.

    • 2
      0

      N
      Wrong.
      This is politics.
      Unfortunately Ranil is a politician, not a lawyer. He qualified as a lawyer many moons ago and is now forgetful of the truth and nothing but the truth.
      Time to retire from politics..

  • 3
    2

    The local government elections does not nullify the results of Central Govt elections or supersedes it.
    It is of course a protest vote. It is absolutely bonkers to ask the PM to resign on the basis of the local govt results.

  • 4
    2

    glad to know that you got first class honours
    after all papa mervyn whom you quote so often only got a third

  • 2
    1

    What’s a cou with legitimacy called? Democratic honorability! ( now let the Colomboites sit talking about “being a gentleman,” “common courtesy,” “common decency,” …..with that smug look and self-satisfied wriggle of the bottom)
    *
    btw, MR+MS > Ranil….Mr+MS “is greater than” Ranil.
    *
    But, with gentlemenly-common-courteous-decency, we will give Ranil one more chance: Bring back the hard working masses money from Singapore Ranil! Pay the penalties, but bring back at least 75% of it- swhew- what a loss! Then we can democratically decide what to do with it! (Last the masses ever needed was for e.g. sacred forests to be razed for oil palms to be built so as to satisfy Singapore hedge funds)

  • 1
    2

    Dr. DJ: You belong to the “Realist Political School”. That is what we saw at the Local Government election won by the newly formed SLPP (Pohuttu Party) of which you were a prominent advocate among other “Back Door” intellectuals. The “Realistic Politics” for this SLPP was none other than to cash in on the fast eroding popularity of the Governing Coalition and center the campaign on MYTH of advocating two fast and fictitious strategies, viz. (1) Local Govt. election is a No Confidence on the Central Government and (2) To bring back Mahinda as the Prime Minister. Other than that, there was NOTHING by way of a MANIFESTO on the Local Government affairs or at least seriously discussing any plans for the development of Local (Urban & Village) level uplift. This playing on “MYTHS” is “REALISM” and “REALISTIC POLITICS” for all of the “Back Door” intellectuals, including you, affiliated to the recently formed SLPP “Opportunistic” party, engineered by another “Rouge” politician, a sibling of MR. Then a large majority of those faces we saw on the STAGE was a composition of prominent political figures who are answerable and accountable to many a crimes committed during the tenure of MR. The “Realism” and “Realistic Politics” for them are a hidden agenda, all of which are centered on “Bring Back Mahinda” with the sole purpose to discard the shackles they are presently buckled in. Of course, the INSANITY and the DOG FIGHT that SLPP and the connected “Back Door” operators intended to raise within the Governing Coalition has been a BIG ACHIEVEMENT; but the “SUCCESS” of your Realistic School of Politics is yet to be seen.

  • 4
    0

    What ever the constitutional possibilities, what the people WANT and VOTED FOR is the end of corruption and selling off national assets to foreigners and the re-colonization of our coast by foreigners.

    They do not want either Ranil or Mahinda and their respective corrupt cronies to be in power PERIOD.

    They are disappointed with Sirisena for not being firmer in getting rid of those found guilty of corruption and recouping the financial loss to the country.

    The JVP should be the most logical group to shine at this time. However people have long memories of the atrocities they committed in the late 80s, and their racism. So they will fail to get the support of the majority.

    Where is the knight in shining armour for a corruption-free and independent Sri Lanka? For it is clear that it aint Sirisena anymore.

  • 1
    3

    Dayan yet again tries to justify his opportunist political view. It is certainly does not reflect any political science.
    In the LG elections SLPP proved that people can be made to forget mega-embellishment if milk & honey is presented on a language/religion-divide plate. Short term gain “Yes” but long term?
    This should worry a political scientist.

  • 1
    2

    Dayan

    It is not 50.1%, it is 50%+one vote

  • 1
    2

    Constitution expklanation is a joke. Remember how they brought the 19th amendment to limit the no of ministers. In one place they say say it is a maximum of 30 or less. and it was told to the public. they di dnot expose the no of state ot other ministers which is about 40. Note, only the name different. they can be given the same salaries, perks and benefits. Then additionally, Out of the 19th, Ranil brought another oiece of legislation and increasd the no of ministers to 45 which override the 19th amenment.
    Ranil is indirectly self-acknolwedged thief. Why the law enforcmenet can not arrest him as he is an accused and Why President cannot remove the PM that he appointed. I do not know whether AG has political ambitions.

  • 1
    1

    Dayan,
    “the office of president cannot be held by anyone who has failed to obtain a majority (50.1%) of the popular vote”
    It is incorrect,it is 50%+one vote.
    Then if any candidate fails to get at least 50%+one vote , then the second and third preferences are counted simultaneously of the other candidates who fail to obtain the first or the second highest.

    After these second and third preferences are counted whoever gets the majority of votes are elected as President.

    The need to get more than 50% is not applicable at this stage.

    Therefore your claim that the office of President cannot be held by anyone who has failed to obtain a majority (50.1%)is mathematically and factually wrong.

    Please study the constitution first before quoting from the constitution!

  • 0
    2

    Dayan
    We have in a state of crisis for over seven decades. We have had coalitions where the dominant partner threw scraps and the others lived off it. Now for the first time we have coalition of roughly equal partners. We need corrections.
    Real politics (aka ‘realpolitik’) is about manipulating the voters purely for the benefit of individual and sycophants.
    We accept that you are a ‘real politician’. You switched from being in a Tamil liberation front through to an anti-Tamil. Just when did the enlightenment occur?

  • 2
    1

    Again,
    Dayan,
    MR+MS is not less than Ranil, it should have been,MR+MS is greater than Ranil

    Do not use mathematical symbols just to impress readers without understanding head or tail

  • 3
    2

    Having read his article I was reminded of why I won that prize….))…..prize or no prize we all know where you rank as a political scientist…. in the dustbin of medamoolana.
    Does the realist in you know anything other than bashing Ranil and sucking up to the jarapakses in the hope someday they will return to power and offer you a posting in paris

  • 5
    0

    Dayan:

    When is this charade going to end. Even after 70 years of independence the country is still playing marbles. When are you people going to grow up. Isn’t it shameful that you people can’t even manage a small tiny island? Now, with all the huha, you are essentially a Nero playing the flute when Roma was burning. Grow up please.

  • 3
    0

    MS was elected by a coalition of voters, with the UNP, a section of the SLFP, and the vast majority of Tamils and Muslims. But he misinterpreted that mandate and tried to bring in a large number of SLFP’ers aligned to MR into government, and assumed the leadership of the SLFP. That wasn’t called for. What was called for, was the creation of a new party which would have UNP in it as a major component, but also the MS-CBK wing of the SLFP, with the support of the major parties representing minorities. The new party could be called something like ‘United National Freedom Party’ and it would be a centrist party, moderating the hard right economic policies of certain sections of the UNP.

    If Mangala Samaraweera could join UNP without issues, MS-CBK should have no problems in joining such a new party, and leaving the JO/SLPP behind as the old SLFP. If such a coalition had been created and strengthened with good policies, and the bond scam had been addressed quickly, the new party would have won the local elections. Even now, if such a party is created, it will allow MS to gracefully exit as President in 2020 on a high note, having taken the country in a new direction with a winnable coalition. But does MS have it in him to do such a thing?

    DJ has repeatedly made the false argument that one needs the majority of the majority to win elections. If that had been the case, Obama would never have been elected as president twice in the US. What MS needs is clear thinking on who really elected him: less than 50% of the majority community representing both the UNP and SLFP, plus minorities.

  • 0
    1

    Thero lost the ability to perceive, but can only cut and paste irrelevant quotes from two centuries old Communists.
    The question on the stage is passing through a culvert, a bottleneck, from this side to other side. Thero is bringing a yardstick, measuring his client and opponent and showing his client is more than 6 foot, but the opponent is less than 3 feet so only his client can go through because he is the biggest. Ranil is a proven strategist. If he can’t pass through this bottleneck, never will New King. So far New king has not demonstrated his understanding of the constitution other than running to AG every time, who himself is always wrong. Ranil started to work on the constitution for 15 years ago when Chandrika fired him. He thought on that; consulted experts on that; put it for discussion in the parliament and watched 8th graders understanding on that. Then he had slipped it though New King’s Hand and have made it as 19A.
    Weather it is irrelevant for the point here or not, but amendment or main body, imbecile Thero doesn’t know that is all what make constitution. Constitution is one single text. The word “Amendment” is only a reference code to particular area. You refer something as section 16, article 9, Chapter 2 or 13th Amendment. None of them make any difference to the authoritativeness or binding nature of that part of the constitution. You can designate a person PhD in war crimes or PhD in Sociology, but what counts is his ability to conceive and control the destiny of his journey.
    Now it is unanimously agreed by all kind of experts that New King can do nothing on firing Ranil. Ranil prevails for another sold 2 years. Period! Garrulous gasbag of Cuban PhD is flying all over everywhere in the sky but could not land on the point.

  • 0
    1

    Whatever Thero said or rejected, 19A is the part has any relevance here. He is so chaff enough to start an argument that amendments is not constitution.
    New King is nothing but the nincompoop child of the Attanagalla Princess Chandrika. He is a president germinated by an accident of the history. Sobitha Thero wanted a just government. He took his bow and arrow against Old Royals. Chandrika wanted to eliminate them, because of the personal problems they were giving to her. Sampanthar restrained Ranil not to be involved, overreact and stir up. NGOs and diplomats coordinated the event. Old King was ousted from the seat. This is not how a self-made leader seeks authority from sovereign state citizens and emerges out as president. This is like 10 or 15 women getting together wear sari, load with flowers and jewel and bring to wedding stage a bride. Shame is for New King of the story of how he became president. Neither Mao nor Castro did this. Their talks are completely mismatched for the incident here.

    Ranil got 4.7 m in 2005, sans Tamil votes. He lost by 1.5 lakhs. That is less than the Tamils votes he could have got. TNA go 7lakhs in 2018. New King has not established his voter base anytime so far. All what he got in 2015 was UNP, Tamils and Muslims. There are no SLFP votes. In LG election he and Slap party, the SLFP (GLP) stood against each other. Only a small UNP, a small Muslims and No Tamils voted in 2018. So now New King is toothless snake without any backup
    The power of the dedicated own backup
    pukazhpurindha illiloarkku illai ikazhvaarmun
    ERupoal peedu nadai
    Who have not spouses that in virtue’s praise delight,
    They lion-like can never walk in scorner’s sight
    If your wife doesn’t backup and adore you, you are a coward in the eyes of your enemy.

  • 0
    0

    Ongoing political and constitutional crisis arise after humiliated defeated of local council elections of governing of UNP and SLFP that ‘political coalition’ and by official opposition organizer of JVP in 11 of February 2018!
    In fact MR alliance of SLPP has won a landslide victory of majority Democracy that democracy rule by majority. As long as the Will of majority was clear ,it was possible to make it out clear ,at least with grain plausibility the people offer MR alliance democratic rule back the Parliamentary politics which I welcome.
    But USA, UK, EU and Indian led so-called “Ranilbow (Rainbow) Revolution” has been offered 2015 January 9th counter-revolution puppet government in Island led by MS and UNP -RW! In facts that and this delay could not last long it has limited to 37 months from 2015 January 9th.
    By the way an overwhelming majority of Sri Lankan population has become clear in more than local council election 2018 February 10 rulers are in power having Not that general senses of citizens by MS and RW of UNPs.
    Therefor they are unable to recovered economy and democracy in 37 months in power by means of democratically…. ! As a result of truly free and truly unpopular in current regime in that Local council election in 2018 February 10th not gain that people given New and Fresh mandate to run the govt.
    Since 1948 all ruling parties and their governments intervention and rule regulated has major basic needs by democratically and -historically rooted support in Sri lankn public life by all ruling parties. But current regime has discarded all norms accepts by past governances.
    This not last political -economic crisis ,it was very beginning of 1977 UNP-JRJ Neo-liberal nexus to
    Neo-colonial that dominated by USA and UK hegemony of destroy economic sovereignty of Sri lanka

  • 0
    0

    If possible that balance of my comment to be appear your CT I really appreciated.
    Thanking you
    Ranjith Gunawaradana.

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