By Dayan Jayatilleka –

Dr. Dayan Jayatilleka

“I fought in the old revolution

On the side of the ghost and the King…” – Leonard Cohen, The Old Revolution

My profound thanks to Prof. Susirith Mendis for his critical observations (‘A Random Thought’, Opinion page, The Island, January 15th) on the appointment of the new PM and his Cabinet. My thanks also to him for his kind, and ideologically accurate, mention of me. His critical lucidity is no surprise to me given not only his own heavyweight academic credentials but also the intellectual tradition of which his late father LNT Mendis and his father-in-law Godfrey Gunatilleke were/are such stellar exemplars.

The core of Prof Susirith Mendis’s argument is as follows:

“Is what has happened a world’s first in a functional democracy? Is there a parallel anywhere else in the democratic world, or as a matter of fact, anywhere else in the world? …Where the presumptive Executive Head of a democratic country is a person who was neither elected by the people nor was his party given a mandate to govern as the largest party in the Legislature? All I understand happened on the 8th of January 2015 was that in accordance with the existing Constitution of Sri Lanka, the people elected an Executive President. They did so, on the basis of Chapter One Article 3 and 4 of the Constitution of the DSRSL where the “inalienable sovereignty” rest with the People and their Executive power is “exercise and enjoyed” through the “President of the Republic elected by the People”.

But we find, when we wake up now, that for all intents and purposes, (as happened between December 2001 to February 2004) a pliant and weak President without a party of his own, appointing a UNP Prime Minister and for all intents and purposes a UNP cabinet. But at least on that last occasion in 2001, RW and the party which he led, contested a Parliamentary Election and won a mandate to govern. They were the largest party in Parliament. The moral and constitutional legitimacy for RW to form a UNP government was never in question.

But what happened on January 8th? Not having the confidence to lead his party and garner the right to govern through a direct contest for the Presidency, he has performed a ‘constitutional coup’. The People, using their inalienable right of sovereignty by exercising their franchise (Ch. 1 Article 4(e)) elected MS as President…Let me say this again for emphasis. RW, who knew that the People would not give him the democratic mandate to rule, backed away from facing the ‘will of the People’, and supplanted a more acceptable person who will do his will. A constitutional sleight of hand to gain power that he would not have been directly given by the People. His maternal uncle, the ‘Old Fox’ would have been proud! He has outdone JRJ! I am sure that the ‘Old Fox’ could not have thought out such a political manoeuvre to grab power. But maybe he never had the need. He could come forward confidently on his own. (By the way, I just remembered! The ‘Old Fox’ too was trying a constitutional manoeuvre to become the President for the third time. Remember? The JVP revolt and Ranasinghe Premadasa prevented him. Sorry for that aside!). Let us get back to what I was saying.

So, I question RWs ‘right’ to govern. I believe that the ‘will of the People’ has been manipulated and thwarted. I feel the ‘spirit’ of democracy has been violated.” (‘A Random Thought’, Prof Susirith Mendis, The Island, January 15^th 2015)

Not only am I in complete agreement with Prof Mendis’ view that it is a Constitutional Coup, I would add that it is entirely without precedent in a democracy. When I read Prof Mendis, I had already expressed these views in a one and a half hour radio broadcast, on Neth FM’s program “Balumgala Unlimited” on Tuesday January 13th. The fact that the election manifesto of the common Opposition candidate mentioned it, does not excuse such a move because an election manifesto cannot supersede the Basic Law. Furthermore, one may have voted for Mr. Sirisena or against Mahinda Rajapaksa for many reasons, not always due to agreement with the full contents of the manifesto.

The correct democratic method of transition would have been for President Sirisena to preside over the existing cabinet, re-shuffle it, incorporating Mr. Wickremesinghe into it, and later to invite Mr. Wickremesinghe to demonstrate that he enjoys the confidence of the House, after which he could have been appointed PM. Instead the cart was quite deliberately put before the horse. One can imagine the howls from Colombo’s ‘civil society’ that would have followed had President Rajapaksa (or indeed President Premadasa) had done any such thing or even attempted it.

Prof Susirith Mendis’ and my argument and critique would be true of the upcoming fast-track or ‘shock therapy’ Constitutional changes. Neither the UF in 1970 nor the UNP in 1977 rushed through basic constitutional change at break-neck speed. The idea of a new constitution was in the UNP manifesto of 1977 and had been canvassed by Mr. Jayewardene since 1966. The new Constitutions of 1972 and 1978, flawed as they were, issued from a process of transparent deliberation.

I have not expressed my concerns (as I did in Sinhala on Neth FM Radio) in the English language because the urban English language reader is currently (and temporarily) domiciled in the same bubble of elation and false consciousness that it always finds itself whenever the UNP wins—and my memories date back to Esmond Wickremesinghe’s end-’64 crossover plot and the UNP’s “Hath Havula” of 1965. My most recent recollection of this urban middle class blind-spot is of course Prime Minister Wickremesinghe’s Athuruguriya Millennium City move and the CFA. I have therefore decided to give myself a break from writing to the English language newspapers until the reality of the continuing crisis, most especially, the national factor, rudely and indelibly impinges as it always does.