By Rajan Philips –
For the second time in five years Sri Lankans have peacefully chosen a new President for a new five-year term and witnessed a smooth and constitutional transfer of power. The clear verdict of the electorate, which would appear to have surprised all sides, has nonetheless been accepted by everyone who contested the election and their supporters with civility and even good sportsmanship. At the same time, the glaring electoral fissure along geo-ethnic (fault) lines (with seven provinces and 16 districts voting overwhelmingly for the winning candidate, and two provinces and five districts along with a solitary (sixth) district right in the island’s centre voting overwhelmingly for the runner up) – has led to a range of interpretations and varying expectations. As for the new President, he has a new political beginning for an old soldier. Not just any beginning, but as the Head of State, Head of Government and Cabinet, and Commander in Chief, in the country of his birth. A big job even if it is in a small island.
It is also worth noting that as a matter of constitutional housekeeping business, last week’s presidential election and assumption of office are also the first time that the two events have occurred on their constitutionally due dates. Until now the timing of every presidential election and the assumption of office, starting with the very first one in 1982, has been manipulated for political and electoral advantages by incumbent presidents. One would hope, the new President will not do anything to change this new practice at the end of his elected term, regardless of whether he chooses to run for a second term or not. To his credit, he appears to be abiding by the Constitution in not appointing himself to any ministerial portfolio, not even the Ministry of Defence, notwithstanding his post-election assertion that he was elected to be and will be the Minister of Defence.
There was some titillation among detractors of the 19th Amendment who were hoping to see a constitutional standoff between the newly elected President and the incumbent Prime Minister, Ranil Wickremesinghe, whom the new President could not have dismissed without creating a new November crisis. Politically, there was not going to be any standoff because it is all good blood between Wickremesinghe and the Rajapaksas. In all of Sri Lanka, bad blood is only between Ranil Wickremesinghe and Maithripala Sirisena, and the two cohabitants turned antagonists are either gone or on their way out. Mr. Wickremesinghe, who might have hummed and hawed about leaving his post if Sajith Premadasa had won, was all gallant and gamely in giving way to the new President and his old friend. He is now keen to resume his favourite cabinet position: Leader of the Opposition.
The President and Parliament
Those who scoffed and cried constitutional foul at the twin inauguration of a newly elected President and his cohabitant Prime Minister in January 2015, must now be feeling satisfied with the smooth transition from the tired half-yahapalanaya government to by no means fresh SLPP-caretaker government with Mahinda Rajapaksa as third-time Prime Minister. Therein is the beauty of the parliamentary system. One can be a Prime Minister for endless terms, and there is no harm in being so because one is constantly accountable to one’s cabinet (in Britain a long line of Tory PMs from Churchill to Thatcher got turfed out by cabinet revolt), parliamentary group, and to parliament itself. That is not the case with an elected President.
That said, the transitional experiences of 2015 and 2019 have created a healthy precedent and convention by which a sitting parliamentary majority would fade away if an opposition candidate wins the presidential election. It may not quite work so smoothly, or not at all, if it is the other way around – that is if an opposition party wins the parliamentary election defeating the government of the sitting president. Then, of course, the ‘presidentialists’ will say that the new parliament must work with the incumbent president. Their illogical argument is that a President is elected by all the people (technically even by 50.1%), while MPs are returned from smaller constituencies. As historical precedents go, President DB Wijetunga stepped aside when Chandrika Kumaratunga first won the parliamentary election in 1994. But Kumaratunga stayed put as President in 2001, when Ranil Wickremesinghe won the parliamentary election, and three years later went on to sack his government and dissolve parliament.
It is the removal of the arbitrary presidential power of dissolution by the 19th Amendment that has provoked criticisms that somehow that removal is undemocratic and a recipe for instability. When Gotabaya Rajapaksa won the presidential election, the critics suggested that the 19th Amendment was preventing the new President from dissolving parliament and furthering the will of the people that had just elected him. This is a fundamental misunderstanding of the principle and the practice of the separation of powers. It is worse than misunderstanding, because what is involved is the refusal to understand that to have the executive exercising the power of dissolution over parliament is totally incompatible with the separation of powers between the executive and the legislature as coequal branches of government.
What the 19th Amendment did was to rid the 1978 Constitution of this particular contradiction, which was the right thing to do. The shortcoming of the 19th Amendment is not what it did but what it failed to do. One solution would be to have the presidential and the parliamentary elections at the same time, if only to make the absurdity of having two elected entities at the summit of the state more glaringly obvious. A different solution could be to have what Dr. NM Perera called a “non-dissolution” legislature, which cannot be touched between elections which are held at prescribed intervals. No one can dissolve the legislature between elections, not even the legislature itself. This is the system that obtains in the United States and it is fundamental to the so called separation of powers. Imagine even the greater chaos that the US would be in if Donald Trump could dissolve the American Congress in the name of democracy.
Even in a wholly parliamentary system such as the United Kingdom, the mother of all parliamentary systems, the new law of fixed-term parliament is working well. The Prime Minister cannot have the Queen dissolve parliament whenever he wants it dissolved, as it used to be. Parliament must resolve by two-thirds majority to dissolve itself prematurely. It has done so twice in the less than three years, more frequently than when the Prime Minister had the power to effect dissolution at the time of his choosing. On December 12, the country will have its first pre-Christmas election. The electorate is not amused, and no one knows which way it will hang the next parliament to punish its MPs who cannot make a collective decision on Brexit.
The new President
Fortunately for Sri Lanka, President Gotabaya Rajapaksa, going by his first indications during his first week, seems to be steering away from his detractors’ worst fears, which are also the best hopes of some of his more extreme supporters. There were fears as well as expectations that as President, Gotabaya Rajapaksa will govern not merely despite of but even in defiance of the 19th Amendment. That is not turning out to be the case, at least so far. The appointment of the new cabinet of (old) ministers without himself assuming any portfolio is the first positive sign to take note of, even as one hopes for more of the same. There were fears as well as expectations that soon after his victory, President Rajapaksa will sack Prime Minister Wickremesinghe by Gazette Extraordinaire and appoint Mahinda Rajapaksa as PM. That would have been a defiant revisiting of the failed constitutional coup of last year. And that too has not turned out to be the case.
The new caretaker cabinet is remarkable for its small size, though not necessarily for its talent. The Prime Minister’s portfolio includes all the commanding heights of cabinet power. It is an interesting new brotherly dynamic that might inadvertently restore the parliament to its co-equal status with the president, as it should be even under the Jayewardene constitution. The sterner tests are yet to come. But there are plenty of early opportunities for the new President to send out positive signals. Nothing will be more positive for the economy and clean government, than to leave the Central Bank severely alone, as it currently is after almost a decade of malfeasance under two unworthy governors.
The pundits’ preoccupation now is about the dissolution of parliament. Whether dissolution should wait till 1st March 1920, when it can be constitutionally dissolved, or it should be done this year by mustering the requisite two-thirds majority in parliament that is required for premature dissolution. Interestingly, it is not the President or the SLPP that is calling for an early election, as they did this time last year. It is Ranil Wickremesinghe’s faction of the UNP that is now calling for an early election after wasting a god send opportunity to go for an early election soon after defeating the Sirisena coup last year.
Now there is said to be a brewing internal war in the UNP with the Sajith Premadasa faction objecting to an early dissolution, if only for the altruistic purpose of letting first term parliamentarians complete a full term to secure their full pensions. What befell the SLFP after Sirisena won the presidency might befall the UNP after Sajith Premadasa lost the presidential election. UNP sponsored candidates may come and go, but Ranil Wickremesinghe will go on forever as leader of the UNP. Not quite like Tennyson’s brook, more like a Colombo canal.
The bigger elephant in the room is the ethnic question. In a straightforward comparison of the 2015 and 2019 presidential elections, Sajith Premadasa could not really make up for losing the SLFP and the JVP contributions to Sirisena’s winning vote tally in 2019. Perhaps he could not make up the loss, because of Gotabaya Rajapaksa’s standing among the Sinhala Buddhist voters. His standing rose after 2015 owing to a variety of factors. If 2015 was a muted backlash against postwar Rajapaksa triumphalism, 2019 is a louder backlash against Mangala Samaraweera’s human rights triumphalism. Add to that, the cultivated craving for a strongman ruler that infected quite a cross-section of the electorate, ranging from old UNPers to old Leftists and all the open economy upstarts in between. Then came the Easter blast and the deal was sealed with ecclesiastical blessings. The geo-ethnic bifurcation of the electorate cannot be understated. Nor should it be over interpreted. The electorate is ephemeral, the country is not. Life must go on differently between elections. How will it go under President Gotabaya Rajapaksa? That is an open question, which, for now, is better left to be answered in practice, rather than in anticipation.