By Malinda Seneviratne –
The 1978 Constitution is not made for dictators, contrary to an oft-articulated view. It is rather made to make dictators in that it confers on the executive near dictatorial power. The objections however have focused more on incumbent than position or constitutional provision.
The constitutional document is of course referred to but mostly to acquire the ‘objective’ tag or as make-up to disguise political preference. In the main it has been about likes and dislikes. Virtues of democracy and the need to have it affirmed in word and spirit are trotted out. It’s part of the political game to appear neutral but political preferences are hard to hide in this day and age.
A good rule of thumb when assessing the democratic worth of constitutions and articles therein is to image a beneficiary whose ability and integrity one questions, someone whose ideological bent and politics one abhors. This is the device I suggested that MPs voting on the 18th Amendment should use.
If we assume for argument’s sake that democracy is the best system of governance, the 1978 Constitution is a body blow to the idea. If one wants Sri Lanka to be a better democracy, then a complete overhauling of the constitution is called for. Easier said than done of course for it requires a two-thirds majority which is what is enjoyed by the current set of beneficiaries. It would be myopic to expect them to vote against their interest. On the other hand those who aspire to obtain the same sweeping executive powers would hardly be interested in voting to prune these very same powers they hope to someday enjoy. This is perhaps why the focus is on person and not post and why the rhetoric seems hollow.
In this context it is natural to think that knocking off the slightest shard off the executive armor is a necessary step in a ‘democratizing’ process. The error is that what incumbent loses does not materialize as a corresponding loss in constitutional provision. J.R. Jayewardene was declared a tyrant. Few were sorry to see him go at the end of his two terms. When he was replaced, Premadasa inherited the powers as did Wijetunga, Kumaratunga and Rajapaksa after him. The losses that accrued to the individual on account of error, ignorance and arrogance, they took to grave and retirement. Successors started afresh.
Attacking the President is easy. Taking issue with position is also easy. Arguing that the incumbent being ousted is ‘first step’ is hogwash. Belief that a presidential back-off would amount to dent in constitutional provision is patently naïve.
Today there’s a stand-off of sorts, some would like us to think: Supreme Court vs. Parliament, Judiciary vs. Legislative. Two process: Impeachment against the Chief Justice and Court Ruling against Parliamentary Select Committee. Some have called for a change of laws pertaining to impeaching judges of the higher courts. Some have called for prorogation of Parliament ‘to cool things a bit’. The ‘callers’ claim it is all about the independence of the judiciary. Some add that it is a democratizing move. The objection raised by some ministers to moves against the Chief Justice (at least in terms of the impeachment process) have been cheered by the above ‘callers’, notwithstanding the fact that some of these ministers are not exactly ‘people’s representatives’ in that they are in Parliament courtesy the President’s largesse. Bold of them, yes, but the fact that they don’t have a constituency to speak of should not be forgotten.
More telling is the identity of the callers. They are not political neutrals. They are regime-haters and as such their democratizing credentials are suspect. Whipping up notions of ‘confusion’ and ‘tension’ even as they call for an executive/legislative ‘back-off’ alone shows much humbuggery.
It is not a matter of picking between Mahinda Rajapaksa and Mr/Ms Perfect President. The choice is not between Rajapaksa and A Better Order in the Foreseeable Future. The choice is not between Executive Presidency and Westminster System (with or without some adjustment). For such choices, there have to be objective conditions such as severe economic, social, political discontent across the board. There are people who are not exactly cheering this regime, but neither are they inclined to cheer anarchy. The courts are not people-friendly, in fact that are places where the masses feel utterly displaced and disoriented. Lawyers are seen as evil necessities by those who for whatever reason are forced to be in court. Shirani Bandaranayake is not a Sarath Fonseka in this sense. Those who try to market her as the figurehead of moves at changing regime and democratizing probably assume she’s naïve, which is of course a possibility that cannot be ruled out. Worse, they assume that their political records are unknown. It’s a straw-clutching exercise of the politically dispossessed and displaced privileged class that we have seen before, with Sarath Fonseka and before him Sarath N Silva. No surprises therefore.
Only those whose lives and lifestyles are insured can wave hand at anarchy. Such situations are made for blood-letting, but the blood that could flow will not be theirs, but that of ordinary people. If it is a matter of a Constitutional Dictatorship versus Anarchy where a result in the favor of the latter (unlikely as things stand) spawns yet another Constitutional Dictator, the intelligent and responsible choice would be the former.