By Laksiri Fernando –

Dr. Laksiri Fernando

UNP General Secretary, Tissa Attanayake, appears to be quite naïve to talk about the winning prospects of the UNP leader, Ranil Wickremesinghe, against President Rajapaksa, without challenging the ‘illegality and immorality’ of the incumbent contesting for a third term. As many have already pointed out, his statement was an indirect legitimation of Rajapaksa candidacy for a third term. Then the party had to do some damage control. The call for an early presidential election in January 2015, as planned and now confirmed, itself is unconstitutional if one clearly goes through the constitution and the flawed 18^th Amendment.

There is nothing wrong, however, or even imperative for the main opposition party, the UNP, and other parties to be ready for a snap (and I might say an unconstitutional) election given the fact that the judiciary has increasingly become a rubber stamp of the authoritarian executive. However, even Mohan Peiris’ Supreme Court might find it difficult to completely disregard all the legal arguments against a third term and a snap election. Even in this case, so far announced UNP’s 7 point program is fundamentally weak without challenging the ‘legality and morality’ of the third term for the incumbent President Mahinda Rajapaksa.

It is commendable that the UNP has incorporated the abolition of the executive presidential system as one of its seven points. Abolition is the main cry for liberty today. In my opinion, however, the main campaign against the President (at such an illegal and immoral election) should be launched by highlighting that illegality, danger and the immorality of a third term for the incumbent president along with the abolition of the presidential system.

The opposition that intends to come to power should also assure the electorate that it would preserve and expand the now battered free education and the public health system apart from ameliorating the cost of living. This is the only way to get the support of the university sector, broader trade union sections and the poor. This means a progressive socio-economic program. Protection of minority rights and the implementation of the 13^th Amendment through dialogue and cooperation also should take equal importance.

Louis the Great!  

The danger of a third term is now strongly felt within the UPFA circles and even within the SLFP ranks. The constitutional reforms proposed by the JHU MP, Ven. Athureliye Rathena Thero, through his Pivithuru Hetak (A Pure Tomorrow) are commendable and a reflection of this trend. Perhaps as a reaction to these developments President Rajapaksa has stated that he is ready to abolish the presidential system if the TNA and the Diaspora give up separatism! This is mere rhetoric.

Even if he is correct in his assertion, why does he think that the Presidential System is equal to His Presidency? Is he going to say that no one in his party or in the UPFA coalition is capable of contesting or holding the presidency? Perhaps he is following Louis the Great who said “I am the State” in the 17^th century France.

When one looks at the genesis of the presidential form of government what is clear is that its basic design came from the archaic ‘constitutional monarchy’ and not parliamentary democracy. The first presidential system was designed in America in late 18^th century, or in 1789 to be more precise, and tracing its origins that is what Sydney Milkis and Michael Nelson argued about its origins (American Presidency: Origins and Development). The old constitutional monarchy in England also was the basis of Montesquieu’s pure theory of separation of powers.

There is no doubt that parliamentary democracy also evolved through constitutional monarchy but that evolution ensured the responsibility and dependence of the executive on the popularly elected legislative body or parliament. This does not mean that a parliament should be all supreme and above the constitution like what appeared to be the case under Sri Lanka’s 1972 constitution even encroaching into the independence of the judiciary.

Constitutionalism should govern even parliamentary democracy, safeguarding particularly the independence of the judiciary and independence of the other organs of the state i.e. the public service. Politics should be kept to the minimum for an efficient and developmental administration. This is what we understand as independent commissions or the 17^th Amendment whatever the drafting weaknesses of that piece of legislation.

Monarchical genesis or even genetics of the presidential system is clear in many of the presidential systems. When De Gaulle drafted his presidential system in 1958 in France, although it was a mixed system, his image was Charlemagne and Napoleon. As we all know, after J. R. Jayewardene became the president he did everything to place himself in the pantheon of royalty. He frequently got up on the Paththiruppuwa to address the nation and indulged in Vap Magul. Do we need to say anything about the incumbent President? Our concern is not so much on the glorification of the presidential position except where the glorification is accompanied with ‘family rule’ or attempts to hold on to power ‘by hook or by crook’ as today in Sri Lanka.

Dictatorial Trends

Aristotle opined that monarchy usually degenerates into despotism. In the case of presidency, it can degenerate into much worse, dictatorship or military rule. This is a clear propensity in any presidential system particularly in transitional and conflict ridden societies like Sri Lanka. Let us take few examples before talking about South Korea.

The new independence constitution of the Philippines (1946) was a presidential system designed on the American style. When Ferdinand Marcos first came to power in 1965 with 52 percent of popular votes, the duration of a presidential term was four years, limited to maximum two terms like in America. He was the first president to win a second term in 1969 with 62 percent dubious votes by using $ 65 million treasury funds. This is an established fact. But his presidency was supposed to end in 1972 when he declared martial law and continued until 1986 when he was overthrown. His easy excuse for martial law was the threat of Communist and Muslim insurgencies.

Peru’s case was slightly different under Alberto Fujimori (1990-2000). When Fujimori won the presidential elections in 1990 he was a dark horse candidate. No one imagined that he would become a dictator. He was by and large a technocrat. But his powers and circumstances led him to become one, facing a hostile congress. In 1992, with the help of the military he became a dictator. It was on that basis that he won the second term in 1995. Peru’s term of office was five years but there was a two term limit. Let me quote a reliable Wikipedia entry to drive the point home of the danger of a third term.

“The constitution limits a presidency to two terms. Shortly after Fujimori began his second term, his supporters in Congress passed a law of ‘authentic interpretation’ which effectively allowed him to run for another term in 2000. A 1998 effort to repeal this law by referendum failed. In late 1999, Fujimori announced that he would run for a third term. Peruvian electoral bodies, which were politically sympathetic to Fujimori, accepted his argument that the two-term restriction did not apply to him, as it was enacted while he was already in office.”  

Peru’s ‘authentic interpretation’ was similar to Sri Lanka’s 18^th Amendment in some ways. There is also a possibility that the government might try another ‘authentic interpretation’ before January 2015 as there is a ‘more authentic interpretation’ by a former Chief Justice.

The situation in Sri Lanka is not unfamiliar to any of these countries under presidential antics. Clifford Krauss writing from Buenos Aires to New York Times on 27 December 1999 said the following.

“President Alberto K. Fujimori of Peru announced his candidacy for an unprecedented third term today, arguing that his country needed him to guarantee an end to terrorism and to complete its economic recovery.”

Doesn’t it familiar? It does. Terrorism and economic arguments are standard ‘stock in trade’ for many those who seek dictatorial powers.

South Korean Example

South Korea’s constitutional system was similar to  the American presidential system after the Second World War, like in the Philippines. However, Park Chung-Hee had to come into power through a coup in 1961. Then he held elections for the presidency in 1963 and won the elections with a dubious majority (43%). Like in the United States, the term duration was four years and there was a two term limit. He won the second term in 1967 with a comfortable majority of 52 percent.

The term was supposed to end in 1971 forever. But in 1969 his supporters brought a constitutional amendment similar to the 18^th one in Sri Lanka for him to allow a third term. Then he contested the presidency for a third time and won with a slender majority of 51 percent. He was not satisfied with the situation and declared martial law in October 1972. Even before 1972, the system was authoritarian although there were elections. In October 1979, he was assassinated by his own security chief.

There are many assessments of Park Chung-Hee. I used to do the same when I was teaching Political Economy of Southeast and East Asia. Undoubtedly during his period, the economy of the country progressed. It was an actual ‘Miracle of Asia.’ The initial assessments were linking the economic take off to his authoritarian management of the polity, if not the economy. But thereafter the studies that were conducted deeper into the economic dynamics revealed that there were no direct connection between the two and the country could have perhaps progressed better if not for the authoritarian rule.

The point is that the authoritarian tendencies in a political system emerge not from economic imperatives but from political ones. In the case of Sri Lanka, if the presidential system was justified during the actual threat of terrorism or separatism, that is no longer the case. There is no question that the economy has progressed during the last decade. As G. L. Peiris himself once said, ‘when the tide is high all boats are lifted up.’ However, if not for corruption, nepotism and mismanagement, Sri Lanka could have become a real miracle with a two digit growth rate. A presidential system also does not mean a third term for an incumbent president, although it is a fallout of a presidential system in a developing and a conflict ridden country. A third term for a president, on the other hand, is a recipe for an easy dictatorship and a disaster.

As the Korean example shows, when a megalomaniac goes for a third term, he or she would be quite nervous. In the case of Sri Lanka, even if the incumbent wins the presidency, his parliamentary majority will be greatly reduced at a forthcoming general election. This is where and when the problems would start. Therefore, that eventuality should be avoided. In South Korea, at the beginning of the third term in 1971, Park’s political party majority became reduced in Parliament to a just 55 percent of seats. This is why he dissolved the Congress and changed the representative system to incorporate appointed members.

Otherwise, speaking of the personality, Park Chung-Hee was not necessarily a bad man. The following was what Jurgen Kleiner said in his book “Korea, a Century of Change” (p. 164) about the man. I allow the readers to make their own comparison (or judgement) only making my own emphasis to the original text below.

“Park Chung-Hee was not an unpleasant man. Photos from the mid-1960s showed him smiling among the members of his family and laughing among visitors….He remained modest; the Blue House was not transformed into a luxurious palace. He stayed away from nepotism. His interests and passions had other aims: the country and the power.”