28 September, 2020

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The Wages Of Constitutional Tinkering 

By Malinda Seneviratne –

Malinda Seneviratne

Regardless its constitutionality or otherwise (which we shall come to presently), what took place on October 26, 2018 was an affront to the fundamental tenets of democracy. It smacks of political machinations which, although orchestrated in the name of the people (as is common) is about securing and protecting political futures of individuals.  

On October 30th, people gathered in Colombo to protest what they believed was a travesty of justice and a subversion of democracy. A common poster which resonated with many status updates in social media had it that it was not out of love for Ranil but a love for democracy, justice, constitutionality and such.

I am sure that among those holding the This-Is-Not-About-Love-For-Ranil placards were some who have consistently championed such causes. That such people had to rub shoulders with people who couldn’t care less about such things and indeed have subverted them is, all things considered, forgivable. 

Was it really about such things, though? The party supporters, who probably made the majority of the crowd, certainly haven’t shown much concern over the years. Not just them of course. The rights-community (read, ‘pro-UNP NGO Community’), certain sections of the ‘international community’ and political commentators who would have us believe that they are above party politics. We’ll get to them too. 

First, the constitutionality issue. Kusal Perera has laid it out best, I believe, in a recent blogpost titled ‘Two constitutional coups applauded by two different social segments’:

‘It is now known that in 2015 January, PM Jayaratne was coerced and manipulated to provide a back dated resignation letter to fit in with Clause 46(2)(a) of the Constitution, while this time, President Sirisena removes PM Wickramasinghe with a single sentence using the same Clause 42(4) that has to be read along with Clause 46(2)(a) to have Constitutional meaning proper. It wasn’t done that way then in 2015 January and it wasn’t done now. 

‘And in both occasions, it remains a “Constitutional coup” in changing political power without the consent of the people and by using the Constitution the wrong way that violates the “sovereignty of the people”. In these “Constitutional Coups” it is always pre decided to get back to the Constitution thereafter with a majority negotiated and manipulated in parliament to be in line with Clause 42(4). In 2015 January, this blatant violation of the Constitution was applauded and accepted by the Colombo “civil society” leaders while the Sinhala Buddhist majority was left numb and helpless. Now in 2018 October, the lower layers of the Sinhala Buddhist society light crackers and eat “kiribath” while the Colombo “civil society” leaders remain dismayed and helpless. In both instances, the “sovereignty of the people” wasn’t even thought of as non negotiable.

‘There is yet a political factor that makes October 2018 different to that of 2015 January. In January 2015 the Constitutional Coup was played out with the euphoria in Colombo over ousting President Rajapaksa, whose rule was painted black in a single stroke. That violation of the Constitution was applauded and accepted by the urban middleclass as a step towards furthering “democracy”. In October 2018, the Constitutional Coup is still in play endorsed by the Sinhala Buddhist majority and with the Colombo middle class, though frustrated and betrayed by this “Unity” government, still prefer the Wickramasinghe government to any led by Rajapaksa. Unfortunately for the UNP this urban middle class remains passive and would not intervene as a political force to save the UNP government.’

So, when people say ‘there’s chaos in Colombo’ and issue ominous notes about ‘constitutional crisis’ one must wonder, ‘where were these people all this time?’ It’s not just about the coup-moment, though. 

Where were the majority of self-righteous objectors when Jayaratne was sacked? Where were they when the entire circus over the removal, replacement, resignation and replacement again of three Chief Justices took place? Where were they when the Sirisena-Wickremesinghe combine dissolved Parliament to prevent the COPE Report on the Central Bank Bond Issue scam from being made public? 

When Sirisena gave nomination to Mahinda Rajapaksa and immediately thereafter stood with Wickremesinghe, did they whimper about ‘the spirit of democracy’? When he sacked and replaced the General Secretaries of the SLFP and UPFA, going as far as obtaining an interim court order so the Central Committees of these political entities could not function, did they protest? Have they ever raised questions about the constitutional tinkering of the UNP leader within the party to secure and protect dictatorial power? Did they recall political histories of individuals and parties (as they do regarding Rajapaksa) when talking of Sirisena, Wickremesinghe and the UNP  (and of course Chandrika Kumaratunga)? Kusal Perera has been consistent. Few others have.  

The democratic claims of the UNP and Wickremesinghe are as thin as those of Sirisena, Rajapaksa, Kumaratunga and the SLFP.  They loyalists of these non-UNP worthies uttered not a word when they thumbed their noses at such things.  Kumaratunga also prorogued Parliament. She subverted the Wickremesinghe-led Government in December 2003. Rajapaksa loyalists did not object to the 18th Amendment and Sirisena’s fans have been quiet about his political jugglery.  Friend now, foe later and still later friend — that’s the story of these individuals and parties. That makes most of the noise on the subject pretty hollow.  

Nothing exemplifies the political chicanery than the brouhaha over the 19th Amendment, the document on which the constitutionality debate is taking place. The 19th sought to correct the horrendous intervention called the 18th Amendment, restore independent commissions and curtail the powers of the President.  

The composition of the Constitutional Council wrecked the notion of independence, the President’s powers were snipped and not chopped and with the interjection of the deliberately ill-defined term ‘National Government’ the Sirisena-Wickremesinghe combine created a hole for all kinds of parliamentary and extra-parliamentary skullduggery.  They left it vague so that they could go around the limit on cabinet-size and thereby make for parliamentary horse-dealing (which we’ve seen a lot of in the past three years). They made holes and surprise, surprise, Sirisena and Rajapaksa crawled through them. Note, except for Sarath Weerasekara, everyone else voted for the 19th Amendment, and note that many who are in the UNP camp today voted for the 18th Amendment as well!  

And yet, when Asanga Welikala wrote and Groundviews published a rant hours after this coup, I was willing to cut him some slack purely due to the title, ‘Paradise Lost? Preliminary Notes on a Constitutional Coup.’ It’s the word ‘preliminary’ that persuaded me, even though his obviously paradisiacal delusions about what he believes was ‘lost’ (obviously a UNP/Ranil-led Government). 

Then I checked on what he has had to say about the term ‘National Government’. I was shocked. The man actually edited a book titled ‘The Nineteenth Amendment to the Constitution: Content and Context’. The contributors have talked about various aspects but obviously the Editor has not thought fit to ask anyone to dwell on the lack of clarity in the term. Worse, he shows unforgivable sloth in his own introductory comment where he erroneously states that ‘National Government [is] defined as where the first and second largest parties come together to form a government.’

Jayampathy Wickramaratne, in his Ranil/UNP-defense, has offered a more sophisticated argument than Welikala’s, but he hinges it on a convenient and ridiculous interpretation of ‘National Government’ [Note: ‘National Government’ is key here because definitional-vagueness is what has allowed the defenders of this coup to argue that Wickremesinghe’s cabinet (exceeding the constitutionally sanctioned limit) loses standing the moment the ‘National Government’ ceases to exist].  Wickramaratne words his hilarity thus: ‘in any case, the National Government continues as the Sri Lanka Muslim Congress continues to be in it.’  That’s a slap on Welikala.

All these defenses, claims and expressions of horror have been echoed by the United States of America, the United Kingdom and the European Union in various statements, nauseatingly so because the tone and content are those of Viceroys and not ‘friendly nations’.  Sure, some of them acknowledge spending millions of dollars to defeat the Rajapaksas and say it was ‘for good governance’ but their silence when the yahapalana project went sour tells us that it was basically the funding of a political group that would serve their (the particular nation’s) interests (just like MPs are being bribed to stay or crossover these days, as they have been in years gone by).  That’s money badly spent for it seems that the people are not buying the yahapalana lie any more.

What needs to be understood is that unsavory as all these political parties and politicians are, they have on occasion obtained legitimacy in the form of people’s support. While legality does play in legitimacy, right now the legality is at best unclear where as Wickremesinghe and Sirisena had lost it. That’s with the Rajapaksa’s and the Sri Lanka Podujana Peramuna. Sirisena, in declined political circumstances is clinging to that ‘popular legitimacy’ (as opposed to ‘constitutional legitimacy’) perhaps thinking of his political future. Wickremesinghe does not hold any aces here. That’s the reality.  

The only way legitimacy can be determined clearly is an election. The yahapalanists balked at going before the people. Local Government Elections was delayed and Provincial Council Elections keep getting postposed. Given the constitutional bind on elections, there are no other ‘litmus tests’ on ‘popular legitimacy’.  Most of the ardent voices uttering dire statements about the threat to democracy have been silent on the blatant anti-democratic move by the Yahapalana Government regarding elections.

We do not know how it will play out. The chances are that once the new dispensation, with or without legality, take control of the state apparatus, Wickremesinghe and the UNP will lose out. Politicians looking to futures will cross. Provincial Council elections will see the UNP being routed. 

The better way would have been elections and that’s a complaint one can level against the UNP as well. Had they allowed the people to speak, then this would not have happened. They made holes for themselves and others crept through them.

Is there chaos in Colombo, then? Colombo 7, metaphorically speaking, seems to be upset. Upset too, are those who object to every single undemocratic move regardless of who is doing the moving. Sadly, that’s a minority and very few of the vocal objectors to what happened on October 26, 2018, do not belong to it.  That’s the rights-agitators, diplomats and those in the foreign offices of the USA, UK and EU and the yahapalana commentariat. 

It is best not to be moved by tears shed selectively and we’ve seen buckets of such selective-tears over the past few days, just as we saw then immediately after Sirisena became President. 

Malinda Seneviratne is a political analyst and freelance writer. malindasenevi@gmail.com. www.malindawords.blogspot.com

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Latest comments

  • 5
    1

    It is not a big fuss about Ranil or MR. But it is moral respect and democratic right of 22 million Sri Lankans at stake …
    There is a good and civilised manner for power change from one hand to another ..
    We have seen that in the past many times in Sri Lanka ..
    By passing all democratic traditions to grave power is not good at all.
    What message we are going to send to next generations in Sri Lanka ?
    What message we are going to send to Sri Lankan forces ?
    Thanks to Sri Lankan army leadership.
    They have been respecting democracy and right of people ..
    Suppose this is in Pakistan or somewhere in Africa?
    We must thank Sri Lankan army for their objectivity on this issue .
    We hope they keep patience with this old political leadership…

  • 5
    1

    Milinda,

    The laptop is in the mail. Expect delivery soon.

    • 4
      0

      Malinda Seneviratne

      The only way out of this greed made crisis to start a well organised riots against “others” and blame it on minorities.

  • 8
    2

    Malinda Seneviratne , you dispicable racist! Are you the bastard brother of Dayan Jayathilake? Do not mock the people who can see beyond the Ranil -Maithri- Mahinda political rhetoric. You who eat the crumbs and the refuse of racists like Mahinda Rajapkse have no other business that bottom wiping racists for survival. But we the people who work for a living are doing our job honestly, paying our tax honestly. It is the duty of the President and the Speaker to do their duty just as we do our duty and uphold the parliamentary democracy.We do not need the permission of servile political swine to take to the streets to fight for our beliefs you pompous, rubbish,racist ,narrow, petty,inferior A**Hole!

  • 6
    1

    //read, ‘pro-UNP NGO Community’// Really, you the uncrowned king of the reverse NGO industry. You are calling the common man and woman who took to the streets UNP NGO community? And you say you went to Harvard? You sick , racist, small minded nincompoop!
    What are provisions in the constitution to remove a PM? You illiterate in human decency. Shame on you.

  • 7
    2

    This writer is an another toilet of Rajapkashe.

    These men like Wijedasa with good education but behave like pigs. If educated srilankens would have the talent to pull together, this country would have beeen a real paradise.

    The kind of media men and Poiticians of Wijayadas Rajaakshe nature are like dirty piss vessels to me.

    And Lawyers are allergic to me when I knkow they come from sinhala genetics. They deliberatly fool the nation. Majority of lanken would eat even cow durng on one-go if they would have been asked to do so.
    But i wondered myself how some people have been , lookin at the 1-lack of people gathered to UNP rallly y day.

  • 4
    0

    what you talk about is nothing new
    in sl politics it has happened before and it will happen in the future
    it will always be a numbers game
    that is why we are in this awful mess today
    just now it is simply a a question of who is the lesser evil nothing more nothing less
    winning elections wont make it any better
    a begnin dictator may be the answer but dictatators are never begnin so
    the future is bleak , we are a doomed nation

  • 3
    0

    why only talk about constitutional coups
    why not an army coup
    both thailand and egypt were in the same political situation whe the army decided to save the situation by stepping in
    they have not suffered as the international community has accepted their rule

  • 1
    3

    Changes to the constitution has to be done with great care and thought! If we have an all powerful President we should ensure that the president is able to guide the government in the proper direction! He/she has to be able to work together with the Prime Minister and if it is not possible then change to a suitable person who he/she can work with? Otherwise the country is going to take all the beating when the premier and the president have infighting!! or do away with the President and make the Prime Minister the all powerful!

  • 3
    2

    Malinda Seneviratne, The first three paras of you write-up establish your love for Democracy, but you drift towards your standard bias, from there on.
    .
    Whether you like it or not, whether the country has been flouting constitutions or not, you are wrong to say that Wickremesinghe does not hold any aces here. He is the only one holding the ace, – the Constitution.
    .
    Do I like Ranil Wickremesinghe? No. Do I like you? No. But, I love your style of presentation. Keep it up!

  • 0
    0

    ‘you write-up’ should read ‘your write-up’. Regret.

  • 5
    1

    Malinda you started off well but fizzled off finally. I prefer to read your comments when you write as “Shankar”. In 2015 nobody in the ousted regime uttered even a whimper of a protest or asked the people to rally around them when those changes were made. They slunk off with their tails between their legs. People need to be mobilized, motivated and catalyzed into protest. Any sociologist will tell you this. It was a chain of sudden events and the betrayal and skulduggery of the president which provoked this spontaneous response and mass rally. Compared to the buriyani, arrack and spoiled milk freely distributed at the JO rallies they were all happy to remain empty handed and thirsty. Thats the difference. I am surprised that a man like you did not choose to join them and be true to the poet in you. I do hope you read Asoka Ekanayake’s superb article in CT – “A case of returning to its own vomit” which says it all. You need to evolve Malinda, and do stop recycling information. Will you consider a post of editor now? Your friend Dayan is already rocking, rapping and rolling in moscow. Anyway, you are not a bad guy and I know this for sure. Don’t limpet mine yourself to the Rajapakses!

  • 3
    1

    “an affront to the fundamental tenets of democracy”

    Wake up Malinda there has been no democracy on this side of the Palk Strait for some time now.

    The fundamental tenets of hypocrisy are well served, however.

    It’s all a case of choosing the lesser evil.

    • 0
      0

      V.
      Unfortunately, the Lankans are unable to make this choice. Repetitio est mater studiorum.

  • 0
    2

    Very valid article. I think democratic traditions were lost after Dudley Senanayake. JRJ epitomised autocratic rule hiding behind a veil of false democracy. We have since witnessed the gradual degradation of our values. Politicians are only interested in power and money as you cant have the latter without the former. MS is no innocent party as he showed his character by doing a Brutus on Ceaser after a hopper clout and swearing on a Buddha relic that he was not going to contest his Ceaser. He then appointed RW as PM although the UNP had only 46 seats in January 2015. RW is a protege of his uncle and nothing democratic could be expected of him after having manipulated the UNP to assure him leadership for life. MR was and is a master manipulator of democratic structures. Who do we have now to safeguard real democracy?

  • 9
    0

    As partisan as ever. Malinda never reacts to developments right away. He waits to see what the people whom he hates because of professional jealousy are saying. Then he will react to their views in such a putrid manner the discussion goes to the gutter level that he inhabits. “The dog returns to its own vomit, and the sow, after washing herself returns to wallow in the mire”. [Thanks, Mr. Asoka N.I. Ekanayaka]

  • 5
    0

    I wish this guy would take up some career other than ‘political analysis’ and ‘journalism’. He would be doing the majority of us a great favour if he does so.

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