By Rajan Philips –

Rajan Philips

The Island’s headline story on Thursday was that the JVP “has had enough of common candidates” and is going to field its own candidate in the next presidential election. The announcement was made by the JVP’s Kalutara District MP Dr. Nalinda Jayatissa, who went on to say that the Party will no longer be part of any electoral alliances. Asked by the media to reveal who the JVP’s presidential candidate would be, Dr. Jayatissa went cagy, like Mahinda Rajapaksa: the name of the candidate will be revealed at the right time. Ravi Karunanayake has started saying the same thing for the UNP. Obviously, he cannot stand Sajith Premadasa and Chandrika Kumaratunga wouldn’t care a hoot about what Ravi Karunanayake thinks of her. What is mystifying, however, is that the penthouse politician is also cagy about mentioning Ranil Wickremesinghe’s name as the UNP’s next presidential candidate.  

The question that was not asked by the media or answered by the JVP is: whatever happened to the JVP’s 20^th Amendment? Rather, what is going to happen to the 20^th Amendment in the future, after the next presidential election? Is the JVP still serious about it? What will be its position on the 20^th Amendment, or the future of the presidency, when it contests the presidential election with its own candidate (like scoring its own goal in football)? According to Dr. Jayatissa, the JVP is already “forming a political force comprising civil organisations, think tanks, intellectuals and religious organisations with eye on the elections.” What do they all have to say about the 20^th Amendment? More pertinently, what is the JVP telling them about what it has been doing and what it is going to do about the 20^th Amendment? 

The fall: from Colvin to Maithri

I am not sure if the JVP ever contested a presidential election after Rohana Wijeweera who was the JVP’s candidate in the first presidential election in 1982. Incumbent President JR Jayewardene won the election handily on the first ballot, with the SLFP’s Hector Kobbekaduwa coming second. The second ballot, much anticipated in opposition circles, did not materialize. Even with a long list of candidates running against JR Jayewardene, the opposition forces could not get their combined vote over the fifty percent mark to force a second ballot. The list included Dr. Colvin R de Silva and Vasudeva Nanayakkara, and Rohana Wijeweera polled more votes than both of them. 

Although he did not call himself so, in today’s parlance Colvin R de Silva was the only ‘single issue candidate’ in that election. He billed himself as the candidate who would, if elected, dismantle the presidential system and restore parliamentary democracy. So, historically, Colvin was the first ‘single issue candidate’, and by any measure the most technically equipped candidate ever – in the past, present and for a thousand years to come, who could deliver on the single issue of abolishing the executive presidency. In the political universe of that time, and not for any lack of trying, there was no possibility of Colvin becoming the ‘common opposition candidate’, on a single-issue platform.   

It is an irony of history and even an accusation of our political society that what was summarily denied to someone like Dr. Colvin R de Silva would be handed on a platter, thirty- two years later, to someone like Maithripala Sirisena. The commitment to abolish the executive presidency that Colvin started was picked up by others in every subsequent presidential election. Since 1994, the pattern has been for every presidential candidate to make abolishment an election commitment and do nothing about it between elections. The winning candidate forgets about it after becoming president. The loser will not make an issue of it until the next election. 

The difference in 2015 with Maithripala Sirisena was that abolishment had found a new champion in Sobitha Thero, who made it a galvanizing election issue and ensured Sirisena’s victory in the election. Unlike any of his predecessors, Sirisena went on to promise that he would serve only one term and there will be no elected President after him. Perhaps the mistake that Sobitha Thero and his organization made was not insisting that President Sirisena end the elected presidency within two years of January 2015 election and thereafter cease to be the Executive President, and instead become the Head-of-State President only. That is what Dr. Colvin R de Silva undertook to do in 1982, except he was not planning on taking as many as two years to complete his mission and he was not interested in continuing in any position after his elected job was done. Be that as it may.

Now into more than four years of the Sirisena presidency, nothing has turned out to be as well as anything that may have been expected at the start of the presidency. While Sirisena and Sirisena alone must bear full responsibility for betraying his promise to be a one-term president only, greater blame should be laid at the feet of Prime Minister Ranil Wickremesinghe for right royally botching the government’s constitutional project. ‘Unto the breach’, so we thought, stepped in the JVP – ‘to close the wall’, with its 20^th Amendment. There were allusions that the JVP was only playing proxy to those in the government who wanted to test the political waters without getting wet in the process. Regardless of the JVP’s inspiration and its motivations, many of us were encouraged by the JVP’s initiative and the objective possibilities that were opened by it. Now with the JVP  announcing that it will field its own candidate at the next presidential election, it is fair to ask – what about the 20^th Amendment?

Whither JVP?

In his recent expositions of the 19^th Amendment and the Bill for the 20^th Amendment, Dr. Nihal Jayawickrama has indicated that the JVP’s 20^th Amendment Bill had not one but two “principal objectives.” The objective of providing for the President to be elected by parliament is widely known. What has not been widely discussed, except perhaps in legal circles, is the Bill’s objective “to make certain consequential amendments following the enactment of the 19^th Amendment” in order to rectify some of the omissions and errors in the 19^the Amendment. These errors and omissions had apparently occurred “in the tumultuous circumstances in which the Bill for the 19^th Amendment was debated and passed at a late-night session in April 2015, especially at the committee stage.” One such error was the omission of “two categories of public officers, namely, ambassadors and ministry secretaries” from the list of appointments that the President is required to make on the advice of the Prime Minister or the Constitutional Council. 

In his article on the subject, Dr. Jayawickrama zeroed in on the determination of the Supreme Court that any change to the constitution – to require the President to obtain the advice of the Constitutional Council before appointing ambassadors and ministry secretaries (same as the constitutional requirement for appointing a host of other similarly ranked public officials) – would require not only a two-third majority in parliament, but also the people’s approval in a referendum. Jawaharlal Nehru would have called this – in his favourite phrase, “fantastic and absurd.” Dr. Jayawickrama quite appropriately has said that the determination “was not only flawed in law but was also made per incuriam.” I would like to look at this from a purely political angle and look at the extent of ‘collusion’ (to use the infamous Trump word) between the UNP government and the JVP over the 20^th Amendment.  

First, why would the government deploy the JVP to shepherd an amendment to rectify the drafting errors and omissions in the 19^th Amendment? Why could it not have acknowledged the error and brought forth an amendment on its own to rectify the errors? When was the error discovered? Only when the President starting appointing ambassadors and secretaries left, right and centre, without consulting anybody? Was the UNP so scared of the President’s wrath to do this on its own and so it took cover under a JVP amendment bill to correct its own mistakes? Second, even in regard to the 20^th Amendment’s main objective of providing for the election of the President by parliament, why could the government not have initiated a bill on its own without getting the JVP to fly a trial balloon for it? It would seem that the 20^th Amendment approach was an extension of the government’s botchery of the overall constitutional project. However much one might criticize the constitutional projects of Colvin R de Silva and JR Jayewardene, the words ‘inept botchery’ will not cross anyone’s mind while talking about either of them. And it will be difficult for anyone to avoid those epithets when looking at the workmanship of Ranil Wickremesinghe. 

My third question is to the JVP. To what extent was the JVP sincere about its 20^th initiative? How much was its ownership in this investment and how much was it as a proxy for the UNP? I am not suggesting that the JVP was the UNP’s ventriloquist’s dummy in the whole 20^th Amendment show, but that is the stigma that the JVP will get stuck with if it were to say nothing about the 20^th Amendment while fielding its own candidate at the next presidential election. If the JVP was genuine and sincere about its 20^th Amendment initiative, it cannot walk away from that plank now without destroying its political credibility. The only way for it to sustain its credibility is to outline its plans for pursuing the 20^th Amendment through the presidential election and to the parliamentary election thereafter.

On the other hand, even if the JVP was not serious about the 20^th Amendment Bill and was only being the UNP’s proxy, it would be to its political advantage to hitch its electoral wagon now to the celebrated ‘single issue’. As a politically defining and distinguishing issue, it is the question of the presidency that can set the JVP apart from the two main parties, both with plague on their hands. If the JVP is indeed forming a new “political force” as Dr. Nalinda Jayatissa is claiming, there is no better issue than the question of the presidency to mobilize and galvanize that new force. The JVP doesn’t have to formally appropriate the mantle of Sobitha Thero. All it has to do is to commit to carrying further what the late prelate had started and what has since been betrayed in even measure by Maithripala Sirisena and Ranil Wickremesinghe. 

The replacement of presidential government by a parliamentary government is not going to “reach fruition on the day that President Sirisena ceases to hold office”, as Dr. Nihal Jayawickrama has sanguinely suggested. It is not going to happen politically even if the office of the presidency has been constitutionally reduced to a virtually ceremonial status by the 19^th Amendment. The political argument for the continuation of the presidential system will continue so long as the practice of people directly electing the President is allowed to continue. 

And it will continue even if the democratic illusion of direct election is being turned into a mockery by the Perahera, really charivari, of presidential candidates. It is the JVP that quite sensibly proposed to have the country’s President, as the Head  of State, elected by parliament rather than directly by the people. So, we thought. And it is time for the JVP to say how serious it is about its own 20^th Amendment Bill before it starts talking about its own candidate for the next presidential election.