{"id":194990,"date":"2018-11-01T00:00:57","date_gmt":"2018-10-31T18:30:57","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=194990"},"modified":"2018-11-03T09:00:46","modified_gmt":"2018-11-03T03:30:46","slug":"the-wages-of-constitutional-tinkering","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/the-wages-of-constitutional-tinkering\/","title":{"rendered":"The Wages Of Constitutional Tinkering\u00a0"},"content":{"rendered":"

By Malinda Seneviratne<\/a>\u00a0–<\/span><\/strong><\/p>\n

\"\"<\/a>

Malinda Seneviratne<\/p><\/div>\n

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. \u00a0<\/span><\/p>\n

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.<\/p>\n

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\u2019t care less about such things and indeed have subverted them is, all things considered, forgivable.\u00a0<\/span><\/p>\n

Was it really about such things, though? The party supporters, who probably made the majority of the crowd, certainly haven\u2019t shown much concern over the years. Not just them of course. The rights-community (read, \u2018pro-UNP NGO Community\u2019), certain sections of the \u2018international community\u2019 and political commentators who would have us believe that they are above party politics. We\u2019ll get to them too.\u00a0<\/span><\/p>\n

First, the constitutionality issue.\u00a0Kusal Perera has laid it out best, I believe, in a recent blogpost titled \u2018Two constitutional coups applauded by two different social segments\u2019<\/a>:<\/p>\n

\u2018It 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\u2019t done that way then in 2015 January and it wasn\u2019t done now.\u00a0<\/span><\/i><\/p>\n

\u2018And in both occasions, it remains a \u201cConstitutional coup\u201d in changing political power without the consent of the people and by using the Constitution the wrong way that violates the \u201csovereignty of the people\u201d. In these \u201cConstitutional Coups\u201d 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 \u201ccivil society\u201d 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 \u201ckiribath\u201d while the Colombo \u201ccivil society\u201d leaders remain dismayed and helpless. In both instances, the \u201csovereignty of the people\u201d wasn\u2019t even thought of as non negotiable.<\/i><\/p>\n

\u2018There 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 \u201cdemocracy\u201d. 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 \u201cUnity\u201d 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.\u2019<\/i><\/p>\n

So, when people say \u2018there\u2019s chaos in Colombo\u2019 and issue ominous notes about \u2018constitutional crisis\u2019 one must wonder, \u2018where were these people all this time?\u2019 It\u2019s not just about the coup-moment, though.\u00a0<\/span><\/p>\n

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?\u00a0<\/span><\/p>\n

When Sirisena gave nomination to Mahinda Rajapaksa and immediately thereafter stood with Wickremesinghe, did they whimper about \u2018the spirit of democracy\u2019? 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\u00a0 <\/span>(and of course Chandrika Kumaratunga)? Kusal Perera has been consistent. Few others have. \u00a0<\/span><\/p>\n

The democratic claims of the UNP and Wickremesinghe are as thin as those of Sirisena, Rajapaksa, Kumaratunga and the SLFP.\u00a0 <\/span>They loyalists of these non-UNP worthies uttered not a word when they thumbed their noses at such things.\u00a0 <\/span>Kumaratunga also prorogued Parliament. She subverted the Wickremesinghe-led Government in December 2003. Rajapaksa loyalists did not object to the 18th Amendment and Sirisena\u2019s fans have been quiet about his political jugglery.\u00a0 <\/span>Friend now, foe later and still later friend \u2014 that\u2019s the story of these individuals and parties. That makes most of the noise on the subject pretty hollow. \u00a0<\/span><\/p>\n

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. \u00a0<\/span><\/p>\n

The composition of the Constitutional Council wrecked the notion of independence, the President\u2019s powers were snipped and not chopped and with the interjection of the deliberately ill-defined term \u2018National Government\u2019 the Sirisena-Wickremesinghe combine created a hole for all kinds of parliamentary and extra-parliamentary skullduggery.\u00a0 <\/span>They left it vague so that they could go around the limit on cabinet-size and thereby make for parliamentary horse-dealing (which we\u2019ve 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! \u00a0<\/span><\/p>\n

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, \u2018Paradise Lost? Preliminary Notes on a Constitutional Coup.\u2019 It\u2019s the word \u2018preliminary\u2019 that persuaded me, even though his obviously paradisiacal delusions about what he believes was \u2018lost\u2019 (obviously a UNP\/Ranil-led Government).\u00a0<\/span><\/p>\n

Then I checked on what he has had to say about the term \u2018National Government\u2019. I was shocked. The man actually edited a book titled \u2018The Nineteenth Amendment to the Constitution: Content and Context\u2019. 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 \u2018National Government [is] defined as where the first and second largest parties come together to form a government.\u2019<\/p>\n

Jayampathy Wickramaratne, in his Ranil\/UNP-defense, has offered a more sophisticated argument than Welikala\u2019s, but he hinges it on a convenient and ridiculous interpretation of \u2018National Government\u2019 [Note: \u2018National Government\u2019 is key here because definitional-vagueness is what has allowed the defenders of this coup to argue that Wickremesinghe\u2019s cabinet (exceeding the constitutionally sanctioned limit) loses standing the moment the \u2018National Government\u2019 ceases to exist].\u00a0 <\/span>Wickramaratne words his hilarity thus: \u2018in any case, the National Government continues as the Sri Lanka Muslim Congress continues to be in it.\u2019\u00a0 <\/span>That\u2019s a slap on Welikala.<\/p>\n

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 \u2018friendly nations\u2019.\u00a0 <\/span>Sure, some of them acknowledge spending millions of dollars to defeat the Rajapaksas and say it was \u2018for good governance\u2019 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\u2019s) interests (just like MPs are being bribed to stay or crossover these days, as they have been in years gone by).\u00a0 <\/span>That\u2019s money badly spent for it seems that the people are not buying the yahapalana lie any more.<\/p>\n

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\u2019s support. While legality does play in legitimacy, right now the legality is at best unclear where as Wickremesinghe and Sirisena had lost it. That\u2019s with the Rajapaksa\u2019s and the Sri Lanka Podujana Peramuna. Sirisena, in declined political circumstances is clinging to that \u2018popular legitimacy\u2019 (as opposed to \u2018constitutional legitimacy\u2019) perhaps thinking of his political future. Wickremesinghe does not hold any aces here. That\u2019s the reality. \u00a0<\/span><\/p>\n

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 \u2018litmus tests\u2019 on \u2018popular legitimacy\u2019.\u00a0 <\/span>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.<\/p>\n

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.\u00a0<\/span><\/p>\n

The better way would have been elections and that\u2019s 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.<\/p>\n

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\u2019s a minority and very few of the vocal objectors to what happened on October 26, 2018, do not belong to it.\u00a0 <\/span>That’s the rights-agitators, diplomats and those in the foreign offices of the USA, UK and EU and the yahapalana commentariat.\u00a0<\/span><\/p>\n

It is best not to be moved by tears shed selectively and we\u2019ve seen buckets of such selective-tears over the past few days, just as we saw then immediately after Sirisena became President.\u00a0<\/span><\/p>\n

Malinda Seneviratne is a political analyst and freelance writer. malindasenevi@gmail.com. www.malindawords.blogspot.com<\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

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