Looming Dangers

'The Island' editorial, Colombo, December 12, 2015

Whether it would be possible to achieve consensus on the focal areas of the new arrangement – devolution of power, electoral reform and the replacement of the executive presidency – will be possible remains to be seen. …

While matters like replacing the executive presidency and a new electoral system can be relatively less complicated, devolution will undoubtedly be a very tricky problem given the state of play of current politics. There is no doubt that the minorities played a major role in President Mahinda Rajapaksa’s defeat on January 8. It is widely accepted that a minority of the majority – meaning of the Sinhalese – and a majority of the minority (the Tamils) ensured Rajapaksa’s defeat. Thus there will be the ever present danger that the kind of opportunistic politics that we saw in the post-1956 years when the UNP did not permit Mr. Bandaranaike to implement the Bandaranaike-Chelvanayakam Pact and the SLFP and its allies sabotaged Prime Minister Dudley Senanayake’s efforts to reach an accord with the Tamils (Dudley-ge badey masala vadai, remember?) will recur. Doubtlessly national reconciliation is a top priority facing this country. Will the devolution proposals in a new constitution, rather than the forthcoming local elections early next year, be the opportunity the Rajapaksa faction of the SLFP/UPFA is waiting for? Hopefully not, is all we can say at this present moment.

Delivering the Sujata Jayawardena Memorial Oration in Colombo on Friday, Prime Minister Ranil Wickremesinghe identified devolution, electoral reform and the replacement of the presidency as the major issues that would be addressed in drafting a new constitution for Sri Lanka. The country is very well aware that the abolition of the executive presidency had been promised by both Presidents Chandrika Kumaratunga and Mahinda Rajapaksa; but these proved to be broken promises. Kumaratunga, it must be said in fairness, tried to keep her word but an attempt to retain the powers of the presidency under transitional provisions before the new constitution came into force scuppered that effort. The UNP, which had originally agreed to support the proposal, backed out on the grounds that the incumbent was trying to keep those powers for herself. Insiders say that the problem was not beyond resolution by negotiation but the greens were unwilling to take that route. Mahinda Rajapaksa, on the other hand having promised to abolish the office not once but twice abolished the two-term limit and that by obtaining the necessary two thirds majority not from the electorate but by engineering defections of opposition MPs!

President Maithripala Sirisena who campaigned for the presidency promising to abolish the office later amended that to pledging that many of its powers would be taken away without abolishing it per se. He couldn’t have the 19th Amendment enacted in its proposed original form and had to compromise to get the necessary two thirds majority, diluting the original proposals. President J.R. Jayewardene, following his massive election victory with a five sixths majority in 1977, created the powerful office of executive president for himself. Under this order he became both Head of State and Head of Government via constitution into which some features of what obtains in France was incorporated. Those who loudly condemned him for assuming ‘dictatorial powers’ were not slow in using many of those powers for their own advantage. There now appears to be general agreement that an all-powerful executive president is not good for the country, as proved by the way the previous incumbent acted. It is also generally agreed that the proportional representation (PR) system of election needs some amendment with a mix of PR and the previous Westminster style first-past-the-post.

It must be said that PR had its advantages against Westminster as it does not make the landslide victories we saw in 1970 and 1977 possible or at least improbable. Many would agree that the governments elected at those elections, providing two thirds and better than two thirds majorities to the victors, were perhaps the worst this country had ever seen. Absolute majorities can be tyrannical as the governments elected in those years amply demonstrated. The 1970 United Front government extended its five year term by two years arguing that the JVP’s 1971 insurrection had in effect deprived it of a part of its a five year incumbency. The 1977 government did infinitely worse: it gave the parliament elected in that year a second term without an election after obtaining the people’s “consent” at a referendum that was anything but fair. JRJ’s calculation that the UNP could not be defeated, leave alone trounced, under PR proved wrong. While the president himself won a second term (he was ‘deemed’ elected on his first term), 17 years of UNP rule was ended in 1994 when Chandrika Kumaratunga first won a parliamentary election and then the presidency. PR ensured that the UNP was not decimated then as it was in 1970.

In his speech on Friday, Prime Minister Wickremesinghe explained how the present government would set about drafting a new constitution for the country. It is intended to make the incumbent parliament into a constituent assembly as was done in framing the Republican Constitution of 1972. Whether it would be possible to achieve consensus on the focal areas of the new arrangement – devolution of power, electoral reform and the replacement of the executive presidency – will be possible remains to be seen. Wickremesinghe said that there would be a March 31, 2016, deadline for national consultations on the new constitution by a cabinet committee. Once the constitution is drafted, the consent of the people would be sought by way of referendum. We have only once before had a national referendum – in 1982 when the Jayewardene government sought the people’s permission to extend the then incumbent parliament for six more years. That ‘lamp and pot’ game with the two symbols representing ‘yes’ (lamp) or ‘no’ (pot) was relatively simple. But can people vote a simple ‘yes’ or ‘no’ for a constitution? Sections of it can attract acceptance and rejection and what does the voter do in such a scenario? It will not be and cannot be a stark black and white choice. Many shades of grey will lie between. Such a referendum at best will be no more than a cosmetic device.

While matters like replacing the executive presidency and a new electoral system can be relatively less complicated, devolution will undoubtedly be a very tricky problem given the state of play of current politics. There is no doubt that the minorities played a major role in President Mahinda Rajapaksa’s defeat on January 8. It is widely accepted that a minority of the majority – meaning of the Sinhalese – and a majority of the minority (the Tamils) ensured Rajapaksa’s defeat. Thus there will be the ever present danger that the kind of opportunistic politics that we saw in the post-1956 years when the UNP did not permit Mr. Bandaranaike to implement the Bandaranaike-Chelvanayakam Pact and the SLFP and its allies sabotaged Prime Minister Dudley Senanayake’s efforts to reach an accord with the Tamils (Dudley-ge badey masala vadai, remember?) will recur. Doubtlessly national reconciliation is a top priority facing this country. Will the devolution proposals in a new constitution, rather than the forthcoming local elections early next year, be the opportunity the Rajapaksa faction of the SLFP/UPFA is waiting for? Hopefully not, is all we can say at this present moment.

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