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On being Democratic in spite of the Constitution

The polemical piece I wrote on cricket and the Constitution two weeks ago has got drawn into the debate over the Third Amendment, courtesy Rajiva Wijesinha’s intervention last week. That provides me with the context, if not the pretext, to offer this proposition on how Sri Lanka could be democratic despite the Constitution and not in defiance of the Constitution. My emphasis as earlier is on the political purpose of the constitution as opposed to its legal or textual interpretations.

I would have thought that the absurdity of the Third Amendment should be obvious even to those who are professionally disposed to privileging the textual interpretation of a constitution when they take into consideration the normative presuppositions of democracy. So I was surprised to read in the (Chennai) Frontline journal that there is a school of legal opinion in Colombo that holds that under the JRJ Constitution, an incumbent President is entitled to complete her or his first term of six years even after winning a prematurely called election for a second term.

A not so facetious rejoinder to this opinion is to ask if this interpretation would allow the incumbent to complete the full six years of the first term regardless of the incumbent calling an election after four years and losing it. Put another way, even if Mahinda Rajapakse had lost the January presidential election, he could have held on to the presidency till November 2011, till he completed the full six years of his first term. General Sarath Fonseka would have been the president-in-waiting – long enough to be court-martialed! The absurdity of the whole thing should be obvious. And that’s my point.

The absurdity could be made clearer not only by the cricket analogy I used earlier but also by looking at the practice of parliamentary elections. In the more traditional parliamentary system, historically evolved conventions allow the Prime Minister to call an election at the time of her or his choosing, but only for manifestly strong reasons. Once an election is called the old parliament stands dissolved until a new one is elected. It would still be a new parliament even if the outgoing Prime Minister and her or his government are re-elected again. Why should it be different for a President?

In the presidential-parliamentary system of Sri Lanka, the Prime Minister has no powers but the President can not only go for re-election anytime after four years but she or he can also dissolve parliament anytime after one year of a parliamentary election. This was again a JRJ-maladjustment of the 1972 Constitutional provision to prevent a parliamentary election being called within one year of a previous election. JRJ made it undemocratically presidential by allowing the president to call an election anytime after one year.

Those who are familiar with past Sri Lankan elections will know that the 1972 restriction was to prevent the recurrence of what happened in 1960 – when two elections were held in March and July of that year. The then Governor General, Sir Oliver Goonetilleke, need not have called the July election but given the chance to C.P. de Silva to form an SLFP-led coalition government after the minority UNP government led by Dudley Senanayake had been defeated on its first throne speech following the March election. Sir Oliver wanted to give the son of his friend a second chance, but the voters gave the SLFP a landslide victory and Sirimavo Bandaranaike became Prime Minister without even contesting in the election. That was the beginning of her political career. In 2004, President Kumaratunga used the JRJ provision to discard legitimacy and prematurely call a parliamentary election. That marked the beginning of the end of her political career. Be that as it may.

The Proposition

Short of going through the cumbersome requirements to amend the JRJ Constitution, President Rajapakse could set a democratic precedent, or a convention, by opting not to use the Third Amendment at all. He could simply take the oath right now, at the first astrologically auspicious date available, start counting the six years of his second term from that day, and willingly, democratically forego the 11-month-or-so extension from the first term that the Supreme Court has granted him through its advisory opinion. His close supporters may not like it. But he would have created a democratic convention, bypassing the JRJ Constitution without defying it - better still, without having to amend it.

To set a convention is to set an example, or practice, that although it is not legally required is always respected and adhered to by all successors. That is, every future president will not serve more than six years in a term, and that even when an incumbent president calls an election any time after four years and before six years, she or he would willingly forego the unused period in the first term. In that sense, President Kumaratunga started a bad precedent and President Rajapakse is persisting with it. It might be constitutional, but it is not democratic.

Even if President Rajapakse for whatever reason (there may not be an auspicious day to be found till November) is unable to establish a new convention by immediately taking his oath for the second term, he could facilitate the creation of a new convention through an act of parliament. The new Parliament that is to be elected in April could enact legislation to recommend that parliamentary and presidential elections occur every six years in a specified month of the year – like the system in America.

By recommending, as opposed to stipulating, six yearly elections, Parliament could avoid the need to formally amend the Constitution. So the Third Amendment could remain intact, but nobody will use it. A new democratic convention would have been established in spite of the Constitution.

I am assuming that constitutional purists will not object to this proposition on the basis that the Constitution should not be by-passed or slighted but should be adhered to. For there has been no serious qualm among the purists over the practice of successive presidents to severely ignore the Thirteenth Amendment and the unwillingness of President Rajapakse to have anything to do with the Seventeenth Amendment. The criticisms in regard to these inactions have mostly emanated from political critics.

From the standpoint of democratic politics, the case for ignoring the Third Amendment cannot be stronger and so is the case for implementing the Thirteenth and the Seventeenth Amendments. I am not writing with the expectation that the President’s office will take this proposition seriously, or that the Leader of the Opposition will make it an April campaign issue. But only to show how ill-equipped we have become even to ignore the absurd Third Amendment, and how opportunistic our leaders are in taking full advantage of it.

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