The people voted for good governance to ignore conventions and rewrite the constitution


by Rajan Philips

"Lions and Foxes reconcile, the Pope becalms, and all seem well but for neo-constitutional nit pickers" –that was going to be the title of my column last week, which was interrupted by the death of my father, and the news of which was most kindly inserted by the Editor in the editorial page of last week’s Sunday Island. I thank him for that. As the title would indicate, I was going to write about two events of significance that were not included in the new President’s 100-day timetable, but dominated President Sirisena’s and his government’s first week in office. The first event was the pre-scheduled three day visit of the universally popular Pope Francis, which produced a calming effect on the country coming out of a momentous but mercifully less violent presidential election. The Pope came, he saw, he blessed, and he left after visiting Madhu and canonizing Sri Lanka’s first Catholic Saint – Joseph Vaz, the Oratorian Missionary from Goa who ministered the island’s early generations of Sinhalese and Tamil Catholics, in the 18th century, defying Dutch persecution and winning the protection of the Sinhalese Kings of Kandy.

The political congruity of the Papal visit was that for the third time in a row, a Sri Lankan head of government inviting the Pope was voted out by the people in an intervening election and a newly elected leader inherited the honour of welcoming His Holiness. It happened in 1970 and again in 1994, when Pope Paul VI and Pope John Paul II were respectively invited by a UNP Prime Minister (Dudley Senanayake) and a UNP President (DB Wijetunga), but were in turn welcomed by an SLFP Prime Minister and an SLFP President after intervening elections. On both occasions, it was a Bandaranaike who reaped the honour. Put another way, the Bandaranaikes have been twice Pope-lucky, while Mahinda Rajapaksa astrologically blew his only chance. In fairness to his astrologer, the former President should have asked him to take into account the significance of the Papal visit soon after the otherwise auspiciously determined election date. More to the political point, according to the former President’s astrologer, he had advised "Our Sir" (MR) against accepting the Commonwealth Chairmanship after what happened to Australian Prime Minister Julia Gillard. Gillard was deposed as Labour Party leader while she was Chair of the Commonwealth in June 2013. Kevin Rudd who succeeded Gillard lasted only two months and 22 days and lost the general election a month before the Commonwealth Conference in Colombo, leaving Tony Abbott, the Liberal Prime Minister, to go to Colombo as the outgoing Commonwealth Chair. Just over a year into his term as Commonwealth Chair, Mahinda Rajapaksa has lost both the Sri Lankan Presidency and the SLFP presidency.

That brings me to the second event of significance that dominated the new government’s first week, namely, the post-election SLFP infighting to which the sponsors of the Common Opposition did not seem to have given much thought during their pre-election preparations. However, the worst fears of the new government’s well-wishers that the SLFP infighting might get out of hand and scuttle the proposed constitutional changes have been allayed by the reconciliation between the outgoing and the incoming Presidents of Sri Lanka and of the Sri Lanka Freedom Party. Needless to say, it would have been unconscionable for the people to see Maithripala Sirisena, whom they elected to become the President of Sri Lanka, sacrifice the purpose of his victory in a fight to become the President of the SLFP. But all is well that ends well, rather all seems to have started well for the new government, save for a funny new bunch of neo-constitutional nit pickers, and the Old Left followers of Mahinda Rajapaksa in the UPFA who have suddenly woken up to criticize him for abandoning the SLFP ship without telling them first. When did he ever tell them anything first?

While the Rajapaksa family, the SLFP as a whole, and even the presidential astrologer seem to have come to terms with the verdict delivered by the people on January 8, quite a few of the non-SLFP supporters of the former President are finding it difficult to do so. The more voluble among them have offered farfetched interpretations and invoked the spectre of a constitutional coup. In one particularly flamboyant interpretation, which used rather misleadingly Vilfredo Pareto’s elite circulation theory, the ‘fall of Mahinda’ has been likened to the outsmarting of the lions (Rajapaksa regime) by the foxes (the Common Opposition). But the people saw the regime and its in-your-face family bandying for what they were and created a massive momentum for change even though the final vote tally did not capture the extent of the shift in the mood of the people. To their credit, President Rajapaksa, his advisers and all the SLFP parliamentarians realized the gravity of the people’s no nonsense mood change, and knew it was time to go. The mood change set the stage for the so called lions to reconcile with the foxes and go into the political sunset. The mood change is also the driving force behind the new government’s 100 day programme and its implementation. Put another way, the people voted for good governance, to ignore conventions and rewrite the constitution.

Good governance and bad constitution

A number of people including Dinesh Gunawardena, former Minister and Chief Government Whip House and now Opposition MP, seem to be perplexed by the changes in parliament after the election of a new president. They are perplexed that a new government and a new Prime Minister have come into being purely by presidential nomination, without a parliamentary election. Others are perplexed about the absence of a real opposition in parliament. How can the SLFP, the largest party in parliament and now in the opposition, go against a cabinet and a government when President Maithripala Sirisena is not only the head of both, but is also the President of the SLFP? Come next parliamentary election, will President Sirisena lead the SLFP campaign against the UNP led by his Prime Minister Ranil Wickremasinghe? These are interesting questions about a situation which might be unconventional but is not unconstitutional.

What is remarkable is that Dinesh Gunawardena and everyone else now suffering from random thoughts did not raise these questions when President Rajapaksa decided to call a presidential election two years prematurely and with the parliament elected in 2010 still having two years left in its current term. If President Rajapaksa had won the election the anomaly of having overlapping parliamentary and presidential terms would not have been noticed or exposed. On the other hand, if an incumbent president is defeated by an opposition candidate, the incoming president can in most circumstances dissolve parliament and go for a general election immediately. The ideal practice would be to hold the presidential and parliamentary elections together at pre-established dates after concurrently fixed terms. But from JR Jayewardene to Mahinda Rajapaksa, every President has shied away from committing to a set election calendar and opted instead for election timing most opportune to the incumbent President and the governing party. The difference with Mahinda Rajapaksa was that he tried the trick far too often and got his comeuppance from the people.

While it has been duly noted that the constitutional situation involving a newly elected president and a midlife parliament is unprecedented, it must also be emphasized that the common opposition specifically campaigned for this situation. The opposition platform included Maithripala Sirisena as the presidential candidate and Ranil Wickremasinghe as the Prime Ministerial nominee after the election. The entire premise of the opposition campaign and the 100-day programme was that in the wake of an opposition victory, parliamentarians will rally to implement the will of the people by providing the required two-thirds majority regardless of party differences. As it turns out, there would seem to be near unanimous support in parliament for the proposed constitutional changes, with the potential but mostly welcome exception of the likes of Wimal Weerawansa.

The constitutional purists must see this as political consensus at its best and quite different from the birthing circumstances of Sri Lanka’s three constitutions since 1947. The Soulbury Constitution was primarily hatched by the Board of Ministers at that time, while the two Republican Constitutions were "characterized more by leadership than by consensus", to borrow Dr. Colvin R. de Silva’s famous phrase to describe the modus operandi of the United Front government in 1970. In fact, there was no consensus at all for either of the two Republican Constitutions. Both in 1972 and in 1978, those who voted against the adoption of the new constitutions also vowed to overthrow them when their turn came. The first Republic was disposed of after six years, while the second has remained rammed in for thirty seven years.

In terms of constitution making, the situation in the current parliament comes closest to the ideal constituent assembly that the late S. Nadesan, Q.C., advocated in 1970, when the United Front government turned the newly elected parliament to simultaneously function as the constituent assembly to draft, adopt and enact the new constitution. Mr. Nadesan suggested that as members of the constituent assembly the parliamentarians should be seated in the alphabetical order of their names and not as government and opposition MPs, and that they must participate independent of party affiliations. That was too much of ideal thinking for what turned out to be a highly partisan affair. It should also be noted that although the United Front won more than a two-thirds majority in the 1970 election, the UF Manifesto was clearly committed to replacing the Soulbury Constitution by a new republican constitution even with a simple majority through the instrument of the constituent assembly. In the case of the 1978 Constitution and for every amendment that he introduced, JR Jayewardene had a locked in super-majority by virtue of undated letters of resignation that he had obtained from his MPs even before they had won their seats in the 1977 election. He then extended the same parliament to a second term by undemocratically using the instrument of a referendum. Mahinda Rajapaksa improvised his own methods to secure the passage of the notorious 18th Amendment and to impeach a Chief Justice against the rulings of the Court of Appeal and the Supreme Court. Ignoramuses like Wimal Weerwansa, with Professor GL Peiris listening, asserted that it was the government’s ‘constitutional right’ to do so!

By a quirk of political circumstances, the Sri Lankan parliament is now in a position to unscramble all of the bad constitutional scrambling that has been going on for years. Fair enough, the new consensus in parliament is not the consequence of a moral revolution among our MPs. Their subjective considerations may not be as honourable as their honorific titles would suggest, but what matters in the end are the constitutional changes that they are committed to deliver in accordance with President Sirisena’s 100-day programme. Indeed, the executive presidential system seems to be working at its best in digging its own grave. While it is supremely ironical, there is nothing unconstitutional about the situation in which an SLFP President and a UNP cabinet are collaborating to ignore conventions and rewrite the constitution.

The main challenge to the new government is not going to be in surmounting constitutional hurdles, for there will hardly be any such hurdle insofar as the changes are limited to those requiring only a two-thirds majority in parliament. The main challenge will be in keeping the focus on unrolling the constitutional amendments and new legislations as indicated in the 100-day programme, while laying the basis for providing good governance. Government ministers may do well to stick to their portfolios and leave the business of prosecuting the miscreants of the former government strictly to law enforcing agencies. The government has made a good start in the North by sending home the old Governor and replacing him with HMGS Palihakkara, the respected diplomat and a Member of the LLRC Commission. The government would do well to give priority to addressing the humanitarian problems in the North through the Northern Provincial Council and use that experience to improve the Provincial Council system. The rapidly changing global economic situation with falling oil and commodity prices will present Sri Lanka with both tough choices and positive opportunities, and the government must be alert to deal with both in a systematic way. The government may also want to reconsider, in consultation with all the parties in parliament, its commitment to dissolve parliament in April. The country does not need another election in four months if the business of good governance is going according to plan.

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