By N Sathiya Moorthy
Independent of the politics and processes involved, the Gota Presidency should take up the UNP Opposition’s offer of helping a re-visit of the controversial 19-A and the TNA’s political position of asking for the implementation of the India-facilitated 13-A. True, both Amendments were products of their times, and may have been flawed, but the additional problems that 19-A heaped on the political administration, which already had enough of it, was unpardonable and was itself a ‘fraud on the Constitution’.
The 19-A was a product of fertile imagination, as the Second Republican Constitution (1978) itself was. Both were the gifts of the UNP administration of the times, which did not provide for possibilities and probabilities that are all a part of the democratic processes, especially in a Third World nation like Sri Lanka. Drafted and passed in isolation, without reference to the ‘cohabitation government’ of long-estranged SLFP’s President Maithripala Sirisena and parental UNP Prime Minister Ranil Wickremesinghe,
At the end of it, `19-A was all set to be a disaster. It became one without fail, which the fortune-tellers of the UNP especially did not foresee though the writing was all over the wall, town and elsewhere, too. The reasons are not far to seek. Both Sirisena and Wickremesinghe used the 19-A process to strengthen their own personal political positions, going beyond their respective parties.
Today, neither of them is anywhere near politico-electoral reckoning, thanks also to the constitutional process that they had framed with them alone in mind – and in competition to each other. In comparison, UNP’s JRJ got away with holy murder viz the 1978 Constitution, despite authoring a despotic model for a nation that still is celebrated for being the first nation in these parts to herald the concept of ‘universal adult franchise’, a key element in a functional democracy.
Clash of ambitions
Looking back, from the word ‘Go’, Sirisena was happy to be elected President, even if it meant he had to forego some of the inherent powers of the Executive Presidency that he came to occupy – as if by default. Once on the thrown, either his ambitions grew, or even more of his hidden ambitions came to the fore. Having worked closely with two predecessors in party chiefs, Chandrika Bandaranaike-Kumaratunga and Mahinda Rajapaksa, through two decades without break, it could not have been otherwise.
It helped Sirisena to live with the image of a naïve, rural leader, who was not cut out of the same cloth as his erstwhile boss in Mahinda R, who again came from a different rural background. That was the kind of innocence that fooled the eternally over-confident UNP boss of the time, Wickremesinghe, and his frustrated cadres, who had not seen the inside of governmental power for two decades in a row (1994-2015).
If thus Sirisena was happy with whatever he got in the first place, and added more by declaring that he (too) was for abolishing the Executive Presidency. He walked an extra mile to declare that he would have the presidency’s term curtailed from the present five years to four, as if to send a message that Parliament, with its five-year term was supreme, and could be around to hold an incumbent ‘accountable’, even if he was out of it all.
Sirisena did not stop there. He went out of the way to offer his voter’s an additional bait. In his poll campaigns for the 2015 elections that he won, that he would not contest a second term. He has stood by his promise since but not out of choice. Instead, his political chicanery stood out like a sore thumb – and parties and leaders were more afraid of associating with him, if they had to win and retain their own positions.
To Sirisena, who understood that he cannot aspire to get a popular mandate all by himself, controlling the politico-administrative set-up was key to his remaining afloat first, to be able to plan for more, later on. As long as 19-A acknowledged the primacy of the political administration, it was enough for him. He was happy to be acknowledged as Head of the Government, if not as much as his predecessors starting from JRJ, chairing Cabinet meetings and having an undeclared veto-power over the Cabinet, if not Parliament.
The vaulted ambitions of Wickremesinghe again was rooted in his personality, not the policies of his party, per se. However, one can argue that he had learnt the ropes from forgotten predecessor in the late JRJ, who convinced the successive UNP hierarchy that you should either have it all tor would have none of it. It is thus anybody’s guess if Wickremesinghe or the UNP would have talked about abolishing the Executive Presidency if they have had even a partial run of the presidency instead of rival SLFP having twenty long years in office (1994-2015).
Hence, when the Wickremesinghe leadership looked at 19-A, and given the continued popularity of the Rajapaksas within the majority Sinhala-Buddhist vote-bank, he took care only to ensure that they would not be in the run in the presidential polls of 2019. Thus, he had Parliament reverse Mahinda’s equally controversial 18-A, to deny the latter a third term in the presidency, disqualified ‘dual citizenship’, to keep off the likes of Gota R, and even went (down) to the extent of upping the lower age-limit, from 30 to 35 years, lest the young Namal Rajapaksa could jump into the fray (as if to save the ‘family honour’!).
La affaire Jayasundara
The other major administrative confusion that 19-A inflicted on the nation’s administrative set-up is highlighted by ‘la affaire Jayasundara’. Here was the nation’s top cop, Inspector-General, Pujith Jayasundara, whom his President ordered removed but he had the protection of 19-A, which had ipso facto taken away that power from the Head of State cum Head of Government, who otherwise continued to be the Supreme Commander of the armed force.
All that President Sirisena could do was to ask Jayasundara to go on leave, which the latter thankfully obliged without contesting, In doing so, he however went ahead and challenged governmental decisions pertaining to him in the aftermath of the ‘Easter Sunday serial-blasts’, to the Supreme Court. The case is pending disposal, but then the damage to the institutional frame-work of the high office of the IG, and the larger administrative frame-work remain exposed – as apprehended all along by right-thinking people.
In a way, the Jayasundara precedent may have inadvertently come to justify Mahinda’s 18-A, which sought to confer more powers on the Executive Presidency than already. With no bias against Parliament, it should however be stressed that the pre-18-A system of administrative appointments sought to cannibalise the ‘checks-and-balance’ scheme of some western nations, but without Sri Lanka wanting to learn and adapt from their constitutional history and administrative precedents in this regard.
Because ‘minority parties’ would not decide who is the ‘majority’ among them, to nominate a member to the selection panel for high-posts, the system could not even take off for years. So, like the 13-A on power-devolution, you had a recruitment system that was violated, whatever the personal views of an incumbent President in the matter of such appointments. Yet, without going into the predicaments and the problems that was already there, the 19-A institutionalised even more than ever – to disastrous consequences than that one already being wrought by the ‘co-habitation government’ of what was promised to be a ‘dual government’ but ended up as a ‘duelling government’.
After becoming President, incumbent Gota Rajapaksa has declared that he could not be expected to implemented the 13th Amendment on power-devolution for Provinces, aimed near-exclusively at a ‘unified North-Eastern’ Tamil-majority Province, under a vintage arrangement, now dating back to 1987. Truth be acknowledged, for the past several years, none of the other eight Provinces has expressed any desire or stomach for more powers, they having satisfied themselves with whatever is available now – and their politicians always aspiring to hit the highways to national politics, presence and berths.
It is not unlikely that President Gota has his reservations, which were there and also influenced some of the early approaches of the larger Rajapaksas’ approach to the post-war ethnic reconciliation on the political and constitutional fronts. Reportedly, it was more so in terms of ‘Police’ powers for the Provinces, which did not bother other eight Provinces all the same, as with the rest of the 13-A powers.
It is even more electorally indispensable for the Rajapaksas not to say things that could upset, if not outright unnerve their traditional constituency, especially of the post-war decade, now – at least until after the parliamentary polls and also the Provincial Council polls, which especially are long since pending. The Rajapaksas, and their new-found SLPP, would need a two-thirds majority in Parliament, but may not happen that way, going by the current alliance-formation and proportionate vote-share of parties. They would still need a simple majority for President Gota to have a relatively smooth sail in Parliament.
For the Tamil political stake-holders, most especially the TNA, it is the usual return to the ‘meendum pizhai vittom’ phase, meaning ‘we blundered one more time’. The reference is to their openly declaring support to UNP-DNF presidential candidate Sajith Premadasa, when their staying ‘neutral’ would have still served their poll-time purposes. The TNA leadership should ask itself where and why they went wrong, when they had come to believe that they alone held all the cards in presidential polls — which they actually did not.
All this has meant that some TNA leaders at the top have started saying that they now wanted India-facilitated 13-A and that India still had the moral responsibility to ensure its full implementation. Post-war or even immediately before it, they would not settle for 13-A but what they called ’13-plus’. Their ambitions vaulted ahead of the presidential polls of 2015, when a new Constitution became a part of their expectations and their Sirisena-Wickremesinghe ally’s public commitment – though without reference to the ‘Tamil preference’.
Today, even as they are liking their self-inflicted wounds, like their UNP counterparts from across the ethnic-divide, the TNA is inflicting more of the same, shifting the goal-posts as the LTTE used to do before them. It is another matter that whether it was the ‘shifting of goal-posts’, or ‘white van disappearances’, the international community seems wanting to target only the Rajapaksas (not even the duelling Government of the duo).
Post-poll, the TNA has all but stopped talking about the Constitution Assembly, which may have to go with the present Parliament, when fresh elections are held next year. Instead, they have gone back to war-crimes probe on the one hand and 13-A on the political front. Clearly, they want the international community and India (respectively) engaged on Sri Lanka, rather than engaged with the Sri Lankan State.
The TNA needs to acknowledge that the West would support them and use them only as long as the ‘China factor’ continued to irritate them. If thee Rajapaksas this time are able to address some of those concerns, maybe, the West won’t have any use for them. Then it would have to be domestic politics in reality – and the Indian neighbour for succour. It is time the TNA re-invented itself, as an equal to other domestic stake-holders, and not someone above them as the LTTE had made the Tamils believe.
Prorogation and after
Just now, the Opposition UNP’s criticism of President Gota’s month-long prorogation of Parliament is muted. They are too busy to be worried about it, what with the Wickremesinghe-Premadasa internal-battle continuing to rage on in the back-rooms, without any slow-down even after they had contributed ot their own defeat in the presidential polls. The UNP should also be happy that the prorogation may have also ensure that there are no defections from the Government side in the interregnum to the parliamentary elections – though the Rajapaksas could well try do precisely that during the prorogation period.
Going by past practices of the Rajapaksas, they would rather have a weakened UNP than no UNP at all. Like the UNP while in power, they too do not want a political vacuum of the kind that JRJ created by disenfranchising rival SLFP boss, Sirimavo Bandaranaike, which provided space for a halted JVP from 1971 to prosper through the eighties. What more, with SLPP and SLFP aspirants to be satisfied with parliamentary nominations of whatever kind, they may be looking for new MPs from whichever side they could take (either as parties or as individuals or groups) only after the parliamentary polls.
The interregnum thus serves everyone’s purpose to revisit the twin constitutional amendments of 13-A and 19-A, and open up a national debate on both, without rushing them through Parliament once again. There are structural deficiencies in 19-A and implementation inadequacies in terms of 13-A. They need to be cleared clarified and taken forward. Now, thus, is the good time for all good men to come to the aid of the nation – and the Constitution!
(The writer is a Distinguished Fellow and Head-Chennai Initiative of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. Email: [email protected])