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Ten observations on the 18th Amendment to the Constitution

Sep 11, 2010 7:48:08 PM- transcurrents.com

by Dr. Dayan Jayatilleka

The cynic in me is tempted to remark that the neoliberal, Rightwing Opposition and civil society groups wanted ‘regime change’ throughout the war years and boy, they’ve got it. They didn’t change the regime, the regime changed itself.

What has it changed into, why and how? Reading the vibrant commentaries that accompanied the impending passage of the 18th amendment, two resonated with my own sense of what was going on. In their distinct ways Kishali Pinto Jayewardene and Indi Samarajiva critically perceived it as a process and pointed to the quintessential continuities, while almost all others highlighted what they thought were decisive, dramatic dislocations and discontinuities.

As a student of politics, I have ten observations.

Firstly, had the UNP not set fire (quite literally) to the August 2000 draft Constitution presented by President Kumaratunga and negotiated by Professor GL Pieris, KN Choksy and Karu Jayasuriya, there wouldn’t have been an 18th amendment.

Secondly, while the amendment rolls back an attempt at roll back (the 17th amendment) and therefore restores a status quo ante, taking us back to vintage JR Jayewardene ’78, it makes de jure what was de facto, and gives constitutional form to the wartime Presidency.

Thirdly, it brings Sri Lanka more in line with the forms of state that are most widespread in precisely that part of the world which most strongly supported Sri Lanka in the war. Though it has its exceptions, this is the state form or regime type that preponderates in Eurasia and the global South, characterised by a strong Executive or centre, and governed by the most diverse array of ruling parties, from Westernised nationalists to Communists and centre right modernisers.

Fourthly, this evolution or modification of state form almost always occurs in the context of a real or perceived external encirclement or threat. External threat or intrusion almost always leads to internal hardening. "Circling the wagons" is what the Americans call such political ‘protectionism’. This shift is a salutary example of the counterproductive nature of the West’s failure to fully solidarise with and support Sri Lanka, a practising if flawed democracy, in its war against the Tiger terrorists, and the still more counterproductive character of continued external pressure against a post-war, post victory Sri Lanka.

Fifthly, any game has an umpire and as the saying goes, the umpire or referee’s word is law, or else there will be anarchy. One may disagree with the verdict but the point is that the Supreme Court heard the submissions of the critics, and doubtless read the papers, and has ruled on the matter, without dissent.

Sixthly, the 18th amendment is far less of a turning point, and far less dangerous than President Jayewardene’s Referendum of 1982, which arbitrarily extended the term of parliament by postponing a scheduled parliamentary election by means of a fraudulent and coercive referendum. This took place at a time when the main Opposition party, the SLFP, had been decapitated by the deprivation of Mrs Bandaranaike’s civic rights. All this closed off the safety valves and rendered explosion inevitable. It came six months later in the form of a massive anti-Tamil violence.

Seventhly, this shift is not the death/demise of democracy. Or to put it differently, the critical variable – the big story – is surely the meltdown of the main democratic opposition. The Sirimavo Bandaranaike administration of 1970-77 had a far greater degree of structural control over society, what with the abolition of the independent Public Services Commission, the notorious District Political Authorities and the near monopoly of the mass media. Yet it was swept away in 1977. In 1982 JR Jayewardene needed to have Sirimavo Bandaranaike politically ‘decommissioned’ and the most dynamic elements of the SLFP (Vijaya Kumaratunga, Ossie Abeygoonesekara) locked up on spurious charges of Naxalism, printing bogus rice ration cards etc in order to make his move. Mahinda Rajapakse has not suppressed the UNP in the least, has been solicitous of the political fortunes of its leader (far from depriving him of civic rights) and is the beneficiary of a seemingly endless stream of defections due to the ‘bandwagon effect’. Go figure.

Start with the simple arithmetic. How many of the votes for the 18th amendment, from senior Ministers to teleplay Barbies, come from former UNPers who crossed the floor precisely during the tenure of Ranil Wickremesinghe as UNP leader? How many non-UNP Opposition votes are those of defectors from Ranil’s stint as Opposition leader? The numbers and trajectories of the parliamentarians tell the story: if the 18th amendment renders the Presidency overly powerful, it is Ranil Wickremesinghe who has empowered him.

President Jayewardene would never in his worst nightmares, have thought that the 65th anniversary of the United National Party would have been commemorated in the Centre named after him. The Jayewardene Centre was used for exhibitions and gatherings of Friendship societies etc, and not the anniversaries of the UNP which can usually fill an indoor stadium. It is not as if Mahinda Rajapakse used state repression to reduce the numbers attending the UNP anniversary celebration. No, it has taken Ranil Wickremesinghe to confine to the Jayewardene Centre auditorium, what used to be the country’s largest single political party!

What is even more telling – and disgraceful– is that the UNP was reduced to such a pathetic state of insecurity that it chose to boycott the debate in the legislature on the 18th amendment, thereby passing up the chance to use the best possible platform, the floor of the House, to place its critique before the country and on the parliamentary record.

Eighthly, the slew of defectors from the UNP, which include not just the old but the young, new, and popular (such as the lass from Gampaha with all those UNP preference votes) shows that the undercurrent of popular opinion is still flowing towards the incumbent. The multiethnic character of the support from the Opposition (SLMC, two Tamil MPs) is telling, but still more so was the silence of the largest institution which crosses the Sinhala-Tamil divide; the oldest globalised, multinational institution in the world, the Catholic Church, headed in Sri Lanka by the brilliant and multilingual Archbishop (soon to be Cardinal) Dr Malcolm Ranjith. This is hardly a besieged, unpopular administration which has become more authoritarian as a defence against popular pressure.

Ninthly, what then of the future? The foes have it wrong and the fans may not have it right. All the parallels deployed by the foes, from Louis Napoleon to Marcos, are wrong. These regimes were either defeated in war (Napoleon’s nephew by Prussia), or were perceived as puppets by the populace (Marcos, the Shah), or bureaucratic autocracies divorced from national, religious and popular sentiments of the majority (Poland). Mahinda Rajapakse is far more Lech Walesa than Jaruzelski or is a fusion and the regime is as much or far more populist and patriotic than praetorian.

The fans may not have it right either. The trade-off of a developmental miracle or sustainable ‘take off’ requires many factors which are not yet in place and some, not even on the far horizon, ranging from standards of education through ethnic reconciliation to the efficacy of public services.

The success of the mutation of the form of state will stand or fall on whether or not the administration delivers the goods to the vast majority of the electorate. It has delivered some of the greatest public goods such as victory, pride, peace, security and stability, but that political capital won’t last forever. The litmus test will be whether, as in East Asia, the strong state/political leadership will deliver rapidly rising levels of prosperity and an improved quality of life, not just for the ‘haves’, the crony capitalists and the courtiers but for the overwhelming majority of the citizenry.

Tenthly, most of the civil society critics of and signatories against the 18th amendment are those who either support or sympathize with Ranil Wickremesinghe in the inner-party struggle. Many of these also refused to criticize Ranil during the CFA and refrained from criticizing the Tigers themselves. Of those few who did criticize the Tigers, the majority criticized Mahinda Rajapakse even more, during the decisive last war. There are of course, honourable exceptions, but the considerable degree of overlap between those civil society covens that denounce the death of democracy and those who didn’t denounce the Tigers for their deadly assaults on the democratic state, helps explain the lack of mass resonance of their appeal. Their support of Ranil Wickremesinghe also makes them culpable of the crime they accuse the administration of, namely the passage of the 18th amendment. Their continued campaign for Western pressure on Sri Lanka has also contributed to the reinforcement and raising of the regime’s ramparts.

The alarmists decrying the ‘death of a nation’ should know that the nation was far more in danger of death at the hands of the Tigers than it is now, and anyway, nations are too strong a socio-historical reality to be killed off by Constitutional amendments. The more hysterical civil society intelligentsia should not mistake the visible disappearance, possibly terminal illness and potential death-knell of their party of choice, the UNP, for the ‘death of democracy’ in Sri Lanka.

What has taken place is a shift, not an ending.