By Dr. S. Narapalasingam
The unforeseen post-war moves of the exceptionally powerful Rajapaksa government have startled many democrats within and outside the island recently liberated from ‘Tiger terrorism’. The controversy over the post-war developments climaxed with the approval of the 18th Amendment to the Constitution by the Sri Lankan Parliament on 8 September 2010 by more than the required two-thirds majority. The controversial Amendment was introduced as an urgent bill to be considered immediately by the legislators, bypassing the normal procedures of gazetting and granting time for the public to examine and express their views.
The subsequent debate in the media not only on the tactical way this Amendment was brought in for the approval of the Parliament but also the motive behind the far-reaching changes that have given the freedom to the Executive President to reign almost unconditionally as the supreme head of government and head of State has brought to focus many important issues concerning the future of the island. The significance of the 18th Amendment to the island’s political system is in the entire set of changes to the Constitution, including the 17th Amendment and not just the removal of the two-term restriction on any elected Executive President.
War is over but future remains uncertain
The Daily Mirror columnist ‘Koththa Malli’ has compared the current political situation to that prevailed in 1956 when the then SLFP leader eager to capture power mustered the support of the Sinhala nationalists by playing the ‘Sinhala Only’ card. To quote from the September 23rd column: “SWRD Bandaranaike’s cheap political stunt of playing the Sinhala only card and giving the next election priority over the welfare of the next generation backfired on him three years later and the country is still paying a heavy price for that act of political madness. Most analysts and observers believe that what is happening now, though cloaked in the garb of sanctimonious humbugs, is much worse and more dangerous that what took place in 1956”. One reason for this risky situation is because in 1956 the political system was different from the present one that has its base in the 1978 Constitution. The title, “The tragedy of our times - the silence of the majority” itself conveys the profound concern about the future of Sri Lanka.
A striking shortcoming in the island’s political culture is the absence of foresight in making policy decisions that influence the long-term future of the people and the State. This has been the normal practice since independence. The UNP leader J. R. Jayewardene’s decision to enact the 1978 Constitution and his subsequent decisions on many important matters reveal this weakness. He got the 1978 Republican Constitution drafted to suit his own political ambition and got it approved easily with the five-sixth majority his party had in the Parliament then. He did not expect any future President to have the means to act in the way he did during his constitutionally restricted two terms as Executive President.
How situations change contrastingly in Sri Lanka is quite apparent from the dramatic switch of the politicians totally against the Executive Presidency to extend support for consolidating it by removing the two-term restriction! No one including JR would have expected the powerful position President Mahinda Rajapaksa gained, after his narrow victory in the November 2005 Presidential election. Paradoxically, the dogmatic LTTE leader was responsible for this remarkable feat. Sri Lankan Tamils do not need any commission to learn useful lessons from the damaging Eelam war that was doomed to fail.
There is no doubt the country needs rapid development after the war and the previous neglect due to power politics and the priority given by successive governments to narrow short-term gains during their reign. Development without equal rights and opportunities, safety and security cannot give confidence to all about their future in the post-war Sri Lanka.
Surprisingly, the well known political scientist and analyst Dr. Dayan Jayatilleka sees no danger to democracy and the integrity of Sri Lanka as one pluralistic State. In his recent article posted by transCurrents on September 28, he has said a “coalition of forces is trying to paint a target on Sri Lanka’s back through three-pronged effort”. And this is (a) damn Sri Lanka’s democracy by questioning its very existence (as distinct from a sharp criticism of this or that law, policy or deed as un-democratic), (b) accuse it of war crimes and (c) paint it as a proxy of China. With regard to (a) he has cited the presence of TNA in Parliament as a clear sign that “Sri Lanka is a functioning democracy”.
If in essence democracy means the right to vote in the general elections which are held periodically as stipulated in the Constitution to select members to the national assembly (Parliament) and since 1978 a suitable person to the Executive Presidency, Sri Lanka is a functioning democracy. Apart from the franchise, are all Sri Lankans getting the full benefit of democracy? Has the functioning democracy ensured equal rights, freedoms, justice and opportunities for all citizens regardless of their ethnic origin and the provinces where they and/or their close relatives reside? Under the functioning democracy, have all communities been able to live safely without any official discrimination? When the political system ignores the legitimate rights and aspirations of the minorities, it cannot be truly democratic. In an earlier article, Dr. Dayan Jayatilleka himself said he sees the ‘democracy glass’ half full and not empty or near empty. What all peace loving egalitarians want is a near full ‘democracy glass’. Majoritarianism cannot bring about this advancement. Democracy functions in Sri Lanka as if the country has no ethnic minorities and the decisions of the majority are applicable to all citizens.
The narrowing of democratic space
The process of narrowing the democratic space started much earlier with the customary parochial and opportunistic politics, embraced for achieving the immediate aims of the ruling party and its influential leaders. The constitutional changes introduced in the 1970s facilitated this process deceptively. Although the current Constitution states Sri Lanka is a Democratic Socialist Republic State, the adjectives merely serve to mislead the public. What happened in Sri Lanka since 1972 can be aptly described as a process of weakening democracy by restricting the sovereign power of the people exclusively to the right to vote. This is what makes some to believe Sri Lanka is a functioning democracy. But even here the waning of ‘free and fair’ elections besides other visible opportunistic actions undermines democracy.
Gnana Moonesinghe in The Sunday Island 26 September 2010 has very clearly described the adverse developments that occurred since independence which led to many internal problems and the break-up of Sri Lanka. The unified nation that emerged at the time of independence lacked the vital support needed for growth. Nation building was not in the agenda of post-independence governments. The interests of the political leaders were narrow confined to matters gainful for them in the short term. The civil society leaders remained unconcerned because they too failed to link the present developments to the future. The masses blindly followed those who had the power to address their problems.
Gnana Moonesinghe has justly blamed the whole society for the contraction of democratic space in Sri Lanka. The lucid and comprehensive analysis has important facts relevant to this article. It gives a very clear picture of the damages done to the unity of the nation, political culture, rule of law, accountability, separation of legislative, executive and judicial powers, independence of public service and judiciary and political, social and economic development since independence by myopic political leaders competing recklessly for power. The high level of corruption is also integral part of the overall decline in the system since independence.
Because of the need to limit the size of this article, only some of Moonesinghe’s worthy observations are cited below:
“….since gaining independence the noteworthy feature in the Sri Lankan constitutions have been the contraction of the democratic space following the changes effected in the constitutions in 1972 and 1978 as well as through the legislative and administrative changes introduced during the periods between 1948 – 1972 and between 1972 an 1978 and thereafter”.
“Successive governments did not contribute to nation building or to build a political culture embodying the principles of democracy necessary to sustain the nascent state. One thing clear throughout our constitutional history is that our leaders without exception looked for the retention of political power and relegated appropriateness of policies adopted for national advancement to the rear. The 18th Amendment is another citation to this effect”.
“The political culture prevalent then and now is for political parties to arrest the democratic process in order to subvert the system to give the party in power an advantage. In equal measure parties in opposition have also viewed every issue within the narrow prism of dislodging the government in power. Constitutional changes have been pregnant with non–democratic agendas that have totally skewed up the perception of an ideal, of what is good for the country”.
“The social holocaust that destabilised Sri Lankan society came with the expunging of Article 29 (in the first Constitution of independent Ceylon) from the constitution that took away the security shield of the minorities and remained the festering wound to the minorities. The cumulative effect of the declaration of Sinhala Only as the official language and the special status to Buddhism abandoning the idea of a secular state, pointed to the government as the unpretentious representation of the Sinhala Buddhist authority. This narrowed further the possibilities for political accommodation and eventually contributed to the armed challenge that followed”
Finally, on the developments that followed the enactment of the 1972 Constitution, an entirely home-grown variety, Gnana Moonesinghe has said: “The legislators having vested state power in the hands of the elected representatives, with no checks and balances of a separation of powers, proceeded to introduce new political institutions. The rationale for such innovations was that recruitment of committed men and women will increase the efficiency in the implementation of government policies. The fallacy of this argument was not evident to an administration soaked in the culture of partisan politics”.
Expecting a promising future with the present anomalies?
The recent debate on the future of Sri Lanka as a stable democratic socialist State also lacks objectivity. Democracy lost its basic tenets long before the beastly war began. The vanquished party too had no belief in democracy. Not only the self-interestedly conceived Constitution but also the controversial 18th Amendment is accepted from the standpoint of the status quo then and now. Both party leaders were elected ardently by the vast majority of the voters. But this should not be taken as carte blanche given to them to change the system to suit their immediate needs. Like the power seeking politicians, some political analysts too are ignoring the basic anomalies and weaknesses in the system and the need for restructuring the incompatible exclusive system. What is needed is an all inclusive system that is consistent with the inherent diverse demographic and regional features of Sri Lanka.
The belief that the incumbent President and his successors will govern selflessly is only wishful thinking. There is now a striking division in the aspirations between the political class and the astute section of the civil society. It is crystal clear without the determined efforts of the latter, the future of Sri Lanka as a truly democratic socialist nation is very uncertain. It is mere escapism to avoid examining objectively the future and focus attention mainly on the present accepting the major distortions in the system as sacrosanct.
In his earlier analysis of the current political situation in Sri Lanka, Dr. Dayan Jayatilleka has said: “Politics, like life, is a matter of choices. Choices can only be made among alternatives, existing or new. Of the alternatives available, the country is safest under Mahinda Rajapaksa’s leadership, who is in any case, the popularly elected (and popular) president”. The alternatives will continue to remain missing, if the present flawed system continues without the basic changes needed for proper constitutional governance with effective checks and balances. On the important question -”what does Sri Lanka need?” he has recognized two groups. “Some say regime change, others say stability and continuity. Those who say regime change regard the slogan of stability and continuity as one for totalitarianism and/or dictatorship.”
If stability and continuity are sought by curtailing democratic rights and freedoms, what else can one say? The expert analyst has quite fittingly warned of the real danger in an unqualified slogan of stability (‘stability above all’, ‘stability at any cost’) as this could result in stagnation. “Stagnation comes from the shift from a two party system to a one-party dominant system through the failure of a competitive second party to evolve or the collapse of the main opposition. ‘One- party dominant’ systems must not be confused with one party or one person dictatorships”. (Articles posted by transCurrents and Sri Lanka Guardian on September 25). He sees no danger to democracy in ‘one-party dominant’ system on the presumption its leader will be magnanimous and respecter of the basic rights and freedoms of all fellow citizens.
Unfortunately, Sri Lanka has not had a national leader of the calibre of Lee Kuan Yew.
Apparently, the recent changes in governance, particularly the 18th Amendment are considered necessary for ‘stability and continuity’ and he does not think these endanger democracy. The obvious question here is: Is there no other way for securing stability and continuity? Why the promised political settlement based on the 13th Amendment with meaningful devolution of powers to the provinces was not pursued? In the plural society with the ethnic communities settled securely since known time in varying proportions in different parts of the island, a highly centralised system of government cannot be truly democratic. It is devolution that strengthens the democratic process and makes democracy meaningful to all the communities in the plural society.
During his spell as the Sri Lankan Ambassador to the UN in Geneva, Dr. Dayan Jayatilleka advocated strongly this move as vital for winning real peace. In the aforementioned article praising Mahinda Rajapaksa’s leadership at the present challenging time he has listed, “Modernisation, Pluralist Democracy, Moderation, and Multi ethnic National Integration/Nation Building” as essential for the future of Sri Lanka as an integrated developed nation devoid of internal conflicts. However, the important question whether these are possible under the present incompatible system has been ignored.
It has been tailored and later adjusted to serve the power wielders whose interests are entirely different from those of the majority of citizens in the different provinces. When the amendments to the 13th Amendment expected in the proposed 19th Amendment are known, one can judge how these tally with the devolution plans of experts like Dr. Dayan Jayatilleka. The chances are these will not result in 13A + as expected during the tail end of the war and soon after but 13A – (the minus is likely to be severe). Regardless of the opinion of the Supreme Court, the President could have gone for a national referendum on 18A, as he has the power to call this but he did not under the pretext of urgency. However in the case of the anticipated 19A the government in advance has decided to have a referendum.
Lack of will to seek a new Constitution
The LSSP leader, Minister Prof. Tissa Vitarana speaking in Parliament on behalf of his party during the debate on the 18th Amendment (September 8) revealed the conflict between the present necessity and the need for a new constitution in the light of the tragic happenings since the enactment of the current Constitution. It is the present necessity that influenced his decision to vote for the 18th Amendment that is in conflict with the declared stand of the LSSP on the Executive Presidency. He quoted the prophetic warnings given in Dr. N. M. Perera’s booklet, ‘Critical Analysis of The New Constitution of the Sri Lanka Government’ written by the esteemed LSSP leader soon after the powerful Executive Presidency was created in 1978 by the UNP leader J. R. Jayewardene to quench his prolonged thirst for power.
The current LSSP leader said, many of NM’s predictions, “on the possible outcomes when the Constitution came into effect have unfortunately come to pass. The alienation of the voters from the elected representatives, the breakdown of good governance, the dangers of authoritarianism and even dictatorship, the suppression of human and democratic rights, specially of the minorities, and the political instability that could occur, especially when the power in Parliament was held by a party different from that of the President were pointed out by him”
He found a convenient way to extend support to the 18th Amendment needed urgently by the Rajapaksa government, while agreeing with the above dissenting stand on the Executive Presidency. He told Parliament that his party’s stand on the island’s Constitution has not changed. He recalled: “It was during the Presidency of J R Jayewardene that Buddhist priests, intellectuals like Sarathchandra, judges, trade union leaders; media personnel and innocent Tamil citizens were directly attacked and even killed. Thousands of workers who struck work for a small salary increase were dismissed in July 1980. The series of Pogroms on innocent Tamils culminating with the attacks of Black July 1983 can never be forgotten or forgiven. Tamil militant violence escalated thereafter, and this led to the LTTE-led war and counter-insurgency with its death, destruction, violation of human and democratic rights etc. which lasted 26 years, as a direct outcome”.
“The LSSP therefore stands for a New Constitution that completely replaces the 1978 Constitution. Basically one that restores executive power to the Parliament. One in which the people are empowered through extensive devolution of power down to village level. One in which the minorities have a fair share of power both at the Centre and the periphery. One in which the independence of the Judiciary etc. is ensured. It is our view that this could be achieved by continuing the APRC process, which President Mahinda Rajapaksa initiated, to its logical conclusion with the participation of the TNA (free of LTTE pressure) and other parties”.
Despite this holistic and futuristic view, the decision to vote for the 18th Amendment is influenced by the “intention to remain within the SLFP-led Government”. He also said the incumbent President needs the powers conferred by this Amendment to win the “economic war” impressively in the same way the war against the LTTE was won with determined effort. To quote: “There is no doubting the fact that the Executive Presidency greatly helped to win the war against the LTTE, and it would appear that the President is convinced that it is essential to win the ‘economic war’ as well. Although we are not in agreement (Mahathir Mohamed achieved the Malaysian economic miracle as Prime Minister for 22 years), we fully support the decision of the President to give priority to win the economic war to eliminate poverty.
There is no doubt that the 18th Amendment to the Constitution would facilitate the mobilization of the Public Service and the other institutions for economic development. But the extra powers given to the President should be used justly and in the real interest of the country and the economy. There should not be any abuse of these powers”. The pertinent question here is: Are there are any deterrents in the Constitution to prevent the abuse of the supreme executive powers? What prevented the mobilization of the Public Service and other institutions for economic development, especially after the war ended? The hope that the voters will lose confidence and will not favour the abuser at the next Presidential election is just another wishful thinking. In this regard, the prognosis of Durand Appuhamy is factual
In the opinion column of ‘The Island’ 15 September 2010, he conveyed an alternative view which also seems to be the perception of many discerning citizens on the changes to the flouted system introduced via the 18th Amendment. No one can disagree with his initial comment, namely, “The removal of term limits could be a good or bad move depending on the nature of the person in that high post. If he is a national minded, benevolent and law abiding person, he would do enormous amount of good for the people. If he happens to be a tyrant, his reign would be a disaster for the country even within two terms of the presidency”. One may add to this the fact that even if the incumbent is benevolent and fair-minded person, there is no guarantee his successors will be like him.
Durand Appuhamy has also raised some pertinent questions on the changes made which are very useful for any Executive President keen on abusing the supreme executive powers. “Under the 18A, can or will there be a free and fair election in 2016/17? Will the electorate be given a fair opportunity to express their choice and in President’s words ‘kick out’ the sitting President? I have my doubts for the following reasons: The potential danger of perverting the free electoral process is inherent in 18A. By 2016/17 the sitting President would have selected the new Election Commissioner/s, the new IGP and if not all, at least some of the judges. The new DIGs and the Departmental Heads would have been selected by Cabinet headed by the President.
I know that there will be a Parliamentary Commission to make "observations" on these appointments. A determined President could just pay lip service to those "observations" or simply ignore them and proceed to appoint his chosen men. And no one could do anything about it. Thus all the men in important positions would be dependent on the President for their jobs, pay and perks. Would any such employee dare disobey the President’s wishes? Even if he did disobey, would it alter the course of events as prescribed by the sitting President? No. He or she will soon be replaced by a pliant candidate. We do have plenty of them in our country!”
Another regular contributor to the media, Tisaranee Gunasekara has observed: “Compliance with Rajapaksas is the only way to prosper” in her article posted by transCurrents on September 11 a couple of days after the vote in Parliament on the 18th Amendment. This perception also explains the crossover of many opposition members to the government in the past few months. In fact the leaders of minor parties realised very early during the tenure of the first Executive President, the pointlessness of sitting on the opposition benches. This belief is great when the main opposition party is blatantly weak as it is the case now and has virtually no chance of winning elections. The constant failure of the elected opposition to act responsibly in the national interest also contributed to the erosion of democracy over the past several decades.
Not only the LSSP but other minor parties in the UPFA coalition government must have realised the necessity to remain as a partner even though they had reservations on dismantling the 17th Amendment which was approved unanimously by Parliament in 2001. The need for this vital Amendment to the Constitution was felt widely among all sections of the civil society and they expected an end to the undesirable influence of powerful politicians on the functioning of important public institutions. Essentially, provisions were made in 17A for the establishment of Constitutional Council and independent commissions. These were: (a) The Election Commission; (b) The Public Service Commission; (c) The National Police Commission; (d) The Human Rights Commission of Sri Lanka; (e) The Permanent Commission to Investigate Allegations of Bribery or Corruption; (f) The Finance Commission; and (g) The Delimitation Commission.
Her considered views on the 18th Amendment are worth mentioning here. “Had the 18th Amendment removed presidential term-limits without enhancing presidential powers (via the negation of the 17th Amendment) or had it enhanced presidential powers but retained presidential term-limits, the damage done to Lankan democracy would not have been terminal. But the two juxtaposed cannot but ensure – and indeed are meant to ensure – that future Lankan elections will have a preordained conclusion. The Ruling Party will always win, because the 18th Amendment not only destroys the autonomy of the Elections Commissioner by giving the President the right to hire and fire him; it also emasculates the position, thereby enabling the Ruling Party to abuse state property, including the state media, at will. Elections in which the rulers always win, officially, are a staple in many countries, from Zimbabwe to Myanmar; with the 18th Amendment we too join that distinguished throng”.
The victory on September 8 in Parliament is undoubtedly a major one for the government but it is not the same as the victory declared on 19 May 2009. The latter can rightfully claimed as a victory for the vast majority of Sri Lankans, who suffered immensely without any sign of liberation. Any constitution of a democratic State and the subsequent Amendments must serve the interests and aspirations of the sovereign people and not the political class or just the ethnic majority community. Many fundamentals of constitutional governance have been ignored since 1972 and no lessons learnt from the past blunders that damaged the integrity of democracy and divided the society sharply.
The article written by Dr. Dayan Jayatilleka entitled "Hardly the death of democracy or the Nation" (Sri Lanka Guardian 12 September 2010) provoked heated debate. The other chief contributors were Basil Fernando of the Asian Human Rights Commission, Avinash Panday Samar, the Jawaharlal Nehru University (JNU, New Delhi) research scholar and Pearl Thevanayagam. In its editorial comment Sri Lanka Guardian stated that the four contributors “put forward the idea that politics in Sri Lanka were more to do with personal interests rather than political ideology” (20 September 2010). Not only political ideology, if they had one, but also importantly national interest had been totally neglected.
In my previous articles too I have drawn attention to this neglect, which is not surprising as the nation born prematurely did not survive long. Occasionally when politicians mention ‘national interest’ it is unclear as to which nation they are referring to. Historically, there was no island nation but several dominions in the island. Remnants of their existence still prevail as in the case of the diverse customary laws. It is also true the states under different rulers co-exited recognising and even assisting each other during difficult times. The centralised administrative system was imposed by the British after they conquered all the dominions in the island.
The strong attachment of the majoritarians to this system makes one to ponder whether the desired nation compatible with the unitary constitution is being sought! This is not going to be easy and will inevitably result in more calamities. In any case, it is a fact that no effort was made towards nation building since independence. This reiterates the earlier point that the process of nation building cannot begin in earnest without an inclusive nation. In the case of the democratic process, democracy exists and not yet dead, mainly in the form of the right to vote. Hopefully, the bold steps to be taken for building a unified democratic nation will come to light from the above analysis.
[The writer is Former Additional Deputy Secretary to the Treasury, Sri Lanka and UN Advisor, Development Economics/Planning]