Election pledges can bring peace but need to be implemented

By Jehan Perera

(December 15, Colombo, Sri Lanka Guardian) Sri Lanka faces Presidential elections on January 26, 2009. As in the case of previous Presidential elections and since the first in 1982, this will be a momentous election fraught with possibilities of extreme violence and a change in direction of the country. The total military defeat of the Tamil insurgent movement in May 2009 has finally freed the country from large scale armed rebellion for the first time since the mid 1970s. But the accusations being levelled against each other by the contesting candidates reveal the extent of the violence and impunity that has existed.

Much of Sri Lanka’s post-independence history has been violent. Sri Lanka obtained independence from the British in 1948. A decade later in 1957 the country experienced major violence when ethnic riots broke out between Sinhalese majority and minority Tamils over the issues of language, land settlement and political power. But the violence in the country has not been limited to ethnic violence and has included class based revolutionary violence. In 1971 there was an armed insurrection against the government led by Sinhalese rebels, which was suppressed after a few weeks of fighting and the capture of the insurgent leadership.

By 1975 the Tamil guerilla movement for a separate Tamils state was underway. It escalated into major warfare by the mid-1980s. Again in the period 1988-89, the country experienced its second Sinhalese insurrection. Both insurrections were bloodily suppressed, and in the second round, virtually the entire insurgent leadership was killed.

The forthcoming Presidential elections are important in that they could decide whether Sri Lanka will make a break with its past with far reaching political reforms promised by the opposition, which focus on the devolution and de-concentration of power. With the government in agreement with at least a part of it. The other more likely option would be that the political leadership of the country continues to work within the existing framework of governance that is heavily weighted towards the centralization of power.

ENTRENCHING CENTRALISATION

In 1972 the British-inspired Independence constitution, which was based on the Westminster parliamentary system and itself a centralized form of government was discarded and replaced with the first Republican constitution. The architects of this constitution were driven by a vision of capturing the commanding heights of the economy for the state, so as to enable equitable and state-driven social welfare measures coupled with economic development.

Additionally, in response to an ethnic Tamil demand for a federal state in the north and east of the country, there was also specific reference in this constitution to a unitary state, which entrenched power in the central government, and to giving Buddhism the foremost place. The second republican constitution of 1978 added to these features of centralized power, a very powerful executive presidency.

However, the legitimacy of centralization of power as a panacea to the country’s many challenges is now at its nadir. It is significant that the main opposition challenger for the post of presidency General Sarath Fonseka is conducting his campaign on a platform of seeking the abolishing of the institution of the executive presidency within six months of election. The incumbent President Mahinda Rajapaksa himself promised to abolish the institution of the Executive Presidency during his successful election campaign of 2005.

The Executive Presidency in Sri Lanka makes the President the head of state, head of government, commander-in-chief of the armed forces, and gives the President the power to appoint as Prime Minister the person whom he believes commands the confidence of Parliament, appoint Cabinet Ministers, preside over Cabinet meetings and dissolve Parliament at any time after one year of Parliament’s term. In addition, the President is given legal immunity from any form of legal action while in office. Its power needs to be curbed.

There are two other important pledges of the opposition candidate which go to the heart of the governance issues in the country. One is to improve on the 13th Amendment to the constitution that sought to take away power from the central government and devolve it to provincial administrations. President Rajapaksa is now matching this pledge with one of his own, to go to 13th Amendment Plus, which is a promise he made some time ago but not kept. The visit to India by top government officials, and the pledges there to implement the devolution of powers, is a sign that the government is hoping for a statement from the Indian government that would influence the Tamil vote in Sri Lanka.

13TH AMENDMENT

The underlying rationale for the 13th Amendment was to lessen the centralization of power in the central government in Colombo, and thereby permit the Tamil and Muslim ethnic minorities in the northern and eastern provinces, who constitute a regional majority, to enjoy a measure of self-rule. The system of centralized government was seen to have led to political domination on national issues by the ethnic Sinhalese majority who amount to about 75 percent of the country’s population. Governments that could rely on the Sinhalese majority electorate to win elections tended to be insensitive to the aspirations of the ethnic minorities.

The 13th Amendment to the constitution came into effect in 1987. It was primarily intended to be the solution to the ethnic conflict and sought to devolve decision making powers to the elected provincial authorities. The system of provincial councils was modelled on the semi-federal system found in India. Indeed, the 13th Amendment was an outcome of the Indo Lanka Peace Accord of 1987, in terms of which India tried to mediate and resolve the country’s ethnic war.

However the Indian effort failed when the Tamil rebels failed to hand in their weapons and the Sri Lankan government backtracked on its own commitment to fully implement the provincial council system set up in accordance with the Indo Lanka Peace Accord. The government failed to devolve the required quantum of powers and financial resources to empower the provincial councils. This is what both presidential candidates are promising to deliver if they are elected.

17TH AMENDMENT

The third pledge of the opposition candidate is to implement the 17th Amendment to the constitution that sought to take the presidential power of making appointments to high positions of state and instead vest that power in a multi partisan council. President Rajapaksa and his predecessor in office President Chandrika Kumaratunga both violated this constitutional provision. There have been cases filed in the higher courts of law against the government for not implementing the 17th Amendment, but they have floundered due to the President’s immunity which the courts are not prepared to deny.

The rationale for the 17th Amendment to the constitution was to reduce the powers of the presidency and to de-politicise the key institutions of state that are necessary for the credible functioning of government with checks and balances. The first Executive President of Sri Lanka, J R Jayewardene, who was also the architect of that institution once said that the presidential powers were so enormous that the only thing he could not do was to change a man into a woman and vice versa. He used his powers to obtain undated letters of resignation from all members of parliament belonging to the government in order to bend them to his will. Succeeding presidents also used their powers to erode the independence of parliament, the judiciary and the public service.

The 17th Amendment was passed into law in 2000 by a unanimous vote in Parliament. It reduced the power of the President to make his own arbitrary high level appointments to important state institutions. The 17th Amendment established a Constitutional Council comprising the nominees of the Prime Minister, Leader of the Opposition, and also of the smaller parties in Parliament. The power to select key officers of state including those who would head the public services, judicial, police and elections commissions were vested in the Constitutional Council.

Unfortunately some technical problems in the provisions relating to the Constitutional Council have enabled the incumbent President and his predecessor to avoid implementing the 17th Amendment. The incumbent President Rajapaksa has made the technical problems a reason to continue to make his own appointments. This has enabled him to appoint those in whom he has confidence, although they may not necessarily enjoy similar confidence amongst members of the opposition parties. It has facilitated the abuse of power and governance that is insensitive to the concerns of the people.

THE CHOICE

The violence that has prevailed in the country can be attributed to the excessive centralization of power. Different segments of the population, based on ethnicity and class, were made to feel marginalized in the centralized state, and they became convinced that the only way out for them was the resort to violence. In this context, the three pledges that have been made in the Presidential campaign sum up the evolution of political thinking in Sri Lanka with respect to the necessities for future governance. These pledges need to be implemented for there to be realistic hope of a more peaceful future.

A political commentary by the Ceylon Communist Party (Maoist) on the prevailing situation in the country has described the incumbent President Mahinda Rajapakse as driven by his agenda to establish a "traditional-feudal, Sinhala-Buddhist hegemonic unitary state" while his chief rival, former army commander General Sarath Fonseka is driven to project a "liberal-constitutional bourgeois democracy" as a guise to seize absolute state power. The focus in this analysis is the notion of centralization of political power. The question is which candidate is better positioned to implement the reforms that are promised.

President Rajapakse is saddled with the inertia and enormous vested interests of an existing system of which he is the head and in which he has created many dependencies. On the other hand, General Fonseka has to convince the electorate that he is no longer the man in uniform, but is a civilian leader looking to espouse democratic values and will keep his promises. Those who choose to vote for the President will probably be assuming that he will continue on his present path without any radical deviation. On the other hand, those who vote for General Fonseka will be opting for change, even though the direction of change is a promise.

-Sri Lanka Guardian