The easy way to 2/3 majority is not the way

By Jehan Perera

(April 14, Colombo, Sri Lanka Guardian) The final results of the General Election are still awaited, although the outcome is known. The government has won an overwhelming majority, but the satisfaction of knowing the exact figures will have to wait until after April 20, when the re-poll in two electorates will be done. The steamroller of the election machinery of government candidates overshot their mark in at least the electorates of Nawalapitiya and Trincomalee. Election observers have reported that polling agents of the opposition parties had to flee their posts on the day of the election. The Election Commissioner annulled the polls in those two electorates in a display of his authority that regrettably came too late to ensure a free and fair election.

Although the level of pre-election violence was less than what took place at the Presidential Election of January 26 2010, the election process as a whole continued to display the infirmities that independent observation groups have previously noted at this election and preceding ones as well. These infirmities included the inaction of the Police in dealing with violations of electoral laws pertaining to illegal propaganda and the misuse of the state machinery by candidates and supporters of the ruling alliance to further their election propaganda work. The police were reluctant to take deterrent action against government supporters who were violating election laws even on the day of elections.

Perhaps in anticipation of an inevitable government victory, the voter turnout of around 55 percent at these elections was the lowest ever in the history of national elections in Sri Lanka. Nevertheless, as the results stand now the government has secured a massive electoral victory. It has won 117 of the 180 seats declared so far to the 225 member Parliament. The anticipation is that after the re-polling takes place on April 20, and the national list seats are allocated on a proportionate basis, the government will end up with a total of around 143 to 144 seats. This will be just a few short of the 150 figure needed to make up the 2/3 majority.

Leading members of the government made the target of a 2/3 majority the centre piece of their campaign. This included top government bureaucrats who defied conventions, and the doctrine of separation of powers, to call on the people to give the government a super majority that would enable it to get rid of all obstacles to the country’s progress. Under President Mahinda Rajapaksa, the government has shown itself to be so powerful that it can do virtually anything it wants to do, with impunity and without a check and a balance. It even converted a minority government into a majority one in the previous Parliament by inducing over 40 Parliamentarians to cross over and join it as ministers. The only thing it could not do was to change the Constitution by itself as it lacked a 2/3 majority in Parliament.



Two terms

There is no doubt, and there is public conviction too, that the present Constitution is a seriously flawed instrument of governance that needs to be changed. It concentrates too vast a power in the hands of the elected Executive President and fails to guarantee the integrity of other institutions that could act as a system of checks and balances. The constitution even gives the sitting President immunity from legal action. Successive Presidents have been obdurate enough not to implement all provisions of the constitution, and especially the ones that are inconvenient to them. They have been immune to legal action that could compel them to live up to their legal obligations. The government has been so bold as to defy even Supreme Court rulings. This has highlighted the culture of impunity which inevitably leads to the culture of fear.

The wide ranging manifesto of the government at the elections has not been specific about why a 2/3 majority to change the constitution is needed. On the other hand, it is generally known that a constitutional change might be necessary to develop a solution to the ethnic conflict. But the government has not been emphasizing this as the reason for desiring a 2/3 majority. Instead government leaders have been speaking about the need for an indigenous solution, with the concept of a second chamber coupled with enhanced village level devolution of power possibly being a part of it. Another important arena of change for which a 2/3 majority is needed would be electoral reform, and amending the present proportional system of representation which is based on party lists that are voted upon at the district level.

An area of constitutional reform that the government may be considering is with regard to the institution of the Executive Presidency. This will not be for the first time either. The country’s first Executive President, J R Jayewardene, headed a government with a 5/6 majority in Parliament that had been elected under the first-past-the-post system. He too served two terms as President, and towards the end of his second term appeared to be considering staying on for a third. However, in his second term President Jayewardene had to face twin insurrections, one in the North by the LTTE, and another in the South by the JVP. The difficult political solution may have dissuaded him from changing the constitution to permit him a third term.

On the other hand, President Rajapaksa’s immediate predecessor in office, President Chandrika Kumaratunga did make an attempt to change the constitution to enable her to stay on as President for an interim period beyond her second term. The draft constitution proposed the reversion back to the Prime Ministerial form of government. However, the opposition did not give support to her plans and instead burnt the constitutional bill when it was presented to Parliament. President Kumaratunga suffered from a lack of a Parliamentary majority for her party, which depended on agreements with other political parties. This contrasts with the position of President Rajapaksa whose ruling alliance is under his total control and is likely to get nearly a 2/3 majority entirely on its own.



Better way

With a 2/3 majority in Parliament only a half dozen or so seats away, the government is well positioned to achieve its goal of constitutional change in the manner it wishes. Obtaining those six seats is not likely to pose much of a problem to a government that has shown itself able to win over forty crossovers in the period of the last Parliament. There is no doubt that such a move will demoralize the opposition even more than it already is, and make governance a steamroller ride for the government. On the other hand, it would be more in the national interest if the government were to take the less convenient but politically more statesmanlike route of respecting the integrity of the opposition parties in Parliament and obtaining their support for constitutional change.

The country’s previous experience with constitutional change is that unilateral changes by the government in power, without the support of the opposition, are invariably partisan and self-serving. Such constitutional changes did not win the support of all sections of the country’s politically plural and multi ethnic society. The constitutional changes of 1972 and 1978 which were self-acclaimed by the governments of those times as historic documents, proved to be very controversial ones. On both occasions the opposition parties could not participate effectively in the constitution-making process. Both constitutions were rejected by the opposition political parties and by the ethnic minorities.

It is to be hoped that the hubris of victory and the arrogance of unchallenged power do not colour the minds of the government leadership. The wounds of the three decade long civil war still remain fresh. Although the government gained ground this time, the voting patterns in the North and East continue to be different from those in the rest of the country. The absence of normalcy affected the voters in those parts. In the Vavuniya District there was confusion amongst the displaced voting population (IDPs) as to where they should go to cast their votes. Some of them took buses to Kilinochchi to cast their votes, as they had done at the Presidential Election in January, only to find that their polling stations had been shifted to Vavuniya. The government also needs to bear in mind that voter turnout was unusually low by Sri Lankan standards. Too much concentration of power in the hands of too small a group can prove to be a dangerous mix in a volatile and plural society in which more and more people appear to be losing faith in the value of their votes.

On the other hand, if the government adopts a consensual approach that seeks to work with the opposition parties, the constitutional changes that are adopted have a better prospect of being problem solving ones that last the test of time. The government is in a strong position to obtain cooperation from the opposition parties which will be mindful of the government’s strength, and its ability to carry the people with it. If the government is seen as making a genuine effort to reach out to the opposition parties, both mainstream and ethnic-based, and to obtain their participation in the process of constitutional reform, the people will also have greater confidence that what the government is proposing is in the national interest.