JRJ Is Guffawing Somewhere

by Gamini Weerakoon

(September 05, Colombo, Sri Lanka Guardian) Junius Richard Jayewardene, wherever he may be, would be guffawing in his inimitable way at the current constitutional frolics enacted by President Mahinda Percy Rajapaksa and his constitution makers.

For 32 years since JR enacted his constitution, he has been lambasted by political riff-raff as well as some ‘constitutional pundits’, particularly for the introduction of the executive presidency which they claimed was the ‘font of all evil’ in Lanka’s politics. They ranted and raved on the streets, political platforms, roof tops and in parliament against the executive presidency. Now having won the war with the powers vested by JR in the current constitution, Rajapaksa seeks more powers to strengthen the executive presidency!

GL admits

We read with much amusement the learned Prof G.L. Peiris’s defence of the proposed amendments in a daily newspaper last week where he says, ‘Given the composition of parliament, it would not have been possible, even to think of winning the war against terrorism without the strength of the executive presidency’.

The Professor has argued further for a strong executive presidency, ‘It is generally recognised that that to accelerate economic development a fundamental requirement is a strong executive. This is an absolutely essential condition. Today an overwhelming number of Sri Lankans would concede that terrorism would not have been eradicated without the executive presidency and the strength that institution has imparted to the body politic.’

Genteel politics would call for a posthumous ‘thank you JR’ from the current beneficiaries, but that alas, is not the spirit of the times. If GLP ventures in that direction his tenure as Foreign Minister could be much shorter than even that of his predecessor, Rohitha Bogollagama.

Betrayal of mandates
If this is the moment of truth for the Rajapaksa government, they must acknowledge that for the past 32 years they have been screaming a whole load of ‘infinite bull’ (Ref. last week’s Serendipity) and misled the people. Are the people as dense as the buffaloes of Hambantota to believe that the obnoxious executive presidency is manna sent from heaven for the progress of Lanka? This move to strengthen the executive presidency is a betrayal of the mandates given by the people at the presidential and parliamentary elections and in democracies where election mandates are taken seriously, it would have resulted in a call for the resignation of the government.

We are not saying that it was the executive presidency that by large contributed to win the war against terrorism। It is Prof. Peiris and his colleagues who say so now. There will be many who ask whether those like Gen. Sarath Fonseka who led the troops were responsible for the victory. But Gen. Fonseka who made similar claims is now behind bars. Sri Lankan democracy has been gagged and is in chains.

Prof. Peiris says that many constitutional reforms are called for and the government has identified as a result of the ‘process of assessment and evaluation’ immediate constitutional reforms to be effected without delay. The changes that are being made immediately are to reinforce the stability that already exists and to inspire confidence.

Why the indecent hurry ?

But, now that the war has been over for more than a year, the question arises about the indecent hurry by President Rajapaksa to override the limitation of a two term presidency and go for a third term. There is a six year period for the next presidential election and why this call for a third term be made now has not been explained.

What is the stability that can be ensured by letting Rajapaksa run for a third term in four years unless of course he and his supporters are cocksure of winning for the third time? In Sri Lankan democracy heroes of one general election have turned out to be zeros in the next election, the best example being Sirima Bandaranaike who won the 1970 election with a two third majority but lost miserably in 1977 winning only eight seats. Of course in this country a sitting president has not been defeated in his second attempt.

That could be explained by and large because an incumbent president abuses all his executive powers to rig an election — legally and illegally. Will the third time be any different? These are facts not mentioned in the legal tomes of Ivor Jennings or Hood Phillips which the learned professor quotes from but those like the Vermin, with their sarongs tucked up, will say in Sri Lankan English: Knowing people will know, no? (Danno danithi)

And what of the 17th Amendment?

The learned, erudite much respected Professor in the great halls of learning and foreign chanceries says: It has not worked on the ground, it has been a dead letter, and it has proved incapable of pragmatic application.
Yes, of course yes. Non implementation helped incumbent presidents to win elections.
Chandrika Kumaratunga to a certain extent and Mahinda Rajapaksa all along made it a dead letter. This amendment provided the appointment of independent commissions to administer the public service, police service, elections department and judicial services, independent of the executive president through a Constitutional Council that was not permitted to function effectively. All the powers of this commission then passed on to the executive president who found this absolute power, absolutely delightful for governance, particularly during election time.
The President sans the 17th Amendment had the power to use, abuse, direct, misdirect most government personnel at his whim and pleasure and use the state controlled media as vassals in his palace. Even some of the once proud independent media became stooges of government with successors to the once dignified and revered press barons accepting government appointments.
The plight of the Elections Commissioner was seen by the public being manipulated like a pawn — saying one thing one day and quite a contradictory thing the next day. He is not to be blamed for any bureaucrat caught up in such a political vice could not have done anything different.

President is almighty

So, the Constitutional Council is to be scrapped and is to be replaced by a Parliamentary Council which will be unabashedly political. It will comprise the Speaker, Prime Minister, Leader of the Opposition, two parliamentarians nominated by the Prime Minister and the Leader of the Opposition. You can guess how impartial it would be. Their views on appointments will be taken into account by the President but the final decision will be that of the President.
The Parliamentary Council will have a role with regard to appointment of the Chief Justice, judges of the Supreme Court, president and judges of the Court of Appeal and all members of the Judicial Services Commission other than the Chief Justice. But the President remains the sole appointing authority for all these positions. The executive power of the people lies with the President in accordance with Article 4 B of the Constitution and there cannot be an encroachment under it, says the Professor, professorially.

Nightmares

A significant issue now being raised is whether Chandrika Kumaratunga, the only other former executive president remaining will be entitled to contest for a third term or whether only the incumbent president is entitled to such an extension. We are not aware whether Chandrika has taken a decision or not but if the former popular president does throws her hat into the ring, it will cause nightmares in the Rajapaksa dynasty. If the amendment debars her from contesting — she is the only president who can qualify for a third term — it will be bad law, ad hoc and ad hominem, the lawyers say.