Separation or 'Cartelization' of Power?

| by Sarath de Alwis

"I doubt whether we will ever witness so moving a spectacle as the people streaming in to Parliament, as they did after the election of 1956 and reverently and affectionately stroking the benches where the members they elected would sit. The new parliamentary complex at Sri Jayewardenepura, with its sumptuousness and forbidding majesty, seems to me to typify and symbolize architecturally, regrettable processes that are going on politically and socially. The task of bringing Parliament back to the people and of making it a real instrument of the peoples will, is likely, therefore, to be settled elsewhere." -Pieter Keuneman

('Looking back with no anger' Ceylon Daily News, 29 April 1982)

( February 10, 2013, Colombo, Sri Lanka Guardian) A recent symposium on 'Ideas on Constitutional reform' had parliamentarians M.A. Sumanthiran and Eran Wickrameratne and former Ambassador Dr. Dayan Jayatilleka presenting their views on 'Separation of Powers.' I recalled these words of Pieter Keuneman when listening to the three participants. The lawyer, banker and a political scientist were all born after the 1956 people's revolution that Pieter Keuneman recalls in those words of Delphian despair.

All three belong to the post 1956 generation. They grew up in the Dudley-Sirimavo age of see-saw politics. Any watershed events they remember in their formative years would be in sequential order – 1971 JVP insurrection, the 1977 opening of the economy, the 1978 Executive Presidency, Imposition of Civic disability on the Leader of the Opposition by Parliamentary fiat, the rigged referendum of December 1982.

The three children of 1956 were discussing constitutional reforms in the shadow of the impeachment of a chief justice, and hence the specific subject of separation of powers.

The opening remarks were made by Prof. Rajiva Wijesinhe, appointed MP and leader of the (so called) Liberal Party that initiated the event. Whenever I read or listen to Prof. Wijesinhe, I marvel at his capacity for preposterous politics. He was true to form. He informed the audience quite emphatically that the 18th Amendment is an epitome of liberal democratic values of accountability and transparency. The repealed 17th Amendment, he declared, was a blot on the constitutional landscape of our country. The good professor knows his role. Even in the well structured tragedy, Othello, the bard provided a clown in the form of Cassio.

Constitution – a mirror and mould

Both Eran Wickremaratne and M.A. Sumanthiran represent the antithesis of the contemporary Uththareethara legislator exercising the sovereignty of the people. I was anxious to hear their thoughts on the separation of powers. Sumanthiran voiced his strong commitment to the theory of the French political philosopher, Montesquieu. With a brief reference to the writings of Dicey, and the traditions observed under the Westminster model, he was of the opinion that the present Constitution did recognize the principle of the separation of powers. With disarming directness, he showed how past rulings by the courts have been accepted and complied with by the government. The young, suave pleader found no reason to podium thumping but yet made the indictment with élan.

Wickremaratne seemed to suggest that a separation of powers would curb executive excesses in matters of public finance. He was more concerned with the functioning of the present Parliament than with possible constitutional reforms.

Dr. Dayan Jayatilleka took me by surprise. Perish the thought of constitutional reforms at this point he insisted. "A Constitution is said to be mirror and mould: it will be the reflection of the dominant ethos and project of the regime and its driving forces."

He knew. He had been 'in the belly of the beast.' The composition of the present Legislature and its dominant thought process, he feared, would make any constitutional re-engineering exacerbate the shortcomings of the present dispensation. He cited an interesting anecdote attributed to Richard Nixon. Apparently, according to a prominent US satirist, Nixon had believed that 'power corrupts and absolute power is even better.'

The impeachment of the Chief Justice was a political process. Dr Jayatilleka called it an aspect of a 'cartelization of power.' A quasi-oligarchic power centre was seeking to enhance its own power base quite apart from the executive presidency that is already wielding considerable power. The 30-year war had also unleashed some authoritarian impulses. The controversy over the separation of powers reflected the dynamics of this other force. It viewed the independent role of the judiciary as an impediment. The separation of power and the recognition of the Judiciary as the ultimate authority in determining legality was a 'power brake' that would retard the thrust of the locomotive of governance. The danger is that without a functioning brake of an independent Judiciary, it could well be a runaway bullet train with dire consequences. Unfortunately, an autonomous Judiciary is seen as asymmetric to the power concentration by a 'deep state.'

'Number breaks down unity'

While the Constitution of 1978 is deeply flawed, Dr. Jayatilleka's warning against any constitutional re-engineering needs to be carefully assessed. The government has the numbers. This two-thirds majority it claims reminds me of the words of caution expressed by another Frenchmen long after Montesquieu. Claude Lefort, the political philosopher, has dealt with the pitfalls of democracy in our age. "The danger of numbers is greater than the danger of an intervention by the masses on the political scene; the idea of number as such is opposed to the idea of the substance of society. Number breaks down unity."

We celebrate four years of peace and four years of the absence of a war in 2013. National reconciliation still remains on the agenda. I often wonder why President Rajapaksa is so immersed in the trivial present, when in fact he has the rarest of opportunities to grapple with contemporary events not for brownie points but to leave an enduring legacy behind.

The end of military action saw the ruling party opt for regime consolidation as a priority over reconciliation. The presidential election was held before the parliamentary election. A divided and a leaderless opposition took the appalling decision to make the military victory a political trophy. So the flood gates were opened and we are drowned in the torrents of 'petulant parochialism' and 'truculent assertions of parliamentary supremacy.'

Dr. Dayan Jayatilleka made another interesting observation that should be of interest to our external affairs pundits. Understandably, he is an admirer of the robust or muscular liberalism of Barack Obama. As an aside, he remarked that while every capital of the world was hoping for an Obama victory, only "Tel Aviv and Colombo hoped otherwise."