The new constitutional theorem is that to have a stable government in Sri Lanka, the SLPP must have not only the executive presidency but also a two-thirds majority in parliament.
by Rajan Philips
The Sri Lankan parliament finally stands dissolved (to adapt SWRD’s famous line on the still more famous B-C Pact: "the Pact stands abrogated"). Parliament escaped premature dissolution in October-November 2018 when the Supreme Court cut short Maithripala Sirisena’s amateurish attempt at executive overreach. It could and should have been dissolved soon after the court verdict by (two-thirds) parliamentary consent, but Ranil Wickremesinghe, rather than taking a very favourable political tide at the flood, chose to prolong the parliament’s life to suit his inscrutable calculations for one last presidential run. In the end, he couldn’t run anywhere and opened the gate for the resounding return of the Rajapaksas. Now, Mr. Wickremesinghe is talking like a political Cardinal, advising the people to ‘vote wisely’ in the upcoming parliamentary election. People generally vote wisely, no thanks to him. The problem is with the unwise choices that they are presented with and the unwise ways in which those who are elected act after the elections. The coming election will likely be no different.
Buoyed by the presidential election victory the SLPP and its leaders are well positioned to best lay out the plans for the parliamentary election. The UNP alliance, or whatever that will come of it, seems worse positioned than it was for the presidential election in November. Sajith Premadasa’s newness raised false hopes then. Now, reality has set in even among its most faithful supporters. The JVP keeps striking all the right notes, but still hasn’t found an electoral base anywhere in spite of all the trying. The TNA will have its own battles to fight against rivals who will have much to criticize the TNA for the last five years without having to offer anything meaningful for the next five years. The Muslim political parties and the upcountry Tamil political parties are unevenly divided between the two main alliances.
The SLPP’s problem might be that it is aspiring for too much power with too many plans. The single-minded purpose that propelled Gotabaya Rajapaksa to the presidency now appears to have been lost. That purpose, even promise, was to make government clean and efficient, and to remove the country’s physical bottlenecks – from garbage to drainage to power supply to drinking water to sewerage treatment and to traffic. Now, there are too many distractions and too little focus. For the President’s entourage of family and supporters, winning the presidency itself is not enough.
The new constitutional theorem is that to have a stable government in Sri Lanka, the SLPP must have not only the executive presidency but also a two-thirds majority in parliament. This is recipe for ad hoc constitutional amendments that would be worse than the spate of amendments that President Jayewardene pushed through as he kept changing his own constitution. For those with memories of the 1970s, two-thirds majority is synonymous with parliamentary tyranny. Half a century later, it will be ‘double jeopardy squared’, for one political party to simultaneously control the executive presidency and two-thirds majority in parliament. What are both needed for anyway?
The latest reasoning is about the role of independent commissions and an apparently too independent a member of the Election Commission. Does the country have to go through a whole election and a constitutional change to rein in just one member of a statutory body? There also appears to be some confusion, or double standards, about what high post officials can and cannot do outside their official duties. To what extent could or should they be padlocked, in the case of members of statutory commissions? Can someone continue with her or his professional practice after being appointed as a Provincial Governor? By that token, ministers who are lawyers can still show up in court and provide service to the public for a thumping fee. And that is a whole world different from case of the University Grants Commission reportedly barring a law professor from appearing in habeas corpus cases in Jaffna after a complaint by the Sri Lankan Army.
Do we need a constitutional change or changes to put an end to these double standards? Or, will a two-thirds majority come in handy to regularize the irregular? To modify an earlier political turn of phrase from the 1950s, there are seeds of authoritarianism in all of this, and perhaps in spite of President Gotabaya Rajapaksa and not because of him.
The President has notably promised that there will be no going back to the 18th Amendment. Should that be a relief? Is he striking a different line from the rest of the family, rather the SLPP? The promise will surely prompt editorial praises that Mr. Rajapaksa is not showing any signs of being the authoritarian president that his critics had warned he would be. There are two ways to look at this. Either the alarms and criticisms were misplaced and overblown, or they are having a mellowing effect on President Gotabaya Rajapaksa. Time will tell. At the same time, even the diehard constitutional busybodies will know that trying to bring back 18A risks provoking a huge backlash, one that the new President will do well to avoid.
There is also another way to look at it. Campaigning for a two thirds majority is politically not very smart. What happens if you don’t get a two-thirds majority? Then you will have no mandate to even talk about changing the constitution. As a campaign issue, it gives the (UNP) opposition a rallying point to do better than they are expected to do.
No doubt, there are changes needed to rectify the mostly drafting errors in the 19th Amendment and also to reform the current electoral system. On both counts, the government could and should work with the opposition to bring about the required changes after the parliamentary elections. In fact, these changes could have been easily done by the now dissolved and lame duck parliament after the November presidential election. The same way the 19th Amendment was passed between the presidential and parliamentary elections in 2015. Inexplicably, the new Administration sat on it for three months. Just as Ranil Wickremesinghe sat on it for a whole year, for reasons that only he can fathom.
Untimely headwinds
The government has done a neat finesse on the MCC for the election, but it will have to play its card soon after the election. The MCC Experts Committee has done its mite per directions, and given the government the cover it needed before the election. It will turn out to be another downsized Mahaweli Development Scheme that was undertaken in 1970. There is not much room left in the political spectrum for history to repeat itself with an accelerated MCC, similar to the Accelerated Mahaweli Development Scheme of 1977. Mixing metaphors, the political landscape is all over the map!
Whatever happened to the children of 1956, the children of 1977 from across the political spectrum have now become Sri Lanka’s cosmopolitan anti-imperialists. And they form a core constituency of Rajapaksa politics. Like market socialism, there is now a case for anti-imperial capitalism. Anti-Americanism is par for the course in Sri Lankan politics even for, especially for, US-Sri Lankan dual citizens. The not so minor flies in the ointment are crime, corruption, and nepotism. Add to them, from last week, Dayan Jayatilleke’s fourth dimension – universal human rights. And this week, the International Criminal Court authorized the investigation of alleged war crimes by US and Taliban forces in Afghanistan. The signposts for the future are cropping up. But there are miles and miles to go before anyone gets there.
Donald Trump, running out of arguments for the November election, will use the ICC decision as a political weapon in his campaign. Just as the Sri Lankan government will use Geneva and the UNHRC as weapons in the unfolding election campaign. It is one thing to run against the UNHRC in an election, but it would be quite a different thing to run away from it after the election.
The annual trek to Geneva will be a fact of Sri Lankan political life unless the Sri Lankan government and Tamil political leaders take it upon themselves to address postwar accountability head on. To revert to Dayan Jayatilleke’s formulation of the fourfold framework, the need to find a practical balance between national sovereignty and universal human rights, is a constraint not only for the government but also for the Tamil leadership. The lesson from the Palestinians cannot be clearer. It is not enough not to keep missing opportunities, you should also look to creating new opportunities.
None of this will be front and centre in the current election. But they will be after the election. The real headwinds in the campaign are going to be from outside. The coronavirus and its economic fallout may have unpredictable effects in the election. Come to think of it, Sri Lankans have never gone to a poll in a time of such global uncertainty over health and the economy as they are going to do now. It really is a double whammy.
The irony also is that Mahinda Rajapaksa called an early presidential election in 2014/15 to avoid facing the electorate amidst an economic downturn that he expected for 2015/16. Now, President Gotabaya Rajapaksa is wading into a parliamentary election in the midst of a global pandemic (which is what it is in all but name) and economic panic. Given its size and location, Sri Lanka might escape the worst. But isolation is not the answer. It never is, even if it were possible.
No political party can have a winning message in a situation like this. But the test is for the government to show competence. Anything less will not go unpunished. A prudent question for the President is whether targeting a two-thirds majority is appropriate for the present situation. Never mind it is not appropriate in any situation. No political party in Sri Lanka has ever campaigned expressly for a two-thirds majority. Not even Dr. Colvin R de Silva for the United Front in 1970, or JR Jayewardene for the UNP in 1977. Should it be different now?
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