| by Laksiri Fernando

( April 21, 2014, Colombo, Sri Lanka Guardian) When President Mahinda Rajapaksa contested for the Presidency in January 2010 for the second time, overwhelming assumption of the people who voted or campaign for him was that it was his last term. That was the constitutional position as well as the tradition of this country, like in many other democratic countries, since 1978 when the presidential system was inaugurated. The two term limitation was ingrained in the Constitution.

Since 1994, the people in Sri Lanka have voted overwhelmingly to presidential candidates, including President Mahinda Rajapaksa in 2005, and political parties or coalitions that won majorities in parliamentary elections in 1994, 2000 and 2004, to abolish the presidential system.

Implicit Promise

It is true that Mahinda Chinthana Manifesto 2010 did not promise to abolish the presidential system. It was a volte-face from the previous policies. Instead it sought a mandate to use it as a ‘trusteeship’ to be accountable to Parliament and accountable to the Judiciary. But that is for six years.

If you carefully go through the document, it repeatedly talks about ‘over the next six years’ or ‘during the next six years.’ It never sought a mandate to abolish the ‘two term limit’ of the Presidency. All indications given were that the President would gracefully retire into history, personal or at best honorable public life. It was the implicit promise. No one discounted that he could even have a political life, if he wishes to, but not as the President any longer. This principle also applies to ex-presidents.

The full section on “Presidency as a Trusteeship” in the 2010 Manifesto on page 38 was as follows.

“I was particularly careful when exercising the powers of the Executive Presidency. In the past, the Executive Presidency was used to postpone elections, to topple elected governments, to disrupt the judiciary, to ban political parties, to suppress demonstrations and lead the country towards a violent culture, to sell state institutions at under-valued price, to defend criminals and to grant concessions to unscrupulous businessmen. Agreements that betrayed the country were entered into using the powers of the Executive Presidency.

I used such powers to unite the country. An open discussion on the Executive Presidency will be converted into a Trusteeship which honours the mandate given to Parliament by being accountable to parliament, establishes equality before the law, is accountable to the judiciary and enacts laws that are accountable to the judiciary, and is not in conflict with the judiciary.”

His assessment of the past was correct although his claim of ‘careful exercise of power’ during his first term was an exaggeration. Things are yet to be unraveled. He was particularly correct when saying “the Executive Presidency was used to postpone [parliamentary] elections.” That was between 1982 and 1989. But he has done much worse by ‘abolishing the two term limit,’ which is considered the most important deterrent against a presidential system turning into a dictatorship or an ‘elected monarchy’ in any country.

International Tradition

Referring to the matter in terms of the first presidential system in the world, an expert on American constitutionalism, Peter Schultz, said the following in his “Governing America” (1997).

“But the most important step Washington took was his decision to limit himself to two terms in office. Under the constitution as ratified, there was no limit on the number of terms that a president could serve. …Nonetheless, the implications of his decision were significant for the presidency and how it came to understood…And by establishing a limited tenure for that office, Washington helped to establish the idea that the president’s power and authority, although great, is limited.”

Of course there were some American presidents after Washington who attempted to serve more than two terms but without success. Most attempts were thwarted by the respective party’s nominations process. Franklin D. Roosevelt was the only president who was elected consecutively for more than two terms under the war conditions (1940-45), but after the war the two term limitation was imposed on the constitution in 1947.

When Roosevelt was contesting for the fourth time in 1944, Thomas Dewey said “Four terms, or sixteen years, is the most dangerous threat to our freedom ever proposed.” In America, a term of the President is just four years. In the case of Sri Lanka, President Rajapaksa will already be completing 12 years by 2017. If he contests for a third term, what is proposed, to paraphrase Dewey, is “eighteen years, the most dangerous threat to any one’s freedom.”

There is of course a counter or anti- democratic tradition, particularly in Africa, where the presidential systems were fashioned even without term limits from the outset. Beginning with Kwame Nkrumah (Ghana) in 1964, following through Hastings Banda (Malawi), Bokassa (Central African Republic), Idi Amin (Uganda) and now Robert Mugabe (Zimbabwe), this tradition is akin to elected monarchy or perpetual autocratic rule. In 2008, Mugabe who had been President for 33 years refused to concede defeat. He got the Election Commission to recount and got elected again.

Perhaps Mahinda Rajapaksa and others want to follow this tradition, because it is from the South, non-Western countries and so-called anti-imperialist milieu! However it should be challenged morally, politically and even legally. The removal of the ‘term limit’ should not be taken as fait accompli. It is a breach of social contract and democratic tradition.

Back to Mandate
The postponement of parliamentary elections in 1982 under JRJ at least was done through a referendum, although manipulated. But for the ‘abolition of the two term limit,’ through the 18th Amendment, there was no referendum held. This time it was the Supreme Court which was manipulated. It was a major mistake by Dr. Shirani Bandaranayke, as the Chief Justice, to allow the bill to have passage only through 2/3 majority without a referendum and without having a full discussion in the country. She had to pay a price for that mistake. What was demanded from her by the executive thereafter was total submission.
If the people had been consistent in their antipathy against the presidential system since 1994, they could have defeated the ‘abolition of the two term limit’ in a genuine referendum, although consistency is not always the case in people’s voting behavior. However, on the part of the President or the UPFA, there was no people’s mandate whatsoever to ‘abolish the two term limit.’ In addition, it was utterly immoral on the basis of what they have been promising, uttering or apparently standing for since 1994.

The 18th Amendment or the ‘abolition of the two term limit’ also was mixed up with the ‘abolition of the independent commissions.’ For practical reasons, some must have thought the 17th Amendment should be revised. That must be one reason why even the seasoned parliamentarians became confused.
Since the promulgation of the 18th Amendment, three constituent partners of the UPFA, the Communist Party (CP), the Lanka Sama Samaja Party (LSSP) and the Sri Lanka Muslim Congress (SLMC) have expressed their reservations or opposition. The Amendment was proposed as an urgent bill in Parliament and rushed through a two thirds majority. As a result, the members of parliament or the public in general had extremely little time to discuss the full implications of the Amendment. Within the UPFA circles it was kept a secret until the eleventh hour. The SLMC General Secretary and Member of Parliament, M.T. Hasen Ali, last year said (Ceylon Today, 27 August 2013) “In fact, I can openly say, I did not support it. I was forced to support it.” This is a terrible indictment of the way politics is conducted within the UPFA.

Inherent Dangers

In parliamentary democracies, with the Prime Minister as the chief executive, there are instances where the same person continuing for more than two terms. There is no prohibition or term limits for PMs. There is no major danger either except under exceptional circumstances. In a parliamentary democracy, the PM is the chief or the head among the others with similar executive powers. If there is a tendency for concentration of power that has definitely to be checked. It is however an increasing tradition even in parliamentary systems for a PM not to stand for more than two terms.

A presidential system is entirely different. There are major dangers if the same person continues. Yoweri Museveni in his “What is Africa’s Problem?” (2000) said “no African head of state should in power for more than 10 years.” He explained that “longer a president is in office, the harder it is to remove him democratically.” Ironically, Museveni was President in Uganda for 27 years after Idi Amin and Milton Obote! Those are the ironies of claims and politics.
In the case of Sri Lanka it is more dangerous. It is the only country which calls the system an Executive Presidential system, emphasizing the executive or the ‘power’ aspects of the system. The President is almost above the law with immunity who cannot be brought before the courts. An impeachment is almost impossible as Dr. N. M. Perera explained in his Critical Analysis of the New Constitution.

There is no clear separation or even necessary distance between Parliament and the President. By having a ‘Jumbo Cabinet’ of 67 and altogether 105 Ministers in Parliament, the President has a close grip on the ‘majority of the majority’ in Parliament. This is an extremely abusive system when the task of a parliament is considered ‘policy making and legislation.’ The 18th Amendment also allows the President to participate or more correctly intervene in parliamentary affairs. This is not even necessary as his task of ‘coercion’ is given to some unruly elements in the middle bench. His brother is the Speaker.

A Possible Way Out

Sri Lanka still is not a hopeless case, hopefully. Sri Lanka cannot be like Zimbabwe or Uganda. There are strong democratic traditions behind it which became largely distorted during and as a result of the ‘thirty year’s war’ and the presidential system. One is out but the other is still in. It was after a ‘thirty year’s war’ in Europe (1618-1648) that the state system became reformed and stabilized. That kind of a change and reform of a modern nature suitable for the 21st century is not impossible in Sri Lanka if there is political will on the part of the responsible political parties and the people, irrespective of ethnic or religious disagreements or divisions.

There are inbuilt dangers too. There is a possibility of resurrecting a war again to perpetuate the obnoxious presidential system for self or family interests. That may be an extreme scenario. Before such an eventuality, it is necessary to seize upon the possible opportunities and try our best to promote a feasible solution to the otherwise rapidly deteriorating situation.

It was rumored or argued during the passage of the 18th Amendment that the proposal to allow the President to contest again was made to avert a succession struggle within the SLFP or the UPFA. It was also added that it was necessary to stabilize the system aftermath of the war. If that was the case, then that danger or the problem is no longer there.

The 18th Amendment does not make imperative for the incumbent President to contest again. He was elected in 2010 by the people on the premise that it is going to be his last term. I repeat, there is no people’s mandate for him to contest again. It is immoral on his part and breach of the social contract. If he has been only a trustee, not the owner, then he can simply handover the trusteeship to another person through the democratic process.

There are two main stages to this democratic procedure. First is the process of respective political parties i.e. the SLFP, UNP, JVP, TNA and DP etc. separately or jointly selecting or electing their presidential candidates. Second is the ensuring and conducting a free and fair presidential election on a level playing field. As far as I am aware, the SLFP has not so far selected its candidate for the next presidential elections. The seniors in the SLFP should have much say in this selection process along with party organizers. If they don’t act now they will be doomed. When it comes to the nominations for parliamentary elections or the preferential voting thereafter, they will be swept away by the Rajapaksa loyalists.

The Sri Lanka Freedom Party formed initially by such leaders as SWRD Bandaranaike and DA Rajapaksa has fairly a long democratic tradition whatever the intermittent aberrations or deviations. The time has come to resurrect that tradition and further strengthen it. There had been sudden eventualities in the past when the party found it difficult to find the successor for example when Bandaranaike was assassinated in 1959. However, that is not the case today or any longer.

Having been in power for a long period and having a host of second level leaders managing various ministries, the SLFP and/or the UPFA should know who would be suitable in terms of party’s policies, traditions, and most importantly, democratic interests of the country. It would be a damn dishonor for President Rajapaksa if he is not ready to handover the baton.

If anyone ask me who would be the best possible common candidate from the opposition, I would say, without wasting my words, Karu Jayasuriya, the least controversial; ideally flanked by ‘two informal vice-presidential candidates,’ a (preferably hill country) Tamil from the TNA and a Muslim from the JVP, DP or the SLMC, as agreed.

The purpose of this article however is to argue the point as it has done that President Rajapaksa doesn’t have a people’s mandate or a moral right to contest again and his candidacy, potential or otherwise, should be challenged morally, politically and even legally in the courts of law.

Mahinda Chinthana 2010 started with the assertion “doing what I say, and saying what I set to do.” There was no ‘say’ for a third term. It also asserted “a ruler is only a temporary trustee and not an owner of your children’s heritage.” If that is the case, the ‘temporary trustee’ must go.

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