| by Laksiri Fernando
( December 6, 2014, Colombo, Sri Lanka Guardian ) UPFA General Secretary, Susil Premajayantha, has stated (Divaina, 3 December 2014) that the forthcoming manifesto of Mahinda Rajapaksa or Mahinda Chinthana 2015 would outline constitutional reforms along the previous manifestos of 2005 and 2010. This is hilarious.
If the government, and this means the President, wanted to reform the constitution it should have been done already. Even before breaking away from the UPFA, the JHU made a request with a draft in hand to curtail the dictatorial powers of the President and that was not heeded. The demand was to reform the constitution before the untimely elections and not after. The UPFA has 2/3 majority to effect substantial changes, with or without a referendum, but that opportunity was not utilized.
The SLFP policy has always been to abolish the presidential system which became stalled by the incumbent President, Mahinda Rajapaksa. That is one reason why the General Secretary of the SLFP, Maithripala Sirisena, is contesting against the incumbent President, Mahinda Rajapaksa, with the support of the UNP and other parties. He is now the common candidate.
President argued that if the opposition wanted constitutional reforms they should have participated at the Parliamentary Select Committee (PSC). It may or may not be the case, because the PSC’s main mandate was not to reform or abolish the presidential system but to find a constitutional solution to the national (or ethnic) question. The argument was like Nokerena vedakamata konduru tel hath pattayakuth tikkak (asking non- existent medicaments to avoid a treatment). There was no sincerity in the argument. The government has not even implemented the main proposals of the LLRC.
What happened to the All Party Representative Committee (APRC) report of Tissa Vitarana, not to speak of the majority or the minority reports? All these were excuses. Did the 18th Amendment which was a substantial constitutional reform was placed before the so-called PSC? No. It was hurried through the Supreme Court and the Parliament. In fact it was not merely a substantial constitutional reform but a total deformation of a democratic presidential system. There is no question that even a presidential system could be democratic (not like in China, Russia or Brazil by the way) and the 18th Amendment has placed the final nail to its democratic limitations and checks and balances.
What has proved through experience is that Sri Lanka’s politicians are completely incapable or unreliable to exercise presidential powers. They are by and large mesmerized with power and some also with money. No one is completely reliable in this game. That is why people, party members, civil society organizations and concerned citizens should be extremely vigilant.
It is salubrious in this sense that an opposition has crystalized of many parties, and not one, promising to reform and/or abolish the presidential system and bring substantial political reforms. At the forefront, there is a reliable common candidate. One party or one coalition has gone astray in the past.
This is not a coalition like the UPFA, but a common front. It is like a United Front in popular progressive movements, internationally. All parties act independently and they have come into a common understanding through MOUs. The object is to form a ‘national government’ in the future and not a coalition government of some. Whether this would completely be materialized will be decided by the future and the way the people vote at the elections on 8 January.
My task here is to visualize what could be achieved within 100 days particularly in terms of constitutional reforms and abolition/reform of the presidential system. Otherwise there is a large itinerary incorporated in the two MOUs so far signed by the common candidate. As the literary meaning signifies, a MOU is a memorandum of understanding between two or more parties to a venture, enterprise or project. Not one party, but parties agree to achieve the objects specified within the agreed timeframe.
An election manifesto would come separately, based on these MOUs and also assessing the feasibility, if it is rational. Or otherwise, it can also can come clumsily, incorporating all what are incorporated in the MOUs.
Nimal Siripala de Silva, himself a lawyer, opened the mouth earlier on, however misleadingly, on behalf of the government. While speaking to the “Dasa Desin” program of the SLBC on 24 November he said that “there is no legal authority for a President to abolish the executive presidency, whether he desires or not.” He and others insisted the same thereafter. He insisted that the abolition of the presidency is a matter for the Parliament and asked how an opposition candidate could obtains the necessary 2/3 majority for such a venture. This was before the defection of the SLFP General Secretary. Now he has become the opposition’s common candidate. The scenario now is substantially different.
Sri Lanka’s presidential system, unlike the US, is a mixed system and from the beginning the President had a foothold in Parliament. This foothold is now strengthened under the 18th Amendment. To abolish the Presidential system and the 18th Amendment, the presidential system and the 18th Amendment themselves could be and should be utilized! It is like Visen Visa Nasee (negating poison with poison).
If the incumbent, Mahinda Rajapaksa, can come as the Minister of Finance and propose the Budget, then Maithripala Sirisena also can come as the Minister of Constitutional Reform (temporarily) and propose a constitutional amendment to abolish the presidential system and also to abolish the 18th Amendment and reinstate the 17th Amendment. Before that even he can utilize the powers of the 18th Amendment to make adjustments to prevent any sabotage from the judiciary or any other source. For this to happen, the opposition should obtain an unequivocal mandate from the people to implement what they have so far outlined and declared to the people.
It is important to note that even in the main MOU signed between the common candidate and the UNP, and also other parties and organizations, what is stated is the “Abolition of the presently existing executive presidential system within 100 days and the reinstatement of a parliamentary system accountable to the people.” It also states immediately after that, “In the newly created parliamentary system of government, the President shall be the Head of State and shall hold powers and responsibilities suitable to that position and the office of the President will be establish to symbolize the national unity of the country.”
In the MOU signed between the common candidate and the JHU it is stated that while “agreeing to implement the following political reforms within 100 days” that “it is agreed to do away with the arbitrary executive powers of the President without affecting the security of the state or the territorial integrity whatsoever.”
It is possible under the reforms that the President retains National Security at least for the time being, as a necessity or to alleviate certain concerns of some sections of society (i.e. armed forces). I would also propose, in that case that he should also be in charge of National Reconciliation. They go hand in hand under a post-civil war situation. There should be a balance between the two, without using one against the other.
In terms of constitutional law and practical politics what is important to answer here is whether the abolition of the ‘current executive presidential system’ is possible within 100 days. My answer is an unequivocal yes, in terms of constitutional law. What would be proposed is not a new constitution altogether. The framing of a new constitution takes time and should take time. It should be well thought out. However, the abolition of the existing executive presidential system is a forgone conclusion.
Then the remaining part of the question is whether MS or the common opposition could receive a necessary 2/3 majority in the present parliament. It is patently clear that the ‘common opposition’ as it is today does not even have a majority. However, politics is a fluid phenomenon particularly in Sri Lanka and particularly at this juncture. Two main elements are important in answering this question.
1. The opposition has very clearly stated that what they would form after the presidential election (of course if they win!) is an all- party or a national government. I would assess this possibility as high (80 percent possibility) going particularly by the ‘prophesy’ of none other than the present Prime Minister, DM Jayaratne, who said in Parliament that “the Pope would be meeting a new government when he arrives.” It is the PM who said that. And it is the General Secretary of the ruling party, the SLFP, who is contesting against the incumbent President now!
2. If such a proposed constitutional amendment is defeated in Parliament what would happen? The Parliament will be dissolved and a fresh election will be held with immediate effect. Before predicting what would happen at such an election, let me point out this fact. There are nearly 50 MPs in Parliament who have entered the chambers for the first time. They are entitled for a pension only after 5 years and that is 22 April 2015. This is obviously a trump card that MS has if he wins.
As a person who is not favoring insidious methods in politics, I would not suggest to use that threat or the trump card. Even without that, there are clear signs that the ship is now sinking. There would be o many people jumping out, some genuine and some not so. It is a future and a necessary task to sort them out or otherwise the change that the people expect would be far too short of their aspirations. The main task today is to win the elections overwhelmingly and that is possible if the campaign is conducted with sincerity and determination.