It will be possible to create a functioning democratic political system within Sri Lanka if the public and the state gets used to such democratic traditions and principles.
by Prof. M.O.A. De Zoysa
( September 19, 2018, Colombo, Sri Lanka Guardian) These days, a serious amount of discussion is taking place in the media as to whether the former President Mahinda Rajapaksa can contest for the upcoming Presidential elections for the third time. This idea stating that there is no legal barrier for Mahinda Rajapaksa to contest for a third time was brought up by none-other than the henchmen and slaves of Mahinda Rajapaksa representing the Joint Opposition. Their argument is that the 19th Amendment made to the Constitution of Sri Lanka does not apply to Mahinda Rajapaksa, as it has no retrospective effect and therefore there is no constitutional barrier for him to stand up for re-election.
But those who stand against this idea state that the whole argument presented by the Rajapaksa supporters are legally fraught and with the enactment of the 19th Amendment no person can contest for the Presidency more than two times. Nevertheless, arguments made for and against this particular issue are saturated with legal undertones therefore making it difficult to provide an absolute conclusion for a lay human being who has no understanding of law. But one must remember that the implications of such suggestions do not merely concern the domain of law but has moral and ethical aspects attached to it. Therefore, from a political perspective, Mahinda Rajapaksa’s attempt at contesting for a third time is extremely unethical and morally wrong.
Executive Presidency
The much talked about executive presidency, which is theoretically called a Presidential system of government, was introduced to the world by United States of America by the constitution which they adopted in 1787 which eventually came into force in 1789. According to the constitutional provisions of the American constitution, the executive powers of the state are to be carried out by the President chosen by the public for a period of four years. Interestingly, the Constitution of the United States of America did not contain a limitation on the number of times an individual can run for the Presidency. Despite this, George Washington who became the first President of the United States of America, held the post twice and declined from contesting for a third time. After Washington, till 144 years passed, meaning till 1933, 31 Presidents ruled America and nobody stood up for re-election after completing two tenures in the office which thereby established a very valuable democratic political tradition within the American polity.
Even though the historical experience was such, Franklin de Roosevelt, who became the 32nd President of the United States of America, after finishing two tenures in office, decides to contest for a third time and won the election in 1941. Roosevelt became the first President in the history of American to contest the election three times. Even after three terms, Roosevelt showed no signs of retiring and in 1944 he again contested and become elected as President. But in 1945, he died and Harry. S. Truman took over the Presidency in 1945 itself.
The American public, due to this behaviour of Roosevelt, clearly understood that a limit has to be enforced to the number of attempts a single individual can contest for the Presidency in order to protect the age old democratic political traditions and to curb the possibility of allowing a Constitutional autocracy to grow by warping the very provisions of the Constitution enforced to ensure democratic governance. It is believed that the American Public especially remembered the classic statement made by the French philosopher Montesquieu in 1748 when he expounded his thesis on the Separation of powers. According to him “as history shows, if an individual’s power is not curtailed and controlled by an equal amount of power, that individual will eventually end up misusing that power. Hence, we should always control power through power.” Therefore, in order to protect the state and democracy and to stop a constitutional autocracy from building up, the American public along with the Congress brought in the 22nd Amendment to the American Constitution in 1951.
This amendment then limited the term of the Presidency for two tenures and it legally applied to all the individuals who were Presidents in America prior to its enactment. The most important thing to note here is that no President who was in office prior to this amendment never went to courts and challenged whether it is applicable retrospectively. Further, no President who was elected to office after that particular amendment never attempted to even change the clause in the hope of staying in power beyond two terms.
This example is one among many which shows how much the Americans respect, love and protect the traditions related to democratic principles of governance. After 1789 all the states which established Presidential systems of governments, excluding the states which has only one party or states which maintain authoritative systems some way or the other, limit the number of times an individual can contest for the Presidency to two terms.
Second Republic constitution
The Presidential system of government was introduced to Sri Lanka by J.R. Jayewardene in 1978 with the enactment of the Second Republic Constitution. J. R. Jayewardene took the American System as an example in creating the Presidential system of government in Sri Lanka. The office of the President thus created under the 1978 Constitution had far reaching executive powers and was very strong when compared to the office of the President in United States of America which made and make critics call it a constitutional autocracy. Even though the case was as such, J.R. Jayewardene took measures to curb the rise of a long term individual autocrat by inculcating certain provisions in the Constitution by way of bringing forth some checks and balances. The election of the President by the public, limiting one term to six years, the clause stating that an individual cannot contest beyond two times for the post of president and that the president is responsible to the parliament in carrying out his duties and function given in the constitution are some examples of such checks and balances.
Family affair
Hence, the most important two out of these are the limit applied to the number of times one can contest for the post of President and that the President should be elected at a Presidential Election by the people. By the 18th Amendment to the constitution, former President Mahinda Rajapaksa repealed article 31.2 of the 1978 Constitution. Here, the most important restriction and check enforced by J. R. Jayewardene to ensure democratic governance and curb autocracy was destroyed and taken out. Mahinda Rajapaksa enacted this change with the hope of establishing himself as an autocrat within the state for which he violated all known principles of democratic governance. Further, Mahinda Rajapaksa through this constitutional change managed to carve a path to ensure that, the heirs to the “throne” after him will be from his own immediate family and nowhere else.
The 19th Amendment to the Constitution in 2015 re-established the provisions of article 31.2 which was abolished by Mahinda Rajapaksa thereby again stating that no individual can contest for the presidency beyond two terms. Article 4.2 of the 19th Amendment states that “No person who has been twice elected to the office of President by the people, shall be qualified thereafter to be elected to such office by the People.” Thus, the henchmen of Mahinda Rajapaksa are actually trying to re-interpret this particular article in a fraught manner to bring back Mahinda Rajapaksa into power again. They argue that this article does not retrospective application and hence, Rajapaksa can contest for the 2020 Presidential elections without any legal hindrance.
When analyzing this situation, what becomes evident is that the supporters of Mahinda Rajapaksa have forgotten the whole political ethos of the 19th Amendment and are desperately attempting to mislead the civil society by using one article of the said amendment.
The main idea of the 19th Amendment is not to bar this one individual called Mahinda Rajapaksa from coming into power, but to ensure democracy within the governance structures and to stop an autocrat coming into power on constitutional terms. Therefore, this does not apply to the former President Rajapaksa alone but to anyone who gets elected to the post of president in Sri Lanka and it further acts as a safeguard of democracy, good governance, rule of law and constitutionalism.
It will be possible to create a functioning democratic political system within Sri Lanka if the public and the state gets used to such democratic traditions and principles. Thus, it becomes evident that the Mahinda Rajapaksa supporters by promoting such false and fraught propaganda are trying to break away from the democratic traditions of governance and establish an autocratic system of rule within the country.
Should we allow such anti-democratic and nepotistic forces to come into power? All those who love democracy should ask their conscience this very important political question. We also have to understand one important point here: that there is a legal as well as a moral and ethical base to politics. Mahinda Rajapaksa supporters have totally left out and forgotten this much important moral and ethical aspects of politics. So the public should seriously consider whether they should hand over the power of the state to such people who are overtly undemocratic in their political aspirations.
(The writer is former Professor, Department of Political Science, University of Peradeniya)
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