Groundviews

A TRIUMPH OF HOPE OVER EXPERIENCE? A PRELIMINARY COMMENT ON THE NMSJ’S ROAD MAP

Image by AFP’s Ishara Kodikara courtesy Foreign Correspondents Association Sri Lanka

There was a remarkable image in the news recently. It was from the meeting of the Ven. Maduluwawe Sobhitha Thera’s National Movement for Social Justice (NMSJ) at which a ‘road map’ for the abolition of the executive presidency was launched on 24th July 2014. Seated on the front row were Ranil Wickramasinghe, Chandrika Bandaranaike Kumaratunga, Rajavarothayam Sampanthan, Sarath Fonseka, Shirani Bandaranayake and Sunil Handunetti. To the extent these individuals represent the spectrum of Sri Lankan political opinion, then the proposition that the executive presidency should be abolished should, notionally, garner a very comfortable majority in the next presidential election. There is of course many a slip twixt cup and lip, but perhaps this is the first glimmer of hope in sometime that the Mongol hordes of the Rajapaksa regime that are laying waste to our democratic inheritance might finally be stopped.

Dr Jayampathy Wickramaratne, who has worked tirelessly to get this show on the road, outlined the basic features of the road map. There should be a ‘common candidacy’ on the abolition of the executive presidency. It is called a ‘candidacy’ rather than a ‘candidate’ to denote the sense of common cause around this major constitutional change, and to distinguish it from a conventional common opposition presidential candidate as in 2010. The common candidacy is built on the minimum threshold consensus that Sri Lanka needs a restoration of democratic space. This can only be achieved if the executive presidency is abolished and a suitably amended Seventeenth Amendment framework brought in to ensure de-politicisation. These two basic reforms will address the authoritarianism that has undermined checks and balances, the separation of powers, and the rule of law, spawned unprecedented levels of corruption and waste, and squeezed civil society. Only in the democratic space opened up after the removal of this fount of authoritarianism can we begin a process of other reforms to ensure democracy and pluralism. The constitutional amendment abolishing the executive presidency will, in legal draft form, be part of the common candidate’s manifesto. This will give not only a direct mandate for abolition should the common candidate win the election, but will also commit the candidate to present the amendment to Parliament within one month of the presidential election. Once Parliament has passed the amendment by a two-thirds majority, the amendment will come into force in six months. The two-thirds majority would not be difficult to muster if the common candidate wins the election. If the Supreme Court determines that the amendment requires a referendum, then that could be held within this six months period. With the coming into force of the amendment, the common candidate’s role will end. A titular President and a Cabinet of Ministers will replace the executive presidency. The new constitutional head of state will be elected by Parliament, and the person who is able to command the confidence of Parliament will become Prime Minister and head of the government. This seems a plausible plan but we need to assess it further to see if it is potentially a winning plan.

The road map’s main strength is its simplicity and clarity. By honing in on one central issue, it will engender a badly needed public debate on the executive presidency, and an opportunity to express its opinion on it, that the electorate has never been given except perhaps in the 1977 general election. That was before anyone realised the nightmare that was being unleashed. The most recent and the most excessive and pernicious expansion of the scope and powers of the executive presidency was done through the Eighteenth Amendment in 2010, which was introduced by stealth: neither the President who introduced it, nor the MPs who voted for it, had any right or mandate to enact it. Shirani Bandaranayake’s Supreme Court acquiesced in it in the most craven way imaginable, and of course this was before she reaped the whirlwind.

Unlike the amorphous promises of abolition in the past, it will present the electorate with a clear legal draft, and a clear timeline for the process, to which they can give their mandate. In deftly transforming the next presidential election into a referendum on the executive presidency, it does something what the democratic opposition has been unable to do in a long time, which is to cease the initiative and define the terms of a contest that is otherwise wholly weighted in favour of the incumbent. It is brutally realist, in recognising that the terrain of the battle is the South. Hence the exclusion of any other issue from the equation. The presence of other constitutional reform issues, and especially ethnic accommodation, would only serve to detract from the main purpose of abolition, and to fracture the wider consensus within the South that is possible if other issues are not in the equation. In any case, no reasonable debate about broader reforms can take place so long as the executive presidency remains as the institutional safe haven of Sinhala-Buddhist chauvinism and militarised authoritarianism. The common candidacy does not promise anything for minorities in return for their support, except the possibility of a more open democratic environment.

The road map also however has a number of weaknesses, none of them fatal, but potentially gaps to be filled as the campaign gathers momentum. The main question here is about what will replace the executive presidency. The road map envisages a return to ‘a parliamentary form of government’, but what does this actually mean? Even if the centrepiece of the 1978 Constitution, upon which its whole framework is based, can be uprooted without also involving so many consequential amendments as to render it in effect a new constitution, the exact nature of the parliamentary executive that will replace the executive presidency must be fleshed out. This is important in two ways. On the one hand, there is enough potential within a parliamentary executive to replace presidential authoritarianism with a parliamentary dictatorship. Indeed, classical presidentialism with its strong emphasis on the separation of powers was intended to meet the democratic deficit of the parliamentary model. Within our political culture, especially its leader-centrism, the institutional form of executive power may not matter as much as the absence of more intangible traditions and conventions of democratic governance. There is very little legal reforms can do to address these deeper problems of political culture. One possible counterpoint to this is that proportional representation, and the fragmented and multipolar legislative representation it produces, would obviate the monolithic majorities under first-past-the-post that usually forms the basis for parliamentary authoritarianism. Conversely, however, this also constitutes a strong argument for those who will oppose abolition on the ground that the new parliamentary executive would be weak, ineffective and hostage to the whims and fancies of minority parties in opaque coalition politics. The NMSJ will have to think of ways to meet this argument, and in general provide more detail on the institutional alternative to the executive presidency.

There is also the question of the legal draft or constitutional amendment bill that will form part of the common candidacy’s manifesto. Until this is published, we can only discuss it in general terms. Presumably, this will in the main involve amendments to Chapter VII, so as to retain ceremonial functions with the future titular President, transfer substantive executive powers to the Cabinet of Ministers, and repeal those provisions that were only necessitated by the existence of an executive President. Jayampathy notes in his speech that he does not think the Supreme Court will order a referendum on these changes, but if it does, then the road map’s timeline accommodates this requirement. I have no reason to doubt his learned opinion, except to note a niggling doubt on one point. The proposed changes would not prima facie involve a consequential amendment to Article 4(b), which alludes to the President as exercising executive power as an aspect of the sovereignty of the people, because that is how even in a parliamentary system the role of the head of state would be formulated. Except for the phrase ‘elected by the people’ in Article 4(b). This contemplates the fact that under the 1978 Constitution, the President is a directly elected executive President and not a titular figurehead. That too, it would seem, can be amended by a two-thirds majority under the proposed scheme, because Article 4 is not expressly entrenched by Article 83. But there is a long line of cases in which the Supreme Court has held that Article 4 should be read as part and parcel of Article 3, which is entrenched (i.e., that a referendum in addition to a two-thirds majority is required for its amendment). If Article 4 (b) is impliedly entrenched in this way, then the Supreme Court might well deem a referendum necessary. Again however, the unique nature of the common candidate’s mandate will have a bearing on the way the Court decides this, and were there to be a referendum within months of the presidential election, it will easily be won by the abolitionists.

Then there are a number of political questions. There is some symbolic significance in Mrs Kumaratunga joining the campaign no doubt, helping to attract at least some SLFP voters, and sow doubts among non-Rajapaksa members of the regime and divisions within it. However, her own less than stellar record on promises to abolish will be made much of by the UPFA, as it already has been by para-state media commentators. Mr Wickramasinghe’s conversion to abolition, especially given his long commitment to presidentialism, has the aura of the perpetual loser who wants to change the rules of the game. The UNP has been haemorrhaging support under his leadership, and UNP voters who are used to thinking of their party as a party of government (even though that is increasingly untenable), would legitimately wonder why it cannot put forward its own candidate for a presidential election. Indeed, this whole common candidate strategy has become necessary because the UNP is not performing its role or pulling its weight within our political system as the main opposition, and the central reason why it is not performing in the way that it can and must is because of Mr Wickramasinghe’s leadership and his determination to cling to it at all costs. He has put his desire to remain leader ahead of the interests of both the party as well as Sri Lankan democracy. Consequently, the UNP’s contribution to the common candidacy in terms of a vote bloc might not be as substantial as it could be or is expected.

While the distinction between candidate and candidacy is important, it does not remove the question of who the candidate actually will be. If this is going to be Sobhitha Thera, then a number of deeper questions arise. The UNP’s abdication of its democratic role has necessitated not only the common candidacy but also that the common candidate will likely be a Buddhist monk. This comes at a time when the role of monks in politics is a cause for deep disquiet. What is the principled basis on which we can defend this? Do we only denounce monks whose politics we do not like, whereas we embrace those who we like? If so, then do we agree that the secular principle is no longer something that we regard as an aspiration for Sri Lankan democracy? On the other hand, it makes sense from a realist point of view in a campaign that is wholly about winning in the Southern hinterland to have a monk as candidate. Notionally at least, a senior monk like Sobhitha Thera should be relatively immune to the patriot/traitor categorisation that is the bedrock of the Rajapaksa electoral strategy (although I doubt if the madder dogs of the regime’s electoral and propaganda machine will reign in their compunctions about rabidly attacking a monk for too long). We can only hope then that Sobhitha Thera will conduct himself like a Cincinnatus in this exercise, and will resist the temptation to fancy himself a Diyasena once he has achieved the impossible and defeated the incumbent in a straight fight.

Finally, there are a few challenges that the NMSJ’s strategists would need to think about. The first is the absence of a level playing field. Not only is the electoral framework after the Eighteenth Amendment skewed in favour of the regime, it will also characteristically abuse public property and resources as well as unleash its substantial terror capacity against the opposition campaign. This is obvious and it is unlikely that NMSJ has not thought about it. But there are at least two other challenges it would have to overcome. The incumbent is a charismatic populist who genuinely enjoys popular support in his majority constituency. The flipside is that in this constituency, authoritarianism is not that much of a problem. The Asokan monarchical presidency is a deeply resonant idea of what the country’s leader should be. The common candidacy therefore has not merely to persuade this constituency that the executive presidency is such a major problem, but it has almost to provide a civic education as to why it is a problem. This is an uphill task, compounded not only by the uneven resources available to incumbent and opposition, but also aggravated by the inevitable campaign of distortion and vilification that it will have to meet. The grassroots mobilising capacity of the JVP and UNP becomes in this context absolutely crucial, but as I have noted, the UNP party machine is not what it once was. It will very quickly have to come up with a new generation of Athukorales, Dissanayakes, Panditharatnes and Wimalasenas if it is to meet this challenge.

Let us assume that all these challenges can be overcome and that the common candidacy wins the next presidential election. Whatever the substantive problems of our democracy might be, one of our better achievements is surely that we have managed to change governments democratically in the past. Losers have always respected the ballot and left office without demur. If this happens in the event of a common candidacy’s victory, then nothing more needs to be said and we can be proud of a democratic renewal. However, there are ominous signs that something about the Sri Lankan state has quite fundamentally changed post-war. The visible signs of authoritarianism and militarisation may signify an invisible formation of a deep state, on ethnocratic ideological foundations, on the need to control the state as a requirement of immunity and impunity especially against international investigations or criminal proceedings, and on the need to preserve more mundane privileges and vested interests that military-bureaucracies inevitably acquire in contexts such as ours post-war. Whether such a deep state, if in fact it does exist, would respect the wishes of the electorate in the way that parties however authoritarian in the past have done is therefore a proposition that is yet to be tested. Would it willingly acquiesce in the demolition of the very institutional lynchpin upon which it rests? The irony of course is that for the deep state to show its hand, the common candidacy must actually win the next presidential election. This is emphatically not a reason why democratic change should not be attempted in the way the NMSJ and its ‘rainbow alliance’ seeks to do. This is an effort and an initiative that must be supported by anyone who wants to see peace, order and good government restored in Sri Lanka. It is merely to sound a word of caution about a scenario that we have never confronted before, but may arise, if the democratic revolution that is envisaged sees the light of day.