Presidential Election 2015; The Political Gamble

Eighth of January will be one of the most important dates in Sri Lankan politics as Sri Lankans gather around polling stations to choose a candidate for the highest office. The stage is all set for the fiercest battle ever. In the midst of crossovers which are affectionately named as ‘jumping from one party to another’ surpassing the standards of Olympic level high jumpers, heated political talks and never ending violence and show of power, the whole Sri Lankan society has gone into some form of dizziness or a political ‘coma’ blinded by the exquisite campaigns of both the common opposition and the governing party. Just get rid of the heated popular political extravaganza for a minute! What is your true notion of the presidential election? What is your choice and what do you expect from the newly elected president?

Do Sri Lankans need an election at the first place? This election was plagued by controversy even at its inception. Former Chief Justice Sarath Nanda Silva had pointed out that the incumbent president can’t call for another election at this time and he can’t seek another term as he becomes unqualified for that with the swearing-in for his second term in January 2010 but with the backing of the full-bench of the Supreme Court the President has proved his legitimacy for calling an election. [This issue was discussed in a blog post of this writer]. Even though the President skillfully evaded the legal barriers a moral question is before him for the reason why he seeks another term just after 4 years. It is apparent that the progress of the previous election manifesto was non-existent. Even according to the Sri Lankan political standards by which the ability to stick to political promises was not looked as a priority in when choosing a candidate in the election, the incumbent President cannot be considered as a person who has done what he promises except the defeat of the LTTE militarily. With his marginal win (ironically it was the LTTE who has helped him to win the election in 2005 by ordering the people in north and east to boycott the election) in 2005, he kept his most important promise. Although, the incumbent President and his defense secretary was not the sole duo to be hailed as heroes, their contribution and the political leadership was outstanding. The history should give them the credit in leading the vanguard against terrorism and getting Sri Lanka rid of her gravest problem partially. The fame it had brought the President was reflected in 2010 election in which the President had sought another term with the promise of developing the war-ravaged nation.

There were allegations of misuse of the ability to call for an early election just after 4 years in to the Presidential term. Since it was introduced in the 3^rd amendment for the Constitution, it acted as an insurance policy for further holding into power for a ruler with a degrading popularity. For example, a newly appointed president can work progressively for 4 years enacting popular reforms while gaining support of the majority of the people and run for re-election after that and secure another 6 years at the office. Combined with removal of the limitation to be appointed as the President, this deadly cocktail acts as a recipe for an authoritarian leader to forever hold in to power. Change of the governments is an essence of democracy. With the ever powerful Executive Presidency and the President of the country being the party leader of the winning party, the Parliament comes under the indirect control of the President. It will hinder the balance of power and lead to de–facto dictatorship. Although, frequent change of powers may cause problems regarding long-term policies, it will be good for a democratic country. The exact opposite happens in Sri Lanka right now.

There are two main candidates; the incumbent President Mahinda Rajapaksha from the UPFA and Maithreepala Sirisena, the former Minister of health, the former general secretary of the SLFP from the common opposition. Mr Rajapaksha standing strong as ever, winning every election with an overwhelming majority. His main political slogan was ‘A Secured Nation’. Development is the priority in his election manifesto. He surely has a bunch of aces up in his sleeve. Big development projects funded by Chinese loans are the talk of the town. With new harbors, air-port, and expressways, infrastructural development at least reached to major cities. Foreign investment in the real-estate sector has increased. Did the common man have any good effects of this massive development? There is no point in boasting the economic growth solely based on the GDP Per Capita. Inequality of the distribution of wealth has to be considered. If the nation’s wealth is gathered in the hands of few, it is not a good economic model. Of course, it is impossible to equally distribute the wealth in this capitalist market economy but at least adequate wages and concessions for necessities should be implemented. The incumbent government seems to fail in those two areas. They not only lack a method of justified distribution of wealth but also they use the prices of common amenities as a bargaining chip for votes. Major entities of a social welfare model such as health services, education and essential good’s distribution seem to be in disarray. The reason is ether inefficiency in managing those services or the lack of funding for it. The opposition accused the incumbent President of controlling nearly half of the nation’s wealth and neglecting essential but non-lucrative areas such as social welfare, education etc. Rajapaksha neglected two key issues; reforms for the executive presidency and solution for the communal disharmony which resulted in bloody civil war. The minorities have virtually left off from the main political sphere. With all the broken promises, unhealthy development projects and corruption, Rajapaksha’s strategy is to dazzle the public in a sense of security under the arms of Rajapaksha. In return, the people should let Rajapaksha to be powerful as ever. Is that a working strategy in the long run?

The main opposing candidate is Maithreepala Sirisena. It is true that he was battered by the Rajapaksha turned politicians from the UNP during the ‘great-crossover’ which made the UPFA government to secure 2/3^rd majority. It is surprising that none of the Rajapaksha regime knew about his decisive political move. When there was a vacancy for a common candidate, Sarath Nanda Siva, Shirani Bandaranayke and Chandrika Bandaranayke came up as suitors but not Mr Sirisena. He who seems to be with clean hands (at least comparatively clean) is the best bargain for the common opposition ever. His election manifesto has pointed out two key things one is the abolition of the post of Executive Presidency and make the executive responsible for the parliament. The second is addressing corruption. Although there are other petty-promises regarding the right of information, education and social welfare, the sheer idea of curbing the ever powerful executive presidency makes the ‘Sirisena’ package appealing to the majority of educated middle-class Sri Lankans while the working common man might be attracted to the elimination of corruption and re-directing nation’s wealth back to social services.

The public opinion is still fluctuating around the two candidates. The main question for the public who vote for Maithreepala is can he keeps the main two promises he has given. Of course, he can’t do it alone. It all rested in the hands of the main opposition parties to summon up the support in the legislation to implement in changes to the presidential system and reenact the 17^th amendment and other progressive legislations. Maithreepala is to be acted only as the game changer not the person who delivers promises he made. Luckily the joint opposition has a plan; a national government comprising of main opposition parties. If Maithreepala wins the election, a power transformation towards opposition in the parliament is inevitable thus it is not impossible for the opposition with the help of the UPFA members who support Maithreepala’s cause to inflict the desired changes.

Finally, it all comes to the people as in any democratic country. The stakes are very high this time. The people have to make their biggest political gamble in recent times, a gamble which would pay off a great deal and which would ruin their expectations for the generations to come if failed. Public distrust towards the opposition can be understandable when looking at the composition of the Maithreepala supporters. With so much diverse ideologies ranging from Sinhala Buddhist chauvinism to multiculturalism, neo-socialism to capitalism can this loosely-coupled coalition survive in the legislature? In political moves, Sri Lankans always try to stay in their comfort zones preferring relative safely to new and untested ideologies. “Known devil is better than the unknown saint” is the notion of many.

It is really difficult to predict the outcome of this election but when our nation is at crossroads, the people has to make a choice; whether to continue living under the wings of Rajapaksha or to sail to uncharted territory with Maithreepala.

Read More

The Lost Opportunity to Tame the Tyrant; 17th Amendment to the Constitution of Sri Lanka

The most controversial political office in the history of Sri Lankan politics is unarguably the post of Executive Presidency. It was established by the Second Republican Constitution in 1978. The mastermind in implementing that, President J.R.Jayawardena wanted a stable government with a firm executive free from the clutches of the legislature to rapidly develop the country. At least that was his initial plan. Now more than four decades later almost all the political experts agree to the fact that the Executive Presidency has lost its initial purpose. It has drifted from the role of an efficient ruler into a tyrant.

Failed promises and election manifestos to abolish the executive presidency has been in the political arena for a long time. Many presidential candidates promised to abolish it but later stick it to the office they promised to abolish. Recently, the common candidate of the opposition promised to abolish this office within 100 days. Even before the declaration of the presidential election, the opposition parties, even parities from the ruling coalition government and civil societies were lobbying for an abolition of the Executive Presidency If not for a Constitutional Amendment to limit its power. Prominent Buddhist monk, Ven Maduluwawe Sobitha Thero had taken an early lead in shaping the public opinion regarding this issue. Initially, Sobitha Thero was not convinced of abolishing that post entirely. He wanted the incumbent president not to go for an election but to amend the constitution, to at least limit the tyrannical powers of the executive.

Even long before the election of the incumbent president on whose term the powers of the executive was abused to the eternity, according to some political experts, Sri Lanka had a mechanism to somewhat limit the power of the executive in appointing members to independent commissions. It was the 17^th Amendment to the Constitution. With that amendment, presidential control on the public service, judicial service, elections and Finance was drastically limited. Although the amendment was introduced in October 2001, it was never fully implemented or exercised effectively. Finally it was all but repealed by the 18^th Amendment in 2010.

This article will analyze the 17^th Amendment and how it controls the executive.    

The main purpose in enacting the 17^th Amendment was to limit the presidential powers in appointing the members of the independent commissions. It is obvious that if they are to be appointed solely on the discretion of the president, the independence of those commissions would be compromised.

Constitutional Council

Composition

The Constitutional Council was the epicenter of this amendment. It consisted of (a) the Prime Minister (PM) (b) the Speaker (c) the Opposition Leader (d) a person appointed by the President (e) five members appointed by the President on the nomination of both the PM and the Opposition Leader (f) one person nominated by the other political parties. Out from the five members appointed by the President, three should be from the minority communities. Those members in d, e and f category should not belong to any political party. It was a good chance that those members are from the intellectual faction of the society. When removing those, the PM and the Opposition Leader both has give consent. This prevented arbitrary removals by the President.

Even if we assume that the President’s party controls the majority and the government and the PM is from that party, the President can’t appoint the people he likes. The factions of the Constitutional Council don’t sit in the favor of the President. The appointed members by the PM and the Opposition Leader (minority communities have 3 seats) will be independent and may stand up to the appointment which are unfavorable to them.

In a hypothetical situation; typical constituent of the Council

President’s Side	Others
PM	Opposition Leader
Speaker	Minority party nominee
One nominated member by the President	5 X member nominated by both PM and Opposition leader
3	7

Working of the Council

Council makes appointments according to two methods

41B: Council recommends personnel for certain independent commissions. It’s only upon the Council’s recommendations that the President can appoint them.  Arbitrary removal is prevented by requiring the consent of both the PM and the Opposition Leader. Recommendations should be approved by more than 4 members of the Council.

The independent commissions;

• ·         The election commission
• ·         The public service commission
• ·         The national police commission
• ·         The human rights commission
• ·         Bribery commission
• ·         Finance commission
• ·         Delimitation commission

41C: President can appoint them by only after the Council has approved the appointments. These appointments included key persons in administration

• ·         Chief Justice and the Judges of the Supreme Court
• ·         The President and the Judges of the Court of Appeal
• ·         Members of the Judicial Service Commission except for the chairman
• ·         The Attorney General
• ·         The Auditor General
• ·         The Inspector General of Police
• ·         Ombudsman
• ·         The Secretary General of Parliament

The Constitutional Council was made immune to judicial proceedings other than proceedings on the article 126. It is clear to say that the Constitutional Council is the stepping stone for the appointment for all the key administrative and judicial personnel. Since the Constitutional Council can’t be handled by the President according to his discretion, the appointments for the commissions will also be independent. This is much needed one because all the key governmental positions are now handled by the people appointed by the President according to his will without referring to any advice from anyone whatsoever. Public service and Judicial service was hit severely. The prominent example was the appointment of the Former Attorney General who was the head of a government department  to the position of Chief Justice(CJ) which needed to be as independent as independent can be!!! Government’s chief law officer who represented the government in litigation can be assumed to have an inclination towards favoring the person who appointed him. This position clearly illustrated by the Supreme Court decision on the validity of removing the former CJ.  

54: Public service commission was appointed by the Council. It takes the power of the president to appoint, remove, transfer, promote and take disciplinary actions. Heads of the departments and policy making was still vested in the cabinet. Military commanders are appointed by the President upon his power of the commander-in-chief of the Armed Forces. Even with the above limitations, the Public Service was controlled by an independent commission appointed by independent Council. That was a progressive move for an uncorrupt public service. Interference with the Public Service Commission was also deemed to be a punishable offence making political interference impossible at least theoretically.

103(1): Election commission was appointed by the Constitutional Council with the aim to enforce free and fair elections and referenda. It can prohibit the use of public property for election purposes. It can appoint a management for government media corporations such as Sri Lanka Broadcasting Corporation and Sri Lanka Rupavahini Corporation if they failed to comply with the election commissioner’s guidelines thus preventing the use of government media inappropriately. The wide powers of this commission extend even to the deployment of Police and Armed Forces personnel. All of the above to ensure the right of free and fair elections. Since the commission was to be appointed by an independent Council, the members of the commission were also deemed to be independent.

National Police Commission and Judicial Service commission were also appointed by the Council with the aim of independently controlling the police and judicial service respectively. Specially, for the enhancement of the rule of law of a country, the need of an independent judicial service is eminent. The body that controls the judges should also be independent. It all comes to an Independent Constitutional Council free from the control of the President to appoint the Judicial Service Commission.

The 17^th Amendment was enacted in 2001 it was operational for almost 9 years until it was repealed by the 18^th Amendment. We should have the question of whether the independent Constitutional Council was effective in those 9 years. Unfortunately it had become the victim of the partisan politics that plagued our country since the independence. There is a fundamental flaw in the Constitutional Council. In appointing members for the Council, agreement between the Prime Minister and the Opposition Leader needed to be made. What if they couldn’t reach for an agreement? That halted the whole process. Also nothing could be done for the non-inclination of the President to accept the recommendations of the Council. Since the President is immune to judicial inquiry, no proceedings could be initiated against the President. The only remedy was bringing an impeachment against the President according to the Article 38(2) of the Constitution alleging intentional violation of the Constitution but it is apparent that it is easier for a camel to go through the eye of a needle than for the legislature to impeach the President with the existing constitutional provisions.

Until it is repealed by the 18^th Amendment, although the 17^th Amendment was a part of our constitution, the Constitutional Council was poorly performed due to the tug of war between the government and the opposition parties. The inherent flaws of appointment procedure and the lack of provisions to tackle the insubordination by the President for the recommendations by the Council rendered the 17^th Amendment useless.

Now the political arena was full of promises to clip the wings of the tyrant executive and even to restore a prime minister who is responsible for the parliament. i believe that, right now there is no hurry to completely reverse the Executive Presidential system or make a complete constitutional reversal but some amendments like 17^th needed to be implemented. It will be important not to repeat the same mistakes of the 17^th Amendment. Controls to the Executive Presidency and remedies if the President did not comply to the recommendations made by the constitutional amendment can be incorporated. Impeachment procedure of the President will also need to be changed.

It is far easier and less risky to tame the fiery dragon than to kill it and recruit another. It is not wrong to say that there are some advantages of having an Executive President as well. It will be a great political victory if all of us can find a way to keep the benefits of the Presidency while removing the tyrannical aspects of it.

Read More

Presidential Election 2015: The Question of Being Elected for the Third Term

Today, election fever has taken over the whole country. It is hard to find anyone not interested in upcoming presidential election. This presidential election is one of the most critical presidential elections in Sri Lanka only second to the 2005 election. This election was controversial even before it began. There were doubts about the authenticity of the election and the ability for the incumbent president to call and participate in it based on the interpretation of an amendment of the constitution.  Now, although that problem is solved, it is important to know the fundamental question relating to that anomaly so as a politically inclined citizen you may be able to grasp the main flaw of the executive system in Sri Lanka.

Sri Lankan president Mahinda Rajapaksha called a presidential election after just four years in to his second term. The general public who had anticipated this as a political move to win another election by Mr Rajapaksha, before his popularity fades away. No one tried to question the legality of this until suddenly former Chief Justice Sarath Nanda Silva came with a controversial point suggesting due to the date of the introduction of the 18^th amendment to the constitution, Mr Rajapaksha, who was elected by  the people for the post of the Executive president twice, can’t contest for this election.

President Rajapaksha has amended the constitution with 2/3^rd majority on 9^th September 2010. Apart from enhancing the presidential powers and shredding independent commissions, it amended the limit on number of times a person can be elected to the post of president by the people.

The argument from the opposition including former CJ and the president of the Bar association was that since Mr Rajapaksha was elected for the second term by the people before the enactment of this amendment , the freedom to be elected for the next term will not be available to him. The opposition also pointed out that since this amendment was hastily prepared, the framers of that forgot to make the article 2 removing the limitation retrospective. If that is a non-retrospective one, how can that be valid to situations that already occurred before the enactment of this amendment.

President Mahinda Rajapaksha was elected for the second term on 27^th January 2010. This was way before the enactment of the 18^th Amendment. Technically, according to the 31(2) which was still valid when Mr Rajapaksha got elected for the 2^nd term, he was unqualified for the candidacy for further term. Eighteenth amendment being a non-retrospective legislation, prevents the new conditions taken in that amendment to be applied in to the unqualified Rajapaksha. This was the main point brought by Sarath Nanda Silva and the opposition.

They immediately went into lobbying for Rajapaksha’s inability to enter into another election. Since, he is also disqualified from calling an election after 4 years; they argued that this election was invalid. When Mr Siva was preparing to bring this matter to the court, Rajapaksha himself asked the opinion of the Supreme Court with the power granted to him by the article 129 of the constitution. Constitution has given its opinion backed by a full-bench affirming Rajapaksha’s right to call up the presidential election and they also affirmed his right to get elected for the 3^rd term.

Now that episode was over. Mr Rajapasha and his rivals are preparing for a fierce battle for power. Presidential media campaigns are in the full swing. Although the opposition, former CJ who first raised the legal point and the Bar association went silent after getting the opinion of the Supreme Court against their favor, as political citizens we have a right to know truth behind this allegations and the constitutional interpretation regarding this issue.

Section 31(2) of the 1978 imposes the limitation of number of times.

31. (2) 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.

By the section 2(1) of the 18^th amendment, it was repealed.

Sri Lanka (hereinafter referred to as the “Constitution”) is hereby amended in Article 31 thereof, as follows:—

(1) by the repeal of paragraph (2) of that Article; and

(2) in paragraph (3A) (a)(i) of that Article—

(a) by the substitution for the words “at any time after the expiration of four years from the commencement of his first term of office” of the words “at any time after the expiration of four years from the commencement of his current term of”; and

(b) by the substitution for the words “by election, for a further term.” of the following:— “by election, for a further term: Provided that, where the President is electedin terms of this Article for a further term of office, the provisions of this Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be so elected.”

When we analyze the above timeline, the main divisor of that is the enactment date of the 18^th Amendment, 9^th September 2010. Before that the existing law disqualify anyone who was elected twice form contesting again. Until the 8^th of September 2010, Mahinda Rajapaksha who was elected for the second term in January 2010 was disqualified from entering into an election. The controversial question was what will happen to the law after 9^th of September 2010?

Article 2(2) of the Amendment is clear. With the substitution of the words, the incumbent president Rajapaksha can call for election after 4 years in to his second term. Regarding the 2(1), a different story immerges. Rajapaksha was disqualified from being elected after his second term commenced in January.  Will that position be changed with the enactment of the 18^th Amendment without retrospective legislation? This is the critical question to which we need to answer

The answer can be found not in the date of the enactment but in the declaration date of the 2015 presidential election. Rajapaksha declared the election on 20^th November 2014. Till that date, president was not decided to be elected by the people. We need to look for the disqualification on based on that date not the date of his second term in January 2010. It is obvious that the law existing in November 2014 doesn’t have the limiting factor of Article 31(2) because it was repealed by 18^th Amendment.

According to the opposition, the president will be automatically disqualified when the was elected for the 2^nd term but the question of whether he can or can’t be elected (declaration of next election) should be at least 4 years from the date of the second term. Until that the question of 31(2) was not to be arisen. When that finally comes in 2014, the limiting factor was already gone for more than 3 years giving Rajapaksha the legal authority to call an election and to contend for the presidency.

The Supreme Court, on full bench affirmed Mr Rajapaksha’s right to call for an early election and to be elected by the people. Although, the legal matter is settled, there is the question of morality of this move. It is clear that Rajapaksha was trying to hold on to power as long as possible. The decision to remove the limitation on a third term was seen as an enhancement of democracy even by the former CJ Mrs Bandaranayake, it is ironical that she who was supportive of Rajapaksha’s plan becoming a victim of his wrath.

Now it seems to be a waste of time to go through the validity of 18^th Amendment’s article since the issue raised above will never be raised again but it is important to see how the leaders go through the holes of the law and manipulate the supreme law of the country to forever hold on to power.

With the presidential election coming, the nation is at crossroads. We have to choose either political stability with clandestine democracy or a frail promise from a ragtag bunch of party outcasts to change the executive presidential system. The choice is at the hands of ordinary people who don’t know much about the political stigma attached to this election. Will the common man make the correct choice? What are the repercussions of their choice?

“The answer, my friend, is blowin' in the wind, The answer is blowin' in the wind"

Read More