Neville Ladduwahetty, courtesy of The Island 28 November 2011 where the title reads “A reality check on the common candidate’s pledges”
The coalition that Mr. Sirisena represents has diverse interests. The formulation of the new Constitution has to be undertaken by this diverse group. Therefore, it would be reasonable to expect the process of formulating a new Constitution to take more time than the 100 day time frame he has pledged if he is to repeal the Executive Presidency. This was the case too with others who ran for this office and who had pledged to repeal the Executive Presidency.
The intended nomination of Mr. Maithripala Sirisena as the common candidate of a coalition to challenge President Rajapaksa at the forthcoming Presidential Election represents a coalition of political objectives and aspirations. Despite claims by some that there is a need to change the current political culture in the name of good governance, law and order and corruption, it has to be granted that others seem not to be driven by such prospects, but by the raw thirst for political power that has evaded them for some time, and yet others by the prospect of seizing this opportunity to further their political aspirations.
This collection of coalition forces have zeroed in to repeal the Executive Presidency as the most significant of its common goals. However, in the pursuit of this endeavour, it must be appreciated that repeal of the Executive Presidency being one of the fundamental pillars of the Constitution, cannot be achieved without introducing concurrently, an alternative political formation as required by Article 82 (2) of the Constitution.
This Article states: “No Bill for the repeal of the Constitution shall be placed in the Order Paper of Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution”.
The above Constitutional provision requires the yet unnamed coalition to format a new Constitution to accompany a Bill to repeal the present Constitution since the Executive Presidency is a “fundamental component” of separation of powers that the 1978 Constitution embodies. If the Executive Presidency is eliminated the Executive functions of the People need to be assigned elsewhere. This is so fundamental to the 1978 Constitution that its repeal would amount to a repeal of the whole Constitution. In the absence of a clear indication as to the shape and form of what the new Constitutional provisions would be, it is unrealistic to expect the electorate to support Mr. Sirisena at the forthcoming Presidential election. Anyone who votes for Mr. Sirisena would be doing so in the misguided hope that the unknown would be better than what currently exists.
MECHANICS of COALITION POLITICS: The coalition that Mr. Sirisena represents has diverse interests. The formulation of the new Constitution has to be undertaken by this diverse group. Therefore, it would be reasonable to expect the process of formulating a new Constitution to take more time than the 100 day time frame he has pledged if he is to repeal the Executive Presidency. This was the case too with others who ran for this office and who had pledged to repeal the Executive Presidency. It was not a case of reneging on a pledge, but rather the practical inability to formulate an acceptable alternative that would have the backing of a 2/3 majority in Parliament. Therefore, however well intentioned Mr. Sirisena may be, the practical impossibility of formulating a new Constitution that is acceptable to a 2/3 majority in Parliament is the reality that he has to confront.
Furthermore, Mr. Sirisena would, if elected as the Executive President continue to function as such. And whether Mr. Ranil Wichramasinghe could be appointed Prime Minister would depend entirely on the composition of the Parliament in case of the election of Mr. Maitripala Sirisens as President. If the composition of the Parliament is such that Mr. Wickramasinghe does NOT command the confidence of the majority of MPs, he cannot be appointed the Prime Minister.
The 2/3 majority required to repeal the Executive Presidency could only be brought about by the crossover of over of 80 plus members joining the current 65 in the Opposition. Since most of the 80 plus crossovers would be from the SLFP, the SLFP would be the rump in the coalition. In such an eventuality, Mr.l Wickramasinghe would not be in a position to command the confidence of the coalition in Parliament. Under the circumstances, for Mr. Sirisena to pledge that Mr. Wickramasinghe would be appointed the Prime Minister appears to be another wish he cannot promise to fulfill.
If on the other hand, the current Parliament is dissolved soon after Mr. Sirisena is elected President, there is every possibility that no single political party would secure a 2/3 majority. This is evident from the fact that even after militarily defeating the LTTE and restoring the territorial integrity of the country, the UPFA as a coalition could not by itself secure a 2/3 majority at the 2010 election. In view of this reality, to expect a 2/3 majority at a Parliamentary election in the event of Mr. Maithripala Sirisena becoming President is not to realistic. Therefore, the reality is that securing a 2/3 majority to formulate a new Constitution and have it passed by Parliament as well as to concurrently repeal the existing Constitution presents a challenge that is near impossible to overcome. It is the acknowledgment of this reality that the voters of Sri Lanka have to accept.
As long as an alternative to the current Executive Presidency remains on the drawing board, Mr. Sirisena would, if elected on January 8, 2015, continue to function as President under the current Constitution. Mr. Wickramasinghe’s future as Prime Minister on the other hand would depend entirely on the composition of a transformed Parliament made up of crossovers, or even a newly elected one. The end result would be that the status quo would remain. It is just as well, because it would be impossible for a new Constitution to balance the countervailing aspirations of the North with the security concerns of the South. In view of this reality, the only pragmatic option would be to reform the existing Constitutional provisions, starting with Electoral Reform and the introduction of a 19th Amendment that contains the key features of 17th and 18th Amendments.
RECOMMENDATIONS: The events of the last week have demonstrated a need to acknowledge that bread alone is not enough. While the government has performed exceptionally well in regard to post-conflict development, restoration and reconstruction, there is a need to address governance issues as well. In this connection, the government should seriously attempt to do the following:
- Introduce Electoral Reform while it still has the 2/3 majority as demonstrated during the Budget debate. This measure by itself would minimize violence during elections and contribute immeasurably to meet the democracy deficit it is being accused of.
- The President should initiate action to repeal the 17th and 18th Amendments and introduce a 19th Amendment that retains all the key features of the 17th Amendment while revising the composition of the Constitutional Council to a workable form with one exception; that being to include the “No Term Limits” feature in the 18th Amendment. This is a democratic feature that would give the people the opportunity to make the choice rather than restricting their options. The common malady with the two term option is the tendency to address issues that could be accomplished during their period in office. Consequently, long term issues are neglected; a perspective vital at this stage of Sri Lanka’s development.
The current administration should implement both recommendations before its 2/3 majority evaporates. It would in the process not only consolidate his position as President but also dent the challenge presented. The foray by Mr. Sirisena into the Presidential race is bound have an impact on forthcoming Parliamentary elections to an extent that 2/3 majorities even for his coalition may not be possible. Therefore, the President should seize the moment and seriously consider the recommendations suggested.
CONCLUSION: History of coalition politics has shown that the process of Constitution-making is an endless process in the absence of a single minded coalition as was made clear in 1972 and 1978. Since such formations are not likely to be in the near future all that would be achieved by the election of Mr. Sirisena as President would be “regime change”. Perhaps this was all what this exercise was meant to do and nothing else. But with the right strategy, even well crafted efforts to destabilize could be exploited to advantage.