Constitutional Melee: Dayan vs Rajan, Sanjana, Asanga and the Ethical Hosts

Both lawyers and political scientists have essayed interpretations of the present constitution: a BATTLE  rages in front of a yawning GOALMOUTH.  I present some samples here 

A = Rajan Philips … vs the President’s treacherous coup so to speak

B = Dayan Jayatilleka  — for the political legality of the act

C = Sanjana Hattotuwa — versus the goals spurring the act and despondent about the populist anti-democratic weight of popular opinion within the social media in Sinhala favouring the Presidential coup

ALL  adding to the plethora of views on the political struggle for power ….. and thereby  expanding the numbers in the MELEE in front of the wide-open GOAL ……….

….. while the principals are no doubt visiting the kattadiyas and other facilitators  of shrines of Mahason, Kannagi, et cetera in notorious/beloved spots in various parts of the island

Pic by Juliet Coombe

A = Rajan Philips: “Continuing uncertainty, conflicting claims and counter-claims,” lsland, 3 November 2018

As the country heads into Week 2 of the Sirisena Act, the only certainty is continuing uncertainty. There are conflicting claims and counter-claims from the two sides of the parliamentary divide, and even from the same side. It is not clear whether Week 2 will bring any conclusive answers to the questions that have emerged and keep emerging after President Sirisena embarked on his clearly unprecedented political adventure. The Sirisena Act is unprecedented because never before has a Prime Minister been dismissed without a dissolution of parliament. It is also patently unconstitutional because a primary purpose of the 19th Amendment, adopted virtually unanimously by parliament and claimed by President Sirisena to be the greatest achievement of his presidency, was to specifically rescind the utterly arbitrary and unparalleled powers of the President (in the 1978 Constitution) for removing the Prime Minister and for dissolving parliament after one year of a general election.

The constitution as it now stands precludes the President from removing the Prime Minister at her or his whim, and from dissolving parliament within four and half years of a general election unless requested by a parliamentary resolution passed by two-thirds of its members. The two limitations underscore the separation of powers and the necessary balance between the executive and the legislature. Even in purely parliamentary systems the old advantage given to sitting prime ministers to call for dissolution at will has been purposively removed. In Britain a resolution by parliament with a two-thirds majority is now required to dissolve parliament within five years of a general election. The 19th Amendment is apparently modelled on that.

With neither party to the dispute asking the Supreme Court for a ruling (except for one public interest petition on the proroguing matter), the constitutional question triggered by the Sirisena Act is doomed to remain unanswered. The assertion that it is up to parliament to decide leaves open the precedent for a similarly impetuous act by a future President. Perhaps it is expedient now for either side not to ask the question and risk an unfavourable answer. It is quite possible that even if asked, the Court may just wash its hands off and say that it is up to parliament to decide. The judiciary might even mutter under its breath: ‘a plague on both your executive and legislative houses’. That would be a very fair obiter.

The non-committal position of the Attorney General also speaks volumes to the unconstitutionality of the Sirisena Act. And he is not without precedent. One of his more illustrious predecessors, Victor Tennekoon, somewhat similarly recused himself from appearing for the government in the first Constitutional Court case in 1973. Interestingly, the AG’s statement came a day after Minister Mahinda Samarasinghe had literally pulled a fast one and stolen a headline story with a purported legal opinion from the Attorney General’s Department in support of the President’s action.

The question of constitutionality will again emerge if the current standoff were to continue and if neither side is able to demonstrate a majority in parliament. The constitutional way out would be for the otherwise divided parliament to come together and muster a two-thirds majority support for a resolution asking the President to dissolve parliament and call for a general election. Of course, nothing prevents our President from enacting Act II – to dissolve parliament and call for an election, damn the 19th Amendment. But will the Commissioner of Elections, who has more backbone than all the spines in parliament combined, go along with a patently unconstitutional presidential act? He might either refuse to comply, as he should under the Constitution, or seek a remedy out of the mess by asking the Court. Finally!

Interestingly, the appetite for an election is not uniform among the current MPs. The hungriest group of course is the SLPP/JO contingent. The JVP is also calling for an election. The UNP/UNF has also implicitly agreed to going for an election in case it is not able to show majority support in parliament. The TNA may prefer a general election to a provincial election to avoid a home and home match with its one time Chief Minister CV Wigneswaran. The stranded outliers are Sirisena’s SLFPers. Not quite knowing whether they are coming or going in the new government, the chiefs among them lead by Nimal Siripala de Silva and Mahinda Samarasinghe have managed to come together at a press conference and stipulated that the Parliament cannot be dissolved even if the new government is defeated on a Vote on Account? They know they are safer in an extended parliament than in facing the wrath of the electorate. Where does that leave their only provider, the President?

The Loneliest Figure

Some of us have been keeping a running scorecard to monitor the shifts in party standings after Sirisena pulled the curtain on Wickremesinghe and started his own Act. There hasn’t been a deluge of any kind but significant leakage from the UNP/UNF to the other side. When President Sirisena began his ‘Act’, the party tallies in parliament were: UNP/UNF 107 (including the Speaker), SLFP/UPFA/JO/CWC/EPDP 96, TNA 16 and JVP 6. Since then there have been six defections from the UNP/UNF and one surprisingly from the TNA, pushing the JO/UPFA tally to 103, or two more than the UNP/UNF total now reduced to 101.

If there are no reverse defections to the UNP/UNF, the new government side will claim a psychological southern victory – that they have a majority without the TNA’s support. It is for this reason that Mahinda Rajapaksa has reportedly asked the TNA leader to stay neutral in their (southern) home and home contest. At the same time Namal Rajapaksa is also reported to be courting individual TNA MPs to defect. And he seems to have succeeded in teasing out at least one so far. The Rajapaksas are a clever bunch and are playing a watchful game.

They have left the grandstanding to Ranil Wickremesinghe and Maithripala Sirisena and are quietly taking control of the key portals of the State. No one from their side, other than Mahinda Rajapaksa, has coveted or received a cabinet position. Cabinet positions are reserved for SLFP doubters and UNP defectors. Their supporters are also alleged to have had a hand in manipulating the stock market to keep rallying in the midst of all the political unravelling. They are even keeping their intra-political lines of communication publicly open: to wit, the much reported meeting between Ranil Wickremesinghe and Gotabhaya Rajapaksa. The meeting apparently lasted only seven minutes, but its symbolism will be much longer lasting. It is also reported that Mahinda Rajapksa vetoed a suggestion by the President to forcibly evict Ranil Wickremesinghe from Temple Trees.

The loneliest figure in this continuing drama of uncertainty is also the most powerful person in the country: President Sirisena. Deservedly so! For who would have thought that what began as a pleasant political surprise in January 2015 would turn into a massive presidential misadventure in October-November 2018? Who would have thought Maithripala Sirisena, who double-crossed Mahinda Rajapaksa and joined forces with Ranil Wickremesinghe in November 2014, will on the fourth anniversary of that historic defection spurn Wickremesinghe for Rajapaksa in a show of political tantrum? Who would have thought that by firing Ranil Wickremesinghe, Sirisena would transform an icon of establishment inertia into a reluctant symbol of popular resistance? Who would have thought that in the same fell swoop, Mahinda Rajapaksa would be stripped of his Jana Balaya protest mantle and saddled with the unpopularity of propping up a rotting government? And who would have thought that the Constitution JR Jayewardene crafted so egotistically to provide stability and strength to the political order, would be wrecked so easily to end up providing neither stability nor strength but constitutional confusion and parliamentary paralysis?

Embedded in this confusion and paralysis are conflicting claims and counter-claims by all sides in the country’s political universe. Media outlets are publishing contradicting news reports of purportedly same events or stories. Political spokesmen from the same side are contradicting each other in the same news conference. You can imagine the message free-for-all in the social media, the main domain of ‘alternative facts’. On Thursday, there was a fleeting period of certainty that parliament would be meeting tomorrow. Even the markets responded with a spontaneous spurt; the rupee stood still and for a moment even rose a bit. Both went down as markets closed on Friday and the uncertainty for Week Two took a grip on the second weekend of the political theatre.

The day of reckoning seems pushed back to the prorogued date on 16 November. There are stories that Speaker Jayasuriya is trying to get parliament reconvened on Wednesday, November 7. What will it do if and when it meets? Who will be sitting where? Will there be a new Speaker – although the new government has apparently informed Mr. Jayasuriya that they would want him to continue as Speaker? Gracious, as well as smart – to neutralize a potential UNP vote! Will there be a ceremonial address by the President? Will there be a Vote on Account? Or will there a Vote of Confidence, or No Confidence – and on whom? Even an Erskine May or an NM Perera would find it difficult to find a procedural way out of the tangled web that President Sirisena has so childishly weaved. And no one is looking to him to find a mature way out of the mess he has created.

***  ****

B =Dayan Jayatilleka:  “The logic of the Republican Constitution and the relative autonomy of the Presidency: A political science perspective,” Island, 4 November 2018

“Sovereign is he who decides on the exception” – Carl Schmitt –

At the heart of the current debate is the issue of national and people’s sovereignty, on the one hand, vs. the supremacy of the legislature on the other. This debate is based on a monumental misperception.

There is a complete misunderstanding of the Constitution. Some inhabit a mental universe in which Sri Lanka has a Westminster model, i.e. a parliamentary system or preponderantly parliamentary of government. It does not. It has a mixed system which is predominantly an executive Presidential system. The dice is still laden in favour of the Presidency.

It is very true that the 19th amendment imposed certain fetters on the Presidency. However, the 19th amendment is not a new Constitution. The 19th amendment is by definition, a modification of the existing Constitution. That modification is a structural change, not a system change. It is delusional and absurd that some behave as if we have a new Constitution—a project which was indeed on the neoliberal agenda but has so far failed. The political or state system—the model– is eminently classifiable under the category (or ‘chapeau’, in diplomatic language borrowed from the French) of ‘Presidentialism’. “The Gaullist System in Asia”, as Emeritus Professor of Political Science A. J. Wilson defined the 1978 Republican Constitution in a 1980 volume, still remains as some credentialed critics termed it at the time, Gaullist-Bonapartist, though with important modifications which make it neo-Gaullist or quasi-Gaullist.

The Constitution has to be viewed holistically. The totality is greater than the part. A Constitution cannot be reduced to a single amendment or viewed through the prism of a single amendment. For instance, the Constitution is irreducible to and cannot be perceived through the keyhole of the 13th amendment of 1987. As with the 13th amendment so also the 19th amendment.

The 19th amendment has modified but not abolished the logic of the 1978 Jayewardene Constitution. The logic of that Constitution is, in the words of its architect, “a strong and stable executive free from the whims and fancies of the legislature”.

While the 19th amendment renders it less free from the whims and fancies of the legislature than it was, the executive still remains above and relatively autonomous of the legislature.

The logic of the 1978 Constitution is that the country is a Republic, which means that the people are sovereign, and the sovereignty of the people, in its executive aspect, is exercised through a Presidency which is directly and democratically elected by the people as a whole, and in which the office of president cannot be held by anyone who has failed to obtain a majority (50.1%) of the popular vote.

This is why the Presidency is placed decided above the Prime Minister: The President is elected by the whole people and is therefore the more authentic agency of popular sovereignty. The executive function is that of making decisions, not framing laws. Framing laws is by the legislature. Making decisions is the function of the Presidency which derives its legitimacy from having been elected by a majority of the people as a whole, unlike others elected on a far more restricted base.

The centre of gravity of that Constitution is the Presidency, not the Prime Minister or the Parliament. One cannot “continue to govern…as per the Constitution”, against the President. Such an attempt is the real ‘coup’. The Head of Government is also the President. The President is not a mere ceremonial Head of State.

To shift from the issue of the Parliamentary arithmetic to that of state power as such, here the legislature remains disadvantaged, irrespective of the 19th amendment. It is here that the heart of political power and indeed the reality of politics itself, lie. No political scientist would confuse the ‘State’ and the ‘Government’. Nor would he/she assume that the two could be placed on par, leave alone envisage a scenario in which in a clash, the Government overrides the State.

If the Government defies the State, the State intervenes to override the Government. The Government is not the State, and is certainly not superior to the State—it merely manages the day to day affairs of the State. It is the state that in the ultimate analysis, determines the Government and not the Government, the State.

The President, as the elected executive, is not only the Head of State and Head of Government, he is much more crucially, the Minister of Defence and the Commander-in-Chief of the Armed Forces.

  ***  ***

C =Sanjana Hattotuwa: “Rajapaksa rising,” Island, 3 November 2019

Extraordinary times, these. Aside from everything already published on the President’s actions, my fear – which has grown since 2015 – is that politics in Sri Lanka amongst the largest vote base is negotiated through and predominantly framed by vicious, divisive commentary and content, robbing electoral processes of vitality and validity. Most of what I’ve done in recent years, written on, championed and studied is around the net effects of ever greater division over social media, and how that, in turn, impacts kinetic, real-world interactions.

This is why the President’s actions are so devastating.

He has, single-handedly and overnight, normalized the illegal, unconscionable and unconstitutional. The immediate effect of this was to render constitutional rule optional instead of integral to and inextricably entwined with democratic tradition – one which Sri Lanka has, even through the worst violence, never once risked or ridiculed in this way. The legacy will be felt for decades hence, if not reversed through Parliament. It will impact everyone, including everyone who volubly cheers on, or is apathetic towards, Sirisena’s actions. Further, the appointment of Rajapaksa has visibly galvanized physically – as awfullyevident in the photos and broadcasts from last week – as well as exponentially over social media, racist, nationalist, xenophobic voices who are amongst the chief architects of and apologists for ethno-religious violence, post-war. Finally, Sirisena has abrogated in spectacular fashion any and all promises around good governance, bringing back into power the very individuals he has publicly and privately, spoken out again, and with good reason. The impact on young voters who supported him and were galvanized by a promise of a different, more decent, democratic political culture, is incalculably devastating.

Revealingly though, the capture and transfer of power, both unprecedented and unconstitutional, hasn’t been met with widespread opposition by the citizenry. My doctoral research affords a unique perspective into these terrible developments. Read the following in light of the brutish takeover of state print and electronic media on Friday night itself, and extending to the weekend, the immediate and complete deletion of all content from the Prime Minister’s official website, the insertion of a photo of Mahinda Rajapaksa on its homepage, pictures of the military and the IGP saluting, exchanging tokens, pleasantries and plans with Rajapaksas, a traditional propaganda machine on overdrive and not a single domestic media channel, paper or platform courageous enough to critically question key individuals involved in the constitutional coup.

Gossip sites, in Sinhala, are the predominant purveyors of political news and opinion. They are by order of magnitude engaged with more than Sinhala mainstream news accounts. English mainstream news sources, quite literally, flatline in comparison. The qualitative nature of content on these sites, this week, fetishized the army, militant Buddhist monks and former members of the armed forces in custody, on trial for murder. Overall, content overtly partial to Mahinda Rajapaksa as an individual, the Rajapaksas as a family and the SLPP as a political party, overwhelmed all other content from political actors over Facebook and Twitter, in Sinhala and English.

The total control of state media led to framing and content that openly celebrated Mahinda Rajapaksa and ridiculed the incumbent Prime Minister, and his party. Over social media, private media partial to the Rajapaksa, with massive numbers of followers and engagement, also engaged in the legitimization of the President’s actions. On social media, several user of Twitter noticed a rapid increase in bots following them, suggesting the activation of investments around what’s called algorithmic propaganda – the use of computational methods to influence public perceptions on social media. On social media, misinformation – the deliberate spread of falsehood – dominated every single Facebook and Twitter account partial to Sirisena or the Rajapaksas.

This included a Photoshopped letter purportedly penned by Ranil Wickremesinghe asking UN Peacekeepers to come into the country – a risible request, but one that even when clearly, officially and repeatedly denied, was engineered to spread virally. Memes generated on Facebook, engaged with and shared by the tens of thousands if not more, celebrated Rajapaksa and often venomously decried Wickremesinghe. I summed it up on October 30, after the quantitative study of hundreds of thousands of posts and the individual, qualitative study of a lesser number, that the content pro-Rajapaksa, SLPP, JO, Sinhala-Buddhist, racist, communal, violently exclusive, vicious, anti-UNP and anti-Wickremesinghe. The SLPP sported an amazing array of self-styled experts on constitutional matters, offering the most ridiculous interpretations and yet by virtue of airtime, broadcast and publication, managed to galvanize public attention.

A rally organized by the UNP, joined by others organized by civil society, barely got any coverage on state media or domestic, private media. The astonishing, anomalous fact that at the end of the week, only China, Burundi and Pakistan had recognized Mahinda Rajapaksa as PM, and every single other bilateral, multilateral entity including the UN, EU and the governments of India, UK, US, Australia, Canada, Norway and others, calling for a restoration of democracy and the reconvening of Parliament, wasn’t reported in domestic media.

The common term ‘echo chambers’ to describe the partisan divides online don’t capture what I observed last week. Pro-UNP or Wickremesinghe supporters or those interested in constitutional rule who were bunched up with this group versus those in favour of Rajapaksa or Sirisena constituted competing frames of contemporary politics at complete, violent odds with each other. Each group is large and growing, but the pro-Rajapaksa group dominates the discourse and framing, by far – supported by algorithms that clearly reward content that the more viciously contentious, is the most visibly viral. The intoxication of engagement hides the toxicity of the exchanges. And very clearly, live video on Facebook now competes with, and very likely far exceeds in a certain demographic, terrestrial TV broadcast. Some of the video streams feature over ten thousand comments.

All this suggests, if nothing else, that the Rajapaksas (greatly aided now by Presidential fiat) have calculated and planned for – with great accuracy and skill –Sirisena’s actions to be judged in the domain of populist politics, and not on the basis of constitutional merit or legality. It is clear from the SLPP’s public rhetoric that they do not want to risk the fragile legitimacy of Mahinda Rajapaksa domestically, and the near-total non-recognition of his appointment internationally, with physical violence. This is why, combined with what has traditionally been an entirely decrepit, elitist and utterly useless communications strategy, at best, from the PM and by the UNP, the Sirisena-Rajapaksa combine has focused so much attention on the media.In what I see today on social media, signature misinformation strategies of certain countries, well-studied elsewhere in recent years, are evident, and clearly used to seed, sow and subsequently reap the benefits of a hyper-polarized polity and society, partial to authoritarianism in the guise of national security, stability, security, safety and economic growth.

Coupled with a purchasing power measured in the millions of dollars, more than equal to the greed of politicians, Basil Rajapaksa’s brilliant political strategizing, Namal Rajapaksa’s rock-star appeal, Mahinda Rajapaksa’s undying charisma, Sirisena’s power and authority extending to the abuse of state resources, the near total control of social media framing and the blanket coverage of misinformation broadly accepted as factual, normal, legally sound or fair, I am not optimistic about a return to or restoration of democracy. We have crossed a Rubicon. I have been repeatedly asked this week as to what the future holds. Frankly, I just do not know, because as of October 26, anything goes. We should all be deeply anxious, apprehensive and angry. Tellingly, only a few of us are.



Leave a comment

Filed under accountability, american imperialism, economic processes, governance, heritage, historical interpretation, Indian Ocean politics, life stories, modernity & modernization, news fabrication, politIcal discourse, Rajapaksa regime, security, self-reflexivity, Sinhala-Tamil Relations, slanted reportage, sri lankan society, the imaginary and the real, truth as casualty of war, vengeance

Leave a Reply