Lakshman Gunasekera
ONE. Lakshman Gunasekara: “Politics vs Constitutionalism,” in Horizons, 9 December 2018 …
When the Bandaranaike International Memorial Conference Hall (BMICH, what a mouthful) began hosting conferences in those old-fashioned 1970s, we, the ordinary citizens hadn’t a hope of freely strolling into its premises (let alone its halls). One needed a conference invitation to enter the gates and some ‘delegate’ or ‘media’ tag to enter the main hall or ‘committee rooms’ (as they were quaintly termed then). Today, in our lower-middle-income country comfort zone, people are constantly streaming in and out of the BMICH, for weddings, exhibitions, conferences, convocations, concerts and seminars, all at the same time (and I am sure there is romance in those verdant gardens).
For the BMICH, that is not some procedural laxity or bureaucratic decay, but the coming-into-its-own of a public facility that, today, thanks to a relative affluence and greater social confidence among the hoi polloi, is genuinely a ‘people’s venue’. In any case, the BMICH is a modern, metropolitan complex, an outright, comradely gift by the communist People’s Republic of China, grateful for Colombo’s principled and pioneering recognition of Beijing when the dominant powers of the times were insisting on recognizing puny Taipei (not that that bravely independent island republic doesn’t have its own rights).
But who would have thought that the august chambers and (sadly down-sized) staid gardens of our Prime Ministerial official residence, Temple Trees, would one day open its (once-fortified) gates to the masses? That the hoi polloi would be freely streaming in and out of its many chambers and rather labyrinthine corridors (the once elegant colonial bungalow is now stuffed with ornate additions)?
The situation at Temple Trees today is certainly not due to any procedural laxity but, in a sense, a genuinely spontaneous national-political necessity. I am not making a politically partisan rationalization but, a rationalization of the on-going mixed dynamics of constitutionalism and real-politik.
A closer look at the seeming ‘hoi polloi’ thronging ‘TT’ will indicate a steady movement of disciplined party cadres determinedly, perhaps stoically, holding ground against a perceived tide of political perfidy, of unconstitutional deprivation of the legal right by their political party to govern. For over a month now, party cadres and officials have sustained the functioning of what they believe is the official residence of the genuine Prime Minister of the Republic; of the right of their party Leader (the way this amorphous designation is now an enshrined ‘office’ in ‘liberal’ democracy!) to continue to perform his duties as the legitimately elected Prime Minister.
Technically speaking, of course, once the President has sacked the Premier, the deposed governmental head should gracefully step off the TT’s colonnaded verandah. But, equally technically speaking, there is serious doubt about the constitutional – and hence, legal – validity of that momentous presidential action on October 26th. Notably, only one foreign embassy has thought fit to describe Ranil Wickremesinghe solely as a party ‘leader’ and, that same embassy announcement simultaneously described Mahinda Rajapaksa as ‘Prime Minister’. That rush to bestow recognition might possibly reveal other, less visible, dynamics that led to the current crisis.
This may indicate that the world community of nations generally agrees with those loyal and spiritedly resistant party cadres, as well as with, seemingly, to-date, the majority of our legislature’s elected representative. Whether it indicates the genuine views of the citizenry as a whole only a general election will tell. ‘Genuine’, that is, in a general election properly conducted and, not managed in the way some elections have been by several (if not, all) of our Presidents and Prime Ministers in the past.
From all accounts, the situation inside TT is reminiscent of the spontaneous, popular-democratic energies so exuberantly unleashed during the Arab Spring in some north African and West Asian capitals. Just as it was in the Arab Spring, the spontaneous popular activism in and around TT (the Liberty roundabout nearby is the site of daily public pro-democracy protests) is a vibrant mix of grassroots activists as well as pro-democracy civic action groups and personalities.
Whatever their motives and interests, their combined and sustained activism, and the popular ‘occupation’ of the prime ministerial residence has become a (so far) unique episode in our island’s modern political life. On the one hand, it is a gloriously free mingling of the plebian with the aristocrat and, on the other, it is a rare flexible access of the general citizenry to the formal apex site of governmental power.
My focus is not so much on the ‘rights’ and ‘wrongs’ (as I indicated in previous columns) of recent actions by both the politicians and by their supporters. My focus is on the nature of the on-going political behavior and political perceptions and rationalisations and, especially, the emerging, increasingly powerful and striking, dissonance between the spontaneously political and the formally political. And my argument is not that the spontaneous, popular, political behaviour has severely overtaken formal political behaviour.
Rather, I argue that it is the seriously faulty nature of our formal political system itself that prompts such non-formal political actions and spontaneous reactions. I argue that by prompting such behaviour, the system itself contributes also to the further decay of the institutions and formalities themselves.
The question with the TT phenomenon today is not so much how long this episode will last but, how long must it last. In framing the question in this manner, I am acknowledging that such free-for-all behaviour has, itself, become a necessity in a positive way – but not so much to protect the interests of a certain political party alone. Rather, by pointing out the fault lines in the system itself and linking it to actual political behaviour, I argue that, at this political juncture, extra-institutional behaviour – by many sides – seems to complement the system by filling in the increasingly gaping holes in the structure.
Just as much as the stresses and strains of in-fighting within the recently defunct ‘National Unity’ regime led to the collapse of that coalition, clearly, the revamped constitution’s new provisions are wholly inadequate to deal with the post-coalition scenario. Some will say that this enabled one side of the coalition to attempt to unseat the other side. Others argue that the collapse of the coalition is the very moment of unseating of both coalition partners from governmental power.
It must be noted that the coalition was not merely a coalition of jointly elected political parties in government but the unusual one of a joint regime venture between the presidency and the government. Technically speaking, a constitution of the capitalist competitive democratic type should be able to provide for governance between president and cabinet irrespective of party and policy differences.
Most liberal parliamentary constitutions do provide for such bipartisan differentials at any given moment of government. In the case of this Sri Lankan regime, in particular, however, immediate governmental continuity depended on the essential congruity of cabinet and presidency. In fact the 19th Amendment attempted to entrench a certain concept and form of a congruent political regime – of a ‘national government’; and, has failed miserably.
The sheer lack of provision of a suitably detailed process to resolve the issue of the collapsed coalition then, brought about a result that could be interpreted depending on political perceptions. It has either enabled a scheming president to opportunistically ease in another potentate to the governmental role or, compelled a frustrated president to flounder around seeking an alternative to a failed joint political enterprise.
Today, when Maithripala Sirisena crudely flays Ranil Wickremesinghe’s character, those viewing the positioning of presidency and cabinet as simply formally distinct offices that should not rely on mutual compatibility for the sustaining of a functioning government, are content to formalistically argue that such mutual compatibility is not a constitutional requirement. The fact is that the Sirisena-Maithripala regime was specifically a joint government of the President and Prime Minister (Cabinet) that came to power as a regime of combined offices and not simply a coalition within a cabinet. Indeed, the presidency and cabinet mutually supported each other’s entrenchment in power – the President playing a crucial role in this.
What this reveals is that, from its very inception, the National Unity regime was unconstitutional – not simply as a violation of the constitution so much as a transcending or, circumventing, of our flawed and inadequate constitution in order that an ad hoc coalition government captures and holds both offices in order to repair a damage polity overall. The National Unity coalition regime, then, was a kind of brief ‘Arab Spring’ of a very limited scope.
What all this points to, then, is not just about the need for a drastic re-framing of our republic. It is equally about the need to ensure a proper process of re-drawing our polity. Constitution-making cannot afford to be done – yet again – in an opportunistic, short-term manner, but via an exhaustive, sophisticated process that ensures that as many gaps as possible are filled in and, the long term continuity of a stable political community is ensured.
And we must have the political maturity to realistically acknowledge everything that transcends constitutionality – the good as well as the bad.
–//–
TWO. Lakshman Gunasekara: “From Breaking laws to new Politics,” Horizons, 16 December 2018…
When the legendary Thera Puttha Abhaya joined liberator-hero Prince Dutugemunu in his military campaign to defeat northern King Elara, the story goes that he formally left holy orders to go to war but after helping defeat the northern monarch, he returned to the priesthood.
Not for him, the style of some Bhikkus of today who were seen in their saffron robes by the whole world in the thick of street politics with some monks not far from rioting mobs and burning buildings. Often the incidents of burning and rioting against ethnic minority neighbourhoods began immediately after these agitating saffron-robed clerics made their angry speeches.
The role of some Bhikkus in recent years in associating with ethnic confrontation, aggressive speech and social violence, has led to saffron becoming the colour of fear for our ethnic minorities who have been at the receiving end of the violence and trauma.
The fact that the ancient chronicles especially mentioned this adherence to formalities by the ancient Bhikku is indicative of the importance given by the chroniclers to such meticulous social behaviour, the careful obedience of institutional discipline. The chroniclers are clearly upholding the rule of law and integrity of institutions (be it secular or ecclesiastical) even amidst war and social upheaval.
The modern monk-agitators are, notably, a small minority of the Sangha. But, the very fact that they persist in acting as the Bhikkus they are in all their anti-ethnic minority agitation and, deliberately do so in front of the news cameras, bestow on them a disruptive social power far beyond their numbers.
In stark contrast to the ancient Thera Abhaya, who is, today, remembered as a heroic warrior, the modern-day race hatred provocateurs are known as monk-perpetrators. Some of them are now known as monk-convicts. It is an identification emphasised by those convicts themselves in their insistence on wearing the saffron robe while in prison serving time for their crimes. Thus, not only did these modern monks quite deliberately wear the saffron robes while carrying out their highly socially disruptive agitation, they now equally deliberately, insist on wearing the saffron robe as convicted criminals!
Clearly, these convict monks are using sacred symbolism for purposes starkly contrary to the spiritual significance of those symbols. It is a bursting asunder of the edifices of the Dharma; a radical twist in the spiritual logic that can only serve to confuse Buddhists and undermine genuine spirituality, if not inspiring mass violence.
The point I labour here is the waning significance of institutional formality, convention and law; most especially, a waning quickened by the actions of the law-makers themselves.
Even worse than the undermining of ecclesiastical law by ecclesiastical law-makers, is the undermining of the secular law of the country by our secular law-makers. Our modern history clearly shows that the secular law-makers led the way. In fact the phenomenon of law-makers violating the law began to be significant decades ago whereas the undermining of ecclesiastical law by the members of the ecclesia itself is a more recent phenomenon.
And it has not just been our law-makers, our legislators, who have, themselves, gone against the law – in both major and minor ways. The guardians of the law and the Constitution, namely our police and armed forces also have some reputation of similar violations. Certainly, our police is notorious – although there is still a substantial number of personnel not only innocent of wrong-doing but credited with diligence of duty.
Of course, all attempts to cleanse our secular institutions of criminal behaviour and corruption are bound to fail as long as those who govern are, themselves, known to be perpetrators.
Although this violating of institutions has been endemic across much of our political landscape, how much have we realised the significance of the damage to our society? The degree of spread of this disease should have been realised long ago.
Today, gripped as we are in one of our worst political crises ever, its severity should serve to alert us to the depth of the crisis.
There is a paradox in our crisis. On the one hand, there is an on-going, rampant, abuse of political institutions. On the other, there are clear indications that the political institutions themselves – including the Constitution – are wholly inadequate to channel and contain the various political energies currently clashing. At the same time, the very regime that collapsed on October 26th was originally set up in a somewhat extra-Constitutional form in 2015 both as a coalition of traditionally rival political parties in government, as well as a formal collaboration between the presidency and the prime ministership.
What is also perplexing is the inability of Sri Lankans to appreciate this unique moment in our political history. There is no realisation of the special nature of the 2015 election result; of the political agreement between the President and Prime Minister to support each other in power.
This political marriage was cemented and people got down to the business of post-war economic and political recovery. But they did so without quite realising the degree to which this new institutional arrangement was not at all adequate to suitably mobilise political energies.
This hollowness of our Constitution has resulted in much of these energies meeting head-on within the Government. After months of mounting competition between the two main alliance partners, someone had to give. The break-up of the coalition was not unexpected, although no one expected it to happen this early.
It was the method of the coalition rupture and the option chosen for the next government that took everyone by surprise.
There are two notable characteristics that mark the recent moves by the SLFP-UPFA governing coalition partner. Firstly, the SLFP-UPFA’s withdrawal from the coalition partnership was done fully secretively thereby not allowing anyone to understand the reasons for the move. Normally such a drastic political move would have been done in a blaze of publicity. After all, a democracy must include processes of the widest possible range to enable free reign for debate, discussion, negotiation and problem-solving. Furthermore, a transparent exercise would have also provided the time and opportunity for both political parties to re-negotiate the coalition agreement.
The second notable characteristic was the blatant transgression of institutional norms and the Constitution in the subsequent sacking of the Prime Minister, which, strictly speaking, violated the Constitution. A second illegality was notable when the President dissolved Parliament. This last has now been addressed by the Supreme Court which has overturned the dissolution order.
But does the Court ruling actually help in resolving the crisis in any way? It does not seem likely that it will. The rift between the two former coalition partner parties remains as bitter. Only a proper reconciliation between them can bring hope of a re-formed coalition.
The danger with immediately running to the courts when a political disagreement occurs is that court rulings could actually block political negotiations by reducing the compromise options available. This early recourse to the courts instead of resorting to negotiations ominously betrays an inadequate grasp of inter-party negotiation possibilities.
But this is precisely what needs to be done. And the negotiating groups should not feel restricted by constitutionally defined parameters. Rather, the inadequacy of our Constitution should guide us towards such extra-constitutional dealings. Such extra-constitutional transactions, if done transparently, can be done without prompting suspicion or doubts.
This is when more creative politics, not necessarily constrained by laws and norms, must come into play. The coming weeks will show how political creatures so used to abusing institutions and breaking laws can actually deploy their guile in attempting some constructive politics beyond the law.
–//–
THREE. lLakshman Gunasekara: “Searching among Phantoms within an Exhausted State,” in HORIZONS,
23 December 2018
When the legendary Thera Puttha Abhaya joined liberator-hero Prince Dutugemunu in his military campaign to defeat northern King Elara, the story goes that he formally left holy orders to go to war but after helping defeat the northern monarch, he returned to the priesthood.
Not for him, the style of some Bhikkus of today who were seen in their saffron robes by the whole world in the thick of street politics with some monks not far from rioting mobs and burning buildings. Often the incidents of burning and rioting against ethnic minority neighbourhoods began immediately after these agitating saffron-robed clerics made their angry speeches.
The role of some Bhikkus in recent years in associating with ethnic confrontation, aggressive speech and social violence, has led to saffron becoming the colour of fear for our ethnic minorities who have been at the receiving end of the violence and trauma.
The fact that the ancient chronicles especially mentioned this adherence to formalities by the ancient Bhikku is indicative of the importance given by the chroniclers to such meticulous social behaviour, the careful obedience of institutional discipline. The chroniclers are clearly upholding the rule of law and integrity of institutions (be it secular or ecclesiastical) even amidst war and social upheaval.
The modern monk-agitators are, notably, a small minority of the Sangha. But, the very fact that they persist in acting as the Bhikkus they are in all their anti-ethnic minority agitation and, deliberately do so in front of the news cameras, bestow on them a disruptive social power far beyond their numbers.
In stark contrast to the ancient Thera Abhaya, who is, today, remembered as a heroic warrior, the modern-day race hatred provocateurs are known as monk-perpetrators. Some of them are now known as monk-convicts. It is an identification emphasised by those convicts themselves in their insistence on wearing the saffron robe while in prison serving time for their crimes. Thus, not only did these modern monks quite deliberately wear the saffron robes while carrying out their highly socially disruptive agitation, they now equally deliberately, insist on wearing the saffron robe as convicted criminals!
Clearly, these convict monks are using sacred symbolism for purposes starkly contrary to the spiritual significance of those symbols. It is a bursting asunder of the edifices of the Dharma; a radical twist in the spiritual logic that can only serve to confuse Buddhists and undermine genuine spirituality, if not inspiring mass violence.
The point I labour here is the waning significance of institutional formality, convention and law; most especially, a waning quickened by the actions of the law-makers themselves.
Even worse than the undermining of ecclesiastical law by ecclesiastical law-makers, is the undermining of the secular law of the country by our secular law-makers. Our modern history clearly shows that the secular law-makers led the way. In fact the phenomenon of law-makers violating the law began to be significant decades ago whereas the undermining of ecclesiastical law by the members of the ecclesia itself is a more recent phenomenon.
And it has not just been our law-makers, our legislators, who have, themselves, gone against the law – in both major and minor ways. The guardians of the law and the Constitution, namely our police and armed forces also have some reputation of similar violations. Certainly, our police is notorious – although there is still a substantial number of personnel not only innocent of wrong-doing but credited with diligence of duty.
Of course, all attempts to cleanse our secular institutions of criminal behaviour and corruption are bound to fail as long as those who govern are, themselves, known to be perpetrators.
Although this violating of institutions has been endemic across much of our political landscape, how much have we realised the significance of the damage to our society? The degree of spread of this disease should have been realised long ago.
Today, gripped as we are in one of our worst political crises ever, its severity should serve to alert us to the depth of the crisis.
There is a paradox in our crisis. On the one hand, there is an on-going, rampant, abuse of political institutions. On the other, there are clear indications that the political institutions themselves – including the Constitution – are wholly inadequate to channel and contain the various political energies currently clashing. At the same time, the very regime that collapsed on October 26th was originally set up in a somewhat extra-Constitutional form in 2015 both as a coalition of traditionally rival political parties in government, as well as a formal collaboration between the presidency and the prime ministership.
What is also perplexing is the inability of Sri Lankans to appreciate this unique moment in our political history. There is no realisation of the special nature of the 2015 election result; of the political agreement between the President and Prime Minister to support each other in power.
This political marriage was cemented and people got down to the business of post-war economic and political recovery. But they did so without quite realising the degree to which this new institutional arrangement was not at all adequate to suitably mobilise political energies.
This hollowness of our Constitution has resulted in much of these energies meeting head-on within the Government. After months of mounting competition between the two main alliance partners, someone had to give. The break-up of the coalition was not unexpected, although no one expected it to happen this early.
It was the method of the coalition rupture and the option chosen for the next government that took everyone by surprise.
There are two notable characteristics that mark the recent moves by the SLFP-UPFA governing coalition partner. Firstly, the SLFP-UPFA’s withdrawal from the coalition partnership was done fully secretively thereby not allowing anyone to understand the reasons for the move. Normally such a drastic political move would have been done in a blaze of publicity. After all, a democracy must include processes of the widest possible range to enable free reign for debate, discussion, negotiation and problem-solving. Furthermore, a transparent exercise would have also provided the time and opportunity for both political parties to re-negotiate the coalition agreement.
The second notable characteristic was the blatant transgression of institutional norms and the Constitution in the subsequent sacking of the Prime Minister, which, strictly speaking, violated the Constitution. A second illegality was notable when the President dissolved Parliament. This last has now been addressed by the Supreme Court which has overturned the dissolution order.
But does the Court ruling actually help in resolving the crisis in any way? It does not seem likely that it will. The rift between the two former coalition partner parties remains as bitter. Only a proper reconciliation between them can bring hope of a re-formed coalition.
The danger with immediately running to the courts when a political disagreement occurs is that court rulings could actually block political negotiations by reducing the compromise options available. This early recourse to the courts instead of resorting to negotiations ominously betrays an inadequate grasp of inter-party negotiation possibilities.
But this is precisely what needs to be done. And the negotiating groups should not feel restricted by constitutionally defined parameters. Rather, the inadequacy of our Constitution should guide us towards such extra-constitutional dealings. Such extra-constitutional transactions, if done transparently, can be done without prompting suspicion or doubts.
This is when more creative politics, not necessarily constrained by laws and norms, must come into play. The coming weeks will show how political creatures so used to abusing institutions and breaking laws can actually deploy their guile in attempting some constructive politics beyond the law.
****************
ALSO NOTE
- “TEDxColombo 2009 | Ideas for Sri Lanka’s Future – Speakers” .…. 28 October 2018, https://tedxcolombo.org/speakers2009/
- “CHOGM: To host or not to host? | Interview with Lakshman Gunasekara” … Vikalpa org, https://www.youtube.com/watch?v=gucb”Chandrika in Lively Q and A with Lakshman Gunasekara,” LTkC7rQ
- “Chandrika in Lively Q and A with Lakshman Gunasekara,” 28 June 2015, https://thuppahis.com/2015/06/28/chandrika-in-lively-q-and-a-with-lakshman-gunasekara/
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