The Sunday Leader

Reforms First?

By N Sathiya Moorthy

Independent of ideas and reservations mooted by State Ministers Rajiva Wijesinha and Wasantha Senanayake over the past weeks and months, the ruling coalition should be looking at the promised constitutional reforms with greater introspection and circumspection than at present. Committed to a self-inflicted 100-day programme, which can be self-destructive for the nation too if not the deadline and time-frame are not made flexible, it was not the issue that decided the presidential poll. Nor would it be the one to decide the parliamentary polls. President Mahinda Rajapaksa was the decisive factor then. Out of power, he continues to be a great contributing factor until now at least. No constitutional reform will be complete without addressing the ethnic issue and the resultant 13-A. It’s universally acknowledged as Sri Lanka’s national problem. That’s also the most intractable issue, in political, electoral and constitutional terms. Yet, the way the minorities swung the presidential vote is not going to decide the parliamentary elections, whenever held.

The latter has its own logic, however, illogical and impractical it might sound to the rest. At this stage, it cannot be separated from the pro-minority protective powers of the Executive Presidency, when created. Down the years and decades, not only the minorities but even the majority has grown increasingly uncomfortable with the very concept of Executive Presidency, again however faulty and illogical their fears might be, In conceptual terms, any constitutional solution has to address conceptual issues as well though they all may have to await a new parliament with a new mandate with the clear idea that it would (also) be functioning as a constituent assembly of sorts. It is immaterial if they are going to re-write the present Constitution in parts or in full.   The coalition government that the Big Two and the much of the rest of the majority community is non-representative in the ethnic context, particularly the Sri Lankan Tamil community, which seems to have all the problems over the decades. A new elected parliament under the existing scheme would be marketed as all sections of the majority polity being in it together for denying the Tamils their due.

Already, Sinhala-Buddhist partners in the Government are addressing the southern constituencies more than the Tamils. The big ones are vying with the smaller ones in this rather the former is seeking to out-wit the latter, who seems contend with what they already have. The idea seems wanting to tell the Sinhala-Buddhist voter (nationalist or otherwise) rather subtly that they don’t need a Mahinda Rajapaksa as President and the Executive Presidency as an institution to protect their political interests and/or secure national interests. There is another element, too. It’s about the shadow-boxing between President Maithripala Sirisena’s SLFP and Prime Minister Ranil Wickremesinghe-led UNP on the what-and-when of the 100-day programme. Then there is the one-upmanship within the SLFP, between what still is seen as the Rajapaksa faction and what is yet to emerge as the Sirisena group. The third group, if any, identified with another former SLFP President, Chandrika Bandaranayke-Kumaratunga (CBK), is waiting on the wings, for the leader to return home from one of her usual foreign jaunts.

 

Quick-fix solutions?

The way the 100-day programme was being trumpeted during presidential poll campaign made it look as if it were the panacea for all the nation’s politico-constitutional ills. It’s far from that. Such an approach can further complicate the already complex problems than solving any. Nor that the proponents and the propagators of the proposals do not know it.

Unlike the two Republican Constitutions of Premier Sirimavo Bandaranayake and President J R Jayewardene, the proposed reforms do not aim at totally re-writing the statute. Against this, constitutional amendments are generally issue(s)-centric, but this is not one. It seeks to have a wider canvas, yet aims at a patch-work and with too many patches to work upon.

If good governance is the concern, then again the proposals are not a solution. They are a part of the problem and will continue to remain so. It lays heavy premium on the accommodation levels of political leaderships, goodness of human being and appropriateness of nominees. These are not commodities that could be pulled out of a departmental store rack. Worse still, if they were already available, the nation would not have come to such a pause. First and foremost, there is a grey area pertaining to the powers/dilution of the Executive Presidency under the proposed scheme. In an unauthorised draft doing the rounds, the President is designated as the head of the Executive apart from being the Head of State and the Supreme Commander of the armed forces. The Prime Minister however is called the head of the Government. It’s unclear what it all would mean in real term.

Two and even worse, the President under the proposed scheme would continues to hold certain ministerial portfolios. There is an additional clause that is specific to the ministerial duties of the incumbent in a draft that is doing the rounds. Such a personality-centric solution on specifics would only tempt similar provisions being sought and made in the case of his successors, too.

It only needs numbers, not powers, per se, to confer those powers. Whoever makes the numbers pre-poll or post-poll, Executive Presidency or not confers/takes those powers. Human vanity being what it is there is no law that can think far ahead of human ingenuity and greed for more power. The significance of the 8 January presidential polls is for the present leadership to set/restore healthy precedents that had been ripped apart one after the other over the past decades. Law cannot and should not wait, but law alone cannot mean everything, particularly in the contemporary Sri Lankan context.

 

Calling the shots

If under the draft under circulation, if the President has ministerial responsibilities under his belt, and the Prime Minister is the head of Government, who then would preside over Cabinet meetings? And who will call the shots in the Cabinet, if there is a vertical division? Whoever chairs the session even if by turns between the top two what if there is a difference of opinion between the two? Will the Cabinet decide on such matters through consensus, or by vote?

There are other grey or, greyer areas too in a draft that is in circulation.  The provision that the President shall abide by the recommendations of the Prime Minister on specific issues, or by Cabinet Ministers specifically authorised by him, takes away the authority of the Cabinet of Ministers as an institution. By extension, not only individual Ministers but also the President in his capacity as the Cabinet Minister for a few portfolios can become autocrats, and the check-and-balance that the President otherwise is expected to enforce would go through the roof. Unless greater clarity is showered on this clause, there would be more autocrats than one that the reforms seek to annul.

This is apart from the fact that the President would have the right under the proposed scheme to return to the Minister concerned certain decisions, and to Parliament certain Bills, if he had reservations. Again, the clause would have to preclude the ministries under the President’s personal care. There has to be clarity also on who will decide on proposals returned by the President the Cabinet or individual ministers?

 

Independent institutions

The repealing of 18-A should be welcome, particularly in terms of the abolition of the Constitution Council and Independent Commissions for making high-level Government appointments. But re-instating the unworkable 17-A in whatever form or in an amended version does not inspire confidence. It can only add to the confusion and contradictions that the proposed reforms seeks to end.

Independent commissions of the kind take away the rights and powers of the constitutional Executive/Government like the President, Prime Minister, Cabinet and the UPSC, without any responsibility or accountability to call theirs. A cabal of qualified people, chosen by the political leadership(s) in whatever combination cannot be expected to be more honest than those who have chosen them in the first place.  It cannot work – and will not work. It will instead be a sham, if we do not have politicians who are honest and upright and to the core. If they are so, then you do not need independent institutions at all.

What are thus required is not new appointment and disappointment committees, but greater transparency and accountability in public appointments at all levels. It’s only in the case of the political leadership that the people actually rate them and hold them accountable every now and again through the elections, and the Judiciary while addressing transparency and corruption issues.

Nominations to a second legislative chamber at the national-level again are not a solution to any national problem of any kind. It can provide for additional representation particularly for the Provinces, but that question would have been substantially addressed if there is adequate power-devolution of the 13-A, 13-Plus or whatever kind, if they are effectively implemented. A second chamber in the Sri Lankan context would be white elephants like the 17-A institutions, which did not even take off after years. Against this, power-devolution would also help address the existing lacunae in the Sri Lankan political system. The current leadership, sworn to revive and re-energise healthy governance behaviour(s) at all levels should be sparing and spending their time with the emerging ranks of provincial ministers and other leaders with additional powers, to make them feel proud of themselves and their nation, over a period.

The Provinces is where the problem is. In the absence of a first-step governmental exposure, most politicos hitting the national scene straight in terms of administrative experience and exposure, creating precedents that are unhealthy and unbecoming, to say the least. Instead, power-devolved Provinces could create a training-cum-promotional avenue for grassroots-level aspirants to take up national responsibilities with adequate experience and exposure, and over time.

 

Beginning at home

At the centre of the current problems of the nation is not necessarily the Executive Presidency, per se, but the ethnic issue and problems of power-devolution. With the result, even the draft has to end up providing safety-valves for the current national government in freezing the number of Cabinet berths and other ministerial positions.

This one, like the person-specific portfolio-allocation for the President makes the proposed constitutional changes an exercise in extended futility.  As always, when there is an exception to the rule, the exception then becomes the rule, sooner or later, sooner than later. Long ago, the Executive Presidency and the direct elections for the Presidency were touted as the constitutional safety-vales for protecting minority interests. The 8 January presidential poll has proved beyond doubt the efficacy of the scheme up to a point but not as far as the post-poll commitments of, or expectations from the elected leader.

Such a situation owes also to the fact that political administrators at the highest levels also tend to being the respective party bosses. Their electoral responsibilities to the party that had made and promoted him/her often submerges the reasonableness and balance expected of the high office that they end up occupying  and not adorning, as should have been the case. In a way, this by itself may have been the cause for the failure of successive Executive Presidents not wanting to find a reasonable solution to the ethnic issue, even post-war, by addressing the legitimate aspirations of the Tamil people. This does not mean that the Executive Presidency should be retained, but it means that those occupying particularly the nation’s highest office of President and possibly that of the Prime Minister, though not always possible should cease to be party members.

The question of the President and possibly the Prime Minister and a Vice-President, if the reforms ultimately provides for one occupying party positions should not arise at all. This way, there would also be greater democracy and upward mobility within political parties.  Competition at times might mean confusion, but it could also throw up clarity.

History of democracy in Sri Lanka and elsewhere has shown, the party suffers from the predicaments and the predications of the man in high government office(s), rather than each benefiting from the other. It’s not about the leader lacking in time. It’s about the party then coming to lack internal space, for discussions and debates. Ultimately, both lose out, without even knowing where the shoe had actually pinched.

 

Electoral reforms and more

According to news reports, President Sirisena has told his SLFP second-line that the Government should be willing to wait until May to clear electoral reforms in the present Parliament, before ordering fresh polls. If true, it means that they are ready to push back the 23 April deadline for ordering fresh parliamentary polls, if only to evolve a consensus reforms for national elections.

This throws up very many questions. One, will the President continue to be elected directly by the people and the Prime Minister, indirectly through Parliament? If so, in times of conflict of ideas between the two, whose voice should prevail on issues? This may sound a non-existent concern just now, but Constitutions would have to provide for such impossible situations as they often end up going far beyond the imagination of the Founding Fathers or the Founding Generation. One alternative could be to think in terms of indirect elections to the Presidency, too, but with the elected PC members too being made members of the Electoral College along with Parliament members. There may be other alternatives, but the crux of the matter is that you cannot have a directly-elected President with lesser rights, responsibility and accountability and an indirectly-elected Prime Minister with more of all particularly rights.

The much talked-about mixture of the existing Proportionate Representation (PR) system and the first-past-the-post scheme should be dissected carefully but wholly before any decision is taken on the issue. It would depend on what the nation wants to achieve from such a change-over. If it’s to reinforce the dictatorship of the majority (?) as the Tamils have always dubbed, there is no need to change the system. It’s already there. If it’s to make it more representative in ethnic terms, that will not happen even with the proposed scheme.

The 8 January presidential polls showed that all kinds of minorities (most of them however speaking Tamil) had voted together in favour of President Sirisena. They did not even have an ethnic agenda and promise from the candidate for them to swing so very one-sided thus. It owed to other circumstances, which can repeat themselves.

One and possibly the only way to address the issue is to provide for maximum possible devolution that is not against larger national interests and concerns when the Constitution is being purposefully re-written with it as one of the major objectives now or after the parliamentary polls. Otherwise, after all the amendments had been put through, there is no way a minority ethnic group or all of them together can change even a crucial comma from the Constitution or any other law anywhere in the country.

The Tamils and other minorities too would have to acknowledge and accept this reality. They also need to delve deeper if their revived concept of one country, two nations would even meet their expectations and aspirations, demands and declarations, if they truly believe in a untied Sri Lanka. They need to acknowledge that their demands have to be tested against the touch-stone not of Sinhala-Buddhist nationalism, but larger Sri Lankan nationalism. Truth be acknowledged, there is no way any electoral scheme, however customised or skewed can make the Tamils’ voices heard, acknowledged and acted upon from outside. They need to get inside and get counted and get counted, big time! Maybe, with the SLT around inside the Government where they first need to know what governance is all about even other ethnic minorities like the divided Muslim and Upcountry Tamil polity would first come under pressure and possible under a common umbrella.

Nearly 25 per cent of the voters’ voice is not what the majority/majoritarian, vertically-divided Sinhala-Buddhist polity can ignore for too long, and all over again, without the nation having to pay a bigger price all over again. It need not be over the possible revival of militancy, it could be worse. All of it may take decades, not necessarily months and years.

A statesman thinks of the decades ahead. A politician thinks of hours and days ahead. The months and years have no guide or guardian. At the moment, quibbling about the timing of the parliamentary polls should not come in the way of a national government proceeding with electoral and much of the rest of the constitutional reforms, as promised in and by President Sirisena’s campaign. People will forgive the time-lag, particularly the life-time of the present Parliament, if there is something to show by way of the reforms.

The voter will not forgive the nation’s polity, particularly the Big Two, jointly and severally, if they were to delay the promised reforms. People have been hearing about these reforms for decades now, but with nothing served on the plate, election after every kind of election, president after Executive President, and parliament after elected parliament! If the ethnic issue has been left consciously out of the present set of reforms agenda and with a justification and purpose  even while talking about electoral reforms just now, no one has any word for an anti-defection law, and across the board.

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary public-policy think-tank, headquartered in New Delhi. email: sathiyam54@gmail.com)

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