A constitutional humpty- dumpty and lessons galore

Sunday, August 16, 2020

Party triumphalism following the August 5th 2020 Rajapaksa election win in Sri Lanka is reminiscent of the unfortunate fate of Humpty Dumpty before a fall.

Chastened then and joyous now

This is nothing new as Rajapaksa-ites gloating over the consternation of the ‘yahapalanaya’ camp may be unkindly reminded. These chastened followers glowered in sullen dismay when victory of an unknown contender Maithripala Sirisena in 2015 upset confident election predictions of a return of then incumbent President Mahinda Rajapaksa. In fact, this rude joy on their part now reminds me of an incident when a bare month or two after that Sirisena win and when the Mahinda ‘sulanga’ (wind) movement had just had its inaugural rally in Nugegoda.

An idle conversation with an uncritical follower of the Wickremesinghe-led United National Party (UNP) Government threw up the question of a possible return to power of the Rajapaksas. This was in the background of whispers circulating even so early, of the first Central Bank bond scam perpetuated by an inner circle of the UNP but in regard to which, no dissent was expressed by the party faithful as well as ‘independent’ corruption crusaders who should have known better.

My foreboding was that this ‘yahapalanaya’ win, if not managed properly, will result in disaster worse than the return of Mahinda Rajapaksa to the seat of the Presidency in 2015. That view was not taken kindly to. ‘Never’ said my interlocutor in resolute if not aghast tones, ‘they will never be elected to Government again… they are finished.’ This sadly shortsighted assessment had with it, all the elements of the same monumental stupidity with which loyalists of the present regime crow in delight over their ‘stunning’ win.

Reading the polls result in peculiar ways

‘Stunning’ mandates or not, the permanance of power is an illusion as was pointed to last week in these column spaces. And the reading of this polls win must not be in ways that, to put it mildly, defy basic commonsense. On the one hand, we have a vocal lobby that engages in such nonsense as to say that the August 5th pro-Rajapaksa mandate meant that the vast majority of the electorate prioritised development over and above the Constitution, the Rule of Law and such other esoteric matters. This cannot be further from the case. What was manifested at the elections was sheer disgust at the right royal buffoonery that the Sirisena-Wickremesinghe political alliance was reduced to, within possibly an year of coming into power.

That failure of governance became intolerable towards its very end as hundreds of innocents were killed in the 2019 Easter Sunday attacks directly due to these lapses. Squabbles have now arisen over whether President Gotabhaya Rajapaksa can place the Ministry of Defence under him given the 19th Amendment’s limiting that ability (along with the Ministries of Mahaweli and Environment) in its transitional provisions only to the Sirisena Presidency and not to his successors. Constitutional arguments to that effect over the entrenched constitutional primacy of Article 4 b) are put forward by those who maintain that the President can indeed, hold the Defence portfolio.

Their contenders argue otherwise, propounding inter alia, that a specific constitutional prohibition must prevail over an implied permission emanating from other provisions of the constitutional text. No doubt all this is rendered redundant by the fact that the Rajapaksa steamroller majority in Parliament will ensure amendment of the Constitution to take away that prohibition. Even so, the ‘yahapalanaya-ites’ who are crying to the heavens at this threatened constitutional transgression must also be reminded that the worst atrocity on Sri Lankan soil took place when ‘homegrown’ islamist jihadists attacked churches and hotels while a President and a Prime Minister was bickering about who should come for the Security Council and who should be shut out.

Fig-leaf to ‘demolish’ governance

Regardless, the 2019 and 2020 electoral tilt back towards the Rajapaksas must not be a fig-leaf to wholly ‘demolish’ even the positive aspects of the 19th Amendment as it stands and de-prioritise governance. That is a crude propaganda device to lay this country open to the robber barons in the Rajapaksa entourage. To that effect, a constitutional mixture of the highly disparaged 18th Amendment (heaven forbid) and the 19th Amendment is also being bandied by some. One hopes that this will not be as unpalatable a mix as the UNP made the 19th Amendment to be, by letting it fall between the two competing stools of the Office of the President and the Office of the Prime Minister. This was where the fault in that Amendment lay, as fitting testimony to the power grabs of the UNP and the SLFP at the time.

With that in mind, it must also be said that the argument, once put forward by former President Maithripala Sirisena that the Speaker was a third focal point of constitutional power in having his writ lie over the constitutional commissions and key public service appointments is no less nonsensical than returning to a state where the 1978 Constitution would give the President all powers except to change the gender of a man or a woman (the onetime boast of late President JR Jayawardene). The Speaker is the head of the Constitutional Council (CC), no more and no less.

True, the CC should have been far more judicious if not transparent in its appointments, as for instance in its appointment of a vastly unsuitable Inspector General of Police (IGP) at the time. But it must not be forgotten that this was largely due to the failure of the political establishment in its entirety which wanted a pliable IGP as much as it was the fault of the CC which, one must not forget is represented by that very political establishment. Thus, the part played by that IGP in subverting prosecutions of Rajapaksa favourites was of public record. Thus too, the palpable peculiarity of this IGP who was put in jail for dereliction of duty over the Easter Sunday attacks but was not removed from office even though parliamentary consensus would have enabled that to happen.

A long overdue reminder

So for all of us, a salutary reminder is long overdue.  What is meant by the Constitution and the Rule of Law must not be fiendishly interpreted to mean the palpable mess that the Wickremesinghe-led UNP Government or the Sirisena-led Presidency made of it. That is akin to dismissing the sumptuous delicacy of ‘ambul thiyal’, the melt-in-the-mouth signature fish dry curry of the South just because a bad cook happened to make it badly, once upon a time.  The fact remains that governance and the Rule of Law within a democratically structured Constitution is a fundamental condition for the development of any country to take place, for foreign investments to come in with any degree of confidence and for the citizenry to be lifted up, out of this pervasive covid-afflicted economic debacle.

These are not compartmentalised and abstract notions that exist in boxes, safely insulated from one another. Only idiots would strive to argue so in the first instance. And on the other side comprising bitterly anti-Rajapaksa advocates, only idiots would say that the Rajapaksa vote solely comprised of those who made up, as famously coined by defeated US Presidential candidate Hillary Clinton when castigating Trump supporters, a ‘basket of deplorables.’

That scorn came to haunt her later as we may recall. In this second coming of the Rajapaksas where more strategy and sense is called for, such pejorative hot air may best be abstained from.