At the Tipping Point – What is Next?

Photo courtesy of BBC

DINESHA SAMARARATNE-04/07/2022

Sri Lanka is going through a political experience like no other in its history. Unlike during the war, during the JVP insurrections or the ethnic riots where the trauma and loss was experienced in pockets, this time around most Sri Lankans have been suffering in a very real way for several months. The burden got heavier and heavier and eventually has become unbearable. Four elderly men died while waiting in queues for a gas cylinder. We are seeing today what we have not witnessed in Sri Lanka before, convicted of the urgent need to do so. They are not coming out because a political organizer is giving them a buth packet or anything else. Parents coming out with a newborn, a woman carrying a baby, old men holding posters and even pedigree dogs…this movement is as organic and as broad as a people’s movement has ever been in Sri Lanka.

I’m tempted to romanticize these ongoing protests, but will not. Only time will tell how all this will go down. But while living in this moment we have to ask ourselves, having found ourselves in this crisis and in this moment, what can we now re-imagine for Sri Lanka? I am no political scientist or political commentator and therefore will not make comments on what I think this political moment means in terms of people’s protests. I will only speak to what I think can be re-imagined from the perspective of constitutional governance. But before I offer my response to this question, I think it’s helpful to also consider briefly, why and how we got to where we are today.

Much has been said by activists, Sri Lankans who have suffered at the hand of many governments, academics, among others, about Sri Lanka’s democracy and its pathology. For a long time, Tamils and Muslims have experienced violations of their fundamental rights in many instances. Ethnic minorities have been disproportionately subject to arbitrary arrest and detention and have experienced indifference and discrimination at the hands of many public officers. Elected representatives, on numerous occasions, have considered minorities to be dispensable. Ven Galkande Dhammananda Thero deals with some of these issues in his public messages available on YouTube. I take his ideas to mean that any government’s treatment of people in the margins (he refers to Tamil victims of the war) should be the measurement of its integrity and commitment to governing justly.  Women activists and academics have been calling out successive governments for ignoring their needs. They have tried to resist (with little success) being stereotyped by policy makers and have sought to remind them that whether in earning foreign exchange or leading the unpaid care sector, women have been bearing the brunt of mal-governance and exploitation in Sri Lanka. All this with hardly any political representation or inclusion. I can go on about the broader issues of disregard of public benefit, pervasive cultures of corruption and servility and the exploitation of natural resources. I can also recall how public institutions have failed to live up to their mandate, whether it is the Ceylon Electricity Board, the Central Bank or my own place of work, universities.

The pressure on Sri Lankan society is so high that today we have a political and personal space in which all of this can be raised, discussed and pushed for. More and more people are drawing connections between the harsh and tragic experiences of ethnic minorities, women and the poor with the big picture. The push back to abuse of power is at such a high point that the unimaginable is happening. We are beginning to see that it is only a matter of time before the failure to respect the rights of those at the fringes of the polity will reach everyone else too. Today I woke up to the news that the Declaration of Emergency has been revoked by the President, in under a week of the Declaration of Emergency. Since Sri Lanka became a republic, it has been ruled mostly under emergency all the way up to 2012. Ruling by Emergency had been normalised. But today, the tide seems to be turning. I wonder whether this is indeed a sign that the political culture that has prevailed in Sri Lanka, the authoritarian legacy of colonialism (at least in part), is at a tipping point.

So what is next? I am convinced that abolishing the Executive Presidency is the necessary next step. Not the only one, of course, but an essential one. Without that step, nothing else would bring about the structural and political change that we need and that people are calling for. Much ink has been spilt on why the Executive Presidency is a root cause of the ailments of Sri Lanka’s constitutional democracy. Economic development and stability were held out as the great goals of this office. More than forty years later, here we are, in a crisis of epic proportions, literally man made. If anyone still needs to be convinced about the need to abolish this office, I invite them to read about how the independence of the judiciary was subverted time and time again by Presidents who abused their authority, recall the recent blatant abuse of the power of presidential pardons, and recall the manner in which post-retirement benefits were allocated by retiring presidents to themselves!

The track record of our Executive Presidents has been poor in terms of constitutional governance. For several reasons that I will not go into here, it has not been possible to limit the excesses of the Executive President through the Constitution. Sri Lanka’s Constitution, in principle, provides for the impeachment of the President (Art 30 to 40). That procedure can be triggered by way of a resolution in Parliament alleging any of the following grounds – that ‘the President is permanently incapable of discharging’ the functions of his office or that he is guilty of intentional violation of the Constitution, treason, bribery, abuse of the powers of his office or any offence ‘involving moral turpitude.’ Many would argue that this is indeed the present case. However, the Supreme Court must inquire into any such allegation and make a determination. If the Supreme Court rules in agreement, Parliament may, by resolution, impeach the President. While possible in theory, this path will take time (and rightly should).

Resignation is another option provided by the Constitution. The President may resign, ‘by a writing under his hand addressed to the Speaker.’ This would be effective immediately. The vacancy would be filled by a Member of Parliament who is elected by the Parliament and will hold office for the rest of the remaining term (Art 40(1)).

Of these two options, I think the course of action that is most appropriate now, is that the President gives leadership to abolishing the office of the Executive Presidency and then resigns. If we the citizens are to have confidence that Sri Lanka can have a fresh start at dealing with its serious and debilitating crisis, it requires us to have high levels of confidence in our government. If that kind of public confidence is to be generated, the current political leadership must change. The current political leadership must change, at the very least for that reason.

If the Executive Presidency is abolished, what would a new system look like? Details should be worked out carefully, but it would be a parliamentary democracy, one which looks more like the system we had under the Soulbury Constitution. The Head of the Cabinet will be the Prime Minister and the President will be nominal. The Constitutional Council, independent commissions and so on can be included in that scheme. What are the advantages to this system? The Head of the Cabinet will not only be answerable to Parliament but will also be in Parliament. Leadership will be collective, not concentrated on a single individual. The main disadvantage of a parliamentary system is that governments have to deal with instability. Nevertheless, this system will create a better structure for constitutional governance and less space for abuse of power. In contrast with the so called homegrown (‘autochthonous’) First Republican Constitution, the Soulbury Constitution provided for an independent public service too. Of course, we know that governance under the Soulbury Constitution was very problematic: the passage of the Sinhala Only Act 1956 being a good example. But that is where we realise the limits of constitutional design. It can take us only thus far. To go beyond that, people (individually and collectively) and institutions (state institutions, religious bodies, schools etc) must do our part. When we do, what was hitherto impossible, becomes possible. That is a lesson we are all learning at this moment in Sri Lanka.

One other point remains to be clarified. Do we require a referendum to abolish the Executive Presidency? Two possible answers. If we follow Supreme Court rulings on this question so far, we would say yes, we do. If this question is put to the people today, I do think the people would agree to abolishing this office. In fact, I would argue that it may be politically desirable to seek that approval from the people, although it might be costly and time consuming. The other answer is that we do not need approval at a referendum. The clause establishing the Executive Presidency is not entrenched (meaning its amendment does not require approval at a referendum). So according to a literal reading of the provisions, the office can be abolished by Parliament with 2/3 voting in favour. Even if the Constitution does not entrench the Executive Presidency, in the political imagination of many, and certainly in the interpretation by the Supreme Court, it is deemed to be entrenched, but it is possible, in theory, to argue both ways.

While my personal view is that the Executive Presidency must be abolished now, if the political negotiations and the Supreme Court do not allow for that possibility, the draft 20^th Amendment Bill proposed in 2018 could provide a template for the way forward. This proposed amendment provided for the election of the President by the Parliament. At the time this amendment was proposed, the 19^th Amendment was in operation. Today, to go down this path, Parliament would have to combine the 19^th Amendment of 2015 with the proposed 20^th Amendment of 2018 to develop a 19^th Amendment plus proposal. In this scenario, we would have a constitutional system in which the President derives his mandate from the Parliament (not directly from the People) and operates with reduced powers. In this scenario, among other things, statutory commissions and public institutions will operate independently. Within this scheme, we still remain very close to the goal of denying broad discretionary powers to a single individual at the apex of the Executive branch of the state.

Sri Lanka must choose the path that leads us out of this crisis, not one that will take us in circles. We do not need more of the same and we do not need a game of musical chairs. Most of our elected representatives have proven, once again, that they act in self-interest. People have generated an organic political moment and are calling out for a solution to this crisis and are demanding a change of personnel. In my view, that is only possible if we bring about structural change. Abolishing the office of the Executive President must be central to that structural change. The following quote is attributed to the German theologian, Dietrich Bonhoeffer who was a critique of Hitler. ‘If you board the wrong train, it is no use running along the corridor in the opposite direction.’ This quote is helpful in illustrating the significance of the need to abolish the office of the Executive President in Sri Lanka today.

It seems that the train is slowing down but is still trying to push through and we are at risk of only running along the corridor in the opposite direction. We need to get off the train and find a more suitable one to board.