Harim Peiris

Political and Reconciliation perspectives from Sri Lanka

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Making the case for constitutional reform

Posted by harimpeiris on September 21, 2017

By Harim Peiris

(Published in The Island of 21st September 2017)

 

Even as this article is being penned, the interim report of the Executive Committee of the Constitutional Council is scheduled for the 21st of September 2017, about one and a half years, since Parliament turned itself into a Constitutional Council in January 2016. This crucial process of nation building through state reform, is typically generating more political heat than shedding light on facts or creating a process of informed public discourse.

 

Comparative international experience, history and political science would teach us that any nation building exercise, of societies transitioning from civil war to post war or internal conflict to post conflict, does require reforms that roll back the restrictions on civil liberties necessitated by the war effort, rehabilitation and reconstruction which deals with the effects of the conflict and political reforms aimed at dealing with the root causes of the conflict. Sri Lanka is no exception to the rule.

 

The Government of President Sirisena and Prime Minister Wickramasinghe elected in 2015, claim a mandate for three sets of reforms, or the pillars of their policy framework, democratic reforms, such as through the 19th amendment and the RTI Act, economic reforms through various policy instruments and reconciliation reforms. Regarding constitutional reforms, the Sirisena / Wickramasinghe Administration sought to reform or replace the executive presidency, electoral voting system and devolution of power.

 

There does seem to exist a degree of consensus among the major parties regarding electoral reform, reforms which would see us moving to a more mixed or hybrid system of direct and proportional representation elections. The smaller parties have concerns regarding their representation, especially parties which gets seats through the PR system though not winning a constituency. Ultimately their interest would also need to be accommodated and technical formulas are not impossible to come by.

 

The devolution of power is a political debate which has been ongoing in post-independence Sri Lanka, with the famous Bandaranayke – Chelvanayagam Pact and the Dudley – Chelvanayagam Pact some of the earlier expressions of that dialogue and resultant leadership consensus. In more recent times, the political reform debate and proposed new constitution of August 2000 of the then President Kumaratunga’s SLFP led Peoples Alliance Administration or the more recent proposals and recommendations under President Rajapakse of the All Party Representative Committee (APRC) and the Lessons Learnt and Reconciliation Commission (LLRC), which proposed a slew of far reaching state reform have in reality brought about a degree of common ground on less centralized and more power sharing political structures.  The political contention that the LTTE fought for devolution of power and hence power sharing is granting the LTTE agenda through constitutional reforms, is quite a stretch of the facts, since the LTTE actually opposed provincial councils, devolution with power sharing and instead fought for a separate state and absolute unchecked power. Further devolution could rather strengthen the state, by making a diverse society more cohesive through reducing if not eliminating the alienation from the Sri Lankan state of ethnic minorities, resolving what LTTE suicide bomb victim late Dr. Neelan Tiruchelvam so aptly termed, “the anomaly of imposing a mono ethnic state on a multi ethnic polity”.

 

However, it is with regard to the executive presidency, where the recent political discourse has ignored the ground realities and Sri Lanka’s near four-decade long experience with the office of the executive president. Firstly, Sri Lanka will always have a President, since we are no longer a monarchy, the issue is whether the president will have near unchecked powers, as before the 19th amendment, have more limited executive powers through further reforms or be a nominal or ceremonial head of state, with executive power vesting collectively in the Cabinet of Ministers, as was Sri Lanka’s experience prior to 1978.

 

Now the promoters of the executive presidency argue two points, the first that an executive president requiring to be elected by the whole country as a single electorate, cannot ignore a single voter segment including the ethnic and religious minority communities, predominantly present in the Northern and Eastern Provinces of the country. This argument has some merit but is not entirely correct. Prior to the presidential election on January 2015, it was twenty years previously, way back in 1994 that the North and East voted for the winner of the presidential election. Even the 1999 re-election of President Kumaratunga was achieved with a split minority vote, with the majority of the North and Eastern vote going to the unsuccessful challenger. There are other political institutions which can better accommodate minorities and unrepresented groups, the most obvious being a second chamber or conversely a small numerical increase in the nominated members for the lower house, which also solves the problems of electoral reform for the smaller parties.

 

The weakest argument put forward by proponents of a strong executive presidency is that such a strong centralizing power and authority, helps to keep a nation together, implicitly arguing that it promotes social cohesion. However, Sri Lanka’s history of the past two decades proves just the reverse. That strong centralized power often leads to excess and a lack of restraint in the exercise of such power, leading to what Lord Acton famously stated as “power corrupts and absolute power corrupts absolutely”. It is a truism that power without accountability and checks and balances breeds resentment and rebellion. Sri Lanka’s experience with armed challenges to the Sri Lankan state from both the JVP and the LTTE was also caused or at the very least went together with a reduction in democratic space through the centralized power and the consequent reduction of checks and balances brought about by the 1972 and the 1978 Republican constitutions. It is increased democracy and power sharing which promotes social cohesiveness and thereby strengthens national unity and national security and not merely the cohesive power of absolute authority.

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Why “Eliya” and Gota are wrong about post war reforms

Posted by harimpeiris on September 13, 2017

By Harim Peiris

(Published in the Daily News of 13th September 2017)

The new kid on the block of the Rajapaksa return project is the supremely ill named “Eliya” meaning “light” organisation headed by Gotabhaya Rajapaksa, whose stated intent is to oppose the proposed post war reforms of the Unity Government. At its recent launch with all the usual suspects of the Joint Opposition and their sundry cheer leaders in attendance, the arguments put forward were essentially the same old tired and hackneyed, fear mongering and paranoia which had been conclusively rejected by the people at two elections in January and August 2015. Essentially there is no new argument, no new shrill screams of paranoia which were not made in 2015, that are being made now.

After all, then candidate Sirisena was called a foreign agent, an NGO puppet, a Diaspora lackey and every other conceivable insult that self-induced paranoia could produce, but prevailed at the polls, despite actually spending a lot less, facing totally adverse state media coverage and arguably being the less flamboyant of the two candidates.

The voters did not forget and ignore, the gross mismanagement and rampant corruption which were the hallmarks of the Rajapaksa national security state.

Now clearly the JO, the “Eliya” and its fraternal SLPP all hope that come 2020, fear and thinly disguised racism are potent enough that with the passage of time, swing and new younger voters will forget or at least forgive, the world’s most expensive highways, Telecom regulatory funds spend on electioneering, empty ports and unused airports resulting in unsustainable commercial debts, the white van abductions, the killing of editors and journalists, sacking a chief justice and jailing the opposition presidential candidate, who is a war hero, to name a few of the features of Rajapaksa misrule, lest we forget.

However, the arguments made by “Eliya” are weak and require to be countered.

Firstly, the argument is made, that constitutional reforms will negate the war victory and provide through reforms what the LTTE were unable to win on the battlefield. The LTTE were not fighting for reforms. In fact, the LTTE opposed every attempt at reform, including the 13th Amendment to the constitution and the devolution of power to the provincial council.

Constitutional reforms

The LTTE was fighting for a mono ethnic separate state, which was neither democratic nor respected basic human rights. Which is why the LTTE killed Tamil political opponents and conscripted young Tamil children. The proposed constitutional reforms are not going to reduce democracy, human rights or enable the creation of a separate state. On the contrary, it will do the opposite. It will strengthen democracy and human rights, strengthen the social compact between the state and the governed while reducing the alienation of marginalized communities and especially ethnic minorities from the Sri Lankan state.

Secondly, a retired general and published author in attendance at the Eliya launch, according to media reports has stated that because he spent three decades fighting in the North, he rather than the community’s democratically elected leaders knew what the people wanted. One wondered if he fought the Tigers or dialogued with them. We presume the former. His comments move from the sublime to the ridiculous.

The Sri Lankan Army knew very well the alienation of the Tamil people from the Sri Lanka State.

That is why during the entire duration of the war, Tamil people from the North were not allowed to come out of the Jaffna peninsula and indeed the Vanni, without a special military pass. We never fought the JVP in 1989/90 confining people to their homes, but the only way to contain the war to the North and East and prevent it spreading to the rest of the country was to confine the people of the North and East, to their own areas. The fighting was ended but the causes of the conflict remain to be addressed.

Even a fairly cursory study of either history or political science would teach us, that the best way to have social cohesion and fidelity to a constitutional order is to ensure that there is no systematic alienation of people or groups of people from a State.

In that context, we need reforms of the Sri Lanka state, which ensures that the State accommodates the full diversity of her peoples. Reforms which address, what LTTE suicide bomb victim late MP, Dr. Neelan Tiruchelvam defined as “the anomaly of having imposed a mono ethnic state on a multi-ethnic polity”.

National anthem

No better example of the mono ethnic nature of the Sri Lankan State is needed than in the issue of the singing of the national anthem in both Sinhala and Tamil at the National Day celebrations and indeed the near hysteria of the “Eliya” mentality type persons who predicted dire consequences if it happened. The anthem is sung now in both languages and we are a stronger nation for it.

Reconciliation is a long-term process and progressively pursued by the Unity Government, strengthening social cohesiveness as it progresses, though admittedly slowly.

Finally, the arguments on constitutional reform are mixed up, rather illogically with issues of post war accountability. Illogical because real politic would most likely ensure that political reforms which are the best guarantors of non-recurrence would lessen not increase the pressure on accountability issues. However, the JO and indeed the Rajapaksa clan must remember that it was President Mahinda Rajapaksa who in May 2009, in a joint declaration with the then UN Secretary General pledged Sri Lanka to a post war process of accountability, a political solution and rehabilitation.

This position though often reiterated in international fora throughout the shortened Rajapaksa second term from 2010 to 2014, was not implemented in any way and the international community was only progressively requiring Sri Lanka to be true to her own commitments and international obligations. From a foreign policy standpoint, the Rajapaksa clan’s great error was to belittle and ignore their own international undertakings. In hind sight, it was the foreign policy acumen and course correction of the Unity Government which once again normalized Sri Lanka’s relations with the world.

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When challenges get tougher

Posted by harimpeiris on August 29, 2017

By Harim Peiris

(Published in the Daily News of 28th August 2017)

August 2017 marks two years of the National Unity government formed after the general elections of August 2015, which followed the historic presidential elections earlier that year, which ended unceremoniously and two years ahead of schedule the rule and reign of the Rajapaksa clan. Ending Rajapaksa rule, was a remarkable rainbow coalition of practically everyone else but the Rajapaksa’s’ their UPFA, Mahinda Rajapaksa having the unique skill of uniting almost every other political shade of opinion in the country against himself, from the Sinhala nationalist JHU, to the JVP, the UNP, General Fonseka’s Democrats, every Muslim party and the TNA, in a broad rainbow coalition against Rajapaksa rule. The general election which followed essentially witnessed President Sirisena’s political allies win power and confirmed the decline of the Rajapaksa brand, the UPFA’s popular vote declining between January and August that year. Two years on, there seem little nostalgia for a Rajapaksa return, their political organs of the Joint Opposition and the SLPP, blowing hot air and some barely concealed racism but not making much traction either in Parliament or outside.

The Government of President Sirisena and Prime Minister Wickremesinghe was elected on a three-fold agenda of greater democratization, economic reform and reconciliation. It is perhaps in the area of democratization that the Government has the most impressive gains to date, with the passage of the 19th Amendment to the constitution and the Right to Information Act, the latter with the potential to significantly increase the transparency and accountability of Sri Lankan governance.

In terms of reconciliation the Government co-sponsored the UNHRC resolution on reconciliation in Sri Lanka demonstrating its own commitment to the same, cooperates with UN Special mandate holders and, opened up civil society space in post war rehabilitation, facilitated the smooth functioning of the provincial councils by replacing intransigent retired military governors with civilians in the North and East and released significant amounts of lands occupied by the military during the conflict, including the Mylatti fisheries harbour in the North and Sampoor in the East.

The Tamil Diaspora groups were engaged with, de-proscribing a large number of Diaspora organisations and persons and encouraging them to be partners in rehabilitation and post war reconstruction, while the Office of Missing Persons (OMP) Act, was also passed. There still remains much to be done in relation to reconciliation, especially making progress on devolution and constitutional reform. Tamil political opinion and actors have chaffed though at the complicated politics and inherent delays in effecting further progress on reconciliation measures.

Economic reforms

It is however in the area of economic reform and development that there has been some disquiet with the voting public expecting a quick “good governance dividend” which it has not seen forthcoming thus far. However, Rome was not built in a day and economic reforms take time to bear fruit. But most importantly Sri Lanka’s economy was set for a hard landing, a correction after the second Rajapaksa terms borrow and spend binge. Government investment on borrowed funds in white elephant projects of dubious utility value, like the Mattala airport and the Hambanthota port, meant that a slowdown from ceasing the borrow and spend binge was inevitable.

One of the best kept secrets in recent times has been the Mahinda Rajapaksa decision to call presidential elections two year before they were due. His astrologers, magicians and soothsays notwithstanding it is quite likely that Percy Mahinda Rajapaksa was well advised that he could not indefinitely borrow and spend on projects that gave no economic returns. The election of January 2015, might well have been his bet to avoid an election in the likely economic pain his policies were bringing and would bite by 2017.

Needless hot air over leasing state assets

A key strategy of the economic reforms of the government has been attracting foreign direct investment and as western commercial capital has been harder to access amidst fierce Asia’s wide competition for the same, the Unity Government has sought to change the policy of borrow at commercial rates adopted by the Rajapaksa regime to a lease and invest equity approach to regional economic giants, both India and China. Now the Rajapaksa Administration ignored India and courted only China, to the detriment of Sri Lanka’s national interest, while the National Unity Government once again rebalanced Sri Lanka’s foreign policy, a return to the status quo ante, of our previous policy of friendly relations and close economic ties with both India, our largest trading partner and China our largest foreign investor.

There has been needless hot air and distortions over the ETCA with India, leasing the oil tank farms to the Indian oil company, the Mattala airport to also to an Indian firm and of course the Hambanthota port deal to a Chinese state owned fame which incidentally cost the former Justice Minister his job for intemperate comments regarding the Government approved US Dollar one billion deal.

The political hot air over leasing public assets to foreign investors, is uncalled for, since leasing is merely a project financing option, which is definitely more beneficial than borrowing for that same public project or asset. In the case of the Hambanthota port or the Mattala airport, sovereign borrowings to build and operate the projects, incidentally at a loss as well, essentially mortgages the country’s future tax revenues to build and operate these projects. The option of leasing is merely a financing option, which is definitely preferable to massive loans at commercial rates of interest.

With regard to strategic assets such as ports and airports Sri Lanka should take into consideration and be mindful of the security interests and concerns of its giant neighbour, again in its own interest, regional cooperation on matters of security, trade and investment being the way forward for Sri Lanka. All the economic growth forecasts for the future predict an increasingly robust growth for the Indian economy which would see its economy outpace even the Chinese one. Sri Lanka must position herself early through smart diplomacy and an enlightened foreign policy to benefit from the regional economic boom, poised to be powered by India.

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An Open Letter to Prof. G.L. Peiris

Posted by harimpeiris on August 15, 2017

(Published in the Daily News of 11th August 2017)

Prof. G.L. Peiris

Leader, SLPP.

 

Dear Professor Peiris,

 

Reconciliation, Sinhala Eelam and a Sinhala National Alliance

 

I thought I must write to you despite your obviously busy schedule, both because you at least nominally lead one aspect of the Rajapakse come back project under the banner of the nascent SLPP and also because you are unarguably, as a former foreign minister, a key advisor to defeated President Rajapakse on matters relating to post war, national reconciliation. I must at the outset explain why I stated that you lead one aspect of the Rajapakse comeback project, because it is never clear to any observer or the public, which brother number two (pardon the pun) Basil or Gotabaya proposes to replace Mahinda as the heir to the attempted Rajapakse dynasty. Would a toss of a coin determine, which Rajapakse becomes the next presidential Rajapakse candidate? But of course, your bets are on Basil, however I think Gotabaya is streets ahead in the inter-Rajapakse primaries to be the next Rajapakse candidate in 2020. Of course, Mahinda believes that this government will fall long before that, then again, his political judgement has been quite suspect of late, after all he thought he would win in 2015 and lost not once but twice.

 

Sinhala Eelam and the Sinhala National Alliance (SNA)

 

I believe it was a friend and mutual colleague from the days of the Kumaratunga presidency, which we both served at one point, who coined the phrase, “Sinhala Eelam” to denote the Sinhala equivalent of the narrow ethnic based, exclusionary political vision and extremely violent political program, which Prabhakaran and the LTTE promoted and fought for. The LTTE had a vision, that the North and East of Sri Lanka was mono ethnically Tamil, that there was no space or need to accommodation any others as equal partners and that a strong leader, tolerating no decent was necessary to protect the Tamils from the Sinhala people and one presumes the Muslim people.

 

It is very worrying that the political rhetoric and discourse emanating from the Rajapakse come back project and its political vehicles of the JO and the SLPP, make worryingly Prabhakaran like arguments except this time in relation to the Sinhala people. Again, a distinct territory (whole of Sri Lanka) is the sole preserve of a single ethno-religious group, the Sinhala people need a strong leader to protect them from enemies within and without, which again also includes the poor long-suffering Muslims who got hit from both the Tamil Eelamists and now from the Sinhala Eelamists. We have heard this rhetoric before and it was not pretty and it was also resoundingly defeated at the elections of 2015. Perhaps a rethink might be in order.

 

I have also observed that despite the acrimony and vitriol directed at the governing national alliance and specifically the United National Party (of which you were a front bencher in a previous avatar), the real bogey which the Rajapakse comeback project seems to target is the Tamil National Alliance (TNA) led by the veteran Rajavarothian Sambanthan, who you should recognize for having rather adroitly captured the leadership of the Tamil polity, post the war and considerably moderated the TNA. Now the TNA representing a minority community and steadfastly limiting its political activities and appeal to the North and East is logical given its own Tamil constituency’s demographics in the Northern and Eastern provinces. On the other hand, a responsible national opposition to be a genuine alternative government needs to represent or broaden its appeal to the entire country and it is a feature of the Rajapakse support base, that it is limited to the Sinhala people, that also predominantly of the majority religion and mostly in the Southern part of the country or outside the North and East. Regrettably for Sri Lanka, the Rajapakse come back project should be more aptly titled the “Sinhala National Alliance” (SNA) and is limited to the areas outside the Northern, Eastern and Central Provinces.

 

Reconciliation

 

Dear Professor Peiris, you have impeccable credentials or at least experience in national reconciliation, having first advocated President Kumaratunga’s devolution package from 1994-1999, then catapulting to the front bench of the subsequent UNP Government under Premier Ranil Wickramasinghe from 2001-2004 as well as that Government’s chief peace negotiator with the LTTE and of course since 2005, been a loyalist of the Rajapakse clan.  So, you have the unique distinction of having worked with three of the main political protagonists at the apex of Sri Lanka’s political establishment, namely CBK, Ranil and Mahinda. If you had read the roll of the electoral dice correctly in 2015, you may even now have been advising President Sirisena, then your political journey would have been truly unique.

 

However, despite this extensive experience in reconciliation and peace processes it is quite concerning and somewhat disappointing to witness what can only be termed fear mongering and narrow exclusionary politics in terms of the recent responses to first the OMP and more recently to the enabling domestic legislation for the international convention against enforced disappearances. You should no doubt recognize that defeated President Rajapakse committed Sri Lanka to accountability in the joint communique with then UN Secretary General Ban Ki Moon in 2009 and significantly failed to create the basis for non-reoccurrence and a durable peace. It would be extremely desirable if in the national, as opposed to a partisan interest, if defeated President Rajapakse supported his successor in office, in the arduous but necessary task of national reconciliation or “sanhidiyawa”.

 

Yours sincerely

 

Harim Peiris

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The real SLFP – UNP MOU are the election results of 2015

Posted by harimpeiris on July 20, 2017

By Harim Peiris

(Published in the Daily News of 20th July 2017)

 

In recent weeks, there has been quite a lot of political discussion on the topic of the political alliance of the two main political parties in the country, the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP), which has joined hands to form the national unity government we have today. Some members of the government have voiced their frustrations over the alliance and are threatening to leave, while the senior political leadership is seeking to preserve the rainbow coalition which formed the Yahapalanaya Government in 2015. The current focus of the debate seems to the MOU between the SLFP and the UNP, which is currently only till December 2017, while the term of the government itself stretches on till 2020.

1. The Presidential election results of January 2015

Any members of the Government who focus too strongly on an MOU between two political parties as the sole criteria for a national government are forgetting the cardinal rule of constitutional governance. Firstly, the Sri Lankan constitution clearly states that the people of Sri Lanka are sovereign and we exercise our sovereignty very directly through periodic elections. In the presidential elections of January 2015, the people clearly and convincingly elected Maithripala Sirisena as President of the Republic and with it thereby, as Head of State, Head of Government and Commander in Chief of the Armed Forces. The people elected a common candidate, a unity figure, the head of a rainbow coalition and gave a mandate for the common program of the common candidate. During the presidential election campaign, then common candidate Sirisena, gave a very solemn and public undertaking, to appoint Ranil Wickramasinghe as Prime Minister. In fact, when D.M. Jayaratne refused to resign following the presidential election result, it was president elect Sirisena who was the most insistent that Ranil Wickramasinghe be sworn in as Prime Minister, right after his own swearing in, which historic events occurred almost poetically on Independence Square one late evening in January 2015.

2. The General Election and the concurrent mandate

During the general election campaign of August 2015, President Sirisena gave another Solomon undertaking that he would not appoint Mahinda Rajapaksa as Prime Minister, even if the UPFA won, which it did not, the UNP prevailing at the general elections. The fact that the National Democratic Front rainbow alliance which won the election for Maithripala Sirisena in January 2015 contested the general election through its or as distinctive constituent parties, does not in any way negate the mandate received by President Sirisena in January 2015.

 

When we examine the mandate received by the UNP in August 2015, it is equally clear, that the UNP committed to a continuation of the unity government and the program of the rainbow coalition, with a fleshed out and detailed economic reform policy, which is seen as their unique selling point. The joint opposition section of the SLFP has tended to argue that they never received a mandate to work as part of the unity government, but they ignore two important facts. Firstly, it is their party leader, President Sirisena, who is leading the unity government and doing so through a direct mandate of the people. When the SLFP accepted Maithripala Sirisena as SLPF party leader, post the presidential election and after the defeat of Mahinda Rajapakse, their reason for doing so, was that Maithripala Sirisena was indeed president, the SLFP constitution mandating that any member, in the event of being elected president became leader of the party. In doing so, the SLFP, also accepted the responsibility of supporting President Sirisena in that endeavor and role. Secondly, that any mandate at the general election does not negate the mandate of the presidential, which they chose to support for the duration of that mandate. The UNP as the party which received a mandate at the general election has decided that the two parties should work together for the duration of their respective terms of office. There is a concurrent operation of twin mandates and the two mandates are aligned together and mandated by the sovereign people of Sri Lanka. That is the real basis for the national unity government. No party politics or partisan interests could or should trump the popular mandate of the people.

3. Surely it is about delivering on the current mandate

Prime Minister Ranil Wickramasinghe is currently on public record stating that the alliance of the two major parties is a must for the country’s progress and development. It is fairly clear, that the next generation of economic reforms, addressing the effects and causes of the war and strengthening and solidifying democratic freedoms and institutions requires a degree of consensus between the two main political parties in the country. Frankly it is surprising that so far before a national election, either presidential or parliamentary, that political parties seem highly focused on the national elections of 2020. Some sections of the opposition seem focused on the local government elections and that’s fine. It is natural for opposition parties to be wanting to regularly campaign and keep things on the boil. However, the people of Sri Lanka are much more likely to be focused on what the government elected and mandated in 2015 are doing to better their lives and improve their future. The easy gains of 2015 /16 are now behind and the hard work of the mid-term needs to be attended to. Economic, democratic and reconciliation reforms should be the agenda of the government and not the opposition agenda of a premature focus on the elections of 2020.

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