Harim Peiris

Political and Reconciliation perspectives from Sri Lanka

  • January 2010
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A few questions for Mangala

Posted by harimpeiris on January 5, 2010

Hon. Mangala Samaraweera MP, former minster and current co spokesperson for presidential candidate General Sarath Fonseka, would be a busy man these days, finalizing the minimum common program (MCP) that the disparate parties that support the General’s candidacy, ranging from the main opposition UNP to the JVP and the SLMC, can agree on, as the platform on which the General will campaign and seek election to this nation’s highest office. The date of release of the common program was stated as 7th January. In the meantime we have General Fonseka’s own pronouncements on matters as his policy platform to date. The following are a few issues which one hopes that the common program and its attendant explanations will address.

Abolishing the executive presidency

The General is campaigning on a platform of abolishing the executive presidency. In actual fact he is on record that he only wishes to modify the executive presidency and will retain some (unspecified) powers of the executive presidency to enable him to fulfill the mandate granted to him by the people. Given that he will be elected from the nation as a whole and essentially as an independent candidate not beholden to any political party, the decisions of the political parties backing him, while a guidance are not really binding on him and certainly not in a legal or constitutional sense. Once elected executive president of Sri Lanka, any person is very much a law unto themselves, as far as implementing the law or governance is concerned, such are the features of the 1978 Constitution bequeathed upon our nation.

However, when it comes to changing that same Constitution, the President’s executive powers do not extend to such realms of primary legislation. The President does not abolish or otherwise amend the constitution, the Parliament and the people at a referendum do. So all General Fonseka really means when he states that he will amend the executive presidency is that he will indicate to the next parliament (elected after the next general election due by April 2010), that he is supportive of constitutional changes in this respect and request a parliamentary majority as of yet unknown composition and anyway not of the Swan symbol he is campaigning on, to amend the constitution.

The alternative of course is to claim a mandate to extra constitutionally change the constitution. But to do so he would have to specifically ask the people for such a mandate and doing so might ipso facto be a violation of the very constitution under which he is seeking office and to which he would have to swear fidelity to assume such office.

Implementing the 17th Amendment

Another seemingly key platform of General Fonseka is the appointment of the Constitutional Council, euphemistically described as implementing the 17th Amendment. Now the Constitutional Council is undoubtedly a good thing. The 17th Amendment is the first experiment in amending the powers of the executive president and the experiment hasn’t been a great success. Firstly a lack of clarity in the amendment allowed or enabled minor parties in parliament to bicker, literally endlessly, about their right to appoint the “minor parties nominee” and this bickering post January 26th 2010 can still be an impediment to a due implementing of the Constitutional Council until a new Parliament is elected. Again since the General’s Swan symbol, which is not a national political party, will not contest the general elections to form a government, this situation can continue.  But more importantly it also demonstrates the limitations on enforcing even the constitution on an executive president. The Attorney General’s department has over the years contended that a president of Sri Lanka enjoys immunity in his actions as executive president. In the event a President Fonseka does not appoint the Council and if this is challenged in court, we are likely to witness the rather depressing scenario of Senior State Counsel Nerin Pulle in a rather stentorian voice in the Supreme Court take up the preliminary objection that the actions of the President cannot even be challenged in the highest court of this land, which is a view that the Court has consistently upheld, if with some strictures and limitations articulated best by the late Supreme Court Justice Mark Fernando. Accordingly a Supreme Court which has demerged the North and East, struck down the PTOMS as unconstitutional and called presidential elections in 2005 an year early (yes, there was an oath administered by the then Chief Justice in 2000) will not or cannot enforce the implementation of Sri Lanka’s basic law, by its Chief Executive. But we are invited, indeed dared to dream on.

Resettlement of IDP’s

The General is also clearly hoping to garner the Tamil votes and he is likely to secure the covert if not the overt support of the TNA or at least of its leader R.Sambanthan, a gentleman of the old school and a dying breed of well read, gentleman politicians of an earlier vintage, who cut his teeth in politics as a then young aide to Federal Party founder and leader SJV Chelvanayagam. The more overt the political support the TNA lends the General, the more the nationalist vote will move away from him. Alice in Wonderland is challenged for the surprise factor of Sri Lankan politics as the Tamil nationalist TNA and the Sinhala nationalist JVP, make common cause over a General Fonseka presidential campaign. The challenge of course is to govern together not just campaign together against a common political foe. The common policy is claimed to be the resettlement of the IDP’s. The General’s grouse being that IDPs are not given adequate facilities to resettle and are being resettled in an ad hoc manner. Well firstly, until his retirement barely a month ago, as CDS and earlier as Army Commander, General Fonseka was responsible for the running of the Menik Farm IDP complex and the IDP screening and release program. From the Medawachiya (Anuradhapura District) checkpoint northwards, it was a very Army, not Navy, Air Force or STF, operation all the way through Vavuniya and up to and including Jaffna. So when General Fonseka criticizes the IDP program, at best he is throwing stones while living in a glass house and at worst he is, as the Sinhala idiom states, spitting while looking upwards, i.e. on to his own face.

A political solution beyond the 13th Amendment

General Fonseka promises a political solution for minority community concerns as something that goes beyond the 13th Amendment or what is referred to 13th Amendment plus. Since the JVP, clearly the most active of the political parties backing General Fonseka is even opposed to the 13th Amendment per se, one waits to see how Mangala and Anura Kumara Dissanaike will reconcile that one. One hopes it occurs with due seriousness. Of course General Fonseka as Army Commander is on record in his post victory speech in the Wanni as having stated that the Army did not die and shed blood to provide any political solution only to defeat and now prevent terrorism. One wonders which of the two views he really believes and which a possible President Fonseka will be inclined to implement.  By way of contrast, President Mahinda Rajapakse and the UPFA less generously perhaps but more realistically promises the full implementation of the 13th Amendment, a long held belief by the President that the political space to implement existing legislation is available, in the post LTTE, post war situation we now find ourselves in.

Generally though enforcing pressure by political patrons on elected independent candidates is tough. Ask anybody who remembers the Colombo Municipal Council elections and the UNP’s request for Colombo City voters to vote for the “spectacle” independent group and that the UNP will really run the administration, ala Sirisena Coorey et al. Well, Sirisena Coorey is back in retirement down under and “spectacle nominee” and former Trishaw driver Mohammad Imtiaz remained as his Worship the Lord Mayor of Colombo. When under political pressure Mayor Imtiaz turned to the SLFP. A President Fonseka, sans a political party will have only the Army to turn to, if his political patrons in the UNP and JVP pressure him post a possible victory. We as a nation are dared to dream that this time it will be different and that Ranil, with the assistance of Mangala et al will give General Fonseka his marching orders so to speak, once elected. To which one is tempted to say, dream on brother dream on.

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