By Harim Peiris

(Published in the Daily News on 22^nd August 2018)

The latest debate in the politics of the next presidential election stakes, due in 2020, is whether former President Mahinda Rajapaksa is eligible to contest yet again for a third term. Now Mahinda Rajapaksa has the unenvied distinction of being the only incumbent Sri Lankan president to have lost a bid for re-election. This despite the legislative success of ramming through a draconian 18th Amendment to the constitution which enabled him to try and seek such an unprecedented third term. The voters in January 2015 thought otherwise and sent Mahinda Rajapaksa packing back to Medamullane, in Hambantota.

At that time, the Rajapaksa’s did not throw in the towel quite as gracefully as their supporters would like us to now believe. We cannot really forget the strange nocturnal meetings on election night at Temple Trees, the deployment plans for troops to control key state institutions and the exploration of a suspension of the election results through a declaration of emergency, all the subject of a formal complaint to the CID by Minister Mangala Samaraweera. Fortunately, sanity prevailed. The then Prime Minister-designate Ranil Wickremesinghe called on Mahinda Rajapaksa to leave office peaceably and quietly and a helicopter airlifted Mahinda Rajapaksa to Medamullane. That he drove back two days later to the Darley road SLFP office in a bulletproof Government vehicle, a courtesy he denied his own predecessor and party leader, President Kumaratunga, was to be the second step in the Rajapaksa return project, the alleged coup de ta, being perhaps the first.

It was Opposition and TNA leader, Rajavarothian Sambanthan, who has stated boldly in Parliament that all Sri Lankan governments have failed to bring to justice alleged gross corruption and abuse of power of their predecessors. The only exception being the conviction of Sirimavo Bandaranaike and indeed her Justice Minister Felix Dias Bandaranaike, by a special presidential commission. In the near four decades since then, according to Sambanthan, Governments have sought to convict their opponents of corruption and abuse of power in the court of public opinion but not in a court of law. An interesting observation by the veteran politician.

The Rajapaksa return project has since taken shape and form in the establishment of the Sri Lanka Podujana Party, the SLPP and the current debate over a Mahinda third term stems from comments made by the SLPP’s nominal head and former Minister, GL Peiris. Professor Peiris has opined that Mahinda Rajapaksa is indeed eligible for seeking a third term of office as president of the republic on the basis that the 19th Amendment restoring and re-establishing the two-term limit on the office of the presidency, is not retroactively applicable to those who have held that office before the 19th Amendment. Contradicting Professor Peiris, rather quickly was former Justice and current Higher Education and Cultural Affairs Minister, Wijeyadasa Rajapakshe, himself a President’s Counsel, who dismisses Professor Peiris’s claims as outlandish and unreal.

The original intent of the framers of the constitution

Now the good Professor Peiris, as befits a man of legal letters, states that he intends to seek and secure the opinion of the Supreme Court on the eligibility of Mahinda Rajapaksa to seek a third term. He concedes that the 19th Amendment does bar people holding the apex office of the republic for more than two terms, his current contention, however, is that it exempts Mahinda Rajapaksa, who held office twice, but prior to the passage of the 19th Amendment. Now it is generally accepted that laws are not retroactive, unless specifically so stated. But the issue is not retroactive, it is futuristic about the next presidential election due in 2020. Also on the same principle, the Supreme Court recently ruled that Maithripala Sirisena’s term of office was limited to five years by the 19th Amendment though the said amendment was post his election at which time the term was six years. Moreover, the original intent of the framers of a constitution or a law is a key issue considered when seeking to interpret a constitution. Clearly, the intent of the drafter of the 19th Amendment was to impose a two-term limit on holding the office of the executive presidency. However, Professor Peiris now leads the political party and not the law department at a university, so it may be worth thinking through the politics of a third Mahinda Rajapaksa term.

The politics not the law of a Mahinda third term

The first political issue of a legal exploration of Mahinda Rajapaksa’s eligibility for an unprecedented third term, is that it lays bare what has been only private conversations before, the lack of unanimity among the Rajapaksa clan as well as their political allies, self-styled as the Joint Opposition (JO) about Gotabhaya Rajapaksa’s early and unilateral attempt at throwing his hat in the ring through “Viyath maga”. Sources close to former President Rajapaksa and indeed Professor Peiris have opined that a loyal acolyte of Mahinda’s like GL Peiris or indeed a Dinesh Gunawardena may be preferred, rather than the mantle passing to a sibling and hence another wing of the family. Keeping alive the myth of a Mahinda third term actually blocks another Rajapaksa from building himself up, in the interim period before the election.

That the family and indeed the JO are not unanimous in either their tactics or their choice of candidate was also borne out earlier this month through the relatively modest success of the JO’s opposition rally at the Viharamahadevi Park and Lipton Circus. The attempt to get around ten thousand people failed when less than a third of that number was mobilized and political insiders claim that Basil Rajapaksa, had not thrown the SLPP’s organisational weight behind the event. From the failure of the election of a deputy speaker to their public rallies and choice of presidential candidate, the dissent and dissension in the highest ranks of the Rajapaksa JO are becoming increasingly visible.

The downfall of Sri Lanka’s historical monarchical dynasties during our pre-colonial era was largely due to succession battles which were often bloody and brutal within the family. The Rajapaksa’s need to learn from our political history, as they seek to build a democratic political dynasty, the importance of succession planning, especially in the complex context of a post-war, multi ethnoreligious and democratic society.

By Harim Peiris

(Published in the Daily News of 10^th August 2018)

  Professor G.L Peiris, trusted acolyte and nominal head of the Rajapakse brothers and their new political vehicle the Sri Lanka Podujana Party (SLPP) has taken umbrage and fired warning shots across the bow of the ongoing constitutional reform process. The good professor’s pet peeve with the proposed new constitution is supposedly that it has been designed with malice towards the Rajapakse brothers.

Before delving into the merits or otherwise of Professor Peiris’ critique of the constitutional reform process, it would be worth noting that the Constitutional Council was established by a unanimous vote in Parliament after the mandates of 2015, in the context of the widespread public acceptance that the Sri Lankan State needs to be reformed, to better serve the sovereign people of Sri Lanka. Successive Sri Lankan governments, by Sri Lankan Freedom Party (SLFP) led alliances, since 1994 has been trying to reform Sri Lanka’s constitution to strengthen democracy and to ensure inclusivity especially of marginalized and alienated sections of society. Hence it was not only Presidents Kumaratunga and Sirisena who attempted and did make some constitutional reforms, namely the 17^th and 19^th amendments to the constitution, but also President Mahinda Rajapakse during his period in office had the All-Party Conference (APC) and its progeny, the All-Party Representative Committee (APRC) as an executive body and the Professor Tissa Vitharane headed committee of experts as a working group on constitutional reforms. Finally, the 18^thamendment to the constitution which President Rajapakse did manage to enact, was all about transforming Sri Lanka from an imperfect democracy to an elected de-facto monarchy enthroning the Rajapakse dynasty.

Abolishing the executive presidency, term limits and foreign nationality

 Now Professor Peiris not unsurprisingly has objected to two clauses in the proposed draft constitution which he says are prejudicial to the interests of the Rajapakse, even though it is in the public interest. The first objection which Professor Peiris raises is to the abolition of the executive presidency, a near article of faith of the political establishment for several decades. Of the three major political parties in the country, the SLFP, the UNP and the JVP, the SLFP and the JVP have consistently opposed the executive presidency. The UNP which actually introduced this office through the 1978 constitution, most similar to the powers of the emperor in the declining phase of the Roman Empire and notable for the complete absence of checks and balances against the arbitrary and absolute use and abuse of state power, has been the late but now staunch supporter of abolishing the executive presidency.

The proposal to de-bar anybody who has held the office of president for two terms from being elected president is strongly objected to by Professor Peiris. Now term limits are an almost universally accepted check on power and is one of the commonest features of any democratic political order. Accordingly, the SLPP / JO position of opposing term limits can only be described as defying both reason and logic.

The proposed constitutional reforms also debar dual citizens and foreign nationals who even give up their foreign citizenship from contesting for elected office for a period of one year, after such a process is complete. Such a cooling off period, is eminently reasonable. The United States for instance, the country of dual nationality of possible Rajapakse standard bearer and brother number two Gotabaya, (the Khmer Rouge terminology being entirely coincidental) makes naturalized citizens ineligible to be president.

The US Department of Homeland Security makes eminently clear the process required to relinquish US citizenship and for Gotabaya backers, it should be an eye opener that the process is not easy. Specifically, the US seeks to prevent naturalized citizens from giving up their citizenship to avoid legal jeopardy and as a means of avoiding US jurisdiction for past crimes and misdemeanors. Relinquishing US citizenship is not a unilateral step which can be taken by the citizen concerned.

The numbers game in Parliament

 In the context of a protracted and seemingly futile exercise in pursuing the position of the Opposition Leader in Parliament, the informal parliamentary grouping, self-styled as the Joint Opposition (JO) claims that it has the support of seventy parliamentarians. This self-confession of relative weakness is interesting because constitutional reform requires a two third majority in a parliament of two hundred and twenty-five members and accordingly for the JO to conclusively prevent reform requires one third of the members of the house or seventy-five members, which it lacks. So essentially if the coalition of 2015, which was basically Rajapakses verses the rest, can agree on the contours of constitutional reform, be it abolishing of the executive presidency, electoral reform or greater devolution of power, the reforms can still be enacted. The impending electoral contest of 2020 though looms large in the viewing lenses of the various political formations and their leaders and the proposed reforms may only be enacted after the 2020 elections. Those elections though would provide Sri Lankans with a stark choice, a messy coalition whose good intentions translate into actions at a pace much slower than an impatient electorate demands or a return to the past, with a barely disguised fascist and militarized mono ethno-religious regime, whose inspiration and role model as recently and publicly proposed to a key protagonist, is to be Adolf Hitler and the Nazi regime.