Harim Peiris

By Harim Peiris

(Published in The Island on 24th June 2020)

Former State Finance Minister, Eran Wickramaratne, at a Samagi Jana Balavegaya (SJB) press conference recently, and UNP leader Ranil Wickramasinghe last week at a meeting of UNP lawyers at the party headquarters, staunchly defended the 19th Amendment to the constitution and independent institutions, even as the ruling Sri Lanka Podujana Peramuna (SLPP) sought to achieve a two-thirds majority to amend the Constitution, at the upcoming general election. The political lines and governing philosophies are on open display during this election period as the governing party makes little secret of its desire to consolidate power and centralise control, even as all the opposition alliances and parties, namely the SJB led by Opposition leader Sajith Premadasa, its now estranged parent party the UNP and other opposition parties, such as the JVP, the TNA and the SLMC all staunchly defend the reforms brought about by the 19th Amendment to Sri Lanka’s constitution.

Wickramaratne took particular issue at the public dressing down given to the Governor of the Central Bank and the monetary board recently, on the rather well-established grounds that Central Banks the world over are independent institutions, which govern monetary policy, independent of the executive, which manages fiscal policy. The independence of Central Banks, evolved in the post second world war era, as the global economy developed, financial markets became more complex and countries dropped the gold standard for their currencies and replaced it with the full faith and credit of the issuing state. The post dressing down solutions proposed by our Central Bank, of ever cheaper money or demand stimulation, as in the West, Wickramaratne contended may not work in Sri Lanka, where the bottlenecks are more likely on the production or supply side, rather than on the demand side.

The rationale for consultation and consensus

It was political theorist Lord Action, who famously wrote that “power corrupts and absolute power corrupts absolutely”. While French political philosopher Montesquieu, articulated the principle of the separation of powers, which forms the bedrock of modern democratic governments the world over, namely the separation of the executive, legislative and judicial functions of the state. Closer to home, it was former President Ranasinghe Premadasa who on inaugurating his own all parties conference, argued that democratic governance was about “consultation, compromise and consensus”. A study of the 1978 Constitution of Sri Lanka and especially its practice over the past four decades since its introduction has demonstrated that Sri Lanka’s head of state and government enjoyed significant executive and discretionary powers, far in excess of those enjoyed by his or her peers than say even the British Prime Minister or the American President. Both these countries have second chambers, the House of Lords in the UK and the Senate in the US, with which the executive needs to work.

A particular peeve of the ruling SLPP has been the check on key state appointments by the Constitutional Council. This is a body that comprises the State’s key leaders, including the Prime Minister, the Speaker and the Leader of the Opposition as well as some eminent persons. Even in the United States, key Administration appointments, including even political appointments and judicial appointments, is with Senate ratification and some ratifications don’t occur.

The 19th Amendment to the Constitution, which was passed by consensus, barring a sole dissenter and all the leading lights of the SLPP being in Parliament as members of the then Joint Opposition (JO) and not opposing the same, seeks to bring about checks and balances to ensure that the President is accountable to parliament. It also depoliticised key state functions such as elections and police oversight. A basic objective of most constitutional orders. The efficacy of which was tested out in October 2018 and held up in Court.

The argument for centralizing control

The ruling SLPP and its fellow political travellers propose a further centralizing of state power, their argument being that what Sri Lanka lacks has been “strong” leadership. The argument of strong leadership, whether of the Hitler variety as proposed pre-election by some, is essentially the need for despotic absolute power so that every whim and fancy of a ruler could be done without any check or balance. Within that context, it is worth taking note of the two presidential task forces appointed recently, both headed by the Defence Secretary, one to safeguard archeological sites in the Eastern Province and the other to establish a disciplined society. Numerous commentators have dealt with at length on the various ramifications of the PTFs, the lack of clarity of their legal status and powers, not least being their chairperson himself, who felt obliged due to intense criticism by opposition political leaders to defend his PTFs arguing that they would seemingly be mostly advisory as opposed to executive and work with the relevant line ministries.

The SLPP government leaders seek to discredit the 19th Amendment by linking it to the absolute non-functioning and non-delivery of the previous Sirisena / Wickr-emesinghe Administration. But this non-delivery was a political problem and not a constitutional one. A problem of coalition governance and co-habitation of political allies, who mishandled being political competitors and became political opponents. This can always arise even in the future and even when it’s a single political party.

It is indeed well argued that since the 1978 Sri Lankan Constitution has given vast powers to our executive, that our political challenges, have been exacerbated by an over-centralization and consolidation of power in the executive and rather than by the absence of executive power and hence what is needed is less not greater centralization and at a minimum the retention of the 19th Amendment and the democratic reforms they introduced.