19A & the continuing power-struggle

As the 100-day programme was coming to an end, President Maithripala Sirisena confronted a significant challenge. It was about showing the people that he still was the executive president. A significant part of this challenge was about getting his pet project, the proposed 19th Amendment which sought to reduce his powers, passed in Parliament. In short, President Sirisena had to appear to be in control of affairs. For a change.

In control

It was going to be a daunting task. President Sirisena was giving the impression that he was weak, unsuited for the job, unable to control his own, vagrant party (SLFP). Neither the ‘national government’, nor the ‘yahapaalanaya’ slogan/rhetoric – idealistic and immensely problematic – helped him. The seeming leadership vacuum that arose was rekindling the nostalgia for the defeated leader, Mahinda Rajapaksa. After all, the Rajapaksa-brand of authoritarianism, President Sirisena was forgetting, wasn’t just an imposition but also a mode of governance desired by a certain segment of the population.

Apart from some suave political maneuvering, President Sirisena was now left with one option; that of addressing the people. For the more he spoke – especially about his desire to renounce power – the more convincingly he was able to expose the uncouth and regressive character of his disgruntled opponents. This, which he finally did, helped him partially to neutralize the threat posed by the Mahinda-group of the UPFA of a possible sabotage of the 19th Amendment. Back-door negotiations, significant concessions/compromises and most probably the cunning capitulation of the Mahinda-group, finally assured the adoption of the 19th Amendment with an overwhelming, even unexpected, majority.

Finally, President Sirisena took control of the situation and his party. That need for a decisive and strong leadership was momentarily fulfilled, now through the image of a leader willing to sacrifice power.

19A Process

Although the 19th Amendment received near unanimous endorsement, its passage exemplified the potential and limitations, the paradoxes and ironies, of the state-reform project in Sri Lanka. With a number of drafts being discussed, amendments being made, and allegations of last-minute introduction/deletion of provisions, the 19A-process reflected two critical concerns.

On the one hand, the absence of a majority-government suggested that the Sirisena-Wickremesinghe reform agenda was going to succeed only with the support of a Parliamentary-majority which initially opposed this same reformist programme. Inevitably, this only meant the need to strike the most remarkable political compromises, which didn’t raise great hopes for meaningful reform; compromises ranging from the inclusion of SLFPers in government, to party-posts for Rajapaksa-supporters (many being tainted by allegations of corruption). It made a UNP-dominated government (which was no model of ‘yahapaalanaya’) even more problematic; but it was also precisely such a government which made the adoption of the 19th Amendment a somewhat realistic goal.

On the other hand, the process gave rise to an old, emblematic problem, concerning reformism in Sri Lanka: the difficulty of democratic reform through democratic means. The uncomfortable truth was that it was through such a nebulous process, a tweak in drafting, and a totally compliant judiciary, that the abolition of the executive presidency – while avoiding a referendum – was possible. The moment the drafts got distributed, the words got interpreted, and the judiciary appeared less compliant, one had to settle for the next available alternative.

But, in the process, nationalist critics in government who were consistent ever since the Presidential election, that they were for reform but not for the total abolition of the Executive Presidency – such as the JHU – emerged as the more principled actors on the political stage; with their political positions now vindicated by a reasonable Supreme Court determination.

19A: A Modest Political Arrangement

The 19th Amendment – which, inter alia, principally reduces the term-limit of the President and establishes a Constitutional Council to facilitate the establishment of independent institutions – is a significant development (to put it in the most abstract terms), for two specific reasons. Firstly, it was because the 19th Amendment was adopted by the same Parliament which adopted the 18th Amendment. Secondly, it was because a President who openly and explicitly promised the reduction of his powers actively ensured that he delivered at least part of his promise.

However, it is perhaps too early to call it what it has been called so far by numerous commentators – either as a ‘victory’ for democracy, a ‘stepping stone’ for greater reform, or a ‘middle path’ – for a number of reasons.

1. The 19th Amendment, at one level, is so fragile that it can be reduced to naught in the event of a SLFP/UPFA dominated government/Parliament being elected at the next general election. For instance, provisions such as those pertaining to the appointment and removal of Ministers – whereby the President now needs to act on the advice of the Prime Minister (though the latter is not the Head of Cabinet) – assumes significance only within the current governmental set-up, wherein the two come from two political parties. Theoretically, we are an election away from such provisions becoming somewhat redundant.

2. A defining feature of the 19th Amendment is its placement of considerable obstacles in the way of the Rajapaksa family from dominating Sri Lankan politics, at least in the short term. With the re-introduction of term-limits, it disables Mahinda Rajapaksa from becoming an Executive President. The reported disabling of dual-citizens from contesting elections (an issue contested by some, though), prevents the likes of Gotabaya Rajapaksa from entering politics. Namal Rajapaksa is sought to be prevented from becoming a Presidential candidate at the next Presidential election since the qualifying age will now be 35 years.

3. The 19th Amendment contains key provisions, the introduction of which makes political sense, only if we are to imagine the continuance of a political system led by President Sirisena, PM Ranil Wickremesinghe and a UNP-dominated government. For example, as an amendment to Art. 70 of the Constitution, the President cannot dissolve Parliament until the expiration of four and a half years. However, this is also, especially under a Sirisena-Presidency and a UNP-dominated Parliament, a power-consolidating provision. It makes ‘democratic’ sense only because it was proposed by a minority-government; but it’s also an introduction by a party (UNP) which is only confident of winning the next election.

4. The ‘President’ in the 19th Amendment is not just any President but largely Maithripala Sirisena. It’s only such an understanding that adds sense to provisions such as those which enable the President to assign to himself ministries such as ‘Mahaweli Development and Environment’.

The 19th Amendment then is the culmination of a power-struggle which didn’t end on 8 January 2015. It’s a modest instrument which, while reforming certain aspects of the 1978 Constitution, also addresses the need for some political stability. It is a necessary and understandable interim political arrangement, the usefulness of which depends largely on the continuation of present power-dynamics. Perhaps what the 19th Amendment has unwittingly done is to make comprehensive reform, the introduction of a new constitution, a more urgent requirement.

The Rajapaksa factor

If there’s any single factor that troubles the current ruling-formation, it’s the Rajapaksa-factor. The 19th Amendment, as argued above, seeks to address this, but not fully or completely; for one cannot legislate in advance for political scenarios that may or may not develop in the future.

The Rajapaksa-factor, broadly conceived, invokes three or four scenarios, all being equally possible given the uncertainties involved in current political developments. Their possibility also depends very much on the manner in which current discussions between President Sirisena and Mahinda Rajapaksa develop.

The first scenario is wherein Mahinda Rajapaksa takes seriously his role of ‘advisor’ of the SLFP (and UPFA), without entering active electoral politics. The realization of such a scenario may be actively promoted by numerous ‘mediators’, including prominent elements within the political Sangha community. Statements attributed to monks such as Ven. Medagoda Abhayatissa suggest that Sinhala nationalism requires the active cooperation of Mahinda Rajapaksa, though not necessarily in the form of an electoral candidate. But the main challenge standing in the way of the smooth realization of this scenario is the popularity commanded by Mahinda Rajapaksa, which is not at a level that compels him to take a back-seat. Rather, it is a kind of popularity which only evokes in him hopes and dreams of a possible return to power.

A second scenario could well be the entry, not of Mahinda Rajapaksa but of Gotabaya Rajapaksa. The 19th Amendment wouldn’t be an obstacle if Mr. Rajapaksa renounces his US-citizenship before the next general election. Such a scenario can only be blocked, either with the assistance of the US government (whereby it could try to ensure that the renunciation takes effect only after the general election) or by making electoral politics difficult through domestic judicial proceedings. Interestingly, it is no coincidence that monks such as Ven. Abhayatissa (referred to above) are also some of the principal supporters of Mr. Gotabaya Rajapaksa.

The third, and broad, scenario is the return of Mahinda Rajapaksa to active electoral politics.

Such a return could be through the SLFP, for his involvement has become essential after the SLFP’s poor show at the May Day rally. A number of SLFPers, such as Nimal Siripala de Silva and Dilan Perera, have already suggested that Mahinda is essential to defeat the UNP (in what form, one doesn’t still know). Or else, Mahinda could return under a different political party. The success of such an entry depends very much on how successfully his supporters could portray Mahinda and his family as innocent victims of a political witch-hunt, and the Tamil people, along with the ‘international community, as a serious threat to the sovereignty of the country.

In short, it’s difficult to manage the Rajapaksa-factor through ‘moderate’ constitutional/legal means. Perhaps the most potent weapon and answer will be the ballot; i.e. a successive electoral defeat, not just of the Rajapaksas but also the political parties/forces they represent.

Sirisena’s dilemmas

That, precisely, is part of the larger dilemma confronting President Sirisena. He would know that the SLFP is currently facing a serious threat of being whitewashed at the election – unless its chances are boosted by the involvement of Mahinda Rajapaksa in its election campaign

Yet, President Sirisena stands to pay a heavy price, in case he makes Mahinda Rajapaksa his Prime Ministerial candidate. Firstly, it’s because Mahinda Rajapaksa is not just a politician – rather, he still is a phenomenon. And in the case of an SLFP-victory, Mahinda will essentially be a de facto President (or Prime Minister, whoever is more powerful). Secondly, President Sirisena would be betraying the support and confidence placed in him by a majority of the country that voted him in, instead of Mahinda. He also runs the risk of being sidelined in case the Sirisena-Rajapaksa combination loses the general election to the UNP. In that case, Ranil Wickremasinghe will be fully justified, not only in abandoning his idea of a national government, but also in reducing President Sirisena to a lame-duck President at any cost.

In conclusion, a UNP-dominated government, including some formidable Sirisena-supporters of the SLFP/UPFA, and a Parliament which makes coalition government essential (with more JVP members), could well be the best political arrangement President Sirisena can hope to have in the near future. Interestingly, the UNP has, so far, appeared to be the only political group that is ready to safeguard President Sirisena; of course for its own political and strategic reasons.

And there’s no reason why it should cease to do so. For after long years, the UNP masses are beginning to see in Sirisena and Wickremasinghe two of their more reliable ‘guardians’ who can lead them to victory at the next general election. Never has the UNP felt so sure of victory under an SLFP leader; and never before has the underbelly of an elephant been so safe for an SLFP leadership.

Courtesy: The Island