Constitutional clash: realism in a time of crisis

Most of the discussion of today’s crisis is from the perspective of a lawyer. Mine is not a legalist point of view. It is a political science view, or even more simply a political view of the problem. I belong to the Realist school of politics, and it is a Realist perspective, which has ‘power’ and the ‘balance of power’, rather than legalism or moralism at the centre of the analysis, that I wish to bring to bear on the current crisis.

In politics as I understand it, the crucial questions are “Who prevails over whom?” (“Kto-Kogo?” in Lenin’s celebrated phrase) and “Who are our friends? Who are our enemies?” (as Mao put it), or more tersely, “the friend/enemy distinction” (in Carl Schmitt’s coinage).  

The Prime Minister is now digging in, eye-balling it with the President. As this crisis unfolds, each of these personalities, and we, the citizenry, shall see what the Constitution is made of and how it works. Whoever comprehends it better, will prevail. If neither does, the Governmental gridlock will be prolonged, with devastating consequences for stability and the economy.  

The crisis of the coalition has turned into a political crisis, which is in turn manifested in a constitutional crisis. The reason is a complete misunderstanding of the Constitution. The Prime Minister and the UNP inhabit a mental universe in which Sri Lanka has a Westminster model, i.e. a parliamentary system, or preponderantly parliamentary, of government. It does not. It has a mixed system which is predominantly an Executive Presidential system. The dice is still laden in favour of the Presidency. 

It is very true that the 19th Amendment imposed certain fetters on the Presidency. However, the 19th Amendment is not a new Constitution. It is by definition, a modification of the existing Constitution. That modification is a structural change, not a system change. The political or state system - the model - is eminently classifiable as Presidentialist. “The Gaullist System in Asia,” as Emeritus Professor of Political Science AJ Wilson defined the 1978 republican Constitution in a 1980 volume, still remains, though with important modifications which make it neo-Gaullist or quasi-Gaullist. 

A Constitution cannot be reduced to a single amendment or viewed through the prism of a single amendment. For instance, the Constitution is irreducible to, and cannot be perceived through the keyhole of, the 13th Amendment of 1987. As with the 13th Amendment, so also the 19th Amendment.

The 19th Amendment has not abolished the logic of the 1978 Jayewardene Constitution. The logic of that Constitution is, in the words of its architect, “a strong and stable Executive free from the whims and fancies of the legislature.” 

While the 19th Amendment renders it less free from the whims and fancies of the legislature than it was, the Executive still remains above and relatively autonomous of the legislature. 

The logic of the 1978 Constitution is that the country is a Republic, which means that the people are sovereign, and the sovereignty of the people, in its Executive aspect, is exercised through a Presidency which is directly and democratically elected by the people as a whole, and in which the office of President cannot be held by anyone who has failed to obtain a majority (50.1%) of the popular vote. 

This is why the Presidency is placed decidedly above the Prime Minister: the President is elected by the whole people, and is therefore the more authentic agency of popular sovereignty. 

The Executive function is that of making decisions, not framing laws. Framing laws is by the legislature. Making decisions is the function of the Presidency, which derives its legitimacy from having been elected by a majority of the people as a whole, unlike the Prime Minister who is elected on a far more restricted base.   

The Prime Minister has several things going against him. 

Firstly, the terrain, i.e. the Constitution, as argued above. The centre of gravity of that Constitution is the Presidency, not the Prime Minister or his slim majority in parliament. The Prime Minister is defying that centre of gravity. At his media conference, the PM said he will “continue to govern” as per the Constitution. He seems to have forgotten that the Head of Government is also the President - and the Head of State. The President is not a mere ceremonial Head of State. 

Secondly, his actual political strength, i.e. his actual political standing and popularity in the country, which has dropped drastically to well below the SLPP/JO, and most certainly below the combination of the SLPP/JO and SLFP/UPFA.

Thirdly, the issue of legitimacy, which is politics usually prevails over mere legality. The Bond scam has made a hole in the PM’s social legitimacy, while President Sirisena’s has been strengthened at least on that large issue. Despite this, the UNP clings to its present leader and current PM, rather than switch to someone else within its ranks.

On these three counts, it is evident that the balance of power does not favour the Prime Minister over the President supported by an SLFP plus MR led Pohottuwa/JO convergence, however tenuous, tentative and tactical. Simply put, MS + MR > RW.

To shift from the issue of the balance of power to that of state power as such, here the PM is disadvantaged, irrespective of the 19th Amendment. It is here that the heart of political power, and indeed the reality of politics itself, lie. 

No halfway-serious political scientist, however senior an academic he/she may be, would confuse the ‘State’ and the ‘Government’. Nor would he/she assume that the two could be placed on par, leave alone envisage a scenario in which in a clash, the Government overrides the State. 

If the Government defies the State, the State intervenes to override the Government. The Government is not the State, and is certainly not superior to the State—it merely manages the day to day affairs of the State. It is the State that in the ultimate analysis determines the Government, and not the Government, the State.

The President, as the elected Executive, is not only the Head of State and Head of Government, he is much more crucially, the Minister of Defence and the Commander-in-Chief of the Armed Forces. An ex-Maoist, he doubtless remembers Mao’s adage that, in the final instance, “all political power flows out the barrel of a gun.” It is the President who wields the Constitutional and legal monopoly of violence. When push comes to shove, that can make the difference. One wonders whether Prime Minister Wickremesinghe, who was never temped to be a leftist of any sort at any time of his life, leave alone a Maoist (and a pupil of N. Sanmugathasan, who met Mao more than once) like the young Maithripala Sirisena, is aware of that.