Has the ‘colonial diarchy’ come to Sri Lanka again?

Friday, 20 April 2018 00:00 -     - {{hitsCtrl.values.hits}}

For the last three four months, Sri Lanka has not been moving forward as it should have been. The most affected are the economy and the people’s living conditions. Only consolation is that there is no overt political repression by the Government despite strong opposition and free criticism. Yet, some of the arrests and detention of the past politicians and officials, because of the selected nature, are popularly perceived as ‘political repression’.

Reconciliation also has not moved forward except for the handing over of private land by the army, to the dissatisfaction of many moderate Tamil constituencies. Despite early warnings in Ampara, the government failed to protect the Muslim community in Kandy in March. People have been arguing about both the symptoms and causes of this situation and the polity has been deeply divided as how to resolve this conundrum. 

The Parliament is prorogued almost for a month and at least 16 members of the ruling coalition would be joining the opposition when it recommences its sessions on 8 May or soon thereafter. Then there was a boycott of the Cabinet immediately after the failed No-Confidence Motion (NCM) against the Prime Minister, quite unprecident in stable democratic systems. 

The defeat of the NCM against the PM has failed to restore confidence and stability in the country or in the Government. One part of the Cabinet also did not vote for him at the NCM. The reasons perhaps go much deeper than just the tattered confidence in the PM.

President and the PM

At the centre of this crisis and controversy are the President and the Prime Minister. They worked together to bring about a most necessary political change in January 2015 and collegially worked together for some time thereafter, even after the first bond scam in 2015 that happened under the PM’s purview. It was well before the political debacle at the Local Government elections on 10 February that the conflict surfaced. 

The poor results of the divided Government only aggravated the situation. The two parties of the President and the PM contested separately and against each other and many of the statements of the President during the election campaign were critical of the PM.

It was no secret that the President and his faction of the Cabinet were asking the PM to resign over the bond scam/s and on the issues of economic management and even exploring the constitutional possibilities of removing him as the PM on which many constitutional experts were divided. Throughout these episodes the PM was keeping silent (or ‘cool’) and asking his colleagues not to criticise even the President’s men. One may say he was behaving like a ‘cunning fox’ an ‘accolade’ previously given to J. R. Jayewardene by Professor A. J. Wilson.

It was in January that the President requested the Supreme Court to clarify whether he could serve the full six years perhaps suddenly realising that his previous stance on ‘giving up power,’ has resulted in the PM becoming the unofficial President or more correctly as an executive Prime Minister, and taking the country towards uncharted waters both nationally and internationally. The end result has been the further deterioration of relations. 

Different interpretations

There are several interpretations given to the current situation and crisis by those who were supporting the political change and democratic reforms, after much deterioration under the conditions of war, or even before and after. The present author also belongs to this category. 

Jehan Perera has expressed the view most recently (“President and Prime Minister need to reach an agreement now,” 16 April 2018) that the main cause of the rivalry between them is the issue of who will be the next presidential candidate from the present Government side. This is a reductionist interpretation which ignores more profound reasons for the conflict like the bond scam, unbalanced foreign policy, sponsoring of the UNHRC resolution, Ranil’s handling of the economy breaching the UNP-SLFP agreement etc. 

Dr. Jehan’s diagnosis of the illness is to prescribe a particular predetermined medicine to the patient. He prescribes that the tussle over who should be the presidential candidate could be resolved ‘reforming the presidency to be one that is elected by Parliament and with reduced powers as a transitional provision.’ What he, and others who advocate such a reform, ignores is the profound destabilisation effect that it could have in the devolved state system at least in the foreseeable future. 

Quarrelling twins? 

There are others who would like to see the conflict as purely a power struggle and the differences being largely personal or even cultural. Rajan Phillips belongs to this category, Kumar David also bashing the socio-cultural aspects of the President on and off more ferociously. Phillips raises the question ‘Is he the worst leader?’ (The Sunday Island, 15 April). It is possible that he is trying to defend the embattled Ranil Wickremesinghe because some media organisations have been attacking RW unreasonably in his opinion. However in the process he has aired his own prejudices and expressed his own way of thinking in defending RW. 

He claims, ‘no one knows for sure what came between the two power-mates that turned Maithripala Sirisena so viciously against his principal political benefactor, Ranil Wickremesinghe. He wagers that this is something more personal than political. He says, “It could be the PM’s superciliousness that may have driven the President to go nuts.” However, “after sulking for months about the ignominy of decisions being made without any referral to him, about cabinets within cabinets, and committees of outside advisers overseeing cabinet ministers, the President may not have been to handle it any more – so he flew off the handle knocking down everything on his flight path.” 

Therefore, his solution is for the PM to become more collegial than supercilious, and the President to be more frank and forthright than sulk and blow? His further proposition is for the ‘civil society mothers’ and perhaps fathers to baby-sit these quarrelling twins of the January 2015 change! 

Constitutional diarchy? 

Among several of those interpretations for the crisis and conflict between President and the PM, the following structural interpretation by Jayadeva Uyangoda (‘When things fall apart,’ 4 March, Colombo Telegraph), might be considered more pertinent except for some ambiguities. He says, 

“The conceptual foundation of the 19th Amendment is a constitutional diarchy, although the framers of the Amendment have not so far used that terminology. It is actually a dual diarchy consisting of the Executive and the Legislature on one hand, and the President and the Prime Minister on the other. The idea of two centres of power – a bi-centric constitutional scheme – was a response to the executive-led mono-centric framework of government created by the 1978 Constitution and subsequently enhanced by the 18th Amendment.” 

There are of course several interpretations for the ‘horrible’ term diarchy in describing a constitutionally dual or a double situation. I wonder whether the constitutional drafters would ever use that term! Initially in Greek times, it meant ‘rule by two kings’ perhaps would suit explaining the Sri Lankan situation better today (President King and the Prime Minister King!), if the powers were more or less equal between the two under the 19th Amendment. But the present situation is more of one grabbing the powers of the other (see Phillip’s quotation above), rendering the whole constitutional situation into chaos. 

In many colonial countries, such mechanisms of diarchy were associated with the ‘divide and rule’ policies of colonial masters, although in Sri Lanka, our national leaders didn’t mind very much those constitutional traps. However in India it was not the case. Although at first, the diarchy carrot managed to divide the Indian political elite, under Mohandas Gandhi’s leadership the non-cooperation and civil disobedience developed. 

In Uyangoda’s analysis, the 19th Amendment has introduced not only diarchy in the executive branch, but also a diarchy between the Executive and the Legislature. In his terms, ‘it is actually a dual diarchy’! If that is the case (and it appears to be), it is a total betrayal of the Yahapalana mandate which was aimed at brining the Executive under the hegemony of the Legislature. 

It is true that the 1978 Constitution was a ‘mono-centric framework.’ The Executive even could control the Legislature. However, the democratic or Yahapalana need was to bring the Executive responsible and answerable to the Legislature like in any other parliamentary democracy, and not merely to release the Legislature from the executive clutches. 

Under the scheme of the second diarchy, therefore, if the powers of the President could be further curtailed as Jehan Perera has suggested, then the position of the Prime Minister would become more dominant and closer to a system of an Executive Prime Minister. 

Objectives of the 

19th Amendment 

Apart from this diarchy business, the confusions in the 19th Amendment are enormous. The confusions are however related to poor drafting, the ambiguous language used and the contradictions created. In terms of its objectives, it appears that the drafters under Ranil Wickremesinghe have very clearly attempted to bring an Executive Prime Minister system into the 19th Amendment. In the initial draft, the Prime Minister was named as the Head of the Cabinet, not the President, on which the Supreme Court ruled that it requires a referendum. It was dropped thereafter. 

Wickremesinghe has been advocating this idea of an Executive Prime Minister very openly in the past and now is trying to implement it quite stealthily. It is also in pursuing this idea that a proposal before the Constitutional Council has been made to have an elected Prime Minister. This has not yet been fully successful because of the remaining powers of the President and the Parliament. It is also with this objective in mind that the PM has been running ‘kitchen cabinets,’ that have generated much displeasure from the President.

There is no much difference between an Executive President and an Executive Prime Minister. A system of diarchy within the Executive or between the Executive and the Legislature is also not healthy for a democracy. When the proposal for an Executive Prime Minister came to the discussion in 2010, a former Secretary General of Parliament, Priyanee Wijesekera, asked the following questions (Sunday Times, 25 July 2010). 

“Is this proposal to establish an office of ‘Executive Prime Minister’ meant to reintroduce a Westminster type head of Government? Or is it an attempt to transplant the powers of Head of State and Commander of the armed forces into the office of Prime Minster who is eligible to hold office for an unlimited number of terms? A clear cut answer to this would be essential before any other reforms are considered.” 

Who has betrayed whom?

The betrayal of revolutions is not an uncommon phenomenon in history. The January 2015 change however was not a social revolution, but at best a limited electoral ‘revolution.’ Election betrayals are more common in history than betrayal of revolutions. Who has betrayed that ‘electoral revolution’ might be a controversial matter, the views depending on what did you expect from that change, to what extent and in what form. 

The people at the Local Government elections have given a (tentative) verdict condemning both parties in the ruling coalition, the UNP and the SLFP. People expected a lot from them, but they have given almost nothing.

At an intra-regime level, if Ranil Wickremesinghe and his supporters expected the President to be a mere tool of their machinations, then he appears to have betrayed that hope. But in terms of democratic reforms, democratic functioning of the government, addressing the people’s economic needs and requirements, the main blame should go the Prime Minister and the Cabinet as a whole. 

The most alarming to me is the ‘diarchy’ created within the Executive and between the Executive and the Legislature under the 19th Amendment, which some may consider as a great achievement and an innovative reform. Under the present constitutional arrangements, the President has many responsibilities but no clear possibility of even in dismissing the Prime Minister (without creating a major crisis) who is entangled in a well-established major corruption scandal in the country. 

This diarchy is equally dangerous like the ignoble Executive Presidency which even might fall into the wrong hands of Rajapaksas soon because of the mistakes and short-sightedness of the ruling coalition who have completely betrayed the electoral promises. To me, compared to the Prime Minister, the President is not the main culprit.