Sri Lanka needs urgent surgery!

Sri Lanka can be considered a country which has fallen into a level of wretchedness as a consequence of stupid policies – Pic by Shehan Gunasekara 

Sri Lanka was on the slippery slope of a serious crisis, heading for a great disaster of the State, even before the outbreak of Easter Sunday attacks. Now, in the aftermath of the ruthless Easter Sunday attacks, the country’s crisis has become exacerbated by many times compared to what it was, resulting in a near collapse of not only the State, but also the society, economy and the political background as well . 

The decline in the economy can lead to a state of complete bankruptcy. The banking system of the country may even end up in a total collapse. In the face of this situation, there can be a total collapse of the entire economy of the country, creating a disordered mess of the life of the people. There was no integration in the social system. Now it has reached a state of almost total collapse. The decline in the State has reached its climax. 

The political arena of the country too is fast moving towards a total collapse. Now, there are no charismatic leaders in the political field. All conventional leaders have become a bunch of cronies and comedians. Old heroes, in the political sense, are dying and disappearing from the scene without producing new heroes to replace them. 

It was about a year ago that the Punarudaya Movement predicted the advent of a political tsunami in Sri Lanka. Now, it can be said that the said situation has occurred. 

The issue of what should be done, at national level, to mobilise the future course of the country for a better change can be considered the biggest question that the heads of state and other leaders and the intelligentsia of the country have failed to realise. 

The path to be selected 

The present situation of the country can be compared to a chronic disease of the ageing or to a situation encountered in the face of a foreign invasion or a serious natural disaster. In the event of a sudden threat of a foreign invasion, the country cannot act on its usual timetable. A new timetable appropriate for the war situation must be adopted and acted on accordingly. It is the same in a situation of an outbreak of an epidemic or a serious natural disaster, which means the deviation from the usual timetable and formulating a new timetable capable of facing the new challenge and acting in accordance with it.

Once a life-threatening cancer is detected, the patient will quickly change his usual pattern of life and rush to treat for the cancer. He would not be inclined to ignore the priority deserved to be given to the cancer, merely to maintain his old life style. 

Now, Sri Lanka stands in a similar condition which does not permit the country to maintain its normal lifestyle. It must realise the magnitude of the destructive crisis the State, social and political system and the economy are facing at this moment and remedy the cancerous condition which has engulfed these four areas expeditiously, before it leads to a greater disaster. The country must change its usual pattern of life. It must be subjected to an emergency surgery. The full attention of all national political leaders, religious dignitaries, intelligentsia and the society at large should be focused on this urgent need. 

What is meant by an emergency surgery?

First of all, the patient must be rushed to the hospital as early as possible and subjected to a thorough medical examination. Apart from the extent of the cancer, the cause of it too has to be diagnosed. The treatment to be administered or surgery performed to cure the patient and restore him to normalcy should be correctly identified. Thereafter, the surgery should be performed. 

Diagnosis of the case prior to performing the surgery 

The political meaning of this analogy is as follows.

All ruling parties and the opposition of Sri Lanka, the religious leaders and intellectuals, and society at large should realise that the political and social system of the country has deteriorated to such a degree that its functioning will come to a standstill and admit the need for making a new constitution that would enable a complete transformation of the entire system. 

It is important that an appropriate constitution module, for which the people could participate actively, must be selected, and in the meantime, until it is framed and implemented, an interim constitution which gives authority for the formulation of the new constitution, should be adopted. 

Before making a new constitution, it is important that a complete assessment is made about how things happened and the mistakes that occurred in all important sectors. Then, along with this assessment, the changes to be effected in all sectors and the national policies required for that must be identified. 

First of all, a suitable system of governance and the basic features that should be incorporated in it must be identified; these basic features should constitute the principles of the new constitution to be adopted. The constitution must be drafted in accordance with these principles. People should be allowed to participate in the total process actively and all activities relevant to the entire process should be carried out transparently so that people can see it clearly. 

Participatory constitution making can be considered the only and the most suitable constitution module that can be selected for a complete structural transformation. It’s a module that gives an opportunity to the people to get involved in the constitution making process from its beginning to the end. On the other hand, it doesn’t restrict itself only to the process of drafting the constitution; it is a module that allows for a complete review of the process and provide for a complete transformation of the entire socio-political system.

It was in a similar way that the Apartheid rulers of South Africa took a step backward, giving the native Africans a prominent place. Prior to this transformation, the racist South African State stood in a state of impasse in which it couldn’t move at least one step forward. 

The independence struggle of the native Africans had reached a level that was not possible to be defeated. Yet, despite the massive people’s power of the native Africans, they still remained at a level in which they couldn’t fight and defeat the racist supremacy of the European colonisers of Africa. In this unique backdrop, the only way out available for the racist European colonisers was to actively participate in a political process which eventually passed the ruling power to the native Africans with the least damage to the former.

The policy adopted by the British rulers in India was also similar to this. The British, realising that the Indian independence struggle was not possible to be crushed and defeated by force, left India, granting independence to Indians. By doing that, they were able to protect the British image.

Now, the conventional politicians of our country are also faced with a situation similar to the condition faced by the British rulers in India and the racist European colonisers of South Africa. They have not been able to perform an effective role even at times when they had public recognition and respect. Despite having done some good, the damage and destruction caused to the country by them is immense. 

In the face of the complete loss of public respect, the most suitable course available for them at this juncture is to prepare the required framework conducive to a transformation leading to the common good of the country and retire from politics. 

If they possess the necessary discipline to adopt such a flexible policy, despite serious errors committed by them, perhaps it might lead to create a similar impression in the minds of the people about them, the way the people of South Africa treated the racist European colonisers who ruled them and those of India treated the British rulers when the rule of their respective countries was handed over to them by their former masters.

Election path 

The consequence of adopting a policy of going for elections on the assumption of “let what may happen thereafter” without remedying the acute crisis the country is facing can be disastrous. But it is the way that can be considered as the most familiar to Sri Lanka.

Sri Lanka can be considered a country which has fallen into a level of wretchedness as a consequence of stupid policies adopted in which serious errors made are left to petrify without being rectified immediately.

In the present backdrop, if Sri Lanka continues to proceed as usual, ignoring the degeneration in the State, its system of institutions and socio-political system and the urgent need for setting them right, the entire system might face a total collapse, making the re-creation of it thereafter an extremely difficult task. 

In any case, elections will not be a solution for the massive crisis the country is facing. It is not possible to expect that this situation will remain the same until the advent of election time. The country was in a deep crisis even prior to the Easter Sunday attacks. The Easter carnage was only a chapter of the old crisis which added to intensify the existing crisis. 

The story of the crisis will not end there. There can be more crises ahead. All such crises will invariably weaken the level of endurance of the country. There are many chapters to unfold in this crisis. The economic tsunami can be the newest chapter that may unfold next. 

There can be a collapse in the banking system. This can lead to an evaporation of the savings of the people. Unemployment and the unbearable cost of living can create an explosive situation. There are many things that can happen in the next six months. All that will upset the election map. 

It is the Presidential Election that has to be held first, according to the election timetable. Even if it will be possible to hold a Presidential Election, it will not provide a solution to the crisis the country is facing. Instead, it may aggravate the crisis. Abstaining from rectifying the crisis using the forthcoming Presidential Election as an excuse for it will not do any good and will only aggravate the condition of the patient. 

The Presidential Election may not enthuse and inspire the people, and if the candidate who wins fails to score 50% or more of the votes polled or the percentage that uses the vote declines to a level of less than 50%, it can lead to a serious constitutional crisis. 

Even if a candidate emerges victorious, polling more than 50% of votes, in view of the changes made in the powers of the executive president under the 19th Amendment, there is hardly a positive role that can be played by a victorious president. Therefore, it will be inevitable that the president elected will fall into a level of a joker in the eyes of the people, who will become a subject of their derision and ridicule or a ruler who will become a source of anger of the people. 

Reality of the next president 

The status of the president prior to and after the 19th Amendment is not the same. Prior to the 19th Amendment, the President had all the powers concentrated in him. He was the head of the state, head of the executive and of the government, head of the cabinet which he himself appoints and the commander-in-chief of the armed forces. The president held the power to appoint the prime minister and the members of the cabinet and remove them at his discretion. He also had the power to summon, prorogue and dissolve the Parliament at any moment at his discretion after one year of the election of the Parliament. 

The president had the power to summon the cabinet of ministers. If a minister wanted to present any matter for consideration of cabinet of ministers, a written memorandum to that effect had to be presented to the president. The president had the discretionary power to decide the items that should be included in the agenda of the cabinet meetings. 

According to Clause 35(1) of the Constitution, the president enjoyed the immunity from civil or criminal proceedings in respect of anything done or omitted to be done, either in his official or private capacity. Prior to the 19th Amendment, the President of Sri Lanka enjoyed more powers than those enjoyed by the President of the USA. According to President J.R. Jayewardene, he couldn’t do only one thing – make a woman a man and a man a woman. 

But, after the 19th Amendment, the status of the president has become totally different. Presently, the President is more a nominal Head of State devoid of executive powers. Despite being the Head of the State, the Head of the Government and the Commanding Chief of the three armed forces, his position is more or less similar to that of a nominal president. 

As per clause 33 of the Constitution, the duties, powers and functions of the president are as follows:

1. Ensure that the Constitution is respected and upheld;

2. Promote national reconciliation and integration;

3. Ensure and facilitate the proper functioning of the Constitutional Council and the institutions referred to in Chapter VIIA; and

4. On the advice of the Election Commission, ensure the creation of proper conditions for the conduct of free and fair elections and referendums.

Apart from powers and functions listed above, all other powers vested in the President can be said to be nominal. The presidents who will be elected in the future will not possess the power to retain even the Ministry of Mahaweli Development in their jurisdiction, which is presently being held by Maithripala Sirisena, the incumbent President. The Supreme Court judgment which declared the attempt of President Maithripala Sirisena to dissolve the Parliament after changing the prime minister and the cabinet of ministers null and void reflects the extent to which the 19th Amendment has clipped the wings of the President. 

The next president elected will not have any executive powers. He cannot decide the prime minister or the cabinet of ministers; nor can he change the prime minister or the cabinet of ministers.

Following the 19th Amendment, all executive powers are now vested in the prime minister. The president, who had all the powers concentrated in him previously, has been deprived of them and reduced, to a great extent, to a level of a nominal president. Despite the president being elected by public vote treating the whole country as a single electorate, constitutionally, his position will be very much similar to that of William Gopallawa, who held the post of President during the regime of Sirima Bandaranaike. 

Why don’t the prospective candidates of the forthcoming presidential election tell the people this bitter truth? Aren’t they aware of the changes made in the powers of the president? Or else, do they think that it is not important to arrogate a solemnity to this position and deceive people to win it, although it has only a symbolic value?

Only Nagananda Kodituwakku seems to have made a big story to attach great importance to his contest. He claims that he has already drafted a constitution for Sri Lanka which he will present to the people at the next presidential election which he envisages to contest and if he wins and is elected president, it will be implemented from that moment itself, on the presumption that the election victory will signify people’s approval for the adoption of the constitution. 

The subject of constitution making has traditions and laws, both local and international. What Nagananda intends to do is contrary to all traditions and laws. It is not possible to find a single example from the world history of constitution making to support his methodology of constitution making. 

There is a legally-approved procedure to be complied with, not only in making a constitution which forms the fundamental law of the country, but also for enacting a normal Bill into law. Even an ordinary Bill, before it is placed on the Order Paper of Parliament, shall be published in the Gazette at least seven days before, for public knowledge. As per Standing Orders of Parliament, a draft Bill gazetted cannot be taken for debate till seven days have passed after it has been placed on the Order Paper of Parliament. 

During this period people can express their views on the draft Bill and if necessary, they can go to Court against it. Thereafter, the draft Bill should be discussed and debated in Parliament as well as at committee level. It is only after a Bill is passed by Parliament this way that it shall become law, when the certificate of the Speaker is endorsed thereon. 

When there is a clear and comprehensive procedure laid down even for enactment of a simple law, it is not necessary to reiterate that there is a more formal way of making a constitution, the fundamental law of the country. If a president of the country could draft a constitution and enact it as the law of the country by virtue of his being elected by the people, then not only Kodituwakku but Maithripala Sirisena, the incumbent President too, should be able to exercise that power. The ideas expressed by Kodituwakku on the constitution are contrary not only to the local and the international law but also to the basic principles of democracy. 

I have already written about his constitution theory before. But I am of the view that it was not I who should have pointed out the right and wrong about his special theory on constitution making to the people, but the university academics and professors in Sri Lanka who have specialised in the subject of constitution making and political science. Unfortunately, they too, like politicians of our country, appear to be following a policy of non-involvement, letting false views and perceptions take root among the public.