Naya Qanoon and the ‘New Constitution’

Wednesday, 1 April 2015 00:00 -     - {{hitsCtrl.values.hits}}

President Maithripala Sirisena promised the abolition of the executive presidential system as one his immediate tasks which he would implement within a 100 days of his election and have it replaced with a parliamentary form of government acceptable to the people   By Dr. Reeza Hameed The draft 19th Amendment reminds me of the story ‘Naya Qanoon’ (New Constitution) written by the late Saadat Manto, regarded by many as the finest writer of short stories in Urdu and as the greatest South Asian writer of the 20th century. Set in pre-independence Lahore of the 1930s the main protagonist of the story is a tongawalla called Mangu. One day, Mangu overhears two of his customers discussing a new constitution that was to be introduced in a few days. Mangu hated the British, and was sick and tired of the humiliation and abuse that he had suffered under British rule. Mangu is excited by the prospect of freedom that he believed would be ushered in by the constitution. He imagined it would be something bright and full of promise and spends the next few days getting ready to celebrate the arrival of the new constitution. On the appointed day, he discovers that nothing has changed and everything appeared as before. An Englishman with whom he had an argument on a previous occasion approaches him for hire. Emboldened by the prospect of change promised by the constitution, Mangu wants to put his customer in place and in a sharp voice quotes his customer more than his usual fare for the journey. The encounter with the Englishman ends up in an altercation with Mangu landing several blows on his customer saying: “Those days are gone, friends, when they ruled the roost. There is a new Constitution now, fellows, a new Constitution.” Inevitably, Mangu gets picked up by the police and is taken to the station. “All along the way, and even inside the station, he kept screaming, “New Constitution, new Constitution!” but nobody paid any attention to him. “New Constitution, new constitution! What rubbish are you talking? It’s the same old Constitution.” And he was locked up.” President Maithripala’s Manifesto promise Candidate Maithripala Sirisena was endorsed as the common candidate by those who were opposed to the re-election of former President Rajapaksa on the basis of a Memorandum of Understanding which he had signed with those leaders who sponsored his candidacy. He promised the abolition of the executive presidential system as one his immediate tasks which he would implement within a 100 days of his election and have it replaced with a parliamentary form of government acceptable to the people. He declared: “The immediate tasks will be implemented within a 100 days, including abolition of the current executive presidency and the re-establishment of a parliamentary form of government.” In the manifesto that followed, he lamented over his predecessors’ failure to implement their promises that they had made since 1994 to constitutionally change the executive presidential system. Candidate Sirisena acknowledged that the responsibility is with the President to take the initiative to reach an accord among the main political parties and carry through the constitutional amendment, and it was to fulfil this task that he decided to present himself as the common candidate. In his Manifesto, he declared: “The present executive presidential system will be abolished within a hundred days and replaced by a parliamentary form accountable to the people. Under the parliamentary system, the president will symbolise national unity and have duties and powers appropriate to the position.” New Constitution is very much like the old one The Draft 19th Amendment seeks to achieve the continuance of the executive presidency, albeit in a slightly-truncated form. Worryingly, it retains most of the unsatisfactory features of that office, thereby perpetuating an office that became an instrument of authoritarian rule and an obstacle to constitutional democracy in this country. The impression that one is left with is that the failure to abolish the executive presidency is not entirely the fault of President Sirisena, for there are reports to the effect that some of his Government partners are opposed to its abolition, although they have no objection to him scratching its surface. They have sought to place a gloss on President Sirisena’s promise made in the Manifesto and have asserted that he never promised to abolish the executive presidency but only to reduce its powers, a stance that prompted Dr. Jayampathy Wickramaratne to warn that ‘it is extremely dangerous for it can sabotage the entire process of abolishing the executive presidency’. It remains to be seen whether that is the ultimate aim of those who are opposed to the changes promised by President Sirisena. Why retain the presidential office? Those who are opposed to the abolition of the executive presidency argue that it is essential to maintain stability in government. J.R. Jayewardene, who was instrumental in the creation of a strong executive directly elected by the people, promoted it as necessary to achieve stable government and as a pre-requisite for economic growth. J.R. Jayewardene argued that the Westminster system of choosing the executive from Parliament produced unstable governments when it lost the support of the majority in Parliament. The solution that he suggested was to have “a strong executive, seated in power for a fixed number of years, not subject to the whims and fancies of an elected legislature”. A similar rationale was advanced, with some justification, for the introduction of a strong executive in the French Constitution now in force. French cabinets under the Third and Fourth French Republics did not last long. Under the Third Republic, they did not last more than 10 months on an average; from 1875 to 1925 there were more than 50 cabinets, mainly due to the fact that the cabinets were coalitions, producing executive instability. The experience of the French under the Fourth French Republic was not much better. Governments had short shelf lives and between the Second World War and 1958, when the Fifth Republican Constitution was introduced, France had seen 25 cabinets. Prime Ministers were unable to embark on unpopular reforms, a situation that was made worse by the Algerian crisis. There was public distrust of political parties, too. The Fifth Republican Constitution was tailor made to suit De Gaulle’s cherished ambition of strengthening the executive at the expense of the French parliament. De Gaulle had an oversized ego, a fact illustrated by his response at an interview as to where he would like to be buried on his death. The old man kept silent to this question by a journalist, who prompted him with some suggestions. He showed no interest when the journalist made several suggestions including the Arch de Triomphe and the Les Invalides where Napoleon lay buried. However, his eyes brightened and he sat up when the journalist mentioned the Holy Sepulchre. In contrast, between 1947 and 1977, there were only eight elections including one that was necessitated by the assassination of a Prime Minister. The rationale that was advanced in justification of the introduction of the executive presidency is one that is questionable. JR Jayewardene arguably saw himself as the Sri Lankan de Gaulle, and the Second Republican Constitution was tailor made to suit his wishes. The road to authoritarianism The presidential system has been popular especially in Latin American and East European and Central European countries that were emerging out of authoritarian systems. The presidential system or something akin to it was adopted mostly in those countries. These countries had been authoritarian regimes and chose the semi-presidential system with a strong executive to manage the transition from authoritarian to democratic regimes and to ensure political stability on the assumption that only a powerful president would be able to unite the nation on divisive political issues. The experience of Sri Lanka has been significantly different. Sri Lanka has enjoyed universal suffrage long before the country became independent and the people had for decades been working with the Westminster form of government electing their governments through parliament by popular franchise. The executive president has actually been instrumental in presiding over the gradual transition of the country from democratic to authoritarian rule. We have witnessed over the years how an institution which was brought into being avowedly to introduce efficiency became an instrument of corruption by patronage, one that produced colossal waste and bred inefficiency and turned government virtually into a one-man show. The institution has put on weight and become bloated like a sumo wrestler, virtually bursting at its seams without a belt to restrain its expanding waistline. The other claim that without an executive president the war against LTTE could not have been won too has little credence. The LTTE insurgency reared up its head at a time when J.R. Jayewardene was President. In fact, successive presidents, including Mahinda Rajapaksa, promised its abolition even when the conflict with the LTTE was continuing. Why would they promise to get rid of the office if its continuance was essential to fight the LTTE? (The writer is an Attorney-at-law.)