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I have come to the end now of the subjects covered in my book on Political Principles and the Practice in Sri Lanka, which was published in Delhi a decade or so back. I thought it still relevant, since I feel that one reason the Reform Programme with which the current government has been unsuccessful is that it did not pay sufficient attention to basic political principles.
Having gone through some of these, I then looked at how constitutions had developed in Sri Lanka over the last century. The constitutional process began with the Colebrooke Reforms in the 1830s, but then there were very few changes until the McCallum Reforms of 1910. After that changes happened thick and fast, culminating in the current Constitution which was introduced by J R Jayewardene in 1978.
In early days stress was on the Legislative Council, with the Executive Council being a separate entity as it were, controlled by the head of government, the Governor. It was only with the Manning Devonshire Reform of 1924 that two members of the Legislative Council without executive responsibilities were put on the Executive Council. It was also in that Reform that the Legislative Council acquired greater powers of financial oversight, through the establishment of a Public Accounts Committee.
After he won election, Jayewardene ignored his own political theories when he found himself in command of almost absolute power following the massive electoral victory in 1977. He was virtually unquestionable for, along with Senanayake, most of those who had held cabinet office in the 1965 UNP government were dead. Jayewardene was more senior than all those who remained and he soon dismissed his only contemporary, a cabinet minister who had been with him in the 1950s.
The fact that he did not implement his proposals was clearly his own decision rather than the result of political compromise. He probably realised that his control of parliament would be enhanced by continuing the requirement that the cabinet should be drawn from parliament. The executive would not be criticised by members of his own party if they were hoping to join it and if its senior members were present with them in parliament. Another reason may have been that he was winning over members of other parties by offering them executive positions. It would have been embarrassing if they had to vacate their parliamentary seats for this new system, in which case candidates would have had to be nominated to the seats by either Jayewardene himself or the party to which they had originally belonged.
The last chapter of my book dealt with election systems, a matter of particular concern today, when we are conducting an election under a system that is universally condemned. One of the most serious tragedies of the Sirisena Presidency thus far is the failure of those to whom he entrusted the reforms he had promised to work immediately (as promised in the manifesto) on electoral reforms. It seems he tried his best, but was defeated by the intransigence of the UNP, and its fear of both the COPE Report and possible No Confidence Motions.
First-Past-the Post System
Reform has been an urgency for a long time, for Sri Lanka was singularly unlucky in the election systems it has adopted over the years. Initially it had the first-past-the-post system used in Britain, whereby the country was divided into constituencies which elected members by a simple majority. In Sri Lanka a few constituencies had more than one member. This was designed to ensure representation of different communities where they were mixed up together so that two separate constituencies would not have served the purpose. Thus, Akurana usually elected one Sinhala and one Muslim member, while Nuwara Eliya, which became a multi-member constituency for the 1977 election, had one representative each of the United National Party (UNP), the Sri Lanka Freedom Party (SLFP) and the Ceylon Workers Congress (CWC).
In general, however (as opposed to the few multi-member constituencies) the philosophy was that those who won, by however small a margin, took it all. In Britain, the effect of this is mitigated because there are certain constituencies which always stay with one party, so that a party that loses the election still has substantial strength in parliament. In Sri Lanka, however, where most constituencies are what are termed marginals, that is, a small shift either way changes the result, the two major parties found themselves reduced to very small numbers when they lost an election. Thus, the UNP got eight seats out of 101 in 1956 and 17 out of 157 in 1970, while the SLFP had eight out of 168 in 1977. Conversely, the party that won had a massive majority, even though its share of the national vote was just around 50 per cent.
Both in 1970 and in 1977 these massive majorities enabled the party in power to do virtually anything it wanted, including the introduction of new constitutions that represented their narrow interests, and the extension of the term of parliament. It is conceivable that in 1970 those who perpetrated this injustice actually believed in the slogan that parliament was supreme, in that it represented the people. The constitutional principle that representatives elected by the people for a particular period cannot deprive the people of their basic rights was not recognised by them.
Proportional Representation System
J.R. Jayewardene, who presided over the 1977 government and its majoritarian excesses, understood the need for better representation and more safeguards. In his new constitution he introduced proportional representation. He instituted an election system for the future where voting was according to districts. The quota of seats for the district was divided according to the proportion of votes each party got within that district as a whole. In that system, a majority of two-thirds in parliament would mean the mandate of a high percentage of the population. The special measures passed by such a parliament would enjoy the support of representatives of well over half the population. However, he passed several measures with the two-thirds majority he had obtained under the earlier system, including a bill to amend the Constitution to extend the term of that parliament by a further six years.
Initially, the system of proportional representation Jayewardene introduced simply required voters to select a party. The seats the party won would be allocated to its candidates according to their position in the party list. However, in the first election held under that system—the election for District Development Councils in 1981—Jayewardene realised its drawbacks. Those who were not placed high in the party list found out that they could not be elected. Sometimes they crossed over to another party, which would place them high in their list. If they remained on the list, they did not bother to canvass for votes.
Jayewardene, therefore, amended the legislation to allow the voter three choices for selecting candidates on the list. In principle, the idea of allowing the voter choice was a good one, but allowing one choice per voter would have been enough. Candidates could then have campaigned in designated areas against candidates of the opposing party. By allowing three choices, Jayewardene ensured, not only that all candidates would campaign actively all over the district, but also that they campaigned against the other members of their own parties.
Though he succeeded in his aim, it was at a great cost to the country. To cover an entire district in active campaigning required a lot of money, and soon it became apparent that those who did not have massive resources had to acquire them, in order to stay in the race. Thus, after an election candidates made it their first priority to recover the money they had spent. There was greater opportunity for corruption and increased instances of violence. Paid workers of political parties, for instance, who were traditionally plied with liquor, often turned violent in the process of putting up posters or tearing down those of other candidates, especially those of their own party.
Other aspects of the legislation introduced by Jayewardene with regard to elections were also faulty. One provision was that any member of parliament who ceased to be a member of the party from which he had been elected would automatically lose his seat. The argument was that, since a member was elected only by virtue of a vote for the party, he had no individual right to remain as a representative if he no longer belonged to the party. This provision was, however, implemented even for members of the 1977 parliament who had been elected from constituencies as individuals. However, those who had crossed over from the opposition to his party were retained in parliament through a special constitutional amendment. And even when the system of choices within the proportional representation system was introduced, the provision that candidates would lose their seat if they were no longer in the party was retained.
One reason Jayewardene had introduced the provision of losing a seat upon change of party for that it enabled him to exercise a tight control over his party members. While it could be argued that members of political parties should not be allowed to change sides—Jayewardene had first hand experience of the implications of this, since he had been closely associated with the offering of bribes that brought down Sirimavo Bandaranaike’s first government in 1964—the provision entailed that members expelled by their party also lost their seats. Thus, by threatening expulsion against anyone who did not toe the party line, Jayewardene ensured absolute obedience to the party. By the party was meant allegiance to Jayewardene himself as party leader, since there has never been a tradition of internal party democracy in Sri Lankan political parties.
Tarzie Vittachi’s ‘Island in the Sun’ is perhaps the best piece of political satire written in this country. It has graphic desctiptions of the politicians of the nineties, with Sir John Kotelawala for instance being the Rogue Elephant and Dudley Senanayake the Tired Tortoise. J R Jayewardene was the Seethala Kotiya, a description that perhaps would not fit his nephew, familiarly known as ‘Poos’ in the family, a milder member of the Cat family.
But there is another description that fits Ranil well too, given the strange goings on at the Central Bank. Tarzie suggested that R G Senanayake could not move straight even when that was the easiest thing to do. So now we find that, what might have been an understandable – if capital friendly – change of policy was not done direct as a principled man like Eran Wickremaratne might have done. Rather there was clandestine activity which, in a Watergate style operation, has been concealed so that the ugly truth emerges only gradually.
The last conference I attended was in the North East of India, where the topics encapsulated in the title of Prof. Hettige’s book loomed large. The same issues that bedevil development questions in this country were apparent there, and could be summed up perhaps in one word, namely consultation.
I was asked, earlier this week, to speak on the ‘Nexus between Development and Governance; a Sri Lankan Perspective’ at the launch of Prof. Siri Hettige’s latest book, ‘Governance, Conflict and Development in South Asia: Perspectives from India, Nepal and Sri Lanka’. This is in fact a collection of essays, co-edited by Prof. Hettige, bringing together the proceedings of a series of discussions on the subject.
I must confess that I went through only the essays on Sri Lanka, which is a shortcoming, but I should add that I thought it best to concentrate on this country, given the crisis we are going through. Prof. Hettige made some admirable points, though he did so with the detached dignity of an academic, whereas in the current context there might have been a case for a more aggressive approach. But since the essays were written some time back, and the book was a record of what had taken place, I must grant that it would have been difficult to be creatively topical.
In this 8th Chapter of my book on this subject I look at how the majoritarian system of democracy we had in this country contributed to increasing resentment by those who felt shut out of the decision making process. This played out principally with regard to racial differences, where what seemed majoritarianism on the part of successive elected governments contributed to the movement for autonomy and then for secession. But we should also remember that there were deep resentments based on class differences that led to two violent youth insurrections in the seventies and the eighties.
The Official Languages Act
In 1956 S.W.R.D. Bandaranaike became Prime Minister, in a coalition of nationalist forces dominated by the Sri Lanka Freedom Party (SLFP). He had established the party after leaving the United National party (UNP). During the election campaign he had presented himself as a champion of the common man against the elite who had dominated Sri Lankan politics. But due to the pressures of political competition his victory was seen as the triumph of Sinhala nationalism.
In the last few weeks I have looked at the way in which several of the pledges regarding reforms in the President’s manifesto were forgotten or subverted by those to whom he entrusted the Reform process. In addition there are some fields in which reforms have been carried through, but in such a hamfisted fashion that the previous situation seems to shine by comparison.
One area in which this has happened is that of Foreign Relations. The shorter manifesto declared that ‘A respected Foreign Service free of political interference will be re-established’. This was fleshed out in the longer version, with the following being the first four Action Points –
- The country’s foreign policy will be formulated to reflect the government’s national perspectives.
- Within hundred days all political appointments and appointment of relatives attached to the Foreign Service will be annulled and the entire Foreign Service will be reorganised using professional officials and personnel who have obtained professional qualifications. Our foreign service will be transformed into one with the best learned, erudite, efficient personnel who are committed to the country and who hold patriotic views.
- Cordial relations will be strengthened with India, China, Pakistan and Japan, the principal countries of Asia, while improving friendly relations with emerging Asian nations such as Thailand, Indonesia, and Korea without differences.
- Our Indian policy will take into due consideration the diversity of India.
Many who supported Maithripala Sirisena during the last presidential campaign felt that handling of foreign relations by the previous government had been inept. In particular, it seemed that relations with India had deteriorated, sadly so given how solidly India had supported us during our war against terror. Though the then president seemed positive about India, those around him seemed to sidestep any commitments he made, while there was clear evidence of an active effort to destabilize relations.
This happened when he was almost persuaded to cancel a meeting with the leader of an Indian parliamentary delegation, Sushma Swaraj, now India’s foreign minister. That disaster was averted but the anti-indian lobby in the foreign ministry managed in the media to blame India for the debacle that had occurred in Geneva. A resolution critical of Sri Lanka, introduced by the West, had passed, with India voting in favour. But we were told that we should now go back to our traditional foreign policy of friendship with the West, since others were unreliable.
This policy was not at all traditional and only dates back to the aberrations of the eighties, when then president J.R. Jayewardene became an enthusiastic Cold Warrior and thought his alliance with the West was secure enough to withstand Indian displeasure. He even tried to invoke the 1947 Defence Treaty with Britain – and I am told Mrs Thatcher, whom he supported over the Falklands, was inclined to agree – but the British Foreign Office refused.
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Some years back Cambridge University Press in Delhi published a slim volume I wrote entitled ‘Political Principles and their Practice in Sri Lanka’. I prepared this because I had been horrified at the lack of awareness even in students of political science of basic political principles. When we were revising syllabuses at Sabaragamuwa, I realized that the political science syllabus was moribund, with nothing that had been published in the seventies or later on the reading lists. The person in charge seemed to have no knowledge of John Rawls, or the seminal contribution of his ‘Theory of Justice‘ to political thought – and I began to understand then the comment of President Kumaratunga at our first Convocation, when she talked about Sri Lanka being the only country where the frogs in the well were digging themselves deeper and deeper into the ground.
This approach to life seemed to have become endemic at Peradeniya, with little added to learning or thought after the seventies. This has contributed to a very passive approach to the subject, with outdated theory being the focus of attention rather than the actual processes of government. Thus, when I addressed a meeting recently for the common opposition candidate in Kandy, I was startled to find a very formulaic approach to the question of the Executive Presidency, with no attention being paid to the very practical problems created by the particularly perverse form J R Jayewardene had introduced.
But this had started earlier, with the sycophantic celebration of the Jayewardene constitution presented in ‘The Gaullist Constitution of Sri Lanka’, written by a supposedly great scholar, A J Wilson. I am sure Wilson had his plus points, but he failed completely to analyse the crucial contradiction in Jayewardene’s approach, which was to impose a Presidential system on the Westminster Parliamentary model. Sadly no scholar in our universities, as far as I know, has analysed the implications of this for the doctrine of the Separation of Powers, which is the main reason for an Executive Presidency. Read the rest of this entry »
Appointments and Removals:
The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal shall be appointed by the President SUBJECT TO APPROVAL BY THE SENATE
One of the most worrying incidents that took place during President Rajapaksa’s second Presidency had been the impeachment of the Chief Justice. She had not been the best choice for the position and the Opposition had raised questions about the appointment and her conduct, after the appointment was made. But the impeachment was badly handled, and in terms of bizarre provisions in the relevant instruments, the Constitution and the Standing Orders of Parliament. The former simply specified that impeachment should be by procedures laid down by Standing Orders, and the relevant Standing Orders had been hastily formulated when President Jayewardene wanted to put pressure on the Chief Justice he had appointed, one of his private lawyers, who had nevertheless begun to speak out against government excesses.
The leader of the Opposition was to grant that only half the required Standing Order had been set up, and since that had worked and the then Chief Justice had been subdued, the other half had been forgotten. So the provision remained that Parliament appointed a Select Committee to investigate, which involved it acting as both prosecution and judge. In the intervening thirty years it had often been pointed out that these provisions were unjust, and commitments had been made that they should be changed, but nothing had been done about this.
The Select Committee appointed by Parliament made matters worse by behaving in boorish fashion and giving the Chief Justice no time to formulate a defence. It also gave her no notice of witnesses it proposed to call, and summoned them after she had withdrawn, as had done also the opposition members of the Committee. Rulings by the Courts that the proceedings should be stayed were ignored, and the motion was duly carried, with only a very few members on the government side refusing to vote for the motion.
Though government also realized how unfair the system was, and some members pledged to change it, even while arguing that what had been done was perfectly constitutional and so could not have been avoided, all this was forgotten after the Chief Justice was removed, and Mohan Pieris installed in her place. The Speaker showed his contempt for, or perhaps just his ignorance of, Standing Orders in failing to put my proposals to amend them to Parliament. The Standing Orders themselves mandated that any such proposal to amend should be put to the House and, after being seconded, be referred to the Committee on Standing Orders, but instead the Speaker said he would refer them direct to the Committee. Since he had avoided making clear the mandate Parliament would have bestowed, he failed to summon the Committee, and got away with this for over a year. Before that, despite repeated requests, though sadly only from me, he had not summoned the Committee for three years.
I regret that I was the only Member of that Committee to make repeated requests that the Committee be reconvened. Unfortunately the Opposition Chief Whip who was on the Committee had no understanding of the importance of Standing Orders, while the TNA Representative, Mr Sumanthiran, who had worked assiduously with me to redraft about a quarter of the whole in the first three months of the new Parliament, kept quiet when meetings were suddenly stopped, perhaps because we had been too efficient. Obviously it made sense for the TNA not to bother too much to increase the effectiveness of Parliament, since that might have detracted from their main contention, that Parliament was incapable of serving the interests of the Tamil people. Read the rest of this entry »