Reform Prospects: Missing Middle, Last Chance, Aragalaya-2? 

By Rajan Philips –

This is a sequel to what I wrote last week concerning President Wickremasinghe’s options and the country’s counter options. I will take one more kick at the can to say why now is the time for presidential and political reforms, and why the opportunity should not be missed. As potential reforms go, presidential reform is the centerpiece, but there are also other reform tasks targeting the electoral system, devolution and the provinces, and the administrative system to provide public service independent of political preferences. Hence the rubric of political reforms. 

Also, I use the term presidential reform advisedly, to emphasize that reforming the presidency is not abolishing the presidency. There will have to be a president, but one that is somewhere between old the Governor General and the current Executive President. Fundamentally, a future president, as Head of State, should not be directly elected by the people at large. Nor should she/he be left to be appointed by a prime minister, as Head of Government. The task of reform would be to find a middle way to have future presidents  elected by representatives who are directly elected by the people in their constituencies. 

The powers of future presidents should also be different. Significantly less than what is provided now, but sensibly more than the ceremonial powers of the past. The Head of State should not be the Head of Government or Head of Cabinet, but could provide a firewall against government interferences in the independent functioning of the electoral process, appointment of judges and their independence, and the independent functioning of public servants in implementing government policy. 

The Missing Middle

Most of all, presidential powers could be modified to address the implications of the 13^th Amendment and the Provincial Council system it created, which have been the principal constitutional change since the presidential system was adopted in 1978. In fact, 13A could be seen as a paradigm shift since constitutional government began in Sri Lanka under colonial rule as well as after it. While debates have been raging for and against the presidential system, on the one hand, and the provincial council system, on the other, the missing middle is the concerted effort to synthesize the two and to reinforce their strengths and restrict their shortcomings. 

Sri Lanka still has a few old school legal experts left to do this and more, but the political leadership is woefully wanting in the capacity to realize what is missing and the wisdom to appreciate where help can be found and to get it done forthwith.

President Wickremesinghe thinks and acts like the know-it-all. 

Gotabaya Rajapaksa, on the other hand, nationalized native ignorance when he appointed a constitutional committee of so called experts to produce a whole draft for a new constitution without public consultation or parliamentary input. Whatever draft that the now defunct committee produced deservedly ended up defunct as well. So, everyone thought. Now there are attempts to resurrect it. The same sinister forces who got Gota to do all the crazy things they wanted, and then went quiet and hid themselves as Gota’s presidency spectacularly unraveled, are now back at it again. They want the rejected constitutional committee report resurrected. 

They have found an opening, rather many openings, in all the presidential meanderings of Ranil Wickremesinghe, to peddle their politics; and they have found patronizing media outlets to publicize their petitions. President Wickremesinghe must take almost all the blame for the new turn of events. He has not solicited or secured principled support in parliament, only an opportunistic voting bloc. He handsomely admits that he is not popular as a politician, but does everything possible to alienate the people at every turn. His 13A adventure may turn out to be a misadventure. Rather than building support for incrementally and systematically implementing 13A, he is providing opportunities for its detractors to call for its wholesale rejection. 

What is the 13A implementation that the President is trying to achieve on paper when the provincial councils are not functioning and have been in a state of dissolution for nearly five years? Where is the spirit of devolution and how is its purpose being served, when the President relies solely on his executive powers to implement the provincial council system when there is no provincial council anywhere? Doesn’t he want to know what live and functioning Provincial Councils may have to say about the implementation of their own system? Or does he know it all?  

For good measure the President keeps lecturing MPs that parliament should act responsibly to implement the 13A the way he sees it. At the same time, he dismisses calls by opposition political parties to hold elections, not only provincial elections, but also local government and parliamentary elections. Without elected provincial councils there is no meaningful ‘implementation’ of the provincial council system. Additionally, how can the president expect political parties to support him to implement the provincial council system, when he summarily spurns their calls to implement it by holding elections in the first place? Not to mention the government trying to strongarm the judiciary to stop it from reviewing an apparently privileged but really superfluous parliamentary resolution on domestic debt restructuring.  

Or take police reform. No one taking sides in the brouhaha over provincial police powers is showing any concern for the dysfunctional state of affairs in the national police service. In the Sunday Island last week (August 13), the retired DIG Kingsley Wickremasuriya lists the opportunities lost by successive governments for implementing police reform. And he asserts that the current “dilly-dallying with the appointment of a successor to take over, apparently for reasons of political expediency … is the first time in the known history of the Department that the Police had to face such a situation.” 

In this state of national police mess, how is a Provincial Council going to handle police powers? It will not be a case of devolving powers, but distributing a national mess. Put another way, nothing can be done provincially unless everything is reformed nationally. There is no piecemeal way to devolving powers without comprehensive political reforms. That does not mean that you consign provincial councils to cold storage without elections, but prioritize and carry out reform tasks systematically and consistently.  

The Last Chance

As I noted last week circumstances have brought Ranil Wickremesinghe to his current position of power. The same circumstances have also a created a vacuum of presidential aspirants. There are no strong presidential candidates with formidable political alliances as in the past. That creates the potential and the space for political and presidential reform independent of presidential elections. The situation in parliament is also conducive to building support among both government and opposition MPs to implement a principled reform agenda. 

It is the convergence of the three developments, a triple convergence: Ranil Wickremesinghe as caretaker president, absence of strong presidential contenders, and the ‘hung situation’ in parliament – that has created the current unique situation for implementing political reform. It is unlikely that a similar convergence will occur any time in the near future. It is an ideal opportunity that should not be missed. 

And it can be seized only if President Wickremesinghe were to declare that he will not be seeking a new term as elected president, and disinterestedly invite parliamentarians to join him on a reform agenda that could be undertaken by the current parliament in short order, along with local, provincial and parliamentary elections. He cannot expect and he will not get the requisite support in parliament for any reform if he were to continue maneuvering to be a presidential candidate. 

As I also argued last week, any and all reform prospects will be ruined if President Wickremesinghe were to go ahead with his current plans to be a presidential candidate and find way to call an early presidential election at the time of his choosing. There is also the ominous side to Ranil Wickremesinghe and what it could mean with him at the helm as an elected president. 

And it would be anti-reformative for any political party to let President Wickremesinghe go ahead with his candidacy plans in the hope of being able to defeat him in his own game. Even if he were to be defeated, it will be a pyrrhic victory as far as political reforms are concerned. For there will be no reform as long as there is an elected president, no matter whoever it might be. And if the current opportunity for stopping presidential elections were to be lost, it may not be possible to stop them from continuing for the foreseeable future. 

The big question is, what is there to stop President Wickremesinghe going ahead with his candidacy plans? For starters, as caretaker president he cannot call an early presidential election under the Third Amendment. Any attempt to circumvent that restriction or get a favourable court ruling to pre-empt it should be resisted. That resistance will also send him the clear message that the harder he tries to be a candidate the more unpopular he  will become to win an election. But stopping him from being a candidate will not be enough to usher in reforms. 

The more positive question is, what is to be done to make President Wickremesinghe to become a catalyst for reform and not a candidate for its ruin. The short answer is Aragalaya Version 2. If that were ever possible. The opposition political parties could take the lead, but so far they have shown a tendency to oppose President Wickremesinghe by following him, rather than forestalling him. For starters, they may try a parliamentary resolution on political reform. If passed, the Speaker could be asked to declare it out bounds for the judiciary.      

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