Rajpal's Column

14th November 1999

Why the PA revelled in "the snare"

By Rajpal Abeynayake

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Certain political analysts want to paint the President as the wronged heroine who was somehow saddled with a Constitution she just could not change. Lengthy justifications have been made for her inability to dismantle the executive presidency, in an article titled "Untangling the constitutional trap from the obstructionist opposition" which made its appearance in a Daily News supplement which was apparently an effusive celebration of the President's completion of five years in office.

The rationale is simple but funny. The President is "fully conscious that in asking for a second term she is doing so for an office which she promised to abolish five years ago. But in doing so she is following the logic inherent in the Constitution with which she saddled," the writer states.

The poor thing! The proposition that the present constitution is a 'snare' for the President is preposterous especially considering the fact that she has circumvented all possible mechanisms that were available to her to dismantle it, just so that she can continue to be executive president.

And what has the 'inherent logic of the Constitution' got to do with the inability of the People's Alliance to get a proper majority in parliament? There is some attempt to explain that as well, but it's almost embarrassing to unravel the sheer prevarication inherent in the arguments adduced in the process. Some of it, have fortunately been dealt with already, by J Oleap Fernando, writing in Friday's Island. This writer dismisses with facts, and a bit of deserved contempt, the notion that has been blithely trotted out by the pro-PA analyst, who has said the PA was only able to form a government with a wafer thin majority in parliament in 1994, because 'the system of parliamentary elections compounded of district level proportional representation, National List seats and bonus seats did not accurately reflect the popular will of the electorate.'

Mr. Fernando points out that the new PA constitution, copies word for word (without even a comma or fullstop removed ) the identical PR provisions of the 1978 second Republican Constitution, introduced by the PA government.

So much for the constitutional snare that the aggrieved and wronged President is supposed to be trapped in. It appears that it's best that PA apologists do not over-reach when they attempt to do a job of propaganda for the government, because though they may have a brief to paint the government in an aggrieved light, it's obvious that doing that job without basic respect for the people's intelligence will only expose the self-serving motives behind the PA's exaggerated claims.

The example of PR being copied word for word in the government's new constitution shows that the PA is not really in any constitutional snare; what the PA knows is that it is convenient to blame the prevailing Constitution for some of the promises never kept.

Then there is the claim in the Daily News piece that the PA had a wafer thin majority in 1994, while the President was able to secure an 'overwhelming majority' three months later, thus unmasking another latent anomaly in the Constitution apparently.

It's one thing that the PA seeks to duplicate these same PR provisions in the new constitution; but more important is the fact that there is no anomaly in PR or the bonus seats, which contributed to the two different results in elections three months apart in 1994. Proportional representation, no matter who introduced it, with its inherent cumbersomeness, is nevertheless meant to proportionally reflect the voter preferences of the electorate, and this would be obvious to any political tyro or student. Maybe this is why the new PA constitution wants to retain the identical PR provisions, in the first place, despite the PA writers insistence that PR was one of JR Jayewaredene's cunning stratagems to retain a perpetual UNP government.

Proportional representation cannot be blamed for the PA's wafer thin victory in early 1994 as that's the way the cookie crumbled then, and of course, Ms. Kumaratunga eventually acquired national stature and won handsomely three months later against a very weak UNP candidate. That proportional representation is more representative and therefore a more democratic form of governance is obvious from the anomalies that took place when the first-past-the-post system was in place. When the UNP for instance won a greater percentage of the people's vote in 1970, it was reduced to eight seats in parliament because the first-past-the post has certain winner-take-all characteristics embedded in it.

All this is not to make an apology for the JR constitution, but rather, to begin to unravel some of the casuistry that passes off for a responsible political analysis in one of the national newspapers. What's more important than the PR system and all of the ramifications associated with it, is the general thread of argument in the article which seeks to make President Kumaratunga a martyr at the altar of a monstrous constitution which thwarted her most genuine political purposes.

A reader would believe anything if he believed that line. Some of the grandest apologies made in the article concern the President's inability to dismantle the executive presidency by constitutional means. ( "What is more, the Executive Presidency on which this entire monstrous structure was erected could not be dismantled except by a two thirds majority in parliament and endorsement by the people at a referendum.")

So what prevented the government from obtaining this two thirds majority, if that was tried? The so-called obstructionist opposition may have voted with a move to abolish the executive presidency, if it was tabled in parliament as an amendment to the constitution, but the uncomfortable truth is that the PA never tried, and always tied the dismantling of the executive presidency with the PA political 'package'.

Definitely, the UNP may have opposed the package, which is the party's prerogative, but where is it on record that the UNP opposed the dismantling of the presidency, if the government presented it as a 'stand alone' issue not tied to the entirely different issue of the political package? There is no need to quote chapter and verse, but the so-called Jayewardene constitution, despite all its celebrated unpopularity, has certain remedies which could have been used by the PA, even if there was actually a constitutional trap of any serious consequence. For example, if the UNP was not willing to vote to dismantle the executive presidency, the PA could have made use of the provision for a non-binding referendum, which is provided for quite clearly and unequivocally in the relevant article of the constitution. If the PA went in for a referendum on the question of 'should the executive presidency be demolished?' and got a yes vote from the people, there wasn't a chance for the UNP to subsequently go against the people's will, if the matter came up for a vote in parliament.

Did the PA give these provisions even a half hearted try? On the contrary, the Minister of Constitutional Affairs said at Cabinet press briefing that 'the Dalada Maligawa bombing' is preventing the government from holding a non-binding referendum. Now, there is an example of a convenient culturally resonant excuse.

It also shows very well, the kind of prevarication the PA resorted to, to perpetuate the executive presidency which it wanted, not because the PA had unfortunately been morphed into a government that 'did not reflect the will of the people,' but because there was no political survival without the presidency and its political advantages. That injury may be excused, but it's this adding of insult by way of rationalization that's laughable.

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