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As sun sets on the Constitution and Democratic Governance …

2018-11-14 00:00:34
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“Right and wrong is not limited to only that which is stated in the (US) Constitution”

-Leland Lewis 
(Random Molecular Mirroring)  

As this article is being inked, the Fundamental Rights petitions challenging the dissolution of Parliament by the President are being considered by the Supreme Court. If the apex court was to hold the said dissolution to be unconstitutional, it would yet again be back to the Parliament as to who commands the majority, i.e.the ousted yet adamant Ranil Wickremesinghe or the appointed yet not tested Mahinda Rajapaksa. In the event the Executive order of dissolution is not reversed, we all will be going to the polling booth on January 5 next year.   

A by-result of all this hullabaloo is the predicament, the Sri Lanka Freedom Party (SLFP) finds itself in now, in the wake of the decision taken by MR to join the Pohottuwa (Lotus bud) or the SLPP, run by his sibling Basil. As the gleeful UNPers were quick to point out, this could very well be the beginning of the end of the SLFP, the second largest political party that had produced Two Prime Ministers and three Executive Presidents from its ranks and ruling the country since independence alternately with its main rival UNP. Besides, it had been the counter weight against neo-liberal economic and centre right political dispensation of the UNP, standing for social democracy oriented policies it pursued from the out set, sometimes with success and at others with disastrous results.  

Death knell of the SLFP

Yet the bottom line is that the tempering and moderating effect the SLFP has had on the local political scene is going to be missed when it eventually dies unless the defectors as well as those who remain, strike out some kind of consensus.   

What we are undergoing is not merely a constitutional or a politcal crisis. It is much more than that. It is a deep and incisive stab in to the very fabric of democratic governance adhered to since independence. Admittedly, we have very little to boast of in 70 years of post indepenent history as a sovereign nation. Economically we have gone no where. Socially we are confused and stagnant. In terms of international recognition we have a chequered history. But in terms of representative democracy, we can stand as upright and proud as any other nation including UK and western democracies. Despite set backs and aberrations, government change has occurred only through the ballot. Although many rulers have found ways and means of getting round the constitutional restrictions on their powers to rule, none, up to now, has taken the constitution head on, breaching it.  

Yet the unbelievable chain of events triggered on October 26 by the Executive action of the President in removing the constitutionally elected PM and replacing him by the former President has now culminated in dissolution of the Parliament in blatant violation of constitutional provisions i.e. Article 70(1). Legal experts, most of them of various political inclinations are either denouncing or defending the move as the citizenry who in the first place, are not learned in the nuances of constitutional interpretation and secondly, have never been too inquisitive with anything to do with the constitutions remain clueless and aghast.  

The Crisis Continues

Hopefully the FR applications before the SC will be a victory for democracy and parliamentary norms of representative governance. Yet whichever way the decision heads, it hardly solves the acute political and constitutional crisis in itself. In case the dissolution being held as violation of the Constitution, then we would be on ground Zero with the two PMs having to garner a majority to show their strength. If not, it would be back to the polling booth on January 5, 2019. Either way the nation would be bruised, scarred, humiliated and besieged by the delusions of power that afflict mainline politicians.   

The 19th Amendment has loopholes which are starting to look glaring; such things happen when politicians attempt to do tinkering work to a constitution already abused many a time in its 40 years of existence. For a constitutional frame work that was top heavy, i.e. with a power equilibrium concentrating all power on the Executive, such tinkering creating a rival repository of power in the PM without laying the structural framework to underpin such a shift, tends to be very fragile and dubious. Yet technicalities aside, there is no gainsaying the fact that it did create an atmosphere, constitutionally, to curtail the unbridled power of the Executive by strengthening the PM and the Parliament, creating independent Commissions and making the President responsible to the Parliament. Undeniably it was an endeavour to revert to principles of representative governance through parliament without giving in to the whims and fancies of one figure at the top.   

Salutary achievements

We saw the results of such constitutional breakthroughs in the area of media freedom, independence of the judiciary, a citizens right to information as well as the expanded right to dissent. Quite unlike the preceding decades, journalists criticized the government,sometimes ridiculing the leaders of good governance. The judiciary was able to summon and question ministers and even the PM in a manner which was unthinkable previously. Entire political culture changed from a Stalinist era cult like atmosphere, in to one more in line with a liberal democratic hue. Despite many failures and disappointments it seemed that we were on a march, albeit slow towards being counted a serious and fully fledged democracy, a process that would have taken years if not decades for consummation. Yet we were on the correct path.  

I am no fan of the neo-liberal economic module and liberal democracy; my personal preference being towards a social democracy with fair distribution of national wealth and policies oriented towards local production. There is little doubt that the ultra liberal policies resorted to by the Ranil Wickremesinghe government were seriously being under a cloud of doubt as to its position in a society like ours. Yet, despite where you are placed in the Politico-Economic spectrum, it had to be a struggle for power within the Parliamentary system of governance with universally accepted norms. The constitution was the foundation of that mode of governance.The battle lines are exclusively within the parliamentary system however, imperfect it may be.   

Champion turns traitor

On the night of October 26, the President, not only viewed as a champion of the silent revolutionaries who defied all odds in ushering in change which seemed very unlikely two months prior to January 8, 2015, but also as the trustee of that repository of democratic governance, himself became a tool in the hands of nationalist authoritarian agents hellbent on power.   

Little did he realize that it was not the death knell of ultra liberalism that he was always at odds with , but the demise of social democracy, too, the brand of democracy that the SLFP has been championing all these decades. Liberal democracy has been on retreat globally, alright, but what is raising its ugly head is not its legitimate and organic rival , social democracy but a right wing nationalist authoritarian power centre that gives a tuppence worth about constitution.  

The sun is setting on the Constitution and Constitutional governance based on democratic norms. We lost more than we realize on the night of 
October 26, 2018!   


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