Monday, 20 August 2018 06:29

Assessing the Return of An Unlimited Presidency - Jehan Perera

The unexpected resurrection of former president Mahinda Rajapaksa’s hope to be a third term president of the country has taken the centre stage of political debate. It also highlights the vulnerability of the rule of law. One of the memorable phrases of the Lessons Learnt and Reconciliation Commission appointed by the former president to cope with the international demand for accountability for war-time violations of human rights was that the Rule of Law rather than the Rule of Men should prevail if the tragedies of the past were not to repeat themselves. But to politicians whose quest for power is unlimited such principles of democratic governance may be dispensed with as and when the need arises.


The possible resurfacing of the former president as a presidential candidate occurs at a time when there is lack of clarity on both sides of the political divide with regard to who might be their candidates at the forthcoming presidential elections due no later than November 2019. On the government side there is no definite indication as yet whether it is going to be President Maitripala Sirisena again who will be the common candidate, as he was at the presidential election of 2015, or Prime Minister Ranil Wickremesinghe who has been the UNP’s main aspirant for the post since the presidential election of 1999. This issue of who will be the next presidential candidate has been left unresolved from the very beginning of the government’s term of office.

It is this unresolved issue of who will be the next president that has been at the root of the problem that has prevented the government from acting as a cohesive government with a 2/3 majority in parliament. As the time for elections comes nearer, it is a cause for frustration on the part of the opposition that they are unable to capitalize on this failure of the government, and its inability to act powerfully to deliver the necessary benefits and economic development to the electorate to obtain their vote at elections. The opposition showed up this weakness of the government at the local government elections earlier this year when they trounced the government parties in most parts of the country. However, the opposition too is beset with the same problem as the government with regard to deciding who might be their presidential candidate.

DRAFTERS INTENT
With his charisma and track record as a decisive leader, former president Rajapaksa continues to be the undisputed leader of the opposition that has been seeking to form an alternative government in the country from the time of their unexpected defeat in 2015. Other presidential aspirants have been repeatedly echoing each other in saying it is left to the former president to make his decision, and that they await his decision which will be made at the correct time. The challenge for the opposition is to identity a candidate who will unify them and not cause fragmentation. The signs of such potential fragmentation have been evident in the harsh comments made by different members of the opposition against the leading aspirants from amongst their ranks.

In these circumstances, with presidential elections a maximum of less than 16 months away, the allure of former president Mahinda Rajapaksa as the opposition candidate has grown. The problem, however, is that the former president is prevented by law from becoming a third term president. At least that has been the belief so far. The 19th Amendment to the constitution prohibits anyone who has been elected twice to the office of president to contest again to be president for a third time. The 19th Amendment, which was passed in 2015, repealed the 18th Amendment passed in 2010, which itself had repealed the provision in the constitution of 1978 that set a two-term limit on the presidency. The drafters of the constitution had put in the two term limit being mindful of the possible abuses that could come if a president stayed too long in power and built up a coterie around him who would monopolise power. It was in terms of the 18th Amendment that former president Rajapaksa cut short his second term by two years to call for an early presidential election and make his third bid for presidential office.

The 18th Amendment to the constitution, which was passed as an urgent bill in Parliament within a week, without time for adequate debate either in parliament or in the country, represents one of the lowest points of the country’s adherence to principles of constitutionalism. The constitution represents the supreme law of the country. It should not be changed at the whim and fancy or deep and dark desire of those in power to further their own interests. The passage of the 18th Amendment was possible because former president Rajapaksa and his government had accumulated such enormous powers that all other institutions, including the judiciary, came under severe pressure. The separation of powers, and the system of checks and balances, needs to be protected at all costs if democracy is to prevail.

POSITIVE CONSEQUENCES
Members of the opposition and their legal advisors are now claiming that the 19th Amendment to the constitution does not prevent former president Rajapaksa from contesting the presidency a third time. They argue that prohibition of the 19th Amendment only applies to those who are elected from the time of the passage of the 19th Amendment and it does not apply retrospectively to those who were elected twice in the past. The final verdict on this needs to be given by the judiciary who will also be considering the intent of those who drafted the law in question. The intention of the framers of the 19th Amendment may be discerned in their statements made in and outside parliament at the time of the passage of the law. When there is doubt the courts will refer to the intent of the framers of the law.

The stability of a society and the trust that can be placed on its institutions depends on the Rule of Law being upheld as against the rule of men which will vary from time to time according to their whims and fancies. Whether it is with regard to the security of business investments or a sustainable solution to the ethnic conflict, there is a need for stability, in which agreements made one day are not overturned the next day depending on the will of one person or one party. The importance of the judiciary in upholding the Rule of Law and constitution can be seen in the context of the debate that is opening up regarding the possibility of former president Rajapaksa contesting forthcoming presidential election and becoming a third term president.

The re-emergence of the candidacy of former president Rajapaksa may also serve to galvanise the government to resolve its own issues with regard to facing the oncoming presidential election. The sooner this is done the better. What the country needs is unified governance in which there is cohesive decisionmaking but with the Rule of Law being upheld. In 2015, the combination of President Sirisena and the parties that now constitute the government were sufficient to win that election. The government parties joined forces because they felt that they could not individually take on the former president and the political machinery that he had at his disposal. When there is no clear choice of candidate for the government parties at the present time, the tried and tested formula might be the best to adopt, given the present absence of viable alternatives.