100 days:

A unique opportunity

by Jehan Perera

In his televised address to the nation on the occasion of the 100-day program, President Maithripala Sirisena pointed to the biggest change his government had brought to the country. It has taken away the shackles of fear that bound the people at all levels.

People are no longer in fear of the government. Although the new government may be unable to implement all the promises in its 100-day plan it has succeeded in changing the threat perception in society.

By way of contrast the previous government used fear to militarise the country and to centralize power. The previous government spoke of separatists and diaspora activists to justify its militarisation and centralisation of power.

The freedom to live without fear, to meet without restrictions, and to speak without being subject to retaliation are the most basic of human rights and the foundations of good governance. If these fundamental rights exist in society, good governance is bound to come sooner rather than later. It is easy to get side tracked by the protests that are taking place when persons accused of corruption, and with regard to whom there is vast evidence in the public sphere, are taken for questioning and remanded.

It does not necessarily reflect public sentiment when groups organise protests against the forward movement of the law. There has been a restoration of the Rule of Law and confidence in the judicial processes after the new government came to power.

It was not so long ago that even in Rotary Club luncheon meetings attended by high level business where I was invited to speak, a few participants sometimes made critical comments about what was transpiring in the country, and quickly followed up by also saying that they did not wish to be quoted.

Fear

At the community level the fear was even worse. When I once asked a community leader why he felt fear, when he was no threat to those in power at the top, he asked me to whom could he appeal to if things went wrong, whereas people like me would always have some contact close to the government to get me out of trouble.

Fear that existed in the past was not only personal fear but also national fear of the international context. In his televised address the President took pride that the country could now look to the world without fear, and with friendship and confidence.

Relations with western countries in particular have shown a positive improvement and there are prospects of the country regaining lost economic benefits, such as the European Union's GSP plus tariff concessions which will boost Sri Lankan exports.

What has been most remarkable about the President has been his willingness to change the notion of the president as being an all-powerful king who is accountable to nobody, to one who shares power and is accountable.

In his televised address he urged all political parties to back the passage of the 19th Amendment which makes the presidency more accountable and less powerful. As a result Sri Lanka today has a unique government in which an SLFP president, a UNP prime minister work together with a cabinet that comprises nearly all the parties in Parliament.

In his address, the president made it clear that he wishes to take all these parties with him in the future too. He therefore accepted the opposition's demand that electoral reforms should take place at the same time.

Since the presidential election of 1995 the winning candidate at all successive presidential elections had promised to abolish the executive presidency. But once they won, the winners deemed it opportune to keep the institution going.

President Maithripala Sirisena is the exception. He has been willing to share power and even give it up altogether. The 19th Amendment, as it was originally drafted, was intended to result in a two-way distribution of powers vested in the presidency.

This has now been modified by the Supreme Court. The Supreme Court's determination is that the transfer of executive powers from the President to the Prime Minister affects the structure of governance envisaged in the constitution and, therefore, needs the approval of the people at a referendum.

On the other hand, the redistribution of the President's powers to appoint heads of key State institutions, such as the Supreme Court, Police, Public Service, Human Rights Commission, Elections Commission and Bribery Commission will be possible without a referendum.

The constitutional change envisaged here is possible with only a two thirds majority in Parliament. It is important that the present opportunity to reduce the powers of the Executive Presidential system be taken when the country has a president who is willing to share his powers with others.

Power

Even the scaled down version of the 19th Amendment would contribute to good governance in the country by ensuring that there is a system of checks and balances so that power does not corrupt, and absolute power does not corrupt absolutely.

It makes the Presidency answerable to Parliament and also to the Supreme Court in cases where fundamental rights are alleged to be violated, restricts the president's term of office to two, removes from the Presidency the power to dissolve Parliament after one year and only permits dissolution after four years, and provides for the strengthening of the independence of the judiciary and key state institutions such as the police, public service and watchdog commissions. The problem with the presidency is that it concentrates power in a single institution and, even worse, in a single individual. Where a country is ethnically and politically fractured, it is better that power should be decentralised rather than centralised. When power is centralised in an ethnically fragmented polity, it enables the representatives of the largest ethnic community to capture power and wield it without consideration for the interests of the smaller ethnic communities. This is what led to the thirty year war.

Former President Mahinda Rajapaksa epitomised this downside of the centralised presidential system. It is therefore no cause for surprise that those parliamentarians who are allied to the former President would not wish to support the passage of the 19th Amendment. They see its passage as going to the political credit of the new government. They also see a strong executive presidency as a way of ensuring that power sharing with the ethnic minorities will be limited.

On the other hand, a sustainable political solution is most likely if there is power sharing at the provincial level through the devolution of powers and also at the central level through the sharing of over-concentrated presidential powers in the cabinet of ministers in which representatives of the Tamil and Muslim parties are also members.