The squandering of a resounding victory
by Rajan Philips
Sri Lankans know their cricket a lot more than their Constitution. Imagine a Test match, where the team batting first scores over 500 runs for the loss of six wickets and the captain declares the innings closed. The second team won’t just give up – they bat spiritedly, avoid the follow-on and score almost as many runs as the first team but get all out.
Now imagine the captain of the first team saying that because he declared his side’s first innings at six wickets down, he should be allowed to complete the first innings and only then start the second innings.
The captain goes straight to the Match Referee who rules that the first team could play the first innings but only till they lose two more wickets and not till they are all out. The second innings could commence after that. The opposition team, the umpires, the independent media and the discerning spectators are asking, why? Because the Constitution says so!
What will you say? Forget the Constitution. This is not cricket. In fact, it gets worse.
Setting aside the People’s Verdict
President Rajapakse called a premature election four years into his first term rather than waiting out the full six years. Having won the election by a convincing majority, he has opted to complete his first term and then start the second term. Just to show that he is playing by the book and not making up rules as he goes along, he got the Supreme Court to tell him what to do. The Court said that he can start his second term not in November 2011, but in November 2010. Almost one year after his reelection, but not the two years that the President’s entourage would have preferred.
Has the Court been too harsh on the President in not letting him complete the unused two years of his first term? Is he disappointed with the ruling? These are wrong questions. Has the people’s verdict on January 26 been set aside for ten politically pregnant months? That is the pertinent question, and, ‘yes, it has been’, is the answer. It is a political question more than a constitutional or legal question.
In his own imperious way, J.R. Jayewardene crafted the current constitution in two parts, one for himself, and one for everyone else. But everyone else – notably Chandrika Kumaratunga and Mahinda Rajapakse – has been using and abusing JR’s for-himself provisions for her or his own purposes. President Kumaratunga blatantly abused the constitution to call the 2004 parliamentary election just for her personal heck of it and when there was no justifiable reason for it. She tried to use the transitional provisions to extend her tenure in 2005, but the Supreme Court wouldn’t give her a day beyond the second six year term. The Court forced her to sacrifice the unused one year of her first term when she went for reelection one year too early. It was the right decision, but for wrong reasons.
Now we have the wrong decision for mistakenly right reasons. The patent absurdity of the Third Amendment relating to the reelection and transition of an incumbent president from her or his first term to the second term has been unexceptionably explained by Nihal Jayawickrema. The Third Amendment of JR, by JR, and for JR flies in the face of electoral democracy. It undermines the fundamental condition of fairness in allowing the incumbent to call an election any time after four years. It goes further and sets different timetables for the new term depending on who wins – if the incumbent wins he will have 6+x years, if the challenger wins he will have 6+0 years. And the legal eagles are eager to get stuck in their interpretive chambers figuring out what that ‘x’ shall be. Some election, some democracy!
Letting the Opposition protest till November
That every action has an equal and opposite reaction is Newtonian mechanics. In politics, especially in Sri Lanka, every action precipitates an unintended consequence. By delaying the swearing in till November, President Rajapakse has inadvertently given the Opposition more time and space to challenge the outcome of the January election. Had he taken the oath on the politically auspicious Independence Day - Fourth February, sticking to the idiosyncratically symbolic intent of JR’s Third Amendment rather than its ill-drafted text, the President re-elect would have made the January election result a fait accompli and rendered Opposition protests a futile exercise in frustration.
The Opposition now has time till November to keep its challenge alive and kicking. One would think there are enough smarts in the Opposition ranks to pick apart the seemingly unassailable 1.8 million majority votes and challenge the parts of its sum right across the country and in the courts. For although apparently impregnable at the national aggregate level, allegations of fraud and malpractice can be made palpable, even if not ultimately provable, by disaggregating the 1.8 million margin over 22 districts, 160 polling divisions, and 11,000 polling stations.
Substantively or vexatiously, the Opposition could make much out of the pattern of lower votes polled by their common candidate in every district (except Jaffna and Vanni) and a majority of the 160 electorates in comparison to the votes that Ranil Wickremasinghe had garnered in 2005. It is this consistent drop in votes that appears to be the basis for the Opposition’s rejection of the results. If the drop in votes was orchestrated as the Opposition seems to be alleging, it could not have happened at the level of voting or counting, but only during the finalization of the vote tally sheets and summary sheets at the counting centres. The allegation of computer fraud would appear to be consistent with this scenario as independent computer assistance may have been required to orchestrate such a widespread operation. Needless to say, public agencies like the Colombo University Computer Centre and the Department of Elections could not have been part any such operation.
I am not suggesting for a moment that any or all of this happened on election night, but the Opposition now has the opportunity to persist in making any and all such allegations till November. When the war against the LTTE was over, allegations of war crimes became the hangover. Now, even after scoring a resounding electoral victory, the Rajapakse government has to deal with allegations of electoral fraud and malpractices within and outside the country.
Delaying the swearing-in till November is not the only blunder of the government. The sledge-hammer approach it took during the election and after the election seems utterly unnecessary given the margin of victory and it is counterproductive to the need to restore normalcy and stability. Speaking at the Independence Day celebrations the President re-elect has emphasized the need for national reconciliation involving the Sinhalese, Tamils and Muslims in the aftermath of the war. Soon he may have to strive for reconciliation among the Sinhalese themselves in the wake of the presidential election and the divisions it has created among them.
In mature democracies, the contestants accept the people’s verdict and move on to the tasks of governance and providing responsible opposition. In normal times, a good majority victory would humble both the winner and the loser for different but positively reinforcing reasons. In Sri Lanka, every presidential election has become more autocratic than democratic, more confrontational than cooperative and more destructive than constructive. It could have been different this time, but the post-elections prospects are not pleasing.
13 Comments
It matters little to tamils when the president will take the oath. The emergency has been extended by a month and will continue to be so extended for the next six years under one pretext or other, unless the opposition geta majority in the parliamentary election, enabling the iron fist of the totalitarian regime controlled it seems by the armed forces,to continue the suppression of civil liberties and oppression of tamils making their lives miserable.
Excellent piece of writing. One of the few times I have come across something worth reading!
sam
Keep on writing; and keep on proclaiming such writings from the cyberspace.
Nothing positive will come out of such waste of time and space because it is the common populace and not the elitist minorities of Sri Lanka which have empowered the President.
He is a respondent to those who elected him and not those who keep a sustained barrage of vicious and devious critical path aimed at imposition of the dictates of a few verbal gymnasts.
The one may understand the most of voters are always subjects to change their mind election to election. I believe that was where the opposition made the mistake. They were count of the votes Ranil had in the previous election and they thought if they get additional non Sinhalese votes they would be able to beat Mr. Rajapakshe. I don't know how far my assumption is correct. But just as an ordinary man that is the way I think. Did the oppotion under estimated Mr. Rajapakshe's popularity while they ignoring how much votes they would lose by coloborating with LTTE sympathizers party. The irony is opposition still has not realized their own mistakes.
"Two weeks ago I wrote that the election is not a one one-horse race for Mahinda Rajapakse but a real contest between him and Sarath Fonseka. With only two days to go the election still seems too close to call. Rajan Phillips"
"Delaying the swearing-in till November is not the only blunder of the government"
"the Opposition now has the opportunity to persist in making any and all such allegations till November"
Whose side are you on now Mr Phillips?
I thought more blunders Rajapaksa makes happier you will be, Now Rajapaksa has given a chance for JVP, Fonseka Ranil, Sampathan and the new mate Sarath Silva to slowly grind Rajapaksa to dust according to your own words. So all your supporters should be delighted.
Why blame JR for third amenment. He never used that amendment for his own benefit. After 1977 election, he could have waited till 1983 for the presidential election. But because he was elected in 1977 for a five yaer period, he went faced an election. Exactly after six years, he retired. So where is the benefit people are talking about that JR got through third amendment.
The primary objective of a constitution, - by definition a body of fundamental principles by which a State is governed -, is to enable good governance. As such, The Constitution, rightfully speaking, should educe and evoke awe and respect of the consituents. Alas, not so in Sri Lanka.
The Constitution of Sri Lanka, as is, is one of the primary ills of the country.
I have a simple question: Had the opposition candidate won the last election, would he have earned the right to 'govern' from day one - as would have been mandated by the people. Or, would he have had to wait for the incumbent to complete his remainig term, at most or at least in half?
Herein lies the answer to your knotty (or even naughty) dilemma!
If the court had ruled that Rajapaksa should start his second term immediately after his election, in the fist weeks of Feb. 2010, I am sure Rajan Phillips would have written still another article, probably claiming that MR should have waited till sarath Fonseka put in his objections to the elections, and till that is decided.
Courts do not rule on what is just, but what is legal.
There are extremely poor people who do not even have 1/2 a sq. yard of land to live on. If such people were to encroach on the property of a wealthy upper-class Tamil like Rajan P, or a lower-class tamil like myself, we would invoke the law and throw out the beggar. That is not just, but the courts do their assigned job -they are there to enforce the power of those who are in power. The judicial system has nothing to do with justice. It started as a system for recording and enforcing property rights.
Nadesan
I salute the author for his eminence in explaining the constitutional complexities through a familiar cricket umpiring.
Sometimes back in this site Rohan Samarajiva came out saying that he sees all the symptoms of the Constitutional Sri Lankan State transforming itself into a feudal one. Stripping the safeguards for minorities, breaking the back of administrative service, meddling with judicial system, bending law to permit cross-over of MPs, etc. were the examples he quoted. In the next few months we may be talking about Parliamentary election. We may boast of periodical elections and democracy with years and years of emergency rule. As Rohan Samarajiva said the truth is the citizenry as well as the intellectuals have casually come to accept this behaviour of backward transformation. I don’t think anybody can stop this trend.
Sri Lankan situation therefore needs realistic approach. Let us revert back to monarch as a home grown one. In a simple referendum we can make the incumbent president a King. Succession to the throne may be made automatic from the father to the son or to the nominee of Tri-nikaya (Amarapura, Siyam and Ramanna). Definitely this feudal system will not bring 21st century economic or other miracles. But it eliminate periodic killing of thousands of innocent people. When elections are done away with, the communal and religious tensions will vanish. There won’t be any need to pogroms and abductions.
A.Sellathurai
"Why blame JR for third amenment. He never used that amendment for his own benefit. After 1977 election, he could have waited till 1983 for the presidential election. But because he was elected in 1977 for a five yaer period, he went faced an election. Exactly after six years, he retired. So where is the benefit people are talking about that JR got through third amendment.
Posted by: Samson Palliyaguru "
People have short memory. JR did not have an election. He used a provision in his own constitution on Referandum and used it in an unusual way to extend the term of the Parliament. Before the first Presidential election, he disenfranchised Srimavo and Felix and easily won the ruderless SLFP led by Koppekaduwa, who was undermined by Anura.
He would have kept on for the third term too on the arguement that he only was elected once as the first term was a transition, if not for Premadasa who pressurised him into quitting on many grounds including the Indo lanka agreement, IPKF etc, and JVP which eleiminated most of his trusted deputies.
It is not a secret that JR purposely kept lot of holes in the constitution, to be used later, if and when necessary.
Regarding the expiry of President Mahinda's first term, it can stii be extended until November 2011, by another reference to the Supreme Court again in November 2010 or just continueing without taking oaths before November 2010, and wait for someone to go to Supreme Court.
It might sound silly but our Constitution is also silly and it is said that the Supreme Court's advisory is not binding. If the first term does not end until Nov 2010 by the same argument, it can go on until Nov 2011, irrespective of the Third Amendment, which is too complicated to interpret.
If we go through the archives we can read and laugh at the various arguements by many legal Pros for and against this, around President Chandrika's tail end of the second term, But the decisive point there was that she took a public oaths immediately following the second election, just to affirm the country that she is well and capable after the LTTE suicide attack.
All these could only become academic if Mahinda changes or amends the Contitution and replaces the Executive Presidency with an Executive Prime Minister towards the end of his tenure, a very good possibility if he gets two third majority at the new Parliament.
Rajan:
So those "Hora umpires" we knew of and laughed in our younger days are very much alive - in their own peculiar reincarnations. Why we even hear there are
various familial and other relationships between various high-ups in the judiciary that would have been taboo in the days when HNG, Sri Skandarajah, Neville S and company kept our judiciary at such heights where it was common for Justices of the UK and US Supereme Courts to sit with them and make favourable comments in awe. For most of our mutts in the Cabinet and Parliament your cricket analogy is a clearer explanation than the one in complex legal jargon from the learned and debonair Nihal J. Well done! Ordinary citizens have a better idea what happened during CBK's and MR's period when they declared their innings closed and yet have the audacity to come back and claim the unfinished period. Tragedy is the entire legal and higher judicial safeguard mechanism - whose duty is to interpret the Constitution in defence of the people's good - are playing ball to the "winning side" No wonder Parliament is calling for the revision of the former CJ's pronouncements - for the first time in our history. This will become habitual in the future, I fear. Need any more examples of a Failed Society????
ISS
It is good to see ISS is back.After the drubbing ,Fonseka and his cheer squad of the Colombo elite received at the hands of the Sinhala "modayas" if I may borrow a phrase used by them.I thought people like ISS would have been depressed with the unbearable thought of living under Rajapaksa for another six years at least.
As a seasoned punter would say that the margin must be less than a length ,if a winning horse to be challenged by the losers. Here the winning margin is over one million eight hundred thousand lengths, sorry votes.So the verdict can not be more convincing. Even some of the Sinhala modayas who vote for the UNP ,abandoned Ranil this time for his cowardice to hide behind this one trick pony.
If the economic performance over the last four years is any guide, the next four will at least double that outcome.I am sure Mr Rajapaksa will ensure this outcome, now that the Tigers are not there to distract him.There won't be any squandering of the victory here.
The prosperity that will dawn on the cities like Jaffna, Trinco, and Batti . will be significant with the revival of trade and commerce ,infrastructure and the list goes on.
With the dwindled population due to emigration to greener pastures,, these cities will have to bring in workers from other parts of the country to service the needs in hospitality. construction tourism and free trade zones. to name a few.
In fact there may be not enough Srilankans with the skills needed and may open up opportunities for people from Bangladesh, Burma and South India to work in Srilanka.
looking in the crystal ball I can't see nothing but a prosperous future for the country .especially the North and th eEast.This will be the best solution for the plight of all poor Srilankans irrespective of their ethnic backgrounds.
Dear Kalu Albert:
If Sri Lanka were to miraculously see the development of the North-East Province and the economic resurgence you dream of, I am entirely with you. It matters little to me if the magic is brought about by Ranil, Mahinda R,
Somawansa, Weerawansa or those mad monks who disgrace the teachings of Gautama - the Buddha. National unity will follow. But remember there is a huge difference between ideals and performance.
As you know the 2005 President Election was fraudulent - as we now see with Tiran Alles admission. The Jan 26 one was no different. Stealing elections has become a habit here.
Yes! In my view Mahinda is a poor manager of the country and until he proves
otherwise, I will note vote for him. I am not "depressed" on his alleged victory. Your dreams enters the area of lunacy when you talk of labour coming here from S.India in the foreseeable future. It is fairly likely you have not been across the Straits in recent years. I found it difficult to get a driver
and a clerk in Chennai in the past few years. India is thinking of importing both blue and white collar workers from overseas to serve their burgeoning
industrial-agricultural resurgence. For starters get that grinning Bandula G
to establish he has some form of average ability. So far he has been a fraud as the economist he claimed - when he was in the UNP before the jump. People were in stitches when the man had the audacity to claim after MR's so-called Jan 26 victory "our people did not attach much importance to the rising Cost of Living by this endorsement" That was his defence for a disgraceful performance. If he dares to walk the streets or take public transport, he will learn the hard way what the people think of him and the Cabinet he is in.
ISS