JR and the Erosion of Democracy: Wasteful Elections, Wasteful Ministries

By Prof. Rajiva Wijesinha | Published: 2:00 AM Feb 23 2021
Columns JR and the Erosion of Democracy: Wasteful Elections, Wasteful Ministries

By Prof. Rajiva Wijesinha

Sarath Silva, whom Chandrika Kumaratunga had appointed Chief Justice, over the heads of some Justices to whom he had been junior, was an extremely clever man. He used his brilliance to produce the result he wanted, and in this case he ruled that, since no one had been able to explain what was described as the ambiguity of the phrase I cited, ‘whichever date is earlier’, it was incumbent on the Courts to decide what was in the best interests of the country. Given the agitation that had commenced, he ruled that the Courts needed to limit this, so it was best to interpret the clause to mean that Chandrika’s 6-year term ended on 22 December  2005.   

This was an utterly nonsensical ruling for the date had to refer to the date on which the first term of office commenced. But Sarath was not particularly concerned about the clear meaning of the English language. And so Chandrika lost a year of her term. But she too was to blame for her lawyers had failed to point out clearly that there was absolutely no ambiguity, though there is no doubt the wording is very clumsy and should rather have read after the word ‘whoever’ is the President in office, holds office for a term of six years commencing on the next date that corresponds to the date on which his first term of office commenced

That would have allowed very simply for JR’s desire to give himself special privileges. But as I have noted, that was a wholly improper provision, and the constitution as amended should rather have read, for the sake of equity, that ‘whoever is elected should assume office on the date on which the result of such Election is declared. However his term of six years will commence on the February 4th following’ – which had been the original intention of the Constitution, that fixed terms of 6 years began and ended on Independence Day. And indeed it would be even better if this 3rd amendment is repealed and the original provisions restored.

I have gone into some detail to explain how this perverse amendment led to Chandrika losing several months of her Presidency. The same thing happened to Mahinda Rajapaksa, though in accordance with the absurd constitutional provision noted he took his oaths, after he was re-elected President, several months after the Election, and thus got an advantage that would not have accrued to any other candidate had he been defeated.

Having benefited from Sarath Silva’s judgment which cut short Chandrika’s term, Mahinda Rajapaksa was quite cavalier about upholding thereafter a different interpretation of the constitution, which was of course the correct one. But he did lose a year on that occasion since like JR, he had his early election after he had completed just four years of his first term.  And then he lost another two years for, having amended the Constitution, so that the original limit of two terms was abolished, he decided to go again for an early election soon after four years of his second term were finished. And being Mahnda Rajapaksa, he had both these elections almost immediately the four years were up.

Constitution manipulation 

The sad fate that befell both Chandrika Kumaratunga and Mahinda Rajapaksa, both of whom came into office with such high hopes, owes something I believe to JR’s manipulation of his constitution. They both fell into what I can only describe as the trap of thinking that electoral success was a substitute for productive work. Both of them felt, correctly I think, that they were more popular than their parties. So, they could not resist the temptation of first putting themselves before the people so as to boost the performance of their parties in an election they held immediately afterwards.  

Because of the unusual option Sri Lanka offered, of having both Presidential and Parliamentary elections at the whim of the President, they precipitated three Presidential elections. Given that populist measures seemed in order before such an election – and then of course for the parliamentary one too – funds were squandered long before they need have been. And the period in which a President could have taken hard decisions that were in the country’s interests, with time enough for them to work out well, so that people would be happier, was cut short unnecessarily three times. 

And in Mahinda’s case it led to him losing the second premature Presidential election he called. The capital he had accumulated by winning the war against the Tigers had dwindled by then. He had nothing productive to show after that, and in any case the fatigue factor had set in, perhaps a general phenomenon which is why a two term limit makes sense. 

But tempted by the opportunity JR’s initial manipulation had engendered, Mahinda continued to try to flog a dead horse, with disastrous results.

There was another element in JR’s constitutional manipulations to which too his successors fell prey, and which also cost the country a great deal. I refer to the fact that he piled up members of parliament with executive office, contrary to the rationale he had presented initially for an executive Presidency.

By the time of his early Presidential election JR had endowed well over two thirds quarters of his parliamentary group with ministerial positions. The man who had claimed, in proposing an Executive Presidency, that those in the executive branch of government should be free of the trammels of parliamentary duties, proceeded to enmesh parliamentarians in the executive. The privileges and perks such positions brought with them meant that they would never challenge him in Parliament.

Mrs Bandaranaike, after the 1970 election, had a Cabinet of just 20 ministers apart from herself, and this became smaller when she parted company with the LSSP. JR had just a few more in 1977 but the next couple of years he added a few more, including two members of the TULF. His second amendment ensured, as noted, that the TULF could not get rid of them from Parliament. It was during this time, it should be noted, that he put Ranil Wickremesinghe into the Cabinet, over the head of more senior members of the UNP.

Ministers outside the Cabinet

There were more Deputy Ministers, but in his constitution JR had also introduced the concept of Ministers outside the Cabinet. What their status was not specified, but initially it seemed that the idea was to entrust discrete portfolios to senior figures not put in the Cabinet. They were senior to Deputy Ministers for they were autonomous and reported direct to the President. Politicians such as Ranjith Atapattu and Harold Herath, who were senior to Ranil and upset by his elevation, were allocated such positions. 

And then on top of all this JR had District Ministers too. There was no such position in the Constitution, but he appointed such Ministers in 1978. Doubtless he did not think they needed precise legal substantiation, since they could be covered by the provision he had introduced as to Ministers not in the Cabinet. So, absurdly, when he introduced District Councils through a Development Councils Act in 1980, he allotted an exalted role to District Ministers with no mention of how they should be selected. 

I should note that I cannot be sure there is no legal instrument with regard to District Ministers, but all I can find on the internet is a note on the history of Non-Cabinet Ministers which simply says ‘The appointment of Non-cabinet ministers was set out under the Constitution of 1978. President J R Jayewardene appointed non-cabinet Ministers and District Ministers.’

It would seem surprising that so important a position, with decisive powers in districts, should have been created simply at the will of the President. But one of my principal themes is JR’s cavalier approach to constitutional niceties. He had no qualms about doing whatever he wanted to get a temporary advantage, and I suspect he decided to make these appointments when he realised the seriousness with which the TULF was requesting regional autonomy. So he had an authority in place whom he could place on top, as it were, of the District Councils when he finally went ahead with introducing them. 

JR then had well 100 Ministers in what was a 168-member Parliament between 1977 and 1988 – or indeed fewer when the TULF stayed away, from 1983 to 1989. He had Cabinet Ministers and Ministers not in the Cabinet and Deputy Ministers and also District Ministers. 

But I should register that, apart from his District Ministers, he had very few Ministers not on the Cabinet. It was left to his spiritual successor Ranil Wickremesinghe to pervert the concept completely, when he finally became Head of Government. And his example was followed unthinkingly by those who came after, exemplifying Patrick Fernando’s brillian line in his poem ‘The Magi’ They must remember the unsuspecting hands of children cut deep with baubles pressed and broken.

By Prof. Rajiva Wijesinha | Published: 2:00 AM Feb 23 2021

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