A former minister of the government and a well-known lawyer, Wijeyadasa Rajapaksha, is quoted in Lankadissent (December 22), in an interview given earlier to Lakbima as saying:
“I relinquished my ministerial position because I was not allowed to exercise my powers. I was the only minister without a secretary. Then, how could the work be done? The appointment of ministers is a hoax
. He also said, “Not only for me, it is also the same for the 109 ministers who are still there. The President has the powers. In short, most ministers do not have any say in the appointment of chairmen and directors to institutions. The situation is like that at 99 per cent of ministries. As they had been appointed by the President, they are always above the minister. That is a humiliation of the ministerial portfolio. I also suffered that humiliation. The present Rajapaksa regime is a one-man-show.”
In fact, this statement about the president acting as a one-man show is no surprise to anyone who is familiar with the constitution which was introduced in 1978. The whole purpose of that constitution was to create a one-man show while still maintaining some façade of the separation of powers and a president working with a team of ministers. The very weakness of the 1978 Constitution was to create a one-man system which, in fact, is not workable. In a statement dated August 18, 2008 entitled, A one-man system, the AHRC wrote as follows:
The next stage was the 1978 constitution which, in fact, created what may be called a one-man system. Under this constitution the president had absolute impunity and was above the legislature as well as the judiciary. The written constitution kept the jargon of the separation of powers, independence of the judiciary and the like; however, the entire system was subjected to the control of the executive president who was under the control of no one. This executive president was not even bound to comply with the constitution. The constitution is made in a way to make all manipulations possible including the extension of the period of the parliament by way of a referendum. All doors were open to replace the power of the institutions with muscle power. The abandonment of the implementation of the 17th Amendment to the Constitution is only one glaring aspect of the power of the superman, the executive president.
In several other publications the AHRC demonstrated that the claim that the 1978 Constitution was based on the Gaullist model of the French Constitution was false. In fact, the late Dr. Colvin R. de Silva stated that this constitution was not based on any great tradition but is very similar to the one that was created by Jean-Bédel Bokassa of the Central African Republic.
There is nothing controversial in saying that the present holder of the position of the executive presidency runs a one-man show. In fact, all presidents since 1978 have run a one-man show. The crux of the problem is not that it is a one-man show but that it is unworkable because it is a one-man show. It is simply not possible to run a modern state in this manner. The state is managed in a primitive way and all the advantages of modern management are lost.
The aim of the 1978 Constitution was not merely to create a one-man show as far as the executive was concerned, its aim was to create a one-man show relating to all the branches of government; the executive, the legislature and the judiciary. The separation of powers in the real sense is incompatible with the 1978 Constitution. The executive president needs to be able to control the whole show relating to the legislature and the judiciary also if he is to run this one-man show with any success.
In 1978 the first executive president, J.R. Jayewardene, was able to have full control over parliament as his party had over 80 percent of the seats. However, when the term of that parliament was ending he realised that in an election he would not have the same majority. The new constitution introduced proportional representation which virtually made it impossible for any single political party to have an overwhelming majority of parliamentary seats. Seeing that his power as the executive president would be diminished if he could not have his way with the parliament the president went with a referendum calling for an extension of the lifespan of the same members for six more years. By manipulation of the electoral system he was able to achieve his aims.
However, ever since the end of that second term no president has been able to have such a majority in parliament and the only way that parliament can be made to run is by buying and silencing the elected members. The purpose of having a large number of ministers (105 at the last count), is to keep them from leaving the government and joining the opposition. It is no surprise that these ministers do not have any power. They are made ministers solely for the purpose of keeping the executive president in power.
With the judiciary however, it was not possible to have it brought under complete control of the executive president. The very first chief justice under this system, Neville Samarakoon rebelled against the scheme quite early. After his retirement the rebellion was less, but severe underlying tensions remained. President Chandrika Bandaranaike tried to resolve this by appointing a person of her choice when she became president. This worked to some extent for several years. However, the inner tension between the executive and the judiciary still remained. Later even Chandrika Bandaranaikes appointee openly clashed with her. Now there is an open clash between the existing executive president and the Supreme Court.
When, during the last week, the Supreme Court gave an order to reduce petrol prices the executive president told the nation that fuel prices are the means by which the government receives an income to run the war and all essential services. A huge propaganda campaign is being carried out to demonstrate that the governments very survival depends on keeping the fuel prices high. Thus, attempts to reduce the fuel prices have been portrayed as a conspiracy to overthrow the government.
As part of the propaganda campaign against the judgement, the president speaks of recognising the separation of powers but, at the same time states that as elected representative, it is the business of the executive alone to run the government. The implication is that the decision against the executive is, in fact, outside the scope of the judiciary. The separation of powers is interpreted in such a way that the three branches should cooperate in running the country.
What has being witnessed during the last few days is a clash between the one-man show and the judiciary. The two are somehow incompatible. Therefore, in the days to come it may be inevitable that the executive president will try to make the judiciary play a complementary role within the one-man show.
The only real alternative for the country is to end the one-man show by the change of the very constitutional structure brought about by the 1978 Constitution. However, the possibility of doing this does not seem to exist because the electoral process will not allow anybody the required absolute majority that is required to amend the constitution. In fact, a change of the entire constitutional scheme implies something more than a mere amendment. It virtually requires a new constitution. But there is no way to bring about such a constitutional change.
Therefore the 1978 Constitution and the one-man show will remain by default and as long as this is the case serious clashes with the judiciary are inevitable. This is why there are many pressures to subdue the courts and to make them play a subservient role to the executive president. The constitutional crisis faced by the country is that serious. However, none of the opposition parties or civil society is ready to face this crisis. The inevitable result is that the period of instability will not only continue but worsen.
The only way a government can rule under these circumstances is to divert the attention of the nation to a serious threat. Ever since 1978 some form of internal conflict was necessary for the government to divert the attention from the serious constitutional crisis in which it has been caught since then. Gradually the wars against the JVP and the LTTE became very useful in order to keep the people disturbed enough to forget about the actual crisis of the state system itself. In fact, the belligerent approach of the LTTE has made possible the survival of the 1978 constitutional scheme. The weakening of the LTTE due to the war effort may be seen by the government, in retrospect, as a threat to its own survival. It may have to create a new enemy if the LTTE completely falls.
These are the circumstances under which all the human rights problems have been aggravated in the country. Wijeyadasa Rajapaksha also said:
“Today, all other institutions in the country have become inactive. That is why it has become noticeable that the judiciary has become active. In short, a ministry does not carry out what it should do. Then, the people have to seek redress from the court. In this situation, the people will lose nothing if Parliament is closed.
