That 'in' issue: Can Presidency be ditched?
Ah, how we love abstruse logic. Now we are going on and on about constituent assemblies, and the legitimacy - so called --- of the contemplated abolition of the Executive Presidency. But there is permanent silly season in this country's politics, and therefore, talking about constitutionality is like talking of temperance in a tavern.

Anyway, it is time for what should be the needless jogging of our memories. J. R. Jayewardene postponed the entire election by six years and folded the electoral map by asking the people at a Referendum whether elections should be held! Despite all the audacity of the move, he did it.

The late Sirimavo Bandaranaike took the liberty of helping herself to two years more in office, saying that her government's term began on the day the new Constitution was promulgated! J. R Jayewardene defined the independence of the Judiciary in new terms when he sacked the whole Supreme Court when the new constitution was promulgated! These exclamation marks I am using at the end of each sentence would not have been necessary if this country has not been so dense to this kind of constitutional farce!!

But, we live in Sri Lanka. By appointing a Constituent Assembly to change the constitution (assuming that the UPFA forms a government but does not get a two thirds majority) we will be going down the same road traversed by the glitterati of Sri Lanka's previous five star parliaments.

There is more though. Some of it applies to the reality of today. A Chief Justice whose appointment has been severely questioned by the UN rapporteur for the Independence of the Judiciary still survives despite a previous impeachment motion, which lapsed when parliament was dissolved.

Independent Commissions for Police, Elections and Bribery and Corruption were appointed with a big bang, and the civil society cheering squads and the pom-pom girls said this move signifies the end of all trouble for Sri Lanka. But knowing how anything can be torpedoed with relative ease in the Sri Lankan polity, this columnists was skeptical. Mr Nigel Hatch a lawyer now in cahoots with the PA said at a seminar at the Colombo University that the Elections Commission has resolved the crisis of rigged polling in Sri Lanka. I said dream on, and by all accounts he must still be dreaming…..

There is an Elections Commissioner who is not allowed to retire today even though he is hobbled if not physically at least in spirit. But despite his tears, he trundles on. Then when the Supreme Court says that he is entitled to the powers of the Police Commission, he has to be reminded that there was indeed such a judgment!

Finally (as this believe it or not story goes) he tells the State Media that they had better be guided by his stipulations. That's because the Supreme Court says he has the powers to lay down the rules. State Media tells him to go fly a balloon.

This is the setting then for the new scene that might be enacted -- the setting up of an illegal Constitutional Council for dislodging the Executive Presidency. The UNF and its backers are feeling like jelly already over this contemplated move, and incidentally it raises the question why. If the UNF wants to win the elections why is it talking, I wonder, about things that might happen if it loses? It is bad election policy. At least in some UNF conclaves the talk is to deprive the UPFA of a two-thirds majority. I should have thought it would have been much easier for them to stop the UPFA from winning the elections at all, but some people seem to know about these things better….

Amidst this, we get the constitutional gobbledygook. Either the Constituent Assembly idea is "like the South African definition'' or "it is according to the doctrine of necessity'', or "it is leading to anarchy and chaos'' -- that's after it has been analyzed to a its bare bones. Why can't somebody just cut the psuedo -analytical cackle and just say "yes it is an extra constitutional measure, a very extra constitutional measure. But, it has at least half a chance of succeeding because of tons of extra constitutional manoeuvers have succeeded before in this country that has its very homegrown democracy.'' There was one President who had resignation letters of all his Ministers in his pocket. They were undated. It meant that any constitutional measures to impeach him were effectively barred, and let alone that, his power was made absolute.

That's all the more reason he should have been impeached, but nobody even moved an impeachment resolution against him. The constitutional experts might as well ask, now, how does that fit in with the South African model? How does that fit in with the doctrine of necessity? After all, there was necessity? It was J. R. Jayewardene's necessity.

If all this sounds like satire, well you can take my word for it was not meant to be. The preceding is not tongue in cheek. It is deadly serious stuff. It has been the deathly serious portrait of Sri Lanka politics and constitutionalism in the past 15 years or thereabout.

If Chandrika Kumaratunga tries to enact a new constitution sans the Executive Presidency, even if she does not have a two-thirds majority to do so, it will be an unfair means of roughing up an opponent after having made use of the authoritarian provisions of that same Executive Presidency also to rough up that opponent. (Please see Political Sketchbook by yours truly, in the editorial page of this same newspaper.)

It's for this reason that there will be no consensus to change the Executive Presidency. On the alternate the UNF can challenge Chandrika Kumaratunga to sit in Parliament as Prime Minister under a new constitution. But it can be guaranteed that this new constitution will then make her powers as Prime Minister very authoritarian to her advantage, at least provisionally.

Obviously there will be no consensus for such a move, no matter what the South African model says. There will be no consensus irrespective of the doctrine of necessity or how bad the 78 J. R. Jayewardene constitution - the present constitution - is in the first place. But yet in this country the objective reality remains that she might still do it, because a lot of what has been done before, almost the majority of the constitutional manoeuvers in recent history, have been patently unconstitutional. Neither party plays by the rules of the constitution, and it is not cricket you ask? Well, of course it is not cricket.

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