Brexit and UNHRC. Parliament vs the President

Rajan Philips-April 6, 2019, 6:33 pm 

As I indicated in my article last week, the Brexit crisis has brought into relief not only Britain’s internal institutional challenges but also the external constraints under which the country is laboring to negotiate its qualified divorce from the European Union. In a new development, Prime Minister Theresa May has at long last reached out to Labour Party leader Jeremy Corbyn to find common ground and, hopefully,strike a new Brexit deal that will have bipartisan support in parliament. The hardcore Tories are livid, but this is a positive development that was long overdue. Still there is no certainty how and where it will all end. In the case of the US, the internal constraints are far more pronounced than its external challenges. In fact, some of America’s recent external challenges are the result of the Trump presidency. Sri Lanka’s constraints and challenges are different, and they are more than a handful.

The country is burdened with the double whammy of the parliamentary and presidential systems, and it has limited power and resources to deal with its external challenges. In the UNHRC matter, neither the approach taken by the Rajapaksa government nor its reversal by the Wickremesinghe segment of the present government (with Sirisena now playing the disclaimer card) seems to have made any headway in addressing the out-sourced challenge in Geneva. From 2010 onward, the Rajapaksas built their enterprise on corruption, on the concentration and abuse of state power, by allegedly taking out those who complained too much or crossed their private paths, and by rewarding everyone who uncritically supported the family and the regime. In Geneva, at the UNHRC, the Rajapaksas tried to divide the world and conquer the west, while dividing the country into patriots and traitors and hopingto keep winning elections at home for ever. The strategy backfired at both ends and was brought to an abrupt end in 2015. Now they want a rerun of the old play with Gotabhaya Rajapaksa in the saddle.

The approach of the Wickremesinghe government has been to co-sponsor roll-over resolutions in Geneva year after year, while effecting little change at home and losing support all the while. This year has been peculiar because of the spat between the President and the Prime Minister. So, we had the spectacle of a three-headed performance before, during and after the UNHRC sessions in Geneva, involving the President, the Prime Minister and his Office, and the Foreign Ministry. It became quadra-headed when the loquacious Mangala Samaraweera pitched in with his self-enthusing grandiloquence that may have impressed his core followers but did not contribute to resolving anything.

Brexit and UNHRC

There is fundamentally no comparison between Britain’s Brexit and Sri Lanka’s UNHRC entanglement at any level, except the appearance of one at the level of a country’s internal-external dynamic. The intellectual premise of hard-core Brexit is the opposition to the compromising of British sovereignty to the "supremacy of European law." Intellectual opponents have ranged from the Labour’s Hugh Gaitskell in the 1960s to constitutional traditionalists like Sir William Wade two decades later. The experiential and demographic manifestations of the opposition were the ‘Leave’ voters at the 2016 referendum, who ranged from disgruntled English oldies to well-settled old immigrants from the former colonies who were disturbed by the influx of upstart immigrants from East European countries. Those who support Britain’s stay in the European Union are not by any means lacking in intellectual arguments or counter interpretations of British constitutional history. But the best argument for the ‘Remain’ side has been and remains, the economic argument of experience. After all, "what is truth is a practical question!

There is also the other truth: But for his expedient and foolish decision to hold a referendum on Brexit, David Cameron would still be Prime Minister and the United Kingdom of Great Britain and Northern Ireland would be Brexit-free in the European Union. At the macro-political level, Brexit represents the clash between the prospering forces of globalization and the backlash populism of the left-behinds. It is also the clash between the old school of national sovereignty and the new realities of supranational constraints. Ultimately, the Brexit crisis and its eventual resolution do and will demonstrate the reality of our times – the permanent tensions between national sovereignty and international constraints. The archaic notions of national sovereignty are constantly being challenged and modified by internal and supranational demands, but the old nation-state is not withering away anywhere. The right of self-determination, if any, will be mostly internal and hardly external.

Sri Lanka’s entanglement at the UNHRC might be fitted into this narrative, but more as patchwork than a seamless weave. It is not modernity that has dragged Sri Lanka to Geneva, but its atavistic hangovers. It is the continuation of the war that ended in 2009, by other means in faraway Geneva. The war itself was not a historical inevitability, but the result of mistakes and missed opportunities by the Sri Lankan state after independence. If the 1972 Constitution opened the Pandora’s box, its 1978 successor failed to put a lid on it despite President Jayewardene’s pre-(1977)-election assurances to address the fallouts from 1972. Instead, came 1983 and blew open and threw worldwide Sri Lanka’s innards from atavistic contentions to communal conflagrations. The Tamil diaspora was born.

The Tamil diaspora did not create itself to create Eelam, but its creation after 1983 made Eelam –an otherwise materially infeasible project, a politically viable goal. The creation of the diaspora meant population depletion in the north and east, which in turn enabled the LTTE to establish its brutal supremacy very much easier than it would have been possible in the presence of a critically larger population. The diaspora was also enabled - but in a different way – to be involved in long-distance politics while being insulated by the same long-distance from the brutalities in their natal provinces. But this is all water, even blood, under broken bridges.

There should be no surprise that sections of the diaspora have a stake in what transpires before the UNHRC in Geneva. So, when Minister Sarath Amunugama, who won his spurs in the Maldives as Sri Lanka’s October-November Foreign Minister and who went to Geneva as the President’s special emissary, rises in parliament and blames the entire UNHRC entanglement on the Tamil diaspora, he is only showing that he is being diagnostically simplistic and prescriptively pathetic. Blaming the diaspora is not going to disentangle the Sri Lankan from the UNHRC in Geneva.

The recurrent resolutions at the UNHRC are commonly believed to be the result of two factors : (1) western countries, who outlawed the LTTE and gave strategic assistance to the government to win the war, expected quid pro quo that the Sri Lankan government would positively work towards reconciliation after the war; and (2) assurances to this effect were given by President Rajapaksa to the then UN Secretary General Ban Ki-Moon when he visited Sri Lanka soon after the war. The postwar tragedy is not that the Rajapaksas did not live up to these expectations, but that they showed no empathy to the tens of thousands of people in the north and east who were caught in the middle and got pummeled by the war.

Immediate humanitarian redress and incremental political responses could have been taken over the five years after the war and within the framework of the government’s own LLRC recommendations. Instead, the Rajapaksas chose to play too clever by half on the international front, and turned Geneva into a biannual pilgrimage. Worse, they let the country’s economy suffer doubly, first watching Sri Lankan exports lose their preferential status in the west, and then walking the whole economy into a Chinese debt trap.

The Wickremesinghe government made a complete U-turn at the UNHRC, but has not been able to bring the pilgrimage to an end. Sri Lanka is left on a permanent roll-over mode in Geneva. There is no one in the government who has been able to articulate the government’s position and commitment on hybrid courts and on investigating breaches of the law during the war. The ambiguities in this matter, whether deliberate or not, would appear to be consistent with the management style of Ranil Wickremesinghe. He promises too many things to too many people and it is impossible to pin him down on delivering on anything.

The government has also been ambiguous about the investigations and indictments of acts of state corruption and what the UNHRC has called the "emblematic crimes" by state actors against individual citizens that went on from 2010 to the end of 2014. Those who protest too much about hybrid courts have shown no concern at all about the failure of the present government to produce even a single indictment for any of the murders that were committed during that period. And those who insist on establishing hybrid courts as a fundamental condition of reconciliation, be it the TNA, its detractors at home and abroad, or even the UNHRC, have shown little concern about the state of the provincial councils and their non-functioning in the northern and eastern provinces, as well as the rest of the country. The roll-over resolutions speak to the need for major constitutional reforms, but have nothing to say about the chronic neglect of institutions that were set up for devolving state power and government authority to the provinces.

Parliament vs the President

Just as with Brexit in Britain, a general election, presidential or parliamentary, by itself is not going to address Sri Lanka’s UNHRC entanglement, or solve any other problem for that matter. There were cautious expectations that the new president and the government elected in 2015 would embark on a path toward getting Sri Lanka’s political and governance fundamentals right, perhaps better than they were at any time after independence. When they look back at what was expected of them in 2015, and when they find where they are today, President Sirisena and Prime Minister Wickremesinghe owe it to the country to ask themselves the question as to how much of what has happened, and not happened, is due to their personal failings and how much is due to institutional flaws, not to mention the combined effects of personal failings and institutional flaws. And what are they going to do about it, except run separately for same flawed office of the presidency that they ran for together earlier, and vowed to get rid of it in just one term of the Sirisena presidency?

Even though he has done nothing to abolish the executive presidency as he had promised, President Sirisena by his actions since last October has exposed the flaws of the hybrid presidential-parliamentary system and its un-workability when the elected president does not have the support of an elected majority in parliament. The first experience of this dichotomy when Ranil Wickremesinghe became Prime Minister (December 2001 to April 2004) with Chandrika Kumaratunga as President, went reasonably well with President Kumaratunga acting primarily as the Head of State and not head of government, until she mistakenly decided to take matters into her own hands and started firing (UNP) ministers in October 2003, and ended dissolving parliament in April 2004. The two actions were wrong, and the former President has since regretted them both.

To argue now that the current crisis is because of the 19th Amendment that removed the President’s powers to arbitrarily sack the Prime Minister and dissolve parliament any time after one year following its election, is to ignore the fact that both these powers were the result of the failed marriage of the parliamentary and presidential systems that was mistakenly forged by President Jayewardene. The marriage went against the fundamental premise of parliamentary supremacy in the parliamentary system that Sri Lanka had inherited from Britain, on the one hand, and, on the other hand, the marriage was based on the misapplication of the separation of powers in the presidential systems of the US or France. President Jayewardene may have intended a healthy separation of powers to contain what was called ‘parliamentary tyranny’ in the 1970s, but what the 1978 constitution provided for and what was achieved until the 19th Amendment was the replacement of parliamentary tyranny by presidential tyranny.

With President Sirisena refusing to abide by the terms of the 19th Amendment, which he proudly and justifiably claims credit for, the entire government has become unworkable. And the unworkability travelled as far as Geneva to the UNHRC in September. It would be interesting to see what the new presidential candidate, Gotabhaya Rajapaksa, has to say about the resolutions at the UNHRC and how he will address them if he were to relinquish his US citizenship and become Sri Lanka’s next president. Elections and new governments, or presidents, may produce positively different results only if the political and economic fundamentals are properly in place. Sri Lanka is nowhere near that situation, and the current examples of the United Kingdom and the US show that elections can create more problems than solutions even in the more advanced polities.