Wijeyadasa Rajapakshe crisis and the executive presidency Use your powers, Mr. President

‘In some countries, the Executive is chosen directly by the people and is not dependent on the legislature during the period of its existence, for a specified number of years. Such an Executive is a strong Executive, seated in power for a fixed number of years, not subject to the whims and fancies of an elected legislature; not afraid to take correct, but unpopular decisions because of censure from its parliamentary party. This seems to me a very necessary requirement in a developing country faced with grave problems such as we are faced with today.’

J.R. Jayewardene, address to the Twenty Second Annual Sessions of the Ceylon Association for the Advancement of Science on 24 December 1966.

Justice Minister Wijeyadasa Rajapakshe apparently has decided not to resign although his Party, United National Party (UNP) has no faith in him. Meeting the Mahanayake of the Asgiriya Chapter the Most Ven. Warakagoda Sri Gnanarathana Thera and Mahanayake of the Malwatte Chapter the Most Ven. Thibbotuwawe Sri Siddhartha Sumangala Thera over the weekend Rajapakshe said he did not have any intention of resigning from the ministerial post just because some people made allegations against him on various issues.”
The time and place he decided to make this statement should come as no surprise because Rajapakshe has been courting the support of the Buddhist Monks when criticism was mounting, from his own Party, about his inaction when it came to taking action against those with allegations of corruption. I personally think it’s not a bad move because the United National Front for Good Governance (UNFGG) Government has a habit of cowering before religious leaders. Anyway as Rajapakshe told the Mahanayakes, it is up to the President to decide whether Rajapakshe should go and the question is whether President Sirisena decides, finally, to take a decisive action. As German jurist and political theorist Carl Schmitt would say President must ‘decide what the exception is and make the decisions appropriate to that exception.’

Ridding the personal aspect

What I realized during last week, when the attempts to get rid of Justice Minister Wijeyadasa Rajapakshe by the UNP MPs were in full swing, is that a lot of the intellectuals and journalists are really uneasy about taking a stance on this. Of course the man on the street, unless he is a Joint Opposition (JO) supporter, has no qualms about either the President getting rid of Rajapakshe because they know, instinctively, that sometimes you need to get rid of bad apples to get things done.

But the intellectual class is a bit hesitant about all this. First they will throw at you some big words like ‘the division of power’ or the ‘rule of law’ and then they will tell you that they are against corruption and that they want those responsible for corruption during the Rajapaksa administration to be punished and that they would prefer if Court proceedings can be expedited. They will also tell you that they don’t like Rajapakshe that much because he flirts with racism. See the problem there, they talk about his opportunistic nature and ignore the basic fact that his inaction prevented the government from grabbing the low hanging fruit, i.e. punishing the corrupt, of the 8 January 2015 ‘revolution.’ If the government actually punished the corrupt it could have won over public trust which in turn could have been used for its ambitious reconciliation process. Most of these people will tell you that, while the corruption during the Rajapaksa administration should be addressed, allowing the President, Prime Minister or the Justice Minister to decide on what cases should be prioritized could have dangerous repercussions.

I believe that a lot of this squeamishness comes from the belief in/influence of constitutional liberalism which arose in the 19th century in opposition to the personal element of rule in the 17th and 18th centuries, i.e. having the king as an omnipotent lawgiver.

In reaction to monarchical power, efforts were made to divide political power, to split it up and set it against itself. This fragmentation of course occurred under ideas that we still hear a lot about like democratic legitimacy, the division of power; the notion that power must be checked with power and the idea that sovereignty of law should replace the sovereignty of men. Some of you might ask me what has this got to do with Wijeyadasa Rajapakshe or one might ask me whether I am opposed to any of the above ideas (what’s wrong with at least trying to rest human affairs on the rule of law?)

Deciding on the exception

I, on the other hand, am not a constitutional liberal because I do not believe in taking the personal element out of politics. The modern constitutional State faces a number of threats, or ‘exceptions’, and at times one need to take action to combat these threats.

In Sri Lanka, the power to decide what an ‘exceptional’ situation is has been vested with the President. That was what J.R. Jayewardene the man who conceptualized ‘the executive’ had in mind and the executive powers of the President were vital in many occasions to prevent the country from falling into chaos and disaster. I am also not unaware that these powers can easily be abused, but that is a discussion for another day.

According to Schmitt attempts to construct a legal system that was scientifically airtight, which banished the ‘exception’ is an exercise in futility. This is because States from time to time face crisis situations and given the chaos of the democratic system someone needs to have the authority to determine whether an exception is at hand, to determine measures to be taken in the case of an exception to safeguard the political unity and to decide the exception has passed and order and stability have been restored.

Without someone having the authority to maintain control and obedience, there is nothing to prevent the chaos akin to the one present in the Weimar Republic whose weakness led to the Third Reich.

President Maithripala Sirisena has been hesitant to use his powers so far and instead prefers to pander to the ‘whims and fancies of an elected legislature’ and religious and community leaders. But if he does not exert his powers now and remove Rajapakshe and demonstrate that he can recognize a state of crisis and determine what to do, the next two years of UNFGG rule will be marred by chaos.