By Gamini Abeywardane
Two years on, a constitutional solution to the minority
issue, one of the electoral promises of the yahapalana
government is far from being a reality. The ongoing constitution making process
in the parliament has made some progress with regard to the degree of
devolution – a sticky issue in the past, while the process has slowed down due
to issues not related to devolution.
One such major issue seems to be the abolition of the executive
presidency. Since Chandrika Kumaratunga government of 1994, all presidents came
to power promising to abolish the executive presidency. But subsequently all of
them either abandoned or postponed the issue depending on other political
priorities, personal agendas or hunger for power.
However, the difference this time over, is that the Yahapalana government of Maithripala Sirisena
and Ranil Wickremesinghe was voted into power on the strength of a broad coalition
which included minority parties and the promise of abolishing the executive
presidency was one of the key elements in their agenda. Yet, the slow pace of
the constitutional process makes one wonder whether the same thing is going to
happen this time as well.
The constitution making process that was activated through
the parliament first got delayed due to emotive issues like giving the foremost
place to Buddhism and the use of the word ‘unitary’ in the constitution. However,
subsequently there seem to be some progress even in these seemingly difficult
areas.
For example, section 9 of the current constitution gives the
foremost place to Buddhism while it also gives due recognition to all other
religions and guarantees freedom of thought and religious belief. There has been general agreement from all
quarters including the Tamil and other minority parties to leave these
provisions as they are.
Unitary state
Then the other issue was devolving power to the periphery
while retaining the unitary nature of the constitution. It has been argued by
the Tamil National Alliance (TNA) that the use of the word ‘unitary’ in the
English text of the constitution could lead to wrong judicial interpretations
undermining the very idea of devolution of power. Therefore, they have suggested the use of the
Sinhala word ‘Ekeeya’ in the English text as well, so that any future judicial
interpretation will have to be made purely on the provisions and the structure
of the constitution and not on the basis of one word.
If agreed, these suggestions may overcome some of the
unwanted disputes thereby giving more priority to other important aspects such
as the abolition of the executive presidency, introduction of a second chamber
and the structure of the government in a way that will lead to a permanent
solution of the long standing ethnic issue.
Where devolving power to the periphery is concerned now with
the provincial councils already in operation what is needed is to finalise
matters with regard to some of the controversial areas like the concurrent list
and what sort of police and land powers are to be devolved. Strange enough already
there seem to be some agreement on these issues.
Despite the broad principles agreed upon by the political
parties that joined together to defeat the previous government and form the yahapalana government, there seem to be
no agreement between the SLFP and the UNP over the issue of abolishing the
executive presidency. The idea is strongly backed by the JVP and several other
small political parties including the Communist Party of Sri Lanka except the
Joint Opposition which is likely to oppose any major change in the constitution.
Although there has not been any official stance yet from the
SLFP, individually some of the SLFP members of the cabinet have made statements
opposing any major constitutional change that will require a referendum. Their
argument is that it will not be easy to win such a referendum. But, there are
also serious doubts as to whether such stance is just a lame excuse to continue
with the executive presidency.
Referendum
Meanwhile, fairly early in the constitutional process the
TNA leader R Sampanthan had made it clear that for any constitutional change
resolving the ethnic issue to be successful, it should have the approval of the
people at a referendum.
He said the sovereignty is vested with the people and hence
it was essential to get the people’s support. He elaborated his position by
saying “There can be a new constitution for the country, only if it is approved
by the people of the country.”
Prime Minister Ranil Wickremesinghe also has endorsed this
idea saying that the leader of the TNA accepted that the support of the
majority community was essential to enact a new constitution. Across the board there had been general
agreement among parties represented in parliament that a referendum was
necessary.
The provision for referenda which was introduced for the
first time in our country by the 1978 Constitution was believed to be an
enhancement on democracy that existed up to that time. In a representative
democracy elected members legislate on behalf of the people. But, when it comes
to a matter of utmost national importance a referendum enables the people to
get involved directly and approve or disapprove it.
However, ironically this provision was used by its architect
President J R Jayewardene in 1982 to extend the life of the parliament by
another term without holding a general election because he wanted to preserve
the two thirds majority he enjoyed at the time. An idea for a referendum never
came up thereafter.
Thirty five years later it has surfaced again and the
difference this time is that if a referendum is to be held, for the first time
it is going to be for its original intended purpose – to decide a matter of great
importance to the country. There cannot be anything more important than a
Constitution, more so when it is intended to resolve some long standing
national issues.
Sampanthan is right in favouring the idea of a referendum
because even if everything is agreed upon in parliament some parties are likely
to challenge the constitutional bill in the Supreme Court on the basis that it
is not possible to amend or replace some of the sections of the current
Constitution without a referendum. A court ruling in favour of such a petition
would be a definite disadvantage for the proponents of such a Constitution.
The country has already tested two homemade Constitutions
but none of them has succeeded in resolving the vexed national issue. Both
these documents were drafted to suit the needs of the governments at the time,
hurriedly passed in parliament and therefore lacked adequate public discussion
or general approbation of the people.
This is going to be independent Sri Lanka’s third
Constitution and now it is time for the country to agree on a permanent
document. Sufficient public discussion
and extensive involvement of all political parties in Parliament are a sine qua
non, if we are to come up with the right document.
A referendum will be
the best way to ensure such debate and discussion while any piece of legislation
directly approved by the people in that manner will have the legitimacy that is
needed to give some sense of permanency for such a document in the minds of the
people.
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