19th amendment needs modification

By Gamini Abeywardane

Prime Minister Mahinda Rajapaksa when he met a well-known Buddhist monk recently made it clear that the 19^th amendment to the Constitution needs modification. He indicated that it fetters the executive presidency and the newly elected President is able to function because he is in the Premier’s seat.

It is obvious from the experience of the previous government that split of powers of government between the President and the Prime Minister under the current status is so irrational that the country cannot be governed smoothly if there is any disagreement between the Prime Minister and the President.

This is the very malady which technically made the Ranil Wickremesinghe administration wholly ineffective to the extent people felt as if there was no government in the country. Most of the lapses which threatened the national security causing great damage to the economy and finally bringing down the very administration could be attributed to the imbroglio created by the 19^th amendment.

Then what is the solution? It is not certainly going back to the 18^th amendment to the Constitution which gave excessive powers to the President. Some of the good things like the independent commissions created under the 19^th amendment should be retained while removing some of the obstacles created for the executive president directly elected by the people to carry out his normal functions.

For example the nineteenth amendment prohibits the President from holding ministries; nevertheless the appointment of ministry secretaries is entirely within the President’s powers. Cabinet ministers are appointed by the President in consultation with the Prime Minister while the President remains as the head of the cabinet and therefore should preside over the cabinet meetings.

By virtue of the Constitution President is the Head of the state and also of the Government. He is also the commander on chief of all armed forces and he alone has the power to declare peace or war. Such powers are generally inherent in a head of state, but here the point is our head of state is directly elected by the people and the system of government we still have is executive presidency.

In such a situation it can be argued that the executive president who is also the head of the state and head of government should technically have the power to hold the defence ministry although the position under the nineteenth amendment is not quite clear.

These are anomalies that need to be rectified and they cannot be done without the two thirds majority in the Parliament. The next general election that is supposed to be held in the mid-year is quite crucial in that sense and it may not be impossible if the President continues to go on the correct track which we believe he is already on.

In case he is unable to muster that kind of majority on his own he should be supported by the other political parties in the Parliament to correct this anomaly in order to ensure smooth functioning of the Constitution and the system of government it has bestowed on the country.

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Of executive presidency and abolition dreams

The emergency cabinet meeting aimed at abolishing the executive presidency failed to produce any results.  However it speaks volumes about the sudden desire to abolish the executive presidency developing in all quarters of the political spectrum. There is lack of clarity on who called for the cabinet meeting, but it is clear that such a sudden meeting wouldn’t have been possible unless there was some agreement between both President and the Prime Minister.

The abolition of the executive presidency has been in the political debate since the death of President Ranasinghe  Premadasa. Chandrika Kumaratunga, Mahinda Rajapaksa and Maithripala Sirisena, all had the abolition of the executive presidency as a main item in their election manifestos. Some argue that the executive presidency is good for the country, but if that is so its abolition would not have been an attractive theme for election manifestos.

All Presidents have promised good things for the country at the time of elections, but done what is good for them after getting elected. And that has been the fate of this abolition idea so far. Now it has been at least half abolished through the nineteenth amendment. In practice what we have now is more like a quasi-executive presidency as most of its powers have been transferred to the Parliament.  As a result its abolition has become easier than before.

The original nineteenth amendment draft envisaged creating almost a non-executive presidency. However due to the Supreme Court determination and resistance from the then Joint Opposition in the Parliament it was a much different version which was finally passed and it has created a number of new issues. Accordingly even a future government will find it difficult to rule the country because of the possible friction between the Parliament and the President.

By now it is well accepted that the nineteenth amendment to the Constitution in its present form is troublesome and needs modifications. However any modification will involve either transferring powers from the President to the Parliament or vice versa and will not be practically easy even if the next President and the Prime Minister are from the same political party.

Whatever prompted the recent emergency cabinet meeting meant for initiating abolition of the executive presidency was once again not in the interest of the country, but to safeguard the self-interests of those who initiated it. Prime Minister Ranil Wickremesinghe is now pushed to the wall in the face of mounting pressure from a sizable faction of his party to nominate Sajith Premadasa as the presidential candidate. Incumbent President is not in a position to contest for another term. The move is likely to have even the blessings of former President Mahinda Rajapaksa because he is constitutionally prevented from running for presidency again.

The JVP’s recent move to abolish the executive presidency through the proposed twentieth amendment would have been an excellent opportunity to resolve the issue. The move did not find the support of the Prime Minister Wickremesinghe probably because of two reasons. Firstly because he had the ambition of getting into the high post himself and secondly because he thought such a move would facilitate Mahinda Rajapaksa to capture the governmental power through the Parliament.

However now it seems too late to introduce any constitutional amendment before the presidential election. It is unlikely that whoever is elected as the next Executive President will soon work towards abolishing his own position. The only option will be to modify the nineteenth amendment to remove unwanted friction between a future President and the Prime Minister which is again will not be an easy task.

  

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Nineteenth amendment: Gridlock or progressive step?

Westminster or prime ministerial system of government, with whatever its weaknesses, has worked well for centuries and well-developed traditions and conventions are available to meet with any situation. We are probably paying for our sins after haphazardly changing a system of governance which had worked quite well in our country for a long time.

By Gamini Abeywardane

The leaders of the United National party which introduced the 1978 constitution described it as the panacea for all political ills of the country since independence. The political opponents of the UNP saw it as the road to dictatorship and end of all freedoms.

All Presidents that came into power after J R Jayewardene and Ranasinghe Premadasa climbed on to the pinnacle of power on the promise of abolishing the ‘tyrannical’ executive presidency though none of them stuck to their promises beyond the election date. Instead, they enjoyed the powers and perquisites of the high office to the maximum and also examined the possibility of sticking to it beyond the two terms.

The only exception was Maithripala Sirisena who upon his election tried to deliver his promise quite honestly. Fresh from the victory backed by all forces who wanted to re-establish democracy and give the Parliament and the judiciary their due place, Maithripala had no qualms about giving up the massive powers attached to his post.

Probably the reason was, he never contested on his own accord or as a candidate of his own political party, but was handpicked and persuaded to be the common candidate by a combine of all those political parties and the civil society groups that rallied round Venerable Maduluwawe Sobitha Thera to topple the Rajapaksa regime.

Amidst massive opposition, pandemonium in the Parliament and constitutional snags, Maithripala could only go half way in terms of delivering his promise of abolishing the executive presidency. The balance part in terms of the Supreme Court determination was not possible without holding a national referendum.

The nineteenth amendment as such, was the maximum he could have gone, however honest he would have been in his attempt to deliver his promise. Ironically enough even he seems to be now regretting over going that far. He now tells the country that nineteenth amendment is the reason for the mess we are in today ---the scuffle between the Premier Wickremesinghe and him as well as other political woes.

At the same time he stated that the eighteenth amendment almost created an absolute monarchy and there was great need for a change. It is an admission that the nineteenth amendment, despite its faults, was a progressive step. However, at last he seems to find fault with both eighteenth and nineteenth amendments.

Indirectly, the suggestion is that it is better to change the nineteenth amendment before the next presidential election in order to prevent a recurrence of a similar situation in the future. That seems to have some point.

What if the next two elections also produce a President and a Prime Minister who will pull in two different directions? By nature of the nineteenth amendment the holders of the two posts will enjoy some sort of equal power and the worst is if the presidency and the premiership go to two different political parties.

Such a scenario is not impossible particularly in the current context of confusion and chaos with no party or individual in politics considered exceptionally popular. Then, the only option will be to go on for another four and half years as the President under the nineteenth amendment will have no authority to dissolve Parliament before such time.

Consensus

It is only the consensus among political parties that can resolve such an issue in a democracy. However, our experience is that consensus on such a major issue is never possible in our system where the greed for power and perks overtakes national interest.

That way the country has no other option than tolerating all the ills of the Constitution and the system until some party obtains two thirds majority in the Parliament which is again a near impossibility under the prevailing proportional representation system.

Thus the possibility is for the nineteenth amendment in the present form to remain a part of the Constitution whether one likes it or not. All this would have been avoided if the process to draft a new Constitution that began in the Parliament several years ago had seen its fruition.

A major part of the work in that regard has been already done, but it is not possible to go ahead with it in the prevailing political climate. It is also unlikely that a future government will be able to revive that process and continue with it from where it has been stopped.

However, with date for Presidential elections fast approaching there is no time for debate over any such things and inevitably the matter will be left to the next President and the Parliament to resolve.

So the likelihood is that there will not be any possibility for a totally new Constitution, but piecemeal changes may be introduced from time to time depending on the outcome of each election. We will have to live with each amendment for some time to see how workable they are.

Future politics will be complicated with unexpected issues coming up because of the friction between Parliament and the President. The reason is there are no conventions or precedents in our system because we are still experimenting with our presidential form of government.

Judicial interpretation

The only hope in this regard can be the judicial process which will be able to play a decisive role in interpreting the provisions of the Constitution as happened in the recent judgments of the superior courts in the unsuccessful attempt to dissolve the Parliament.

The matter can also get resolved to some extent if the next government gets a clear majority in the Parliament. Still there is a greater possibility that many of the matters of friction among the various agencies of the government will end up in courts and that can be one way of resolving some of these issues once and for all.   

A Constitution like any other system has to evolve and maybe we are going through this evolution. Further amendments or judicial interpretations will become necessary to overcome every obstacle that we may confront on the path of our constitutional development. The country’s courts will have a definite role to play in it.

Westminster or prime ministerial system of government, with whatever its weaknesses, has worked well for centuries and well-developed traditions and conventions are available to meet with any situation. We are probably paying for our sins after haphazardly changing a system of governance which had worked quite well in our country for a long time.

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Executive Presidency: Can it be abolished in a hurry?

With no party enjoying a majority in the Parliament, now it’s a favourable  alignment of forces in the political landscape for such a constitutional change and the JVP seems to have struck it at the most opportune time. Our political leaders in most instances have acted in their own interest and they are sure to do so this time as well, but it will incidentally do some good for the country if the result is going to be abolition of the executive presidency. 

By Gamini Abeywardane

Abolition of the executive presidency has surfaced in the political debate again.  Since early nineties the matter has been brought up many times in election promises -- first by Chandrika Kumaratunga in 1994, then by Mahinda Rajapaksa in 2005 and 2010, and lastly by Maithripala Sirisena in 2015. Yet for all, none of them kept their promises and instead displayed their duplicity by trying to enhance their power or stick to it as long as possible.

The only minor deviation from this trend was visible when Maithripala Sirisena agreed to prune down some of the presidential powers by establishing independent commissions and imposing a two term limit for a person to hold the presidency, through the nineteenth amendment. However, it became possible as it happened hot on the heels of the 2015 presidential election which was fought on the broad theme of curtailing authoritarian trends and introducing good governance. It was introduced within a few months of the election and there was hardly any time for a change of mind by the head of state.

All that is good evidence for one to believe that any changes to the executive presidency has to be introduced only in the first part of one’s term and towards the latter part any incumbent President will try to find ways and means to consolidate his position and come back to power for a second term. However, this is the first time that the idea of abolishing the presidency has come to the centre-stage towards the end of a government’s term and has also become the subject of discussion among the three powerful political leaders of the country representing different political groups -- Maithripala Sirisena, Ranil Wickremesinghe and Mahinda Rajapaksa.

Hidden consensus

JVP which brought forth the idea in the form of a twentieth amendment proposal has been in the forefront pushing the matter forward and discussing it with all relevant stakeholders and the Tamil National Alliance. Although the UNP had initially promised to abolish the executive presidency, towards the latter stages they did not display much enthusiasm to do so. However, with doubts over Ranil Wickremesinghe’s ability to win a presidential election and division of opinion in the party on the selection of a presidential candidate the UNP has now begun to look at the idea favourably.\

This matter has special relevance and advantage for Mahinda Rajapaksa because by virtue of the nineteenth amendment he is effectively debarred from contesting for a third term. Thus, the only avenue available for him to become politically powerful again is through a prime ministerial system and that is why he has told the JVP leader Anura Kumara Dissanayake that he is in favour of abolishing the executive presidency although he is not ready to support the proposed twentieth amendment in its present form.

The joint opposition led by Mahinda Rajapaksa has not so far reached any consensus on a presidential candidate although Gotabhaya Rajapaksa has indicated his willingness and intensified his campaign. There seem to be a lot of confusion there as Rajapaksas themselves appear to be divided on the issue while the US citizenship issue of Gotabhaya is still not resolved.  

Then for Maithripala Sirisena the idea can be much attractive as his position is weakening day by day with little or no prospects for wining a second term. On the contrary he may stand the chance of becoming the non-executive head of state in return if he supports the abolition of the executive presidency. It would have been possible for him to think of a second term if the political coup he staged with Mahinda Rajapaksa had succeeded and there would have been some understanding between the two to that effect, but now the scenario has completely changed and that is why the proposed discussions between Sirisena and Rajapaksa on this matter has still not materialized.

In this situation the proposal is much likely to receive the support of the former President Chandrika Kumaratunga, the TNA and all civil society groups that have been clamouring for abolition of the executive presidency. However, the TNA will not simply back it and naturally they will expect a solution to the northern problem as well through the same constitutional amendment which finally has to be approved by the people at a referendum. It can be a new opportunity to resolve the northern issue because the same amendment can include a devolution package and establishment of a Senate.

It can also be an opportunity to modify or abolish the much maligned PR system of elections. Opposition will come from minority political parties if there is any attempt to abolish the PR system, but they may agree to a reasonable modification to the electoral system with 30 or 40 percent PR and the rest on a first-past-the-post system.

In the current situation a return to the Westminster system of government can be personally advantageous to all the main political leaders of the country. However some of the vocal politicians currently in the joint opposition may not like the idea because most of them do not have strong political parties that can independently survive in a parliamentary system of government. Instead they seem to be more comfortable with hanging on to a strong individual in the form of an Executive President.

Opportune moment

With no party enjoying a majority in the Parliament, now it’s a favourable  alignment of forces in the political landscape for such a constitutional change and the JVP seems to have struck it at the most opportune time. Our political leaders in most instances have acted in their own interest and they are sure to do so this time as well, but it will incidentally do some good for the country if the result is going to be abolition of the executive presidency. 

Moreover such a move will also ensure that the political power will remain in the hands of these two or three groups and with the traditional political families. The continuance of the presidential system with a two term limit will result in new individuals and new groups capturing the political power in the country. Therefore, it is very likely that all these three groups will act in such a way to retain the political power among themselves.

Time constraint

However, the question remains that with presidential elections being due in November whether the limited time available will be sufficient to effect such a major political change. It will not be possible to scrap the executive presidency without modifying the electoral system as the PR system and executive presidency are closely interconnected. The other issue is another set of constitutional proposals which may also aim at abolishing the executive presidency while also addressing all other relevant issues including devolution of power has been already developed through the Constitutional Assembly and is now before the Parliament.

In such a scenario it is difficult for the major political parties to look at the issue of abolishing the executive presidency in isolation while ignoring the issues of devolution of power and electoral system. If such an amendment is to successfully go through the passage of Parliament it should receive the blessings of the minority communities and the small political parties as well.

In this context it is difficult to imagine that the proposal, however attractive it may be to major political players, will gather the necessary momentum to become a reality within the available short period before the presidential election. In such a situation, it can be a priority for the next government and the set of constitutional proposals that have been developed through the Constitutional Assembly can be the basis for such a change. (The writer can be contacted on gamini4@gmail.com)

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If Constitutional Council is bad, what is better?

By Gamini Abeywardane

A debate over the constitutional council was triggered by President Maithripala Sirisena’s angry remarks criticizing the Constitutional Council following his disagreement with it over some key judicial appointments. Some people who are not happy with it for whatever reasons, have gone to the extent of even calling for its abolition.

But the million dollar question is: What then is the solution? Are we to go back to the eighteenth amendment giving all powers to one person?  Having seen the ugly side of the eighteenth amendment all major political parties agreed to introduce the nineteenth amendment and it is unlikely that there will be any compromise on that.

Maithripala Sirisena

However, following the recent debate on the Constitutional Council in the Parliament some politicians have now proposed a reduction in the number of parliamentarians in the Constitutional Council, while some others have gone to the extent of proposing completely an independent body without any political party representatives in it.

Original draft

In this regard, it is worthwhile to re-examine the original Nineteenth Amendment Bill that was presented in the Parliament in March 2015 and the debate that followed.The original bill proposed a ten member Constitutional Council consisting of the Prime Minister, the Speaker, the Leader of the Opposition and seven other members who were not supposed to be Members of Parliament.
The seven independent members were supposed to be: One person appointed by the President; five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition; and one person nominated by agreement of the majority of the Members of the Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong, and appointed by the President.

The bill also spelt out that the seven persons so appointed should be persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party. In short, the idea was as far as possible to depoliticize the process of appointing members of all the independent commissions operating under the Constitutional Council.

The unfortunate thing was these provisions were vehemently opposed by members of the Opposition who demanded a council with a majority of Members of Parliament, perhaps because they were against the inclusion of civil society members due to reasons best known to them.

Dinesh Gunawardena

Opposition members Dinesh Gunawardena and Vasudeva Nanayakkara at the Committee Stage debate strongly opposed the idea of having a majority of civil society members in the Constitutional Council and instead wanted seven out of its ten members to be Members of Parliament.

Vasudeva Nanayakkara

Amidst these objections it was difficult for the government to obtain the required two-thirds majority to pass the amendment and as a compromise it was agreed that out of the seven members only three members should be from outside the Parliament.

If not for this situation, the Constitutional Council would have had a set of distinguished people from outside the Parliament as the majority of its members resulting in a depoliticized Constitutional Council. It is rather ironic that the very people who were against the appointment of independent members are now asking for reconstitution of the Constitutional Council to include more independent members.

Mechanism to prevent deadlock

Then there is a need to remedy the situation which led to the current deadlock in appointing the President of the Court of Appeal. Such inordinate delay in making vital appointments can erode the confidence of the people in the system and therefore it is necessary to have a reasonable mechanism to avoid a deadlock arising from a disagreement between the Constitutional Council and the President.

Another allegation made by the President is that the Constitutional Council has not given any valid reasons when it rejected the names of some of the judges proposed by him for promotion to the higher judiciary. There had also been augments to the effect that in a democracy these processes should be transparent and people have a right to know the reasons for such rejections.

But it should also be noted that promotions in any organization are not a matter of right for the employees, but to some extent a matter of discretion on the part of the management and it’s more so when people are promoted to high positions. Judges of superior courts and other key officials in the government like the Attorney General, the Inspector General of Police also fall into this category.

Then, how practical it is to give reasons publicly for rejecting some nominees? One may argue in favour of such transparency, but disclosure of one’s unsuitableness may trigger unwanted public discussion over these appointments while also causing damage to persons whose names have been rejected.

Such discussion could be very much like allowing public discussion on the correctness of judicial decisions and the end result could be hampering the smooth functioning of the system itself. Key persons in the country publicly criticizing these appointments will erode the people’s confidence in the system.

Public discussion of such matters may be common in the US and some countries in the West,but in our country it could be treated as prejudicial to the smooth functioning of the court system particularly in the context of the culture in our country.

Seniority and promotions

A certain minimum number of years of service will be necessary for a promotion or appointment to akey post. However, seniority alone should never be the criterion for appointments or promotions in any institution, be it in the judiciary, the state sector or the private sector. Seniority has to be considered along with other factors such as competency, integrity and educational qualifications. If seniority alone can be the only criterion promotions can be almost automatic and there will not be any need for the Constitutional Council or the President to get involved in such appointments.

The signs are that the ongoing process to introduce a new Constitution will take longer than anticipated. However the current deadlck with regard to some key appointments have to be resolved without delay.

The best option now is for all political parties to agree without delay and introduce the same provisions with regard to the Constitutional Council contained in the original nineteenth amendment bill. That will ensure a depoliticized constitutional Council which will include seven independent members who are not politicians, so that spirit of the nineteenth amendment as envisaged by those who advocated good governance will be retained.

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New constitution: Is this the correct time?

"In most countries the majority of the people do not understand the importance of a constitution as they mistakenly think it does not have any direct bearing on their lives. All this seems to be arising out of ignorance that a good constitution is fundamental to all economic and social well-being of a nation." 

By Gamini Abeywardane

The debate over a new constitution has come to the fore again.  Many critics especially those who do not like to see any progress in this regard due to personal agendas are raising issues saying that there are many other grave issues facing the country which needs to be tackled before introducing a new constitution.

If there is a strong need for something in a country that has to be done at whatever time possible. No politically honest person will argue against the need for a totally new constitution. The election of 2015 was fought on the theme of abolishing the current constitution and establishing a system of good governance while resolving the national issue once and for all. All the minority communities as well as educated and right-thinking sections of the population whole-heatedly supported a political change with this intention.

The importance of a good constitution became clearer than ever before during the recent constitutional crisis which finally had to be resolved by the country’s highest court. Most people who earlier asked whether the constitution was for the people to eat (Vyavasthava Kannada), were reading that document day and night during this seven weeks of political and economic turmoil. So much so all the printed copies of the constitution and the nineteenth amendment were sold out like hot cakes and there was a shortage of them at the government publications bureau.

Need for a new constitution

The need for a new constitution began with anti-democratic and authoritarian trends experienced under the present constitution at different times. That is why both past Presidents Chandrika Kumaratunga (in 1994) and Mahinda Rajapaksa (in 2005) and present President Maithripala Sirisena (in 2015) included abolition of the executive presidency as one of the main items in their presidential election manifestos.

In most countries the majority of the people do not understand the importance of a constitution as they mistakenly think it does not have any direct bearing on their lives. Even here our political landscape is full of rhetoric to say there are more important issues than a constitution at this point of time. All this has become possible because of the ignorance of the majority that a good constitution is fundamental to all economic and social well-being of a nation. 

It becomes more so in a multi-ethnic country which has a history of conflict among different communities. On the top of it, there is a segment of politicians who are not genuinely interested in sorting out any of these issues and try every trick in the book to stifle the implementation of a new constitution for their own political survival.

For the chauvinist and racist politicians both in the south and the north, the unresolved northern issue is a very useful thing much like the beggar’s wound (HingannageThuwale) as it is easy for them to survive in politics by harping on this issue. It is much easier to inflame communal feelings among people than finding actual solutions to social and economic issues faced by them.

The issue about the constitution has a long history in our country. When we got our independence there was no demand for separation from the Tamil mainstream politicians. They all agreed upon the Soulbury Constitution which was drafted after a consultation process which went on for more than two years. It had adequate protection for minority interests and continued to be our supreme law until 1972.

The first republican constitution of 1972 was a majority community imposed document which took away some of the specific provisions protecting the interests of minorities. It was bulldozed through a revolutionary method by a Constituent Assembly which sat outside the parliament without the participation of the Tamil parliamentarians. The whole exercise was carried out with the intention of severing all colonial constitutional links to facilitate quick implementation of socialistic policies of the then United Front government.

Then, the constitution of 1978 was similarly forced upon the country by the J R Jayewardene government by making use of the five-sixth majority they had in the parliament. It changed the whole governing and electoral system of the country by introducing the executive presidency and the underlying intention, it appeared, was to perpetuate the grip of the United National Party in Sri Lankan politics.

A significant constitutional development thereafter, was the introduction of the thirteenth amendment to the constitution which drastically changed the nature of the executive by taking away the powers to make key appointments and handing it over to several independent commissions. This was a great achievement because in passing this piece of legislation there was unanimity in the parliament which is a rare thing.

But unfortunately, this was short-lived as it was replaced by the eighteenth amendment which gave all those powers back to the executive president. It enhanced the power of the executive presidency by removing the two-term restriction. This led to a near dictatorial situation threatening rule of law as well as good governance.

The nineteenth amendment which is in force at the moment came as a direct result of the need for changing this situation. However, it addressed only the good governance issue by establishing a constitutional council and independent commissions and introducing a more democratic mechanism for appointing persons to some high posts. It was a hurriedly introduced interim measure and therefore did not address the vital national issue of power devolution which was left to an entirely new constitution as promised in the 2015 election campaign.

Accordingly, a process to draft a new constitution began with the formation of a Constitutional Assembly in March 2016 where all 225 members of parliament sit as a committee.  Thereafter, a Steering Committee consisting of 21 members reflecting the general political party leadership within Parliament was appointed for preparation of a constitutional proposal. From that time onwards through public representation committee and by other means the views of all sections of the people have been accommodated in the process of making a set of constitutional proposals which has finally gone into the tentative draft which has now come before the steering committee.

The final draft of a constitutional bill has to be prepared based on these proposals. In order for that to become law, it must be passed in the parliament by a two thirds majority and finally approved by the people in a nationwide referendum. This sort of long and participatory process will ensure that a constitution so adopted will have the approbation of the people and therefore likely to last long. 

Proper procedure

In other words this is the first time a constitution is being prepared with adequate time allocated for the process and giving opportunities to all segments of the people to make representations akin to the process followed in India when they wrote their own constitution soon after independence.  This is also the first time after independence, all the communities, particularly the Tamils are participating in a constitution making process.

Therefore, if these efforts become successful all the elements that are necessary for this document to be long lasting are present unlike in the previous instances. Therefore, the timing for its finalization is immaterial, if it is going to do some good for the country. The best time is the time whenever two thirds of the members of the parliament can agree on it.

It could be done by the current government or could be the first priority for the next government. Seventy years have passed since independence and it’s time that we develop the right constitution for the country ending the fears over dividing the country. We need to get all communities and all regions to actively participate in economic development if we are not to become the losers in South Asia in this fast changing world scenario.

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Uphill task of constitution making

Monday's debate, a significant development

By Gamini Abeywardane 

As the debate on the new Constitution forges ahead many socio political and historical complexities in the Sri Lankan society seem to be coming into replay. With the difficult task of balancing the pride of the two main communities, the framers of a new Constitution no doubt have an uphill task.

The upcoming three day debate in the Parliament starting on Monday will throw much light on the many sides of this complicated issue and will be a turning point in the whole exercise for finding a lasting solution to the northern issue among other things. Many who have commented, criticized or made irrational statements on the subject in the streets outside will have to stick to their points and behave in a more responsible manner in a parliamentary debate.

Never in the past, a constitutional discussion has come this far. Neither has any incumbent government had shown such genuine desire to find a constitutional settlement encompassing the views of a wide section of the population. In that sense it will be a historic development irrespective of whatever the final outcome is going to be.

This could be the fourth attempt to address the northern issue constitutionally preceded by the Constitution Draft Bill of 2000, Dudley-Chelvanayakam Pact and Bandaranaike –Chelvanayakam Pact. The difference is in all those previous instances there was no public discussion or debate. While the 2000 draft was rejected by the Parliament the others were withdrawn in the face of public antipathy.

Process followed

On the contrary this time the matter came to the centre stage in quite a different way as a major electoral promise by the coalition of political parties that was voted into power in January 2015. The constitutional process began in January 2016 with the appointment of a Consultation Committee by the Cabinet to seek the views of the people.

This mechanism paved the way for wide and active public participation and a culture of inclusiveness. The mandate of the Public Representation Committee was to seek oral and written submissions from the public on constitutional reforms through public consultations throughout the country.

The next phase of the constitutional reforms began with the passage of the Parliamentary Resolution of 9th March 2016 known as Framework Resolution which established the “Constitutional Assembly” and its procedure for drafting a Constitutional proposal.

The Constitutional Assembly sits as a separate body consisting of all Members of Parliament and has powers that are similar to the powers of a Committee of the whole Parliament. The sessions of the Constitutional Assembly are conducted inside the Chamber of Parliament.

 In terms of the Framework Resolution the Speaker of Parliament is the Chairman of the Constitutional Assembly and is assisted by seven Deputy Chairmen who are elected by the Assembly.

 At the first sitting of the Constitutional Assembly on 5th April 2016, the seven Deputy Chairmen were appointed together with the Steering Committee of the Constitutional Assembly. The Steering Committee is responsible for the business of the Constitutional Assembly and for preparing a Draft of a Constitution for Sri Lanka.

Accordingly, on 5th April 2016 the Constitutional assembly appointed a Steering Committee chaired by Prime Minister Ranil Wickremesinghe and consisting of 21 members representing all political parties present in Parliament.

The Steering Committee is aided by six Sub-Committees each comprising 10 members and a Chairperson appointed in terms of the Framework Resolution. The six Sub-Committees were appointed on 5th May 2016 by the Constitutional Assembly and were assigned to deliberate on areas of Fundamental Rights, Judiciary, Law and Order, Public Finance, Public Service, and Centre-Periphery Relations.

The deliberations of the Sub-Committees included discussions with various stake-holders including political party representatives, members of interest groups and organizations that made representations to the Sub-Committees. Representations received by the Steering Committee from political parties, Provinces and interest groups were also referred to the six Sub-Committees for their consideration.

In addition, interactive sessions were conducted among Sub-Committees with the participation of representatives from key sectors including Secretaries to Ministries, Senior Representatives of Provincial Councils (PCs), Heads of Departments, Senior Personnel from Independent Commissions and Civil Society representatives. The Final Reports of the six Sub-Committees that were submitted to the Steering Committee were tabled in the Constitutional Assembly on 19th November 2016.

Based on these reports the Steering Committee prepared an Interim Report in relation to core subjects to be covered by a Constitution such as nature of state, sovereignty, religion, form of government and principles of devolution which also contains political party positions and observations made by members of the committee.

It is this Report which was tabled in the Constitutional Assembly on 21st September 2017 that is going to be debated in Parliament and most of the outcry and noisy remarks made by various political groups in the country are referring to the content of this document which is only a bundle of proposals sometimes contrary to each other.

This is far from a constitutional draft and the content is not something that has been secretly developed as portrayed by some. It is the outcome of a very transparent, systematic and democratic process well in tune with the accepted procedure for this kind of things worldwide.

The only difference is that this sort of transparency and opportunity for public discussion was not provided in the failed 2000 constitutional draft bill, 2010 All Party Representatives Committee (APRC) proposals or in the instances where new constitutions were promulgated in 1972 and 1978. It was only the politicians who participated in these processes and public had little or no say.

Need for a new Constitution

All these previous attempts suggest that there is a need for a new Constitution which had been recognized without any reservation by the respective Presidents and the governments that initiated these efforts. The Government’s Proposals for Constitutional reforms published in October 1997 in its preamble had recognized that “ravages of hostilities and armed conflict resulting in extensive loss of life, destruction and loss of property” had endangered “distrust and disharmony among the people and has impeded the Nation’s progress” while also stressing that it is essential to heal the divisions of the past and to establish a stable legal order in the form of a Constitution.

The APRC Report of 2010 says that the President mandated the APRC to evolve ‘a home grown new Constitution’ which will provide ‘a comprehensive approach to the resolution of the national question’. These are clear admissions by the leaders at the time that there is a national issue which needs a constitutional solution.

It is also noteworthy that 2000 constitutional proposals as well as the APRC proposals of 2010 had proposed abolition of the executive presidency and return to a parliamentary system. On the issue of the unitary status of the state the year 2000 constitutional draft had referred to the state as ‘an indissoluble union of Regions’ while the APRC Report of 2010 had proposed to retain the word ‘unitary’ while it was not proposed to alter the foremost place given to Buddhism in both these instances.

There has never been any unanimity in these sensitive areas and naturally the current set of proposals in the Steering Committee of the Parliament will also have all these different ideas from federalism to unitary state, from foremost place to Buddhism to secularism or from retaining executive presidency to parliamentary system.

In the end what is best for the country is to debate all these ideas extensively and to come up with some consensus and the three day debate in Parliament can be a good starting point. There could be a vast difference between the document that is debated and a final draft and with that people on both sides will know their practical limitations and that itself is a great step towards reaching some consensus.

 

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Do we need a new Constitution?

 

By Gamini Abeywardane

As the work of the Constitutional Assembly of the Parliament progresses to a reasonable level opposition is mounting from various quarters who argue that there is no need for a new Constitution and the current document we have is good enough.

It is not strange because many times we have experienced similar developments in the past whenever attempts were made to find a reasonable solution to the northern issue, the most well-known instances being Bandaranaike- Chelvanayakam Pact and Dudley-Chelvanayakam Pact. Another somewhat similar instance was the Constitution Draft Bill of 2000 during the presidency of Chandrika Kumaratunga.

The strangest is that there was no such massive opposition when the country’s Constitution was replaced twice in the past without addressing the northern issue which has been a thorn in Sri Lankan politics from the late fifties onwards. In both those instances (1972 and 1978) although there were reasons for a change mostly they were driven by the private agendas of the ruling parties and not meant for addressing any of the burning issues at the time.

The other significant feature was on both those occasions the Constitution was rushed through the Parliament making use of the two thirds majority they had without adequate public discussion or consultations and also without the active participation of the Tamil community even in the Parliament.

This is the first time in the history of our country a Constitution is being discussed widely in Parliament and across the whole nation and therefore it is reasonable to expect opposition from many quarters. Public reactions for or against are a good thing in a democracy and more so when a new Constitution is expected to be promulgated in the most participatory manner with adequate discussion and finally through an islandwide referendum.

Fears of separatism and division of the country are quite understandable in the context of the actions of the LTTE in the recent past. However, we must also remember that despite their separate religious and linguistic identity Tamils never asked for a separate territory for them at the time of independence.They only asked for adequate representation for them in the Parliament.

The idea of a new Constitution is mainly to keep the cohesiveness of the nation, inclusive growth and prosperity and not to encourage division of the country. After many years of conflict we need to recognize that Tamils have unresolved issues that need to be addressed constitutionally which the thirteenth amendment has failed to resolve. That is the very reason why the Former President Mahinda Rajapaksa in his dialogue with the government of India promised a solution going beyond the thirteenth amendment which he called ‘Thirteen plus’.

As a result of three decades of bitter conflict, the Tamil issue has got internationalized almost nearing UN involvement and the current unity government was voted into power supported by of the Tamil community with the promise of finding a reasonable solution to the northern issue among many other changes to the governing system and electoral reforms.

It was a serious promise not only to the Tamil community and the nation but to India and rest of the world community who have been concerned about the developments here. Therefore, this government has a serious obligation to deliver on its promises and any intentional failure to do so will not augur well for Sri Lanka as a country.

Such a situation can only invite the involvement of the UN and other powerful countries in resolving the northern issue while also encouraging divisive and separatist elements in the country and thus providing a fertile ground for re-emergence of terrorism.

Any postponement of a solution to this problem will also postpone the economic progress of our country as happened during the last several decades. It is only a satisfactory resolution of this issue which can bring back the Tamil community to the main stream of things and ensure their full participation in the country’s economic development.

Similar ethnic issues that have been plaguing most other nations have been now resolved and finding a long lasting solution to our problem is an urgent priority and drafting a new Constitution will be a great opportunity to do . The current inclusive approach with wide debate both in Parliament and outside will afford the opportunity of resolving the issue with the participation of the entire nation.

This is the best opportunity in decades as the country’s two main political parties have joined together to form a government backed by minority political groups led by the Tamil parties. In the past, many attempts to solve this problem failed because whenever the governing party proposed a solution the other party blocked it.

If we do not resolve this now, it will lead to permanent frustration of the Tamil community and will also be a blow on the political future of moderate Tamils led by the TNA who supported the formation of the unity government with much hope.

Key issues in current political debate such as place of Buddhism in the Constitution, the unitary state and the executive presidency are important to many, but that should not be an impediment to settle the Tamil problem where the core issue is devolution of power and land rights.

It may sometimes be possible to resolve the issues vital to the Tamil community even without tampering with current constitutional provisions regarding unitary state, Buddhism or even executive presidency. Therefore, it is politically detrimental to the country’s future to oppose the idea of a new constitution altogether.

What we have so far developed through the ongoing parliamentary process is a set of proposals and ideas which can be the basis for a constitutional draft. It is a short sighted move to stifle the entire process just because a few proposals on the table are unpalatable to some.

All right thinking people who have a genuine desire to see an end to the long standing national issue should look at the current constitutional proposals not with suspicion but with openness and receptiveness. In this context the best judges to decide on the need for a new Constitution will be the people themselves and the idea of a national referendum on the issue could perhaps be the best answer to the problem.

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New Constitution: Are we on the right path?

 

By Gamini Abeywardane

As we celebrate the seventieth anniversary of our Parliament it is more than a coincidence that a new set of proposals forming the basis of a new Constitution for the country is ready for its consideration. Though seven decades have elapsed since we gained independence from the colonial rule we have terribly failed in the task of drafting a proper Constitution acceptable to all communities.

In this matter we are sadly behind India which succeeded in replacing the British given Constitution with a document of their own within three years of their independence in 1947. India, though a single state, is in reality a subcontinent with diverse races, religions and languages and much cultural diversity, yet for all, they managed to come up with a constitutional document acceptable to all. There have been several amendments, but no one is demanding an entirely a new Constitution.

On the contrary, Sri Lanka which has a much less complicated situation with just a few races, languages and religions, is still struggling to draft a Constitution acceptable to all communities and that too after fighting a long and bitter internal war fueled by racial, religious and linguistic factors. As such, the need for a new Constitution is more than clear and, in fact, the incumbent government was voted into power with the full backing of all minority communities with the task of drafting a new Constitution as one of its electoral promises.

However it is rather unfortunate that in Sri Lankan politics there still is a certain segment of people who believe that there is no need for a new Constitution and the current document in force has solutions to all the problems, despite claims to the contrary by the minorities, particularly the Tamils. In this situation, it is interesting to examine why we as a country have failed to come up with a proper Constitution for so long.

Personal agendas

The main reason appears to be that both our locally made or autochthonous constitutions were tailor made not for the people of this country but for the political groups that were in power in the respective periods. This is clear from the constitutional history of our country.

Independent Ceylon’s first constitution popularly known as the Soulbury Constitution was accepted by all the communities in the country as minorities were given some sense of protection. Safeguard was provided for the minorities by Article 29(2) of the Constitution which prevented the Parliament from conferring benefits on the majority community and imposing disabilities on the minorities. With some minor amendments it lasted for a quarter of a century probably because it was drafted after consultation with all the communities over a period of about three years.

Then came the first Republican Constitution of 1972 and it is a well-known fact that the Constitution was adopted by the Constituent Assembly without the participation of the Tamil community for whatever reasons. Probably the leaders at the time were in a hurry to bring about a rapid change in the country having great socialistic ethos in their minds and failed to give much thought to the idea that a Constitution is a consensus document which binds all the communities together.

Then came the second Republican Constitution of 1978 which introduced the executive presidential system. President J R Jayawardene, the architect of the Constitution tailor-made it for himself. The proportional representation was introduced mainly because he knew that even when the UNP was electorally defeated under the first past the post system they often had the majority vote count.  

With the new system in force JRJ thought that his party would never be defeated. One may argue that PR system is a far more democratic system because all minority groups also get their fair share of representation. Yet, it is clear that JRJ’s immediate motive was not to give more democracy to the masses but to perpetuate the dominance of his party.

This attitude is quite clear from the way he centered near-absolute power around the presidency with him in the chair. All the great values of democracy – rule of law, independence of the judiciary, the police and the public service were compromised under the might of the executive presidency.

After becoming the executive president he had the audacity to say that he had power to do everything other than making a man a woman and woman a man. If 1972 constitution had erred in not providing adequately for the minorities he could have well corrected that with his five sixth majority in Parliament. Yet, he failed to do so until he was forced to devolve power under Indian pressure. All that showed he too had a personal agenda behind his effort to introduce a new Constitution.

The seventeenth amendment which provided for setting up of a constitutional council to recommend appointments to independent commissions covering vital areas of government such as the judiciary, public service, police, elections etc. was, however, an exceptional piece of legislation as it received the consent of all political parties in the parliament.

However, at the same time that was a classic example of a piece of legislation that was rushed through the parliament without adequate time for debate. There was a great loophole in not providing for a quorum for constitutional council and as a result when a vacancy occurred due to death or resignation of a member the entire council became non-functional.

The eighteenth amendment was again another instance of strengthening one individual’s own position rather than resolving a constitutional issue. Declared intention of the eighteenth amendment was to rectify the anomaly in the seventeenth amendment and activate the constitutional council and other independent commissions.

However, President Mahinda Rajapakse used the opportunity to remove the term limit on the presidency allowing him to contest for the presidency for a third time and also took the power to appoint supposedly independent commissions into his own hand thereby making the executive presidency almost dictatorial.

Such is the history of our constitutional making where leaders responsible for drafting constitutions or amending them often acted for their own benefit ignoring democratic traditions or the well-being of the people. They have often acted as politicians and never as statesmen.

Much needed consensus

For a constitution to be accepted by all and to last long it should be drafted following sufficient public debate and India has set a fine example in this regard. India’s constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies.

The members of the Constituent Assembly met for the first time on 9th December 1946. On 29th August 1947, the Drafting Committee was appointed, with Dr B. R. Ambedkar as the Chairman along with six other members assisted by a constitutional advisor.

A Draft Constitution was prepared by the committee and submitted to the Assembly on 4th November 1947. Draft constitution was debated and over 2000 amendments were moved over a period of two years. Finally on 26th November 1949, the process was completed and Constituent Assembly adopted the Constitution and the whole process took three years.

In Sri Lanka in all previous cases of Constitution making, the process was confined to parliamentarians of the government and the final draft was bulldozed through the parliament without much attention to the views of the opposition members or the general public.

However, this time over the process that was triggered over a year ago with the establishment of the Steering Committee of the Parliament seems to be much in line with the Indian experience. Already there has been some debate over this matter both in parliament and outside coupled with public consultations.

Most of the politicians who are publicly opposing the idea of a new constitution also have participated in the process going on in the Parliament where they have not been able to rationally oppose some of the fair and reasonable proposals that have been placed across the table.

Still it is only a collection of proposals and the bulk of it has come from various quarters as ideas and cannot be attributed to the whims and fancies of a particular individual or a political party unlike in the previous instances of constitution making.

Unitary nature

There have been much heated arguments over the unitary nature of the Constitution and the place accorded to Buddhism while there seems to be some general agreement over the often controversial issue of devolution of power.

However, the bright side is that all minorities are agreeable to retaining the current constitutional provisions which give foremost place to Buddhism while assuring all other religions their due place.

The only contentious area seems to be the unitary nature of the Constitution as set out by article 2 of the present Constitution. Retention of the word ‘unitary’ has been opposed by the TNA on the basis that it might give the opportunity to a future government to take back some of the devolved powers through judicial interpretations. Instead they have agreed to have the word ‘Ekeeya’ as found in the Sinhala version of the current Constitution with specific provisions against dividing the country.

However, considering the rest of the provisions this seems to be a resolvable issue because what finally matters is the spirit of the Constitution and if everything goes well the question of taking back some of the devolved powers will not arise. What will matter to the people of this country is undoubtedly economic development and if the national question which has been hampering our progress can be resolved, every other issue will become secondary and people will have less time to concentrate on emotive issues.

Another important step that has been suggested in the current constitutional process is to present the final draft to the people through a national referendum after it has been passed by the parliament by a two thirds majority. The TNA has vigorously supported this idea as they believe that no Constitution will succeed if it has not been approved by the people.

A referendum will be the best way to ensure such public debate and discussion while any piece of legislation directly approved by the people in that manner will have the legitimacy that is needed to create some sense of permanency for such a document in the minds of the people.

With ample support from the minorities and the international community this government got the biggest ever mandate to draft a new Constitution and it would be anti-democratic to abandon it at the behest of various groups that have never backed a positive change in the past. The idea of a new Constitution should be abandoned only if people reject it at a referendum and not because some groups oppose it.

 

 

 

 

 

 

 

 

 

 

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