Unity govt. should fulfill its intended task

By Gamini Abeywardane

National governments are a rarity. The concept originated in the UK around the time of the Second World War as there was a great need for all to get together against a common enemy – the Axis forces led by Adolf Hitler. The concept often has been promoted or spoken about in the democratic world whenever there is a need to work together in the interest of the nation.

In Sri Lanka the need for forming a national government had been spoken about many times in the past prior to 2015, the closest possibility being on the aftermath of the 2004 tsunami. However, there was no genuine desire or any practical possibility to form one until the incumbent yahapalana government was formed.

Thus, the formation of a national government with the participation of the two main political parties in the country was a rare development, if not a once-in-a-lifetime phenomenon. The immediate reason behind it, was to achieve certain national objectives which are impossible for one political party to achieve without the active support of the other.

 The main objectives included abolition of the eighteenth amendment to the Constitution and reversing dictatorial trends through several independent commissions; introduction of good governance and re-establishment of the Rule of Law; improved diplomatic and trade relations with the western countries; reaching consensus on vital economic reforms; effective dealing with the UNHRC on allegations of human rights abuse; national reconciliation and resolution of the northern problem through constitutional means; investigating into allegations of large scale corruption; creating a proper environment for attracting foreign direct investment; and electoral reforms.

While there is progress in some of these areas the government has miserably failed in several other areas, particularly in resolving the northern issue, fighting corruption and attracting foreign investments. Of all these there are two vital issues, the resolution of which needs nothing but a national government –northern issue and fighting corruption.

Tolerating corruption

On the issue of corruption the biggest drawback is the central bank bond scam which happened under the auspices of the very government that came into power with an electoral promise to curb all corruption and to catch and punish those from the previous administration who were accused of large scale corruption.

However, on the positive side is the air of newly ushered freedom and transparency which enabled opposition members of the parliament to campaign and force the government to appoint a presidential commission to look into the alleged scandal.

Also, on the negative side is the inability of this government even to expose or prosecute anybody from the previous government for complicity in any acts of corruption or undue enrichment. On the contrary, there have been allegations of willful delay in proceeding with such prosecutions making a mockery of some of the basic tenets on which this yahapalana government was set up.

Some of these allegations may not be easily provable; yet, the real issue is that there doesn’t seem to be any genuine effort by those in control of the government to go ahead with such prosecutions irrespective of whatever the final outcome is going to be.

No country has succeeded in bringing down corruption to zero level. What is needed is a system of justice, fair play and transparency where any acts of corruption gets exposed and perpetrators brought before the law so that it would become the strongest deterrent against anyone who is likely to get involved in corruption in the future.

The government has so far failed to create such an environment and on the contrary, by its own inaction, has created a situation where people will take it for granted that political corruption will never be exposed in this country. There cannot be a better encouragement than this for politicians who want to make money by wrongful means to proceed.

Northern issue

On the most important issue of resolving the long standing issue of the Tamils of the north there was much expectation at the time the joint government of the UNP and the SLFP was set up. That is because it’s well-known that throughout the history, whenever a government was genuinely interested in finding a constitutional solution to this issue the main opposition party has never co-operated.

Whenever the UNP wanted to resolve the issue, the SLFP opposed and scuttled it and similarly, whenever an SLFP government took steps to resolve it, the UNP scuttled it. This was the fate of Bandaranaike- Chevanayakam Pact as well as Dudley- Chelvanayakam Pact, two genuine efforts to resolve the issue in the past.

That is the background which gave rise to the thinking that only a national government consisting of both these parties that could one day resolve this problem. Thus, when the national government was formed there was much expectation in this regard among the minorities that supported it.

Despite appointment of a parliamentary steering committee and holding of a series of public discussions and preparation of several reports based on the views of a fair cross section of the public and the professionals, much progress is yet to be achieved. The main reason is lack of consensus between the two parties on the nature of the constitution they want to evolve and rather unfortunately the abolition of the executive presidency, a main promise on their electoral platform, has been one such area of contention.

The resolution of the age-old northern issue by itself is a difficult task because of the historical fears of the Sinhala community about separatism and some of the unreasonable demands made by the extremists in the north. Apart from their traditional opposition to devolution of power the bitter memories of the LTTE’s terrorism also makes it more difficult for the government to get the approval of the Sinhala majority for a constitutional solution to the northern issue.

While these traditional difficulties are quite understandable, the strangest development is the inability of the two parties to agree on the constitutional package. So, it is fundamentally important for the two main partners of the government to have some internal consensus between them on these proposals in order to place them before the people.

If the executive presidency is the issue they should leave it aside and at least agree on the possible devolution package under a presidential system. Presidency should not stand in the way of a solution to the northern issue because the Tamils have never asked for the abolition of the executive presidency. It is sensible to complete what is doable during the tenure of the unity government rather than wasting time arguing on the impossible.

Electoral priorities

Meantime there are some developments within the government, particularly within the UNP that will have a direct bearing on these issues. The current wave of political action mostly spearheaded by the young backbenchers of the UNP who have been disgusted over things like lack of direction, slowness in corruption investigations seem to be bearing fruit.

Some of the effects of this have been resignation of Foreign Minister Ravi Karunanayake and the moves being taken against Justice Minister Wijedasa Rajapaksa in the UNP working committee.

On some of these critical issues this group has been having a simultaneous dialogue with both Prime Minister Ranil Wickremesinghe and President Maithripala Sirisena and they seem to have the capacity and the will to change the future course of the government.

Even at the party level democracy seems to be prevailing and these are healthy developments that can put the government on the correct track. At the same time, with the strong possibility of holding either provincial or local government election early next year the government seems to be getting ready to face people.

The strongest signal in this direction came from the duty reduction on motor cycles and single cabs and use of mobile telephone data. As such the possibility is for election priorities to take centre stage of politics in the next few months. It will also provide the opportunity for the unity government to realign itself and test their popularity among people.  

Despite much friction and occasional disagreements, it is unlikely that the two parties in the government will fall apart and they should remember that their historic responsibility as a national government is to renew their MOU and finish the primary task of the national government before the expiry of their term. Among them stands the resolution of the national issue, a responsibility from which the only national government ever to be formed in the country cannot and should not shirk.

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Hurdles on new Constitution: Referendum the best way out

 

The idea of having a referendum on a new Constitution has been much favoured by almost all the stakeholders. At the initial stages some argued that a mere two thirds majority in the parliament was sufficient for the promulgation of a new Constitution while others insisted that a referendum was a must

By Gamini Abeywardane

Adoption of a new Constitution acceptable to all communities which will also resolve the northern issue, one of the main electoral promises of the Yahapalana government has now come across a new stumbling block. The chief monks of the three Nikayas have unanimously decided that there is no need for a new Constitution.

The need for a new Constitution arose primarily because there is general consensus among the political parties that the current executive presidential system has failed to resolve major issues in the country. The need for furtherance of democracy became obvious after changing a much entrenched and almost authoritarian regime in 2015 while justice to the minority communities and resolution of the ethnic conflict are also expected through a new Constitution.

Anti-democratic and authoritarian trends that were visible during J R Jayewardene and R Premadasa regimes created much dislike for the system among the people preparing the ground for Chandrika Kumaratunga to make an electoral promise in 1994 to abolish the executive presidency. However, the promise was never kept during her presidency due to various reasons.

Thereafter, Mahinda Rajapaksa too made a similar electoral promise in 2005, but instead of abolishing the executive presidency he replaced the 17^th amendment with the 18^th amendment which gave him almost authoritarian powers. These developments led to a stronger call for abolition of the executive presidency and it became one of the main electoral promises of the United National Front (UNF) in 2015.

Soon after the new government came into power the nineteenth amendment was prepared and passed in a hurry mainly with the idea of facilitating the functioning of the unity government consisting of the two main political parties. Drafting of an entirely a new Constitution resolving the ethnic issue and changing the electoral system was postponed with the idea of coming up with a proper document after necessary consultations with political parties, professionals, intellectuals and a broader section of the population.

Meantime, developing a new Constitution was expected to happen along with the national reconciliation programme launched by the new government as the Constitution also has a major role in bringing about reconciliation among communities. The process to make a new Constitution was launched in this background and six reports were compiled covering different aspects of the Constitution at the end of public consultations which took several months.

Those proposals are now before the Steering Committee of the parliament responsible for drafting a new Constitution. Based on these documents a final draft has to be prepared for parliament to debate and discuss. Even such a document will be only a base document for making of a new Constitution and thus there is a long way for the process to go.

During this process various ideas have come up for discussion and the proposal for having a secular Constitution like in India is one of them. Some may hate the idea, but in a liberal discussion there cannot be taboo topics. These are ideas which have to be tolerated in a democratic society and there is a vast difference between discussing something and implementing it.

It’s only a proposal and both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe have made it clear that the foremost place given to Buddhism under the present constitution would not be changed and therefore there is no reason to panic over it. Similarly, it has been made abundantly clear that the unitary nature of the Constitution would not be changed despite substantial devolution of power to the provinces.

Thus, it is both premature and irrelevant for anyone to oppose the idea of a new Constitution because it will affect the status of Buddhism or the unitary nature of the state. Thus, the position taken by the prelates of the three Nikayas, it appears, is based on inadequate information and it is not correct to pass a final judgment on a future Constitution without knowing what it is going to be.

Whenever the subject of devolution was taken up for discussion it has been natural for some sections of the society to oppose it. However, the electoral promises given by the current unity government should be viewed differently as they were supported by all the political parties including the JVP and the civil society groups that came together to defeat the Mahinda Rajapaksa government.

Referendum

While the political spectrum is full of disagreements over the provisions and the nature of a future Constitution, now the very idea of drafting a new Constitution itself has been opposed by the Buddhist monks of the three nikayas making it even more difficult for the constitutional process to go forward. The best solution to this problem would be to get the approval of the people at a referendum before promulgating a new Constitution.

The idea of having a referendum on a new Constitution has been much favoured by almost all the stakeholders. At the initial stages some argued that a mere two thirds majority in the parliament was sufficient for the promulgation of a new Constitution while others insisted that a referendum was a must.

Initially it was none other than the Leader of the Opposition and TNA leader R Samapanthan who strongly backed the idea of an islandwide 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 endorsed this 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.

However, some sections of the SLFP who are part of the government have opposed the idea on the ground it is risky to go for a referendum at this stage and it is sensible to think of only the amendments that would not require the approval of people at a referendum. Some have expressed doubts as to whether it is a genuine position or a lame excuse to continue with the current form of executive presidency.

The provision for referenda which was introduced for the first time in our country by the 1978 Constitution is believed to be an enhancement on the degree of democracy that existed up to that time. In a representative democracy elected members legislate on behalf of the people. However when it comes to a matter of utmost national importance a referendum enables the people to get involved directly and approve or disapprove it.

Following the statement made by the prelates of the three nikayas the Tamil National Alliance (TNA) has once again urged the Government to go for a referendum and place the issue of the new Constitution before the people. TNA MP M. A. Sumanthiran, who came up with this suggestion in Parliament, said the Government should go for a referendum and place before the people, its proposals for the new Constitution so that they could voice their opinion.

Both Sampanthan and Sumanthiran are 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 fourth 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 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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Will the sticky issue of executive presidency block the new constitution?

 

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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The most difficult cabinet reshuffle

  

By Gamini Abeywardane

Amidst international day of wesak, visit of Indian Prime Minister Narendra Modi and other priorities, the much awaited cabinet reshuffle seems to have got further postponed. The reshuffle idea has been in the air as an imminent possibility now for several months. Each time speculation has been that it would happen before the New Year or before wesak or after some important foreign visit by the President or the Prime Minister, but the reshuffle is yet to happen.

Cabinet reshuffles are a common feature in democracies, they happen in the mid-term of most governments when there is a need arising out of a new situation. But the question is why it has become so difficult in our country this time. The main reason appears to be the very nature of the government in power – the dual control of the government formed under the nineteenth amendment to the constitution.

Until the introduction of the nineteenth amendment, the 1978 constitution conferred all powers with regard to allocation of ministries and appointment and removal of ministers on the executive president. Whenever the political party to which the President belonged had the majority in parliament president enjoyed full powers with regard to appointment, dismissal or reshuffle of the cabinet. Even in the absence of the control of the parliament the president had substantial powers including the power to take over ministries.

The situation after the introduction of the nineteenth amendment is quite different as the president’s powers have been curtailed to some extent giving more weight to the parliament. The amendment also makes special provision enabling the two political parties that emerge as the first and second parties in terms of the number of seats they win at a parliamentary election, to join together to form a government of national unity as found presently.

Accordingly, the SLFP faction led by President Maithripala Sirisena contested elections with the UNP on a common agenda and upon winning elections they had to agree on the sharing of cabinet portfolios and the number of ministries etc. in order to form the government. Naturally when two political parties with different ideologies try to form a government there will be disagreements and differences. This was obvious when two parties formed the current government and as a result there were delays in even swearing in of the new cabinet.

However, as the parties had agreed on a common agenda and won the elections, despite ideological differences, initially there was less friction between them.  Also, they had to somehow agree on the power sharing arrangement in the cabinet as there was an urgency to form the government and take over the reins of power.

However, upon formation of the joint government when the two parties had to work together there has been obvious friction and that is probably the main reason behind the difficulty in agreeing on a cabinet reshuffle. The current delay in effecting the much talked about reshuffle has to be understood in this context – It’s as difficult as renegotiating a contract half way through a project.

However, as time goes on any government whether it is a single party government or a multi-party one, realignment of forces can become necessary. Naturally some of the cabinet ministers who have been comfortable with their areas of power will want to hold on to their portfolios and a reshuffle will be difficult or nearly impossible if it is to be done with consensus. 

On the other hand, if there is difficulty in continuing with the government without such realignment of ministerial functions, it is mandatory upon the two leaders President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe to rise above these differences and come to some compromise in order to carry on with the promised national agenda under the government of good governance.

Then there is the issue about change of subjects assigned to each party. A major reshuffle will also involve change of subjects and there will be major disagreements when it comes to changing the subject areas given to each party. If one looks at the way these subjects were shared at the formation of the joint government, it is clear that subjects that are necessary to reform the economy have been assigned to the UNP thus giving more leeway for Prime Minister Wickremesinghe to personally get involved in economic development and planning.

President Sirisena, at least at that point, seems to have preferred to play more of a regulatory and monitoring role as the head of the cabinet while keeping for himself some of the pet subjects like environment and Mahaweli Development, in addition to the subject of national defence which constitutionally came under his own purview.   

Towards the second and third years, tension has developed between ministers of the UNP and the SLFP while allegations of corruption have been made against some of the key ministers from both sides necessitating some changes in the cabinet and this is the basis upon which a call for a major reshuffle has been made. President himself on several occasions has hinted that there would be some major changes in key positions.

Meanwhile, some of the key ministers whose portfolios were at stake have done everything within their power to avert any major reshuffle. Another story that has been in the political currency during the last few weeks is that there will be some board level changes in about fifteen key state institutions. Question remains whether such changes could be effected without changing the ministers because technically it is the respective ministers who have the authority to appoint or remove the directorates of the institutions coming under their ministries.

There were also reports that the UNP has made it clear to the President that they do not want any changes in the ministries which are currently under them. If that position is upheld changes, if any, will have to be made only in the portfolios held by the SLFP and such a limited change will be far below the kind of reshuffle that has been anticipated while it will also not satisfy the demands of those who have been clamouring for such a reshuffle.

All in all, indications are that sooner or later there will be some changes, but the nature and the extent of such a reshuffle is something that is difficult to predict right now. The other question is whether the current political landscape with a clear division within the SLFP is conducive for such a major shakeup in the government. This is more so because of the almost inevitable provincial council elections – elections in North Central, Eastern and Sabaragamuwa provinces that are much likely to take place after September this year.

        

 

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A country of lost opportunities

 

By Gamini Abeywardane

Sixty nine years have lapsed since our country got its independence from Britain. Every year we have been celebrating it. Each time as the day approaches many questions come into our minds. One of the legitimate questions is whether independence has served its intended purpose. From the people’s point of view how much of their expectations have been met. In many areas there seem to be gaps.

The British colonialists managed to meet the expectations of the people at the time. The feudal system which was there when they took over the country had transformed into a freer society but with some semi feudal features remaining, by the time we gained independence. Therefore people had less expectation and the majority was happy and content as the country was efficiently run without wastage and corruption.

The freedom struggle was carried out by the educated upper class and the way they marketed the idea of freedom increased people’s hopes. They got new hopes and thought that local masters would give them a society which will be only second to heaven. A few years down the line populism and racism started plaguing the political spectrum with less priority for efficient management and economic development. And with that the rot started and today we are in a dismal status with regard to many important areas, let it be education, health, transport, general administration, law and order or justice system.

When we look back it is mostly a case of lost opportunities. It is no secret that at the time of independence, then Ceylon was relatively a prosperous country well managed and with a lot of prospects. In Asia we were ahead of many other countries including Japan and Singapore. We had one of the best education systems in the region and a well-managed railway transport network with steam engine being introduced here as far back as 1864. With a well-trained Civil Service government machinery was run efficiently.

With a wide array of state, missionary and private schools general English education was at a very high level with standards which no other country in the region could boast of. Ceylon University College, Colombo, the country’s first attempt at university education was set up in 1921 as an affiliate of the University of London. Soon after independence University of Ceylon, Peradeniya was set up under the guidance of Sir Ivor Jennings, a well-known British constitutional law expert who became its first Vice Chancellor. With all these early achievements the country had the potential of becoming an international hub for education earning huge revenue for the country, but instead we have moved in the opposite direction.

Take the simple example of road transport. We inherited a good bus transport system with several bus companies running the public transport system with each company being allocated a separate region. These companies were taken over by the government mostly for political reasons forming a government owned transport board which ended up as a failure.

The government which came into power in 1977 had no option other than allowing individual bus operators on the road which has become an acute problem today. Had we being sensible enough to continue with the bus companies we had and regulated them properly instead of nationalizing, by now we would have had one of the best bus transport systems in the world.

 At the time of independence we had a budgetary surplus and so much so the government of Prime Minister D S Senanayake could complete the massive Gal Oya development project with our own savings without having to raise loans. On the contrary today we are a heavily indebted country.

No doubt we have made advancements in some areas, however they are hardly adequate compared to the amount of progress we could have achieved if our leaders had acted prudently without pandering to populism. When we look at our post-independence period it is a case of lost opportunities than achievements.

That is all we see in hind sight but as a nation we cannot afford to waste time regretting over past mistakes. Probably realizing all this the two main political parties have come together to address some of the key issues facing the country. Despite lost opportunities a new opportunity has arisen to make up for the loss and develop the country and now it is our duty to use it in the most sensible manner.

 

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Constitution and death threats

By Gamini Abeywardane

The need for a new constitution has already been accepted by almost all political parties in the country. Following the end of thirty years long bitter war the general expectation among the people has been to set aside the old differences and concentrate on developing the country. In this background a new government was voted into power with the idea of changing the political culture of the country. Adopting a new constitution is an important step in these developments.

While some progress has been made in developing a constitution, so far no final decision has been made and what is before the parliament is only a set of proposals. It is up to the parliament to debate and decide what is best for the country. While this remains the actual situation, there seem to be organized efforts to scuttle the progression of a new constitution and the climax of these attempts is the death threat on Member of Parliament Dr Jayampathy Wickramaratne who has been in the forefront of the campaign for a new constitution.
Here the main grouse of the people who are trying to undermine all efforts to draft a new constitution seems to be their opposition to devolve power to the periphery mainly to the northern and eastern provinces. Any further devolution, in their eyes, seems to be equivalent to dividing the country. These elements seem to have failed to understand that it is our reluctance to power sharing which resulted in the bitter war that cost us dearly in terms of loss of human life, destruction of property and loss of economic opportunity pushing the country backwards almost by half a century.   

Several efforts to settle this issue were scuttled by extremist groups in the past. Unfortunately in our country history seems to be repeating itself. The first effort to solve this problem, Bandaranaike-Chelvanayakam Pact of 1957 was defeated by extremists both in the south and the north. The same fate befell two other efforts, namely Dudley-Chelvanayakam Pact of 1965 and another attempt during the presidency of Chandrika Kumaratunga to pass a new constitution. The ongoing constitutional process is the fourth such genuine attempt at resolving the ethnic issue once and for all.

Though the government of President Mahinda Rajapaksa succeeded in crushing the LTTE which was in control of the north of the country the conclusion of the war has entangled the country in a human rights issue with the United Nations and the UNHRC wherein the country’s military has become answerable for some grave human rights violations.

Any further delay or failure to find a constitutional solution to the national issue will only worsen our position with regard to the UN inquiry into these alleged HR violations. Such a failure could not only lead to another bitter war but will also place us in an unfavourable situation internationally with a massive amount of sympathy for the cause of the Tamil community which could result in direct foreign involvement.

One must also not forget that it was President Mahinda Rajapaksa who following his military victory over the LTTE promised a ‘thirteen plus’ solution to the government of India. That necessarily meant full implementation of the current thirteenth amendment to the constitution which includes limited police and land powers to the provinces plus something more. Therefore all opposition parties which recognize his leadership also should technically support a new constitution. Any provision untoward or which has divisive tendencies can be debated and amended or even defeated in a future referendum. But one should not throw the baby with the bath water. If at all, a new constitution is passed it will be by the parliament and by the people through a referendum and not by Jayampathy Wickramaratne who is only one individual MP.

Making political capital out of this issue will only make things worse for the future of the country. It goes without saying that future success of the country particularly its economic development is closely linked to national reconciliation. Therefore, duty of all Sri Lankans at this moment is to support the evolution of a proper constitution for the country and not to scuttle it by going to the desperate level of issuing death threats which in ultimate sense are a threat to the future progress of the country.

 

 

 

 

 

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Hardly used referendum comes to the fore

 

 

By Gamini Abeywardane

 

As the debate over a new constitution for the country progresses through the Constitutional Council and its Steering Committee the idea of having a referendum on a new Constitution has been much favoured by the stakeholders. At the initial stages some argued that a mere two thirds majority in the parliament was sufficient for the promulgation of a new constitution while others insisted that a referendum was a must.

Strange enough this time over it’s none other than the Leader of the Opposition and TNA leader R Samapanthan who has strongly backed the idea of an islandwide 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 endorsed this 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 is 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. However 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 four years later it has surfaced again and the difference this time is that for the first time it is going to be used for its original intended purpose – to decide a matter of great importance to the country because there cannot be anything more important than a Constitution, more so when it is intended to resolve some vital 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.

Already a committee appointed by the parliament has prepared a report based on views of the public after having a series of public representations in various parts of the country. In addition six parliamentary committees appointed to look into various aspects of a future constitution also have submitted their reports and all this have already taken a considerable length of time.

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 solidify some sense of permanency for such a document in the minds of the people.

 

 

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Federalist call and new constitution

By Gamini Abeywardane

The word ‘federalism’ has re-emerged in the political spectrum with the TNA and the Northern Provincial Council openly calling for a federal solution to the ethnic issue. This has already triggered bitter opposition from some nationalists in the south.

The call for federalism is not new and it has been in our political currency for over half a century. Having originated from politics of G G Ponnambalam and S J V Chelvanayakam, federalist demand has dominated the northern electorate as an effective means of winning the popular vote.

Both opposition leader R Sampanthan as well as Northern Province Chief Minister C V Vigneswaran, no doubt, are aware that post war ground situation in the rest of the country is not conducive for such a call to materialize. However, the stark reality in politics as in general life, is that one has to ask for the moon to get the stars. To that extent, there is no reason for the rest of the country to get agitated over this demand.

At the centre of all this is the proposal for a new constitution which the parliament has formally accepted and a steering committee is already working on. Perhaps, this may be an opportunity for all communities to agree on a long-lasting constitution for the country. Minority participation in drafting such a constitution is vital this time as it was woefully lacking in the making of constitutions of both 1972 and 1978.

The degree of such devolution of power will ultimately have to be decided by the parliament and by people at a referendum. Any demand for devolution outside this mechanism at this juncture, however politically attractive it may be, will only upset the mindset of those in the south who are now willing to look at the issue more sympathetically. 

Excessive demands by northern politicians made in public will only give much needed lifeblood to chauvinists in the south who are against any form of devolution to the north. Vigneswaran and rest of the northern politicians should remember that to the extent such demands are attractive political slogans in the north, they also will provide political space to anti-devolution campaigners in the south. 

 

 

 

 

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RTI bill : A vital step forward in democratic journey

By Gamini Abeywardane

Right to information Act is at last going to be a reality. The bill has already been presented in parliament and with whatever amendments it is likely to be passed soon. This is an important milestone in the democratic journey of our country.

We are one of the last countries in the south Asian region to introduce legislation recognizing right to information. These rights have been enjoying legal recognition in the western countries for quite some time. For us it is a case of being better late than never, and finally this government has come forward to fulfill one of its electoral promises.

Though it is often the journalistic fraternity who have been clamouring for right to information, it is something that is fundamental to all people in a democracy. They have a right to know how they are governed and availability of information is vital in this regard.

Freedom of information legislation reflects the fundamental premise that all information held by governments and governmental institutions is in principle public and may only be withheld if there are legitimate reasons, such as privacy and security.

It is an integral part of the fundamental right of freedom of expression, as recognized by the United Nations as well as by Article 19 of the Universal Declaration of Human Rights, which states that the fundamental right of freedom of expression encompasses the freedom ‘to seek, receive and impart information and ideas through any media and regardless of frontiers’.

Governments over the years have taken cover under secrecy laws citing confidentiality etc, to prevent people getting to know details of various official activities affecting them. Where possible news media have been accessing such information through official and unofficial ways, but without the backing of any constitutional or legal right to seek such information.

Free flow of information will help enhance democracy by bringing to public arena vital details about all official acts well in time, thus eliminating or reducing opportunities for corruption. There have been enough allegations of corruption against politicians and officials in all governments present and past and one solution to the issue is to have more democracy and to empower people and free availability of official information is a vital aspect in this regard.

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Why fret over national anthem

 

It is ironic that sixty seven years after independence we have still not been able to get our fundamentals right. Classic example is the controversy over singing the national anthem in Tamil. We are unnecessarily preoccupied with emotive issues of language and religion and too little time is devoted to the vital matter of achieving economic and social wellbeing of the people.
Chauvinistic elements backed by some politicians seem to think that singing the national anthem in Tamil is the greatest crime ever to be committed on the Sri Lankan soil. It is strange that they are silent about fast spreading evils such as use of drugs, alcoholism, bribery and corruption which are detrimental to the progress of the entire nation.

National anthems are usually written in the most common language of the state. However states with multiple national languages may offer several versions of their anthem. For instance, Switzerland's national anthem has different lyrics for each of the country's four official languages: French, German, Italian, and Romansh.   

The New Zealand national anthem is traditionally sung with the first verse in Māori ("Aotearoa") and the second in English ("God Defend New Zealand"). The tune is the same but the lyrics have different meanings.
South Africa's national anthem is unique in that five of the eleven official languages are used in the same anthem, in which each language comprises a stanza. The lyrics employ the five most widely spoken of South Africa's eleven official languages – Xhosa (first stanza, first two lines), Zulu (first stanza, last two lines), Sesotho (second stanza), Afrikaans (third stanza), and English (final stanza).

The United Kingdom's national anthem is God Save the Queen but its constituent countries also have their own anthems which have varying degrees of official recognition. England, Scotland, Wales and Northern Ireland each have a number of anthems which are played at occasions such as sports matches and official events.

That is how some of the multi ethnic countries have resolved their issues and there is hardly any language issue in these countries.  The fear of ‘each other’s language’ is a stumbling block in our march towards prosperity as one nation.

The solution is to learn how to respect each other’s language and in that sense the bold decision of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe to close the sixty eighth Independence Day celebrations with the national anthem being sung in Tamil is indeed a giant step towards national reconciliation.

 

 

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Constitution in a hurry

Debate on constitution is in public domain again. Prime Minister Ranil Wickremesinghe has presented a resolution in parliament to set up a Constitutional Assembly of all members for enacting a new constitution for Sri Lanka.

Constitution is the supreme law of a country from which all other laws derive their authority. Therefore drafting of such a document has to be done with utmost care and patience as it needs the tacit approval of all the people.

As the foundation of all laws and the state itself, it needs to be a document that reflects some general consensus among the people of a country. In other words, it has to be a consensus document on how the country is to be governed.

Reaching consensus in a country is a difficult task and it becomes more difficult when it has to be done in a multi-racial, multi-linguistic and multi-religious environment.

The other point that needs to be remembered is that constitutions are made for a long period. The national and international experience is that when such documents are drafted and enacted with the approbation of the people they tend to last long.

However, no constitution is permanent. A country has to undergo changes from time to time and reflecting such changes its constitution also has to undergo changes. Nevertheless, a long lasting constitution is necessary for the stability and unity of a country.

If we look at our own history, it is clear that none of our constitutions have been in operation for long. Independent Ceylon’s first constitution popularly known as the Soulbury Constitution which came into operation in 1948 was more or less a consensus document. It was drafted following consultations with people of all walks of life for several years.

After 25 years of its existence, in 1972 we replaced it with our first republican constitution following the desire of our people to become a fully independent and sovereign republic moving away from the Dominion status granted by the British. For whatever reasons, it was passed by the Constituent Assembly without the participation of the Tamil community.

The first republican constitution lasted only for six years and the second republican constitution which was introduced by the J R Jayawardene government in 1978 has been in operation for thirty seven years. Now, there is general consensus among all political parties that there is a need for a new constitution. Thus, Sri Lanka is going to have its fourth constitution in relatively a short period of sixty six years. 

On the contrary, the constitution of the United States has survived for the last two hundred and twenty five years while our neighbouring India’s first republican constitution promulgated in 1950 has lasted to date. These constitutions have received approbation of the people and nobody talks about introducing new constitutions in these countries.

All this makes one thing clear, that is that a constitution need not be promulgated in a hurry. If a new constitution is to receive the approbation of people, its provisions should be drafted after extensive debate and discussion in the country. A rigid time frame of six months or one year should not be a barrier to come up with the proper document. Drafting and adopting the right constitution is vital even if it is going to take a longer period.

 

 

 

 

 

 

 

 

 

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Should we leave room for authoritarianism in our country again?

Constitutional and legal mechanisms should be in place to prevent micro managing the country’s affairs by any future leaders. Joint efforts by all political parties, at least the major ones and sufficient public debate are necessary to find permanent macro level solutions to our problems. It is time to realize once and for all that only through a well-managed democratic system and not through a dictatorship that we can achieve long term prosperity in a multi-racial and multi religious society like Sri Lanka.

By Gamini Abeywardane

Decades ago I remember, when we had a pure Westminster system of government, whenever people witnessed disorderliness in things they used to say ‘enough of democracy, we need a dictator to correct our people’.  With that kind of thinking much in fashion at the time, J R Jayewardene introduced the executive presidential system of government with authoritarian features in it. And we all have been experiencing bits and pieces of dictatorship ever since.  Perhaps that is why we hardly hear anyone proposing a dictatorship now, to resolve the country’s problems.

With provision for regular elections and proportional representation, theoretically JRJ’s executive presidency was a democratic one.  The difference, however, was unlike in a parliamentary democracy there was too much concentration of power in one person without much accountability. Also, there were no strong independent institutions to provide checks and balances that are necessary to go with a strong presidency.

The dictatorial nature of the constitution was best illustrated by its architect JRJ himself when he said that he could do everything other than making a man a woman and woman a man. Unfortunately, some of the subsequent amendments were to make things worse by making the constitution more authoritarian. Both executive and judicial arms of government were brought effectively under the president through his power to appoint key officials of the state and the judges of the superior courts.

The years that followed till 2001 witnessed the negative aspects of authoritarian trends in the form of protecting the wrong doers, culture of impunity, blatant misuse of executive power and so on with scant regard for democratic traditions that people were used to. Despite these authoritarian trends what prevented the system from developing into a fully authoritarian system was the two term limit for an individual to hold the presidency. 

After experiencing these negative trends that could harm democracy, the first attempt to control the executive presidency and to democratize the system was made in 2001 in the form of the seventeenth amendment to the constitution. The amendment envisaged the appointment of seven independent commissions aimed at depoliticizing the functioning of some vital areas of governance such as judiciary, public service, police, elections, state auditing and control of bribery and corruption. 

These attempts were stifled by two Presidents – Chandrika Kumaratunga and Mahinda Rajapaksa who took advantage of omissions and lacunae in the constitution itself to indefinitely postpone the appointment of some of these commissions making the whole amendment ineffective. This amply displayed the natural desire of leaders in power to cling to those powers or to increase them.

The situation became worse with the introduction of the eighteenth amendment during Mahinda Rajapaksa presidency. What made it easier was the judgment of the Supreme Court headed by Sarath Silva which allowed crossovers in parliament which were originally prohibited under the 1978 constitution. The president in power could thus easily muster the two third majority by getting opposition members in parliament to crossover to the government. The amendment gave the president almost dictatorial powers because he could appoint members to all supposedly independent commissions. The worst was the removal of the two term limit for an individual to hold the presidency.

The two term limit is found in all democratic countries where executive presidential system is in operation. Such limitation is not found in most of the ‘banana republics’ in Latin America and in some African countries which call themselves democracies purely on the basis they hold periodic elections which are often won by the incumbent presidents. The fact is that most of them are not proper democracies in a western sense because the basic freedoms, independent judiciary, free elections and rule of law that are vital in a democracy are not found in those countries.

As people of a mature democracy, Sri Lankans have been used to electing their representatives to the legislature from 1931 and ever since independence they have been electing members to represent them in parliament and changing governments at regular intervals. Thus, people of all walks of life have been proud of their vote as a powerful tool with ultimate power to decide who their leaders are.

In this background it is highly unlikely that majority of Sri Lankans will ever agree to sacrifice their democratic rights in favour of a dictatorship for whatever reason. And this fact was made clear in no uncertain terms when they defeated the presidential bid of Mahinda Rajapaksa to get elected for a third term, bringing into power a new government with promises for re-establishing democracy and good governance.

As an important first step in that direction the nineteenth amendment to the constitution was passed by the parliament reintroducing the two term limit for the presidency and an independent constitutional council which will in turn appoint other independent commissions, improving on what was originally proposed by the failed seventeenth amendment. Thus, the basic foundation has been laid to re-establish a proper democracy in the country. The executive presidency has been made accountable to the parliament, thus removing most of the dictatorial powers it enjoyed earlier.

Now, the task for the present and future governments will be to take the democracy forward with further constitutional and legislative amendments or to introduce an entirely new constitution incorporating a political solution to the north east issue as well. With introduction of better systems of governance, the country should become a modern democracy with no possibility for reversal of this journey by any future leaders or regimes.  

More democracy and systematic empowerment of the people at all levels with suitable mechanism for stability are necessary to resolve problems, be it in the north or the south. In that effort, it has to be made clear that wider discussions are better than single handed decisions in all vital matters connected to the development of the country. The recent history is full of examples of such irresponsible decisions and it is sad to see how even the educated and the knowledgeable have fallen in line for petty personal advantage or due to fear of repercussions.

Constitutional and legal mechanisms should be in place to prevent micro managing the country’s affairs by any future leaders. Joint efforts by all political parties, at least the major ones and sufficient public debate are necessary to find permanent macro level solutions to our problems. It is time to realize once and for all that only through a well-managed democratic system and not through a dictatorship that we can achieve long term prosperity in a multi-racial and multi religious society like Sri Lanka.

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