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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Why aren’t good people in the Parliament?

Can educational qualifications be prescribed for parliamentarians?

Every nation is supposed to have the government it deserves. Does it mean the type of Parliament we currently have is what we Sri Lankans deserve? Technically it cannot be so with a highly literate population and a history of a high level of education even from the colonial times.  Then what went wrong?

By Gamini Abeywardane

The diminishing standards of our parliamentarians have been a matter of grave concern to many in the recent times. The apathy of many MPs towards vital economic and national issues, the poor contribution they make through their parliamentary speeches and worst of all rowdy and unruly behaviour of some of them have triggered the question whether it is possible to lay down some minimum educational qualifications for parliamentarians.

Many ask, if you need a paper qualification even for the lowest rank job in the public sector how can one become a member of the highest law making body without any such qualification. Their question sounds logical and reasonable.

However the issue is, in a democracy where universal franchise and equality are highly regarded it is not possible to deprive any person of the opportunity to become a representative of his or her people purely on the ground of educational qualifications. Probably that is why most democracies in the world do not have such limitations.

This position has been recognized by Section 90 of our Constitution which states that every person who is qualified to be an elector shall be qualified to be elected as a Member of Parliament unless he is disqualified under the provisions of Article 91. That literally means if you have the right to vote you also have the right to stand for election as a Member of the Parliament.

Therefore under our law it is not possible to stipulate educational qualifications for parliamentarians. In our neighbouring India the situation is quite different although they do not legally stipulate such qualifications. About 75 per cent of MPs in the current Lok Sabha have at least a graduate degree, while 10 per cent are only matriculates, according to a report by PRS Legislative Research (https://economictimes.indiatimes.com/topic/PRS)

The Union Cabinet always consists of highly educated academics and professionals mostly with multiple qualifications. The current Cabinet of Narendra Modi who himself holds a Master’s Degree has 25 members out of which two have doctorates, six have postgraduate qualifications,  12 are graduates while only five have not received university level education.

Every nation is supposed to have the government it deserves. Does it mean the type of Parliament we currently have is what we Sri Lankans deserve? Technically it cannot be so with a highly literate population and a history of a high level of education even from the colonial times.  Then what went wrong?

Terrorism factor

There are several possible reasons and prime among them is the terrorism factor, specifically that of the LTTE which posed a threat to the ruling class. In short they eliminated the best of our potential leaders --  men like Lalith Athulathmudali, Gamini Dissanayake, C V Gooneratne, Denzil Kobbekaduwa, Janaka Perera, Lukshman Kadirgamar who could have changed the destinies of our country.

When a country has educated leaders at the top level they in turn tend to attract like-minded people for the important positions and the chain reaction goes on encouraging more and more educated and decent professionals into the system. The best way to weaken a country or its government is to destroy its best leaders both the current and the potential.

The LTTE tried to achieve it by eliminating the clever, educated and pragmatic potential leaders from the south and with that threat no good men entered politics for several decades. So the vacuum was filled with those closely connected to existing politicians and their cohorts often promoted from the local and provincial government levels.

On the other hand the LTTE was very careful about whom they wanted to eliminate. They targeted the broadminded and liberal politicians with a vision for sorting out the main issues confronting the country while leaving out the mediocre ones. They never touched the peripheral, communal and chauvinistic ones whom they thought would ultimately help their plans in the north.

PR system of voting

The much maligned Proportional Representation system of voting is another major reason which has discouraged good and educated men from entering politics both at national and local level. In the earlier first- past-the-post system, a good man with some reputation could always aspire to enter the Parliament with a reasonable amount of campaigning within his electorate which is geographically not a vast area.

The campaigning or canvassing in such an area could be done without much cost and moreover if the candidate is from the same electorate it became quite easy because the person is already known in the area. With the introduction of the PR system the electorate has become larger and now it’s one whole administrative district.

Campaigning in such an area is not possible without a colossal amount of money and unlike in the early days soon after independence, now it’s the corrupt that have more money and inevitably the good and the educated are not able to compete with such people and win an election.

Then there is the National List which is expected to be a platform to accommodate some educated members who are able to make useful contribution to national life although the Constitution does not lay down any specific criterion for these appointments. Unfortunately this list is also is being misused as a means of appointing candidates rejected by the people at national elections as Members of Parliament.

In such a situation it is not fair to blame the people for electing wrong members to Parliament. The kind of Parliament we have now is not what the people deserve, it is an electoral outcome distorted by the LTTE’s terrorism through its systematic elimination and made worse by the PR system of voting. Now the LTTE menace is over and we should at least modify the existing PR system if we want to have a set of better parliamentarians and consequently a better government.

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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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PR system and executive presidency

The bane of Sri Lankan politics

By Gamini Abeywardane

When JR Jayewardene introduced the executive presidency his main declared reason for it was the much needed stability for the country. His argument was that under the Westminster system the country had had too many elections and since independence no government ran for its full term until 1970. He believed that it was a great obstacle for country’s economic progress.

However,what was not stated in public was the fact that the UNP had the island wide total majority of votes in most elections including when the party was badly defeated. What it meant in other words was, if the country had an executive president elected by the people the UNP could perpetuate its rule

Let’s look at the past and see whether these declared and undeclared objectives were achieved as anticipated. Whether the first expectation --the stability for the country was achieved or not is abundantly clear when one looks at the messy status of the current government we have in power.  

The most stable period under the executive presidency was the eleven year period of J R Jayewardene. However, that stability did not come from the presidency itself, but mostly from the five-sixth majority in Parliament which JRJ obtained under the Westminster system in 1977. He kept the same majority for his second term as well, by extending the life of the Parliament through a referendum.

Then Chandrika Kumaratunga’s presidency was marked with confusion and uncertainty with a thin parliamentary majority obtained through the support of the Sri Lanka Muslim Congress and later the UNP getting the majority through crossovers and so on. It was no better than the so called unstable periods under the previous Westminster system.

Dream of perpetual UNP power

The same way the second and undeclared objective of JRJ, that is to perpetuate the UNP in power did not happen. If you look at the period up to 2015 since introduction of presidential system, out of the 37 years the UNP ruled only for 17 years which means that JRJ erred in his assumption. However, from the country’s point of view which party was in power was immaterial as long as it was the decision of the people. The most important point is that the system never gave the country the kind of stability it was intended to give.

Some seem to believe that it was because of the might of the executive presidency that Sri Lanka managed to end the scourge of LTTE terrorism. However it is also relevant to note that the country successfully faced the 1962 coup attempt as well as the JVP insurrection of 1971 under the Westminster system of government.

There are so many examples in the democratic world where parliamentary system of government has provided sufficient stability and strength for the countries to face any type of grave situation. Neighbouring India is perhaps the most shining example in this regard.

In a parliamentary system it is difficult for an unpopular leader or government to remain in power unlike in a presidential system. Any difficult situation can be overcome through the Parliament itself by changing the old order and putting a new leadership in power without much hassle.

Quite the opposite is happening in our country under the executive presidential system. Instead of the expected stability for the country every person who gets into the hot seat becomes greedy and tries every trick in the book to stay in power and looks at the possibility of extending the tenure even by few months. Resignations are unheard of, and greed is such resigning is akin to death for an incumbent president.

PR system of votes

The proportional representation system of elections was introduced as it goes hand in hand with the executive presidency. The idea was to avoid unwanted landslides and ensure reasonable representation to every political party based on the number of votes received from each district. That way each minority party was expected to receive some representation in the Parliament.

That result would have been achieved and as a result every small party has a member in the Parliament. At the same time it has created a host of new problems pushing the minorities away from the main stream political parties. This has also given birth to a number of ethnicity based political parties further polarizing the society which was already divided.

On the other hand the PR system while preventing landslides has created a worse situation where no party can get a clear majority in the Parliament thereby negating political stability for the country. Today we are suffering the effects of this more than ever before – the country has no stable government and the main political parties are pandering to the wishes of small minority parties for their survival.

It is clear that the executive presidency is the root cause for many of the country’s problems. Creation of power hungry leaders, who cannot be removed during their tenure irrespective of whatever consequences to the country, has caused much damage to the political evolution of the country.

Critical stage

Now the country has reached a critical stage where the majority of the people have got fed up with the existing system and practically lost faith in all 225 Members of the Parliament. This is certainly a sad story for a country which has enjoyed an unbroken democratic tradition of close to nine decades.

Presidential system with its authoritarian tendencies has effectively prevented the emergence of potential new leaders. Instead it has helped the development of a new band of rustic third rated politicians most of whom are henchmen neither keen nor qualified to be future leaders.  This has discouraged good men from entering politics making it easy for the bad lot to survive.

As a result the country is facing a shortage of potential leaders while the people have no faith in the current set of politicians who are fighting for leadership stakes. In such a situation it is naïve to believe that the next presidential election will sort out the current political, economic and social crisis.

The only way out will be for all the political leaders, if not, at least the leaders of three major power blocs, that is the President, Prime Minister and the Leader of the Opposition to discuss this issue and come up with a suitable constitutional solution without delay. Reverting back to a parliamentary system with a modified electoral system and holding parliamentary elections under an interim constitution could be one way of tackling the situation.

This can happen only if the country is blessed with honest and national minded politicians who can place the country above their own self-interest at least at a critical time. The misfortune of our country is the lack of such men and women and it is difficult to believe that there will be any change in the foreseeable future.

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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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Local polls: A referendum on the two-party rule

 

By Gamini Abeywardane

With the withdrawal of the fundamental rights petitions in the Court of Appeal against the delimitation gazette, the holding of the local government elections has now become almost a certainty. Nearly two years of delay has been attributed to both genuine efforts to complete much wanted election reforms as well as attempts to postpone elections till the anticipated settlement of the major rift in the SLFP.

Although, the inordinate delay cannot be justified, the electoral reforms which introduced a mix of 60 percent first-past-the-post and 40 percent PR which ensures a representative for each electoral ward is a salutary measure. Delimitation of wards to accommodate the demographic changes that have taken place after the wards were carved out several decades ago was also an important development.

Moreover, the reform of the electoral system was one of the main objectives of the national unity government and thus the time genuinely taken for completion of that part of the reform is well justified. The efforts to patch up the differences between the two warring factions of the SLFP – the official SLFP   led by President Maithripala Sirisena and the Joint Opposition led by Former President Mahinda Rajapaksa – also is understandable because, if succeeded, that would prevent a humiliating defeat for the party.

A defeat would certainly be a bad experience for a political party led by the country’s President who has maintained a reasonable level of popularity both nationally and internationally. Those who were behind the reconciliatory moves from the Sirisena group would have thought that an electoral defeat for the party would mean a greater shift of the party membership towards the Former President, making it difficult for President Sirisena to keep his grip over the party.

At the same time such a defeat would also mean a bad omen for some of the SLFP cabinet ministers who have been half-heartedly remaining in the government, while having secret links with the Joint Opposition. Worst of all, some of them are defeated candidates or who have crossed over to the government after the change of government and accommodated as MPs on the national list. Naturally, they have the worst fears about the future and their only intention is to remain in power for few more years.

There are people with similar issues on the Joint Opposition as well. Most of them have pending FCID inquiries or court cases against them and have no political future on their own. For their very survival they have no alternative other than depending on the residual popularity of Former President Mahinda Rajapaksa as the war winning national leader.

However, for President Sirisena, it’s not the end of the world. For him there are many options including working further with the UNP to accomplish the remaining goals of the National Unity Government. They include the complete resolution of the national issue and carrying out the remaining economic and other reforms.

In fact, one should not forget that most of the international support and recognition for him, is with the expectation that he will deliver these goals brining about the much needed economic transformation.

Fulfillment of these expectations is sure to make him an unforgettable national leader who will also enjoy the support of the minorities. And that would give him a special status independent of the electoral success of his party and he could even become the President and Head of State for another term, probably through a vote in the parliament, though minus some of the executive powers he enjoys at present.

On the other hand, President Sirisena must surely be aware that joining hands with the Joint Opposition would mean electoral success at the local level, but could be suicidal for him at national level particularly with the prospects of Mahinda Rajapaksa faction taking over the control of the SLFP.

The unsuccessful dialogue between the two factions and some of the impossible demands made by the leaders of these groups and the fact that some of their leading members publicly opposed unity talks, also showed that there was no genuine desire to join together.

Despite these developments the current situation is that elections are likely to be held simultaneously throughout the country under the new system as planned earlier, though there can be a slight delay with dates being pushed to somewhere early February.

The UNP is like to gain out of the rift in the SLFP, at the same time it is not easy for the Mahinda Rajapaksa backed Sri Lanka Podu Jana Peramuna (SLPP) also to make a major impact. The past experience shows that it is not easy for a breakaway group from a main stream party to succeed in politics.

It is likely that the political heat will be over with the conclusion of the election, whatever its outcome may be. With the threat from the breakaway group subsiding, the official SLFP will be able to determine its future direction. One cannot even rule out the possibility of the two parties in the unity government forming joint governments in some local authorities as well.  

Though, a local level election it will be an important mid-term election which in reality be a referendum on the future direction of party politics in the country. The people will see the real electoral strength of each party, independent of the outward manifestations often seen in the form of disproportionate noise and protest campaigns.

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Amidst no faith motions more prospects of early LG polls

 

By Gamini Abeywardane

The week began with the much waited climax in the Treasury Bond saga with none other than Prime Minister Ranil Wickremesinghe giving evidence before the Bond Commission on Monday. It was an unprecedented development where the country’s prime Minister had to fall in line with a presidential commission of inquiry appointed by the very administration in which he himself is an important component. To that extent, it displayed the true nature of the democratic environment prevailing in the country, in contrast to what Sri Lankans witnessed in the last several decades.

The commission being only a fact finding exercise, as usual, it will end with a formal report with certain recommendations. There is a long way before anyone can be found guilty of any wrongs and legally punished. Even if any legal process is to be carried on in that direction, it has to be an entirely a different exercise and a time consuming one.

Some of the SLFP Ministers who were among those pressurizing President Sirisena to appoint the Commission of Inquiry into the controversial bond issue apparently were elated that they managed to get even the Prime Minister before the commission and expose some of those from the UNP camp who were responsible for the alleged fraud. Both the Joint Opposition and the JVP apparently tried to claim the credit for getting a Commission of Inquiry appointed to look into the matter.

There have been sensible debate as well as mere political mudslinging and empty noise over the issue. Although final result of this exercise is not predictable much damage has been caused to those who are accused of involvement in this scandal, the worst affected being former finance minister Ravi Karunanayake who has been already sent to political wilderness.

Nevertheless, Prime Minister Ranil Wickremesinghe who came to be testified before the commission on his own volition apparently made some political capital out of it with nothing having gone against him at the commission. He made use of the opportunity to explain the macro picture surrounding the bond issue such as the urgent need for money at the time, why auction system was introduced for bond issues and some aspects of the government’s economic programme.

Ministers Malik Samarawickrama and Kabir Hashim who were called before the commission earlier also came out of it without much damage for themselves. The most devastating effect of the appointment of this commission was on Minister Ravi Karunanayake and some of the reformist young backbenchers of the UNP made use of the opportunity to force him out of the political mainstream at least for the time being.

The backbencher group led by Deputy Minister Ajith Perera throughout tried to display a different stance over this issue, publicly saying that it was an unfortunate incident in which the UNP should not have got involved and those who are responsible should be punished. They tried their best to maintain their image as a cleaner group within the party and use the scandal to expedite the reform process they were clamouring for.

However, the opposite happened when it partially boomeranged on them. A good many of that group together with some UNP members of the COPE, the parliamentary committee which earlier looked into the scandal, also got implicated over some sensitive telephone conversations with Arjun Aloysius around the time COPE inquiry was going on.

Now, the public sittings of the Bond Commission are over and its final report is due to be handed over to the President shortly. There was a huge media show surrounding the whole exercise while the only tangible outcome for the moment was the removal of Ravi Karunanayake from the cabinet of ministers.

For the joint Opposition led by Former President Mahinda Rajapaksa the bond scandal was a blessing in disguise. Although many are now trying to claim the credit for getting the bond commission appointed a greater amount of it should go to them because they were the group which vigorously campaigned for a high level probe into the matter which was later picked by others as well.

This unfortunately happened at a time when the whole country was waiting for some progress over the probe into allegations of massive crimes and corruption against the bigwigs of the former government and the new scandal gave them a fantastic opportunity to cover up themselves from the public eye at least for the moment.

Local elections

As the dust settled over the bond commission local government election issue has begun to occupy the media space with the possibility of elections getting further postponed in the face of the stay order issued  by the Court of Appeal preventing the implementation of the gazette notification pertaining to Local Government bodies until December 4.

The popular belief was that the filing of fundamental rights cases by voters in several districts was a sinister move by interested parties to postpone elections indefinitely. Provincial Councils and Local Government Minister Faizer Mustapha for quite some time has been in the middle of this controversy with accusations leveled against him for using various legal loopholes to postpone the elections.

Meanwhile, the reluctance of the SLFP led by President Maithripala Sirisena to face any elections at this time due to the internal split in the party has been attributed to these attempts to postpone local government elections. Amidst these political moves public opinion has been building against the idea of postponing elections with rights groups voicing their opinion against it.

UNP which earlier appeared to be colluding with attempts to postpone elections now seems to have changed their stance, perhaps after realizing that the ground situation is in their favour. Another reason for the change of attitude would have been the displeasure in the UNP camp amidst growing tension that has been building between the coalition partners following revelations at the bond commission.

In this background now both Joint Opposition and the JVP have already handed over two separate Motions of No Confidence against the Provincial Council and Local Government Minister Faizer Mustapha alleging that he has deliberately complicated matters to ensure postponement of local polls and thereby undermined the people’s right to vote.

Meanwhile, the backbenchers of the UNP also have stated that Minister Mustapha has acted in such a way that democratic rights of the voters have been violated and that they would support any No Confidence Motion against him in Parliament. Prime Minister Ranil Wickremesinghe also has asked the legal committee of the UNP to examine the possibility of having LG polls before February 4 next year.

The Speaker Karu Jayasuriya is expected to have a meeting of all political parties in the Parliament to take a decision in this regard. Observers say that in the event all of them insist on going ahead with the elections, a motion can be passed by the Parliament to that effect with a two third majority to go ahead with elections as planned.

Meanwhile, there seem to be a lot of pressure being built up asking minister Mustapha to resign from his ministerial position before any No Confidence Motion is presented in Parliament and if that happens he will be the third minister to resign on similar issues in the recent times with Ravi Karunanayake and Wijedasa Rajapaksa being the other two.

With lessor or no prospects of the two warring factions of the SLFP getting together, if the elections are held the general belief is that the ground situation will be much favorable to the UNP. It is true that the ruling joint government has not gained any popularity in the recent times, while the Joint Opposition not being in control of any established political party will also be not in a position to make much of an electoral impact. Therefore, politically speaking it will be a strange situation where the voters will be compelled to elect the best out of the bad lot.

If the elections are held it will be an opportunity for each party to know its real strength which in reality could be different from disproportionate noise they have been making on the political stage. It will also provide an opportunity for the people to show their response to all political and other developments that have been taking place since the last general election in 2015.

However, whatever happens in a local government election, it is unlikely to bring about a major change in the government and the SLFP led by President Maithripala Sirisena and the UNP led by Prime Minister Ranil Wickremeseinghe will have no alternative other than going ahead with their joint administration until the next major national election.

 

 

 

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