By R.M.B Senanayake –
R.M.B. Senanayake
The modern democratic approach to constitution making is the formulation of a set of immutable constitutional principles. Gone are the days when the sovereignty of the people meant that the people could their through their elected representatives, pass any laws by majority vote and do away with human rights and minority rights. Democracy means more than the right of the people to elect representatives to form a government which could then govern as they wish disregarding fundamental rights and values. There is the UN Declaration of Human Rights which must be incorporated in the immutable principles of a constitution. Nor is it acceptable now for an elected Executive to make constitutional changes undermining the original principles of the Constitution. Today there are acceptable and unacceptable constitutional amendments and doing away with the inherent checks and balances off a democratic constitution is no longer acceptable among liberal political thinkers and jurists.
Both President J.R. J as well as President M.R have tinkered with the fundamental principles underlying the Constitution. President J.R. J held a Referendum to extend the term of office which is not acceptable in a democracy. President M.R has abolished the two term limit on the Presidents tenure. Today these constitutional amendments would be unacceptable. So there should not only be a set of immutable principles for the constitution but also a set of principles which should govern the procedures for constitutional amendment which are acceptable such as a super majority like 2/3 of even ¾ for the Sinhalese Buddhist majority is 70% and cannot permit protect minority rights and human rights.
The UNP has not really abolished the Executive Presidency(EP) A rose by any other name smells the same. The UNP has smuggled it in under a different guise. They have proposed a directly elected Prime Minister instead of a directly elected President. In a presidential system of government there is a clear separation of the powers of the legislature, the Executive and the Judiciary. In the Westminster model the Executive is not directly elected but is drawn from the party which holds the majority. The Executive accountability is then exercised by Parliament although if the ruling party has a clear majority this accountability is eroded. Under the Proportional Representation system coalitions are more likely whether the Executive is a prime Minister drawn from Parliament or directly elected. There should not be direct election of the Executive and a Prime Minister directly elected would be as powerful and be no different from the presidential system. If the Prime Minister ( call him by any name) is directly elected by the people he will no longer be primus inter pares ( first among equals) but an all powerful elected leader who can control both the Cabinet and the Parliament.
While control of the Cabinet is acceptable the control of Parliament is not, certainly not by using undue pressure on the freedom of conscience of the elected Members of the ruling political party. There should be a clear separation of powers if the leader of the Executive branch of the State is directly elected. Otherwise freedom is in peril as theorized by Montesquieu and witnessed by us under the present hybrid system. In a presidential system there must be separation of powers as in the US and French Constitutions. President J.R UJ made a hybrid Constitution ignoring the fundamentals of Constitution making for a liberal democracy. Let the UNP not repeat the mistake. Let us first agree on a set of immutable principles such as the rights under the ICCPR and minority rights recognized in UN Declarations. This is best done through talks with the TNA preferably winning the support of the democratic SLFP. Once these immutable principles are agreed with the minorities both ethnic and religious including the Muslims and Christians then the procedure for Constitutional changes should be agreed upon. A super majority like the ¾ majority may be imposed for acceptable changes in the Constitution.
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disgusted / June 7, 2013
Mr. Senanayake, Please don’t take this subject and its presenter seriously and lose your valuable time and energy. He is just singing for his dear life and the next meal which is served by his lord master.
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Malith / June 7, 2013
“..Both President J.R. J as well as President M.R have tinkered with the fundamental principles underlying the Constitution. President J.R. J held a Referendum to extend the term of office which is not acceptable in a democracy…”
Poor writer! He does not know that it is JR who wrote this constitution with vision to develop this country and uplift the living conditions of masses including that of the writer of this critique. The writer is well advised to appraise himself of the answer given to this referendum question: “I know this seems against the norms, but the future generations would understand why I did this and forgive me-I have introduced a new economy and a new constitution to this country, the foreign counties have helped these efforts initiated by me placing great faith in me and hoping that this economic system would be implemented in the country for a sufficient period of time until it is solidly and permanently established in the country, that a different administration is bound to upset this cause and course the country is taking, and therefore I had to make sure that this new adopted economic system is protected for a further period of time..”
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Malith / June 7, 2013
What Mr. Senanayake says has valid and relevant points. I think you must contribute your knowledge towards the evolution of the new constitution put forward by UNP at this juncture of time in the history of country. At least UNP has taken the timely initiative and direction for a long outstanding issue and it is the responsibility of all to contribute to this effort. Just passing criticisms for its own sake and submitting pragmatic proposals and methods are two entirely different issues and those who are able and capable must make use of the opportunity.
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Safa / June 7, 2013
There are so many models of Govt which are working in the world without much problems. Why reinvent the wheel when we can benefit from our bad experience and the experience of other long standing democracies which have survived without such tinkering and manipulation.
Westminister model sounds good enough if not for the hidden nuances that have been brought in. Any such variations need to be discussed with all parties and agreed. EP must go. No need for a remote semi-dictator ruling the roost. The Indian Presidiency is a good example to follow.
Prime Minister, Cabinet and Parliment having powers is acceptable without allowing cross overs and wheeler dealing. The independence of the judiciary, freedom of expression and human rights must be enshrined in the constitution. The method of any amendment must be through referendum or be made more stringent. Enough havoc has been caused by arbitrarily amending the constitution and the laws of the country.
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Wickramasiri / June 7, 2013
I have three questions at this time.
Firstly how do we safeguard ‘the sovereignty of the people’ and prevent the President and the Parliament from exercising that sovereignty on our behalf in a distorted manner with scant regard for us, secondly, how do we ensure that the government will practice the provisions in the constitution without defying it with impunity, and thirdly, how can we prevent even the most ‘perfect’ constitution from being amended or replaced by a future government?
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Lasith / June 9, 2013
Sovereignty, human rights and such important matters must be made hard coded constitutional components that cannot be amended at the whims and fancies of anybody but must definitely referred to a referendum even without asking for the opinion of judiciary because Mohan Peiris typed bastards would translate anything into his rogue interpretation.
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Lasith / June 9, 2013
Not only a good constitution but good, principled, educated and professional politicians (legislature), such typed judiciary, law enforcement personnel (police), provincial politicians and public administration personnel are needed to do the job properly. Instead of sending every Dick, Tom and Harry to parliament politics must be made a professional job and there must be academic infrastructure to educate and train them on various relevant fields of study-local and international politics, economics, geography, history, administration, IT, communication, media etc. etc. so that only professionally qualified people would enter politics. Anyone wishing to do politics must be qualified under this discipline.
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