Dr. Jayampathy Wickramaratne PC
We have before us today, a wide spectrum of people from both civil and political society – religious leaders, politicians, academics, professionals, artists, trade unionists, civil society activists, media persons, students- agreed at least on one issue, namely that we need more democratic space.
The National Movement for Social Justice (NMSJ) headed by Ven. Maduluwawe Sobitha has put forward proposals as the minimum necessary for such democratic space- namely, the abolition of the executive presidency, a return to a parliamentary form of government and a national consensus on appointments to high positions including the judiciary and to the independent institutions.
Comprehensive constitutional reform is the ideal; there is no question about it. But constitutions are not made in vacuums; they are made in the theatre of hard politics, on very rough surfaces.
How practical is comprehensive constitutional reform today? I would like a new bill of rights, electoral reform, a political solution to the ethnic issue etc as was attempted in 1994-2000. But how practical is it? Is even a sane discourse possible today on some of these issues?
Take electoral reform. During 1994-2000 there was no agreement even within the People’s Alliance. Since then there have been many attempts, including two Parliamentary Select Committees, but parties have failed to agree.
During the period 1994-2000, Tamil, Muslim and Indian Tamil parties were against the abolition of the executive presidency. They said they would support abolition only as a part of a new constitution which provides for a political solution. That is one reason the process dragged on; the delay contributed ultimately to the abortion of the process.
But if we can agree on other issues as well in the short time available – but subject to the main issue, namely the abolition of the executive presidency- why not?
The abolition of the executive presidency is seemingly a single issue, but it has wide ramifications, especially in today’s authoritarian environment. The undermining of the rule of law, break-down of law and order, impunity, assaults on the independence of judiciary, interference with institutions such as the public service and police, lack of accountability, intolerance of dissent, pressure on the media, religious intolerance all have a relationship to the authoritarian environment. Corruption, wastage and extravagance contribute to the depletion of public coffers. The money so lost is being recovered from ordinary citizens by way of taxes, adding to the cost of living.
We believe that the democratic space that will open up with the abolition of the executive presidency will be conducive to a sane discourse on comprehensive constitutional reform.
The National Movement for Social Justice proposes a clear road map for the abolition of the executive presidency, a return to a parliamentary form of government and bringing back the Seventeenth Amendment with suitable changes, including those agreed to in the DEW Gunasekera Select Committee.
We propose that rather than giving a promise to bring a constitutional amendment to effect the above changes, the constitutional amendment should be published as a legal draft along with manifesto of the common candidate so that the country knows exactly what it is voting for or against.
The whole process should be completed within six months counted from date of the presidential election. The Bill should be presented to Parliament within one month and the exact date on which it will be presented should be given in the manifesto. For example, if the election is to be held on 03 January 2015, the manifesto will state that the Bill will be presented on 02 February. The draft Bill would also give the exact date on which it will be effective, namely 03 July 2015. The date on which the constitutional amendment will take effect would not be left to the discretion of the new President.
Such an amendment would require a 2/3 majority in Parliament and how such a majority could be obtained is a valid question. A significant number of MPs of the main party of the present Government as well as several coalition partners are certain to support a common candidate committed to the above amendment. Further, the common candidate winning means that those who opposed the common candidate go into opposition. Once in the opposition, they are most likely to support abolition; otherwise they will have to suffer under the executive presidency as the present opposition does. Also, they would have a better chance of coming back to power in a parliamentary form of government. Therefore, it is reasonable to expect them to vote for the amendment if brought before Parliament soon. But lapse of time will bring new factors into play and that is why we propose that the amendment should be brought within one month.
Going by past decisions of the Supreme Court, a referendum would not be necessary for the proposed amendment. However, if the Supreme Court so decides, a referendum would be held. Once a 2/3 majority is obtained, approval by the people would not be difficult.
Taking the above example, the executive presidency would stand abolished on 03 July 2015. The common candidate who has become President thus goes out of office, having fulfilled his duty. A new President without executive powers, like Mr. William Gopallawa under the 1972 Constitution, would be elected by Parliament. The new Prime Minister would be the person who commands the support of the majority of the members of Parliament.
We also propose that primacy should be given to the ‘candidacy’ and not a ‘candidate’. We should ‘deconstruct’ the notion of a candidate and instead build up the concept of a candidacy. This will make possible a wider ownership of the process and the active participation of the masses.
We need to build a rainbow alliance to succeed in our efforts towards creating democratic space. Today, we have taken an important step towards that. Let us strengthen and widen this alliance.
*Speech made by Dr. Jayampathy Wickramaratne, PC at the ‘Vidwath Kathikawa’ organized by the National Movement for Social Justice, 24 July 2014
Navin / July 27, 2014
A very informative cartoon for all people championing CBK and/or alliances that include her for abolishing executive presidency!
http://www.dailymirror.lk/news/cartoon-of-the-day/50206-cartoon-of-the-day.html
Abolishing executive presidency has been the election slogan of all opposition candidates since 1994 or for 2 (TWO) decades. It has now outlived its usefulness. It carries only academic value if at all. The voters don’t care about executive presidency. Alas the opposition is so unimaginative and out of ideas they just keep harping on it.
Every time an election comes, Ranil has to hide behind some scapegoat so that he can continue to be the leader of UNP. Last time it was Sarath Fonseka. This time around both Ranil and Sarath Fonseka need a scapegoat to save themselves from political oblivion. Same for JVP.
What is it that all these candidates Ranil, SF and JVP have in common? They all want to remain politically relevant but neither one can contest and win an election!
Luckily for them Sri Lanka is not short of crackpots ever ready to run for president! So come election time they all come together to rally behind a common candidate so that conveniently no one has to stand for the election!!! This time Maduluwawe Sobitha is being taken in a majestic pageant to Kali Munneswaram Kovil by Ranil, Sarath Fonseka, JVP, Kumar David and whole bunch of political academics!
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Dr. Rajasingham Narendran / July 27, 2014
Mr. Wickremaratne,
Why cannot the Executive Presidency be refined or re-shaped to curtail excesses, prevent misuse and provide greater accountability ?
Please explain?
Dr. Rajasingham Narendran
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Jayampathy Wickramaratne / July 27, 2014
Reform or abolition?
(From my book, “Towards Democratic Governance in Sri Lanka: A Constitutional Miscellany’)
Can the executive presidency be ‘reformed’ by introducing safeguards that are found in developed countries? This is a legitimate question.
In the United States, legislators are very independent, whether belonging to the President’s party or not. One-third of the Senate is elected every two years and the whole House of Representatives, 435 members, are elected every two years. The President’s inability to dissolve either House also gives legislators substantial independence. The legislative records of legislators- the bills they presented, how they voted, what positions they took etc – come under scrutiny at election. The political culture is different where the voters consider the voting records of their future representatives. Legislators therefore need to act very independently. Excesses on the part of the executive are pointed out, curbed, resisted and criticized even by members of the President’s own party. When President Nixon was to be impeached, his own Republican Party members went against him and when President Clinton was impeached, some Republicans opposed it.
The complete separation of the executive from the legislature also contributes to the independence of legislators. A Senator or member of the House of Representatives cannot be a member of the Cabinet. On the other hand, Cabinet appointments need the confirmation of the Senate. John Kerry, and Hilary Clinton before him, came before the Senate to have their nominations as Secretary of State confirmed and resigned from the Senate to take up appointment. As legislators cannot hold office in the executive, the President cannot lure them by offers of office.
Unlike in developed countries, people in developing countries prefer legislators to hold ministerial positions so that they could pressurize their representatives to attend to their needs. This is probably why Jayewardene provided for the Cabinet of Ministers, non-Cabinet Ministers and Deputy Ministers to be drawn from Parliament even under an executive presidency. A proposal to appoint Ministers from outside Parliament is very unlikely to garner popular support.
Candidates for office in the United States are not appointed by the party hierarchy; rather they are elected by party members through primary elections. Elected representatives can therefore afford to be independent. The political culture in Sri Lanka is quite different. Not only the Presidential candidates but even candidates for positions of legislators at both national and state level and state governors, as well as for many local positions such as city councilors and county commissioners are selected through primaries. Barak Obama, an African-American and Washington outsider, was able to become the Democratic nominee for President only because of such a system. Can our system produce an ‘Obama’? This difference in political culture needs to be taken into account when attempting to import ‘reforms’.
An argument against the abolition of the executive presidency is that the presidency leads to stability. Proponents of the presidency say that in view of the political and economic challenges faced by a developing country such as Sri Lanka, a strong government freed from the whims and fancies of the legislators and which can take tough, unpopular decisions that are in the long-term interest of the country is needed.
Dealing with the ‘stability’ argument which Jayewardene too put forward, and which is echoed today by apologists for the executive presidency in the present-day SLFP, Dr. de Silva stated: “I am very anxious to make this clear; this is an effort. This word ‘stability’ covers a multitude of wrong propositions. Stability! What kind of stability are we talking of? A stability that comes from the withdrawal of the central power from the influence of the masses? In other words, the people shall be kept outside, with only one function: as Marx said so long ago, ‘They choose once in five years who shall oppress them for the next five years’! That is not my concept of democracy, parliamentary or otherwise.” [CA Deb 02 July 1971, vol 1, col 2714.]
It is also argued that the Sri Lankan state would not have defeated the separatist threat but for the executive presidency. In a parliamentary form of government too, the government has complete control over the armed forces. Executive power is exercised in the name of the President who must act on the advice of the Prime Minister. The executive presidency brings in no ‘magic’. What a Prime Minister cannot do to the extent that an executive president can is to manipulate the political process.
India which has a parliamentary form affords a good example. India is a multi-cultural society with numerous complex problems. It has issues with some of its neighbours, fought wars with China and Pakistan and faces terrorism from both outside and inside its borders. There are several violent separatist movements. Maoist insurgents are active in several parts of the country. India has had to deal with religious strife, language issues, caste issues etc and poverty and social backwardness are serious problems plaguing it. Yet, there is no serious demand for an executive presidency.
Vikram Raghavan explains why India opted for a parliamentary form of government. “[W]hy did our founders establish a parliamentary system? Did they blindly copy the prevailing British model without seriously considering other alternatives? Fortunately, for us, they were not as complacent as it may seem on this question. Just as the American Constitutional Convention of 1787 detested the oppressive English monarchy, our Constitutional Assembly was deeply concerned about concentrating political power in a single office. With no shortage of despotic regimes wherever they turned, Assembly members wanted desperately to avoid paving the way for a future dictator.
In a November 1948 speech, Ambedkar described our founders’ dilemma with trademark eloquence. An ideal executive, he argued, must be both stable as well as responsible to the people who elected it. There was no political system in vogue that satisfied both objectives equally. The American and Swiss presidencies offered greater stability, while British cabinet governments seemed more accountable to the people. The Assembly ultimately settled for accountability over stability by establishing a structure, which more closely resembled the latter than the former. As Justice Krishna Iyer colourfully put it: ‘Not the Potomac, but the Thames, fertilises the flow of the Yamuna.’ [Vikram Raghavan ‘All the President’s mien’ The Hindu, 27 May 2012).
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Dr.Rajasingham Narendran / July 28, 2014
Thanks for your response. I am however not convinced by the arguments cited from your book.
What we have is a so-called democracy that refuses to work within a constitutional frame work, in terms of both its principles, words and spirit. We have trashed and thrashed both Westminster and Republican constitutions with gay abandon, because the persons we have elected to political office have no sense of either modern democratic norms or moral scruples. They are visionless and uneducated. The two republican constitutions we have worked with were designed by politicians to fit their needs and perverse ambitions.
Dr. Colvin R. de Silva had a silver tongue and mesmerised us with his high brow words. However, as the principal architect of the first republican constitution he miserably failed to make it a visionary exercise. If he could not stand up to Felix Dias Bandaranaike’s machinations, he should have retreated from the role he played. Further, he unconscionably introduced the religious factor into that constitution. In toto his words just remain words, though high brow.
The Soulbury constitution had all the features, including a Senate, appeal to the Privy Council and section 29A , that could have helped us develop a fair, democratic and progressive society. What did we do with it? We unconscionably subverted its core and devalued the parliament and institutions that were expected to uphold it.
Let us identify the problems with the present constitution, such as the nature of the executive presidency and its powers, the proportional representation system, the distancing of the elected from the electorate,the 13th amendment, the type of persons we elect to office, the separation of powers, majoritarianism, etc., and find ways to remedy these. Let us explain these issues to the people, without assuming that they are village idiots who cannot comprehend such matters. There is much more wrong with our constitution and system if governance than the executive presidency.
Further, the things that you say are demanded by the people is not quite true. Responsive government and governance will resolve these issues. The lobbying system in the US caters to the special interest groups and the electoral and electing system ensure that the government responds to the needs and demands of the people. In fact the power of the special interest groups need to be curtailed. Our members of parliament, if made to play the role for which they were elected, without ministerial ambitions, power to interfere with the public service, engage in various nefarious activities and forced to stay in the party through which they were elected, will have the time and need to attend to the needs of all segments of their electorate. The proportional representation system needs major reform and the electorates have to be carved out to bring the MPs closer to the people and close enough for intense scrutiny.
The new constitution should also not be designed by politicians and lawyers affiliated to them. It should be written by an independent constitutional Commission comprising eminent persins, after wide public consultations and intense study.
The present government can be defeated on grounds of the multitude of sins it has committed, from which a wide swathe of people are hurting badly, provided the opposition can mobilise itself. A single issue campaign may dislodge the current government, but will not help the country. We have to move forward and make our collective experience of almost seven decades meaningful. Nostalgia for a forced to fail Soulbury type Westminster constitution is foolhardy. We cannot and should not swim backwards.
Further, we should not forget that no constitution will work if we continue to elect the type of persons we elect now and appoint the type of persons we appoint to high office. The new constitution should remedy this calamitous situation.
Dr.Rajasingham Narendran
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douglas / July 27, 2014
The “Big Hue and Cry” for the abolition of the “Executive Presidency” has come about as a result of the “Misuse” of its powers by all of its previous and most significantly and visibly by the present incumbent. The people should have rejected this “Position” at the very outset of its introduction, when the very man who introduced it said: “Now I can do anything excepting to make a man a woman and a woman a man”. It is better to know how the “Legal Big Wigs” in the Governing Party, the Professions and the Leaders of Civil Society kept mum. Since then every one, the Leaders who contested gave a “solemn” undertaking to “Do away” with it, merely to grab power. This “Drama” continued and is continuing up to now.
So, please, please, DO NOT FOOL THE PEOPLE ANYMORE. We had enough of “Rallies”, “Media Circuses”, “Poster Campaigns” etc. on this and very many issues that have almost become cancerous in the body politics and the society. As the writer has very correctly said, we need a well “WRITTEN” (in simple and understandable language of the common man) and a “SOLEMN AGREEMENT” stipulating what would be done within a “Time Frame” to solve the most identified problems facing the country. It is also very important to make PROVISION in that AGREEMENT to enable even a common man to “CHALLENGE” in a High Court, if and when that agreement is not acted upon and fulfilled. In simple terms it must be a BINDING AGREEMENT between the Government and the Governed. I presume the “time frame” suggested by the writer is something similar to what we are asking.
One could ask: Why all these Legal Provisions are needed? The simple answer is: The common man (voter) has completely lost FAITH AND CONFIDENCE on most of the Personnel involved in this “BUSINESS OF CHANGE” proposal and are DOUBTFUL of their “Motivations”. Just outside the subject matter, we know what happened after that “Joint Meeting of the Religious Leaders” to discuss the “CASINO” issue. We have ‘experienced” these “dramas” and therefore “ENOUGH IS ENOUGH”. If you all cannot do anything RIGHT, let is live with what we have.
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Dr. Laksiri Fernando / July 27, 2014
The road map appears quite feasible if the parties in the opposition give a firm commitment and people could be mobilized also utilizing the other issues against the presidential rule. However, in view of Dr. Narendran’s comment it also appears that more convincing is necessary for the abolition of the executive presidential system.
Initially minority parties preferred the presidential system to protect their rights from majoritarianism. It didn’t work that way. Then presidential system was utilized to win the war. That mentality is still there. At the same time extreme nationalist sections are now of the opinion that the presidential system or president is more amenable to the international pressure. Recent most example is the appointment of international experts to advice war crime investigations. Similarly the minorities also might again think that the complete abolition of the system might insulate Sri Lanka from necessary international pressure and they might be more vulnerable.
I maintain that the abolition is the best for the country, democracy and reconciliation. More sustainable reconciliation could be and should be built within a parliamentary democratic system. Take the example of the APRC proposals. President could just ignore the proposals. The same fate might happen to the PSC. This is apart from what has happened to various parliamentary committee recommendations including COPE. The abolition should not be taken as a given conclusion however. Therefore I would propose the NMSJ organizes more consultations while launching its public campaigns.
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Crazyoldmansl / July 27, 2014
No No No Not that way man. Hey you! you Jeyam Pathi it will not work ok! Six months! No way! The fellow will fall down the stairs and die, or the mason who he hires to paint his front door will kill him.
The candidate fellow must swear an oath that the moment he wins the election a presidential proclamation will be made (presidents are there to proclaim right? and Prime Ministers are there to minister no?) declaring parliament dissolved and elections to be held within 30 days. No canvassing, no posters, all parties will have their manifesto and program published limited to two full pages of an election paper that will be published by the government within 15 days of the proclamation and the office of president will cease to be and a constitutional amendment changing the presidential system into a parliamentary one will come into effect the moment elections results are announced and the prime minister elected.
Ok? No time to waste and no time for masons games and all that right? Get it? You will need a Big Saar Rat on the sidelines to see that the goat does not get horny and try to butt something right? No iffs and no Butts right?
And about this supreme court and referenda and all that you know where to shove all that right! I do not have to tell you right? You better get a move on or you will have to put up with guests in all those hotels that the friends of the goat have been building. The kind of ists you are dealing with have never been gotten rid of without many many tourists doing a tour of duty. So do the job yourself FAST or get ready to foot the bills of the billas.
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Jim softy / July 27, 2014
Look like anti – govt special interest groups and greedy politicians are using a buddhist monk to ruin Sri Lanka.
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Sunil Mohan / July 28, 2014
We have gone through the writer’s points , questions and answers session, clarifications etc , and we have got more than enough points and suggestions , but as one suggests we do not have sufficient time to plan all these. Better act on it without wasting time and not allowing the incumbent and his loyal group to breath even.
NMSJ come on and save our motherland sooner before it perish completely.
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Upali Wickramasinghe / August 29, 2014
Sorry Mr Wickramaratne.No way, your proposal has many loop holes. In the first instance why do not let the public know, now itself and not when the Presidential election is declared what your constitutional proposals are.That way the people, whom you try glorify will come to know what they are in for.They will not vote blindly.
I for one do not trust the SLFP, the UNP,the LSSP ( with which you are/were aligned – I was two years junior to you at the University)the CP, the JHU,the CWC, the SLMC and all other limping units within and outside the parliament. Nor do I trust any of the Religious organisations to propose any constitutional concept based on the well being of the people.All of you will ensure your well being,as JRJ did free food, cars, pensions,etc etc which we the people will have to foot.Further more your stipulation of one month, six months leave a lot to be desired.
Worst of all you seem to depend on the Parliament to OK such a possibly unscupulous document.
Mr. Wickramaratne, the trend in the modern world is to get the constitutional proposals accepted by the people at a referendum.During my life time this was the trend followed by Gen de Gaulle ( was it three times?)South Africa,Bolivia, Venezuela ( more than once),Nicaragua,Burma – Myanmar- even very recently by Syria,Egypt,Iraq etc etc.You are providing an excuse to avoid an referendum based on historical experience.Your late leaders criticized and opposed the 1978 version based on not so important factors,but was silent on this vital,factor – people’s participation purely because your people too perverted parliamentary democracy six year earlier,went back on all the democratic ideal they talked about and acted the way of a common tart to seek support of the religious and racial leanings of the major component the SLFP. You brought in the concept of the state religion, you brought in the concept of public service appointments by the cabinet( in short stopped any person aligned with a party of the opposition or independent from getting employment), it was under that constitution that we found for the first time – publicly-the executive interfering with the judiciary.
Without using the Parliament, the judiciary, the police and the armed services to implement your proposals without reference to the people please publish your proposals NOW not WHEN the elections are due.
The plurality of the those opposing the EP indicates that it will be difficult to succeed with the concept of the common candidate.
So please proceed with a proposal that all the opposition parties and the people can accept, the ONE and ONLY CONSTITUTION THAT THE PEOPLE OF THIS COUNTRY EVER AGREED to, the SOULBURY constitution.Let that be the basic law of the country and this can be done overnight. Then think of the amendments required – one important being the Court’s ability to review the legislation.
Over to you Mr.Wickramaratne, I eagerly await your comment / reply to this.
Heil Hitler in making
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Upali Wickramasinghe / August 29, 2014
Sorry Mr Wickramaratne.No way, your proposal has many loop holes. In the first instance why do not let the public know, now itself and not when the Presidential election is declared, what your constitutional proposals are.That way the people, whom you try glorify will come to know what they are in for.They will not vote blindly.
I for one do not trust the SLFP, the UNP,the LSSP ( with which you are/were aligned – I was two years junior to you at the University)the CP, the JHU,the CWC, the SLMC and all other limping units within and outside the parliament. Nor do I trust any of the Religious organisations to propose any constitutional concept based on the well being of the people.All of you will ensure your well being,as JRJ did free food, cars, pensions,etc etc which we the people will have to foot.Further more your stipulation of one month, six months leave a lot to be desired.
Worst of all you seem to depend on the Parliament to OK such a possibly unscupulous document.
Mr. Wickramaratne, the trend in the modern world is to get the constitutional proposals accepted by the people at a referendum.During my life time this was the trend followed by Gen de Gaulle ( was it three times?)South Africa,Bolivia, Venezuela ( more than once),Nicaragua,Burma – Myanmar- even very recently by Syria,Egypt,Iraq etc etc.You are providing an excuse to avoid an referendum based on historical experience.Your late leaders criticized and opposed the 1978 version based on not so important factors,but was silent on this vital,factor – people’s participation purely because your people too perverted parliamentary democracy six year earlier,went back on all the democratic ideal they talked about and acted the way of a woman of questionable reputation, to seek support of the religious and racial leanings of the major component the SLFP. You brought in the concept of the state religion, you brought in the concept of public service appointments by the cabinet( in short stopped any person aligned with a party of the opposition or independent from getting employment), it was under that constitution that we found for the first time – publicly-the executive interfering with the judiciary.
Without using the Parliament, the judiciary, the police and the armed services to implement your proposals without reference to the people please publish your proposals NOW not WHEN the elections are due.
The plurality of the those opposing the EP indicates that it will be difficult to succeed with the concept of the common candidate.
So please proceed with a proposal that all the opposition parties and the people can accept, the ONE and ONLY CONSTITUTION THAT THE PEOPLE OF THIS COUNTRY EVER AGREED to, the SOULBURY constitution.Let that be the basic law of the country and this can be done overnight. Then think of the amendments required – one important being the Court’s ability to review the legislation.
Over to you Mr.Wickramaratne, I eagerly await your comment / reply to this.
Heil Hitler in making
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