By Rajiva Wijesinha –

It is not likely that the President will be awakened swiftly from the enchantment cast upon him by his closest advisers. However, if and when he does realize that a change is essential if he is to preserve not just his legacy, but even perhaps his Presidency, he has some obviously desirable remedies to hand.

For though the Parliamentary Select Committee has thus far achieved nothing, it has had some very sensible proposals brought before it by moderates within government. The Liberal Party made suggestions made on its experience of acting as a link between successive governments and representatives of Tamil parties, but even more important were the suggestions made by Vasantha Senanayake on behalf of a group of young politicians and professionals. Subsequently the Liberal Party, after studying the proposals, wrote to the PSC endorsing them.

Vasantha was the scion of a great political family. His great grandfather D S Senanayake had been Sri Lanka’s first Prime Minister, and his great uncle Dudley had been elected Prime Minister three times. Both had presided over Cabinets with representation from popular Tamil political parties.

Vasantha however had left the United National Party, which his great grand father had founded, and now sat in Parliament as a member of the Sri Lanka Freedom Party, to which the President belonged. He, like many other promising youngsters, had been sidelined by Ranil Wickremesinghe, who had, on the pattern of his mother’s cousin, J R Jayewardene, wanted absolute control of his party, and thought ability less important than personal loyalty.

Vasantha’s promise had been recognized soon after the election by embassies seeking to expand their influence in Sri Lanka, and he had been in effect the leader of groups of young Members of Parliament taken on study tours of both Britain and the United States. The former visit had involved meetings with the diaspora, and after their return the group, the Young Parliamentary Leaders Forum as it called itself, had produced a position paper on promoting Reconciliation. This was ignored by the President’s Officer but on the basis of that, and further discussions with young professionals, Vasantha had put forward a set of suggestions to the PSC. These had been welcomed by the few members who bothered to attend the PSC, but unfortunately they had not taken matters further. An interim report putting forward recommendations for immediate implementation might have given a new lease of life to the PSC, but unfortunately its membership seemed unlikely to act unless on the specific instructions of the President.

The strength of Vasantha’s proposals lay in their addressing the many political problems the country faced by seeking primarily to assuage the fears felt by either side. At the same time, they tried to lay down principles of efficiency and accountability that would improve governance and thereby get rid of efforts on all sides to increase power at the expense of all other stakeholders. One vital principle in this regard was the separation of powers, given the manner in which executive authority had turned in Sri Lanka to being primarily a vehicle for winning elections, through patronage and uncoordinated expenditure.

The proposals also sought to use principles in the existing constitution to overcome the deadlock caused by each side trying to be master. So they emphasized the importance of the clear statement in the constitution that National Policy on all matters belonged to the Central government. So, while the Constitution mentioned that land and police powers belonged to the Provinces, Vasantha noted that with regard to these

Land Powers:

National land policy to be developed prior to passing of new legislation at any level with regard to land. The National Policy shall clearly set out the mechanism of central government monitoring the implementation of the policy and ensuring corrective action if the policy is breached. Foreign ownership of land shall be approved directly ONLY by the president.

Law and Order:

The Provincial police force shall come directly under the Provincial Police Commission. National Policy on Police powers shall be developed prior to the assumption of the police powers by the Provinces. The National Policy shall clearly set out the mechanism of central government monitoring the implementation of the policy and ensuring corrective action if the policy is breached.

With regard to Provincial Councils, the proposals took note of the fact that they were widely seen as white elephants, with unnecessary expenditure on elections and a host of members who simply added another layer of patronage, without contributing to policy making or to coordinated development. They suggested therefore that the Councils should be elected indirectly, from the Local Government bodies in the Province.

This had been mooted previously, by President Premadasa, but it had been rejected by the Tamil parties since it would take away from the prestige and authority of an elected Provincial administration. But Vasantha’s proposals overcame that objection by having the Chief Minister elected direct by the Province. This was appropriate given the great powers wielded by a Chief Minister – but the proposals also helped him to exercise those powers effectively by allowing him to choose professionals rather than politicians with their own agendas for his Cabinet.

Significantly, the recently elected Northern Province Minister, himself a former Judge rather than a professional politician, had shown the way forward by appointing a doctor and a professional educationist as Ministers of Health and Education respectively. The initiatives they put forward soon after taking office testified to what technocrats might achieve, in contrast to the politicians who occupied these positions in other Provinces.

The relevant sections of the proposals were as follows –

The Provincial Council:

The Provincial Council shall consist of the Chief Minister; and one member elected by every Local Government institution within the Province to the Council. This can be done through amending the Provincial Councils act.

Chief Minister:

Chief Minister shall be elected directly by the people and along with the 5 Board of Ministers appointed by the Chief Minister approved by the PC shall exercise executive power for the province. Members of the Board of Ministers shall not be Members any other legislative elected body, and shall not undertake any other employment. Any Member of such an elected body who assumes duty as a member of the Board of Ministers shall cease to be a member of such body.

This last provision applied also to the Cabinet of the country. Vasantha thus addressed a fundamental problem in the Constitution imposed by Jayewardene, namely that it combined an Executive Presidency with the Westminster model of the Cabinet, which confined the Cabinet to Members of Parliament (and without the provision other Westminster type constitutions have of providing for talent to enter Parliament through a Second Chamber). Such an arrangement does not occur with any other serious Presidential system in the world, and the fact that this anomaly has not been explored by academics in Sri Lanka says much about the generally passive nature of universities and what passes for political analysis. The fact that a Presidential system needs supervision and monitoring by the legislature, and that this is impossible if the most prominent members of the Legislature are part of the Executive, has been ignored in the literature on the subject, beginning with the shameful apology for Jayewardene penned by a supposedly distinguished academic, Prof A J Wilson, in The Gaullist Constitution of Sri Lanka. Typically, the sycophantic Wilson later ended up a strong supporter of the LTTE. Conversely, those opposed to the Presidential system kept parroting that we should return to the Westminster system without recognizing that, as party control of parliamentarians increased, it was increasingly difficult to ensure supervision by the Legislature of the Executive. In Sri Lanka it was well nigh impossible, since the head of the Executive, whether President or Prime Minister, was able to stifle dissent by offering Cabinet membership.

In bringing our Presidential system in line with those in place in the United States of France or Russia, Vasantha also emphasized the need for accountability to the Legislature –

Cabinet of Ministers:

Members of the Cabinet shall not be Members of Parliament or any other elected legislative body/council, and shall not undertake any other employment. Any Member of Parliament or other elected body who assumes a Cabinet portfolio shall cease to be a member of such body.

Cabinet of Ministers shall be accountable to the Parliament and shall

a.     attend the consultative committee of the Ministry he is responsible for, held once in every month
b.     answer any question raised by Parliament on the matters related to his Ministry
c.     present financial estimates at such committees and answer and discuss such estimates and accounts at these meetings.

He also limited the size of the Cabinet, a measure that is essential even if the present system continues or if the Westminster system is restored. This particular provision is so important that he has currently proposed an amendment to the Constitution on these lines –

The Cabinet shall consist of not more than 25 Ministers.

But Vasantha was also aware of the need to strengthen Parliament. Given the usual domination of the House by members supportive of the Executive leadership, he introduced a Second Chamber which would provide other perspectives more systematically, and enable Parliament to fulfil its legislative functions with care. The Senate was to be elected on the basis of equal representation from each Province. This would strengthen inputs from the periphery into decisions made at the centre, which was essential since, whatever the extent of devolution, some decisions, including those concerning national security, would have to be made at the centre. And the TNA had indeed accepted that a Second Chamber was desirable during the negotiation of 2011.

Given however the current oppositional nature of Sri Lankan politics, the proposals had emphasized the primacy of the House of Representatives with regard to matters of finance. They also made provision, obviously necessary given what now seemed a regular occurrence in the United States, for the executive to continue governing the country in the event of Parliament failing to pass the budget.

Legislature

1.     Parliament:

All legislative powers of the people shall be exercised by the Parliament which shall consist of a Senate and a House of Representatives.

2.     House of Representatives:

The House of Representatives shall be 200 members elected every 5 years of whom a half shall be elected from territorial constituencies on FPP basis and the balance shall be chosen by a separate vote to determine support for individual parties.

25 persons shall be selected proportionately by the political parties represented in parliament with particular regard to women, youth and demographics not represented adequately in parliament.

All bills for raising revenue shall originate in the House of Representatives.

Budget: In the event of non approval of the budget for the year, the budget of the previous year will continue to be in effect

Parliament shall have exclusive powers to make laws on subjects mentioned in the reserved list

3.     The Senate:

Four Senators shall be elected at a separate election to represent each province, by the people for a term of five years.

As indicated above, the proposals also addressed the problem of the prevailing electoral system. The first past the post system that Sri Lanka had had until 1977 had led to lopsided Parliaments, in that most constituencies were marginal so that even a small swing allowed one party to dominate. But the different systems of proportional representation Jayewardene had introduced had destroyed responsibility for, and accountability to, any particular group of constituents.

At first he had allowed only a vote for a party, which meant that the electorate had no say in who represented it, and those at the bottom of the list saw no reason to work for the election since they had no chance of getting into Parliament. Indeed some crossed over to the other side when they realized this. But the answer Jayewardene dreamed up proved worse for, in allowing each voter three preferences, he introduced vicious and expensive competition between nominees of the same party. This led to astronomical increases in election expenditure (which had then to be recouped by various means), as well as in intra-party violence, with for instance the agents of one candidate busily tearing down posters of other candidates of the same party. And whatever the efforts made by individuals at massive expense, there was a built in recognition factor for those whose names were well known, in particular for the relations of politicians already established.

Vasantha’s formulation, based on the German system which it had long been agreed was the best possible, but which no government had introduced since they had all, in coming to power, benefited from the existing system, reintroduced constituencies, with straightforward competition between carefully chosen candidates from different parties. But to avoid the distortions of a pure first past the post system, and give some weight to those voting for losing candidates in any constituency, the proposals allowed for such votes to accumulate nationwide, with each party getting its due proportion of membership in Parliament on the final tally.

The proposals also addressed two problems that had arisen in the recent past, which had contributed immeasurably to the perception that the country was heading towards authoritarianism. The first was the 18^th amendment to the Constitution, which did away with term limits whilst also getting rid of the 17^th amendment which had imposed restrictions on the President’s power to make appointments to vital positions.

The trouble with the 17^th amendment was that it had confused two constitutional dispensations. In the Westminster system, the Head of State generally made such appointments, but on the recommendation of the Prime Minister. There was no formal restraint on the Prime Minister’s power to recommend, and it was unlikely that a Head of State would flout any recommendation. But the very fact that there was a gap, as it were, between choice and appointment made some careful consideration necessary. In addition it provided a defence for a Prime Minister under pressure to appoint favourites, since refuge could be sought in the point that the Head of State might be astonished at a particular choice, and suggest that it be reconsidered.

On a Presidential system, the choice should be that of the elected President, as well as the power to appoint, but there is need for ratification or at least advice prior to appointment to avoid hasty decisions, and decisions not based on full knowledge of the situation. However the 17^th Amendment made the President simply a rubber stamp, the choice being given to a Constitutional Council appointed by Parliament. The particular composition of the Council had been the result of last-minute horse trading, to allow various parties some sort of input, and the initial operations of the Council had seemed partisan, to the extent that President Kumaratunga had simply ignored its recommendations with regard to an Election Commission – so that an individual Elections Commissioner had had to remain in office long past his date of retirement.

The 18^th Amendment took back to the President the right to choose, but specified that nominees should be referred to a Parliamentary Council for its observations. Much was made of the fact that nominees of the government had a majority on the Council, and also that it had only advisory rather than veto powers, but this was to forget that its influence lay in its capacity to raise questions – and, importantly, these did not require confidentiality. Unfortunately the opposition boycotted the Council, and allowed several nominations to go through as to which they could have raised multiple questions that might have forced the Preident to rethink.

With regard to term limits, though it made sense in the immediate context, given what would have been a particularly vicious jockeying in the light of the lame duck syndrome, it had led to dynastic intrigues and disproportionate influence for individuals within the family, given that patronage for all of them seemed assured over an extended future. The President too had failed to use the authority he had derived from what seemed a long tenure in office to pursue essential reforms, and had instead frittered his energies on trying to win a series of elections through populist practices. The Senanayake proposals tackled these problems head on, while also removing the possibility of manoeuvers with regard to election dates that created unfair advantages for an incumbent government. They also got rid of the possibility of a parliamentary vote together with a referendum being allowed to extend the term of Parliament or the President, which Jayewardene had used in 1982 to allow a Parliament elected in 1977, with the massive majority the first past the post system had given him, to go on until 1988.

Executive

2.     President:

No person who has three times contested for the office of President shall be qualified thereafter to contest such office. 

The President shall hold office for a term of 5 years. The Presidential Elections shall be held in the month of January and the President elect shall commence his term of office on the 4th of February 

Remove the power of the President to dissolve Parliament before the end of its term.

3.     Appointments for High Posts and Independent Commissions:

Appointments for High Posts and Independent Commissions shall be appointed by the President on approval of the Senate.

4.     Referendum:

Removal of Article 83(b) that provides space for the approval of a bill to extend the term of office of the President (Article 30 (2)) or the duration of Parliament (Article 62 (2))

For good measure the provision about restricting the unlimited power of appointment by the President was repeated with regard to the Judiciary, with capitalization –

Appointments and Removals:

The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal shall be appointed by the President SUBJECT TO APPROVAL BY THE SENATE 

The second measure that seemed grossly authoritarian was the impeachment of the Chief Justice. She had not been the best choice for the position and the Opposition had raised questions about the appointment and her conduct, after the appointment was made. But, the impeachment was badly handled, and in terms of bizarre provisions in the relevant instruments, the Constitution and the Standing Orders of Parliament. The former simply specified that impeachment should be by procedures laid down by Standing Orders, and the relevant Standing Orders had been hastily formulated when President Jayewardene wanted to put pressure on the Chief Justice he had appointed, one of his private lawyers, who had nevertheless begun to speak out against government excesses.

The leader of the Opposition was to grant that only half the required Standing Order had been set up, and since that had worked and the then Chief Justice had been subdued, the other half had been forgotten. So the provision remained that Parliament appointed a Select Committee to investigate, which involved it acting as both prosecution and judge. In the intervening thirty years it had often been pointed out that these provisions were unjust, and commitments had been made that they should be changed, but nothing had been done about this.

The Select Committee appointed by Parliament made matters worse by behaving in boorish fashion and giving the Chief Justice no time to formulate a defence. It also gave her no notice of witnesses it proposed to call, and summoned them after she had withdrawn, as also the opposition members of the Committee. Rulings by the Courts that the proceedings should be stayed were ignored, and the motion was duly carried, with only a very few members on the government side refusing to vote for the motion.

Though government also realized how unfair the system was, and some members pledged to change it, even while arguing that what had been done was perfectly constitutional and so could not have been avoided, all this was forgotten after the Chief Justice was removed, and Mohan Pieris installed in her place. The Speaker showed his contempt for, or perhaps just his ignorance of, Standing Orders in failing to put my proposals to amend them to Parliament. The Standing Orders themselves mandated that any such proposal to amend should be put to the House and, after being seconded, be referred to the Committee on Standing Orders, but instead the Speaker said he would refer them direct to the Committee. Since he had avoided making clear the mandate Parliament would have bestowed, he failed to summon the Committee. He had failed to do this for four years, and I regret that I was the only Member of that Committee to make repeated requests that the Committee be reconvened. Unfortunately the Opposition Chief Whip who was on the Committee had no understanding of the importance of Standing Orders, while the TNA Representative, Mr Sumanthiran, who had worked assiduously with me to redraft about a quarter of the whole in the first three months of the new Parliament, kept quiet when meetings were suddenly  stopped, perhaps because we had been too efficient. Obviously it made sense for the TNA not to bother too much to increase the effectiveness of Parliamen, since that might have detracted from their main contention that Parliament was incapable of serving the interests of the Tamil people.

The Senanayake proposal was that

The Senate has the sole power to try impeachment.

This moved decision making to a more sober body in which the opposition would have greater weight, while allowing the House, where the impeachment resolution had been brought, to prepare the prosecution. This in fact is the procedure in the Philippines, which had been cited by government to suggest that it was perfectly acceptable for Parliament to bring an impeachment motion and then sit in judgment on this. What was not mentioned was that the Philippine legislature was bicameral, with very distinct responsibilities for each House.

The other area the Senanayake proposals stressed was Local Government. This was a major lacuna in the Constitution, perhaps understandable in that it had been drafted, and then amended to provide for Provincial Councils, in the days when Local Government was not considered statutorily important. This had changed, in India for instance with the creation of Panchayats in the nineties. Thus it was likely that India would have no objection to a similar change in Sri Lanka to bring government closer to the people, and in fact the TNA had made it clear that they would have no objection to such a move, provided this did not take away from the existing powers of Provincial Councils. Vasantha accordingly proposed –

Devolution

1. Nature of the power sharing unit:

The Centre shall share powers with the Provinces and Local Government Bodies, with a Provincial Council established in each province and Local Government Bodies in each division.

Divisions were the smallest unit of administration at which decisions could be made, a process strengthened indeed by a Transfer of Powers Act Premadasa had introduced in the nineties to devolve administrative powers with regard to many day to day activities from the District to the Division. To ensure that administrative and political powers were coterminous, Vasantha specified with regard to the various elected Local Government bodies that

Pradeshiya Sabhas and Urban Councils shall be for one division each, Municipal Councils can have one or more divisions.

This was often the case, but not necessarily so, and it seemed necessary to establish a system that would facilitate coordination. For this purpose the proposals introduced in the Constitution the Coordinating Committees that at present are informal, and are avoided by some Members of Parliament, who chair them and therefore permit meetings only at their own convenience. Instead the proposals specified –

Divisional Coordinating Committees

Divisional Coordinating Committee shall be established by the constitution for every administrative division as coordination mechanisms between the Centre, Provinces and Local Government and the administration, with the participation of; 

a.     Members of the House of Representatives representing the Division (Government + Opposition)
b.     Member of the Provincial Council who represents the respective Division
c.     Chairman of the Local Government authority and the Leader of Opposition of that authority
d.     Divisional Secretary and the District Secretary

The proposals indeed went further in entrenching consultation mechanisms. Though the President had made mention of these in his manifesto, he had done nothing to establish an effective mechanism. When I spoke to him about the strengthening of Local Government he had promised, he made it clear that he left all this now to Basil, and since Basil was perhaps the worst example in his entourage of what he diagnosed but did nothing about, the tendency to cling to all powers and decision making, it was clear that nothing would move unless the question was brought into the public and political discourse.

The Senanayake proposals then made it clear that even the lower level at which the public interacted with the administration, the GN Division which encompassed one or more villages, should be considered an integral part of the governmental process, with entrenched systems of consultation and reporting –

Local Government:

Local authorities shall be recognised by the constitution as a tier of government and shall be given areas of responsibility as specified in the constitution.  

Local Government bodies shall have constitutionally entrenched powers within each province. Every Grama Niladhari Division shall set up Grama Sabhas as consultative mechanisms with regard to issues such as development and social services. The deliberations of such sabhas must be reported to elected and appointed oficials of such divisions who shall report them to the Local Government Authority and the Divisional Secretariat in writing. Such Officials shall take such reports into consideration at Administrative Coordinating Committees and the Divisional Coordinating Committees and report back to Grama Sabhas in writing.

The proposals also made clear the importance of coordination, in asserting the need for the seniormost appointed official in each District as well as in each Division to work with both central government and the Provincial governments –

Decentralisation:

Provincial Chief Secretary shall implement administrative functions in the provincial list via district and divisional secretariat.

Central Government shall implement administrative functions in the reserved list, through the District and Divisional Secretaries

The proposals also did away with the Concurrent List which caused much confusion, because Provinces were largely unwilling to exercise the powers they had in the areas on this list. Though it is sad that they were not willing to take initiatives in these areas, which included university education, it was also understandable that they did not want to be crushed by a resentful Central Government, inasmuch as the Constitution said that, in the event of conflict with regard to legislation in these areas, the will of the Central Government should prevail. There was no provision at all for consultation to reach a compromise. That may have been the ideal solution for a few matters but given the powers it had with regard to National Policy, there was no reason for the Central Government not to allow most of the concurrent list to come under the purview of the Provinces or Local Government bodies. While leaving decisions about details to be sorted out, the proposals simply asserted the principle that

Concurrent list of the present constitution to be done away with as far as possible and the powers will be distributed between the Province, the Centre and Local Government

With such comprehensive but simple proposals at hand, it is a pity the President has not thought seriously of reform. Recent events however suggest that he has realized he simply cannot go on as was the case in the last four years. The attempt to avoid an internal inquiry, or to do a cover job with neither transparency nor credibility, has collapsed, with the appointment of international advisers to a Commission with a mandate to look into possible war crimes. Gratuitous insults to India have been reined in, with the Ministry of Defence apologizing for carrying yet another article by a chauvinist writer who is seen as a heroine for hitting out at everyone in sight with no understanding apparently that Sri Lanka is a multi-ethnic society and the President must work on behalf of the nation as a whole. The lack of productive investment has become a worry, as has the chaos in the tourism industry, with no coherent planning to broaden the range of services on offer. The massive amounts allocated to government members of Parliament goes hand in hand with difficulties about paying salaries and pensions. And the last Provincial Council election showed that, though the President is still the most popular politician in the country, the magic is waning.

Given his skills and the range of affection he commands, he would be the best proponent of reforms. But he needs to act soon, if the unique opportunity he created through the defeat of the LTTE is not to be squandered.