By S. I. Keethaponcalan –
Dr S.I. Keethaponcalan
The new Sri Lankan government has released its initial ideas for constitutional reform. This article highlights and discusses some of the salient features of the document published in Sri Lankan media.
President Maithripala Sirisena and the new government won the last presidential election promising to address or resolve many of the sociopolitical problems that proliferated in the postwar period. Corruption and abuse of power were some of these issues. However, the fundamental problem was the rapid erosion of democracy in the country. Some of the structural changes that were introduced in this period centralized power in the hands of a few and threatened the very existence of democratic institutions. Some, not without reason, believed that the country could dip into a full-blown dictatorship. Consequently, reinforcing democracy through constitutional reform shaped the main electoral slogan of President Sirisena’s alliance.
Constitutional Council
It is, therefore, not surprising that the present proposals entail several provisions to promote democracy. One of the main ideas is the reinstatement of the Constitutional Council (CC) and Independent Commissions (ICs). The original suggestions to create a CC and ICs were formalized in the Memorandum of Understanding between the People’s Alliance (PA) headed by President Kumaratunga and the Janatha Vimukthi Peramuna in 2001. They were institutionalized through the 17th Amendment to the constitution in the same year. In addition to the CC, the 17th Amendment also established four ICs. They were (1) the Public Service Commission, (2) the Election Commission, (3) the Judicial Service Commission, and (4) the Police Commission. The CC and ICs curtailed the president’s powers drastically. The 17th Amendment, if implemented properly, had the potential to undercut the very foundation of the executive presidential system introduced in 1978.
President Rajapaksa’s government repealed the 17th Amendment through the introduction of the 18th Amendment to the constitution in 2010. The present proposals seek to reinstate the CC and ICs with some modifications. The changes suggested are aimed at accommodating diversity and expertise that exist within the country and addressing some of the implementation issues faced in the past. This provision certainly will dilute powers of the president and strengthen elected representatives in parliament.
Right to Information
In line with the idea of reinforcing democracy, the present document offers a proposal to transform the right to information (RTI) into a fundamental right provided by the constitution. RTI is increasingly seen as an important tool for community participation in governance. It provides citizens the opportunity to seek and legally obtain information from, for example, public institutions. Ever since India introduced The Right to Information Act in 2005, the slogan has been growing in popularity in Sri Lanka as well.
One of the personalities who advocated the change in Sri Lanka was the present minister in charge of Public Administration, Minister Karu Jayasuriya. He probably was behind this proposed change. The proposal states that the right will be restricted on issues of national security, territorial integrity and public safety. This is understandable given the fact that Sri Lanka is emerging from a separatist war, which ended in 2009.
Executive Presidency?
The most significant and fundamental aspects of the proposals are the changes proposed to the executive presidential system. If endorsed, these proposals will transform Sri Lanka into a parliamentary democracy without openly declaring it. The proposals, while curtailing powers of the president, seek to strengthen the powers of the prime minister. The proposals state “the President will be the Head of State, the Head of the Executive and the Commander in Chief of the armed forces. The President shall always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister.” They also state “the Prime Minister will be the Head of the Government.”
These provisions suggest that the government wants to revert to the parliamentary system of governance, which existed in Sri Lanka until 1978. This notion is further reinforced by the fact that the president will retain powers and duties conferred by Article 33 of the present constitution. These are ceremonial arrangements such as the power to make the government policy statement and to preside over state ceremonies. Therefore, the constitutional changes proposed will transform the president into a ceremonial head.
Election
The problem, however, is that the mode of election of the president will remain the same. Decision on this matter is left to the next parliament. Currently the president is elected directly by the people. Until the constitution is altered by a future parliament the people will elect the president in a direct vote. Why should a ceremonial president be elected directly by the people? This is unnecessary and costly. This provision could also lead to conflicts between the government and the president in the future if they come from different parties and have hostile relations. Both could assume that they have the power to govern as both are elected directly by the people.
It is not clear why the government is not proposing to change the mode of election. One possible reason is that amending the mode of election of the president may warrant a national referendum because it is one of the entrenched clauses of the constitution. The government is not keen to go for a referendum immediately. A referendum at this point in time may delay the proposed changes.
Ceremonial presidents generally are not elected directly by the people. For example, the president under the First Republican Constitution (1972) was nominated by the prime minster. In India, the president, who is a nominal head, is elected by an electoral college consisting of members of parliament and state legislative assemblies.
In order to avoid instability, render clarity to the constitutional reform process and avoid unnecessary cost, the government must revisit and reconsider this provision. If the real intention is to transform the system into a parliamentary form of government, an indirect form of election, preferably an electoral college, may be considered.
Removal
Another noteworthy aspect is the proposed mode of removal of the president from office. According to the present proposals, it will require only a no-confidence motion approved in the national legislature with a two-thirds majority to remove the president. The current constitutional requirement of impeachment will be removed. Some commentators have already questioned this arrangement on the argument that the president could be removed easily if a two-thirds majority is the only requirement. This would become a problem if the executive presidency will remain after the constitution is amended. The very essence of the proposal does not suggest that executive presidency will stay.
A ceremonial president, on the other hand, could be removed without an arduous process. Here again, the government is borrowing from the First Republican Constitution. This constitution prescribed much easier ways to remove the president, one of which was a no-confidence motion with a two-thirds majority. The spirit of the present proposal does not suggest that removal of the impeachment provisions is a problem because the executive presidency will not be retained.
Political Culture
The shift from the executive presidency to a parliamentary form of government has the potential to ease the pressure on democratic institutions of the country. Nevertheless, this alone will not resolve the problem of democratic deficiencies. It is true that introduction of the executive presidential system paved the way for serious centralization of power and erosion of democratic values in the country. However, the slide started under a parliamentary system. Issues such as authoritarianism and abuse of power existed even in the early and mid-1970s. A true democratization process requires reform of the political culture as well.
*Dr. S. I. Keethaponcalan is Chair of the Conflict Resolution Department, Salisbury University, Maryland
audu / February 14, 2015
sir
i wonder if the office holder and present government will go ahead with it as they have it all now and it will be surprising if the holder of the most powerful office in the country will willingly give up his post. if he does so its qudos to him.
on the other hand will the opposition allow his? does the proposals require 2/3 votes or a simple majority and will it pass the parliamentary procedures.
whatever the right or wrong of changing the chief justice the government has not come out of it smelling of roses and the factions up north are playing up again
time for real action and to step away from chaos and to unity regardless of former presidents … all of them
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Sirisena Yatawara / February 14, 2015
Until our nation, that national security threaten by TNA Tamil politics and hidden LTTE terror politics is danger that survival peace, stability and security cannot no lager exist an Island.
By and large Muslim Congress which affiliated Jihadist of Extremist Muslim terrorism has surface Sri lanka, recently in East and many parts of Colombo been undermine independence and security of country.
Such politically moribund environment existence of due to the that TNA and Muslim Congress are anti-establishment political parties functions against Republic existences; security, stability and peace has been totally evaporated by dreams of Tamil and Muslim of AVARICE of Separatists of Tamil & Muslims politics.
They seek immediately split our nation into pieces by newly proposed so-called Genocide proposal by North Council CM of Wignashariam.
In fact LTTE secrete activities inside and outside island & JVP anarchist politics in South come into being in national politics which undermined Democratization and constitutional Reform in
Sri lanka.
The so-called consensus and deliberation on constitutional reforms and ‘good governances & Rule of law’ by ruling parties no vision to be back to the political future of democratization norms. Ruling parties are totally blind to be eliminated evils of negative side of governances of democracy .
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aluthgama namal / February 14, 2015
Is this English or Sinlish or Chinglish with a little Chinese sauce?
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Sylvia Haik / February 14, 2015
Sirisena Yatawara, thankfully your paranoia belonged to the BBS and the Rajapakses and both hopefully kicked into oblivion. For us all to live in peace and harmony, we should trust the other communities are aiming for the same objectives, or at least give it a chance, without throwing away that opportunity without consideration. If everybody had your attitude we would be living with a lifetime of conflicts and nobody wins.
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Singham / February 14, 2015
Much more nuanced analysis than Dayan’s. Good work.
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Dr Dayan Jayatilleka / February 14, 2015
An excellent piece! This is good political science indeed.
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Mallaiyuran / February 14, 2015
“An excellent piece! This is good political science indeed.” May be so Dhayan. But “Eaddu suraikkaai karikku uthavaathu”. Picture of bottle gourd not good enough for cooking.
The usual Sinhala Intellectual protection mechanism designed from the time of 1948.
The motive of the change is very Smart Patriotic Sinhala Intellectualism. If the Executive president selection has Tamils contribution and if he attempt to discharged his obligation, the Executive Prime Minister, who already safe guarded by JR’s proportional election system will prevail(that was an important election system done after Amirthalingam became Opposition Leader. If the 150,000 has to be killed in the North, the President with the arms and defense ministry will prevail. This correction is not being done to make the system to stay by rule of law. This is a correction to protect from TNA’s influence that exsisted in the last election.
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sinhalese buddhist / February 14, 2015
Thank you for this analysis of the proposals. I agree with your overall assessment that in order to truly democratize the nation the political culture needs to change. I would go a step further and say that the reason the political culture is corrupt with nepotism, cronyisn and communalism is because the society as a whole is not free of these vices.
Sri Lankans of all ethnic and social backgrounds need to take a closer look at how they operate in their personal lives and seek to democratize that. We are so class, race and family background-consious, to the extent that we make light of one’s innate merit.
If we promote authentic meritocracy, I believe, most of our political problems will start to dissipate.
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Seena / February 14, 2015
Keetha,
You totally misunderstood,
“Why should a ceremonial president be elected directly by the people? This is unnecessary and costly. This provision could also lead to conflicts between the government and the president in the future if they come from different parties and have hostile relations. Both could assume that they have the power to govern as both are elected directly by the people.”
You should learn well before you write………
Talking past is not a constructive solution for the current issues….
Still your writing seems more ethno nationalistic. Hope you will learn things.
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ROGER / February 14, 2015
you donot make any sense. you just want to show off…keep quiet
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Varatharaja Perumal / February 14, 2015
Dear GeethaPoncalan
I completely agree with your writing in respect of the President who is going to act, in his executive function, always on the advice of the Prime Minister, after the proposed amendment of the Constitution. In fact I am in the same view as I am also trying to writing some of my suggestions to the “amendment makers” of the present Constitution of Sri Lanka. I am also so pleased that my former colleague Dayan Jeyatillega also has commented on your note as “An excellent piece!.This is good political science indeed.” Dear Geethaponcalan, since you are a nonpolitical and not branded intellectual, I wish that you have to contribute progressive and advanced suggestions in each and every point of the future Constitutional making of Sri Lanka so as to ensure that the Constitution of Sri Lanka shall establish true sovereignty of the people and lawful good governance of Sri Lanka and also to translate that the democratic and fundamental rights of the citizens are really assured.
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Sellam / February 14, 2015
Democratization !!!!!
It is a vague word democracy is. What is democracy. There are various forms of democracy. What we are practising is representative democracy.
People vote usually only once in four or five years. They do not vote on any issues. They just elect their representatives who then until the next elections have no obligations by law and little incentives to base their decisions on individual issues on wishes on their electorates. They hardly ever bother to consult them on their stands on various issues. Therefore Legislative bodies composed of such representatives act in dictatorial manner between elections. Similar to what Sampanthan and Sumanthiran did by violating the wishes of the Tamil people by attending the Independent day Celebrations which was boycotted by the Tamils since 1956.
Sri Lanka calls itself representative democracy which is not a true democracy but actually just elected dictatorship. The Tamils are a distinct race in Sri Lanka and elsewhere. If the Tamils want a referendum to determine their fate in Sri Lanka, would the Sinhala Government listen to that voice similar to what happened in UK and in Canada.
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roger / February 15, 2015
Are we sitting on a time bomb?
The proposed constitutional changes bestow the power of appointing the PM on to the President. However, it is not very clear what criteria is going to be used in the selection of the PM, it states “The President shall appoint as Prime Minister the Member of Parliament, who, in his opinion, is most likely to command the confidence of Parliament.” The President uses is power till he appoints the Pm and there after becomes subordinate to the powerful PM.
In the above clause it appears the appointment of the PM is a prerogative of the President. The assumption that follows inevitably is that President Sirisena, in his great indebtedness to RW the President will reappoint him as the PM whatever the election outcomes may be. With all due respect to the incumbent PM, it begs the question whether this is the correct/democratic procedure, in case when the UNP fail to obtain parliamentary majority. This possibility of PM RW being reappointed as PM even without simple majority is not an over simplification or exaggeration in the light of the approach adopted in the appointment of PM and the cabinet of the present new government.
The present government was brought into power by a fragile coalition with a main underlying objective to get rid of Mahinda and his clan from the power base. There were many contentious issues which were not thrashed out fully at the time of Presidential election as the “common enemy” was a worthwhile target to make compromises and work to gather for a common cause. As the “common enemy” is politically a spent force now the cracks within the coalition is starting to show up.
The JVP has always maintained a firm stands on identifying with the coalition to change the power players and dissociating its self from other issues in the agenda. This is probably a stand taken to consolidate its voter base and develop into a formidable alternate political party in the future. The JHU on the other hand was in agreement on various issues but was not in favor of revoking the executive powers of the president fully. TNA and the MC had to support the new coalition due to pressure and preferences of the voters under their wings.
The Colombo Port City issue, lack of progresses in corruption investigations, lack of progress in implementing election promises and excess pruning of presidential powers are brewing in to major confrontational issues amongst the coalition members at present. The TNA namely Sambandan and Sumanthiran by attending the Independence day celebration after almost 50 years of abstinence by the Tamil parties, even without tangible solutions/remedies for the Tamil population has created ripples across Tamil polity. In Addition, the provocative (unnecessary/unwarranted) resolution by the NPC are likely to distance TNA from any possible coalition in the forthcoming GE. Given this scenario in the forthcoming GE all parties are like to go alone.
In a recent interview in the Sirasa TV CBK elaborated on she along with RW planned the common coalition to defeat MR. She mentioned that this is the third time she is intervening to safe SLFP from disaster. During the course of the interview she elaborated on how her father’s party was destroyed MR and his clan and how she is trying to purify and bring back the old glory to the “new face SLFP”. She categorically denied the possibility of her entering active politics again. However, she did not waste the opportunity to project the new face of the SLFP and appeal for support for the success of SLFP in the forthcoming election. Since GBK was not given a prominent role in the party at the last SLFP meeting, it is reported that she has left for the UK.
The SLFP has more versatile and seasoned politicians to put on stage than the UNP. If the SLFP purifies itself, and commit collectively for good governance and clean government (since MR clan is out) SLFP’s mass appeal may improve significantly. A tamed MR or CBK as the election lead for the SLFP campaign may be a worthwhile option to consider.
MR has been a significant personality in the political history of Sri Lanka. He gave the final political leadership to defeat LTTE. The military defeat of the LTTE made MR an idol of sorts amongst the Sinhala Buddhist population who were laboring under a historical fear of threats from the north (including South India) and western interference into the only remaining Sinhala Buddhist land in the world. MR is in away a man who re-established the pride of the Sinhala Nation. This “MR factor” made people to support MR despite of rampant corruption, nepotism and political interference into the judiciary which prevailed during his tenure.
The outcome of the next GE is going to be a crucial factor in deciding the fate of this nation. Going by the previous 3 presidential elections and 2010 GE majority of the electorate were won by the SLFP led UPFA coalition. Even at the last PE majority of the electorates were won by the former president. Even with the assistance of Tamil and Muslim electorates MS could not match up with MR in the number of electorates won. However this time the voting pattern may change as the “MR factor” is out of the equation. While MR is being promoted as the UPFA PM candidate by some political orphans it is unlikely to have any significant impact.
Though the election outcome is difficult to predict this time, it is reasonable to assume that the SLFP has a better chance of obtaining a simple majority in the parliament. The proposed constitutional changes have to be taken in the background of this whole electioneering process and proper consideration needs to be given to avoid unlikely assumptions. Recently we have heard so many contradictory statements from the new government members and the PM has been making statements regarding the future government and constitutional changes without any legal authority to do so.
If constitutional changes are taken too lightly and hurried decisions are made on assumptions, situation might deteriorate and anarchy may dawn on this country.
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Wijaya Wickramaratne / March 10, 2016
I would like to suggest to change the Sinhala and Tamil Translation given for the word ” Public Service in the constitution of Sri Lanaka. In Sinhala it is “rajjiya Sevaya” In Tamil ” arashankaSevai” both are wrong.The meaning of Public is not Rajjiya or Arashnka it should be eitherPodu or Mahajan. In all other places In that manner. Examples. Public Cemetry isnot rajjiya susana Bumiya it is podu susana Bumiya. In Tamil it isnot Arashnks maithanam. It ispodu maithanam.Same way public grounds is podu kreedanaganaya. not rajjiya Kreedanganaya.In Tamil notarashanka Mayanam it ispoduMayanam. As in local lanvages we mention itas Government Serviceall public Officers thinkthat theyare appointed by the government,They are paid bythe government and so they are responciblenotto the publicbuttothegovernment.Sofinaly thedo not try to satisfythe public. They satsfy onlythegovernment.Soplease consider thei serious issueand change thes translations in the constitutio.
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Wijaya Wickramaratne / March 10, 2016
I would like to suggest to change the Sinhala and Tamil Translation given for the word ” Public Service in the constitution of Sri Lanaka. In Sinhala it is “rajjiya Sevaya” In Tamil ” arashankaSevai” both are wrong.The meaning of Public is not Rajjiya or Arashnka it should be eitherPodu or Mahajana. In all other places In that manner. Examples. Public Cemetry is not rajjiya susana Bumiya it is podu susana Bumiya. In Tamil it is not Arashnks maithanam. It ispodu maithanam.Same way public grounds is podu kreedanaganaya. not rajjiya Kreedanganaya.In Tamil not arashanka Mayanam it is podu Mayanam. As in local languages we mention it as Government Service all public Officers think that they are appointed by the government,They are paid by the government and so they are responcible not to the public bu to the government.So finaly they do not try to satisfy the public. They satisfy only the government. So please consider this serious issue and change the translations in the constitution.
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