24 September, 2020

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Dissolution If Constitutional Amendment Not Passed

By Bandu de Silva

Bandu de Silva

Bandu de Silva

The repeated announcement by the government that the Parliament would be dissolved if the proposed 19th amendment to the Constitution would not be passed brings to my mind a situation that prevailed in Australia when the Menzies government failed in its attempt to get the Communist Party Dissolution Bill passed. Though there was all round support for proscribing the Communist Party including even among sections of the Labour Party (ALP), it was the High Court ruling that the Commonwealth government had no Constitutional powers to bring such legislation that put a damper to the projet.

Frustrated by the Court ruling, Menzies went in for what is called the ‘Double Dissolution,” i.e., the dissolution of both the Parliament and the Senate at the same time. The Liberal Party’s success at the polls in April 1951 saw a determined Menzies going in for a referendum seeking power for a Constitutional amendment enabling the commonwealth government to outlaw the Communist Party which the High Court had clearly said, the Commonwealth did not possess.

In Australia, getting a referendum approved was not an easy task either. It had to receive a ‘yes’ vote not only from the entire national electorate, but also a ‘double majority’. That is a majority in at least four States. That meant the Government required the support of the Opposition Labour Party which was in control of some of the States. The ALP was divided on the issue and the Catholics supporting the ALP came out strongly against the referendum on grounds that the government would get excessive power. The issue for the whole country then was that a ‘yes’ vote would give excessive power to the Commonwealth (read Prime Minister). The referendum failed to receive majority approval finally.

Ranil MaithriA later writer, John Howard, who was the second long term Prime Minister, wrote in his book: The Menzies Era (Harper/Collins, 2014), that” Menzies had been far too complacent, had not campaigned hard enough and had been a slave to didactic legalism in the design of referendum question.” (This was in contrast to Evett, the Labour leader, who out-performed Menzies by taking the issue very seriously despite the inconsistency within his own party.) “The raw politics were that the public supported a ban on the CPA, and that the Bill the Government had put forward to achieve such a ban had been declared invalid under the Constitution – so the Constitution should be changed in order to make the Act valid. If the Government had stuck to that line and nothing more, it might have been succeeded. Instead, it had complicated the issue and given the impression of wanting too much power”.

In my view, the Australia situation provides a lesson to Sri Lanka. As much as there was general expression of support for banning the Communist Party in Australia, there is widely express support in Sri Lanka for the abolition of the executive presidency, some being more favourable to pruning some of the excessive powers which the present Constitution and its amendments have conferred on that office than going for a total abolition. The vagueness or confusion arising from these somewhat varying emphasis need to be clarified clearly. As it was in the Australian situation, there appears to be apprehension that the proposed amendment to the Constitution in Sri Lanka would concentrate excessive power taking away from the President, and conferring on the Prime Minister. “Concentration of too much power” was what the Australians including Members of Parliament representing the Liberal Party itself feared when the Bill for the Dissolution of the Communist Party and later the referendum proposal were presented in a heavily loaded form.

In Sri Lanka, if one was really going for the Westminister model under which there is no primacy but Cabinet responsibility, one has to think seriously about the outcome of the constitutional amendment as it is now proposed. Strictly from a technical sense, one may not see a legal requirement for a referendum to be held on the Constitutional amendment issue, but there are far more fundamental issues involved here. One cannot forget that the Presidential system notwithstanding its inherent defects of over-concentration of power, provided a strong shield in a situation when the country’s security was seriously threatened. This is what Menezies meant when he said: “wars against enemies, either external or internal, cannot be waged by a series of normal judicial process.” Of course, Menzies was reacting against the High Court decision which thwarted the passing of the “Dissolution of the Communist Party” Bill but hidden within it was the necessity to have strong powers in the hands of the government to deal with such situations.

Referendum in Sri Lanka

As the former Constitutional specialist in our Parliament, Dr N.M.Perera who saw the referendum introduced under the JR Jayewardene Constitution remarked: “In general it is recognized that every parliamentary bill on every minor issue need not go through the referendum process. …. Only important bills like amendments to Constitution, and bills on major issues of policy should be subjected to referendum procedure”. The French Constitution, from which we have drawn inspiration, the learned legislator pointed out, stipulated that Constitutional amendment shall become definitive after approval by a referendum, provided that at the request of the President, the amendment is submitted to the joint discussion of the two Houses sitting as a Congress and obtains a majority of three fifths of the votes cast, the amendment need not be subjected to a referendum.

In the case of Sri Lanka, if one interprets this Constitutional Pundit, the President who is the presiding deity over the Cabinet and the Cabinet are agreed with the Prime Minister leading as n the present case, that a bill or any provision of a bill (for the amendment of the Constitution) need not be submitted for a referendum. “Notwithstanding that bills involving amendment of or repeal and replacement, or bills inconsistent with provision of articles appertaining to the people, the State and Sovereignty set out in Chapter I; bills appertaining to Buddhism in Chapter II and Fundamental rights in Chapter III, must be approved by the people at a referendum after they had received not less than a two-thirds majority in Parliament. If such bills do not receive two thirds majority hey stand rejected and need not be subjected to a referendum”.

In the present state of uncertainty surrounding the effects of the proposed Constitutional amendment, the government should not expose itself to charges that nationally important questions pertaining to the “people, State and Sovereignty”, and to Buddhism and Fundamental Rights are decided by a government which has not even being properly constituted through the electorate exercising its rightful mandate at a free election, but through the application of “raw” politics which smacks of greed for power which has become the whole mark of national politics. It is not the raw political power then that should be at stake but the country’s fundamental interests like security and prospects of division arising from a weakening of the government’s ability to take quick and urgent decisions in issues of national importance in a highly divided Parliament. One may even recall the instability France faced when governments fell overnight. It was for that reason that General de Gaulle introduced the Constitution of the 5th Republic.

Surely, the circumstances surrounding the serious challenges that the country faced for near thirty years when to security and sovereignty were threatened to the core, should engage the attention of everyone. It is no secret that the TNA and separatists and even India and others are watching the situation developing whereby the Centre would be weakened. The prudent course to follow if our politicians think in terms of the overall interest of the country, is not to depend on legal niceties and technicalities on the interpretation of the applicability of a referendum but to hold a referendum on the vital issue of Constitutional reform placing the question for a “YES” or “NO” vote on the basic issue of what type of reform of the Constitution is desirable.

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Latest comments

  • 8
    6

    “It is no secret that the TNA and separatists and even India and others are watching the situation developing whereby the Centre would be weakened”

    It is no secret that Mahinda & Co (BBS, Weerawanse, Vasudeva & Dayan Jeyatilake) and China are involved in creating a bloodbath of Tamils in order to bring back dictatorship and take revenge against the people who vote for rule of law and democracy. With the removal of Mahinda, there was a hope for reconciliation among communities and the steps taken by Maithiri to bring back rule of law faces huge challenges. I think Maithiri should keep those presidential powers of the current constitution until the threat for the people and the nation from fundamentalist groups backed by China. The international community and India should provide the necessary security against those criminals who plan to create bloodbath.

    • 0
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      I fully agree with you. It is the puppets of MR who are trying to place impasse on the 19th. Because they have enjoyed the benefit of executive presidency.MR is a shoot politician whose only aim is to be in power for which he made use of race and religion. Even now he has opted the same pattern.Gota manipulated the things via BBS and people of jaathi Hithaisi. If one scrutinise the SC DETERMINATION on 19A they will understand it was the people backing MR have opposed it. The speech made by GL in parliament on the day the SC determination was announced explicitly demonstrate the hypocrisy which has in the domain of MR supporters.Communal is is the only weapon through which MR was in power and now try to come to power.

      Ranil who has been earmarked as an efficient ruler even by his opponents should beware of the situation as he was twice deceived previously once by CBK in 2003 and by MR in 2005. He should in advance announce that parliament will be dissolved before 23rd,if 19A is not passed. Mr Ranil pl do not trust these SLFP er after 23rd they won’t vote after newcomers become eligible for pension

  • 3
    3

    Bandu de Silva –

    Referendum in Sri Lanka

    “As the former Constitutional specialist in our Parliament, Dr N.M.Perera who saw the referendum introduced under the JR Jayewardene Constitution remarked: “In general it is recognized that every parliamentary bill on every minor issue need not go through the referendum process. …. Only important bills like amendments to Constitution, and bills on major issues of policy should be subjected to referendum procedure”.

    The average IQ of a Sri Lankan is 79.

    So, 48.5% of those who Voted for Mahinda Rajapaksa has an IQ of 65.

    So what problem will the referendum solve? At least the voters are not subject to bribes, like the MPs.

    Out of the Current Ministes, 50% were Crooks in mahinda Rajapaksa Regime.

    Therefore, a refendum will make sense, even with a National IQ of 79.

  • 0
    1

    For the rest of the world Sri Lanka is a liability.A producer of wonton mass murder and an an exporter of unwantrd refugees. Why should external powers want the center weaked?

    Learn from Ausyralian forien policy.They were happy to support and strengthen a mass murderer.
    The would rather have the center strengthened.

    your convoluted argument holds no water. It is like the australian gavernment bei g concered about the leaky boats due thier concern over the unwanted arrivals.I gursd you eent thier by plane and would like to see the rest of your country men leave the center strong nation by boat?

  • 1
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    I think President Maithiri should keep the executive powers until he cleans up the mess left by the MR regime.

  • 2
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    SLFP has the numbers to pass the 19th amendment. They do not need the UNP. The SLFP can do the changes to 19th and pass it without UNP.

  • 5
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    The Mahinda Rajapakshes goons who thirst for revenge cannot believe what happened them when they lost power. This group share some common traits. Low IQ as Amarasiri points out, disdain for the law, greed for power and money, hatred of anyone who opposes them especially those who are more educated i.e. high I.Q. particularly leaders such as RW. So this group has trotted out a new excuse for not supporting the 19th amendment which goes like this:- Instead of concentrating power in the executive president the 19th amendment gives it to the PM. Therefore this is a conspiracy hatched by Ranil to become executive PM! because he cannot win the executive presidency! There were two times RW ran for the presidency on the first occasion madam CBK lost an eye just before the election earning her the sympathy vote. Nothing to fault either of the contenders but fate had a hand in this one. On the second occasion he ran for president the election was robbed from him by a cheat with a huge monetery bribe to the LTTE while flailing RW publicly as the candidate most likely to hand Praba his ealam. The venerable Maduluwe Sobitha thero said it best. There is no heavy loading of executive power to the PM in the 19th amendment for the simple reason that the PM is answerable to Parliament and has to make decisions collectively with his cabinet in whose appointment the president plays a role. As the venerable thero said there is no precedent in our history of any of our past prime ministers from D.S. to Sirimavo acting in a dictatorial manner overriding the supremacy of parliament and violating every rule of law even up to the subversion the supreme court in the manner Mahinda Rajapakshe did. So these accusations that the 19th amendment is an attempt by RW to usurp power is a load of crap invented by a bunch of greedy politicians and their supporters who know their number is about to expire. Let the supreme court decide if the 19th warrants a referendum. Either way it should be approved for the sake of the country and its future.

  • 0
    2

    “As it was in the Australian situation, there appears to be apprehension that the proposed amendment to the Constitution in Sri Lanka would concentrate excessive power taking away from the President, and conferring on the Prime Minister.”

    Brilliant article and analysis. This is the situation

  • 1
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    Please allow me to make another simple solution to all these problems, like many others have suggested in this forum before. Let the president use his Executive power, which he is enjoying now, to ban the Rajapakses from getting involved in politics for a period of 10 years at least. This will scare all the Rajapakse stooges to rethink and realize that there is no hope in succeeding in their plans. By the way, the 48.5% who voted for Rajapakse did so due to ignorance. Now that Rajapakses criminal activities are disclosed, I am fairly certain the figure would go down to about 35% or less.

  • 0
    0

    We know the common sense our people use to vote to select a parliament MP. Therefore according to my view if we need an effective results for Constitutional Reforms it is useless to adopt a referendum, since many part of the community are not knowledgeabe to such extent. Earlier we passed extremely important reforms without referundums.If the goal of all the MPs is our country they could come to a consenseus for any important matter. If their personal programmes are considered as more important nothing would progress, they would go in various paths. As I studied in the new 19th amendment President is responsible to the Prime Minister for his assignments. If we are to reduce powers of the elected President what is the intension behind assigning those powers to a person having less people’s power. According to me subjects like Defence, Provicial council, Disaster Management, Finance should be the portfolios of the President. I mean the areas where urgent decisions may be needed or arriving at any particular decision is more important than continuous discussions without a definite decision.The isssues like educational reforms have to be discussed in detail before an effective decision. Those could be collective decisions in the Cabinet.Since President has few ministries directly under him President should be the head of the Caarrive at decions of ministries under him and may be other ministries as relevant to the above nature of decision. I feel Financaill matters should come under the President according to the essential nature. I wrote this since I noted there is an issue President is responsible to the Prime Minister in the proposed amendment. I noted our purpose is not achieved by that amendment and we go for an inferior system.Regarding the amendment that thefuture president should be answerable to the Law, I remembered the serious problems we had recently. I write this since our Honourable President today do not use unnecessary powers to pressurise people. I respect him.When there is a person above the Law, really we had a fear in performing any act even speaking a word weather one would go wrong and would be subjected to a very unfare punishment. really result could not be anticipated. Wether it happens or not in the country when there is such entity or person people have that rational fear if they are not ver confident on the person.It is not healthy at all for the development of a country. People in fear to practice professionalism freely for effective results. I mean this situation to be avoided by the new Constitution. whatever the wording may be. I do not know what is the problem preventing such an important amendment. Another comment is that in case when President vacates his post Speaker or Deputy Speaker is eligibe for the post according to new amendmnt I had access. As I remember earlier it was an Mp who would be appointed on agreement by the Parliament . I feel since it is the Top most post in the hiarachy, when there is particular person eligible for it as substitution there could be allowance for malpractices but when seleted one person selected among MPs there is possibility to select a more suitable person and more transparent.I do not know these changes are there now in the latest version. We could agree vote system and constitution should tally each other since there is inter relatedness, Even if one issue is approved first the other could be agreed secondly since both of them consume time and effort. If required implementation should be simultaneous.I cannot see any reason why one group is stressing these two should be approved simultanoeouly. What i cannot imagine iswho are the persons whose clear goal is the 20 milloin people country.We hope the whole group is orieted for that and they would approve a sensible 19th Amendment meant for 20 million peoplebut not to uphold one or two persons to the level of Gods of our country.

  • 1
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    Under any circumstances the executive powers of the elected President should not be removed completely – but it would be better to prune some provisions of EP to make it more democratic and answerable to people – In the present context removing the Executive Powers of elected President and handing those powers to a selected PM like Ranil is the worst thing that can happen to this country – 19th amendment should be amended accordingly so that the center of power should not be weaken – and should be in the hand of a person who really love this country –

  • 0
    0

    “When it can be said by any country in the world, my poor are happy, neither ignorance nor distress is to be found among them, my jails are empty of prisoners, my streets of beggars, the aged are not in want, the taxes are not oppressive, the rational world is my friend because I am the friend of happiness. When these things can be said, then may that country boast its constitution and government. Independence is my happiness, the world is my country and my religion is to do good.” ― Thomas Paine, Rights of Man

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