By Dayan Jayatilleka –

Dr. Dayan Jayatilleka

“Sovereign is he who decides on the exception”– Carl Schmitt

The proposed changes to the Constitution entitled ‘Discussion Paper on Constitutional Reforms’ have both good and bad aspects, of which the bad clearly outweigh the good, since they are on matters of grave strategic national importance.

What is good in the draft proposals are the changes pertaining to

• The Independent Commissions
• The Office of the Auditor General
• Guarantee of the Right to Information

It is ironic that some members of the present government enthusiastically supported the scrapping of the very decent 17^th amendment and the introduction of the 18^th. No matter.

Of grave concern are matters relating to fundamental questions of power and power relations. These are to do with the basic architecture of the state and will if implemented, change the workings of Sri Lanka’s political system in the most dramatic and negative manner.

It is difficult to identify the sense in which the Presidency remains an executive Presidency under the Draft proposals; it is difficult to see in which precise sense the Presidency wields executive power, when it has to act always and only ( with a single exception) on the advice of the Prime Minister. It is difficult to see in which sense the ‘reformed’ Presidency will not be a largely ceremonial or nominal one. It is almost impossible not to notice that the executive Presidency would have been pretty much abolished, though it will be by a process of mummification.

• A Sovereign Prime Minister

If these proposals are implemented the final authority in Sri Lanka will become the Prime Minister, not the President who is elected by the people of the country as a whole. I say this because the President will not even have discretionary power and will have to act only on the advice of the Prime Minister. Even a Minister designated by the Prime Minister, will have more power than the President because the President shall have to “always” act on the advice of either the Prime minister or a Minister designated by him (except in the matter of the appointment of the PM). The draft says that “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 or of such other Minister as has been authorized by the Prime Minister.” I emphasize the term “shall always” which imposes upon the President the imperative to act only on the advice of the PM or the latter’s proxy. Therefore the elected President will have no autonomy, still less be the agency of sovereignty.

If the President must “always” act only on the advice of the Prime Minister, then the Prime Minister has veto power over Presidential decisions. As the UN Security Council shows, those who wield a veto are the most powerful in the system. The Prime Minister is, in effect, placed above the President and wields more power than the President. A blow is struck at the very basis of the franchise because the President is elected by the people as a whole and any mandatory truncation or restriction on him, which moreover empowers the Prime Minister with greater and higher decision making authority, subverts the franchise and the sovereignty of the people. This is a traducing of the entrenched clauses of the Constitution and must, arguably be submitted for a nationwide referendum.

• Ministry of Defence

The ‘hard drive’ the very core of state power is the Ministry of Defence. In the post-Independence Constitutions of Ceylon/Sri Lanka, the most important single post, be it that of Prime Minister or that of President came with the portfolio of Defense. Thus Prime Minister Sirimavo Bandaranaike was also Minister of Defense and External Affairs, just as in the 1978 Constitution, the President was mandatorily the Minister of Defence.

In the draft proposals presented by– or to– President Sirisena, the President does not mandatorily hold the portfolio of Defense, with the sole (provisional) exception being the present President. As is well known, in most countries with an elected President, it is the President who is the Minister of Defense and this is not limited to any one President.

It is different in the US because the Cabinet is not drawn from the legislature, which is to say that no other practicing politician with an electoral /legislative base is given the Secretaryship of Defense. If in Sri Lanka, the post of Minister of Defense is vested in a political figure other than the elected President, he/she will easily rival the President as a center of power.

• Presidential Prerogatives

Things get worse as we move along. According to the draft proposals the President cannot act except in choosing the Prime Minister, other than on the advice of the Prime Minister or a Minister designated by the Prime Minister. “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 or of such other Minister as has been authorized by the Prime Minister.” Thus the President is rendered a prisoner of the Prime Minister.

• Prime Minister as Head of Government 

The draft proposals mention that the Prime Minister is the Head of Government. This is a sharp departure not only from the Second Republican Constitution of Sri Lanka but also from elected Presidencies the world over, in which the President is both Head of State and Head of Government.

By removing the post of Head of Government from the elected president, the Draft proposals devalue the franchise of the people and popular sovereignty, because the function and role of Head of Government is removed from the post which rests on the majority vote of the country taken as a single unit and vests it instead in the office occupied by one who is elected from a far more restricted, narrower and far less representative geographic base.

• Presidential Immunity Provisions

The Draft says “Presidential immunity does not extend to acts or omissions of the President in his official capacity.” If so, what does Presidential immunity extend to? Acts of the president in his or her private capacity? Surely not.

The removal of Presidential immunity for acts committed in the official capacity as President means that any future holder of the office will be very hesitant indeed before he or she goes to war in defense of the state and the citizenry, because any act committed by any officer or soldier can ultimately be laid at the door of the President under the doctrine of command responsibility, and devoid of presidential immunity, he/she can be subject to prosecution. What this does is to pre-emptively paralyze a President in his/her duties to the country in matters of existential danger.

• Removal of the President 

The castration of the President continues with yet another proposal, namely that “The President may be removed by passing a no-confidence motion with a 2/3 majority. Present impeachment provisions will be deleted.”

Thus it will take only a sufficient amount of funds from the Diaspora separatists to put together a two thirds majority for the ouster of a patriotic President elected by the people. The rather more rigid stipulations of the impeachment process were far more of a safeguard of popular and national sovereignty.

If it takes an impeachment process to remove the Chief Justice of the Supreme Court, by what conceivable logic would it be correct to have a far less rigorous process and procedure to remove the elected President?

• Appointment of Deputy Prime Minister 

“The President may also appoint a Deputy Prime Minister on the advice of the Prime Minister.” Not even the choice of Deputy Prime Minister remains a prerogative of the President. Here too he has to act on the advice on Prime Minister. Thus even if an SLFPer is to be appointed Deputy PM, the present leader of the SLFP, President Sirisena, will have to do so on the advice of the Prime Minister. i.e. the leader of the UNP, Mr. Ranil Wickremesinghe.

• Council of State 

The Presidency and indeed the parliament are sought to be further diminished by the appointment of an unelected Council of State, nominated by the Prime Minister and the Leader of the opposition. “The functions of the Council shall be to make recommendations to the President and the Cabinet of Ministers on the implementation of matters contained in the Statement of Government Policy, the adherence to the principles of good governance by all organs of government, Bills immediately upon their publication in the Gazette, proposals for legislation as may be referred by the Cabinet of Ministers and matters of public importance referred to it by the President.”

This will be appointed jointly by the Prime Minister and the Leader of the Opposition with the approval of the Constitutional Council and Chief Ministers. 20 seats shall be apportioned amongst the recognized political parties and “independent groups”. Who decides which groups are independent? Insofar as the Chief Ministers are members of the Council of State and the said Council has a major input into policy and the policy process, the Chief Ministers are placed on a level above the President himself.

Thus state policy is sought to be outsourced to unelected persons or such persons are sought to be made stakeholders of policy in a Politbureau type arrangement that stands above and behind the elected President. This further erodes the power of the franchise and the absolute sovereignty of the people.

• Constitutional Council and Independent Commissions

The appointments to these are to be made jointly by the Prime Minister and the Leader of the Opposition. What happens in the case of disagreement between PM and Leader of Opposition in the matter of the Constitutional council? What happens in the case of a deadlock between the nominees of the PM and the Leader of the Opposition? Who has the final say on this? It is not stipulated that it is the President.

Conclusion 

The Draft Proposals for Constitutional reform are vampiric in character. By draining the life-blood of and disempowering the elected executive President, the proposed Constitutional changes terminally weaken that which the external hegemonic powers and the pro-Western and ethnic sectarian elites find most dangerous, namely popular sovereignty. Instead of an empowered executive President elected from among the whole people, the most powerful post will be that of the Prime Minister elected almost certainly, from cosmopolitan Colombo.

In the end, the rural heartland of Sri Lanka would have provided the soldiers and the dead in the protracted struggle to liberate the country from Tiger fascism and reunify it, while Colombo would have provided the appeasers and vacillators–and regained real power. A recent photograph of the Prime Minister showed his ponytailed erstwhile Media secretary in the background. It was the same gentleman I recall from another photograph years ago as seated as then Prime Minister Wickremesinghe’s representative in the front row of a Pongu Tamil demonstration during the CFA, at which the demonstrators scaled and destroyed the mock-up of the Jaffna High Security Zone. Ranil Wickremesinghe for one has certainly succeeded in ‘Regaining Sri Lanka’.

The way the Constitutional changes work is to set up a new loop and circuit of power: the President cannot act except on the advice of the Prime Minister, and must always act on the latter’s advice. Ranil Wickremesinghe will emerge as Prime Minister after the election. The SLFP will be in Opposition and will be controlled by President Sirisena who is in turn controlled by the constitutionally reinforced Prime Minister and his ally, ex-President Chandrika Bandaranaike Kumaratunga (who sees herself as Buffy the Vampire Slayer). That will be the new power bloc. Any reader of Leonard Woolf’s classic, ‘Village in the Jungle’ known how British colonialism worked through the system of the Ratey Mahattaya and the Village Headman and what kind of characters they usually were. If the Constitutional changes proposed in the draft document go through, Sri Lanka shall return to an approximation of those dark days. The West will control Sri Lanka through the empowered Ranil Wickremesinghe, who will effectively control the disempowered President Sirisena, who will control the SLFP in opposition and will act as a native mask and screen for external control.