16 July, 2024

Blog

Election Year Road Map For Constitutional Reforms

By Rajan Philips

Rajan Philips

The hopes for constitutional reforms in the election year are being rekindled by the Collective for Democracy and Rule of Law (CDRL). The Collective has convened a meeting of civil society activists and organizations, and a well-attended meeting was held in Colombo on Wednesday, January 24. A discussion document circulated in advance of the meeting, entitled “Principles and Proposals for Political and Constitutional Reform,” provides a road map for constitutional and political reform in this election year.

The main thrust of the proposals is the restoration of parliamentary democracy with the  abolition of the executive presidency becoming an inevitable adjunct task. The restoration is based on a bicameral legislature, including a House of Representatives and a Senate; a President, who would be the Head of State but not Head of Government, along with a Vice President; a system of power devolution with emphasis on local democracy; and an independent judiciary.

Given the past expediencies of both presidential and parliamentary tyrannies, the new proposals include a number of provisions for providing a healthy balance of power between the different branches of the state. They include electoral reform, a newly constituted Senate, cabinet government based on a cabinet that is cut to size, a Constitutional Council to oversee upper level appointments in the executive, and judicial review of legislation and administrative actions along with the institution of a Constitutional Court. A not unrelated measure involves the significance given to dealing with cross-over MPs.   

Electoral Reform

The most readily implementable part of the new proposals is the electoral reform which is also crucial to restoring parliamentary democracy. The proposals provide for a bicameral legislature comprising a House of Representatives of 200 members and a Senate of 50 members.

Of the 200 members of the House, 130 are to be elected from the old-style territorial constituencies and the simple first-past-the-post system. 60 members are to be allocated to political parties based on proportional representation according to their voting tallies either at the national level or provincial level. The remaining ten seats are to be allocated to political parties who contested the election but have no representation among the 190 members. The ten seats will be allocated to them in proportion to their national vote.

The proposals indicate that appropriate provisions will be made to ‘ensure adequate representation of women, youth and underrepresented’ interest groups.’ Instead, the 60 proportional representation seats could easily be and in fact should be all allocated to women, similar to constitutional arrangements in Bangladesh and in Pakistan.

Although the electoral reform is part of a complete reform package, there is no reason why these changes cannot be implemented by the current parliament, to be in place for the next parliamentary election. That is not a task for the Collective for Democracy and Rule of Law, but the Collective could build public and media pressure to bear on the political parties in parliament and on the aspiring presidential candidates.

If the question of implementing electoral reform here and now were to be put to Anura Kumara Dissanayake, Sajith Premadasa, or His Excellency, President Wickremesinghe, will they risk rejecting it? We will not know unless someone asks them. While at it, why not add the amendment to change the system of electing the Head of State?  Why not have an amendment now by the current parliament that would end the system of direct election and provide for the new parliament to elect the next president as the Head of State but not the Head of Government.

Why go through the trouble and expense of a direct presidential election in September-October if it is going to be the last such election?

Again, it is up to the will of the political leadership and it is not a question of whether or not it can be done. The two changes are certainly doable by the current parliament. They are also implementable within the framework of the current constitution. I cannot see any one of the three presidential candidates publicly rejecting these possibilities if they were put to them in a public forum. Ideally, having all of them together at the same forum.    

Vice President

The proposal to have a Vice President is an interesting segue from JR Jayewardene’s full throttled presidential system without a Vee Pee. JRJ did not to see a political shootout among his ministers vying to become a Vee Pee.  pole. The motivation now is different –  for the purpose of “sharing higher-level political office between ethnic communities” as part of transforming Sri Lanka “as a multi-ethnic and pluralist democracy.” The Vice President is stipulated to be someone from a community other than the community to which the President belongs.

There are enough examples from India where the President and the Vice President have been elected by an electoral college and have provided symbolic and real representation to India’s vastly diverse communities and groups. There will be no coming of age celebrations for Sri Lanka as a modern republican democracy until any and all high posts are equally open to all of its citizens regardless of their ethnic identity. Until then, small steps like the vice presidency should be welcome as notable progress. .    

The Senate

The old senate that was brusquely brushed away even while the Soulbury Constitution was breathing its last, is now back but with a different structure and for wholly different reasons. One would think that that it will not be, to reverse Jennings as well as Colvin, either superfluous by being rubber stamp to the House or mischievous by frustrating the will of the people. Rather, the new Senate could look for its model in what the founders of the US Senate (mostly James Madison) intended it to be – mature, cautious, and deliberative body of sober second thought. And not what the US Senate, and more so the Congress, are turning out to be under the onslaughts of Trump’s Republican Party.   

The new Senate is intended to be an institution for power sharing by ensuring provincial representation, in addition to being a check on the legislative overreach of the House of Representatives.

The Senate is proposed to have fifty members, with each Provincial Council electing five members, at least two of them women; and five members appointed by the President to represent unrepresented or underrepresented interests.

The 45 provincial members are to be elected on the basis of proportional representation within each provincial council, and the five presential appointees are to be nominated by the Prime Minister and the Leader of the Opposition in the House of Representatives.

All Senators are expected to be drawn from those “who have distinguished themselves in public life.” This qualification may not be enough if the Senate is to play the role that is expected of it. The minimum age must be much higher than what it is for a voter or to become an MP. It will not hurt to include educational qualifications along with alternative experiential qualifications. There is no point in having a Senate if it is going to end up with the same calibre of MPs as there are in today’s parliament.

The proposal would seem to provide for all bills to be presented to the Senate for review and feedback, but not to vote on. The exceptions would be bills that may have implications for provincial powers, and they will require passage in the Senate with at least two members from each province voting in favour. This is the intended safeguard for provincial powers and functions from being diluted or usurped by the central government. Finally, the Senate will have the same role as the House in Constitutional Amendments – with two-thirds majority required both in the House and the Senate. No more referendums!

Two Anomalies?

In what seems to be an anomaly, the President is identified as the “repository of the executive power of the people,” even after restoring parliamentary democracy. This seems to be a textual hangover from the JRJ constitution, because the Prime Minister is now going to be the Head of Government, and the government is going to be good old Cabinet Government. What is the purpose in identifying a “repository of the executive power” in the new, or restored, system?

The executive power will be exercised by the Cabinet of Ministers who would be answerable only to parliament and not any higher executive. At the same time, the cabinet is to be cut to size literally by the proposal to limit the number of ministers to twenty, and the number of state ministers also to twenty. DS Senanayake wanted such a limitation in the Soulbury Constitution but the British advised against it. It was a well intended advice at that time, but now a reduced cabinet size has become better late than never.

Interestingly and laudably, at least five of the twenty ministers ought to be women, and at least another five ought to belong to communities other than the majority community. Similar distribution is also proposed for state ministers. Shades of fifty-fifty, you would think. Even cabinet federalism, recalling that the AJ Wilson used to say that DS Senanayake “federalized his cabinet.”

The proposal to retain the existing Constitutional Council needs second thoughts, especially in light of the proposal to have a new Senate. Inasmuch as the Constitutional Council idea was a response to “civil society pressure to curb the excessive powers of the executive presidency,” why retain it after abolishing the executive presidency and restoring cabinet government that is answerable to parliament?

As the new parliament is going to be bicameral with a new Senate comprising distinguished citizens, it would be redundant to have a Constitutional Council to duplicate the role that should and could be performed by the Senate. If at all, a Constitutional Council can be a temporary arrangement until the proposed constitutional changes are implemented and the new Senate is established and is functioning. At that point, the Constitutional Council could be terminated.

*To be continued

Print Friendly, PDF & Email

Latest comments

  • 4
    2

    I’d argue against such constitutional changes that transfer executive powers from president to a bicameral legislature.
    .
    Look at the calibre of people in our parliament. I am assuming that we don’t have people with leadership qualities in enough numbers even to fill the 225 seats of the Parliament, especially provincially. One reason why all the crooks, thugs and murderers end up in the Parliament.
    .
    Another reason is the absence of democratic and vetting processes in the contests for leadership in most political parties that are driven by powerful families and their crony personalities.
    .
    In such a context it wouldn’t be wise to let the country be led by Parliament. That may be suitable for countries with mature democracies/leaders who take responsibility for their actions unlike in Sri Lanka.
    .
    It would be more easier to find a single person who is capable of running the country as an executive President.
    .
    What we need is a system of checks and balances so that the President doesn’t abuse his power or arbitrarly execute powers vested on him by the constitution/people. This includes the elected members of the legislature.
    .
    Administrative costs are another thing to be considered.

  • 6
    1

    Other than clothes/attire ……. they offer nothing much else.

    Why do all Lankan pols have a penchant for collarless shirts ……… do them give them stature? ……. More than a collarless shirt Ranil needs a postpartum support belt to keep his pot-belly in ……. if he’s to get any traction with the voters.

    I too wanted to join in and bought a collarless shirt from Barefoot ……. I come out looking like the local church padre …….. might as well post it to Sinhala_Man to go sermonizing in …….. it’ll reach his ankles ……. no need for a bottom …… he’ll measure up to the NPP stalwarts …….. final he’ll belong ……..

    • 7
      1

      nimal fernando

      “I come out looking like the local church padre “

      Please don’t wear it in Hindia or Sri Lanka, the Hindutva murderous rage has already started in the north, thanks to Rama’s blessing, Modi’s children are very active these days, ….. it won’t take much time or effort a spark a Sinhala/Buddhist outrage of everything, …… Aiyars, Mullahs, and Padres will be the first target, or their HOLY PLACES of Worship, …..

      Asgiriya may appreciate fresh riots as he wouldn’t mind a Hitler to reign on people with iron fist,……

      Have a fun filled holiday.

    • 0
      1

      I think all you guys should desist from counting your chickens before they are hatched.

      The ground reality is …….. Ranil is using any and all means to stay in power. ……. What measures will you take if he doesn’t hold elections? Have you got a backup plan?

      Ranil is not playing all his dirty tricks now ……. to hold elections in October and just fade into oblivion ……..

      That’s where people should be focused on.


      The Underhand schemes and deals of the Americans are unknown to the Lankan public ……….. I feel they are aiding and abetting him, if not Ranil wouldn’t be so bold and gung ho: by nature he is a whimpering coward. ……… Do you believe Mahinda was willing to go when he lost ……. until John Kerry had a little chat with him behind the scenes. ……….. Don’t discount what the American embassy in Colombo is up to ………

      • 2
        0

        nimal fernando

        Before you leave this island paradise please have a look at this report “GOTABAYA RAJAPAKSA’S WAR TIME ROLE JAN 2024 “
        https://itjpsl.com/assets/29-English_Gotabaya-Rajapaksas-war-time-role-Jan-2024_Final_26.01.2024_compressed.pdf

        Please also refer to page no 23 where you will find the names of important army officers who have served in the army, all been alleged to have committed war crimes during JVP uprising(?) as well as during which time Velupillai was suffering from mental illness, actually murderous rage.

        By the way some of the officers who committed war crimes have either dead or retired. Do you think you could have a word with Cyril Ramaphosa persuading him to take all those who have committed war crimes including IPKF in Sri Lanka between 1971 and 2009 to ICJ.

        Thanks.

        • 2
          0

          Thanks for the link, Native.

          I feel the old guard has done their damage ……. and now it’s time for them to move out and let the young take over …… I’m thinking of this verse from a song ……….

          Come mothers and fathers
          Throughout the land
          And don’t criticize
          What you can’t understand
          Your sons and your daughters
          Are beyond your command
          Your old road is rapidly agin’
          Please get out of the new one
          If you can’t lend your hand
          For the times they are a-changin’

  • 6
    0

    Constitutional reforms are important for good governance.
    But this is not the timing for constitutional reform
    This is an election year and reforms should be done by newly elected government , not the current corrupted thieves in the parliament.
    Drowning thieves now want to even to hold on to the floating plant.
    Constitutional changes Ranil wants is to drag on current system for few more months expecting some miracle to happen and safeguard them.
    Vote is already cast. We are waiting for the correct time for it to published it on the paper.

    • 5
      0

      I agree, absolutely, Jack.
      .
      The proposals suggested by Rajan Philips are quite good. Let them be published, and let’s persuade the more honest political parties espouse them in their election campaigns.
      .
      In that way get a mandate from the people, and implement in the next lot of “government-changing elections” which will be around the year 2030.
      .
      the legislation must be passed within a year or two after fresh faces are seen as President, and as MPs. That is o say by 2026. At the moment the average person is saying, “get rid of all 225”; rather unfair by about 25 decent people who are still there.
      .
      If passed now, for decades to come, we’ll be be saying that the Constitution was passed by a set of rogues.
      .
      Panini Edirisinhe (NIC 483111444V)

    • 2
      0

      Evil said he would announce more about his candidacy in April. In March, the IMF was supposed to pay their 2nd due for Langkang. Last year they took too long to approve it. So, in December Evil blasted the IMF in DM, the German TV. Shaken USAID president came running to him and promised that all that he wanted would be given. But the US has learned the Aappa Diplomacy cooking in a Colombo cooking class. So, US behaved just like Appe Aanduwa on their Pacts and IMF just gave low level staff approval for the 2nd tranche for March 2024. So, Evil postponed the submittal of loan restructure to April. The IMF postponed board approval to April. So now Mr. Lalavinothan Nandalala has said he will finalize his loan restructuring in June 2024 (after Evil announce his candidacy on behalf of the USA). Now evil has postponed his finalization of election candidacy after listening to IMF’s Board’s word in April.

    • 1
      0

      The message here for President Biden is “Mr. President you cannot copy me, Ah no Plagiarism! Pay my loan before I announce my candidacy or find your own candidate to keep UNP-SLFP Union in power, no way it will me!”. Old Rowdy would not allow any of his troopers to replace Evil Emperor’s candidacy. He has had everything with Hitler, who adamantly went for the election after Old Rowdy King has tried to prevent him. Now President Biden must send the USAID president back again to Evil, probably this time it must be in Colombo because Mohammad is no longer going to the Mountain. This is why we warned American diplomats not to learn any cooking from Langkang cooks.

  • 4
    0

    This is NOT the time to make any changes. Let the political parties that contest the upcoming elections, both Parliament and Presidential submit to the voters and state a comprehensive “Policy/Plan” for governing the country. The “Policy and Work Plan” of the winning political party must be made a “Legal Agreement” with voters and any citizen – a Voter must have the RIGHT to challenge the Political Authority for any “Changes” that would be made DETRIMENTAL to Public Interests. For this type of CHALLENGES, a separate Constitutional Court must be established to hear and deliver a judgment that would be binding on the Political Authority in power.

    We have experienced both the “SENATE” and the “EXECUTIVE PRESIDENCY” enough. That enough is enough and no more experimenting with the type of politicians we have.

    To solve the problem of .”Vagabonds” entering the political authority, the political party must be made to account and responsible for every nomination. All political representatives in any Legislative arm must be made a VOLUNTARY position and referred to as HONORARY. A living ALLOWANCE can be made with limited perks that would be WITHDRAWN immediately ceasing to be a member of such bodies..A RECALL system must be established. This needs a complete change of the “POLITICAL CULTURE”. That must be spelled out in the “Manifesto”. for approval by the voter
    tbc….

  • 2
    0

    The Constitutional Reforms are needed in order to disqualify Thieves Thugs Uncivilised uncouth SL citizens to contest ANY type of Elections.
    The Senate is unnecessary if we could SELECT good ones to the Parliament.
    The number of Provincial Councils/ Federal States can be reduced to 5 in order to reduce Government expenses. RW & other leaders should join the discussion with CDRL. Sensible citizens of SL, want to clean up of those occupying the Parliament.

  • 3
    0

    “The restoration is based on a bicameral legislature, including a House of Representatives and a Senate”
    “House of Representatives of 200 members and a Senate of 50 members”
    Now, this is practically the same thing as a ‘House of Commons’ and a ‘House of Lords’
    The intriguing question is, what will be the outcome if fellows like Wimal Weerawansa, Johnston Fernando, Nimal Lanza, Tissa Kuttiaratchi, Douglas Devananda, Keheliya Rambukwella, Mahindananda Aluthgamage, Channa Jayasumana, Sivanesanthurai Chandrakanthan, Rohitha Abeygoonewardena, Duminda Dissanayake, A.L.M. Athaullah, Nalaka Godahewa and Ali Sabry Raheem find their way into the House of Lords?

  • 3
    1

    continued….. This is a small country with limited resources. Let us cut the coat according to what we have and need. Since Independence, the people have been promised and made to live with “Rice even brought from Moon”. This NONSENSE must STOP. Everyone must be called upon to give his/her best for the upliftment of the country and the philosophy of “Grab” whatever possible must be done away with. Bring up the people to be altruistic and live a simple “Within Means” be established. For that, the Political Authority must live and set an example towards that goal.

    A Delimitation Commission must be set up to determine the number of seats that must match the “Population Strength” and not the petty ideology of “Ethnicity” etc. There shouldn’t be concepts of “Majority” and “Minority” but every CITIZEN is EQUAL and must legally enjoy equal RIGHTS and PREVILEGES. Those “Religious”; “Cultural” and “Ethenic” divergences must be recognized and postered outside “Constitutional” matters and left unhindered to be looked after by respective groups.

    Let us REMEMBER and WORK on the basis of – SMALL IS BEAUTIFUL.

  • 3
    0

    Rajan Philips is a very intelligent, and a very serious writer, but how serious was he when he wrote this article?
    .
    Most of the features that he suggests for the New Constitution are excellent. However, this sentence is surely tongue in cheek:
    .
    “Why go through the trouble and expense of a direct presidential election in September-October if it is going to be the last such election?”
    .
    It must be a warning that Ranil Wickremasinghe will come up with arguments like this to cancel the next election that must be held. What we need are elections that would allow the citizens to change the current rulers, if that be their wish; bring in New Constitutions after that!
    .
    Panini Edirisinhe (NIC 483111444V)

  • 0
    0

    If the Senate is going to have 50 members, the total number of members in the House of Representatives and the Senate should not exceed 200. Further, the total number of Ministers and State Ministers should not exceed 30.

    • 0
      0

      Buddhist1, Can you please really push this thing through to work out in practice

  • 0
    0

    Mr Philips

    ”…I cannot see any one of the three presidential candidates publicly rejecting these possibilities if they were put to them in a public forum. Ideally, having all of them together at the same forum…”
    I thought AKD & the NPP were going to abolish the Presidential system. Anyway, I agree they should be together in a public forum to answer public concerns. Will the electronic media able to organise a televised debate as in the US or UK?
    As for a VP, we already have a bloated cabinet, as well as, past Presidents & politicians who have to supported by the poor public, therefore, its time for a hair cut & strip down the waste that is burdening the citizens.

  • 0
    0

    Pakistan has its election on the 8th of this month and Ex PM Imran Khan and
    his wife have been already rewarded a 14 years prison sentence .

    Bangladesh triumphantly re-elected Shaikh Hasina for another term with no
    opposition challenging her .

    Now , we too are expected to hold an election in a few months , and the habitual
    pattern of showing false kindness on the part of rulers is not yet coming up and
    instead , a new pattern of flexing muscles for a showdown is increasingly
    exhibited mainly by the government . We , experts in copying everything others do
    especially others’ craps in the region , could be heading towards a worst scenario !
    I seriously doubt it very much .

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 5 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.