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