31 October, 2020

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Is Time Running Out For Constitutional Reform?

By Javid Yusuf

Javid Yusuf

One of the most compelling items on the National Agenda currently is the question of  Constitutional Reform. And the most critical aspect of the Constitutional Reform process  must necessarily be the issue of the Executive Presidency.

After a near 40 year experience with this all powerful institution there is general consensus that the institution must be reformed and the Executive Presidency abolished. Yet there are some  who argue to retain this institution. While there are some who genuinely believe, albeit in the face of evidence to the contrary, that a centralised form of governance is beneficial to the country, the more vocal of the proponents of the Executive Presidency do so with vested interests.

The central premise of the call for the abolishing of the Executive Presidency is based on the need to democratize the structure of the State. Sovereignity in the Sri Lankan Constitution resides in the people and the concept of an all powerful Executive is at complete variance with the people’s sovereignity  as it isolates itself from the sovereign people.

The founder of the 1978 Constitution J.R.  Jayewerdene justified the Executive Presidency on the basis that “it would not be subject to the whims and fancies of Parliament.” Given that Parliament comprises the representatives of the people what this means is that the Institution of  the Executive Presidency is insulated from the will of the people which is therefore the antithesis of democracy.

The dangers of a Presidential form of Government were highlighted by far sighted leaders of this country well before it was  enacted in the 1978 Constitution. Dudley Senanayake opposed  it when it was first suggested. Dr. N.M. Perera  and Dr. Colvin R. de Silva vehemently argued against it and pointed out the negative impact it would have on the country when  the 1978 Constitution was being drafted.

When the 1972 Constitution was being formulated by Mrs. Sirimavo Bandaranaike’s Government, J.R. Jayewerdene  proposed that the Executive Presidency be included in the new Constitution  but  the SLFP Leader vetoed the idea stating that such an institution did not suit Sri Lanka. This despite the fact that she would have been the  first beneficiary of the Executive Presidency which would have clothed her with virtually unlimited powers.

Over three decades after Sri Lanka’s unhappy experience  with the Executive Presidency  the Venerable Maduluwawe Sobitha Thera launched the National Movement for Social Justice and relentlessly campaigned for the abolition of the Executive Presidency. His tireless effort culminated  in the victory of President Maithripala Sirisena at the Presidential Elections of January 8, 2015 whose campaign was primarily based on the platform of aboliishing  the Executive Presidency.

Two and a half years after the change of Government  the Constitution Reform process is in danger of being derailed with still no end in sight. According to the resolution setting up the Constitutional Assembly the next step in the process is for the report of the Steering Committee to be presented to the Constitutional Assembly for debate and discussion. Although it was scheduled to be placed  before the Constitutional Assembly in January this year it has been delayed  reportedly due to the SLFP segment in the Government dragging its feet in submitting its proposals.

The Constitutional Assembly resolution envisages that once the Steering Committee report is discussed in the Consitutional Assembly it will be sent  back to the Steering Committee to incorporate the suggestions made in the debate. Thereafter the Steering Committee will prepare a draft  of the proposed Constitution which will be debated in the Constitutional Assembly. After approval by the Constitutional Assembly the draft will be submitted to the Cabinet and after its approval will thereafter be submitted to Parliament. After  approval  by Parliament  it will inevitably have to be submitted to the people at a referendum.

At the pace at which the Constitution reform process has been moving the above steps will take us at least into the end of next  year. With local Government Elections and Provincial Council Elections scheduled for next year and the election for President (if not abolished) slated for 2019 the chances of success with regard to Constitution making are becoming increasingly remote.

From the noises that the Joint Opposition are making it is crystal clear that they will make every effort to block Constitution reform by raising the bogeys of danger to Budddhism and division of the country. The SLFP segment of the Government too does not have its heart in the process as evidenced by the continued  delay in submitting its proposals. Some of them are determined to protect the Executive Presidency and have openly claimed that President Mathripala Sirisena must listen to the wishes of the SLFP Central Committee even if it meant going against the mandate he received at the January 2015 Election.

A  clear insight into the thinking of the SLFPers in Government can be seen when reading an interview given by Minister S. B. Dissanayake to the Nation newspaper of July 16, 2017.

To the question whether the new  Constitution is not being given priority he says: “ Nothing is happening in this regard. We will put things as told by the Mahanayakes  of the three  Nikayas (sects). As the SLFP it is our decision that nothing in the present Constitution should be changed. However, even though we discuss about a new Constitution our priority is in relation to Electoral system reforms, the 20th  amendment to the Constitution.We voted in favour of the 19th amendment to the Constitution because it was promised  that electoral reforms in the form of the 20th amendment would be brought. Yet to this day the 20th amendment has not been brought. Therefore our priority is the  20th amendment. “

When Minister S. B. Dissanyake stated in his interview  that the next SLFP Presidential candidate would be Mathripala Sirisena it was pointed out to him that President Sirisena had stated that the 2015 Presidential Election would be the only time he would contest for the Presidency. Mr. Dissanayake’s response was interesting:

“He stated such before he took over the Chairmanship of the SLFP. Therefore such is not applicable to us. We are the ones who decide our party’s candidates. It is the party that decides. If the Party decides the President will because he is someone who loves the party and is someone who rose in rank along with the Party. He will not turn his back on the Party’s decision.”

Translated it means that even if the decision of the Party (which essentially means those who supported  Mahinda Rajapaksa at the last Presidential election ) is to go against the Peoples’ mandate , President Sirisena has to oblige.

Further insight into the thinking of SLFPers in Government  is evidenced  by the actions of Ministers Susil Premajayanth and Faiszer Mustapha when they objected to the presence of Dr. Jayampathi Wickremaratne who had been invited to explain the Constitution making  process to the SLFP group in Government a few months ago. Dr. Jayampathi who is leading the process was the best person to dispel any doubts or clarify all matters regarding the process. However taking into consideration the totality of the approach of the SLFP ers in Government the attitude of these two Ministers was not surprising.

Minister Susil Premajayanth had backed Mahinda Rajapaksa at the last Presidential Elections while Faiszer Mustapha had spent several days in Singapore at the tail end of the campaign and returned  and crossed over a few days before the Elections only after making sure that the wind was blowing  in favour of Maithripala Sirisena and that he was now  the front runner. Not surprisingly therefore both of them therefore have no commitment or loyalty to President Sirisena’s pledges to the country.

It is therefore paramount  that the government moves to fast track  the Constitutional  Reform process and without any further delay  produce a draft  which can be discussed and adopted before the end of the year. Otherwise  this too may end up as another of  Sri Lanka’s long list of lost opportunities.

If one looks back at our past experiences of Constitution making one will notice a clear pattern.  In the two previous processes that succeeded the 1972 Constitution was enacted within two years of the United Front  Government assuming office while the 1978 Constitution was enacted one year of the UNP  assuming office in 1977.

The Constitution reform process that failed was Chandrika Bandaranaike Kumaratunge’s process  which started in 1994 and was aborted in 2000 despite a concurrent and vigorous  media campaign to educate the masses  which is sadly lacking in the case of the present Government.

The bright spot in the present Constitutional reform process is the flexibility of the Tamil National Alliance and the principled stand of the Janatha Vimukthi Peramuna who despite their differences with the Government  have committed to support the process. The silence of the Muslim Parties is  deafening with not a word to indicate their stand on the subject or to influence the process.

The Government including the President and Prime Minister need to act fast to achieve the goals of the Yahapalanaya administration with special emphasis on  the abolition of  the Executive presidency, Electoral reforms and devolution of power. Any further delay and failure to take decisive action  may result in the ground slipping away from under their feet and the National Agenda being undermined.

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Latest comments

  • 3
    2

    I am afraid that time has run out already.
    The executive presidency should go, but not to put in the President’s place a nearly all powerful Prime Minister. Without devolution of power the parliament can be as dictatorial as the President, as MPs can be bought in bulk at discount rates. There is too much distrust between the partners, so that the executive presidency will remain put for a long while.
    The real issue for the two big parties concerned increasing their representation at the expense of smaller parties. But their strategies are at variance, and hence their disagreement.
    *
    As for the TNA, it is pretty much irrelevant now. It had/has/will not have any say in the outcome on the national question.
    *
    Can someone please educate me on the goals of the Yahapalanaya?

  • 3
    3

    Why do you want executive presidency abolished and a new constitution. Do you also want a new homeland here or you want the whole land as homeland eventually ?

    • 0
      0

      Jim Softy

      So you agree JR Jayuawardene was right when the entire opposition went campaigning against Executive Presidency. What the country sees today the with
      economy and development are all JRJ’s brain child. SLFP protested even when we had TV for the first time from 1979!

      SLFP should acknowledge this fact if they have some decency. in their blood, and give due credit where it is due! They should accept they were wrong to oppose establishment of the Executive Presidency!

  • 1
    0

    Good read. This is no different from the pledge to fight corruption, which is all but forgotten. The promise to bring constitutional reforms will no doubt be repeated again during the next Presidential and Parliamentary elections for the benefit of us gullible voters. Can’t see any major reforms coming through.

  • 3
    0

    Sri lanka needs electoral reforms, constitutional amendments to make way for electoral reforms, and nothing else. Even the newcomers or the trying tobe politicians are looking for ways to fatten them. susil Premjayanth has some corruption accusations. It says, Faiser musthapa is also collecting lands with false deeds. Some wants a new constitution, more political powers to provincial councils, democracy where every one has one except the majority, Tamils only ethnic enclaves, wahabis only ethnic enclaves, probably rishas Bathiuddin is looking for shiites only enclave in Mannar and wilpattu. In the mean time, they also want immunity from prosecution and now even im munity from questioning by the AG department what a way to run the country.

  • 1
    0

    Normal people don’t ask for a new constitution and certainly there is no need for a new constitution.

    Remove the 13th Amendment !!!!!! and Implement the 6th Amendment!!!!!!!!!!

    Executive presidency is here to stay.
    Sri Lanka Parliament is weak because of too many ethnic minority representation.

    Promise of a new Constitution is a political gimmick.

    The members of Constitutional Assembly are washed -up ,unpatriotic Marxist drunkards.

    • 1
      0

      Even Blind Freddy would know the new constitution is backed by Illamist, GTF, the West and Sinhala Koti

  • 3
    0

    Hon. Prime Minister,

    Your uncle made a big blunder by accepting the 13th Amendment imposed by India. You can undo the mistake done by your uncle by introducing a new constitution scraping Provincial Councils. PCs were introduced not for the benefit of Sri Lanka but to safeguard the interests of India. Dividing the country into Provinces was done by British for their convenience, Erasing Provincial boundaries should have been done soon after independence but still not too late to do that for the long term interest of the country. The experience so far shows that PCs are an impediment for developing the country. That is exactly what India wanted; make the Central Government weak. People with vested interests say ‘That country has done it’; ‘this country has done it’ and try to force Sri Lanka to follow them. Sri Lanka is not ‘That Country’ or ‘This Country’. Sri Lanka should decide what is good for Sri Lanka. Scrap PCs. You will go to the history books as the leader who united the country and saved the country from disintegration. If not, the PCs will drag this country in different directions. People in this tiny island do not want such a situation.

  • 1
    0

    All cards must be on the table.
    There should not be any attempt to ‘manure’ the majority into something on the part of UNP or attempts of ‘arm teitisting’ using external parties on the part of TNA. TNA did a fundamental mistake in aligning with one of the major parties. Why should the other party support TNA?
    Soma

  • 0
    0

    The set of constitutional proposals currently on the table is a carrot given to minorities in order to rob their votes from the Rajapaksas. In Sri Lanka people are not interested in these proposals, not any more; actually they are against the entire set.
    The Mahasangha won’t allow any government to dilute the powers of the executive presidency. The entire country has seen its importance and value during the past few years. The most recent example is RaviK’s saga: RaviK will be still enjoying his ministerial position while robbing the country and preaching the poor to tighten their belts if there was no executive presidency in Sri Lanka. When Ven. Prof. Bellanwila Wimalarathana thero lashed out the president for not expediting the Commission of inquiry into the Bond Scam, he got really scared and started to act reluctantly. He (The President) tried his best to sweep the issue under the carpet but he was compelled to act. That’s the fact and that alone has strengthened the timely necessity of the executive presidency.

  • 1
    0

    Do we need to abolosh Executive presidency to democratise? US, France, China have executive presidential systems. Are these countries not democratic? When Sirimavo was there under the westminister system, then cartoonist, Jiffry used to draw Sirimavo in a Hitler suit.
    The executive presidency is democratic and it is the people who elect the leader. The people retain their sovereign right when electing the president.

    There is NO unhappy existence of the executive presidency. In fact SL maintained political stability amidst a war and a brutal insurgency in south thanks to the executive presidential system. We have been able to retain a modest economic growth even during war years, thanks to the presidential system. If we did not have Executive presidency, LTTE could have easily topple the government with UNP like they attempted in 2001.

    I do not think for a second that those who call for abolishment of the executive system has good things like democracy in their minds. Otherwise they would have raised their voice against postponing of election and disenfrenchisement of more than 47 lakhs of people. But they have a different agenda.

    The abolishment in parliament will make the MPs in parliament more powerful. We could see how TNA as instructed by LTTE tried to topple the then PA government in 2001 because PA did not proceeded in the Norwegian peace process on LTTE conditions. SL survived thanks to the presidential system. We will inherit a system where any force can buy these MPs from any party as we can see today. This country will have no future but will have eternal turmoil under a parliamentary system.

  • 1
    0

    Sorry to say that Sri Lanka is not like any western countries and it does not have s good leader to make a real change? Do you know why? Most of them are crooks.
    If M&s and Ranil punish MR and co …what will happen next …once they are unseated next government would punish M & S and Ranil …this is a vicious circle..so no one wants to take action or do any changes..
    That is the political culture of Sri Lanka…each one look after their own interest. Machiavellian theory of outing your interest above all ?
    Mr you are trying to teach them all this good ..
    But we are destined to live in Sri Lanka like this due to wrong policies of successive governments..
    Sri Lanka is rich in H/ R with 90% of people will high level of literacy rate ? Why do we need to suffer?
    Is it mainly due to ineptitude attitude of politicians ?
    Self fish policies of successive governments to marginalise minorities cost a lot ..
    Still some Tamil community is not happy at all …
    Why not we think as Sri Lanka and attach Lanka identity with all of us ?

  • 0
    0

    My personal viewpoints on what the constitution should safeguard:

    – it needs to support human rights; remove sections that criminalize gay sex, and replace with those that provide protections to the homosexual and third gender communities.

    – it needs to provide ethnolingustic councils for the Tamil and Muslim communities akin to those found in India, and it needs to allow for fluid communications between Tamil India and Tamil Lanka.

    I also think that it would be a good time to defend South Indians against racism and colorism in general.

    ————————————————————————————————-

    I am unsure about what policies should be kept at provincial level. I would affirm that English should be the working language of the island, and that Tamil is the official language in the northern province at least.

    I also think that education should be primarily taught in the English medium, or that education is devolved to the ethnolingustic communities too.

    I would replace the Lankan flag, with a flag that is similar in shape to the Nepali flag, and has the Lankan lion with a bow-and-arrow and swords from other Tamil flags. There’s no need for a island anthem or island motto.

    I also think we should form a closer political union with India. It can be limited to symbolism only (such as participating in the IPL), but it should involve economic integration too IMO for the sake of human development.

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