By Laksiri Fernando –

Dr Laksiri Fernando

It is undoubtedly a welcome initiative by the National Movement for Social Justice (NMSJ) to come up with a set of proposals to reform the constitutional framework highlighting the need to abolish the much hated executive presidential system as a key change. The relevance of the proposal/s and the initiative is underscored by the constitutional crisis that the country had to traumatically undergo during the impeachment saga, which is also not yet over, and by the fact that the present initiative has come from a credible civil society organization led by Ven. Maduluwawe Sobitha Thero, unlike in the past.

Broken Promises 

In the past, the promises to abolish the presidential system mainly came from political leaders and parties who were aiming for victory with the support of the broad masses and when they won the elections, the promises were completely abandoned. This was the situation in the case of Chandrika Kumaratunga and the PA in 1994 and also Mahinda Rajapaksa and the UPFA in 2005. It is difficult to say whether the leaders who made the same promise, but could not win like Sarath Fonseka in 2010, would have been different if won. The usual excuse both by CBK in 1994 or MR in 2005 was the lack of 2/3 majority. However, if Mahinda Rajapaksa was believable then he had more than 2/3 since 2010, but instead of abolishing the system it has been strengthened in unimaginable proportions by the 18th Amendment. What has been proved is ‘power corrupts, and absolute power corrupts absolutely’ (Lord Acton).

The UNP has never been enthusiastic about abolishing the presidential system completely. In year 2000, they first agreed for a change and then backtracked on the excuse that the CBK government was not genuine on the matter which might also be correct. The executive presidential system is in fact their baby. Instead, having realized people’s displeasure about its authoritarian character, they have talked about transforming it into an executive prime ministerial system but it is very much easy to abandoned even that promise on the excuse of 2/3 majority. After all, there might be no big difference between the two in practice. Moreover, no party is likely to obtain 2/3 majority single handed at the next election under the present system of proportional representation and therefore it is unlikely that the UNP could be the catalyst for this constitutional change unless something dramatic happens within and outside the party to persuade the leadership.

The above might be the very reason why the NMSJ has started its campaign within the civil society instead of political parties, however proposing their 15 point program of constitutional reform “to be included in the election manifestos of [all] political parties and candidates and then move on with the amendment immediately after the Elections.” Whether this is going to be just wishful thinking or not will depend on (1) the way the NMSJ would be campaigning on the program (2) the responses of the general masses and their key organizations i.e. trade unions, religious associations, women and youth organizations and credible NGOs (3) the reactions of political parties or their enlightened sections and (4) the national issues that would unfold in the coming future, favourable or unfavourable to such a reform scheme.

15 Point Program

The 15 point program aiming at broad consensus among diverse sections does not cover all aspects of constitutional reform, but some of the key issues. It declares that “The Executive Presidency shall be immediately and totally abolished with a return to a Parliamentary form of Government. The President shall be elected by Parliament and shall act on the advice of the Prime Minister, unless when there is express constitutional provision to the contrary.”

What it means by ‘a parliamentary form of government’ undoubtedly is what we had particularly before 1972 however within a republican framework. It is widely accepted that the 1972 constitution brought some distortions to parliamentary democracy. These became enhanced and aggravated under the presidential system diminishing the independence of the judiciary, checks and balances, and political neutrality of the public services. The most prevalent system of democracy in the world today is parliamentary democracy and although a presidential system is also considered broadly democratic, the application of it in developing countries has always spelled disaster.

Even in the United States, although the presidential system is mostly democratic internally, its behaviour externally is oppressive and aggressive largely due to the presidential powers. It might not be a mere coincidence that major conflicts, widespread political violence, insurrections, terrorism and war became menace in Sri Lanka under the presidential system. If the system continues, the possibility of re-emergence of these hazards would be high. The system has further degenerated today into a ‘family oligarchy’ for the whole world to see. The possibility of such a catastrophe is not possible under a parliamentary democracy properly monitored by peoples’ initiatives and the independent media.
It is not only the presidency that the program has called for change. The present PR system is another change envisaged, proposing a mixed system of PR and FPP also abolishing the much divisive ‘manape’ or preferential voting. Under the proposed system, the voters will have the opportunity to elect their own MPs or ‘ape manthri’ in a smaller electoral constituency like in the good old days, while a limited proportional system will operate to keep a balance between parties and also to give representation to smaller parties or groups that are spread out beyond one constituency. The proposal also restricts the opportunistic party crossovers, and if a MP from a seat changes party then there will a by-election.

There is no doubt that the proposed system is rational.

In terms of ‘constitutional principles,’ the program has come up with certain admirable values which are articulated in four principles as “(a) supremacy of the Constitution and the rule of law; (b) representative democracy, human dignity, the achievement of equality and social justice and the advancement of fundamental rights and freedoms; (c) racial, religious and gender equality; and (d) universal adult suffrage, regular elections and a multi-party system of democratic government.” It is in respect of ‘regular elections’ and in strengthening the voter participation in governance that the program has called to limit the life of parliament to only five years. This may be much acclaimed by the people.

Other Reforms

More admirable would be its call for the constitutional recognition of ‘multicultural, multilingual and multi-religious’ nature of the people that constitute the Sri Lankan nation. As it says “The peoples of Sri Lanka who together constitute the People of Sri Lanka have the right to develop their own language, protect their own religion, to develop and promote their culture, to preserve their history and the right to their due share of State power including the right to due representation in institutions of government, without in any way weakening the common Sri Lankan identity.” At the same, time it categorically says that “This shall not in any way be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of the Republic.”
It is on the lines of limiting the abuse of power and strengthening checks on governance that it proposes that “The number of Cabinet Ministers shall not be more than 25. The total number of non-Cabinet Ministers and Deputy Ministers shall not be more than 25 and no other Minister in whatever description would be permitted.”

It proposes to do away with the 18th Amendment and bring back all the desirable elements of the 17th Amendment, the Constitutional Council and the Independent Commissions. What might be lacking is a proposal for a Senate or a second chamber. Its proposal for a caretaker government, free from the clutches of the incumbent government, is innovative and ensures the much needed free and fair elections. The proposed constitutional reform will make the official language policy unambiguous enthroning both the Sinhala and Tamil languages equal status, and all three languages including English, as national languages. While this is undoubtedly a reasonable policy, one even might wonder why not make all three languages official languages; simple, clear and useful. Anyway, English is already a ‘de facto’ official language. This would not preclude anyone to communicate officially in Sinhala or Tamil.

The whole constitutional proposal appears to anchor strongly on human rights and good governance perspectives. It is on that basis the principles of constitutionalism and rule of law are derived. There is no surprise therefore that the NMSJ intends to strengthen and expand on the fundamental rights chapter in the constitution and calls for a vibrant people’s debate on the subject. People in Sri Lanka definitely deserve more freedom and well defined civil and political rights. What in addition required might be firm guarantees for economic, social and cultural rights of the poor and the marginalized in order that poverty and vast socio-economic inequalities are eliminated from our society. There is no point in having economic and social rights only in name. They should be enforceable.

The proposals to ensure the independence of the judiciary and rule of law in the 15 point program are unambiguous including an acceptable procedure for any future impeachment.

Tasks Ahead

If there is any major weakness in the proposals, then that clearly pertains to the lack of emphasis on to safeguard the provincial council system and the principles of the 13th Amendment. There are references to the provincial councils in the text but no clearly expressed commitment. It may be possible that the drafters wanted to take time to build up broader consensus. But in changing the constitutional structure from authoritarianism to democracy, there cannot be any ambiguity or hesitation on the subject of devolution. Small hesitations could lead to big stumbling blocks later. Therefore, I wish to personally appeal to Rev. Maduluwawe Sobitha to give due consideration on this matter and express clearly his commitment to the principles of the 13th Amendment without much delay.

One comment to the drafters of the proposal/s is that, whether they write in English, Sinhala or Tamil, as these matters pertain to the ordinary people for a fruitful and vibrant public discussion, to make their language in the future more lucid and clear without much legal jargon.

Having said the above, the main challenge for constitutional reform or anything else would be how to mobilize the masses for constitutional reform under the given oppressive circumstances. The President most often challenges, rather sarcastically, the opposition to organize if possible something like ‘janagosha,’ ‘padayathra’ or mother’s fronts as he was doing during his opposition days. This is the challenge. To his credit, it must be added that he was doing all these, peacefully and effectively. There should be determined young people who could take up the challenge and mobilize the masses in order that democracy is reinstated in Sri Lanka again through peaceful but forceful transition.