18 September, 2019

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Politics Of Constitutional Reform

By S. I. Keethaponcalan

Dr S.I. Keethaponcalan

Dr S.I. Keethaponcalan

The change of government in January 2015 in Sri Lanka turned the attention of the nation, at least partially, to constitutional reform. President Sirisena won the presidential election promising to make changes to the system of governance. Without wasting too much time, the present government, first released a draft proposal, then published the draft bill called the 19th Amendment to the Constitution, and finally announced amendments to the 19th Amendment. The proposals entail several elements. This article, however, deals with the central aspect, i.e, powers of the president and the politics played around this issue.

First Proposal

The first proposal published by the government in February 2015 to reform the constitution entailed some radical rudiments as it proposed to transform the existing executive presidential system into a parliamentary form of government. According to the original proposal the president was required to act “always…on the advice of the Prime Minister” except of course “in the case of the appointment of the Prime Minister.” The prime minister was also to be the head of the government.

MaithripalaThis was in a way intriguing because President Sirisena did not promise to abolish the executive presidential system in his election manifesto. He only promised to remove what he called the “autocratic” powers of the president. Nevertheless, the abolitionists who provided impetus to Sirisena’s election campaign were elated.

However, some of the nationalist Sinhala groups that consisted of political parties and ideological factions were up in arms, especially the Jathika Hela Urumaya (JHU). The group declared that it would not support the proposed changes. Why? These groups believed that a diluted political leadership is detrimental to the national security of the country. This notion probably was based on two assumptions.

One, a strong political leadership (preferably the president) is a precondition to prevent a possible reemergence of the LTTE. The threat perception within this group still remains very strong. They believe that the LTTE will make a comeback with the assistance of the Tamil diaspora and friendly governments in the West. Two, a parliamentary form of government would potentially magnify the power and influence of Tamil parties, especially the Tamil National Alliance (TNA), forcing future governments to make unnecessary concessions. The possibility of an executive prime minister conceding to the Tamils on the more important question of devolution of power is not acceptable to these groups. Hence, the assault on the first proposal.

19th Amendment

The resistance forced the UNP government to renegotiate the constitutional amendment with concerned parties and alter its original ideas of constitutional reform. Consequently, the government officially published the draft bill of the Nineteenth Amendment to the Constitution. The 19th Amendment may be seen as a victory for JHU and other nationalist Sinhala factions because the idea to transform the system into a parliamentary form of government was dropped. According to the proposed 19th Amendment the president is not required to act on the advice of the prime minister.

The draft bill of the 19th Amendment tried to achieve two goals. One, it retained the executive presidency while curtailing some of the powers which abetted authoritarianism. For example, according to the bill, the president shall be “the Head of the State, the Head of the Executive and of the Government and the Commander in Chief of the Armed Forces.” The bill meanwhile proposed to reintroduce the two term limit for the president and restrict the term in office to five years instead of the original six years. Two, it proposed to elevate powers of the prime minister. According to this draft the prime minister, for example, will be the head of the cabinet of ministers, determine the number of ministers and have the powers to assign and change subjects of the ministers.

Therefore, the proposed 19th Amendment could be depicted as a compromised formula as it tried to strike a balance between agendas that seek to abolish and those that seek to retain the executive presidential system. As the pressure mounted against the draft bill, the government recently published what it called the “Amendments proposed to the 19th Amendment to the Constitution Bill,” which stated that “There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and the Commander in Chief of the Armed Forces.”

Regardless of these changes, the JHU’s resistance continued, which indicated that the party was not in favor of constitutional reform at this point in time. It is imperative to note that the party, despite its meager electoral base, has exercised considerable power and influence under the present system. Perhaps there is a nexus between the power the party enjoys under the present system and the constant resistance to any form of constitutional change.

National Government

Meanwhile, in an interesting turn of events, the Sri Lanka Freedom Party (SLFP), which hitherto performed tasks of the main opposition party in parliament, accepted ministerial portfolios in the new government and became part of what is termed the national government. For the first time in the history of Sri Lanka, the two major parties, the SLFP and the United National Party (UNP) are in the government at the same time.

The SLFP’s entry into the government should have raised the likelihood of getting the amended version of the bill ratified in the national legislature. The UNP does not have the required two-thirds majority in parliament. With the SLFP support, a two-thirds majority could be achieved. Since both are in the government, theoretically, it should be easy to adopt the amendments now.

The SLFP however is not budging. Party leaders declared that the SLFP would not support the proposed amendment sans provisions to reform the electoral system and want the next general election conducted under the new system. The fact that even if the electoral system is reformed immediately, adequate time needed to provide for implementation does not seem to be resonating.

These demands imparted the impression that the present electoral system is detrimental to its chances of winning the next general election. It is true that J. R. Jayewardene, the architect of the present constitution, thought that the proportional representation system would bestow an added advantage to the UNP. But the SLFP has won enough elections under the present system. The party can give the UNP a run for its money if an election is conducted under the present system even today. It is amusing to see the party choosing a yet to be determined system to the present one.

Therefore, one can argue that concern about the electoral system cannot be the real cause of the SLFP resistance to the proposed bill. Some believe that the SLFP is covertly working for President Sirisena. The president understands that weakening the office of the executive president at this point in time could be dangerous. It could pave the way for former president Mahinda Rajapaksa to return to active politics and even enter parliament as the prime minister. Such a scenario could be suicidal for Sirisena and his partners such as Democratic Party leader Sarath Fonseka and former president Chadrika Kumaratunga. Naturally, he cannot prefer a strengthened office of the prime minister.

If he is not keen to reform the constitution as proposed, one of the best ways to delay or scuttle the process is to get the SLFP to make unrealistic demands. After all, he is the leader of the SLFP. The Janatha Vimukthi Peramuna (JVP) has already accused the president of conspiring against the proposed constitutional change.

Supreme Court

Obviously, the bill was challenged in the Supreme Court. It was determined that some clauses of the bill were inconsistent with the constitution. In order to be approved, they need the approval of the people in a referendum, in addition to a two-thirds majority in parliament. Importantly, the clauses that bestow powers on the prime minister require approval of the people. The government however, is not keen to go for a referendum immediately. According to news reports coming from Colombo, these clauses will be dropped. This will eliminate any possibility of making fundamental changes to the system. If approved, the proposals, in the present form, will take away only a few powers of the president and the prime minister will remain a rubber stamp.

*Dr. S. I. Keethaponcalan is Chair of the Conflict Resolution Department, Salisbury University, Maryland.

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  • 5
    0

    A very good analysis of the current situation. The merger of SLFP and UNP in a national government is an opportunistic marriage forced on them and they are not based on principles or interest on the nation or interest of the people. This can be only resolved through step by step changes to the constitution while keeping the power of the President. I strongly believe that Maithiri is truely committed to his princples and will not misuse those executive powers as former greedy Mahinda. President Maithiri made correct constitutional change regarding the period of presidency and number of times one can contest for President. In my opinion, one who served two times as President should not take part in any ministerial position. Similarly, one who served twice as Prime minister should not take up any ministerial posts in any government. Further, ministers who served twice should not allowed to become a minister. THis will help to minimise the corruption and misuse of power and give opportunity for new bloods coming into politics.

  • 1
    4

    This new coalition government and military/police administration is nothing better than A SINHALA BUDDHIST, RACIST CHAUVINIST NATIONAL UNITY SANS TAMIL GOVERNMENT.

    SAME OLD SAME OLD WITH THE VICE CAPTAIN CHANGED.

    All are being fooled. Some of them are friends of mine I helped at the risk of life and limb and got white vanned and deported despite the US embassy fully backing a US citizen. The top Indian diplomat from RAW also suffered a similar fate without being white vanned in 4 $100,000 vehicles of the immigration dept.

    The next government also will be the same depending on how many seats UNP captures which cannot be more than 60, given the fact they do not win any Tamil seats from the North and East. In Colombo they have to fight with 7 other Sinhala Buddhist parties from the Right, Left and Center as well as one Tamil party led by Mano Ganeshan in not only Western Province but all 7 provinces in the Island.

    The Sinhala Buddhist Racist Chauvinist National Unity sans Tamil, Government will be led by Ranil as PM, and Chandrika as the power behind the Throne. She for 11 years totally F…………d up everything to pave the way for the Rajapakses to bribe the LTTE and become President for 10 years. The rest is History which many do not want to remember.

    Chandrika is the woman who dissolved the Parliament unethically to disrupt and disturb the Peace talks and negotiations with the LTTE and Tamils.

    Now, rather ironically she is in charge of Conflict Resolution and Reconciliation. What a Joke. She is also the one who has forced the Finance Minister to appoint the Central Bank Governor”s sister in law Padma Maharajah as the Director at the Bankrupt Company Hilton Hotels.

    That is Chandrika’s way of creating reconciliation between Cinnamon Garden Tamils and Sinhalese.

    Chandrika, Ranil and the Indians/other diplomats cooked up the Sinhala Buddhist Racist Chauvinist Nationals Unity sans Tamils government in London in October 2014.
    If a few Tamils join the government they will be givery powerful ministries such as Disaster Management (Now 85 year old Fowzie), Toilets and Drainage, Reconstruction and Reconciliation (Swaminathan who will not be in Parliament again even if he contest elections), Plantation Infrastructure (Digambaram) and some traditional industries. In addition they will receive Deputy Ministries and State Ministries if there are enough Tamil MP’s willing to serve in such a government.

    Mano Ganeshan, Suresh Premachandra, Digambaram, Radhakrishnan and Mavai Senathirajah will be cabinet ministers where people like Ranil, Ravi and Chandrika/Sirisena will tell Tamil Human Rights activist we have appointed 10 or 1 dozen to the 100 member cabinet. So what is your complaints they will ask SARCASTICALLY..

    Donald Gnanakone
    Tamils For Justice
    Founder

    • 1
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      Toilets and Drainage? Come, come Sir, the experts are in Toronto!

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 0
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    It is the electora, system that needs change most. RW had an understanding on the reduction of power of the President. This was known by the country and a mandate was obtained. A number of proggresive legistlature is being entacted. The elrctoral reform must be that unless all get together constitutional reform should not happen. The electoral reformmust see that JR type majority or cross over caqn not happen. The Large electrate must have multi seats and electorate can be amalgamated for ti to be possible. While first pass the goal is for majority. A dual ballot for a district List is also needed. Minority votes on the District List should be given appointment on a qouta agreed. They would beappointed as order of list for minority. Ethnic,religous and gender, disabled and others could be represented. A limited members of Chamber s and proffesional body could be appointed. Chief Ministers should also be allowed to nominate members preferably for Finance..

  • 0
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    The middle Eastern, citizens abroad should be able to vote. A electronic mentod of foolproof voting must be implemented. The groundwork for this could be provided in electoral refor. A propotianate system for voying may be needed.

  • 0
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    Every Party collect funds for Political purposes. Sadly goverment organisations give funds or credit for political p[urposes. Positions and money is gi8ven to change sides out of propotion to ability. Funds are collected from abroad for Sunami and disaster relie3f and soical welfare like montisories. It is difficult to channel funds through accounts as an organisation has to be registered for Banks to open such accounts. Individual account should be allowed to be sub titled and only funds for a purpose could be channeled. Religous organisations are given funds channeled through persernal accounts. Acountability must be established. Foriegn persernal or Foriegn Companies hould not be alowed to infringe on our soveriegnoty especially our media..

  • 1
    0

    The Single Issue Common Candidate[SICC] Maithreepala Sirisena will therefore continue as the Executive President!

    Why the bloody hell did people vote for him on Jan:8th?

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