15 August, 2020

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Some Comments On The Constitutional Draft

By Sumanasiri Liyanage

Sumanasiri Liyanage

Sumanasiri Liyanage

I assume that the discussion paper that was published in the Colombo Telegraph is authentic.

Vaclav Havel once wrote that “if the world today is not to become hopelessly enmeshed in ever more terrifying conflicts, it has only one possibility: it must deliberately breathe the spirit of multicultural co-existence into the civilization that envelopes it.” The basis of this sprit, according to him, is “for different peoples, religions, and cultures” to learn to “respect each other” and to “respect and honor each other’s’ differences”. If we look at from the prism of this grand objective Maithripala Sirisena government’s constitutional proposals can be portrayed as the weakest and most regressive document in the constitutional discourse in Sri Lanka in the last three decades or so. It is regressive when it is compared with the 2000 constitutional draft and the majority position of the all-party conference. No use of comparing it with some of the writings of the civil society activists. Apologists may argue that the drafters of this documents worked within the parameters given to them by the political leaders of the government and approved by the electorate on January 8. Constitution engineering should not be concerned only on the immediate present but on the recent past. Moreover, such exercise has to be futuristic.

In a diverse country in which one of the brutal wars in recent time had been waged, it is imperative to take the underlying causes of the war as well as steps to be taken for reconciliation into account in constitutional engineering. The peoples in the Northern and Eastern Provinces voted overwhelmingly for the President Sirisena expecting not just a change but changes for their lives and conditions; not to taste the bitter side of political power exercised and executed by an alien power in and from Colombo, but to participate in decision-making that directly affect their lives. Hence state restructuring making that expectation and democratic right workable is a responsibility of the government and the constitution drafters. Making excuses that it is not in the 100 day program and we have not made promises to that effect is not only funny but tantamount to a complete exclusion of people in the governing. As I have argued in all my writings, what Tamils, Muslims and Kandyan Tamils meant by democracy and good governance are somewhat different from what is meant by southerners with regard to those terms. Democracy for them is an inalienable right for identity and security. Good governance is an inclusive governance. The following sentence is the only one that is included in order to address this specific burning issue, adding more powers to the President. “In addition to the powers and duties presently exercised under Article 33, the President shall promote national reconciliation and integration, ensure and facilitate the preservation of religious and ethnic harmony and ensure and facilitate the proper functioning of the Constitutional Council and the independent Commissions.”

Yasa, Subha and Yasa

The discussion draft has reminded me the Mahawamasa story about a fun-loving king who looked like his doratupaala (gatekeeper). King Yasalalaka Tissa wanted to see how his ministers bow their heads before a subaltern doratupaala. So he decided to swap functions temporarily. It was a great fun for king Yasa when his elitist ministers bowed their heads before Subha (doratupaala) who was now in throne. This game was played many a time. One day Subha thought he should be the king. So when he was placed on a throne, he ordered to behead the king who was dressed as doratupala. The situation this story depicted is somewhat closer to the present relationship between President Sirisena and Prime Minister Wickremesinghe. The hybrid system that is proposed to create would make a legal possibility for a constant conflict between the President and the PM. What the drafters of this discussion paper did was making a present conjuncture a constitutional design of the country. This may to lead many contradictions, theoretical as well as practical.

Ranil MaithriConstituionalism called for checks and balances. However, there is no justification to introduce a system in which one elected arm of the government is made to subservient to another elected arm of the government. According to the draft executive president is elected directly by the people. Why should he act on the advice of his own appointee? This is what the draft says: “The Prime Minister will be the Head of the Government. The President shall appoint as Prime Minister the Member of Parliament, who, in his opinion, is most likely to command the confidence of Parliament.” There is no suggestion that the Parliament should at least ratify that s/he actually has the confidence of the Parliament like in many countries. So we are seeking to create a conflictual system that would be more evident than in the present constitution. The new system allows king Yasalalalka Tissa to fight back by appointing a new PM. So still the President has the power of manipulation as it exists in the present system. Similarly, the elected “President may be removed by passing a no-confidence motion with a 2/3 majority”. Instead of abolishing the executive presidency the system proposed would lead to constant conflicts between two elected bodies. It violates 4 (b) of the constitution without changing or deleting it.

Council of State

The draft proposes to create a new body, the Council of State. Is it something like present unconstitutionally constituted National Executive Council? It seems its functions are advisory. In my opinion, this would be another body to enlarge the size of the government using public money without assigning specific functions. Proposed Parliamentary Committees can easily perform the same functions.

Constitutional Council and Independent Commissions

This section is almost like the de facto repealed 17th Amendment. One of the main issue with the 17th Amendment was that it was made easily vulnerable to the actions or inactions of the president. That aspect is proposed to be removed. 1972 Constitution abolished the independence of services by making elected Parliament supreme. It is an incorrect decision. However it represented one important point. One of the key demands of the Lanka Samasamaja Party was to abolish kachcheri system and bureaucratic rule that were the remnants of the colonial rule. However what happened was control by bureaucracy was replaced by a control by politicians. So when we designed independent committees, it is imperative to give proper representations to trade unions, peoples’ organization to allow their voices to be heard. I could not see an attempt to strike a proper balance in appointing independent commissions.

Conclusion  

I would like to get back to my first point of neglecting the national question. As I mentioned, President is to act hereafter on many issues on the advice of the Prime Minister. Why is not the same applied with regard to the Provincial Council? The Provincial Governor, the chief executive officer of the PC is appointed by the President. If the principle laid out in the draft applies to the PC, one may ask why not the PC governor is appointed at least on the advice of the Chief Minister? Also the PC can be given the power to remove the Provincial Governor by passing a no-confidence motion with a 2/3 majority thus avoiding unproductive conflict between the elected PC and the Governor.

In opinion, the draft reveals how constitutional engineering should not be performed. The draft is an attempt to justify the present conjuncture and to make it the constitutional design of the future. The present constitution is bad and has to be replaced. However, the proposed 19th Amendment would make it worse.

*The writer is the co-coordinator of the Marx School – e-mail: sumane_l@yahoo.com

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Latest comments

  • 2
    1

    I think the most fundamental flaw in the present constitution is the Provincial, District and Pradeshiya level overlap.

    If someone has problem with govt, whom does he/she approach? Does he go to the Pradeshiya, District or Provincial level for a solution? The incredible inefficiency it must mean that there are many engineers to remove a solitary light bulb!

    The system needs to be made more leaner and efficient. This will bring accountability too as no one can pass the buck any longer.

    The Pradeshya Sabha powers are probably best handled at PC level. PS can be abolished altogether. The same persons can represent both PC and at Parlimentary level.

  • 2
    0

    Wishful thinking?
    The proposed constitutional changes bestow the power of appointing the PM on to the President. However, it is not very clear what criteria is going to be used in the selection of the PM, it states “The President shall appoint as Prime Minister the Member of Parliament, who, in his opinion, is most likely to command the confidence of Parliament.” The President uses his power till he appoints the PM and there after becomes subordinate to the powerful PM.
    In the above clause it appears the appointment of the PM is a prerogative of the President. The assumption that follows inevitably is that President Sirisena, in his great indebtedness to RW will reappoint him as the PM whatever the election outcomes may be. With all due respect to the incumbent PM, it begs the question whether this is the correct/democratic procedure, in case when the UNP fail to obtain parliamentary majority. This possibility of RW being reappointed as PM even without simple majority is not an over simplification or exaggeration in the light of the approach adopted in the appointment of PM and the cabinet of the present new government.
    The present government was brought into power by a fragile coalition with a main underlying objective to get rid of Mahinda and his clan from the power base. There were many contentious issues which were not thrashed out fully at the time of Presidential election as the “common enemy” was a worthwhile target to make compromises and work to gather for a common cause. As the “common enemy” is politically a spent force now the cracks within the coalition is starting to show up.

    The JVP has always maintained a firm stand on identifying with the coalition to change the power players and dissociating its self from other issues in the agenda. This is probably a stand taken to consolidate its voter base and develop into a formidable alternate political party in the future. The JHU on the other hand was in agreement on various issues but was not in favor of revoking the executive powers of the president fully. TNA and the MC had to support the new coalition due to pressure and preferences of the voters under their wings.
    The Colombo Port City issue, lack of progresses in corruption investigations, lack of progress in implementing election promises and excess pruning of presidential powers are brewing in to major confrontational issues amongst the coalition members at present. The TNA namely Sambandan and Sumanthiran by attending the Independence Day celebration after almost 50 years of abstinence by the Tamil parties, even without tangible solutions/remedies for the Tamil population, has created ripples across Tamil polity. In Addition, the provocative (unnecessary/unwarranted) resolution by the NPC are likely to distance TNA from any possible coalition in the forthcoming GE. Given this scenario in the forthcoming GE all parties are like to go alone.
    In a recent interview in the Sirasa TV CBK elaborated on she along with RW planned the common coalition to defeat MR. She mentioned that this is the third time she is intervening to safe SLFP from disaster. During the course of the interview she elaborated on how her father’s party was destroyed MR and his clan and how she is trying to purify and bring back the old glory to the “new face SLFP”. She categorically denied the possibility of her entering active politics again. However, she did not waste the opportunity to project the new face of the SLFP and appeal for support for the success of SLFP in the forthcoming election. Since CBK was not given a prominent role in the party at the last SLFP meeting, it is reported that she has left for the UK. However, CBK is likely to throw her whole weight behind the SLFP campaign which will make the incumbent president to follow suit or at least remain neutral.
    The SLFP has more versatile and seasoned politicians to put on stage than the UNP. If the SLFP purifies itself, and commit collectively for good governance and clean government (since MR clan is out) SLFP’s mass appeal may improve significantly. A tamed MR or CBK as the election lead for the SLFP campaign may be a worthwhile option to consider.
    MR has been a significant personality in the political history of Sri Lanka. He gave the final political leadership to defeat LTTE. The military defeat of the LTTE made MR an idol of sorts amongst the Sinhala Buddhist population who were laboring under a ‘historical fear’ of threats from the north (including South India) and western interference into the only remaining Sinhala Buddhist land in the world. MR is in away a man who re-established the pride of the Sinhala Nation. This “MR factor” made people to support MR despite of rampant corruption, nepotism and political interference into the judiciary which prevailed during his tenure. Amongst the minorities there was a negative impression of MR, of being an anti-minority leader. However the loss of positive MR factor amongst the Sinhalese in the forthcoming election will be counteracted to some extent by the ‘uneasy closeness’ shown by the UNP government towards LTTE in the past and TNA at present. Hence, the “new face SLFP” is likely to have a better mass appeal than the UNP towards the GE.

    The outcome of the next GE is going to be a crucial factor in deciding the fate of this nation. Going by the previous 3 presidential elections and 2010 GE majority of the electorate were won by the SLFP led UPFA coalition. Even at the last PE majority of the electorates were won by the former president. Even with the assistance of Tamil and Muslim electorates MS could not match up with MR in the number of electorates won. However this time the voting pattern may change as the “MR factor” is out of the equation. While MR is being promoted as the UPFA PM candidate by some political orphans it is unlikely to have any significant impact.
    Though the election outcome is difficult to predict this time, it is reasonable to assume that the SLFP has a better chance of obtaining a simple majority in the parliament. The proposed constitutional changes have to be taken in the background of this whole electioneering process and proper consideration needs to be given to avoid unlikely assumptions. Recently we have heard so many contradictory statements from the new government members and the PM. The PM has made statements regarding the future government and constitutional changes without any legal authority to do so. The SLFP has already stated that it does not favor the idea of ‘National Unity Government”. Even the proposed constitutional changes needs the support of SLFP parliamentarians to materialize.

    If constitutional changes are taken too lightly and hurried decisions are made on assumptions, situation might deteriorate to a total anarchy.

  • 2
    0

    It is absurd to choose your own boss and then subordinate to him. It is absurd for the president to appoint the PM and then be bound to fulfil PM’s wishes

  • 0
    0

    Dr. Liyanage,

    You are right. The constitutional draft that is in circulation has many problems. It is an exercise in gerrymandering to address the excesses of MR mis-governance. An independent commission of eminent men should be appointed to propose a new constitution for Sri Lanka, after deep study and wide consultations.

    The present government should carry on as it is trying now to operate within the current constitution as best as possible, until a new constitution that will stand the test of time and spells out a long term vision for this country emerges and is adopted.

    Let it avoid the excesses and madness of MR and JR’s foxy intentions. If need be temporary amendments can be passed to facilitate good governance, until a new constitution is adopted.

    Dr,Rajasingham Narendran

    • 0
      0

      Draft is authentic, Dr Jayampathy admitted. Check the tweets;

      mhmhisham Feb 16, 12:33pm via Twitter for Android
      Dr Jayampathi W., at the forum on constitutional reforms organised by Muslim Council of SL, confirms @colombotelegrap leaked text is correct

  • 1
    0

    If you want a constitution I can give you a very practice simple one:
    1. Work out electorates with roughly equal numbers per electorate by putting AGA areas together to form about 180 electorates

    2. Introduce 1 man 1 vote first past the post and preferential per electorate. That is one candidate per electorate.

    3. Make voting compulsory for age 21 and above for all elections

    4. Reduce the provinces to say western, Eastern , Northern , southern North-central and central.

    5.elect a senate or upper house based on proportional representation with preferences

    6. Prime minister from the lower house with majority support in the lower house.
    7. Provincial chief minister from the senate.
    8. Provincial council consists of MPs + senators from that particular province.
    9. No more provincial councils separate bodies.
    10. President elected by all in the country for 3 terms of 7 years only.
    11. He will be assigned with special subjects such as defence..Buddhist affairs

    This can be improved

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