By Ranil Wickremesinghe –
Sri Lanka´s first Constitution, introduced in 1947 when it was called Ceylon, came in two parts; the Ceylon Independence Act of 1947 and the Orders in Council of 1946 and 1947 – known collectively as the Ceylon (Constitution and Independence) Orders in Council of 1947. All, read together, became known as the Soulbury Constitution, under which Ceylon, now known as Sri Lanka, gained independence from Britain, in 1948.
While the Constitution gained its name from the man who chaired a commission appointed to draft the Independence Act, H.A.J. Hulugalle, who was the Editor of the Ceylon Daily News at that time, described how the Soulbury constitution is based almost entirely on a draft prepared in 1944 by Hon. D.S. Senanayake and his board of ministers, who were in turn advised by Sir Ivor Jennings.[i]
Don Stephen Senanayake and his board of ministers boycotted the Soulbury Commission sittings in the pretext that the then government of Britain went back on its promise to implement a draft prepared by the board of Ministers, while in actual fact, they did so to avoid what could have been a lengthy confrontation with minority leaders, which in turn would have led to delays in gaining independence.
Behind the scenes, using their friendship and contacts with Lord Mountbatten and others within the British government at that time, Sir Oliver, D.S, and others like D.R.Wijewardene influenced Lord Soulbury to adopt the draft constitution of 1944, with one addition, a second chamber or a senate to ensure a system of checks and balances. This too was not entirely Lord Soulbury´s idea – instead, it came from a previous bill, submitted by Home Minister S.W.R.D.Bandaranaike – with the tacit if not direct support of D.S. – the Ceylon (Constitution) Bill also known as Sri Lanka Bill of 1945, passed by the State Council with 40 votes to 7.
The Soulbury Constitution saw eight amendments made to it, the last being in 1971, when Act number 36 of 1971 was made to abolish the Senate, the instrument proposed by Hon. S.W.R.D. Bandaranaike, and adopted by Lord Soulbury to introduce checks and balances to the fledgling democracy of Ceylon in 1947.
In 1972, the United National Front government of Hon. Sirimavo Bandaranaike, convened a constitutional assembly to promulgate a radically new constitution, dropping the last vestiges of colonialism, appointing a non-executive President instead of the governor-general and introducing the concept of fundamental rights to the constitution – rights that were earlier covered in Article 29 of the Soulbury Constitution, but not defined directly as fundamental rights, simply because the concept of fundamental rights emerged with the promulgation first of the League of Nations and later through the United Nations after the Second World war, and after Lord Soulbury wrote that first constitution.
It also dropped the safeguards introduced by Madame Bandaranaike´s slain husband, S.W.R.D, – the Senate – which acted as a brake, though not sufficiently enough as due to a flawed implementation of the concept, the Senate too reflected the power parity of the government in power. It also did away with two institutions, the public services commission and the judicial services commission, that acted as a buffer between the politicians, the government servants and the judiciary.
This republican constitution was amended twice, first in 1975 to change the basis of delimitation of constituencies and then, after the change of government in 1977, to bring in the Executive Presidency.[ii]
Hon. J.R.Jaywardene became the first Executive President of Sri Lanka, not under the 1978 constitution, but under the 1972 constitution.
I was elected to parliament in 1977, when the UNP garnered a massive majority in the parliament under the first past the post system. I am one of the few remaining members of the parliament who were directly involved in the deliberations that went into making the 1978 constitution.
WWW.PRIU.GOV.LK, the Official Website of the Data and Information Unit of the Presidential Secretariat, describes the 1978 constitution thus:
“Before the 1977 General Election the UNP also sought a mandate from the people to adopt a new Constitution. A Select Committee was appointed to consider the revision of the Constitution. The new Constitution, promulgated on 7 September 1978, provided for a unicameral Parliament with legislative power and an Executive President. The term of office of the President and of Parliament is six years. It also introduced a Proportional Representation system. The Parliament was to consist of 196 Members, but the Fourteenth Amendment to the Constitution later increased this to 225.
The Constitution provided for an independent Judiciary and guaranteed Fundamental Rights, providing for any aggrieved person to invoke the Supreme Court for any violation of his rights. The Constitution also provided for a Parliamentary Commissioner for Administration (Ombudsman) who could investigate public grievances against Government Institutions and State officers and give redress. It also introduced a Proportional Representation system, anti-defection laws, and Referenda on certain Bills and on issues of national importance.” (http://www.priu.gov.lk/Cons/1978Constitution/ConstitutionalReforms.htm)
The five-sixth majority the UNP obtained in 1977, worried President Jayewardene. He was to say later that he could do anything other than to make a woman a man, not out of pride, but to illustrate the danger of that much of power being concentrated in the hands of one person.
The 1978 Constitution bought back the Public Services and the Judicial Services commissions, and introduced the proportional representation system. The PR system sought to negate to a degree possible the imbalance of representative power where a party which obtains less than 50% of the popular vote can dominate the parliament with more than a two-thirds majority under the simple first-past-the-post system.
The 1978 constitution then saw a series of amendments, most under successive UNP governments, with the last amendment bought under a UNP government, being the 16th amendment, while the 17th amendment was passed unanimously by all parties represented in the parliament in 2001, during President Chandrika Bandaranaike´s tenure. Here too, the UNP took the initiative and the lead, along with other opposition parties to bring the amendment to the parliament.
The 13th amendment made substantial changes to how power was devolved to the provinces, and the 17th amendment sought to re-professionalize and de-politicize the government servants, the judiciary, the police and a host of other institutions, including the Election Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission and the Delimitation Commission. All other amendments were mostly to improve on sections of the constitution that proved to be non-confirmatory to situations that arose from time to time. (To see a full list of amendments made to the 1978 constitution, up to the 17th amendment, visit http://www.priu.gov.lk/Cons/1978Constitution/AMENDMENTS.html).
Since that first draft constitution prepared by Hon. D.S. Senanayake, assisted by Hon. S.W.R.D.Bandaranaike in 1943-45, successive UNP governments held the sovereignty of the people supreme. Each successive constitutions or amendments made to existing constitutions sought to improve on, rather than to desecrate that supreme trust the people placed on their government.
The 18th Amendment changed all of that. Instead of improving the constitution, of holding the sovereignty of the people supreme, and of devolving power to the people, the 18th amendment reversed the good that was done – unanimously by all elected parties represented in the parliament – by the 17th amendment and concentrated all that power in the President, who is now unfettered by term limitations and; more so, undermining the separation of powers so clearly emphasized in the 1978 constitution between the executive, the legislature and the judiciary.
Coupled with certain politically motivated judicial “interventions”, such as the judgment that negated the will of the people by allowing a member of parliament, elected through one party, to cross over to another party, without loosing his or her seat, the 1978 constitution is no longer the document that its framers envisaged it to be three decades ago.
As a member, and the leader of the United National Party, I carry with me the heritage and the great responsibility that comes with that heritage, to protect and nurture that hard-won sovereignty, won by the United National Party on behalf of the people of this country, in 1947.
Last year, the United National Party promised to deliver a radical change. We are now on that straight and firm path – not just to deliver the radical change, but also to ensure that change will last, by making the people of this country, the people in whom sovereignty resides, to be directly a part of that journey, for the first time in the constitutional making history of this country.
On the 29th of May, I helped to unveil a list of parameters, what I would prefer to call basic building blocks, of a nascent, vibrant and dynamic new constitution, a constitution that help us look forward without fear, a constitution that is fair and above all, a constitution that gives the power back to the people – the first step of that process is by the very act of involving the people in evolving the constitution.
I believe that this is the first time, anywhere in the world, where people will be directly involved in the constitution making of a country – with the UNP actively seeking the participation of the general public through the Internet and other direct means to add to, modify, enhance or otherwise change the draft proposal. On Sunday, 1st of June, I spoke with the Leaders of the Estate Workers Unions in Nuwara Eliya – what stuck me there was that this was in fact the first time the Indian Tamil segment of our population is getting to play a part in planning their future, as citizens of Sri Lanka, for they were disenfranchised when the first two constitutions were made and only had input through one person, the Late Mr Saumyamoorthi Thondaman, for the third.
The involvement of the people in drafting the constitution is not the only way our people will have a say in this sacrosanct document – they will also approve of it, or disapprove of it if they choose so, at a Referendum that my party has promised to hold, within six months of forming a new government. This, again for the first time, will directly involve the people of Sri Lanka, to decide on the constitution they want.
I said on that day when we unveiled our parameters at the Parliament that we are not launching a new proposal, but we are launching a conversation, a deep discussion, between us, between the people. What we presented to the people on that day is the foundation to this conversation.
This foundation has a set of building blocks, conversation starters. These building blocks seek to abolish the office of the presidency, do away with the preference vote, have elected members of parliament representing each and every constituency, guarantees the freedom of speech, provides the right to information and seeks to make changes covering the Legislature, Executive, Judiciary, Good Governance and Devolution of power amongst other areas.
The proposal provides three options to change the Executive. The first option; a Prime Minister elected by the people at an election to govern with the Cabinet. The Prime Minister and his Cabinet are responsible to Parliament and issues regarding power and power sharing may not be clearly demarcated.
The third option proposes to adopt a system similar to that of the Westminster system where a head of state who is the nominal holder of executive power, and holds numerous reserve powers, but whose daily duties mainly consist of performing the role of a ceremonial figurehead. Examples include the president of India, Ireland and the Governor General of New Zealand. (New Zealand is currently considering a move to form a Republic with a President as the head of State). A head of government (or head of the executive), known as the prime minister, appointed by the head of state, with the constitutional convention that the person appointed must be supported by the majority of elected Members of Parliament leads the Executive. (for more on Westminster style of government, see http://www.justice.govt.nz/publications/global-publications/t/the-new-zealand-legal-system)
However, it is the second of the three options given that details out the more prominent thinking of my party´s constitutional think-tanks, with the substitution of a directly elected Head of State, who will only head a Council of State (which will consist of the Prime Minister, Leader of the Opposition, the Leaders of the political parties represented in Parliament and the Chief Ministers of the Provinces), and will act on the advice of the Council of State. This also reflects the recommendations of the Lessons Learned and Reconciliation Commission on both devolution and power sharing at the apex bodies, where the Commission underlined the need for courage and the political will on the part of all political parties to give up adversarial politics and have consensual decision-making on national political issues.
The Council of State shall decide on all political directions and national priorities. The Cabinet of Ministers headed by the Prime Minister and the Provincial Boards of Ministers shall be responsible for implementation of the decisions of the Council of State.
There shall also be a Speaker’s Councils consisting of the Speaker, the Prime Minister, and the Leader of the Opposition and representatives of all political parties represented in Parliament. The Speaker shall be the Chairman.
On recommendations of the Council of State and the Speakers Council, the Head of the State shall appoint members to Independent Commissions, Justices to the Constitutional Court and Superior Courts. The Head of State with the approval of the Speaker’s Council shall appoint heads of State Institutions.
I am profoundly aware that these recommendations are incomplete. Nowhere in these do we speak of the actual entitlements of each of these separate bodies. These, in my belief, comes as a set of statutes that need careful drafting by constitutional experts – and also by the citizenry of Sri Lanka, for they pay for these entitlements. And thus, we leave the entitlements open for suggestions – we are only providing the parameters.
Those who drafted these parameters, a team of young lawyers under the guidance of some seniors like Mr Wijedasa Rajapaksha, P.C., looked at power sharing examples from the European Commission, South Africa, some of the new East European nations and compared these with old systems like the US bicameral system, the British Westminster system and with the other systems in Australia, India and elsewhere before they recommended the three options we presented to change the present Executive dominated system.
Within the EU system, the three institutions of the EU responsible for making policy and taking decisions are the Council of the European Union (representing national governments), the European Commission, (a body representing the collective European interest) and the European Parliament (representing the people). In our second option, the Council of State, headed by the head of state, is equivalent to the Council of the European Union, as not only leaders of the political parties represented in parliament, but also the chief ministers of the provinces will be members of this Council of State. (For more on the EU structure, see http://www.eu4journalists.eu/index.php/basics/english/C50/)
The United National Party believes in being dynamic, pertinent, and timely. We also believe that our long-term goal should be to achieve a stable economy that outlives us, the present generations, and to create the socio-cultural conditions within which this stable economy will continue to thrive. Fundamental to this concept, I believe, is to have a free, fair and democratic framework of governing principles, where everyone is treated equally, where no one can claim higher status because of his or her birth, religion, language or kinship and where no one is discriminated on account of his or her birth, religion, language or kinship.
If this democratic framework is not there, if this focus on equal and fundamental rights is not there, none of us, whether we are in the opposition, or the government, or those of us who stay away from politics, will have a future to leave to our children, our next generations.
Since 1994, there has been a gradual erosion of these democratic frameworks – for example, since independence in 1947, the head of the state or the head of the government, never held the ministry of finance or that of defence at the same time till 1994. Since then, the President did not control these two ministries simultaneously only during the period I was the Prime Minister from 2001 to 2004. Holding these two ministries at the same time gives unfettered power to the head of government.
While my government, with the unanimous acceptance of all parties represented in the parliament, sought to re-enforce the sovereignty of the people through the 17th amendment, by strengthening the independence of the judiciary, the police and the public service amongst other institutions, all of that good work was eroded by a series of judgments that were politically intervened to dilute fundamental rights and the power of the vote. Then, after the judiciary served its purpose, the Executive and the governing legislature destroyed the last vestiges of independence of the judiciary.
With the passing of the 18th amendment to the 1978 constitution, we can no longer deny the immediate and present danger of our democracy becoming a dictatorship, of the “Janadhipathi” becoming a “Raja-adhipathi.”
Being dynamic, pertinent and timely, successive UNP governments have striven to change legislature, introduce new constitutions, amend and add where necessary to those constitutions, so that the fundamental democratic frameworks continue to be enhanced and enlarged to include new global developments, to meet emerging threats that seek to undermine the frameworks and to correct and refine where possible laws that may not suit the time or the situation that is prevailing in the country. It was the UNP that introduced the Westminster system to this country through D.S. Senanayaka´s draft bill and it was the UNP that introduced the Executive Presidency to this country by amending the 1972 constitution and it will be the UNP that will bring in another timely and pertinent change to ensure our democratic frameworks will continue to be robustly protected.
At the launch of this effort to give back sovereignty to our people, I gave my word that within six months of assuming power my party and I will hold a referendum that will enable the people of Sri Lanka either to accept or reject a new constitution, a new constitution that will be crafted jointly by the people, constitutional experts and us, the politicians. In July this year, we will issue a new draft of this set of parameters now hosted at our party website, www.unp.lk, incorporating comments from people, expert advice and feedback we are getting at the many meetings we are now holding across the length and breadth of our country. We will continue to discuss, to add and to improve these parameters till such date the people of this country takes that decision take back sovereignty – that too – is my promise.
[i] Hulugalle, H.A.J. 2004, Selected Journalism, Arjuna Hulugalle Dictionaries
[ii] The Soulbury Constitution was amended eight times by successive governments, the last amendment by the UNF government of Madame Bandaranaike in 1971 to abolish the Senate; the 1972 constitution amended twice, last by the UNP government of Prime Minister J.R.Jaywardene to establish the Executive Presidency in 1977; and 1978 constitution amended 17 times by successive UNP governments and once by the government of President Mahinda Rajapaksha, to remove presidential time limits and to weaken the 17th amendment.