By Jayantha Dhanapala –
Distinguished members of the Diplomatic Corps, Ladies & Gentlemen,
On behalf of His Excellency Maitripala Sirisena and my colleagues in the Presidential Secretariat, I have great pleasure in warmly welcoming you to this afternoon’s briefing on the Nineteenth Amendment to the Constitution of Sri Lanka. It is just over a month since this important Constitutional amendment was formally certified by the Speaker of our Parliament although it was passed on 28 April. In a 225-member legislature this revolutionary piece of reform was adopted with 212 voting in favor, one against, one abstaining and 10 being absent. We undertake this task out of a conviction that the significance of the amendment should be conveyed to you in the context of the revitalization of democracy in Sri Lanka since the Presidential Election of January 8th this year.
My colleagues and I will describe the Amendment from different perspectives all of which is intended to accomplish a task of transparency fulfilling the obligation to acquaint the international community – of which Sri Lanka is a responsible member – of a fundamental change in our system of governance and in our constitutional architecture. We are in our 60th year as a member of the United Nations Organization and a founder member of the Non-Aligned Movement apart from being a member of a number of international and regional organizations with their interlocking obligations to a shared set of universal values. The adoption of the 19th Amendment is thus symbolic of Sri Lanka’s re-integration with the mainstream of democratic countries reaffirming the sovereignty of Parliament and complying with the Latimer House Principles of the Commonwealth at a time when, appropriately, Sri Lanka holds the Chair of the Commonwealth.
The set of norms fundamental to human dignity, human security and human development are what we collectively refer to as Human Rights. They were codified in the historic UN Declaration of Human Rights in 1948 and, subsequently, in a series of legal instruments to which most countries subscribe and have their adherence to these treaties and conventions regularly monitored by peer mechanisms such as the Human Rights Council. This codification followed the horrendous carnage and violence of two World Wars in the last century engulfing civilian populations and making the 20th century the bloodiest in the history of humankind. Prior to that while all cultures and religions had norms and practices relevant to human rights, their non-enforceability as domestic and international law permitted the exploitation of human beings within countries and among nations. This enabled autocracies, dictatorships and feudalism to thrive in domestic situations and for colonialism, imperialism and hegemonism to hold sway internationally. Many empires were built on the exploitation of the human rights of other peoples. Respect for human rights and its enforceability led to democracy in national situations and to decolonization and freedom internationally.
The Constitution of any country is its basic fundamental law and the bedrock of its system of governance. Following our independence in 1948 the country adopted the so-called Soulbury Constitution from the erstwhile colonial power which established a bicameral parliamentary democracy in our island nation. With some changes like the abolition of the Senate, this Constitution continued till 1972 when the Republican Constitution was adopted through a Constituent Assembly with an elected Parliament and an appointed President. In 1977 with the landslide electoral victory of the United National Party its leader, Mr.J.R.Jayewardene, interpreted this as a mandate to fulfill a long cherished personal ambition of enacting a new Constitution with an Executive Presidency and an elected Parliament. There was no referendum and as Prime Minister he was deemed to be the first Executive President for a term of six years. The combination of elements from the French Constitution led to this new Constitution being called a “Gaullist Constitution” with none of the checks and balances which the US model of an Executive Presidency contained. The vital separation of powers among the Legislature, the Executive and the Judiciary was not maintained. Jayewardene was both Head of State and Head of Government and was elected in 1982 for another term. Recent tributes paid to the late Dr.N.M. Perera – the Lanka Sama Samaja Party leader and former Finance Minister – referred to his prophetic warnings on the dangers of the 1978 Constitution and its undermining of democratic institutions.
Jayewardene was succeeded by President Premadasa who was assassinated by the LTTE and in the ensuing election Chandrika Bandaranaike Kumaratunga was elected President. She and her successor Mahinda Rajapaksa were elected on a pledge to abolish the Executive Presidency which was by then widely perceived to be a totalitarian form of government. In the case of the former, she lacked the two-thirds majority needed for a change of Constitution. With the latter, even with a two-thirds majority constructed through crossovers, on 9th September 2010 his Constitutional change was the infamous 18th amendment which repealed the 17th Amendment and the independent Commissions it set up plus abolished the two-term limit of the Presidential office.
Since 2010 the cry for the abolition of the authoritarian Executive Presidential system and a return to the system of parliamentary government gathered momentum. The final adoption of the 19th Amendment, although not fully satisfying that demand, has to a large extent rectified the democracy deficit in the Executive Presidential system. Civil society was especially forceful and influential in its advocacy of the abolition of the Executive Presidential system and the Ven. Madulwawe Sobitha Thero at the head of the National Movement for Social Justice was at the vanguard. As I have written elsewhere Ven. Sobitha by identifying the Executive Presidency as the root of much of Sri Lanka’s political, economic and social malaise succeeded in attracting a broad range of support from politicians, intellectuals, trade unionists, religious leaders from all religious persuasions, lawyers, retired public servants, civil society activists and many others who wanted a fundamental constitutional change.
The search for a Common Candidate to espouse the cause of the abolition of the Executive Presidency ended with the emergence of Mr.Maitripala Sirisena. His dramatic campaign against enormous odds and his success paved the way for the adoption of the 19th amendment which featured prominently in the election manifesto and the “Hundred Days” programme.
It was anticipated that with a 2/3 rd majority only and no referendum possible in the circumstances, a total abolition of the Executive Presidency could not take place. Whether the glass is now half full or half empty will continue to be debated and not only by constitutional lawyers. Certain requirements in the proposed amendment were stipulated by the Supreme Court and were adopted accordingly. As the Amendment was discussed at various stages it was subject to changes right up to the Committee stage in Parliament. The composition of the Constitutional Council was the subject of much debate until a compromise was forged. A striking feature during the negotiations was the patience displayed by the President himself and his unswerving commitment to achieving the objective of the change willingly sacrificing the powers which he had assumed through his election. Indeed his voluntary abbreviation of his own term of office from six to five years and his decision not to run for a second term set a shining example to inaugurate a new political culture of humility before the people.
The well-known Commonwealth principles setting out the relationship among parliament, the judiciary and the executive in member countries launched at the Commonwealth Secretariat in London on 12 May 2004. Called the “Latimer House Principles”, as the Commonwealth states, “they govern issues such as the harmonious balancing of power and the interaction among parliament, the executive and the judiciary in democratic societies. They set out in detail the consensus arrived at by representatives of the three branches of government in the Commonwealth on how each of their national institutions should interrelate in the exercise of their institutional responsibility. The Principles specify restraint in the exercise of power within their respective constitutional spheres so that the legitimate discharge of constitutional functions by other institutions are not encroached on.” There has to be equilibrium among the different parts of government for democracy to flourish. We have moved our constitution from a state of disequilibrium to a state of democratic consonance.
Among the many changes brought in by the 19th Amendment are –
- The effective repeal of the 18th Amendment and in particular the absence of term limits on holding Presidential office by the specific disqualification of persons who have been twice elected to such office, who are under 35 years of age and dual citizens;
- The term of the President and of Parliament is reduced to 5 years;
- While the duties of the President are outlined, and includes the promotion of national reconciliation and integration, it is clear that the President is responsible to Parliament and cannot dissolve Parliament at his own discretion during the first four and a half years;
- The President cannot remove the Prime Minister at his discretion;
- The re-establishment of the independent Commissions and they include the Election Commission, the Public Service Commission, the National Police Commission, the Audit Service Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery and Corruption, the Finance Commission, the Delimitation Commission and the National Procurement Commission insulating these vital arms of government from politicization;
- The establishment of a Constitutional Council to approve persons for important public offices and to recommend persons for appointment to the office of Chairman and members of the above Commissions;
- The inclusion of a citizen’s right to information upholds democratic principles of transparency and accountability;
- The limitation of the size of the Cabinet to 30 except for the transitional “government of national unity” in the next Parliament which may go up to 45 for Ministers;
- The unsatisfactory phenomenon of hasty legislation through urgent bills is rectified by the requirement of 14 days notice for the public to consider a Bill by way of a Gazette before it goes to Parliament;
- The establishment of a National Procurement Commission and an Audit Commission helps to prevent corruption restoring public confidence in the handling of public finance and ensuring a rule based investment climate.
The cumulative impact of the above features and more has been to restore the confidence of the international community in Sri Lanka as a democracy. As a pluralist society the Amendment has reinforced inter-ethnic and inter-religious trust and confidence making democracy more meaningful and effective. Indeed just yesterday the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein in his opening statement to the 29th session of the Human Rights Council said, and I quote, “The new Government in Sri Lanka has passed a Constitutional Amendment if implemented appropriately brings renewed hope for democracy and the rule of law.”
The shared values set out in the United Nations Millennium Declaration adopted by the General Assembly serve as a common ethical base. They comprise six of the most basic aspirations of humankind – freedom, equality, solidarity, tolerance, respect for nature and shared responsibility. From each of these fundamental values we draw our guidance for the specific action plans to which the international community must commit itself. It is a moral compass for us all. Individually these values represent powerful forces that have inspired and motivated humankind throughout millennia of history. They have been the accelerators of human progress. Collectively, they also represent the benchmark against which we must judge our performance as individual nations and collectively as the world community in taking humankind forward to a better and safer world.
Six years after the brutalizing conflict imposed on our nation by a secessionist-terrorist group we are only just beginning to undertake the sincere task of reconciliation and development recognizing that asphalt, brick and mortar are not enough to repair the damage of war. President Sirisena himself expressed it in these words on May 19 at Matara – “Though the damaged buildings, destroyed roads and other physical resources were being re-built there was no reconciliation process during the post-war period to rebuild the broken hearts and minds. Therefore, as the new government we clearly state that our policy is that of development and reconciliation. We cannot fulfill our expectations for reconciliation only through development. The reconciliation process includes investigating the truth, carrying out justice, eliminating the fear and mistrust and building trust among every community and re-building physical resources which were devastated by the armed conflict. Hence, with the experience of the war, we must understand the requirement of priority for the reconciliation process. “
Truth seeking, justice, and the repair of wrongs that led to conflict are fundamental. For that democratic space has to be created and a new atmosphere of candour and confidence has to be established. The adoption of the Nineteenth Amendment is a milestone in that process. You have all been a witness to the making of history in Sri Lanka and we value your understanding and good wishes on our democratic nation-building journey.
*Jayantha Dhanapala made this keynote address at “19 A: Landmark of Democratic Revival” a panel discussion and Q & A for the diplomatic community of Sri Lanka on the 19th Amendment on June 16, 2015, 4pm at Jaic Hilton. The transcript of the speech was provided by the President’s Media Division.