By Rajan Philips –

Rajan Philips

Participating at the All Party Conference that then President Jayewardene convened in January 1984 in the aftermath of the watershed violence of 1983, Dr. Colvin R de Silva characteristically perorated that the structure of the Sri Lankan state is incongruent with the country’s ethnopolitical reality. He said it more as a Historian than as a Lawyer or as the architect of the 1972 Constitution.

This gap between state structure and ethnopolitical reality was somewhat bridged by the 13^th Amendment that came three years later, with all due credit to President Jayewardene no matter how begrudgingly he may have done it and even if it was under Indian duress as JRJ’s critics have been alleging ever since.

In this backdrop, it is fair to say that the NPP’s constitutional proposals, even if they may not have been drafted with this specific intent, could contribute to further bridging the structural-reality gap and potentially transform Sri Lanka into an ethno-equal state and an ethno-equal nation. The rub, however, is in the ability of the government, as well as its intention, to fulfill in practice what is otherwise a very laudable purpose. The experience so far with the Provincial Council elections and the absence of any manifest effort by the NPP government towards implementing any of its main constitutional proposals do not allow room for too much optimism.

As I cite below, the NPP’s Manifesto fulsomely promises to hold all provincial and local government elections within one year after coming into office. Now with all the ministerial and prime-ministerial explanations in parliament as to what and what pre-steps this apparently overworked government is constrained to undertake before any PC elections, the PC system would consider itself lucky if the next provincial elections end up being held at the same time as the next parliamentary elections. That is the reality. It could be much better and more so for a government that promised to be much better.

The NPP’s Constitutional Purpose

Section 4 of the NPP Manifesto, A Thriving Nation, A Beautiful Life, is entitled A Dignified Life – A Strong Country, and includes nine subsections, viz. 1) A new constitution – A united Sri Lankan nation; 2) An efficient public service – A skill based professionalism; 3) Rule of law – A judicial system with equal access; 4) Public security assuring – People friendly service; 5) A humanitarian prison – A lawful confinement; 6) A drug-free country – A healthier citizen life; 7) A dignified diplomacy – A sovereign state; 8) High level of national security – Secured state; and 9) A Sri Lankan Nation – The Universal Citizen. These subheadings and sections are indicative of the NPP’s vision for the Sri Lankan State, a Sri Lankan Nation, and the equality of all its citizens.

The Section specific to the constitution (Section 4.1) includes the NPP’s promise to usher in “a new constitution” for “a united Sri Lankan nation.” The process for introducing the new constitution is described thus: “A new constitution will be drafted and passed through a referendum with the necessary changes, if there any, after going through a public discourse.” In addition, Section 4.9 – A Sri Lankan Nation – The Universal Citizen, elaborates on the premise and the purpose of a new NPP Constitution which are outlined as follows:

“Introduce a new constitution that strengthens democracy and ensures equality of all citizens. This initiative will build on the constitutional reform process started in 2015 which remains incomplete. The proposed constitutional reforms will guarantee equality and democracy and the devolution of political and administrative power to every local government, district and province so that all people can be involved in governance within one country. Provincial councils and local government elections, which are currently postponed indefinitely, will be held within a year to provide an opportunity for the people to join the governance.”

Fifteen “activities” are included as making up the constitution making process: 1) Recognizing and enacting the rights mentioned in the International Covenant on Civil and Political Rights as basic rights; 2) Broadening the constitutional law about the rights of children, women, and people with disabilities according to international conventions; 3) Safeguarding the voting rights of immigrants within and outside of the country; 4) Abolishing the executive presidency and appointing a president, without executive powers, by the parliament; 5) Introducing a new parliamentary electoral system; 6) Limiting official presidential residences to one; 7) Abolishing the pensions and special privileges given to retired presidents and their families; 8) Appointing 25 ministers and corresponding deputy ministers to 25 logically determined ministries and abolishing State Ministerial posts; 9) An advisory council consisting of specialists on the subject will be appointed to each ministry; 10) Introducing a code of ethics, including not allowing members of parliament (MPs) and ministers to appoint their immediate family members to their personal staff; 11) Abolishing allowances made to MPs for participating in parliamentary sessions; 12) Abolishing the pension offered to MPs after 05 years; 13) Preventing MPs or their close family members from directly or indirectly engaging in businesses or contracts with the government; 14) Removing the tax-free vehicle permits for MPs; and 15) Giving only one vehicle for Giving only one vehicle for Ministers /Deputy Ministers to be used during their period of office.

Interestingly, while the aborted 2015 constitutional reform process that the NPP was a part of is acknowledged, there are no references in the proposals – to the 1972 Constitution that made Sri Lanka a Republic, or the 1978 Constitution that introduced the Executive Presidential System. Missing, as well, in the proposals are some of the signature terms that were/are both the badges and burdens of the two constitutions viz., the republic; unitary state; socialist (1972) and democratic socialist (1978); and special status for Buddhism. On the other hand, the NPP proposals (Activity #1 & #2) include the commitment to enshrine and enforce rights and freedoms of Sri Lankans in accordance with international covenants and conventions. This inclusion is refreshingly open in contrast to the 1972 and 1978 constitutions which were rather averse to embracing anything ‘foreign’ due to the misplaced fear of diluting the island’s sovereignty, which is more theoretical than concrete.

However, sovereignty and territorial integrity are duly emphasized in Section 4.7 of the proposals: A Dignified Diplomacy – A sovereign State, and in Subsection 4.8: Sovereignty and Territorial Integrity. Section 4.9: A Sri Lankan Nation – The Universal Citizen, underscores national reconciliation, equality of citizens in religion and language, and the vigorous operationalization of the Provincial Council system even though the 13^th Amendment is not mentioned in the proposals. There is, however, specific reference to 16^th Amendment and the promise to implement the National Language Policy that is enshrined in 16A. Sri Lanka’s ethnic diversity is acknowledged and various measures are identified for achieving national reconciliation and a free and equal society.

Among these measures are: establishing an Inter-Religious Council consisting of all religious leaders and religious scholars to resolve inter-religious issues; releasing all political prisoners and ensuring their free socialisation; abolition of all oppressive acts including the Prevention of Terrorism Act (PTA); regularization of civil administration in a way that the civil rights of the people in all parts of the country including the North and East are guaranteed; providing educational and employment opportunities to all ethnicities based on merit without political influence; providing relief to war widows, internally displaced persons, people with disabilities and people with trauma in need of relief and shelter; settlement of existing land related issues by a National Commission on Lands and Settlements; and ending resettlement programmes that operate with the aim of changing population composition; and addressing the wages, land, housing, education, and health issues of the Malaiayaka Tamils based on the NPP’s Haton Declaration of 2023.

This is an impressive list by any comparison and it will be all the more impressive if the NPP government were to seriously and capably set about achieving most or all of them.

The Constitutional Process

While the Manifesto indicates that “a new constitution will be drafted and passed through a referendum with the necessary changes, if there any, after going through a public discourse,” it is not clear if the NPP intends to selectively or comprehensively amend the current (1978) constitution, or repeal and replace it based on a referendum. Similar to its 1972 predecessor, the 1978 Constitution provides for repealing and replacing itself but requires the people’s endorsement in a referendum. Although the referendum requirement is limited to specific provisions of the constitution, an interpretive judicial culture has since evolved widening the referendum net to capture other provisions that are not stipulated in Article 83 of the constitution.

Opposing and, in my view, more persuasive voices have been heard from experts like Dr. Nihal Jayawickrema, and long before that from Dr. Colvin R.de Silva during the controversy over 13A referendum requirements, that a referendum requirement should be limited to changing only the provisions that are specifically included in Article 83. By this interpretation, a referendum is required to extend the term of a president or of parliament, but not for abolishing the system of elected executive presidency itself. There is no contradiction in this.

The extension of parliament became a political sore point after the UF government’s prolongation of the 1970 parliament by two years from 1975 to 1977. JRJ subjected such extensions to approval in a referendum as a brusque rejoinder to the UF government. Indeed, almost all of the provisions included in Article 83 are either a rejoinder to the UF government or a pre-emptive measure to stop future governments from changing the pre-1970 symbols of the Sri State, such as the independence day, the national flag, the national anthem. Article 4 in its entirety, which includes 4(b) pertaining to the elected president, is excluded in Article 83 and, therefore, requiring a referendum to change or repeal it. This is not due to any oversight by the framers, and could be seen as being their consistent position that was introduced without a referendum should not require a referendum for removing it. Only a two-thirds majority in parliament.

At the same time, a synthesising view has also evolved that if the current constitution were to be changed in a substantial manner, let alone repeal and replace it even without changing any of the Article 83 provisions, it would be prudent to have a referendum and be done with it. The latter is also the NPP’s position but seemingly taken from a more positive and democratic standpoint than a narrow interpretive standpoint. But there are questions as to how and when the NPP government will have a constitution package ready and when will it likely call for a referendum. It is not necessary to detail the amending processes in an election manifesto, but with nearly two years in office it is time for the government to indicate what is going to be its new constitution and how is it going to be achieved.

Another technicality is that when it drafted the manifesto promising constitutional changes subject to a referendum, the NPP may not have been expecting to win a two-thirds majority in parliament. So, what was its thinking about meeting the initial amendment requirement of a two-thirds majority in parliament without having sufficient numbers in the government. It would have had to find common ground with opposition parties in parliament. That is the very purpose of the two-thirds majority in parliament – to achieve interparty consensus as opposed to using a steamroller single-party majority.

The question to the government is why is it not being consultative with at least some, if not all, of the parties in opposition . As well, inasmuch as the Manifesto refers to a continuation of the 2015 constitutional reform process, why is the government not consulting with those individuals and organizations who were significantly involved in that earlier process. Some of them were directly associated with the NPP. But none of them is in the scene now, while the current Minister of Justice who was politically unheard or unseen at that time is now in charge of the whole project. Unless he is only a shadow minister for the President.

In any event, the double burden of Justice and Constitutional Affairs is too much for even the most experienced and equipped political leader. It is too much to saddle a first time MP and a first time Minister with such heavy responsibilities. As well, there is much talk about the government inviting non-NPP experts to play lead roles in institutions and agencies involved in running the economy. Why not extend this approach to implementing the NPP’s constitutional reform process?

To hark back briefly to the making of the 1972 Constitution, the United Front was not banking on winning a two-thirds majority in the 1970 elections to overhaul the constitution. Instead, they were relying on Colvin’s legal theory that the new constitution will be a total rupture from the Soulbury Constitution and that its making will follow its own path based on an electoral mandate from the people. “Not merely despite the Queen, but in defiance of the Queen and her Crown,” was Dr. Colvin’s platform pitch. The two-thirds majority that the United Front turned out to be a curse in disguise for that government. While the NPP is now saddled with a two-thirds majority it doesn’t have Colvin’s legal theory to ignore the amending procedures of the 1978 Constitution. JR Jayewardene faithfully followed the amending procedure of the 1972 Constitution, but created a more rigid constitution than its far more flexible predecessor.

Ushering new constitutions are easily done on the morrow of independence or a revolution. Midlife constitutional changes are extremely difficult in any country and there are only a handful of countries that have successfully achieved this feat. The successful making of the 1972 and 1977 constitutions in Sri Lanka were almost entirely due to the power and competence of their two architects: Colvin R de Silva whose power was entirely intellectual and professional, and JR Jayewardene who had absolute political power after the UNP’s landslide victory in 1977.

Sri Lankan politics has not been able to replicate their circumstances ever since, and the circumstances of the NPP are no different, its two-thirds majority notwithstanding. If the government is serious about drafting a new constitution, conducting public consultation, and holding a referendum, it should have started the process the day after it was sworn into office. It could start the process right way even now. And the task deserves a separate ministry and supporting expertise from outside the NPP. It cannot be the parttime job of a first time Minister of Justice.

All that said, many of the NPP’s reform proposals can be implemented without introducing a new constitution. Few have already been introduced and many more can be introduced by simple legislation or through amendments without a referendum. But very little has been done so far. Indeed, for the super majority the government has in parliament, its legislative record has not been sufficiently impressive. The government has been giving priority to implementing proposals that it considers to be more resonant with the voters at large.

They include, the taking away the manifestly undue perks and privileges of former presidents, and the proposals to end the more offensive perks and privileges of parliamentarians. The reform of parliament of parliament itself is to be achieved by implementing a new electoral system; by limiting cabinet size to 25 and appointing an advisory council for each ministry; and introducing a code of ethics for MPs. These measures will also go down well with the public, but they can all be implemented through simple legislation without having to change the constitution through a referendum. At the same time, while having its eye on the election ball is understandable, the government may be risking the result of a lopsided constitution by implementing reform proposals primarily for winning votes at the next election.

The most glaring omission so far is the continuing foot dragging over the repeal of the Prevention of Terrorism Act (PTA). There are already new victims of this continuation. What is the point in indefinitely detaining people like Retired Major Suresh Salley under the PTA? It only vitiates however plausible a case the government might be having against Mr. Salley. More importantly, Salley’s detention flies in the face of the NPP’s promise to abolish the PTA, and its promise of custodial and prison reforms under Section 4.5 of the Manifesto: A humanitarian prison – A lawful confinement. The PTA only keeps the door open for police abuse and overreach.

The elephant among the reform proposals is the promise for “Abolishing the executive presidency and appointing a president, without executive powers, by the parliament.” If only the NPP government can deliver on this promise during its current first term, it can justifiably claim to have fulfilled its constitutional promise almost in entirety. No one will likely ask for anything more from the NPP, constitutionally speaking. But that seems unlikely to happen and this gets clearer as each day goes by. The talk inside the NPP and outside would seem to suggest that President Dissanayake will seek a second term as an elected Executive President and renege on what was made out to be a historic promise. It will become another daydream, so to speak.