28 September, 2020

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The Political Need Of The Hour: Transformational Approach To Constitution Making

By Shanthi  Sachithanandam

Shanthi  Sachithanandam

Shanthi Sachithanandam

A long awaited concerted action has now been initiated by the opposition parties in their identification of a common candidate for the upcoming presidential elections, and the agenda for action. Understandably, the opposition needs a simple yet mass rallying slogan for their campaign. The abolishing of the executive presidential system has been designated by them as the call and the cause. In his first press conference as a proposed presidential candidate, Mr Maithripala Sirisena spelt out this agenda as abolishing the executive presidency within 100 days of his being elected as the executive president, and appointing Mr Ranil Wickremesinghe as the Prime Minister. Perhaps, for a short 50 day election campaign this agenda would suffice. Leaving aside the arguments on whether a person contesting  for an office in order to abolish it  is  a sound strategy, let us revisit the goals of such a campaign and what it portends for the future of this country.

We are made to understand that the call for the abolishing of the executive presidential system is for the purposes of restoration of democracy in Sri Lanka and bringing an end to the Rajapakse family rule; the 18th amendment to be repealed and the 17th amendment implemented to the full. There is no doubt that the executive presidential system has eroded the powers of the Parliament, undermined the judiciary and concentrated powers within it to the detriment of the necessity for devolution of power in order to address the Tamil national issue. But the question is, is the executive presidency the only cause of the deterioration of democracy in this country and would democracy be restored once it is abolished and the necessary amendments implemented? All the aspects of governance which have impacted adversely on the democratic traditions in this country – Parliament usurping and twisting the spirit of the constitution, the festering of the Tamil national question, the lack of democracy and the dominance of particular families  within political parties,  politicization of the public service, upward spiralling of election related violence, gagging of the media, and lastly the lack of an independent  judiciary – surely began  long before the advent of the executive presidency? And this rot was apparent  at  the outset itself back in 1948 in the newly independent Ceylon.

At the first general elections held in 1947, the Kayts constituency in Jaffna district was won by an independent candidate Mr. A.L Thabiaiyah who was known to be supported by the United National Party (UNP). He was then the Chairman and managing director of the Ceylon cargo Boat despatch company Ltd., and had wharfage and lighterage contracts with the Colombo Ports Authority. During that time the law governing the elections of members to the House of Representatives[i] stipulated that a candidate who is directly or indirectly interested in any contract with the government is disqualified to be elected to parliament. The intention and the spirit of this law was obviously to prevent corruption. Mr Thambiaiyah’s election was challenged in courts and upheld by the election judge, a judge of the Supreme court. According to the law, then there was no provision for appeal. Sensing that this judgement would affect the interests of the Ministers and other party members  (who also  had also similar business interests), the UNP rushed a Bill through Parliament to amend the order in council incorporating a new clause giving the right of appeal from an election judge’s findings. Now an aggrieved party could appeal to the supreme court within 30 days of the elections court judgement. Mr Thabiyaiah lodged the appeal to a three member bench of the supreme court  and saved his seat as M.P for Kayts. This was the beginning of the slide down democracy path.

Following this, the next 30 years saw a series of undemocratic legislations enacted, first to disenfranchise the plantation workers, then to assert supremacy of one race through a language Act; the 1972 constitution removed all protections for the minorities, undermined  the power and independence of the judiciary and declared  almost all powers vested in the  house of representatives, against the very principles of the preservation of checks and balances. In the meantime, families had come to rule over political parties. And as such, when those parties captured State power the family members naturally dominated also the government. The public service began to be politicized in the 1960s and the press muffled in the 1970s. With the crushing of the JVP uprising in 1971, the militarization of the State had successfully begun. Members of parliament came to the position of towing their own parties’ line regardless of the opinions of their constituencies and voter base (and their conscience?), leaving  the term “house of representatives” meaningless.

In actuality, the 1978 constitution and its executive presidency was a result of this trend rather than its cause. The rot did not stop there. The same trend continued  through the next thirty years so that  the term of each presidency became worse than the previous one in terms of corruption, nepotism and the deterioration of the rule of law.  Seeing this way, the Mahinda Rajapakse regime had to be the culmination of this trend, and it was.

The press conference held by the United People Freedom Alliance (UPFA) dissidents and former president Chandrika Kumaratunga spoke volumes on this state of politics in the country. On the one hand they objected to the Rajapaksa family dictatorship. But on the other hand, Mr. Sirisena ruefully reminisced on the fact that Bandaranaike family’s name was prohibited to be mentioned within the party. Ms. Kumaratunge tearfully declared that she has at last “come home” (to her family’s party). Mr Sirisena also recounted his experiences of how he was constricted even as the Minister of Health. We can only conclude  here  that there are no real objections to family rule as long as others are also allowed a ‘share’. The Rajapakses tried to take it all. That was their crime.Even at this juncture, the opposition forces failed to take a clear stand on principles.

This brings us to the core of the argument of this article. It has to be acknowledged that our political leaders have totally lacked sincerity in safeguarding democracy from the very beginning;  their practice of democracy has been so short sighted and always bent on expediency that it has destroyed hallowed  traditions which are pivotal to the function of any democracy. Today very few of us in this country have any idea as to how the Parliament and other democratic institutions ought to be functioning. This is a vicious circle that reproduces and spews criminal and undesirable elements to political leadership. Meanwhile, the electoral politics has sowed racism so deep, leading to a cruel war, of which even now the fallouts are felt where any reference to the problem of the Tamils is seen  as a disadvantage to the cause of the opposition! In this context, abolishing of the executive presidency  and bringing one or two amendments to the constitution will be nothing but  mere cosmetic changes. That the executive presidency might be supplanted by an executive prime ministerial post is a real fear. We have to remember that all the required political infrastructure is already in place to aide this.

The Rajapaksa regime has taught us a good lesson on what the long term repercussions of  the ‘Thambiaiyah case’ would be. Let’s use this awareness to reform the whole system bottom up. Democracy within the State has become contingent upon a comprehensive civic education process at the grass roots which facilitates internalization of the principles of democracy. This collective learning process is best achieved through a participatory process of constitution making where the whole country could contribute towards the making of a new constitution that upholds secularism, fundamental rights, equality including the concept of substantive equality, and the rule of law.  And such a constitution will be owned by all the nations and communities, initiating the building of a truly representative and inclusive Sri Lankan State at long last. And importantly, not to forget  the need to reform also the political parties. Not only clear policies should be formulated for the internal transition in leadership, but also each party should be supported by the State to conduct training workshops and other educational projects in order to raise the awareness and skills of their membership in the norms and  practice of democracy.  In this, let’s take a leaf off the German experiences of the 1950s and 60s.

The opposition could begin this transformational process with incorporating the making of a new constitution as part of its post  election agenda. Winning the coming election is the priority right now, but that should not preclude a strategy to continue the reform to its depth.


[i] Contained in The Ceylon Parliamentary Elections Order in Council, accompanying the Soulbury constitution

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Latest comments

  • 2
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    Stateless people trying to change constitutions!

    What a joke!

    • 1
      1

      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/

    • 3
      1

      You are the bloody joker in this forum.

    • 0
      1

      Fathima Fukushima aka Lorenzo and Avtars

      They all are called Paras.

      Para-Sinhala, Para-Tamil (de,mala) , Para Muslim, Para-Portugese(Parangio), Para Dutch, Para-English, Para-Malay, Para-Chinese etc, EXCEPT Native Veddah Aethho, who are the Natives of the Land and the Land belongs to them.

      The Vedda Tribe

      https://www.youtube.com/watch?v=f89NuukY32U

      Tamil-speaking Veddas of Vaharai await war recovery support

      https://www.youtube.com/watch?v=HeFCuZwexRw

    • 1
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      Better than being man/woman slut on this forum wasting space.

  • 3
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    The Rajapaksa-dynasty is unlikely to give up power after counting votes. Presently unfolding political scenario could even end up in a military takeover. A naked dictatorship could replace the existing camouflaged dictatorship. Therefore, discussing about ‘Constitution-Making’ in the abstract might turnout to be a meaningless exercise. Only a mass uprising would bring down this government and bring truly democratic changes – nothing less. If the Opposition is wise it should prepare for nasty shocks between December 8 and January 8. In the context of this ‘Fascist Threat’, Sri Lanka’s Leftist parties should urgently form a UNITED FRONT irrespective of their political differences. Such a Left-Front should, while fully backing the Opposition’s electoral campaign to abolish the Executive Presidency, vigorously campaign to warn and prepare the masses to confront this serious threat.

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      A revolution is in the making. The tide has turned and the waves are becoming stronger by the day. It can become a Tsunami, if the opposition carries out a vigorous campaign addressing not only the evil that constitutes the Executive Presidency as presently designed and manupulated, but also the tangible problems the people recognise. MR, whatever game plan he may have, may not be able to change the course of history, He can win only if the opposition fails to give further impetus to what has become a clearly palpable, but unorganised people’s movement. It is an election that the oppostion can only lose by default.

      I hope the opposition does not also take the people for a ride, as MR has done.

      Dr.RN

      • 2
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        DR RN,
        I am no lawyer but when I have entered the inner temple library I see juniors researching the words of the case in latin (english has less and spanish has more)
        Language is 2 dimensional and can be interpreted. I have noticed with one word murders cases are won and lost.
        British constitution is in one page but their culture is different ie. if caught they promptly resign or are forced by media, public, and other mp’s
        Like what happened to Dr Fox.
        The constitution that a greedy housewife sirima who had not passed high school taken over by 2 parasites solicitors JR MR.

        Don’t tinker start fresh or you carry the virus like reusing dirty underwear

    • 1
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      VR

      Absolutely correct perception and the only prescription that will work

    • 0
      0

      VR

      Absolutely correct perception and the only prescription that will work.

  • 2
    3

    Ms. Satchthanandan,

    Thank you for your call. What is wrong with Sri Lanka, is much lrger, wider and deeper than the Executive Presidency. We need an overhauling of the constitution in toto on the basis of indepth sudy and recommendations of a Constitutional Commission made of eminent, cultures and wise persons. Further, the political system should be so designed to attract persons of high calibre into poltics. If we continue to elect, mice, rats, bandicoots and vultures to parliament, no constitution can withstand their onslaught.

    Further, a new constitution must not be drawn up by politicians for poltcians, any longer. It should be for all Sri Lankans and should involve eminent persons in society. Expediency also should not be the motivating factor in consitution making.

    Dr.Rajasingham Narendran

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      Dr.Rajasingham Narendran,

      sorry to bother you but i thought you are the best person to explain this- NaMo is in a tight position as per australian papers. It seems the Brahmin women want to admonish NaMo.Indian Prime Minister Narendra Modi’s estranged wife wants benefits
      Daram to me is :
      The story of Shakuntala occurs in the Mahabharata, Adi Parva, Chapters 68-74.

      She says: “I am the wife of the honourable prime minister of India,” stated the retired teacher.
      “I would like to know under what provisions of the law and the constitution of India am I being provided protection? As wife of the Prime Minister what are the other benefits I am entitled to?”

      “Gandhi was attacked and killed by her personal bodyguards, because of which I am very afraid. Kindly provide me with details of the guards,” she wrote in her application. The grey-haired woman demanded a reply in 48 hours, calling it a “matter of life and death”, signing the application using the name “Jashodaben Narendrakumar Modi”.

      • 1
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        The question you ask is something I know basically nothing about.

        However, some questions arise in my mind.

        1. Why does she want to live with or get support from Modi after so many years of separation or abandonment?

        2. Was the marriage ever consumated?

        Prince Siddhartha had to abandon his wife, son and palace to seek the TRUTH. Narendra Modi has followed in his footsteps to seek his destiny. He apparently travelled over vast areas of India as a Sanyasi of sorts.

        Was Prince Siddhartha wrong? If not Modi is also not wrong. Sidhartha’s wife and son had a palace to support them. Modi’s wife had a job as a teacher and draws a pension now. She is not destitute. I am glad Sidharatha became a Buddha and Modi became the PM of India. These attainments may not have been possible, if both had followed the mundane routines of life.

        Dr.RN

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          Thanks for your reply,

          Dr Sivananda (sivananda went to rishikesh now world wide ashrams teaching Yoga no sex) a Brahmin and Gautama a Kshatriya both did the same but not Modi the Brahmin of RSS (the lathi wallas in kakhi shorts ever ready for a fight)

          Modi is in politics he is allowed to visit USA like MR merely because they are head of state like Pinochet.

          Gujarat is a clench fisted state in the eyes of its main supporter Maharashtra and this is what the selector of Foreign Service personnel India had to say( both his parents are winners of Presidents award for literature) . Take Ahmedabad the school of management the best of american even when the doors of the west were closed to all Indians. Now Modi signed the IT and hardware city of China as sister to Ahmedabad. He signed it first and that was important to him than the nation. Neither the Japanese or Chinese were interested because they see the practice and the generations gone into it and prefer Kerala (where the ancient chinese fishing gear is on display) and Tamil nadu both are in the business of IT schools specialising in software design which the Chinese are struggling (just one firm has over 500 such schools of IT at Shanghai I have the Shanghai Business News paper of OCT 2007 and when I have the time I will give you details)

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