By R.M.B Senanayake –
The modern democratic approach to constitution making is the formulation of a set of immutable constitutional principles. Gone are the days when the sovereignty of the people meant that the people could their through their elected representatives, pass any laws by majority vote and do away with human rights and minority rights. Democracy means more than the right of the people to elect representatives to form a government which could then govern as they wish disregarding fundamental rights and values. There is the UN Declaration of Human Rights which must be incorporated in the immutable principles of a constitution. Nor is it acceptable now for an elected Executive to make constitutional changes undermining the original principles of the Constitution. Today there are acceptable and unacceptable constitutional amendments and doing away with the inherent checks and balances off a democratic constitution is no longer acceptable among liberal political thinkers and jurists.
Both President J.R. J as well as President M.R have tinkered with the fundamental principles underlying the Constitution. President J.R. J held a Referendum to extend the term of office which is not acceptable in a democracy. President M.R has abolished the two term limit on the Presidents tenure. Today these constitutional amendments would be unacceptable. So there should not only be a set of immutable principles for the constitution but also a set of principles which should govern the procedures for constitutional amendment which are acceptable such as a super majority like 2/3 of even ¾ for the Sinhalese Buddhist majority is 70% and cannot permit protect minority rights and human rights.
The UNP has not really abolished the Executive Presidency(EP) A rose by any other name smells the same. The UNP has smuggled it in under a different guise. They have proposed a directly elected Prime Minister instead of a directly elected President. In a presidential system of government there is a clear separation of the powers of the legislature, the Executive and the Judiciary. In the Westminster model the Executive is not directly elected but is drawn from the party which holds the majority. The Executive accountability is then exercised by Parliament although if the ruling party has a clear majority this accountability is eroded. Under the Proportional Representation system coalitions are more likely whether the Executive is a prime Minister drawn from Parliament or directly elected. There should not be direct election of the Executive and a Prime Minister directly elected would be as powerful and be no different from the presidential system. If the Prime Minister ( call him by any name) is directly elected by the people he will no longer be primus inter pares ( first among equals) but an all powerful elected leader who can control both the Cabinet and the Parliament.
While control of the Cabinet is acceptable the control of Parliament is not, certainly not by using undue pressure on the freedom of conscience of the elected Members of the ruling political party. There should be a clear separation of powers if the leader of the Executive branch of the State is directly elected. Otherwise freedom is in peril as theorized by Montesquieu and witnessed by us under the present hybrid system. In a presidential system there must be separation of powers as in the US and French Constitutions. President J.R UJ made a hybrid Constitution ignoring the fundamentals of Constitution making for a liberal democracy. Let the UNP not repeat the mistake. Let us first agree on a set of immutable principles such as the rights under the ICCPR and minority rights recognized in UN Declarations. This is best done through talks with the TNA preferably winning the support of the democratic SLFP. Once these immutable principles are agreed with the minorities both ethnic and religious including the Muslims and Christians then the procedure for Constitutional changes should be agreed upon. A super majority like the ¾ majority may be imposed for acceptable changes in the Constitution.