By Mahinda Rajapksa –
Steps have been taken by the government to initiate the process of promulgating a new constitution for Sri Lanka. Since this is a matter that will touch the lives of all Sri Lankans, this process should receive as much public participation as possible.
Controversies have emerged about the procedure to be adopted in making changes to the constitution. The opposition has suggested that the process of constitutional change should be within the provisions of the present constitution and the standing orders of parliament. I believe the government will be flexible on this matter. This is not the first time that changes have been made to the present constitution. By keeping matters within the available parliamentary mechanisms, everybody will be able get on with the task at hand.
My manifesto for the 2015 presidential election “Mahinda Chintana lowa dinana maga” also pledged to take steps to formulate a new constitution for Sri Lanka. Earlier in 2011, my government had appointed a Parliamentary Select Committee under the chairmanship of Hon. Nimal Siripala de Silva to look into the changes that need to be made to the constitution including changes relating to the executive presidential system. That responsibility now lies with the present government. The single most important pledge on which the present government was elected into power was the abolition of the executive presidential system. The 19th Amendment to the constitution passed last year purported to reduce the powers of the presidency, but the executive powers of the president still remain intact.
The preamble of the resolution introduced in parliament last Saturday by the prime minister repeatedly stressed that the main objective of the new constitution would be to abolish the executive presidential system and to institute electoral reform. These objectives should receive our fullest support. The executive presidential system was mired in controversy from the beginning. The SLFP opposed it even when it was first instituted. Now when the very UNP that created this position is putting forward proposals to abolish it, we in the SLFP cannot oppose it. Furthermore, it’s a nephew of JR Jayewardene, the founder of this system who is putting forward proposals to abolish the executive presidential system.
I must stress that this should not be another attempt to hoodwink the masses. If the intention of the government is to simply deflect public attention from the myriad problems facing the country by making loud noises about constitutional change and abolishing the executive presidential system, such an attempt will not succeed. People are now tired of the lies and deception of this government. It is only because the President publicly made a solemn oath over the body of the late Venerable Maduluwawe Sobitha Thero that the executive presidential system will be totally abolished that I felt that perhaps the government is serious about constitutional change this time.
I wish to strongly suggest that other constitutional changes should not be mixed up with the two key issues of abolishing the executive presidential system and electoral reform, over which widespread consensus has built up over a period of time. The constitutional reform process should proceed in stages, taking up the abolition of the executive presidency and the reform of the electoral system first, and then going on to other matters.
The executive presidency was first brought in as the second amendment to the 1972 constitution which was passed around October 1977. The then Prime Minister JR Jayewardene was sworn in as the first executive president of Sri Lanka on 4 February 1978 on the basis of that amendment. It was after the executive presidential system was created that the 1978 constitution was promulgated incorporating the newly created executive presidency. Because of the special circumstances that we face today, I believe a similar two-stage approach will have to be adopted in abolishing the executive presidential system as well.
It is only through a referendum that certain entrenched provisions of the constitution can be changed and if a whole new constitution is presented to the people at a referendum, many of the entrenched provisions can be changed in one fell swoop. People have suspicions that provisions inimical to the unitary character of the Sri Lankan state may find their way into the new constitution if it is passed as a single document. We must ensure that the whole constitution making process is not hampered due to these misgivings. There is no doubt that a referendum would be necessary if the presidential system is to be abolished. The Supreme Court has already given a determination on the matter. On the other hand, the president has already assured parliament that the unitary character of the state and the special status accorded to Buddhism in the constitution will not be touched. If such is the case, no other entrenched provision need be changed and the only matter that will require a referendum will be the abolition of the executive presidency. So by breaking up the constitution making process into different stages, we will be able to get the provisions that require a referendum passed first, leaving the rest to be dealt with later.
Ever since the Supreme Court delivered its determination on the 13th Amendment in 1987, the executive presidency has been seen as the institution that keeps the country together in the context of the powers devolved to the provincial councils. So there are certain misgivings about abolishing this institution. In this context, a study should be done of the Indian constitution and of the powers vested in the Indian president, the cabinet of ministers and the Indian parliament (including the upper house of parliament) in relation to the Indian states, and similar provisions with additional safeguards if necessary, should be made applicable in relation to the provincial councils in Sri Lanka. While the provincial councils system was based on the Indian model of devolution, many of the safeguards available to the Indian central government to maintain the unity of the country were not made available to the Sri Lankan government through the 13th Amendment. These shortcomings will have to be addressed.
Apart from the abolition of the executive presidency, electoral reform was the second most important pledge given by the present government to the people. In this regard, I wish to point out that the hybrid proportional representation and first past the post system proposed by the Parliamentary Select Committee headed by Hon. Dinesh Gunawardene in 2008 was introduced at the local government level by my government. The next local government election will be held according to this new system. All that remains to be done is to introduce this system to the provincial council and parliamentary levels as well. In order to prevent controversies over the delineation of constituencies as we saw at the local government level, I suggest that the constituencies should be delineated first before the electoral reforms are introduced.
The devolution of power in the new constitution should not exceed the provisions of the 13th Amendment that have been implemented at present. There should also be no merging of provinces. The police and land powers accorded to the provincial councils through the 13th Amendment need to be re-examined. The safeguards available to the Indian central government in relation to the utilisation of land are not available to the Sri Lankan government. In the 1962 case of State of West Bengal v Union of India, the Indian Supreme Court affirmed that the central government could acquire any land in any state for any purpose of the central government without the concurrence of the state government. But Appendix II of the Ninth Schedule of our constitution says that the government of Sri Lanka has to ‘consult’ the provincial council to utilise land within that province for a purpose of the government.
The implications of such a provision in the Sri Lankan context should be clear to everybody. Therefore I suggest that the landmark judgement by the Supreme Court in the 2013 case of The Ministry of Plantation Industries v Solaimuttu Rasu delivered by Chief Justice Mohan Peris, Justice (now Chief Justice) Sripavan and Justice Eva Wanasundara be incorporated in the new constitution and powers over state land vested in the government and not the provincial councils. The significant fact about this case was that the three judges delivered separate judgments which concurred with one another.
Appendix I of the Ninth Schedule of the present constitution which was introduced through the 13th Amendment outlines the police powers accorded to the provincial councils. If these provisions are implemented, the national police force as we know it will cease to exist and all important day to day police functions will pass onto nine separate provincial police forces. I wish to suggest that while such a system may work in a large country like India where the states are bigger than most other nations, it cannot be practically implemented in a small country like Sri Lanka. Indian states such as Tamil Nadu which are several times the size of Sri Lanka have only one police force.
We will be making a bad mistake if we try to implement systems that are in place on a sub-continental scale within the Union of India in a country smaller than some of the smallest Indian states. In the three decades since the provincial councils system was introduced, we have seen many changes of government, but no leader implemented the police powers accorded to the provincial councils through the 13th Amendment because that would have rendered the country ungovernable. So we should proceed very cautiously on this matter. Unworkable provisions in our existing constitution should be discarded in formulating the new constitution.
I also wish to propose that in thinking about devolution, we should seek to empower the grassroots level bodies such as the local government institutions as far as is practically feasible so that the people of the area have a say in the way they are governed. Leaders on both sides of the political divide have at various times expressed such views and this matter should receive closer attention in the process of constitution making.
The Sixth Amendment to the present constitution which was brought in to prevent separatism should be reviewed. It can be observed that the 16th Amendment to the constitution of India which was brought in by Jawaharlal Nehru much earlier for the same purpose has been more successful in keeping separatist tendencies and separatist ideology in check in India than the 6th Amendment in Sri Lanka. How is it that the TNA takes up positions in Sri Lanka that the AIADMK would never dream of taking in India? This is another matter that needs to be looked into.
It can be seen from the comments that have already been made about the constitution making process, that some sections of the public wish to invoke the constitutional jurisdiction of the Supreme Court to ensure that the unitary character of the state is not undermined. In this context, if the cabinet bypasses the Supreme Court by designating the Bill brought to amend the constitution in terms of Article 120(b) as “a Bill to be passed with a two thirds majority plus a referendum”, there will be misgivings all around. So I suggest that while the constitution making process is split up into segments as proposed earlier, each segment is designated under Article 120(a) simply as “a Bill for the amendment of the constitution”, so that the constitutional jurisdiction of the Supreme Court remains intact, and members of the public will be able to invoke the SC to satisfy themselves that no provisions have been introduced which affect the unitary character of the state.
Once the new constitution is passed into law, it may be appropriate to hold an election to elect a new government under the new constitution.
*Text of a speech made by former President Mahinda Rajapksa at the Abeyarama Temple in Narahenpita.