9 December, 2019

Blog

UNP Proposals On Constitutional Reform

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne, President’s Counsel

Constitutional changes have once again become a hot topic of discussion. The UPFA Government is attempting to dilute the Thirteenth Amendment. Some UPFA constituents are openly for its total abolition and the general feeling is that they have the support of the UPFA leadership. UPFA leaders appear happy to continue with the JR Jayewardene Constitution which they swore to abolish and under which UPFA constituents and their supporters suffered. Proposals made by the National Movement for Social Justice led by Ven. Maduluwawe Sobitha Thero have also generated interest. While making a 10-point programme public, it emphasized that the abolition of the executive presidency and bringing back the Seventeenth Amendment must be considered as immediate tasks.

The United National Party (UNP) which brought the 1978 Constitution into being and defended it until it felt the full force of its own proud product has also made its proposals public. This is a welcome development. One hopes that all political parties would take public positions on constitutional reform.

Fundamental rights

In the preamble to its proposals, the UNP states: “Sovereignty is exercised directly through universal suffrage, and includes the following fundamental rights: a. Universal access to education, b. the right of persons belonging to a religious or ethnic community to enjoy their culture, practices and their religions and use their language, c. Right to good administration.” Why highlight three rights? Does the UNP believe in a hierarchy of rights? If so, what about the right to life?

The UNP’s proposals on fundamental rights are disappointing. The global trend is to widen the scope of civil and political rights and to recognize social, economic and cultural rights as well as women’s and children’s rights as enforceable fundamental rights. The only new civil and political right mentioned is the right to information. The UNP’s proposal is for “facilities for good health, opportunities for employment, access to education, protection of family rights, children and women’s rights, rights of senior citizens and disabled persons” to be declared merely as unenforceable Directive Principles  of State Policy, not as enforceable fundamental rights. Access to education is described as an important fundamental right in the preamble but is later downgraded to a Directive Principle.

In 2000, when the People’s Alliance (PA) Government had talks with the UNP on constitutional reform, the PA proposed recognizing social, economic and cultural rights as well as women’s and children’s rights as enforceable fundamental rights. On a day when both President Kumaratunga and Mr. Ranil Wickramasinghe were not present, the UNP’s Mr. K.N. Choksy strenuously opposed their recognition and PA leaders gave in without a fight. Civil society activists who came to know about it virtually pounced on Mr. Mahinda Samarasinghe, a member the UNP team, at a human rights event. Mr. Samarasinghe then discussed the matter with Mr. Wickramasinghe and, with the latter’s permission, raised the issue on a subsequent day when both President Kumaratunga and Mr. Wickramasinghe were present. Both leaders were supportive and, despite Mr. Choksy’s continued protests, it was agreed that the rights mentioned should be included. Now with the more conservative Mr. Choksy no more active in the UNP, one expected the UNP to be more human rights friendly.

Form of government

In a welcome development, the UNP, which introduced the executive presidency, has at last made up its mind on its abolition although it is yet to decide the form of government that should replace it. Its Option One is to have a directly elected Prime Minister (PM) while the PM and the Cabinet would be responsible to Parliament. The reasoning behind this option appears to be the stability of government. A directly-elected PM was tried out in Israel as smaller right-wing parties were seen as calling the shots. But what happened under the new set-up was that voters who were sympathetic to smaller parties but who nevertheless voted for the main parties so that a stable government could be formed, now voted directly for a candidate of a main party for PM but, unlike earlier, voted for the smaller parties to elect MPs. This resulted in smaller parties having an even bigger say. A Prime Minister was directly elected in 1996, 1999 and 2001 but direct elections were abandoned after the 2001 election. Sri Lanka being a country with a plethora of parties (and why not?), it is very likely that a directly-elected PM would find himself in a minority in Parliament, unable to get legislation, including the budget, passed. So it will be back to coalition politics, which appears to be the order of the day.

Option 2 is described as a novel system. Executive power will be exercised on an ‘apolitical basis’. The Head of State, who will be directly elected by the people, will be the Head of the Council of State (which will consist of the Prime Minister, Leader of the Opposition, the leaders of the political parties represented in the Parliament and the Chief Ministers of the Provinces) and will act on the advice of the Council of State. The Council of State shall decide on all ‘political directions and national priorities.’ A careful reading shows that it will be the Council of State that would have effective executive power. The Cabinet of Ministers headed by the Prime Minister and the Provincial Boards of Ministers shall be responsible for implementation of the decisions of the Council of State. The Leader of Opposition and opposition party leaders are in the Council. Then, why have an opposition at all? Not only the PM and the Cabinet but also Provincial Boards of Ministers would merely implement decisions of the Council. Novel indeed.

If the Head of State has such limited powers, why spend billions of rupees to elect him directly? The last Presidential election cost us a whopping 1.8 billion rupees. Political scientists, notably Lijphart, have warned against the head of the state in a parliamentary form of government being directly elected. A popularly elected President, even with limited powers, will be tempted to be an active political participant, claiming  to have a direct mandate which even the PM does not have, potentially transforming the system to a semi-presidential one.

My preference, of course, is Option Three – a return to a parliamentary form of government, which even the late Dudley Senanayake defended when he spoke against JRJ’s proposal for a presidential form of government in the Constituent Assembly. But there should be safeguards. The Seventeenth Amendment provisions, including changes agreed to by the DEW Gunasekera Select Committee, could be worked in with suitable modifications.

Devolution

The UNP has reiterated its commitment to genuine devolution and among the documents it says should be considered in this regard are the LLRC report and the decisions of the APRC contained in the report of Minister Tissa Vitarana, its Chairman. This is certainly laudable. But why is the UNP pandering to Sinhala extremism by saying that Sri Lanka would remain a unitary state? My own view is that there should be no label such as ‘unitary’ ‘federal’ or ‘union’. Labels can be very divisive and misleading. The best is to provide for meaningful devolution, power-sharing at the Centre and safeguards too. Powers necessary for the political and economic unity and territorial integrity of the country should be with the Centre while others can be devolved. I am all for safeguards to prevent peripheral units misusing their powers but at the same time the Centre should also be prevented from misusing such safeguards. The 2000 Constitution Bill while providing for extensive devolution also had such safeguards; there was no label and the UNP agreed with the devolution provisions contained in the Bill.

The proposal for a Constitutional Court is also commendable, but why restrict its powers to the examination of the constitutionality of Bills? It is high time that we went back to post-enactment judicial review, with the Court having the power to limit the retrospective application of an order of invalidity in fit cases.

Space does not permit me to go into the UNP proposals in detail. The proposals merit serious discussion and one hopes that the Party would be receptive to criticism. They come at a time when the focus is being (deliberately?) shifted away from overall reform to diluting devolution. This is also a good opportunity for other parties to make their own proposals and enrich the discourse.

Print Friendly, PDF & Email

Latest comments

  • 0
    0

    The UNP is TRYING TO WIN AN ELECTION !

    Believe it or not theoretical ramblings have very little to do with garnering votes.

    • 0
      0

      New constitution need to be voter oriented, UNP should be able to win the hearts and minds of people. They should implement within 3 months of coming to power if they are to survive as a new alternative government to present UPFA regime. It is not easy to fool the public nowadays. solid plan would be successful.

      • 0
        0

        First of all UNP has to win an election. Complete removal of Executive presidency and complete removal of Provincial councils would help attract voters.

    • 0
      0

      Well said Don! Politics is a dirty business.

      Sancho

    • 0
      0

      Jayampathy, the Bottom line is that you cannot expect the UNP dictator Ranil to abolish the Rajapassa dictatorship! Get real, dude! Both are DICTATORS and indulge in spin about democracy to sooth and fool the Sinhalaya Modayas.

      Ranil Wickramasinghe is an unprincipled and corrupt politician like the rest. He is trying to win an election by distracting the people with constitutional jargon now that Sobitha thero’s movement have proved a more vibrant opposition to the Rajapassa military dictatorship than Ranil could muster having covertly supported MR in order to stay in power as opposition leader.
      Ranil’s own party is falling apart and folks are deserting the sinking ship that is being destroyed by his greed for power and unethical and unprincipled clinging to the leadership of the UNP despite having lost numerous elections..

      • 0
        0

        Ranil has become increasingly popular with the new proposals of constitutional changes brought up by the UNP, UNP knows how to win the next election.

        Corruption, crimes and lawlessness has made the government extremely unpopular.

        • 0
          0

          “Ranil has become increasingly popular with the new proposals of constitutional changes brought up by the UNP, UNP knows how to win the next election”

          Wow ! Ranil becomes increasingly unpopular by the day , sure he knows how to get MR re-elected at the next election.

          • 0
            0

            That does not work all the time, masses have decided to change the corrupt regime.

            • 0
              0

              Not in SL , every where else is yes ! Approximately 60 % of the SL population doesn’t want to know or couldn’t care less of the current situation; their motto is gratitude and terror free country, period!
              Don’t take my word on it , wait & see for the results of the forth coming provincial elections ( of course except north)

    • 0
      0

      Only till recently UNP very little interest about the situation of country which is deteriorating in all aspects. We strongly believe it is the primary duty of the opposition to play a primary role in this regard. Just examine the record of the recent past, what has this party done. Cost of living, economy, human rights, justice and legal issues and lot of other problems which this party was not doing enough but trying to shelve the active members of the party who showed some interest.I am pretty sure leader is quite satisfied with the leader of the opposition post and perks attached to that. All he wants is to cling to that without getting the backing of popular energetic members involved in the process. He has the backing of some pensioners in the party who are no better than himself. This leader who talking about keeping the present system minus a few unacceptable clauses has taken and about turn. WHY?
      Theoretical assessment UNP proposed constitution by Dr. Wickramarathne may be very appropriate only if this party has a chance of winning the elections. MR DOESNT need to wait till next term to bring a new constitution and even if he brings, with experience of his ways it would never be a public friendly one.
      So the sudden interest of UNP on a new constitution was to messing up the correct leadership that was given by a respected Buddhist Priest Rev Sobitha. RANIL realized that Sinhala BUDDISTS, all minorities as well as the civil society activists were showing an active support for this activity. So more than UNP Ranil got upset and woke up from slumber to prevent something happening with the able lead of Rev. Sobitha
      If MAKULUWAWE SOBITHA himself to run for PRESIDENCY his primary interest would be to produce an appropriate constitution for the country. If wins which many believe he could as a joint opposition candidate, even MR, RANIL, CHANDRIKA, MINORITIES and civil society would help in developing a suitable constitution for this isle.
      What is relevance of discussing discussing a document which UNP has drafted with an intention of preventing a strong joint opposition candidate coming into fray. SO FIRST THINGS FIRST. DETERMINE WHO IS A WINNABLE CANDIDATE WITH WILL AND ABILITY AND REST WOULD FOLLOW

      • 0
        0

        couldn’t agree more with you .

  • 0
    0

    In the U.S system, Cabinet is not appointed from elected politicians/legislators. Is this a better arrangement to separate the Executive Branch truly from the Legislature? With or without presidential system we will have a executive branch so we need to separate it from legislature. At least this will prevent buying elected legislators by the Executive branch.
    Hema.

  • 0
    0

    Please include all components of fundamental rights of citizens, reestablish all independent commissions, reduce and restrict the overall number of politicians, restrict the cabinet constitutionally, strengthen the judiciary, restrict unnecessary spending on propaganda, and establish complete media freedom.

    When the fundamental rights of individual citizens are well established constitutionally, issues of devolution, sectarian issues would not be a major issue; citizens living in all areas will have equal rights.

    UNP should provide revised proposals and publish before the elections if they expect voters to accept them as a future government. Only, if the public is satisfied with UNP proposals, UNP would win future elections.

    Revised proposals need to be included in the manifesto of the new and broader alliance proposed to be presented by all the opposition parties.

    • 0
      0

      UNP should bring much more relief to common masses if they are to win an election.Lawlessness should come to an end.

  • 0
    0

    The sad story of “periodical” constitutions of Sri Lanka is that only lawyers participate in drafting the provisions. They start with sovereignty of people and end up with trapping people in a cobweb of complex provisions, which cannot be comprehended by poor but literate people, who are the majority in our country.

    Late Eng. Tudor Munasinghe, who was a member of the four member team of the OPA that drafted the 17th Amendment to the constitution, gave me a copy of the Constitution of the USA, which he had downloaded from US government web site. Its thickness is about 1/3 of the constitution of Sri Lanka. It is written in a simple style so that average literate American can understand its content easily.

    Since 1948, there had been two amendments to the constitution; 1972 and 1978. One changed the name of the country from “Ceylon” to “Sri Lanka” and made the country a Socialist Democratic Republic. The other created an Executive President and made the country a Democratic Socialist Republic. By 2013, we have neither democracy, with 18A taking back what was achieved through 17A nor socialism because the poor has become poorer and numbers have increased.

    We are at cross roads because lawyer politicians cannot decide whether we should be democratic and socialist at the same time, whether we should be pluralist or otherwise and whether we should be secular or otherwise. However Prez MR, the 21st Century Fox, must be a happy man because all moderates and extremists keep on submitting draft constitutions, amendments to provisions in present constitution and opinions on how to govern the country aftermath the 30-year war. No need for the PSC.

    Now Prez MR can identify who are really patriotic in regard to the issue of unitary state and moderate in regard to the right of persons belonging to a religious or ethnic community to enjoy their culture, practices and their religions and use their language. It is my contention that Prez MR and SLFP must take a firm stand that the country needs one supreme legislature, one official language and one state religion and also that the President, whether Executive or otherwise, should not be granted immunity. This is not a dictatorial approach but an approach for developing a system of governance which is controlled by the supreme national legislature but affordable and sustainable. The lawyers can include a Bill of Rights reflecting Universal Human Rights, and many other rights and “wrongs” (if they want to elaborate).

    Whatever it is 13A must be repealed and PCs (not President’s Counsels) should be abolished.

    • 0
      0

      Oh my god!

    • 0
      0

      What contradictory statements from The Professional!

  • 0
    0

    Theoretical “ramblings” are of the utmost importance; we don’t want to make constitutions like blind men.

    The US system has its strong points but is too far removed from our experiences to be easily transferable to Lanka.

    I feel certain that the question of a new constitution, or huge amendments, are inevitable within a year or two. What we must focus on is forming the widest possible alliance based on the following.

    (a) Abolish Executive Presidency.

    (b) Meaningful devolution of power to minorities to conduct their own affairs (self-administration; education; agriculture & fisheries, plus marketing, credit, extension services; land management and return of land by the military; security, law & order in their own languages; resettlement and care of war widows & orphans). The Central State will NEVER do any of this properly for the minorities.

    (c) I much like the UNP’s injection of Donomoughmore concepts; Committee system; sharing of responsibilities between parties. This will help overcome the highly polarised curse of partisan politics in Lanka. Options and details can be worked out later if the concept is first agreed.

  • 0
    0

    A new nursery rhyme for Sri Lankan children:

    Four blind mice. Four blind mice.
    See how the run. See how they run.
    They all ran after the marauding Tiger Pride,
    And cut of their heads with armed might.
    Then they ran after the 17th amendment,
    And destroyed governance with one swift cut.
    Then they ran after the Chief Justice,
    And destroyed the judiciary with vengeful guile,
    Then they ran after the Muslim kind,
    And made them tremble with fear for their lives.
    Now they run after the 13th amendment,
    And are determined to deny the Tamils their rights,
    Did you ever see such a sight in your life,
    As the four blind mice?

    Our children are being taught that principles of modern governance, visions of nation building, the sanctity of constitutions and minority rights do not count for anything in this thrice blessed land, through example by our rulers. Why not teach them these perverted principles starting from their infancy, through the above nursery rhyme? Let future generations not learn to hope. Let us kill hope in their very infancy! Let us become a cynical, racist, extremist, corrupt, unjust, greedy, unprincipled and brutal nation, where fools, cads, thugs and brutes rule the roost!

    Dr.Rajasingham Narendran

  • 0
    0

    Blind mice No. 1 – MR
    Blind mice No. 2 – BR
    Blind mice No. 3 – GR
    Blind mice No. 4 – CR
    !!!!!!!!!!!!!!!!!!!!!

  • 0
    0

    I almost completely agree with Jayampathy’s analysis of the UNP constitutional proposals. What is necessary for Sri Lanka is to get back to the democratic fundamentals and that means the parliamentary system of government. Parliamentary system, independent commissions and purposeful devolution might be the way ahead for the country. It is ok for the UNP to say that the presidential system or the 1978 constitution has now served or outlived it’s the purpose and need a change, although it is not the complete truth. By and large they came to this conclusion in 2000 and it is commendable. However, they should present a clear alternative. The option 1 (Israel) they present is now out dated and option 2 is complicated although there is some merit in bipartisan governance. Option 3 is the most rational and within it there may be possibilities of accommodating all parties to some measure and coordinating with provinces. Strong parliamentary committees are a possibility and that is available within a parliamentary system. But we are far away from bipartisanism which undoubtedly needs to be resurrected. Just look at the PSC appointed for constitutional reforms. The ruling collation has conveniently left their own partners for political reasons, the SLMC and the LSSP.

    Obsession with the ‘unitary state’ is the main drawback in the UNP proposals that they should think again. It is the main slogan of the extremists. The unitary-federal dichotomy is relegated only to the old civic books nowadays. It has no much relevance in political or legal reality. Unity and territorial integrity could suffice. Unitary straight jacket undoubtedly will debar democratic development to and in the peripheries.

  • 0
    0

    We need a constitution that instils in the representatives fear of being punished for corruption, misuse of the people’s sovereignty and abuse of power.

  • 0
    0

    If Ranil means what he says in his proposals for constitutional reforms, he should bring Dmocracy and transparency to his own Party. The despicable manner he extended his tenureas the Leader for 6 years, hooooooooow he treats able leaders suchas Karu, Sajith, Dyasiri,Buddhika eetc shows the real Ranil a wolf trying to wear a sheep’s coat.

Leave A Comment

Comments should not exceed 300 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically shut off on articles after 10 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.