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.