Sunday Times 2
Constitutionally speaking: The people’s verdict
A country is governed by convention or by adhering to a constitution. When our colonial masters namely the British granted independence to Ceylon they introduced a constitution better known as the Soulbury constitution to govern independent Ceylon. Though a constitution was formulated and introduced by the British to govern independent Ceylon their own country is governed by convention and not through a constitution. Before the Kandyan kingdom then known as Sinhale was ceded to the British through the Kandyan Convention on March 2, 1815, King Sri Vikrama Rajasinha governed the Kandyan kingdom by convention and not through a constitution.
When independent Ceylon was declared as the Republic of Sri Lanka by the then United Front government of Mrs. Sirimavo Bandaranaike in 1972 a new Republican Constitution was promulgated. With the need to establish an Executive Presidential system the United National Party government of Mr. J.R Jayewardene in 1978 promulgated a new constitution better known as the constitution of the Democratic Socialist Republic of Sri Lanka which is in use even today to govern the country with nineteen amendments approved by the National State Assembly over the passage of time. The Maithripala Sirisena Ranil Wickremesinghe government intends to replace this present constitution with a new constitution and is seeking the views of the people. In the Republic of Sri Lanka sovereignty is in the people and therefore soliciting the views of the people for such a purpose by the government is commendable provided there is no hidden agenda in this proposed new constitution to change the unitary status to a federal status.
Fear of a hidden agenda arises because the government can make the present constitution more democratic and acceptable to the people through the needed amendments for this purpose instead of promulgating an entirely new constitution. Is this exercise to promulgate a new constitution the result of pressure exerted by western nations to govern this country in line with their requirements such as the inclusion of provisions to accommodate hybrid courts that have been recommended in the UNHRC Resolution? If so this exercise to promulgate a new constitution amounts to a surreptitious effort by western nations to establish neo-colonialism in our country.
The Westminster form of government in practice in our country since independence has divided the people based on party politics. The two major parties namely the United National Party (UNP) and the Sri Lanka Freedom Party (SLFP) has formed governments since independence mostly with the support of other political parties. Some of these political parties representing ethnic minorities do not agree to support either the SLFP or the UNP sans a surreptitious agreement to gain some privilege for their ethnic minority. Such privileges over the passage of time has eroded the just rights of the majority. Therefore to eradicate this anomaly the proposed new constitution if it is to uphold true democracy and good governance should make all political parties based on ethnicity illegal.
The proposed new constitution should also ensure that each and every electorate is represented by a Member of Parliament. Those nominated by the election secretariat to contest at a presidential or general election should have at least a graduate level educational qualification. A person contesting for the post of President should not belong to any particular political party. Any politician from a political party wishing to contest for the post of President will have to resign from his political party before submitting his nomination as an independent candidate for the presidential election.
However it should be left to the candidates who wish to contest at a general election to select the political party from which they intend to contest based on the manifestos of the different political parties. The people in every electorate must be given the opportunity to elect a representative of their choice to the National State Assembly. The present method of political parties submitting nomination lists for districts restricts the people’s choice to only those selected by political parties. Therefore the present system of political parties submitting electoral lists needs to be abolished. Provision must be made for those who do not agree with any of the political party manifestos to contest the general election as independent candidates.
The national list has enabled those who have been rejected by voters at a general election to enter the National State Assembly through the back door. Therefore the proposed new constitution must ensure that a person rejected by the people at a general election is not given any opportunity whatsoever to become a Member of Parliament and the national list must be made use only to give the minorities a balanced representation in the National State Assembly. When a vote is taken in the National State Assembly on any newly proposed legislation the Members of Parliament need to express the view of the people in their respective electorates and not the view of the political party to which they belong.
There have been instances where the constitutional amendments were enacted in the National State Assembly against the will of the majority. Such legislation should be abolished when promulgating the proposed new constitution. A good example in this regard is the 13th Amendment to the constitution that was forced upon our nation sans the approval of the people due to pressure from neighboring India. The 13th amendment was responsible for creating Provincial Councils that have been white elephants from their very inception which have failed to provide any useful purpose except to create further divisions detrimental to the unity and territorial integrity of our island nation.
The proposed new constitution should not permit those in political power to enact amendments to further consolidate their power or to extend the term of office beyond their mandate. A good example in this regard from the past is the enactment of the 18th Amendment that removed the restriction of two terms in office for the President and enabled him to contest for another term in office. That the will of the people was not reflected through this futile 18th amendment was proven when Mahinda Rajapaksa was defeated at the presidential election held on 8th January 2015. The proposed new constitution must restrict the number of Cabinet Ministers to twenty five with twenty five deputy Ministers. There is no need for State Ministers.
Since sovereignty is in the people any amendments subsequently introduced to the proposed new constitution by the legislature must be made available for public scrutiny for at least two weeks and accepted as new statute only if it remains unchallenged. However if a new amendment is challenged in the Supreme Court by any person because it infringes upon that persons fundamental rights or upon the sovereignty in the people the Supreme Court should determine if such an amendment is ultravires and if so request for its repeal or suggest any corrections to make this particular amendment acceptable.
Efforts have been made and still continue to be made by separatists and vested interests to alter certain entrenched articles in the present constitution such as the second article which states that the Republic of Sri Lanka is a Unitary State.
It is to protect this Unitary State and to usher in peace and tranquility for posterity that the security forces fought a three decade war to convincingly defeat LTTE terrorism and separatism through the sacrifice of so much sweat, blood, tears and toil and sometimes even their very life and limb. Thirty thousand security forces personnel sacrificed their lives and an equal amount were disabled to provide a better tomorrow for the people of this country. Therefore any effort to introduce federalism through a new constitution will be totally and unreservedly rejected by the people of Sri Lanka.
The 9th Article in the constitution states that the Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e). Given the fact that Article 9 is linked to Article 10 and 14 (1) (e) there is no contentious issue for the repeal of this article. Article 10 states that every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice, while Article 14(1) (e) states that every citizen is entitled to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching. Those who want Article 9 repealed must realize that Buddhism has been the state religion of this island since the advent of Arahat Mahinda over 2300 years ago. Even the British ensured the due place to Buddhism when the island was ceded to them through the Kandyan Convention in 1815. Besides the majority of the inhabitants of this nation are Buddhists and they will never allow Article 9 to be altered or repealed.
Finally the other contentious issue is the executive presidency. It must be emphasized that sans an executive presidency it would never have been possible to defeat LTTE terrorism. Therefore an executive President voted to office by the people of this island nation must remain the Commander in Chief of the Armed Forces. While any presidential powers deemed undemocratic need to be repealed the Executive President should continue to remain the head of the Cabinet of Ministers that will form the Executive which will direct and control the government of Sri Lanka and will be collectively responsible and answerable to parliament.