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Will the constitutional reform exercise be another lost opportunity?
View(s):One of the most compelling items on the national agenda currently is the question of constitutional reform. And the most critical aspect of the constitutional reform process must necessarily be the issue of the executive presidency.
After a near 40-year experience with this all powerful institution there is general consensus that the institution must be reformed and the executive presidency abolished. Yet there are some who argue to retain this institution. While there are some who genuinely believe, albeit in the face of evidence to the contrary, that a centralised form of governance is beneficial to the country, the more vocal of the proponents of the executive presidency do so with vested interests.
The central premise of the call for the abolishing of the executive presidency is based on the need to democratise the structure of the State. Sovereignty in the Sri Lankan Constitution resides in the people and the concept of an all-powerful executive presidency is at complete variance with the people’s sovereignty as it isolates itself from the sovereign people.
J.R. Jayewerdene, the founder of the 1978 Constitution, justified the executive presidency on the basis that “it would not be subject to the whims and fancies of Parliament.” Given that Parliament comprises the representatives of the people what this means is that the institution of the executive presidency is insulated from the will of the people and is, therefore, the antithesis of democracy.
The dangers of a presidential form of government were highlighted by far sighted leaders of this country well before it was enacted in the 1978 Constitution. Dudley Senanayake opposed it when it was first suggested. Dr. N.M. Perera and Dr. Colvin R. de Silva vehemently argued against it and pointed out the negative impact it would have on the country when the 1978 Constitution was being drafted.
When the 1972 Constitution was being formulated by the Sirimavo Bandaranaike Government, Jayewerdene proposed that the executive presidency be included in the new Constitution but the SLFP Leader vetoed the idea stating that such an institution did not suit Sri Lanka. This was despite the fact that she would have been the first beneficiary of the executive presidency which would have clothed her with virtually unlimited powers. Over three decades after Sri Lanka’s unhappy experience with the Executive Presidency, the Venerable Maduluwawe Sobitha Thera launched the National Movement for Social Justice and relentlessly campaigned for the abolition of the executive presidency. His tireless effort culminated in the victory of Maithripala Sirisena at the presidential election of January 8, 2015. Sirisena’s campaign was primarily based on the platform of aboliishing the executive presidency.
Two and a half years after the change of Government, the constitution reform process is in danger of being derailed with still no end in sight. According to the resolution setting up the Constitutional Assembly, the next step in the process is for the report of the Steering Committee to be presented to the Constitutional Assembly for debate and discussion. Although it was scheduled to be placed before the Constitutional Assembly in January this year, it has been delayed reportedly due to the SLFP segment in the Government dragging its feet in submitting its proposals.
The Constitutional Assembly resolution envisages that once the Steering Committee report is discussed in the Constitutional Assembly, it will be sent back to the Steering Committee to incorporate the suggestions made in the debate. Thereafter, the Steering Committee will prepare a draft of the proposed Constitution which will be debated in the Constitutional Assembly. After approval by the Constitutional Assembly the draft will be submitted to the Cabinet for its approval. Thereafter, it will be submitted to Parliament. After approval by Parliament it will inevitably have to be submitted to the people at a referendum.
At the pace at which the constitutional reform process has been moving, the above steps will take us at least into the end of next year. With local government elections and provincial council elections scheduled for next year and the election for President (if not abolished) slated for 2019, the chances of success with regard to constitution making are becoming increasingly remote.
From the noises that the Joint Opposition is making it is crystal clear that the JO will make every effort to block constitutional reform by raising the bogeys of danger to Buddhism and division of the country. The SLFP segment of the Government too does not have its heart in the process as evidenced by the continued delay in submitting its proposals. Some of them are determined to protect the executive presidency and have openly claimed that President Sirisena must listen to the wishes of the SLFP Central Committee even if it meant going against the mandate he received at the January 2015 election.
A clear insight into the thinking of the SLFPers in Government can be seen when reading an interview given by Minister S. B. Dissanayake to the Nation newspaper of July 16, 2017.
To the question whether the new Constitution is not being given priority he says: “Nothing is happening in this regard. We will put things as told by the Mahanayakes of the three Nikayas (sects). As the SLFP it is our decision that nothing in the present Constitution should be changed. However, even though we discuss about a new Constitution our priority is in relation to Electoral system reforms, the 20th amendment to the Constitution. We voted in favour of the 19th amendment to the Constitution because it was promised that electoral reforms in the form of the 20th amendment would be brought. Yet to this day the 20th amendment has not been brought. Therefore our priority is the 20th amendment.”
When Minister S. B. Dissanyake stated in his interview that the next SLFP Presidential candidate would be Maithripala Sirisena it was pointed out to him that President Sirisena had stated that the 2015 presidential election would be the only time he would contest for the presidency. Mr. Dissanayake’s response was interesting:
“He stated such before he took over the chairmanship of the SLFP. Therefore such is not applicable to us. We are the ones who decide our party’s candidates. It is the party that decides. If the Party decides the President will because he is someone who loves the party and is someone who rose in rank along with the Party. He will not turn his back on the Party’s decision.”
Translated it means that even if the decision of the party (which essentially means those who supported Mahinda Rajapaksa at the last presidential election ) is to go against the peoples’ mandate , President Sirisena has to oblige.
Further insight into the thinking of SLFPers in Government is evident in the actions of Ministers Susil Premajayantha and Faiszer Musthapha when they objected to the presence of Dr. Jayampathi Wickremaratne who had been invited to explain the constitution making process to the SLFP group in Government a few months ago. Dr. Wickremaratne who is leading the process was the best person to dispel any doubts or clarify all matters regarding the process. However, taking into consideration the totality of the approach of the SLFPers in Government, the attitude of these two ministers was not surprising.
Minister Premajayantha had backed Mahinda Rajapakse at the last presidential election while Musthapha had spent several days in Singapore at the tail end of the campaign and returned and crossed over a few days before the elections only after making sure that the wind was blowing in favour of Sirisena and that he was now the front runner. Not surprisingly therefore both of them have no commitment or loyalty to President Sirisena’s pledges to the country.
It is, therefore, paramount that the Government moves to fast track the constitutional reform process and without any further delay produce a draft which can be discussed and adopted before the end of the year. Otherwise this too may end up as another of Sri Lanka’s long list of lost opportunities.
If one looks back at our past experiences of constitution making, one will notice a clear pattern. In the two previous processes that succeeded the 1972 Constitution was enacted within two years of the United Front Government assuming office while the 1978 Constitution was enacted one year of the UNP assuming office in 1977.
The constitution reform process that failed was Chandrika Bandaranaike Kumaratunge’s process which started in 1994 and was aborted in 2000 despite a concurrent and vigorous media campaign to educate the masses – which is sadly lacking in the case of the present Government.
The bright spot in the present constitutional reform process is the flexibility of the Tamil National Alliance and the principled stand of the Janatha Vimukthi Peramuna. The two parties, despite their differences with the Government, have committed to support the process. The silence of the Muslim parties is deafening with not a word to indicate their stand on the subject or to influence the process.
The Government including the President and Prime Minister need to act fast to achieve the goals of the Yahapalanaya administration with special emphasis on the abolition of the executive presidency, electoral reforms and devolution of power. Any further delay and failure to take decisive action may result in the ground slipping away from under their feet and the national agenda being undermined.
The writer is a former Ambassador to Saudi Arabia, Principal of Zahira College, Colombo, and an Attorney-at-Law. (javidyusuf@gmail.com)