Why Constitutional reform is a threat

The real interest of the masses of Tamil community has nothing to do with
Nijabhumi, Elam or autonomous status.
Second Chamber could be a serious threat to supremacy of Parliament and
sovereignty of the people in the process of enacting laws.
2018-01-06

The Nineteenth Amendment to the Constitution

is considered the first constitutional reform effected under Yahapalanaya
Government. Reducing Presidential Immunity to some extent, making President
responsible to the Parliament, restricting number of terms a person can be
elected to the office of President not more than two, legalizing the right of access
to information, restoration of Constitutional Council and nine commissions
covering Election, Public Service, Police, Audit Service, Human Rights, Bribery and
Corruption, Finance, Delimitation and National Procurement are some of the
progressive salient steps taken in Yahapalanaya Constitutional reforms. However,
there are some provisions in the Nineteenth Amendment which have been set for
the benefit of the two principal partners of Yahapalanaya Government, not for
the national benefit such as article 46(4) and Article 70 of Chapter VIII of the
Nineteenth Amendment.

Thus Article 46(4) has paved the way to form a Jumbo Cabinet which is contrary
to the demand caused by General Public at the Elections for a small and
sustainable cabinet of ministers. In this Jumbo Cabinet, ministerial positions have
been offered to retain the support of the recipients with Yahapalanaya
Government. It appears that number of ministerial positions had been
determined on the basis of number of politicians who were willing to cross over
from the opposition parties to the government side. It is ridiculous, some
ministerial positions have been offered to persons who were rejected by the
people at general elections. Portfolios have been assigned to suit individual
interest of some ministers disregarding the national interest. There are some
redundant ministers where the minister concerned is not aware his or her area of
responsibility. Yet all of them well enjoy their privileges, luxuries, remuneration,
thundering package of perks and on top of them commissions as well as and
when available, never mind their responsibility to the general public.
Maintenance of this Jumbo Cabinet and heavy load of ministerial positions has
become unbearable burden to the national economy and general public at large.
Sri Lanka doesn’t have that kind of geographical demarcations, which deserves
Federalism. It is true that Federalism is not the separatism. However, Federal
Status could cause an effective threat to unitary status of this country granted
under present Constitution
Article 70(1) of Chapter VIII of the Nineteenth Amendment provides that
“President shall not dissolve Parliament until the expiration of the period of not
less than four and a half years from the date appointed for its meeting”. This is, in
fact, a restriction imposed on the democratic right of the people to change the
government or dissolve the Parliament when there is “no confidence”
established.

The next constitutional reform would be the proposed new constitution. It has
been observed that no mandate had been given by the people of this country at
the last Presidential or General Elections to bring in a new constitution although
they were concerned on the restriction or abolition of Executive Presidency.
Nineteenth Amendment to the Constitution has already catered for some urgent
constitutional reforms needed.

The interim report of the steering committee on the proposed new constitution
has disclosed to a certain extent what would be the structure and the contents of
the proposed new constitution.

Abolition of Executive Presidency is one of the salient proposals. Executive

Presidency has been introduced to this country in order to counteract some
shortcomings experienced under Westminster system of Parliamentary
Democracy, where Prime Minister is the leader of the Government and his
leadership is based on the principle “Primus inter pares” under which the
leadership is shared with the equals in the Cabinet and with political party which
he represents. In the context of weak government without substantial majority of
seats in the Parliament, in other words in a hung Parliament this kind of
leadership could be drifted to ineffective status due to pulls and pushes caused by
opposition as well as colleagues in the Cabinet who are aspiring to consolidate
their positions over and above collective interest. Similarly in case of a strong
government with absolute majority of seats in the Parliament the Premier could
be inclined to ignore the national interest and go ahead with his own dreams
disregarding the views of the general public. This type of shortcomings could be
controlled or arrested when there is Executive President directly elected by the
people who should be an independent person after being elected as President
detached from political parties.
Power devolution could pave way for interference of International Community
in Sovereignty of Sri Lanka on the pretext of helping the Government for
Devolution of power
In the process of decision making under crisis situations such as war, national
calamity, political turmoil or sudden upheaval of masses where Executive
President would be more effective than Prime Minister of a hung Parliament. The
way that Mahinda Rajapaksa tackled terrorist war could be considered one of the
classic examples which corroborates above presumption. Based on the
achievements of this country under Executive Presidents commencing from
President Jayewardene up to Present Executive President Maithripala Sirisena
irrespective of all sorts of allegations leveled against them, it is quite clear that
abolition of Executive Presidency could pave way to drift this country towards
destabilization. In such a situation country would fall into the prey of External and
Internal forces that have been already initiated to interfere in Sovereignty of this
country through various strategies such as Joint UNHRC Resolution of year 2015.

Abuse of power under the cover of presidential immunity by past Executive

Presidents could be cited as a very strong fact to justify the abolition of Executive
Presidency. Nevertheless, this situation has become controlled to some extent
under Nineteenth Amendment to the Constitution making President is
responsible to the Parliament. Further, the degree and extent of abuse of power
depend on the character of the person who holds that position.

The Interim Report of Steering Committee stressed that maximum devolution of

power should be ensured in the proposed new Constitution. This is one of the
salient proposals set out in Joint UNHRC Resolution of the year 2015 as well,
where its stakeholders wanted to implement it through Yahapalanaya
Government.

The Interim Report states that principle of devolution is based on a strong and
enforceable Bill of Right consistent with universally accepted norms and
standards. This principle of power devolution could pave way for the interference
of International Community (the US and its allies in the West) in Sovereignty of Sri
Lanka on the pretext of helping the Government for Devolution of power based
on universally accepted norms and standards. They could use these norms and
standards to leverage power devolution in order to split unitary status of this
country already ensured in the present Constitution.

Apart from Interim Report devolution of power has a close link with the ethnic
issue of this country as well. It is a fact that Ethnic issue has been created and
converted it into a conflict, by pro-Elam Tamil politicians for their sheer survival in
power politics, based on misconceptions such as Nijabhumi and Elam, although
there is no conflict between masses of these two communities (Sinhala and
Tamils) in reality.

The real interest of the masses of Tamil community has nothing to do with
Nijabhumi, Elam or autonomous status. Any effective solution for their burning
problems such as poverty, unemployment, disrupted socio-economic, socio-
cultural life etc. is considered their actual interest.

In that context incorporation of some mechanism in the new constitution for

maximum devolution of power for maximum satisfaction of pro-Elam Tamil
Politicians as suggested in the Interim Report of the Steering Committee on the
new constitution could cause an adverse impact on the unitary status of Sri Lanka.
Further, such a move could push this country from unitary status to Federalism.

TNA politicians have pointed out that Federalism is not the Separatism hence
Yahapalanaya Government should not hesitate to incorporate in the proposed
new constitution a mechanism for devolution of power based on the Federal
status they say.

In fact, it is only an interim measure for them due to the fact that their
expectation runs beyond Federalism towards full autonomous status, which
would be ended up with absolute separatism, as Chief Minister Wigneswaran has
once disclosed “We do not reject what Government offers. We continue our
struggle until we achieve what we wanted”.

Federalism could be an effective solution for large countries such as India

consisting of semi-autonomous Provinces or the Provincial States where it is not
physically practicable to keep them tied up together with the centre.

Sri Lanka doesn’t have that kind of geographical demarcations, which deserves
Federalism. It is true that Federalism is not the separatism. However, Federal
Status could cause an effective threat to the unitary status of this country granted
under present Constitution on the one hand and it could be used as a gate way to
separatism on the other hand.
The Second chamber is another proposal set out in the interim report of Steering
Committee on new constitution. It states “no constitutional amendments shall be
enacted into law unless passed by the Parliament and Second Chamber”. It
further states “regulations passed under authority of law by Centre shall not be
valid unless approved by both houses.” Article 03 of Chapter One of the present
Constitution states “in the Republic of Sri Lanka Sovereignty is in people”. Article
04 of same chapter states “Legislative power of the people shall be exercised by
Parliament”. This means Parliament exercises sovereignty of the people.

In that context, Second Chamber could be a serious threat to the supremacy of

Parliament and sovereignty of the people in the process of enacting laws.

In that context it is absolutely necessary to reconsider the proposals set out in the
Interim Report of Steering Committee on Constitution and securing the consensus
of the masses of this country for the proposals in the process of framing new
Constitution. It is also necessary to review the mechanism so far adopted for
collecting information from the masses in this process, due to the fact that
information collected by Wijenayake Committee and the politicians who are the
members of Constitutional Assembly do not reflect the genuine views of the
general masses of this country in this regard. In fact they represent their own
views and the views of some selected few. The new mechanism for collecting
information should be implemented prior to the draft constitution is referred to
Referendum because once it is referred to the Referendum people have no
alternative but to accept it, most probably due to political pressure.

The writer is retired Executive Director of BOI, HRM Consultant on Fiscal Reform
Programme, ADB Inland Revenue Department 2005, Lecturer in HRM and HRD,
American College of Higher Studies. (2002/2003), Management Consultant
Posted by Thavam