The Sunday Leader

The Making And Re-Making Of A Constitution

by Ashanthi Warunasuriya

Parliament of Sri Lanka

Sri Lanka’s political system has been shaped by its history as a British colony dating from 1801. The British attempted to develop a representative government on the island through an 1833 constitution that created a legislative council. This council was largely powerless, however, and resigned in 1864 when their censure of the British government was ignored. The British attempted several other Constitutions to appease the populace in 1910, 1920, and 1924, but these constitutions did not provide for local governance by the native population.

The 1931 Constitution finally gave more authority to the native elected representatives over internal concerns. Over the next 40 years, the British attempted to give more authority and independence to the island in the hopes of transferring it to dominion status within the British Empire. On 4 February 1948, the country declared its independence from Britain, but remained a commonwealth of the British Empire. It was not until May 16, 1972 that the nation officially proclaimed itself an independent republic.

Under British rule, the northern Tamils had gained influence through their disproportionate access to education. Thus, in the early years of post-independent Sri Lanka, the Tamils managed to influence the creation of a new Constitution on August 31, 1978. This Constitution, still in force today, was created to grant more local autonomy and equalise the Tamil and Sinhala ethnic groups. Over the past 40 years, the Constitution has been amended several times. The 17th amendment, passed in 2001, was meant to ensure more transparency with the creation of a constitutional council with representation from the executive and legislative branches, the government, the political parties, and the public. This came in the wake of a failed attempt to write a new Constitution that died in 2000. This Constitution was designed to create a federal system which would grant Tamil demands for a separate state. It was hoped that this Constitution would see the end of the intense and bloody civil war between the Sinhalese majority and the Tamil minority, represented by the Liberation Tigers of Tamil Eelam (LTTE), but it died before a vote due to political in-fighting.

On May 19, 2009, President Mahinda Rajapaksa declared that the Sinhalese government had defeated the LTTE. In the wake of his rise in popularity, the President introduced an 18th amendment designed to expand the already extensive executive powers by overruling the 17th amendment. This proposal was adopted by the Parliament in September 2010 over great popular opposition, giving the President the power over appointments and eliminating his term limits.

The Constitution of Sri Lanka revolves around a President invested with broad executive powers. It has 172 articles, recognises Buddhism as the state religion, and guarantees a broad range of fundamental rights. The Constitution also establishes the duties of the state and the citizen. It is the task of the state to establish a democratic socialist state, ensure the distribution of wealth, oversee economic development, and raise educational and cultural standards. It must also commit itself to the decentralisation of the government and the promotion of national identity through the elimination of discrimination. In return, it is the duty of the citizen to foster national unity by relinquishing their personal rights to ensure racial or religious harmony and protect public health and morality.

Political power is divided between the legislative, executive, and judicial branches. The most powerful of these is the executive branch. The President is the Head of the State, government, and the armed forces. He is elected by a direct vote of the people for six-year terms, and under the 18th amendment, the number of terms is unlimited. His powers of appointment are very broad under the newest amendment, as well. Not only can he appoint the Prime Minister, Cabinet, and Justices of the Supreme Court, but he may appoint other key officers as well. If he fails to appoint the official, he can simply assume their powers until an appropriate candidate is found. For example, President Rajapaksa has held the posts of finance and defence ministers in the past, in addition to his constitutional powers. His ability to appoint government posts allowed him to gain the support he needed from Parliament to pass the amendment in the first place. While the President can be impeached by a combined effort of Parliament and the Judicial branch, no other may challenge his decisions in either a public or private capacity. The Prime Minister and the Cabinet advise the President in his capacity as the Head of Government and are charged with the direction and control of the government. While they are ultimately responsible to Parliament, they are appointed by the President.The President of the Democratic Socialist Republic of Sri Lanka is the head of the state, chief executive and commander in chief of the armed forces. President J. R. Jayewardene who conceptualised and institutionalised the executive presidency, from 1966, emphasised the need to transform the parliamentary model of government in Sri Lanka. He emphasised it was the best form of government for developing a country like Sri Lanka. The Constitution has granted many powers and functions to the executive president. Additionally constitutional amendments have been used to increase the powers and functions of the executive president. Therefore, this study attempted to analyse the powers and functions of the executive presidency under the Constitution of 1978 and the subsequent constitutional amendments.

President Chandrika Bandaranaike concluded the parliament session on October 4, 2003 without consulting the speaker of the parliament to avoid an impeachment motion against Chief Justice Sarath N. Silva and issued a gazette to summon the new parliament session on November 19.

The President has the unrequited power to dissolve parliament subject to ineffectual restrictions. Under Article 70 of the Constitution, several powers are devolved on the President to establish his/her supremacy over a hostile legislature. The article bestows on the President the power to order a fresh general election, including the power to recall the dissolved parliament into office if the President in his/her subjective opinion is satisfied that a condition of emergency has arisen. The President continues in office notwithstanding dissolution of the cabinet of ministers. His powers during the period between dissolution and assumption of office by the newly elected parliament include under Article 48(2), the power to assume the functions of not only the Prime Minister, but the rest of the cabinet as well. This violates the standard democratic practice of the former government continuing in office as a caretaker until a fresh verdict from the electorate has been declared. Article 85(2) provision of the constitution proclaims that the President may in his discretion submit to the people by referendum any bill which has been rejected by parliament. Taken together, it can be argued that this has created a legislative rival to the parliament. After discussing the powers and functions of the President over the legislature, it is pertinent to discuss the executive powers given to the President. As the head of the executive, the President enjoys all the powers and functions which are enjoyed by a President under presidential form of government and nominal powers enjoyed by the nominal head of a state under a Cabinet System of Government. All executive powers and functions revolve around the executive president.

According to the Legislature of Sri Lanka Parliament comprises 226 members elected to six-year terms by a direct vote. The members of parliament then elect a Speaker, Deputy Speaker, and a Chair of Committees. The President can dissolve parliament at any time, which significantly weakens their authority vis-a-vis the Executive branch. The main purpose of the parliament is to pass bills and resolutions. This legislation becomes law upon a majority vote and the endorsement of the Speaker. If the cabinet requires it, however, the bill may require a referendum, which the President must endorse. No court can question a law adopted in this way.

The judicial branch of Sri Lanka comprises a Supreme Court, a Court of Appeals, a High Court, and other courts created by law. It is the task of these courts to protect and enforce individual rights of the people. The President appoints not only the Chief Justice and members of the Supreme Court, but also the President and Justices of the High Court. They may hold office only until 65 years, and while their appointments were subject to approval of the Constitutional Council under the 17th amendment, this requirement has been abolished by the 18th amendment. The Supreme Court holds the sole power of constitutional review, and its jurisdiction also extends to matters concerning fundamental rights, final appeals, and election issues. It also has the power to review the actions of parliamentary members and may advise parliament in the legislative process.

In early May 2013 the Mahinda Rajapaksa government had started drafting a constitutional amendment to reduce the terms of office of the President and the Chief Justice to five years each, instead of six years for the President and unlimited term, to age 65, for the Chief Justice. According to the proposed amendment, there would be no limit; however, on how often a President could be re-elected. That drafted amendment had addressed national issues of power devolution and proposed to repeal land and Police powers vested with the provincial councils.

And by May 2013 then opposition political groups, diplomats and civil organizations like the People’s Liberation Front or JVP, Jathika Hela Urumaya, Athuraliye Rathana Thero of Pivithuru Hetak National Movement, and Maduluwawe Sobitha Thero had taken measures to draft a new Constitution of British Westminster system for the country to address various issues especially the issues that arose from the 18th Amendment. The UNP had appointed a committee chaired by Parliamentarian and former Bar Association President Wijeyadasa Rajapakse to draft the Constitution. The party also proposed as a novel system the executive powers of the President to be exercised on a political basis and to be subject to checks and balances. The proposals guaranteed the freedom of expression and the right to information. The UNP also proposed that the system of preference votes be abolished and the tenure of the parliament and the provincial council fixed at five years. The key-elements of the proposed Constitution were restoration of the people’s sovereignty, legislature, executive, devolution of powers, judiciary, good governance and participatory democracy.

The 19th Amendment (19A) to the Constitution of Sri Lanka was passed by the 225-member Sri Lankan parliament with 215 voting in favour, one against, one abstention and seven absent, on April 28, 2015. The amendment envisages the dilution of many powers of the Executive Presidency, which had been in force since 1978.

It is the most revolutionary reform ever applied to the Constitution of Sri Lanka since J. R. Jayewardene became the first Executive President of Sri Lanka in 1978.The proposal for such an amendment was a leading promise of the common candidate of the New Democratic Front, incumbent President Maithripala Sirisena in the Presidential Election campaign of 2015. The main prospect of the amendment is repealing the 18th Amendment which armed the President with extreme powers and reinforcing democracy in the country. It establishes a Constitutional Council which will exercise some executive powers previously held by the Executive Presidency. The 19th amendment restores many components of the 17th amendment letting the Constitutional Council to set up the proposed independent commissions including the Election Commission, the Public Service Commission, the National Police Commission , the Audit Service Commission, the Human Rights Commission of Sri Lanka, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission, the Delimitation Commission, the National Procurement Commission and the University Grants Commission.It is the present government that has once again begun to make headlines with its attempt to bring back constitutional reforms. During its election campaign, reducing the powers of the executive presidency and eventually abolishing the entire office was among the key promises of the present government. Throughout history many governments made the same promise during elections but failed to deliver it after securing power. Although by implementing the 19th amendment the present government has made some positive steps towards minimising the office of executive presidency still there is a long way to go. Expressing his views regarding the matter, Minister for Agriculture Duminda Dissanayake said, “Up until now there were many instances where the governments in power had the chance to abolish this post. However, no one was able to do it. It is only the present President who has voluntarily abolished some of the arbitrary powers of the executive presidency. We are currently working towards completely abolishing the executive presidency as well as reforming the electoral system. Already discussions have been made with other political parties including the UNP on the subject. We cannot do this in an arbitrary manner. The court has ruled that there should be a referendum before changing any key constitutional provisions. President Maithripala Sirisena will do the needful to deliver his promise in a bona fide manner as he has always done.” The following are some of the comments made by intellectuals and civil society activists regarding the proposed constitutional reforms.  Prof Sarath Wijesuriya, Convener, National Movement For A Just Society said, “The current Constitution is not in a state to provide solutions for the present issues in the country. The reason is because rather than a Constitution it still remains in a stage where it has to be constantly re-drafted. But we cannot still call the proposed constitutional reform a drafted Constitution. That is just a joke made by the joint opposition. It is a progressive point to see the government giving more room for public opinion and suggestions in this event. The people must further expand their knowledge regarding the constitutional reforms by listening to parliamentary debates. The end of a dictatorial regime and the end of executive presidency is a necessity. The proposed reforms have paved a way for it. However, these reforms are not going to cause any damage to the unitary status of the country. There can be numerous wordings in a Constitution. The same is with the present Constitution. The problem comes in interpretation of such terms. Just because the word ‘unitary’ is there it does not mean that the country remains unitary. The same is true when the word is absent. “Dr. Chandra Jayaratne, former Chairman of the Chamber of Commerce said, “What the government is trying to do by bringing in a new Constitution is linking it with the UNHRC resolution. It is the government’s agenda to move forward with such mechanisms. According to the government’s plan the local government election is going to be held in July. At that point the two main partners in the government are going to compete against each other. Afterwards can these two parties get back together in August and continue with the reforms? Can they get the referendum passed? The next issue is that the government has claimed that they are not going to change the unitary status and prominence to Buddhism in the Constitution. On the other hand they say that the police powers and land powers would not be given. According to the present Constitution the power must be devolved. However,  that has not been done. Mahinda Rajapaksa and his allies are strongly opposing this move. By going ahead with the setting up of a mechanism to investigate alleged war crimes the government is going to cause further divisions in  society. Gamini Viyangoda, Executive Committee Member, Citizen’s Power said, “To us there is nothing that looks like a new Constitution. Therefore I cannot comment on a new Constitution. We can only talk about what should and should not be included in a proposed Constitution. Both the Prime Minister and the President have clearly stated that the Constitution would not remove the provisions that have given prominence to Buddhism and the unitary nature. Despite that the joint opposition is trying to make false statements based on narrow political agendas to trigger racism inside the country. We strongly condemn this sort of behaviour.”

 

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