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New constitution as a panacea for all ills and people’s mandate


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The constitution is the supreme law of any country. The constitution making process, if handled properly, can bring not only political stability of a country; it could even bring economic prosperity and peace and harmony among the people of the country. It can either make the country a more stable and a prosperous nation or totally break it – Pic by Shehan Gunasekara

Victor Ivan, one of the proponents of 19A, in his latest edition published in Daily FT on 24 May under the caption ‘Sri Lanka needs urgent surgery,’ has once again advocated a strong argument to bring a new constitution as a solution to the current crisis.  



He argued that the next president elected will not have any executive powers. Quote: “Why don’t the prospective candidates of the forthcoming presidential election tell the people this bitter truth? …Do they think that it is not important to arrogate a solemnity to this position and deceive people to win it, although it has only a symbolic value?” Unquote.

It is true that the next Executive President of this country cannot hold and assign himself any ministerial subjects and functions, although the President shall be the Head of the Cabinet (Vide Article 42 (3). This is the position after 19 A of the Constitution. Only the incumbent president may assign to himself the subjects and functions of the ministries specified in Article 51 of the 19A. In addition, under Article 70, he cannot dissolve Parliament during the first 41/2 years (which restriction will expire by 3rd March 2020) unless Parliament members themselves decide by two-third majority to request the President to do so. 

Nevertheless, the person elected at the next presidential election due in November will continue to hold the position of ‘Executive Presidency’ in terms of the provisions stipulated in 19A. As we all know, in terms of Article 42(4) the president shall appoint as prime minister the Member of Parliament who, in the president’s opinion, is most likely to command the confidence of Parliament. The future prime minister shall also be appointed by the incumbent executive president at the conclusion of the Parliamentary Election due in 2020. Therefore, it is incorrect to say that the next president elected will not have any executive powers.

The constitution is the supreme law of any country. The constitution making process, if handled properly, can bring not only political stability of a country; it could even bring economic prosperity and peace and harmony among the people of the country. It can either make the country a more stable and a prosperous nation or totally break it. 

Unfortunately, 19 A has brought the country into further divisions and lacks clarity. The people are still so confused on the constitutional provisions, some of which are contradictory in nature and there are many inconsistencies. As we all know, there were many changes and amendments brought in during the committee stage before it was passed, and finally the Speaker has certified the 19th Amendment to the Constitution on 15 May 2015. 

 

Reverse thinking of main political parties about Executive Presidential system

Contrary to popular belief, the transition to the Executive Presidential system was in fact effected by the second amendment to the 1972 Republican Constitution, shortly after J.R Jayewardene’s UNP Government was returned to power in 1977 with a massive people’s power thus securing a five-sixths majority in Parliament. 

This was opposed by then opposition, SLFP and Dr. Colvin R. De Silva of LSSP drew a parallel with Britain stating that the Parliament representing the people was sovereign. The UNP took a different position and pointed out the sovereign power of the people was vested in the Legislature only in the communist countries. 

The rationale of this constitutional amendment is best explained at the debate held in October 1977 by J.R Jayewardene himself. Quote; “I am not against the parliamentary system on the British model, but I think that we have been too long tied to imperialism and that it is time we broke away and thought of our own methods of governance.” Unquote. 

The amendment was certified by the Speaker on 20 October 1977. J.R Jayewardene became the first Executive President and subsequently enacted the ‘Constitution of the Democratic Socialist Republic of Sri Lanka’ was certified on 31 August 1978. Under the 1978 Constitution, the sovereignty of the people was further strengthened. Article 4 states that legislative power of the people shall be exercised by Parliament and by the people at a referendum; executive power including the defence of Sri Lanka by the President and the judicial power by the Parliament through courts, thus strengthening the principles of ‘separation of powers’. President J.R. Jayewardene was re-elected once again at the Presidential Elections held in 1982. 

 

Separation of powers – A cardinal feature of democracy

The framers when designing constitutions, generally give comprehensive consideration to strengthen the principles of ‘separation of powers’ and ensuring issues of public policy and social welfare of the people.

The term ‘separation of powers’ was coined by a French social and political philosopher. His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently. 

The legislative power has the task of passing laws and supervising their implementation. It is exercised by Parliament. The implementation of laws is the task of the executive. It comprises the president, cabinet of ministers and all authorities including the police and the armed forces. The judges administer justice, viz. they decide disputes independently and impartially. It is their task to ensure that laws are complied with. 

The Executive – in the person of the president – has the right to dissolve the Parliament subject to constitutional provisions. Laws passed by the Parliament can be checked by the Supreme Court and declared null and void if they are found to be unconstitutional. The only influence the Legislature has on the judiciary is that it passes the laws that the courts have to comply with.

 

Promote economic growth, social well-being and national unity

The separation of powers is also affected by the realities of the political party system in all democratic countries. The members of government are members of those parties which have a majority in Parliament. One important democratic task is; more and more powers are taken over by the opposition parties: controlling the Government. The classical separation of powers is given a new dimension – the confrontation of the governing majority and the opposition. While this aspect is not enshrined in the written Constitution, it is a fact of political reality.

Professor A.J. Wilson, a key architect of JRJ’s Constitution, has observed that the 1978 Constitution is a hybrid, cross between French and British styles of government with a little bit of the United States thrown in. More importantly, it is an effort in the direction of depoliticised government, the prime purpose being to promote economic growth and national unity.

As stated above, Sri Lanka is a Democratic Socialist Republic and the leaders of government policy preach that they continue to practice social-market economy. Under Article 27 of the Constitution, the State is pledged to establish in Sri Lanka a democratic socialist society and shall ensure that the economic system in operation does not result in the concentration of wealth and the means of production to the common detriment. 

According to Dr. Colvin R. De Silva, the architect of the first Republican Constitution of the United Front Government which came in to power in 1970, the name and title of the 1978 Constitution is a misnomer. Quote: “As for socialism, the whole design is to obstruct and prevent the march of the people to socialism. The description of the so called democratic socialist society makes it clear that the new constitution is an instrument for the preservation and development of a capitalist society.” Unquote. 

 

Is the present UNF’s governance model acceptable to majority of people? 

One of the measures to see the role of government in the social sector is to look at the total tax collection from the rich and the subsidies afforded to the less privileged people in society. In Sri Lanka, our tax revenue is around 13% percent and how much do we spend on education and health? 

According to the Central Bank Report 2018 the Government spent only 3.4 % of GDP on health and education, where more than 25% of our people live below the poverty line or poor. In fact, there has been a reduction in the capital expenditure on health and education during the last three to four years. Our health and education services are fast deteriorating to a level where we could end up in having unhealthy and less educated children similar to the population living in least developed countries. We need to be mindful that these ‘social infrastructure’ activities are interwoven with socio-political fabric of the society. It is in this context only that a clear strategy of increasing public investments in education, at least 3% of the GDP should be viewed. 

The goal is to give equal access to these basic goods: every child should have access to education, regardless of his or her parents’ income, and everyone should have access to health care. The proponents of 19A before the last PE in January insisted that government must invest more than 5% of GDP on education, which they have now forgotten.

In my view, there seem to be two different governance models that are based on distinctly separate ideologies recognised and preached by the two main political forces in this country. The proponents of the neo-liberal economic model coupled with Western-backed Westminster style parliamentary system of governance advocating near federal style of constitution are in the process of bringing more and more constitutional and economic reforms and those who oppose such moves are reliant on more socialist oriented market based economic development model coupled with a strong presidential system of governance with little devolution of power to the periphery. It seems that the proponents of 19A are now advocating the first model.

Since the future presidents cannot hold and assign subjects and functions of any single ministry including the Ministry of Defence, the Constitution should have made provisions empowering the president to dissolve Parliament, in the event of any serious crisis situation thus providing much needed ‘checks and balances’ for smooth functioning of the government. This is because the president shall be appointed by the entire people of this country in order to exercise people’s sovereignty.

I understand that a legal counsel to one of the additional respondents has made submissions at the SC hearing challenging the dissolution gazette in November 2018 pointing out the SC determination in 2002 when a similar 19A was presented as a bill – on a fundamental rights infringement case – it was determined that the duration of the president’s power to dissolve, which was originally only after the expiry of one year, should get extended only up to three years without reference to people at a referendum. I couldn’t find in the SC determination as to how it was finally interpreted in the SC judgement. 

Articles 3 and 4 deal with sovereignty of the people, which includes franchise. The executive power of the people, including the defence of Sri Lanka, shall be exercised by the president under Article 4(b). There was an attempt last year by some legislators which includes the UNF, TNA and JVP backed by the proponents of 19A to abolish the executive power of the president without any success. At present, the executive president of the Republic shall be elected by the people, whereas under the proposed constitution, the next President shall be elected by the joint majority of the members of Parliament and the new Senate that will be established. 

 

Can the next President opt for an early dissolution?

One could argue that the real motive of bringing the said constitutional amendment was to prevent holding the next presidential election due in November 2019. Any amendments of this nature would have to be referred to people’s approval at a referendum. The UNF Government may be comfortable to go for a referendum than facing the Presidential Election. 

Why should they abolish something that is not in existence as claimed by VI? How can they argue that the next president elected will not have any executive powers? Aren’t the proponents of 19A only paying lip service to democracy by not accepting Articles 3 and 4 in the present Constitution? Of course, if succeeded it would have negated the very principle of separation of powers – a cardinal feature of democracy. This, in my view, is a serious violation of the people’s sovereignty and the fundamental rights.

It is true that under Article 70, the president cannot dissolve Parliament during the ‘first four-and-a-half-year year’ period. However, in my view, one of the presidential candidates if he wishes to do so, could obtain a mandate from the people at the next PE election by way of a manifesto proposal for an ‘early dissolution of the Parliament’ once elected. In the event the mandate is granted by the people at the Presidential Election, the elected president could dissolve the Parliament, as Articles 3 and 4 which deal with sovereignty of the people shall supersede Article 70 under ‘Doctrine of Necessity’. This of course is subject to SC interpretation in the event an election petition is filed – by that time the people’s president is already in power, up and running. 


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